The degree of suspicion required to make a stop is referred to as "reasonable suspicion" by the courts. See United States v. Brignoni-Ponce , 422 U.S. 873 (1975). As with the higher standard of probable cause, two separate questions arise in determining whether reasonable suspicion exists. The court must investigate the source of information upon which reasonable suspicion is based; and the court must evaluate whether that information is sufficiently suspicious to justify a stop.
In both Terry and Adams v. Williams the investigating officers had reasonable grounds to believe that the suspects were armed and that they might be dangerous. The limited searches and seizures in those cases were a valid method of protecting the public and preventing crime. ..The effect of our decision is to limit exercise of the authority granted by both § 287 (a) (1) and § 287 (a) (3). Except at the border and its functional equivalents, officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.[9
Adams v. Williams, 407 U. S. 143 (1972), sustained a Terry stop and frisk undertaken on the basis of a tip given in person by a known informant who had provided information in the past. We concluded that, while the unverified tip may have been insufficient to support an arrest or search warrant, the information carried sufficient "indicia of reliability" to justify a forcible stop. 407 U. S., at 147. We did not address the issue of anonymous tips in Adams, except to say that "[t]his is a stronger case than obtains in the case of an anonymous telephone tip," id., at 146.
Illinois v. Gates, 462 U. S. 213 (1983), dealt with an anonymous tip in the probable-cause context. The Court there abandoned the "two-pronged test" of Aguilar v. Texas, 378 U. S. 108 (1964), and Spinelli v. United States, 393 U. S. 410 (1969), in favor of a "totality of the circumstances" approach to determining whether an informant's tip establishes probable cause. Gates made clear, however, that those factors that had been considered critical under Aguilar and Spinelli — an informant's "veracity," "reliability," and "basis of knowledge" — remain "highly relevant in determining the value of his report." 462 U. S., at 230. These factors are also relevant in the reasonable-suspicion context, although allowance 329*329 must be made in applying them for the lesser showing required to meet that standard.
The opinion in Gates recognized that an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity inasmuch as ordinary citizens generally do not provide extensive recitations of the basis of their everyday observations and given that the veracity of persons supplying anonymous tips is "by hypothesis largely unknown, and unknowable." Id., at 237. This is not to say that an anonymous caller could never provide the reasonable suspicion necessary for a Terry stop. But the tip in Gates was not an exception to the general rule, and the anonymous tip in this case is like the one in Gates: "[It] provides virtually nothing from which one might conclude that [the caller] is either honest or his information reliable; likewise, the [tip] gives absolutely no indication of the basis for the [caller's] predictions regarding [Vanessa White's] criminal activities." 462 U. S., at 227. By requiring "[s]omething more," as Gates did, ibid., we merely apply what we said in Adams: "Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized," 407 U. S., at 147. Simply put, a tip such as this one, standing alone, would not " `warrant a man of reasonable caution in the belief' that [a stop] was appropriate." Terry, supra, at 22, quoting Carroll v. United States, 267 U. S. 132, 162 (1925).
Pdf, White on White: Anonymous Tips, Reasonable Suspicion, and the Constitution
Our "stop and frisk" decisions begin with Terry v. Ohio, 392 U. S. 1 (1968). This Court held in Terry:
"[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his 270*270 experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him." Id., at 30.
In the instant case, the officers' suspicion that J. L. was carrying a weapon arose not from any observations of their own but solely from a call made from an unknown location by an unknown caller. Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, see Adams v. Williams, 407 U. S. 143, 146-147 (1972), "an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity," Alabama v. White, 496 U. S., at 329. As we have recognized, however, there are situations in which an anonymous tip, suitably corroborated, exhibits "sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop." Id., at 327. The question we here confront is whether the tip pointing to J. L. had those indicia of reliability…
A second major argument advanced by Florida and the United States as amicus is, in essence, that the standard Terry analysis should be modified to license a "firearm exception." Under such an exception, a tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard pre-search reliability testing. We decline to adopt this position.
One court has distilled the following factors for determining whether reasonable suspicion can be found from an informant's tip after J.L. :
Although no single factor is dispositive, relevant factors include:
whether the informant lacked "true anonymity" (i.e., whether the police knew some details about the informant or had the means to discover them); (2) whether the informant reported contemporaneous, firsthand knowledge; (3) whether the informant provided detailed information about the events observed; (4) the informant's stated motivation for reporting the information; and (5) whether the police were able to corroborate information provided by the informant.
US v. Chavez , 660 F.3d 12 15 (10th Cir. 20 11).
How does the Court's analysis in J.L. apply if police receive an anonymous tip that a car is engaged in reckless driving and, when police officers observe the car on the road the driver is not at that point driving recklessly? Can the officers stop the car despite the lack of corroboration of any predictive activity? The court in United States v. Wheat, 278 F.3ci 722 (8th Cir. 2001) considered this question and upheld the stop of th<:, identified car. It relied on the language in J.L., implying that the decision would be different if public safety were in imminent risk:
When a law enforcement officer directs a motor vehicle to stop by the side of the road and detains its occupants for questioning, such an investigatory stop constitutes a search and seizure under the Fourth and Fourteenth Amendments, "even though the purpose of the stop is limited and the resulting detention quite brief." Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); accord Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); see also Thomas v. Dickel, 213 F.3d 1023, 1024 (8th Cir.2000). Under Terry and its progeny, "[a]n investigatory stop is permissible under the Fourth Amendment if supported by reasonable suspicion." Ornelas v. United States, 517 U.S. 690, 693, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); see also United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) (applying Terry to investigatory stop of vehicle); United States v. Bell, 183 F.3d 746, 749 (8th Cir.1999) ("An investigative stop does not violate the Fourth Amendment if the police have reasonable suspicion that the vehicle or its occupants are involved in criminal activity."). If the investigatory stop is not justified by reasonable suspicion or if the investigating officers exceed the stop's proper scope, any evidence derived from the stop is inadmissible at trial. See, e.g., Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); United States v. Ramos, 42 F.3d 1160, 1164 (8th Cir.1994). A passenger in a motor vehicle has standing to challenge the stop of that vehicle. See United States v. Lyton, 161 F.3d 1168, 1170 (8th Cir.1998)…
he second category of tips for which courts declined to require corroboration of their predictive elements concerned a different type of potentially immediate threat, and the one at issue in this case: an apparently drunk or reckless driver. Thus, a number of state supreme and intermediate appellate courts[6] held that law enforcement officers could pull over a vehicle for an investigatory stop based on a contemporaneous tip of erratic driving that accurately described a given vehicle, even where the officer did not personally witness 728*728 any moving violations and therefore lacked probable cause to make an arrest. See, e.g., State v. Melanson, 140 N.H. 199, 200-03, 665 A.2d 338, 339-41 (1995); State v. Sampson, 669 A.2d 1326, 1327 (Me. 1996); State v. Lamb, 168 Vt. 194, 196-203, 720 A.2d 1101, 1102-06 (1998); State v. Slater, 267 Kan. 694, 696-706, 986 P.2d 1038, 1041-46 (1999); see also State v. Markus, 478 N.W.2d 405 (Iowa Ct.App. 1991); State v. Smith, 638 N.E.2d 1353 (Ind.Ct.App.1994); People v. Rance, 644 N.Y.S.2d 447, 227 A.D.2d 936 (N.Y.App. Div.1996); Kaysville City v. Mulcahy, 943 P.2d 231 (Utah Ct.App.1997). But see McChesney v. State, 988 P.2d 1071, 1075-78 (Wyo.1999) (3-2 decision) (holding that corroboration only of color, make, and direction of suspect vehicle anonymously reported to be weaving and dangerously passing other cars did not give rise to reasonable suspicion where officer did not personally witness erratic driving after trailing vehicle a substantial distance); State v. Miller, 510 N.W.2d 638, 640-45 (N.D.1994) (holding that tip that driver in fast-food restaurant's drive-up lane "could barely hold his head up" and was possibly drunk could not create reasonable suspicion because it was "short on reliability, ... short on specifics," and uncorroborated by police officer); State v. Lee, 282 Mont. 391, 393-96, 938 P.2d 637, 638-40 (1997) (holding that anonymous caller's "belief" that driver was under influence of alcohol and was speeding, without any indication that the caller's belief was based on personal observation of drinking, speeding, or erratic driving, did not justify investigatory stop); see also State v. Villegas-Varela, 132 Or.App. 112, 114-19, 887 P.2d 809, 810-13 (1994) (holding that anonymous tip that did not give location or direction of suspect car that was ultimately not stopped until more than an hour later did not give rise to reasonable suspicion). In addition to the fact that in the erratic driving context the tipster is almost invariably claiming to describe contemporaneously perceived behavior, see, e.g., Melanson, 140 N.H. at 202, 665 A.2d at 340, courts tended to agree that, as in the gun possession cases, the exigency of the situation demanded an immediate law enforcement response. See, e.g., id. at 203, 665 A.2d at 340.
The argument under J.L. fails, first, because the tip here reported an ongoing emergency. Every circuit to consider the question, including this one, has distinguished J.L. when the tip is not one of 559*559 general criminality, but of an ongoing emergency, United States v. Brown, 496 F.3d 1070, 1077 (10th Cir.2007); United States v. Elston, 479 F.3d 314, 319 (4th Cir.2007); Drake, 456 F.3d at 775; United States v. Terry-Crespo, 356 F.3d 1170, 1176 (9th Cir.2004); Anthony v. City of New York, 339 F.3d 129, 136-37 (2d Cir. 2003); United States v. Holloway, 290 F.3d 1331, 1338-39 (11th Cir.2002), or very recent criminal activity, Terry-Crespo, 356 F.3d at 1176-77; United States v. Valentine, 232 F.3d 350, 354 (3d Cir.2000). The J.L. Court itself acknowledged that it was not deciding whether an anonymous tip alleging a greater danger than mere possession of a firearm might justify a search based on a lesser showing of reliability. Id. at 273-74, 120 S.Ct. 1375; see also United States v. Goodwin, 449 F.3d 766, 769-70 (7th Cir.2006).
This case is also distinguishable from J.L. because Woodbury gave his name, his location, and described his clothing; that is, he was not anonymous. Courts, including our own, have distinguished J.L. when the tipster gives her name or other identifying information to the 911 operator. Brown, 496 F.3d at 1075-76; United States v. Elmore, 482 F.3d 172, 181-83 (2d Cir.2007); Drake, 456 F.3d at 774; United States v. Romain, 393 F.3d 63, 73 (1st Cir.2004); Terry-Crespo, 356 F.3d at 1174-75; United States v. Quarles, 330 F.3d 650, 655 (4th Cir.2003); United States v. Harris, 313 F.3d 1228, 1235-36 (10th Cir.2002); United States v. Browning, 252 F.3d 1153, 1157-58 (10th Cir.2001). The Second Circuit summarized these holdings to mean that reasonable suspicion may be based on a telephone tip when the caller provided enough information to allow police to "identify her and track her down later to hold her accountable if her tip proved false." Elmore, 482 F.3d at 182. This rule finds support in J.L. where the Supreme Court noted the reliability of a known tipster "whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated." J.L., 529 U.S. at 270, 120 S.Ct. 1375.
The Fourth Amendment applies to seizures of the person, including brief investigatory stops such as the stop of the vehicle here. Reid v. Georgia, 448 U. S. 438, 440 (1980); United States v. Brignoni-Ponce, supra, at 878; Davis v. Mississippi, 394 U. S. 721 (1969); Terry v. Ohio, 392 U. S. 1, 16-19 (1968). An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.[2] Brown v. Texas, 443 U. S. 47, 51 (1979); Delaware v. Prouse, 440 U. S. 648, 661 (1979); United States v. Brignoni-Ponce, supra, at 884; Adams v. Williams, 407 U. S. 143, 146-149 (1972); Terry v. Ohio, supra, at 16-19.
Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like "articulable reasons" and "founded suspicion" are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances—the whole picture— must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal 418*418 activity. See, e. g., Brown v. Texas, supra, at 51; United States v. Brignoni-Ponce, supra, at 884.
The most important difference between reasonable suspicion and probable cause is that reasonable suspicion is a less demanding standard of proof-a stop is permissible upon something less than the fair probability standard that defines probable cause. Some courts have defined reasonable suspicion as a fair possibility (as opposed to probability) of criminal activity. It is appropriate to think of reasonable suspicion as "possible cause."
The Fourth Amendment prohibits "unreasonable searches and seizures" by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest. Terry v. Ohio, 392 U. S. 1, 9 (1968); United States v. Cortez, 449 U. S. 411, 417 (1981). Because the "balance between the public interest and the individual's right to personal security," United States v. Brignoni-Ponce, 422 U. S. 873, 878 (1975), tilts in favor of a standard less than probable cause in such cases, the Fourth Amendment is satisfied if the officer's action is supported by reasonable suspicion to believe that criminal activity "`may be afoot,' " United States v. Sokolow, 490 U. S. 1, 7 (1989) (quoting Terry, supra, at 30). See also Cortez, 449 U. S., at 417 ("An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity").
When discussing how reviewing courts should make reasonable-suspicion determinations, we have said repeatedly that they must look at the "totality of the circumstances" of each case to see whether the detaining officer has a "particularized and objective basis" for suspecting legal wrongdoing. See, e. g., id., at 417-418. This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that "might well elude an untrained person." Id., at 418. See also Ornelas v. United States, 517 U. S. 690, 699 (1996) (reviewing court must give "due weight" to factual inferences drawn by resident 274*274 judges and local law enforcement officers). Although an officer's reliance on a mere "`hunch' " is insufficient to justify a stop, Terry, supra, at 27, the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard, Sokolow, supra, at 7.
Our cases have recognized that the concept of reasonable suspicion is somewhat abstract. Ornelas, supra, at 696 (principle of reasonable suspicion is not a "`finely-tuned standar[d]' "); Cortez, supra, at 417 (the cause "sufficient to authorize police to stop a person" is an "elusive concept"). But we have deliberately avoided reducing it to "`a neat set of legal rules,' " Ornelas, supra, at 695-696 (quoting Illinois v. Gates, 462 U. S. 213, 232 (1983)). In Sokolow, for example, we rejected a holding by the Court of Appeals that distinguished between evidence of ongoing criminal behavior and probabilistic evidence because it "create[d] unnecessary difficulty in dealing with one of the relatively simple concepts embodied in the Fourth Amendment." 490 U. S., at 7-8.
We think that the approach taken by the Court of Appeals here departs sharply from the teachings of these cases.
The court confronted with these facts in United States v. Trullo , 809 F.2d 108 (1st Cir. 1987), stated that the officer's seizure of the driver went to the "outermost reaches of a permissible Terry stop," and that "today's satisfactory explanation may very well be tomorrow's lame excuse." But the court did uphold the police conduct, relying on the high crime area, the officers' expertise in determining whether drug activity was afoot, the short nature of the conversation between the driver and passenger, and the fact that the passenger walked back toward the place where he had met the car. This latter factor meant that it was "unlikely that the man was seeking transportation." The court concluded that while it would be possible to "hypothesize some innocent explanation" for the conduct, the test for a stop is whether there is reasonable suspicion of criminal activity, and not whether the facts can be construed as innocent.
The requirement of particularized suspicion encompasses two elements. See Cortez, 449 U.S. at 418, 101 S.Ct. 690. First, the assessment must be based upon the totality of the circumstances.[11] Id. Second, that assessment must arouse a reasonable suspicion that the particular person being stopped has committed or is about to commit a crime. See id.; see Terry v. Ohio, 392 U.S. at 21 n. 18, 88 S.Ct. 1868 ("[t]his demand for specificity in the information upon which police action is predicated is the central teaching of this Court's Fourth Amendment jurisprudence"). Accordingly, we have rejected profiles that are "likely to sweep many ordinary citizens into a generality of suspicious appearance...." United States v. Rodriguez, 976 F.2d 592, 595-96 (9th Cir.1992) (concluding that the factors cited in the case-namely, a Hispanic man carefully driving an old Ford with a worn suspension who looked in his rear view mirror while being followed by agents in a marked car-described "too many individuals to create a reasonable suspicion that this particular defendant was engaged in criminal activity"); see also United States v. Rodriguez-Sanchez, 23 F.3d 1488, 1492 1130*1130 (9th Cir.1994) (holding that reasonable suspicion cannot be based "on broad profiles which cast suspicion on entire categories of people without any individualized suspicion of the particular person to be stopped").
Justice O'Connor, writing for a unanimous Court, held that Terry was not confined to prospective crimes; the power granted by Terry may also be exercised to investigate completed crimes. Her opinion approved stops where "police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony." Relying on the "collective knowledge" doctrine established Whiteley v. Warden, Wyo. State Penitentiary , [discussed in the materials on probable cause], Justice O'Connor concluded that one department or officer could act to make a stop if another officer or department had reasonable suspicion to stop the defendant and asked for assistance. She applied her analysis to the facts and concluded that the St. Bernard police had a reasonable suspicion that Hensley committed a crime, that the Kentucky officers properly relied on the flyer, and that the stop was carried out in compliance with Terry.
The US v. Ramos court also emphasized that the van occupants' Middle Eastern appearance was not the only basis for suspicion. Other factors included the fact that they were in a van, that they were in a commuter parking lot for an extended period of time without dropping anyone off or picking anyone up, that the van had tinted windows, and that it had a temporary, paper license plate from Texas. Would you have found reasonable suspicion on the basis of the facts independent of ethnicity?
The Supreme Court left unaddressed the proper use of profile characteristics by a court in determining the basis for a stop. Our own fear concerning use of the profile by the courts automatically to establish reasonable suspicion we have previously expressed: because most of the characteristics are applicable as much to innocent as to suspect individuals, the mechanistic use of the profile by the courts without examining the totality of the circumstances could result in blanket approval of police seizures of innocent citizens. United States v. Pulvano, 629 F.2d 1151, 1155 n.1 (5th Cir. 1980). Compounding this fear is the facility with which profile characteristics may be manipulated by overzealous law enforcement officers.[19] This Court has, consequently, indicated that a match between the defendant and the drug profile characteristics, of itself, 600*600 does not necessarily provide reasonable suspicion. See, e.g., United States v. Herbst, 641 F.2d 1161, 1167 (5th Cir. 1981);[20] Elmore, supra; United States v. Ballard, 573 F.2d 913, 915 (5th Cir. 1978). We have also on occasion, however, intimated that a stop based on the profile might be upheld. See United States v. Fry, 622 F.2d 1218, 1221 n.2 (stop lawful; reasonable suspicion, even if required, existed; basis for suspicion seemed based on drug courier profile characteristics); see also United States v. Turner, 628 F.2d 461 (5th Cir. 1980), cert. denied, 451 U.S. 988, 101 S.Ct. 2325, 68 L.Ed.2d 847 (1981) (implicitly allowing profile to be the basis for reasonable suspicion). Most recently a panel of this Court stated that certain characteristics that were in the drug courier profile, coupled with extreme nervousness on the part of the individual, constituted a basis for reasonable suspicion. United States v. Sanford, 658 F.2d at 346. Judge Randall noted in a partial dissent in that case, however, that nervousness is one of the profile factors, not a factor apart from the profile.
We use the opportunity presented by the occasion of this en banc sitting to consider the proper role of the profile characteristics in a court's determination of the existence of reasonable suspicion. We conclude that the profile is nothing more than an administrative tool of the police.[21] The presence or absence of a particular characteristic on any particular profile is of no legal significance in the determination of reasonable suspicion.
This court has previously held that out-of-state plates are consistent with innocent behavior and not probative of reasonable suspicion. See Ramos, 42 F.3d at 1163. While we do not suggest that geography is an entirely irrelevant factor, see Sokolow, 490 U.S. at 3, 109 S.Ct. at 1583 (finding that the geography was relevant where defendant was traveling to and from Miami since Miami was "a source city for illicit drugs."), we do not think that the entire state of California, the most populous state in the union, can properly be deemed a source of illegal narcotics such that mere residency in that state constitutes a factor supporting reasonable suspicion. See Karnes, 62 F.3d at 495 (holding that mere fact that driver of automobile was from Florida and automobile was registered in Florida would not constitute a factor supporting reasonable suspicion).
n this case, moreover, it was not merely respondent's presence in an area of heavy narcotics trafficking that aroused the officers' suspicion, but his unprovoked flight upon noticing the police. Our cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. United States v. Brignoni-Ponce, 422 U. S. 873, 885 (1975); Florida v. Rodriguez, 469 U. S. 1, 6 (1984) (per curiam); United States v. Sokolow, supra, at 8-9. Headlong flight—wherever it occurs—is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such. In reviewing the propriety of an officer's conduct, courts do not have available empirical studies dealing with inferences drawn from suspicious 125*125 behavior, and we cannot reasonably demand scientific certainty from judges or law enforcement officers where none exists. Thus, the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior. See United States v. Cortez, 449 U. S. 411, 418 (1981). We conclude Officer Nolan was justified in suspecting that Wardlow was involved in criminal activity, and, therefore, in investigating further.
Such a holding is entirely consistent with our decision in Florida v. Royer, 460 U. S. 491 (1983), where we held that when an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go about his business. Id., at 498. And any "refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure." Florida v. Bostick, 501 U. S. 429, 437 (1991). But unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not "going about one's business"; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual's right to go about his business or to stay put and remain silent in the face of police questioning.