United States v. Zidre Cephas

• Court: Court of Appeals for the Third Circuit
• Decided: April 15, 2020
• Docket: 19-2755
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 19-2755

UNITED STATES OF AMERICA

v.

ZIDRE CEPHAS, Appellant

On Appeal from the United States District Court for the District of Delaware (D. Del. No. 1-18-cr-00019-001) District Judge: Hon. Richard G. Andrews

Submitted pursuant to Third Circuit L.A.R. 34.1(a) April 2, 2020

Before: GREENAWAY, JR., PORTER, MATEY, Circuit Judges.

(Opinion filed: April 15, 2020)

OPINION

MATEY, Circuit Judge.

Zidre Cephas argues his conviction for illegal possession of a firearm resulted from

an illegal stop by law enforcement. Finding the seizure constitutional, we will affirm.

 This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. I. BACKGROUND

Officer Molly McNulty received a text message from a known informant about two

men in possession of drugs in Wilmington, Delaware. McNulty called the tipster, who

described two men on the steps of a house at a specific intersection. McNulty promptly

relayed the tip to her colleague, Corporal Darriel Tynes.

Tynes drove to the location provided by the informant and saw two men sitting in

front of the residence at the identified intersection, one of whom was Cephas. Tynes

approached and asked both men for identification, and Cephas complied. But while Tynes

was using his on-person radio to check for outstanding warrants, Cephas stood up without

warning and started to walk into the house. Tynes told him to sit down. Cephas first

complied, sitting down for a few seconds before getting up again. Tynes then tried to arrest

Cephas, directing him to put his hands behind his back. Instead, Cephas began to run as

Tynes attempted to apply handcuffs, requiring Tynes to wrestle him to the ground. A search

of Cephas’s pockets uncovered drugs and a gun.

The United States charged Cephas with illegally possessing a firearm. He moved to

suppress the gun, arguing that it was obtained in violation of the Fourth Amendment. The

District Court denied that motion, and Cephas later pleaded guilty. His plea agreement

allows him to challenge the District Court’s ruling on the search, the sole issue raised in

this appeal.1

1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s fact findings for clear error, but exercise plenary review over its legal conclusions, including its determination that the 2 II. DISCUSSION

Cephas argues that Tynes lacked reasonable suspicion to stop him, making the gun

the fruit of an illegal seizure. We disagree.2

A. The Stop

The Fourth Amendment to the United States Constitution allows police officers to

briefly stop an individual—i.e., to conduct a “Terry stop,” see Terry v. Ohio, 392 U.S. 1

(1968)—if the officers “ha[ve] a reasonable, articulable suspicion that criminal activity is

afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). Although a “mere hunch” will not

suffice, officers need not have “proof of wrongdoing by a preponderance of the evidence”;

in fact, “the level of suspicion the standard requires” is even “less than is necessary for

probable cause.” Navarette v. California, 572 U.S. 393, 397 (2014). And whether

reasonable suspicion exists at any moment is a context-dependent analysis considering “the

totality of the circumstances—the whole picture,” United States v. Cortez, 449 U.S. 411,

417 (1981), and which turns on “both the content of information possessed by police and

its degree of reliability.” Alabama v. White, 496 U.S. 325, 330 (1990). We look at the

circumstances at the moment an actual stop occurs—when law enforcement officers use

“physical force to restrain [the individual’s] movement” or when the individual “submi[ts]

to a show of authority.” United States v. Brown, 448 F.3d 239, 245 (3d Cir. 2006); see also

seizure was supported by reasonable suspicion. United States v. Johnson, 592 F.3d 442, 447 (3d Cir. 2010). 2 Cephas’s argument focuses solely on the legality of the initial stop.

3 id. (“[I]f a suspect . . . does not submit to an officer’s show of authority, there is no seizure

and no Fourth Amendment claim.”).

The parties dispute when, exactly, the stop occurred here. The Government argues

that Cephas was not stopped until Tynes tried to handcuff him; Cephas says that he was

stopped when Tynes asked for identification. But merely asking for identification does not

qualify as a “stop.” See United States v. Smith, 575 F.3d 308, 312 (3d Cir. 2009) (noting

that “even when law enforcement officers have no basis for suspecting a particular

individual, they may pose questions and ask for identification”). And Cephas immediately

sought to leave, so he clearly had not submitted to Tynes’s command. Cephas also argues

that a stop occurred when Tynes first directed him to sit down, a command he followed.

So we will assume that Cephas was detained at that moment. See United States v. Coggins,

986 F.2d 651, 652, 654 (3d Cir. 1993) (finding that a seizure occurred when defendant

submitted to officer’s request to “sit down and wait”).

B. Tynes Had Reasonable Suspicion

1. The Tip Was Reliable

Information relayed to police by a third party can support a Terry stop if “the

communication . . . possessed sufficient indicia of reliability.” Brown, 448 F.3d at 250. A

key factor in this reliability analysis is the identity of the tipster: while anonymous tips may

be reliable enough, see Navarette, 572 U.S. at 404, courts give greater weight to tips from

“known informant[s] whose reputation[s] can be assessed and who can be held responsible

if [their] allegations turn out to be fabricated.” Florida v. J.L., 529 U.S. 266, 270 (2000).

4 McNulty knew the tipster’s “precise identity.” (App. at 77.) The two had several

previous interactions, during which the tipster had provided credible information leading

to at least one arrest. See Adams v. Williams, 407 U.S. 143, 146 (1972) (affirming

constitutionality of Terry stop based on tip where the “informant was known to [the officer]

personally and had provided [the officer] with information in the past”). And on the day in

question, the tipster contacted McNulty directly through her private cell phone, on which

McNulty had the tipster’s name saved. See United States v. Nelson, 284 F.3d 472, 482 (3d

Cir. 2002) (holding a tip reliable where informant “had a previous relationship with the

police,” “used a private line,” and “asked for [a specific police officer] by name”).

Cephas argues more was needed noting, among other things, that McNulty had no

face-to-face interaction with the tipster, and that the tipster did not explain or provide the

basis for the information provided. But we have always examined the “totality of the

circumstances,” with “no single factor [being] dispositive or even necessary.” United States

v. Johnson, 592 F.3d 442, 449 (3d Cir. 2010). Here, on balance, we conclude the tip was

reliable. Cf. United States v. Torres, 534 F.3d 207, 212 (3d Cir. 2008) (concluding an

anonymous tip was reliable because police knew the identity of the informant’s employer).

2. Tynes Had Reasonable Suspicion to Stop Cephas

Tynes also had “a particularized and objective basis” for believing that Cephas and

his companion were engaged in criminal activity. United States v. Goodrich, 450 F.3d 552,

560 (3d Cir. 2006). Cephas argues that Tynes lacked reasonable suspicion because he did

5 not observe drug activity when he arrived on the scene. And Cephas notes the men’s

clothing did not perfectly match the tipster’s description.3

But the totality of the facts tell a different story. Cephas and his companion were

the only two individuals at the intersection. See Goodrich, 450 F.3d at 562–63. The location

was in a “[h]igh-drug, high-crime area.” (App. at 97.) See United States v. Valentine, 232

F.3d 350, 356–57 (3d Cir. 2000). And Tynes’s interaction with Cephas began less than

fifteen minutes after police received the tip. See Goodrich, 450 F.3d at 562.

And we cannot ignore Cephas’s attempt to walk away from Tynes after their initial

interaction. Tynes thought it was “odd” that Cephas would walk into the house while Tynes

was holding his identification, and believed Cephas might have been “trying to escape” or

“to get rid of” contraband. (App. at 106–08.) Tynes was also concerned for his safety, and

wondered whether Cephas was “retrieving a weapon” or “[c]all[ing] more people outside

the house” to “surround[]” him. (App. at 107.) Taken together, it is reasonable to interpret

Cephas’s action as “nervous, evasive behavior.” Wardlow, 528 U.S. at 124. And looking

at the “totality of circumstances,” reasonable suspicion existed for the stop. Johnson, 592

F.3d at 449.

3 The tipster said that one of the men “was wearing blue jeans and a gray shirt, and the other . . . a white shirt and white shorts.” (App. at 77.) The District Court found that the tipster’s sartorial description was accurate on “three out of the four items of clothing” mentioned, but does not specify which item was erroneously described. (App. at 13.) Cephas asserts that both he and the other man were wearing black pants, but does not otherwise challenge the tip’s accuracy. 6 III. CONCLUSION

Because the police possessed reasonable suspicion, the Terry stop of Cephas

satisfied the Fourth Amendment. We will therefore affirm the District Court’s order

denying Cephas’s motion to suppress.