result in White. Here, although the anonymous caller gave no particular arrival time, he did present a description that unmistakably matched this defendant -- an unusually heavy black male about 25 years old, clean shaven and with close cropped hair -- and predicted he would arrive in New York from the south. The police were aware that the route the subject would take included a likely source for the kind of contraband the subject was alleged to be carrying -- guns.
At the time of the initial call, the police were unaware of the caller's location. Whether the call originated from the defendant's embarkation point or from his destination, there was no way for the caller to have known what the defendant would be wearing when he arrived in New York because, as disclosed by the train schedule submitted after the hearing, the defendant could have been travelling from a distance more than a day away and it is possible to change clothes on a train. (Enclosure to Sommer 10/13/92 letter to the Court) Moreover, there were at least six stops after the train left the last location anyone might refer to colloquially as the south -- Alexandria, Va. (Id.) The caller knew that this defendant would not get off at any intervening stop but would continue to New York.
Here, unlike White, the police had a description that unmistakably fit the defendant. Thus it is fair to say that the caller in both cases provided a specific description -- here, the description of Walker and in White the description of the vehicle. To be sure, in White, that specific description was of the car and therefore related to what Vanessa White would do. Here, the description related only to what the defendant looked like. On the other hand, the police in White could not or did not verify before they stopped the car that the person in the car was in fact Vanessa White, the name given by the anonymous caller. Here, the person who got off the train in New York was without doubt the person whom the anonymous caller had described.
To be sure, the caller in White predicted with more detail what Vanessa White would do than the caller here supplied in predicting what Walker would do. That caller said White would emerge from a particular building within a particular "timeframe," 496 U.S. at 331, and go in a particular car to a particular place; this caller said only that Walker would arrive in New York by train from the south and gave no particular time. But that distinction arises at least in part from the inherent difference between what the two defendants were doing. Vanessa White apparently was about to consummate a particular transaction; this defendant apparently was simply arriving in New York with contraband, to be the subject of use or commerce at a later time. It is difficult to see what more detail a caller could provide with respect to a subject's future actions in such a case.
The Amtrak police had information about a particular person and, as in White although necessarily in less detail, that person's itinerary. However, by contrast with White, there was not present here any significant contradiction between the caller's information and what the police saw. In White, the police were told that drugs would be carried in a brown attache case. When Vanessa White entered the car, she was empty-handed. There was nothing in the anonymous caller's tip here that would have led the police to question the accuracy of the caller's information as there was in White, where the circumstances nonetheless were found sufficient to justify a Terry stop.
The Court in White quoted its prior opinion in United States v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 109 S. Ct. 1581 (1989) to define the reasonable suspicion sufficient to justify a Terry stop, and to contrast that level of knowledge with the probable cause necessary to justify an arrest:
"'The officer [making a Terry stop] . . . must be able to articulate something more than an "inchoate and unparticularized suspicion or 'hunch.'" [Terry, 392 U.S.,] at 27. The Fourth Amendment requires "some minimal level of objective justification" for making the stop. INS v. Delgado, 466 U.S. 210, 217, 80 L. Ed. 2d 247, 104 S. Ct. 1758 (1984). That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence. We have held that probable cause means "a fair probability that contraband or evidence of a crime will be found," [ Gates, 462 U.S., at 238], and the level of suspicion required for a Terry stop is obviously less demanding than for probable cause.'"
White, 496 U.S. at 329-30 (brackets in original).
It is apparent from the caller's description that he knew Walker. It is also apparent that he knew enough about the defendant's activities to know that he would get off in New York rather than at another stop. Again, if we bear in mind that we are dealing with a person arriving in a large city with contraband rather than with a person on her way from one place to another apparently to effect a particular transaction in contraband, it is difficult to imagine what more the caller should have been required to say in order for a police officer receiving the information to have had reasonable suspicion that the caller knew what he was talking about when he said Walker was carrying guns. The additional fact a caller might have supplied that was present in White but not here was the defendant's ultimate destination. However, inasmuch as Walker was simply arriving from out of town with the guns rather than being on his way to sell them, it would not have added much to the equation for the caller to have said Walker was going home or that he lived in the Bronx. That would simply have shown that the caller knew where Walker lived, a redundancy in view of the caller's knowledge of who Walker was, made obvious by the detailed description of Walker.
Moreover, following up Walker's destination would have required the railroad police, whose responsibility is to patrol railroad premises and who cannot be expected to have surveillance vehicles at their immediate disposal, to have enlisted the New York City police immediately to follow Walker as far as the Bronx before they stopped him. It is unreasonable to expect that such surveillance could have been arranged successfully in the brief moments between Walker's arrival and his entry into a taxi at no prearranged location in the vicinity of a busy railroad station. In sum, Walker's destination would have been unverifiable and therefore useless even if provided.
If, as the Supreme Court wrote, reasonable suspicion is simply an articulable set of circumstances that constitutes "'more than an "inchoate and unparticularized suspicion or 'hunch,'" White, 496 U.S. at 329, quoting Terry, or "'some minimal level of objective justification,'" id. at 330, quoting Delgado, that standard was met here: The caller knew who the defendant was, predicted that he would get off in New York and, unlike White, did not offer any information that was contradicted by what the officers saw.
Understandably, Walker has emphasized that the Court described White as a "close case," 496 U.S. at 332, and argues that the information in this case was less specific and therefore less reliable on the whole than the information in White. But the Court did not identify what made White a close case. The most obvious reason to doubt the source of the tip in White was the apparent contradiction between the description of the attache case and the fact that Vanessa White was not carrying anything when she emerged from the building in question. There was no such contradiction here, which makes this case stronger in that respect. But beyond that, there is a danger in subjecting such unexplained phrases as "close case" to more analysis than they will stand, even when they appear in the United States Reports. In the end, the more reliable guide for decision here is how the Court chose to articulate the governing rule -- "'. . . something more than an "inchoate and unparticularized suspicion or 'hunch.'" . . . some minimal level of objective justification for making the stop.'" White, 496 U.S. at 329-30, quoting Terry and Delgado -- and not the hypothesized meaning of "close case."
When one adds to the caller's unmistakable description of Walker and his prediction that Walker would get off in New York the caller's disclosure that Walker was carrying guns and the officers' awareness that Walker was traveling from an area that was a likely source of such contraband, there was reasonable suspicion to detain Walker and his luggage, and Walker's subsequent consent to search was voluntary. Walker does not contend that any statements he made following his arrest were made before he was advised of his rights, or that it was necessary to advise him of his rights before his arrest. Therefore, the motion to suppress must be denied in its entirety.
Dated: New York, New York
November 10, 1992
Michael B. Mukasey,
U.S. District Judge