United States v. Eli M. Gorin

564 F.2d 159, 1977 U.S. App. LEXIS 10990
CourtCourt of Appeals for the Fourth Circuit
DecidedOctober 31, 1977
Docket76-2136
StatusPublished
Cited by32 cases

This text of 564 F.2d 159 (United States v. Eli M. Gorin) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Eli M. Gorin, 564 F.2d 159, 1977 U.S. App. LEXIS 10990 (4th Cir. 1977).

Opinion

PER CURIAM:

Having been convicted of unlawful shipment and possession of firearms in violation of 18 U.S.C. §§ 922(g), 924(a) and 18 U.S.C. App. § 1202(a)(1), Eli M. Gorin appeals to this Court.

The major contention on this appeal is that the trial court erred in admitting into evidence two guns seized at the time of defendant’s arrest.

Three New York City detectives, working together in New York City as a decoy unit, and, of course, dressed in civilian clothes, passed by a local bar that several other policemen were entering. These policemen were responding to a radio report based on an anonymous telephone call that a man with a gun was in the bar. The policemen repeated to the detectives the description of the man with the gun — a white male, ap *160 proximately six feet tall, wearing a black leather jacket and a reddish shirt. One of the detectives then entered the bar and spoke with the man who made the initial call to the police. This man, to whom the detective referred as the bar owner or bartender, confirmed the description given to the police on the phone and stated that the man with the gun had just left the bar.

The detectives returned to their regular duties, and approximately twenty minutes later (around 11:30 p. m.) and seven blocks away, the detectives observed the defendant sitting in a parked car with two other men, one of whom was white, and the other, black. The defendant matched the description of the man with the gun who had been seen earlier in the bar. After conferring among themselves about the proper course of action, one of the detectives walked over to the car in which the defendant was sitting, identified himself, and asked to speak with the defendant. As Gorin stepped out of the car, the detective noticed a gun at Gorin’s waist. The detective took the gun from Gorin and placed him under arrest. A further search of the car and the other occupants led to the discovery of a second weapon. 1

The question presented by the defendant’s challenge to admitting the two guns as evidence is whether the arresting detective had “reasonable suspicion” to undertake the “stop and frisk” that led to the discovery of the first gun. If the detective was justified in questioning Gorin, he also was justified in seizing the gun that he could see even before “patting down” the defendant. Gorin contends that the detectives stopped him because of a suspicion, based on the occupants of the car and the time of the night, that Gorin was participating in a drug deal. The district court expressly concluded during the pre-trial suppression hearing, however, that this was not the detectives’ reason for questioning Gorin.

Gorin argues alternatively that the “stop and frisk” was unconstitutional because the “reasonable suspicion” that Gorin possessed a gun was based on a tip from an anonymous informant. As a final alternative, Gorin suggests that even if the detectives knew the identity of the informant, the detectives did not know whether the informant was reliable. We believe the record indicates that the informant was the bar owner or bartender, and thus we consider only the argument concerning the informant’s reliability.

Gorin cites several state court decisions holding that “reasonable suspicion” cannot be based on a tip from an informant whose reliability is not known. A fair reading of Adams v. Williams, 407 U.S. 143, 146-47, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), however, indicates that in Gorin’s situation this lack of information should not preclude a finding of “reasonable suspicion.”

The record clearly indicates that someone in the bar made the call concerning the person the detectives believed to be Gorin. The informant based his tip on personal observation and gave the police a reasonably specific description of the man with the gun. The detectives confirmed this tip in person with the bar owner or bartender, who they believed to be the original informant. Thus, the informant was in a position of substantial responsibility, which suggests that he would provide reliable information, and the detectives could have identified the informant for further questioning or testimony at trial.

Using this information, the detectives found Gorin only seven blocks away from the bar. Under the circumstances, the detectives’ only reasonable alternative was to ask to question Gorin when they did. If the detectives had returned to the bar to verify their information and learn about the informant’s reliability, Gorin likely would have left the scene before the detectives returned. On these facts, given the alterna *161 tives and information available to the detectives, we cannot conclude that they lacked the “reasonable suspicion” necessary to justify questioning Gorin. Any other conclusion would give an overly narrow reading to Adams v. Williams, supra, and Terry v. Ohio, 393 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Supreme Court in Adams considered the necessity of the policeman’s conduct in order to prevent the flight of the defendant. The Court specifically noted that standards of reliability should not prevent appropriate police action when a victim of a crime immediately has contacted the police. See 407 U.S. at 147, 92 S.Ct. 1921. That same analysis applies here.

This Court has not previously considered whether “reasonable suspicion” can be based upon a tip from an informant whose reliability is not known. Both United States v. Poms, 484 F.2d 919 (4th Cir. 1973) and United States v. Jefferson, 480 F.2d 1004 (4th Cir.), cert. denied, 414 U.S. 1001, 94 S.Ct. 354, 38 L.Ed.2d 236 (1973), involved tips from informants known to be reliable. The Fifth, Seventh and Tenth Circuits have upheld the use of anonymous tips for establishing reasonable suspicion, although other information corroborated the tips in two of those cases. See United States v. Legato, 480 F.2d 408, 410 (5th Cir.), cert. denied, 414 U.S. 979, 94 S.Ct. 295, 38 L.Ed.2d 223 (1973); United States v. Hernandez, 486 F.2d 614, 616 (7th Cir. 1973), cert. denied, 415 U.S. 959, 94 S.Ct. 1488, 39 L.Ed.2d 574 (1974); United States v. Cage, 494 F.2d 740, 742 (10th Cir. 1974).

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Bluebook (online)
564 F.2d 159, 1977 U.S. App. LEXIS 10990, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-eli-m-gorin-ca4-1977.