2d Cir.: While RS may be lacking at initiation of stop, defendant’s actions thereafter may create it

While reasonable suspicion on an anonymous tip that could not be fully corroborated (black man on bicycle with gun in hand; on seeing him, no gun) may have been lacking, the events after the activation of a police car’s lights may add to the reasonable suspicion. United States v. Muhammad, 463 F.3d 115 (2d Cir. September 7, 2006):

Muhammad’s detention was initiated when Officer Cruz activated the patrol vehicle’s spotlight and overhead lights. While Cruz’s conduct may be considered an unreasonable order to stop since reasonable suspicion was lacking at that point, it is the rule “that an unreasonable order to stop does not violate the Fourth Amendment and that the grounds for a stop may thus be based on events that occur after the order to stop is given.” United States v. Swindle, 407 F.3d 562, 568 (2d Cir. 2005) (citing California v. Hodari D., 499 U.S. 621, 629 (1991), as providing “strong impli[cation]” for this rule). In Swindle, the defendant was driving an automobile when he was ordered to stop by the activation of patrol car lights. He thereafter crossed a double yellow line, drove the wrong way on a one-way street, threw a bag of cocaine from the car, and was seized as he fled on foot. Id. at 564. We concluded that “Swindle was seized only when the police physically apprehended him” and that the discarded drugs, which he was charged with having possessed with intent to distribute, were “not the fruit of a Fourth Amendment seizure.” Id. at 573.

Similarly, Muhammad was not seized until he was physically restrained when the patrol cars came together and the officers were able to take him by the arm as he straddled his bicycle. Cf. United States v. Brown, 448 F.3d 239, 252 (3d Cir. 2006) (finding that a seizure occurred when the suspect was told that a robbery victim was arriving to identify him as a suspect). The Magistrate Judge found that Muhammad had increased the speed of his bicycle in an effort to pass between the patrol car and the curb and thereby evade apprehension. It was only when he was “boxed in” by the second patrol car that his attempt to flee was foiled. The officers’ personal observation of Muhammad’s evasive conduct was the additional factor, missing in J.L., that corroborated the anonymous tip and provided the objective manifestation that criminal activity was afoot. The totality of the circumstances, which included the detailed description by the anonymous tipster, the rapid identification of the bicyclist as described in the tip, and the location of Muhammad in a high crime area, when combined with the officers’ personal observations and their own experience and specialized training, provided a sufficient basis for the conclusion that the officers who stopped Muhammad did so on the basis of a reasonable suspicion that he was engaged in criminal activity.