U.S. v. Howell

In prosecution on unlawful possession of firearm charge, Dist. Ct. erred in denying defendant's motion to suppress gun seized from defendant during street encounter. Record showed that: (1) police received anonymous 911 tip reporting that Hispanic man in black sweater, black hat and bag was climbing under warehouse fence; (2) officers reported to scene and found someone matching 911 description, but determined that he had not been engaged in any criminal activity; (3) defendant, who is white and was wearing black jacket and dark hat, but no bag, was across street; (4) officer approached defendant and asked what was going on; (5) defendant did not answer officer, looked panicked and put his hands in his pockets; and (6) officer reacted by patting down defendant and found gun in his jacket. While facts supported officer's decision to stop defendant and ask question, where defendant roughly matched physical description of tip and was in area of warehouse, instant frisk was unreasonable, where: (1) tip was anonymous and defendant only roughly matched physical description given by tipster; (2) police did not observe any criminal activity; (3) reported offense did not suggest violence or emergency; and (4) there was no suggestion that defendant was armed. Fact that defendant appeared to be panicked or had refused to answer officer's question did not require different result. Moreover, while officer provided additional details during trial that might have supported instant frisk, record showed that Dist. Ct. based its decision on facts presented by parties prior to trial, such that, although defendant made additional motion to suppress gun at close of trial, it was not error for Dist. Ct. to base ruling on known pre-trial facts only.