United States v. James Talley

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 23, 2024
• Docket: 23-10019
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 23 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-10019

Plaintiff-Appellee, D.C. No. 3:22-cr-00028-SI-1

v. MEMORANDUM* JAMES EARL TALLEY,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California Susan Illston, District Judge, Presiding

Argued and Submitted March 28, 2024 San Francisco, California

Before: PAEZ, NGUYEN, and BUMATAY, Circuit Judges. Dissent by Judge PAEZ, Circuit Judge.

James Talley appeals the district court’s order denying his motion to

suppress. Talley entered a conditional guilty plea to being a felon in possession of

a firearm under 18 U.S.C. § 922(g)(1), reserving the right to appeal the suppression

ruling. We have jurisdiction under 28 U.S.C § 1291. We review a district court’s

denial of a motion to suppress de novo, and any factual findings for clear error.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. United States v. Vandergroen, 964 F.3d 876, 879 (9th Cir. 2020). We affirm.

Talley argues that the district court erred in denying his motion to suppress

the firearm because the anonymous 911 call from the Civic Center Inn lacked

sufficient indicia of reliability, and even if the call was sufficiently reliable, any

reasonable suspicion dissipated when other potential suspects at the hotel matched

the caller’s description better than Talley.

To establish reasonable suspicion to stop and frisk, an emergency call must,

under the totality of the circumstances, (1) “exhibit sufficient indicia of reliability”

and (2) “provide information on potential illegal activity serious enough to justify a

stop.” Id. We consider a number of factors when determining the reliability of a

tip, including whether the caller is anonymous, whether the basis of knowledge for

the tip is revealed, whether the caller uses a 911 number or non-emergency tip line,

and whether the caller is relaying second-hand knowledge or eyewitness

knowledge. Id. at 879-80.

Here, considering the totality of the circumstances, there was reasonable

suspicion to stop and frisk Talley. First, the caller placed the call through an

emergency 911 line, “which allows calls to be recorded and traced, increas[ing] his

credibility.” Id. at 880. As the district court found, the call was not completely

anonymous, because the caller stated he was calling from the front desk of 790

Ellis and referred to “our staff” and “housekeeping here” being nervous about the

2 person with the gun. The information was also not “stale,” but fresh, eyewitness

knowledge from someone still at the inn, as the caller was reporting what

housekeeping had seen that morning. Furthermore, while on the phone with 911,

the caller could be heard conversing with someone in the background and revising

his description. Additionally, once the officers arrived on the scene, a housekeeper

pointed the officers to the back of the hotel, saying “he’s in the parking lot in the

back,” where Talley was found. Talley also matched most of the description the

caller gave of the suspect.1 We agree with the district court that the circumstances

here are similar to those in Vandergroen, which held that the 911 call was reliable

when the caller, an employee at a bar, was relaying first-hand information from

patrons who had seen a man with a gun. 964 F.3d at 881.

Talley argues that reasonable suspicion was dissipated because of other

suspects on the scene, and the fact that Talley was not found on the second floor,

as the report stated. The officers encountered multiple people who matched some

aspects of the tip, and they frisked another man on the second floor whom they

1 Based on the tip, dispatch reported a description to the officers: “WML [white male Latino], 5’9 SLM BLD, BEANIE, BLK JKT, BLK SHIRT, BLK JEANS, WHI SHOES W/BLK NIKE LOGO.” Talley was wearing white Reebok shoes with red and black, a black hoodie, black pants, black gloves, and a balaclava. Although the race did not match Talley, he was wearing a balaclava, making his race difficult to determine. See Vandergroen, 964 F.3d at 878 n.3 (finding that reasonable suspicion was established given “features that mostly matched” despite the suspect being a different race than reported by the caller).

3 thought matched the description, but the others on the scene did not match the tip

better than Talley. The witnesses watched Talley walking around the second floor

on security cameras before officers arrived, and because it was relatively easy to

move from the back second-floor balcony to the parking lot, it was not

unreasonable to surmise that the suspect had moved. Finally, the housekeeper

directed the officers to the back parking lot, where Talley was the only suspect in

the area matching the description at the time officers encountered him.

AFFIRMED.

4 FILED 23–10019, USA v. James Talley APR 23 2024 MOLLY C. DWYER, CLERK PAEZ, Circuit Judge, dissenting: U.S. COURT OF APPEALS

The majority concludes that an anonymous 911 call that offered no firsthand

or predictive information nevertheless exhibited sufficient indicia of reliability. In

my view, neither the record evidence nor our case law supports such a conclusion.

Because I would reverse the district court’s denial of Talley’s suppression motion,

I respectfully dissent.

Our court’s case law makes clear that “an anonymous tip that identifies an

individual but lacks ‘moderate indicia of reliability’ provides little support for a

finding of reasonable suspicion.” United States v. Brown, 925 F.3d 1150, 1153 (9th

Cir. 2019) (citing Florida v. J.L., 529 U.S. 266, 270–71 (2000)). The majority

concludes that the 911 call “was not completely anonymous” because the caller

stated that he wanted to remain anonymous but was calling from the front desk of

the hotel. But the caller did not actually work at the hotel, nor was he located at

the front desk when he called. Notably, when the 911 operator requested that hotel

staff assist the police in identifying the suspect, the caller refused, stating that they

would not assist responding officers, and adding, “Ok, fuck it, then don’t do

nothing then, thank you.” The call was then disconnected. The 911 call transcript

suggests that the call ended because of the operator’s request that staff assist the

police, which is further evidence of the caller’s intent to remain anonymous. It is well-established that a caller’s anonymity makes any information from him less

reliable than from a known caller, whose reputation can be assessed and who can

be held accountable for misrepresentations. J.L., 529 U.S. at 270. The majority’s

conclusion that the caller was not completely anonymous because he falsely

referred to himself as calling from the front desk finds no support in our case law.

Nor did the tip provide “any predictive information that might have served

as indicia of reliability.” Brown, 925 F.3d at 1153 (citing Alabama v. White, 496

U.S. 325, 332 (1990)). The Supreme Court has found a virtually identical

anonymous tip insufficiently reliable to create reasonable suspicion. J.L., 529 U.S.

at 268, 270–72 (holding an anonymous tip that a young black man in a plaid shirt

was carrying a gun did not establish reasonable suspicion to stop and frisk him).

Even assuming that the tip exhibited sufficient indicia of reliability, Talley

did not match the description of the suspect. Talley, a black man located in the rear

parking lot on the hotel’s ground floor, shared little in common with the police

dispatcher’s description of a white Latino man located on the second floor. Thus,

even if the anonymous tip exhibited sufficient indicia of reliability, the officers

lacked reasonable suspicion to detain and frisk Talley.

Because the anonymous tip in this case lacked sufficient indicia of

reliability, and because Talley did not match the suspect’s description even if the tip was reliable, I respectfully dissent. I would reverse the district court’s ruling,

vacate Talley’s conviction, and remand.