Tenth Circuit US v. Whitley 11-8078

Decision here.

   An ATF agent received a phone call (from a former prosecutor) informing him that Whitley had been seen in possession of a gun.  The ATF agent began his investigation, obtaining copies of the court records that confirmed that Whitley was a convicted felon.  Before he could get much further, he got another call (from the same former prosecutor) alleging that Whitley was loading an antelope into the back of his pickup truck (hunting season had just started).  From this, the agent inferred that Whitley probably had his gun with him right now.  He contacted the local sheriff and the Wyoming Game & Fish Department, and put out a BOLO for Whitley.  He requested that officers find their own reason to stop Whitley, and informed them that he suspected Whitley to be a felon in possession of a firearm.  Then the ATF agent went off in search of Whitley.

   A sergeant with the sheriff's department found him first, and saw that he had an antelope in the back of the pickup truck.  He initiated a traffic stop for the purported reason of making sure that the antelope was properly tagged.  On his initial approach to Whitley's truck, he saw a couple of rifles in plain view in the passenger compartment.  The ATF agent who put out the BOLO also responded to the stop, and they searched the truck.  They found more guns and ammo, and Whitley consented to a search of his house where they found more guns.  Whitley was charged with being a felon in possession of a firearm.

   Whitley moved to suppress the guns.  He argued that since he wasn't being stopped for a traffic violation, the officer should have to establish probable cause rather than reasonable suspicion in order to stop him.  The court held that RS is still the applicable standard that justifies a stop.  He also argued that there was no reasonable suspicion, in part because it was possible that he had been bow hunting.

   The court applied the collective knowledge doctrine, and held that the information known to the ATF agent amounted to reasonable suspicion and that this suspicion was communicated to the other officers involved in this case.  The court did not address whether or not the deputy's supposed basis for the stop was sufficient to justify it, since the ATF agent had already communicated that there was reasonable suspicion.  Finally, the court acknowledged that it was possible that Whitley had been bow hunting, but held that in order to establish reasonable suspicion it is not necessary to eliminate every innocent explanation of the facts (reasonable suspicion may exist even where it is more likely than not that there is no criminal activity).

   The order denying the suppression was affirmed.