NOT FOR PUBLICATION
MADELINE COX ARLEO, District Judge.
Before the Court is Defendant Brian Little's ("Defendant" or "Little") motion to suppress evidence recovered from his automobile on August 24, 2015. ECF No. 17. Because Little was stopped on the basis of an unreliable, nonspecific tip and there was no other reasonable suspicion for the stop and seizure, the subsequent search violated the Fourth Amendment. For the reasons that follow, the motion will be
On March 29, 2016, a grand jury indicted Little on one count of possessing a firearm after having been previously convicted of a felony, in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 2. ECF No. 1. He was arraigned on May 19, 2016 and entered a plea of not guilty. ECF No. 10.
On October 28, 2016, Little filed a motion seeking, among other things, suppression of a firearm and ammunition seized from his automobile during a warrantless search on August 24, 2015. At a three day evidentiary hearing, the Court heard testimony from two of the arresting officers, Tremayne Phillips ("Phillips") and Tauron Hinnant ("Hinnant") (together, the "Detectives"); the sergeant who took the anonymous tip that led to Little's arrest, Anthony Venancio ("Venancio"); and the supervisor who relayed the tip to the arresting officers, Joseph Conzentino ("Conzentino") (collectively, the "Officers"). Jamie Sowers, an eyewitness and friend of Little, also testified. Following the hearings, the Court received post-hearing briefing from the parties. ECF Nos. 27-30.
II. FINDINGS OF FACT
The Newark Police Department operates a Crime Stoppers hotline.
When a tip comes in, a Crime Stoppers officer will talk to the caller, may or may not take notes, but ultimately will input the information into an electronically prepared "Crime Stoppers Report," or direct a subordinate to do so. 4/12/17 Tr. 10:9-25, 21:24-22:2, 24:8-26:6. This Report provides space for the officer to record certain details about the tip, such as the type of offense reported; the location of the offense; any physical descriptions of the suspect; the make, model, and license plate number of the suspect's vehicle; and a description of the firearm, if any. See Crime Stoppers Report, Ex. D-9. The tip is then relayed via email, fax, or departmental mail to a supervising officer at the Police Department. 4/12/17 Tr. 24:21-25:15, 28:14-29:2, 47:7-48:3. The tip may also be relayed to the supervising officer via telephone. 4/12/17 Tr. 25:10-26:1, 26:14-23, 28:14-29:2. Finally, the supervising officer will provide the information to those on patrol. 3/28/17 Tr. 9:1-10:15, 119:11-13. There is no set protocol, and the officers decide how best to disseminate the information, which may be time-sensitive. 4/12/17 Tr. 26:4-6, 26:14-23, 47:7-48:3.
At 8:23 p.m. on the evening of August 24, 2015, Sergeant Venancio—who, at the time, was in charge of the Crime Stoppers desk—received an anonymous tip. See Crime Stoppers Report; 4/12/17 Tr. 18:2-3. He or a subordinate prepared a Crime Stoppers Report, which read: "Tipster stated the driver of the Red Chevy Impala is a Black male and he has a handgun in the vehicle." Crime Stoppers Report. The Report also indicated a location of "[South Orange Avenue] and S. 19th St." and listed the type of offense as "Gun." Id. The Report included no other identifying information about the vehicle or driver, even though it had specific sections to enter information about, for example, the suspect's vehicle's license plate. See id.
According to the Report, by 8:29 p.m., Venancio had relayed the tip to Sergeant Conzentino via phone and email. 4/12/17 Tr. 24:21-25:15; Crime Stoppers Report. The one-line email conveys the same essential information that is contained in the Crime Stoppers Report: "So orange and so 19th suspect armed with a handgun in a red Impala right now." Exs. D-7, D-8. There is no mention of a license plate or any other identifying information in the email, either. Conzentino then orally relayed the information to Detectives Hinnant and Phillips, who were at the police station. 3/28/17 Tr. 9:1-23, 14:4-15:8, 39:2-11, 98:1-11. The Detectives did not write down any information about the tip; they committed it to memory. 3/28/17 Tr. 15:5-17, 98:12-22. And both Venancio and Conzentino testified that they could not recall whether the tip included any additional information, such as information about a partial license plate number. 4/12/17 Tr. 36:4-38:18, 51:17-21.
The Detectives left the Police Department in the same vehicle, with Hinnant driving, in search of the vehicle in the vicinity of the tip. 3/28/17 Tr. 12:5-11, 99:1-10. The area was known to law enforcement as a high-crime area, and Hinnant and Phillips had previously made narcotics and firearms arrests there. 3/28/17 Tr. 11:12-20. At approximately 8:45 p.m., Hinnant and Phillips identified a red Impala with a black male driver (Little) in the vicinity of South Orange Avenue and South 19th Street. 3/28/17 Tr. 99:11-16. In addition to Little, there were two other passengers in the car. 3/28/17 Tr. 72:7-13.
Little had pulled over on his own on the northbound side of South 20th Street, near South Orange Avenue, when Hinnant and Phillips' vehicle pulled directly in front of the Impala. 3/28/17 Tr. 17:6-8, 20:3-5, 20:8-17, 130:2-10, 131:6-11; 4/4/17 Tr. 24:19-26:3. At around the same time, two more police vehicles pulled up behind Little, boxing him in and making it impossible for him to leave. 3/28/17 Tr. 24:1-13, 67:2-3, 68:7-9, 69:22-25, 70:7-8, 104:13-15, 148:4-7; 4/4/17 Tr. 24:19, 25:4-12, 25:13-16.
Hinnant and Phillips immediately exited their vehicle and quickly walked towards Little's car. 3/28/17 Tr. 20:25-21:1, 66:19-23, 80:12-15; 4/4/17 Tr. 26:5-7. The Detectives were wearing vests that said "Police" across the chest, and also wore their detective badges. 3/28/17 Tr. 5-7. As they approached, Phillips ordered Little to put his hands up, and he immediately complied. See Incident Report at 2, Ex. D-1; 3/28/17 Tr. 141:22-142:20; 4/4/17 Tr. 28:18-29:16, 31:24-32:3, 86:10-22.
Once they reached the vehicle, Hinnant and Phillips ordered Little and the two passengers out of the car. 3/28/17 Tr. 25:23-26:14, 80:21-81:82:10, 106:24-107:5. Little and the passengers were directed to sit on the curb behind the vehicle. 3/28/17 Tr. 32:12-21. Officers then proceeded to search the vehicle, in which they found a loaded pistol. 3/28/17 Tr. 26:19-25, 107:15-20; 4/4/17 Tr. 30:3-19, 32:10-22. Little was arrested, and the passengers were released. 3/28/17 Tr. 36:9-20, 106:13-17, 109:18-21. Little was transported to the Newark Police Department headquarters and charged with unlawful possession of a firearm and ammunition, and received summonses for driving with illegally tinted windows and for not wearing a seatbelt. 3/28/17 Tr. 33:8-14, 34:10-12, 36:6-8, 153:18-20.
Later that night, Detective Hinnant prepared an Incident Report. See Incident Report, Ex. D-1. The following day, the Newark Police Department paid $1,000 to the anonymous tipster. 4/12/17 Tr. 32:20-33:4; Ex. D-12.
III. CONCLUSIONS OF LAW
The Fourth Amendment protects the public from "unreasonable searches and seizures." U.S. Const. amend. IV. To prevail on a motion to suppress, a defendant generally "bears the burden of establishing that his Fourth Amendment rights were violated." United States v. Correa, 653 F.3d 187, 190 (3d Cir. 2011). However, if the defendant meets his burden to show that the search was conducted without a warrant, "the burden shifts to the government to show that the search or seizure was reasonable."
The Government argues that the stop of Little's vehicle was permissible under the Fourth Amendment because it was an appropriate
After reviewing the evidence and assessing the credibility of the witnesses, the Court concludes that the traffic stop and vehicle search were in violation of the Fourth Amendment, and that the evidence must be suppressed as "fruit of the poisonous tree."
A. When did the seizure occur?
The Court begins the Fourth Amendment analysis by determining when the seizure of Little occurred, because "that is the moment `the Fourth Amendment becomes relevant.'"
The Court finds that Little was seized when several police units converged on his car and boxed him in.
Yet even if Little was not seized when his vehicle was boxed in, he was certainly seized when he immediately complied with Phillips' order to show his hands. Once Hinnant and Phillips stopped, they exited their vehicle, quickly proceeded towards Little's car while in uniform, and ordered him to put his hands in the air. Little immediately raised his hands.
Therefore, Little was seized, at the very latest, when he complied with Phillips' order to put his hands in the air.
B. Was the stop supported by reasonable suspicion?
The Government has not met its burden to show that at the time Little was seized, the officers possessed a reasonable, articulable, and individualized suspicion that he was engaged in criminal activity.
The Government first contends that the seizure was justified because Little's windows were illegally tinted and he was not wearing a seatbelt, both in violation of New Jersey law. Yet the Court does not find credible the Detectives' testimony that they observed Little's tinted windows and seatbelt violation prior to the seizure.
Next, the Government argues that the anonymous Crime Stoppers tip provided a sufficient basis for the stop. "When a Terry stop is based on a tip provided by an informant, [the court] must scrutinize the informant's `veracity, reliability, and basis of knowledge' to determine whether the information relied upon by the police was sufficient to establish reasonable suspicion for the stop."
Based on these considerations, the Court holds that the tip did not carry sufficient indicia of reliability and did not provide the officers with reasonable suspicion to make the stop. The Supreme Court's decision in
Similarly here, the anonymous tip carried virtually no indicia of reliability. The tip was anonymously relayed through the Crime Stoppers hotline, which prevented Sergeant Venancio from assessing the credibility of the caller face-to-face and ensured that the source could not be held accountable if the allegations were incorrect.
While the tip was accurate in the sense that the officers could correctly identify the subject of the tip, the Supreme Court has stressed that the reasonable suspicion analysis "requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person."
Because the Government has not met its burden to demonstrate that the stop was supported by a reasonable, articulable, and individualized suspicion that Little was engaged in criminal activity,
For the foregoing reasons, Little's motion to suppress the evidence seized from his automobile on August 24, 2015 is