CA3: No RS; def’s actions were innocuous individually and on the totality; reversed

Defendant’s actions that the district court held were reasonable suspicion were innocuous on the totality, and the CI was not corroborated. The motion to suppress should have been granted. United States v. Bullock, 2021 U.S. App. LEXIS 2499 (3d Cir. Jan. 29, 2021):

We have previously identified five factors that indicate the reliability of a tip. The tip here possessed few of those five indicia of reliability. The tip was not relayed in a face to face interaction so the officers could not appraise the tipster’s credibility; and it is not clear that the tipster could be “held responsible if h[is] allegations turn[ed] out to be fabricated.” Moreover, the tip appears to have been “based solely on observation” rather than any inside knowledge. In addition, the court had no way of knowing if the tipster had recently observed the alleged criminal activity. Finally, the tipster did not “predict[] what w[ould] follow.”

Absent these indicia of reliability, the officers needed something more to establish the specific and articulable facts suggesting criminality necessary for reasonable suspicion. “[I]f a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.” There was not sufficient additional information here.

Once at the scene, officers witnessed Bullock perform only entirely legal activity; they saw Bullock unhurriedly walk out of the bar to his legally parked car and sit inside. Although Officer Ishman saw Bullock’s shoulders momentarily dip beneath the dashboard when Officer Ishman shined his headlights into Bullock’s car, Officer Ishman admitted at the suppression hearing that such movement was consistent with Bullock doing any manner of legal activities, such as stowing a cell phone or purse, and indeed it was. It was also consistent with Bullock attempting to retrieve keys that may have fallen to the floor. Such innocent actions cannot be pieced together in Lego-like fashion to construct reasonable suspicion and justify a stop under Terry. Accordingly, the district court erred when it concluded that officers had reasonable suspicion to search Bullock.