893 F.3d 232
4th Cir.2018Background
- On Aug. 2, 2016, Newport News police responded to two 911 calls reporting a white man in a blue-and-white striped shirt at RJ’s Sports Bar who was carrying a concealed firearm and drinking; one caller gave a first name and phone number, the other was an off-duty officer relaying a bartender’s concern.
- Officers, aware RJ’s was a "known problem area," reviewed a written call-for-service report, entered the bar, confirmed the bartender had seen a bulge and that patrons reported a matching description, and located only one patron matching the description: Edward Kehoe.
- Officer Lipscomb observed slurred speech, asked Kehoe to step outside; when Kehoe did not immediately comply he was asked to stand and produce ID, and officers placed hands on him to steer him out—this physical contact constituted the seizure.
- Once outside, officers handcuffed Kehoe, performed a pat-down, and discovered a handgun concealed under his shirt; Kehoe was arrested and indicted under 18 U.S.C. § 922(g)(1).
- Kehoe moved to suppress the gun and statements, arguing the seizure lacked reasonable suspicion; the district court denied suppression, relying on the two calls, officers’ experience with the bar, and Kehoe’s behavior; Kehoe pleaded guilty reserving his right to appeal the suppression ruling.
Issues
| Issue | Kehoe's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether officers had reasonable suspicion to seize Kehoe for alleged possession of a concealed firearm while drinking | Officers lacked reasonable suspicion; seizure occurred without warrant or adequate corroboration of anonymous tips | Reasonable suspicion existed based on the first caller (identified by first name/phone), corroboration by bartender, the match to description, officers’ experience with the bar, and Kehoe’s demeanor | Affirmed: totality of circumstances established reasonable suspicion at the time of seizure |
| Whether the 911 tips were anonymous and thus unreliable | Both calls were effectively anonymous and insufficient to support a stop | First call was non-anonymous (provided name/number and was an on-scene eyewitness); second was anonymous but combined with other factors | First call was non-anonymous and provided corroborable, reliable information; second was anonymous but did not defeat reasonable suspicion when combined with other facts |
| Whether officers relied on improper factors (posture/nervousness) or misobservations to justify the stop | Officers’ observations (leaning toward right, nervousness) were unreliable or contradicted by video and thus cannot supply reasonable suspicion | Some officer observations corroborated the tip and the officers’ experience supported suspicion; court may rely on correct, corroborated facts | Court discounted posture and vague nervousness but found other corroboration (description match, bartender report, slurred speech, bar reputation) sufficient for reasonable suspicion |
| Whether district court’s racially charged remarks at suppression hearing require reversal | Judicial comments about Kehoe’s race biased the proceedings and warrant reversal | Remarks were improper but did not prejudice Kehoe’s suppression hearing outcome; record and video permit independent review | Remarks were improper but not reversible error because record shows officers did not rely on race and recordings allowed independent, nonprejudiced review |
Key Cases Cited
- Terry v. Ohio, 392 U.S. 1 (establishing constitutionality standard for brief investigatory stops)
- Hiibel v. Sixth Judicial Dist. Court of Nevada, 542 U.S. 177 (reasonable suspicion required to seize a suspect)
- United States v. Sokolow, 490 U.S. 1 (reasonable suspicion requires particularized, objective basis)
- United States v. Arvizu, 534 U.S. 266 (totality of circumstances test for reasonable suspicion)
- United States v. Cortez, 449 U.S. 411 (guidance on evaluating totality of circumstances)
- Alabama v. White, 496 U.S. 325 (analysis of tip reliability, basis of knowledge, and corroboration)
- Florida v. J.L., 529 U.S. 266 (anonymous tip doctrine; anonymous tip rarely supplies reasonable suspicion without corroboration)
- Ornelas v. United States, 517 U.S. 690 (review standard: objective reasonableness under totality of circumstances)
- Scott v. Harris, 550 U.S. 372 (courts may rely on objective video evidence when it contradicts lower-court factual findings)
- United States v. Brignoni-Ponce, 422 U.S. 873 (race alone cannot create reasonable suspicion)