CA6: 911 call at 4 am did not state any criminal activity, and defendant’s stop was without reasonable suspicion

Officers responded to a 4 a.m. 911 call about a person in the neighborhood, but there was no allegation of criminal activity. When the police showed up, defendant was walking to his car, and he opened the door and threw a bag in the car. He stopped for the officer, and there was no reasonable suspicion for his stop at the time it happened, and the search thereafter was unreasonable. The motion to suppress was erroneously granted. United States v. Johnson, 620 F.3d 685, 2010 FED App. 0292P (6th Cir. 2010)*:

In sum, the totality of the relevant circumstances consisted of contextual factors that would have applied to anyone in the neighborhood; a 911 call that made no specific allegation of criminal activity, provided no predictive information about the suspects, and at most suggested that someone was doing something suspicious in the area; Johnson’s reasonable failure to comply with commands to stop until he had reached the white car; and the fact that Johnson did not flee or otherwise react suspiciously to the officers’ presence, but rather continued along the precise trajectory he was following when the officers arrived. While facts susceptible of innocent explanation may amount to reasonable suspicion when taken together, Arvizu, 534 U.S. at 277-78, that oft-cited principle “is not a talisman in whose presence the Fourth Amendment fades away and disappears,” Coolidge v. New Hampshire, 403 U.S. 443, 461 (1971). The facts involved here fall far short of the constitutional standard. In short, the officers lacked reasonable suspicion to detain Johnson.

III. CONCLUSION

In this case, Sergeant Lamb and Officer Parton stopped an individual who turned out to be engaged in criminal conduct. Nonetheless, the Fourth Amendment prevents the government from using the incriminating evidence they recovered. Because the totality of the circumstances did not provide “a particularized and objective basis for suspecting [Johnson] of criminal activity,” Cortez, 449 U.S. at 417-18, and because “[t]he Fourth Amendment simply does not allow a detention based on an officer’s ‘gut feeling’ that a suspect is up to no good,” United States v. Urrieta, 520 F.3d 569, 575 (6th Cir. 2008), we conclude that Lamb and Parton seized Johnson without reasonable suspicion of criminal activity in violation of the Fourth Amendment. If a stop is not justified at its inception, any evidence resulting therefrom must be excluded. See Blair, 524 F.3d at 750. Thus, we REVERSE the district court’s order denying Johnson’s motion to suppress and REMAND the case for further proceedings.

[Bottom line: But for the car, a Cadillac, this could have been the guy tossing newspapers at 4 am.]