April 25, 2018
from the United States District Court for the Northern
District of Indiana, Hammond Division No. 2.15CR79-001 - Rudy
Manion, Hamilton, and Barrett, Circuit Judges.
BARRETT, CIRCUIT JUDGE.
police received an anonymous 911 call from a 14-year-old who
borrowed a stranger's phone and reported seeing
"boys" "playing with guns" by a
"gray and greenish Charger" in a nearby parking
lot. A police officer then drove to the lot and blocked a car
matching the caller's description. The police found that
a passenger in the car, David Watson, had a gun. He later
conditionally pleaded guilty to possessing a firearm as a
felon, 18 U.S.C. § 922(g)(1), but preserved for appeal
his argument that the court should have suppressed the gun
because the stop lacked reasonable suspicion.
agree with Watson that the police did not have reasonable
suspicion to block the car. The anonymous tip did not justify
an immediate stop because the caller's report was not
sufficiently reliable. The caller used a borrowed phone,
which would make it difficult to find him, and his sighting
of guns did not describe a likely emergency or crime-he
reported gun possession, which is lawful. We therefore vacate
the judgment and remand for further proceedings.
9:30 a.m. on Sunday, July 5, 2015, an unidentified caller in
Gary, Indiana, phoned 911 to report that "boys"
were "playing with guns and stuff" in a parking lot
at an address that the caller specified. He explained that
the boys "were standing there" by a "gray and
greenish Charger" and "just out there playing with
they guns." The caller said that he was 14 years old and
was calling from a McDonald's across the street. The 911
operator elicited a few more details: the "boys"
were black, were in a group of four to five, and had two
guns. The caller added that he was calling from a phone that
he had just borrowed from "this man" and that he
would "try to stay close" to it.
operator radioed this information to Officer Anthony Boleware
of the Gary Police Department: "Have a man with a gun
1532 West Fifth Avenue. 1-5-3-2 West Fifth Avenue. Have five
male blacks in the parking lot across from McDonald's in
a green-check that, a gray and green Charger displaying
weapons. 1-5-3-2 West Fifth Avenue [inaudible]."
Boleware testified at the suppression hearing that after
hearing the dispatch, he identified the address as "a
heavy area for crime" where the police were frequently
called. He thought that this particular call was urgent
because "[i]f it was described like three or four guys
displaying weapons, they might [be] about to shoot
somebody." Officer Wayne Dodson, another officer who
responded to the call, also testified that he knew that
address to be "a hot area" and considered the call
urgent because "[a]ny time you have males with weapons,
there's always a sense of urgency 'cause anything
drove to the address and saw in the parking lot "a
Charger with about four guys sitting in it." Using his
patrol car, he blocked the Charger before approaching it on
foot. All of the occupants denied having any weapons in the
car. Within nine minutes, three other officers arrived in
response to Boleware's request for backup, and each
officer blocked a car door. At that point, Boleware told the
other officers to take each occupant out of the car and frisk
him for weapons. When another officer ordered Watson, the
front seat passenger, out of the car, Watson threw a gun onto
the backseat floor. Boleware grabbed the gun and noticed
another gun inside the pouch in front of the backseat
was charged with possessing a firearm as a felon,
see 18 U.S.C. § 922(g)(1). He moved to suppress
the two firearms recovered from the car. At a hearing,
Boleware and Dodson testified as recounted above, and the
court received the recording and transcript of the 911 call,
the recording of the dispatch, and the surveillance video of
the parking lot.
argued that Boleware unlawfully seized him by blocking the
Charger without reasonable suspicion that a crime had
occurred or was imminent. The 911 caller, Watson said,
reported only gun possession, which is lawful in Indiana, and
did not establish the reliability of his anonymous tip. The
government countered that under Navarette v.
California, 134 S.Ct. 1683 (2014), the anonymous tip was
reliable and established reasonable suspicion of a crime
because the caller reported his own contemporaneous
observations about persons playing with guns in a high-crime
area. And the government contended that the
collective-knowledge doctrine permitted the court to rely on
facts that the dispatcher knew but did not convey to Boleware
to support reasonable suspicion.
district court concluded that the seizure was lawful and
denied Watson's motion to suppress. The court reasoned
that the anonymous caller, like the tipster in
Navarette, reported activity that he witnessed
contemporaneously and provided enough detail to supply
reasonable suspicion of a crime. In addition, the court
agreed with the government that the collective-knowledge
doctrine applied. Following this ruling, Watson pleaded
guilty to unlawfully possessing the gun but reserved ...