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7th Circuit says vacated Fourth Amendment case was 'close call'

August 20, 2018

The 7th Circuit Court of Appeals vacated and remanded a motion to suppress two firearms from a vehicle search after it determined the search was unwarranted due to a lack of reasonable suspicion after an anonymous tip was made.

Gary 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. The caller said he was calling from a McDonald’s across the street and would try and stay near the borrowed phone.

Officer Anthony Boleware drove to the lot and blocked a car matching the caller’s description, which contained four males, before approaching on foot. All four of the men denied having weapons in the car.

When three more officers arrived on the scene, each officer blocked a car door. Upon asking the occupants to step out of the vehicle, front seat passenger David Watson threw a gun on the backseat floor, where officers found a second gun.

Watson was charged with possessing a firearm as a felon, but he moved to suppress the two weapons recovered from the car. But the Indiana Northern District Court found the seizure was lawful and denied Watson’s motion to suppress, and he later pleaded guilty to unlawfully possessing the gun.

But the 7th Circuit Court vacated and remanded that decision in USA v. David Watson, 17-1651, noting first that anonymous tips “seldom demonstrate[] the informant’s basis of knowledge or veracity,” they alone are not usually reliable enough to establish reasonable suspicion. The government relied on Navarette v. California, 134 S. Ct. 1683 (2014), to support the district court’s ruling, but the appellate panel distinguished Navarette from the instant case.  

The first distinction was that the the anonymous 911 call in Watson’s case was less reliable because the caller borrowed a stranger’s phone, limiting the usefulness of the system’s tracing ability. Any number identified would not lead back to the caller because he had no permanent connection to the phone, and geographic location at the time of the call would be useful only so long as the caller remained near the phone, Judge Amy Coney Barrett wrote Friday.

Second, the panel found that “a mere possibility of unlawful use” of a gun was not sufficient to establish reasonable suspicion in this case. The anonymous call did not create a reasonable suspicion of an ongoing crime, the 7th Circuit found, noting that the connection to unlawful activity was too speculative.

“’Boys’ could be a generic term for men of any age, and ‘playing with guns’ could mean displaying them, which is not criminal conduct,” Barrett wrote. “Lacking detail, the report of guns in public does not suggest likely criminal activity.”

Next, the 7th Circuit found the circumstances did not necessitate an emergency response. No suggestions were made by the anonymous caller that violence would ensue, or that it was a tense situation.

It also found that upon his arrival at the scene, Boleware’s worries should have “dissipated” when he found four males sitting leisurely in a car “with no guns in sight.” The 7th Circuit did, however, denied Watson’s claims that a child’s tip should be considered with skepticism.

Finally, the bench found unpersuasive the argument that the tip reliably conveyed information about likely criminal activity because the caller reported guns in what the officers considered a high‐crime area. It noted people who live in rough areas may carry guns for protection and should therefore not be subject to more intrusive practices than those who may live in wealthier neighborhoods.

“We close by noting that the police were right to respond to the anonymous call by coming to the parking lot to determine what was happening,” Barrett concluded. “But determining what was happening and immediately seizing people upon arrival are two different things, and the latter was premature.”

“…Watson’s case presents a close call,” she said. ‘But this one falls on the wrong side of the Fourth Amendment.”

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