UNITED STATES OF AMERICA v. EDWARD JOSEPH KEHOE
US Court of Appeals for the Fourth Circuit, Motz, June 20, 2018,
Reasonable Suspicion – The mere fact that a person of one race is present among a group that is predominantly of another race does not provide a basis of suspicion of criminal activity

Facts:
In 2016, local Virginia police received two phone calls reporting a man drinking at RJ’s (a local sports bar) while carrying a concealed firearm.
RJ’s was known to officers as a “problem area” with a “myriad of calls” for incidents involving: gunshots, fights, and disorderly conduct.
According to recordings of the two phone calls, the first caller reported that he was at RJ’s, and that a white male wearing “a blue-and-white striped shirt” had a gun “on his side” “under his shirt” and had “been drinking.” The caller stated that he wished to be anonymous, but at the 911 operator’s request, provided his first name and phone number. Officers received a “call for service report” which included this caller’s first name and telephone number.
Almost simultaneously, a second caller, an off-duty police officer, informed the police that a “bartender at RJ’s” had called to inform him that a white male at RJ’s was “intoxicated” and “carrying a firearm.” The fact that the caller was an off-duty police officer was not recorded by the 911 dispatcher and was not relayed to responding officers.
Officers responded to the bar and conducted a pre-entry huddle where they noted that, under Virginia law, a concealed-carry permit holder could only be inside of a bar if they were not drinking.
On entry, officers spoke with the bartender, who confirmed that several patrons had reported that a white male in a blue-and-white striped shirt had a gun, and that the bartender had seen a “bulge” but not the gun itself.
The officers approached Kehoe, who matched the description of the suspect and was the only white male in the predominantly African-American bar. While speaking to the officer, Kehoe remained seated, leaning slightly to his left. His speech was “slightly slurred.”
Because the confined space, loud music, and pool tables made it difficult to have a conversation, the officer asked Kehoe to “step outside with” the officers. When Kehoe did not comply, the officer asked Kehoe to “stand up” and produce identification. Kehoe did so, and two officers placed their hands on Kehoe to steer him toward the exit.
Once outside, officers conducted a pat-down and recovered a handgun from underneath Kehoe’s shirt. Kehoe was arrested.
Prior to trial, Kehoe challenged the stop and frisk as illegal.
The trial court denied Kehoe’s motion to suppress the gun. In doing so, the district court judge “repeatedly expressed concerns about why Kehoe (a white man) would go to RJ’s (a bar with mostly black patrons) after midnight with a gun. The court also compared Kehoe’s conduct to recent racially motivated murders of African-American churchgoers by a white man and suggested that if the officers had not arrested Kehoe, he too might have engaged in racially motivated violence.”
Kehoe pled guilty, then appealed based on the legality of the stop.

Held: The Court held that, based on the first call and the officers’ observations, there was reasonable suspicion to stop Kehoe and frisk him.

Seizure (Stop) – A warrantless seizure of an individual requires at least reasonable, articulable suspicion (RAS) of criminal activity.

From the Case: “To seize Kehoe, the officers needed reasonable suspicion that, while in RJ’s, Kehoe was carrying a concealed handgun and drinking alcohol.”

RAS – RAS is the objective evidence that would lead a reasonable officer to believe that a crime has just occurred, is occurring, or is about to occur.

RAS – RAS depends on what the officer knows and the “degree of reliability” of that information

Reliability – The reliability of a tip is based on:
– The informant’s truthfulness
– The informant’s reliability
– The informant’s basis of knowledge (how does he know this information?)

Anonymous Tips – An anonymous tip is treated as less reliable than information provided by a citizen. The identity of the tipster is unknown, so they can’t be held accountable if they lie and their reliability can’t easily be gauged.

Anonymous Tips – Without more, an anonymous tip stating only that an individual has drugs or is armed with a gun is NOT enough to stop a suspect.

Example from the Supreme Court: Not enough RAS for a stop where an anonymous caller reported that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. No recording of the call was made. Nothing more was known about the caller (including how he knew about the crime). No characteristics of an armed person were observed by police.

Anonymous Tips – However, if an anonymous tip shows that it IS reliable, either by explaining HOW the tipster knows the information or by predicting future behavior, it adds to the reliability of the suspicion.

Anonymous Tips – An anonymous tip might also be considered more reliable if the informant “places his anonymity at risk”

Example from the Supreme Court: An anonymous call gave reasonable suspicion where it was a 911 call stating that a silver Ford pickup truck with a given license plate had run her off the road and was last seen five minutes earlier heading southbound on a particular road.

Difference between the Supreme Court cases: Probably the most important difference is that the 911 caller with the hit and run explained that she was an eyewitness to a crime (explaining how she knew about it). Added to that, an officer observed the vehicle traveling along the trajectory explained by the caller (confirmed information based on path of travel, not just a parked car). Finally, the 911 call could be traced back and takes away some of the anonymity. The Court explained that the 911 call could “be recorded, which provides victims with an opportunity to identify the false tipster’s voice and subject him to prosecution,” and that “they permit law enforcement to verify important information about the caller,” including the caller’s phone number and geographic location.

From the Case: The second call was treated as anonymous because (even though the 911 operator was told this information), the officers were given “no information about the second caller’s identity or basis of knowledge.” What an officer doesn’t know can’t factor into RAS.

Citizen Informant – In contrast to an anonymous informant, a “citizen informant” or a victim who discloses his/her identity and basis of knowledge is both reliable and credible

From the Case: The first call was not considered anonymous because, even though he requested to be anonymous, the caller left a first name and phone number. Because this information was passed on to the officers, “this crucial information allowed the police to ascertain his identity. The first caller also provided the basis of his knowledge: his presence at RJ’s, the location of the alleged ongoing criminal activity.” It did not matter that the officers didn’t call him back; what mattered here was that the officer could have contacted the informant if he felt it necessary.

Practice Note: This would be similar to a caller who states that he/she does not want to be seen, but has left a callback number. If dispatch does not relay this information, you can’t rely on it for RAS. It may be helpful, therefore, to ask dispatch about anything that could identify the caller (even if the caller has requested not to be seen). You do not need to actually make contact with the caller; you only need to be able to do so if it turns out that he/she appears to be intentionally feeding the police bad information.

Practice Note: Even if there is callback information, it is helpful to corroborate informant information to the extent reasonably possible. Your observations and information received can help shore up a tip.

From the Case: While the first call was reliable, the officers “corroborated several key facts from the first caller’s tip before they seized Kehoe. Officer Lipscomb learned from the bartender at RJ’s that several patrons had reported that a white man in a blue-and-white striped shirt was carrying a concealed weapon. The officers then identified only one man in the bar who matched this description: Kehoe. And Officer Lipscomb observed that Kehoe’s speech was ‘slightly slurred.'”

Nature of the Area – An area’s “disposition toward criminal activity” may be considered in determining whether RAS exists. However, the type of criminal activity in the area should relate to the type of criminal activity suspected.

Practice Note: Do not just say that a neighborhood is a “high crime area”; explain how the area relates to the type of crime that you suspect is going on. The fact that an area is known for shoplifting will not add to your RAS to stop an armed person.

From the Case: “That the officers were responding to a situation involving an intoxicated individual and a gun — a situation not dissimilar from previous calls for service at RJ’s — added to their reasonable suspicion that Kehoe was, in fact, intoxicated and in possession of weapon.”

Race – The mere fact that a person of one race is present among a group that is predominantly of another race does not provide a basis of suspicion of criminal activity

From the Case: “The district court’s repeated reference to Kehoe’s race during the suppression hearing was clearly improper.”