UNITED STATES OF AMERICA, PETITIONER V. THOMAS J. HENSLEY No. 83-1330 In the Supreme Court of the United States October Term, 1984 On Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit Reply Brief for the United States In our opening brief, we demonstrated that the court of appeals committed two clear errors in this case. First, in a totally unprecedented ruling, the court held that investigative stops are permissible only in "settings involving the investigation of ongoing crimes" (Pet. App. 8a-9a (emphasis added)). Second, the court held that the stop of respondent's vehicle by officers of the Covington, Kentucky, police department was unlawful because the "wanted" flyer issued by the St. Bernard, Ohio, police department failed to provide the Covington officers with sufficient facts upon which to base their own determination of reasonable suspicion (id. at 9a). Respondent has utterly failed to acknowledge, let alone answer, our refutation of the court's first holding, and thus no reply is necessary as to that issue. The discussion in our opening brief (at 12-17) conclusively shows that the court of appeals' novel restriction on Terry stops is utterly without basis and contrary to numerous decisions of this Court. With regard to our second contention, respondent's entire brief is flawed by his apparent unwillingness or inability to distinguish between an arrest, which requires probable cause, and an investigative stop, which requires only reasonable suspicion. /1/ Respondent repeatedly challenges the authority of the Covington police to arrest him in reliance on the "wanted" flyer, claiming that the flyer failed to provide the Covington police with probable cause for an arrest. See, e.g., Br. 1, 10, 11, 13, 16. As we explained in our opening brief (at 7, 11, 16-17), however, the Covington officers did not arrest respondent on the basis of the "wanted" flyer. Rather, respondent was stopped for the purpose of determining, as rapidly as possible (see ibid.), whether there was an outstanding warrant for his arrest. The actual arrest of respondent -- as opposed to the initial stop -- was made not on the basis of the "wanted" flyer but instead as the result of independent probable cause that developed when one of the Covington officers, knowing respondent and his passenger to be convicted felons, spotted a firearm in plain view in respondent's vehicle (id. at 7-8). Inasmuch as respondent does not even suggest that his arrest based on the Covington officer's observation of a firearm in plain view lacked probable cause, the only police action at issue in this case is the initial stop of respondent's vehicle. Respondent argues (Br. 13) that the Covington officers should have "taken a few more minutes to verify (the existence of) the warrant prior to initiating the stop of the respondent." Respondent does not explain how this would have been practicable, and clearly it would not. Respondent "took off" in his automobile as soon as he spotted one of the Covington officers (J.A. 60). The officers were able to make an educated guess as to respondent's destination (ibid.), but obviously they could not have known whether their surmise would prove correct. In these circumstances, failure to make an immediate stop would have bordered on dereliction of duty. /2/ Again refusing to distinguish between an investigative stop and an arrest, respondent finally contends that the statement given by Janie Hansford to the St. Bernard police "lacked sufficient probable cause to issue a warrant for respondent's arrest" and therefore could not be used "to justify the arrest of the respondent" (Br. 14). Respondent's contention that the statement failed to provide probable cause for respondent's arrest is wholly irrelevant to this case because the statement was not used for that purpose; rather, it was used as the basis for the "wanted" flyer that resulted in the stop of respondent's vehicle. The pertinent inquiries, therefore, are, first, whether Hansford's statement gave the St. Bernard police reasonable suspicion to justify stopping respondent and, second, whether the Covington police could rely on the knowledge of the St. Bernard police. Focusing first on the St. Bernard police, it is abundantly clear that Hansford's statement provided them with reasonable suspicion to justify a stop of respondent for questioning (had they encountered him before he was stopped by the Covington police). Hansford was present at the Moon Tavern while plans for the robbery were being made (Pet. App. 2a); she admitted tangential participation in the robbery (id. at 14a); /3/ her boyfriend's father told her that he and respondent were involved in the robbery (id. at 2a); /4/ and she provided a wealth of details concerning events surrounding the robbery (id. at 14a). Taken together, these facts unquestionably establish that the St. Bernard police would have been justified in stopping respondent for questioning. /5/ That conclusion, in turn, compels the conclusion that the Covington police were likewise justified in stopping respondent long enough to determine whether the St. Bernard police had issued a warrant for respondent's arrest. Nowhere in his brief does respondent refute our argument (Br. 17-21) that officers of one department may rely on information furnished by another department so long as the initiating department possesses the requisite level of suspicion for the action taken. That standard was clearly satisfied in this case. For the foregoing reasons and those set forth in our opening brief, the judgment of the court of appeals should be reversed. Respectfully submitted. REX E. LEE Solicitor General OCTOBER 1984 /1/ Even as to probable cause, respondent's brief demonstrates considerable confusion. For example, respondent asserts (Br. 12 n. 10 (emphasis added)) that the police in this case "simply did not know for certain whether the respondent had actually engaged in past or present criminal activity." It is axiomatic that "certainty" is not required to establish probable cause, much less reasonable suspicion. See, e.g., Illinois v. Gates, No. 81-430 (June 8, 1983), slip op. 16. /2/ Respondent also contends that the St. Bernard police "could have attempted to get a warrant" (Br. 13). Respondent may well be correct, but the contention is irrelevant to this case. The question is whether the Covington police were justified in stopping respondent for the purpose of finding out whether the St. Bernard police had obtained a warrant. Since it is undisputed that the Covington police planned to release respondent if they had learned that there was no warrant (and if independent probable cause for arrest had not developed), the apparent failure of the St. Bernard police to seek a warrant has no bearing on the reasonableness of the investigative stop by the Covington officers. All that is pertinent is whether the St. Bernard police, had they come across respondent themselves, could have stopped him for questioning. As we demonstrate in text, they clearly could have done so. /3/ Respondent repeatedly contends (Br. 4 n.4, 16) that Hansford never implicated herself in the robbery. But the district court found to the contrary (Pet. App. 14a), and the court of appeals did not disturb that finding. Accordingly, the finding should be accepted by this Court. See, e.g., Berenyi v. Immigration Director, 385 U.S. 630, 635 (1967). Even if the finding were to be discounted, however, Hansford's statement still contained sufficient detail, described in text, to supply the St. Bernard police with the requisite reasonable suspicion needed to justify stopping respondent. /4/ Respondent complains (Br. 4, 5, 15) that Hansford's statement identified respondent only as "Tommy" and not as Thomas J. Hensley. Respondent acknowledges (Br. 15) Hansford's "obvious lack of writing skills," however, and suggests no reason why the St. Bernard police could not rely on their knowledge (see J.A. 94) that Hansford was referring to respondent. Hansford's statement was neither utilized nor intended to be utilized as a sworn affidavit to be presented to a magistrate. Rather, it formed the basis for the St. Bernard police department's determination that there was reason to believe that respondent had been involved in the robbery. In these circumstances, the officers were entitled to rely on matters outside the "four corners" of the statement, including the fact that they knew that Hansford's reference to "Tommy" was a reference to respondent. Accordingly, the cases cited by respondent (Br. 6 n.5) for the proposition that an affidavit for a search warrant may not be supplemented by oral testimony are irrelevant to this case. /5/ Of course, if the St. Bernard police had stopped respondent for questioning, he would have been free, in the absence of probable cause, to decline to answer any questions and to leave when probable cause failed to develop. See, e.g., Florida v. Royer, 460 U.S. 491, 497-498, 503 (1983). It is true, as respondent notes (Br. 15 n.11, 16), that one of the St. Bernard officers apparently believed that he could stop and detain a suspect for questioning for up to 72 hours. This mistaken belief has no bearing on the case, however, because it was never acted upon.