Argued: May 10, 2018
from the United States District Court for the Eastern
District of Virginia, at Newport News. Robert G. Doumar,
Senior District Judge. (4:16-cr-00073-RGD-LRL-1)
Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant.
Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellee.
C. Kamens, Federal Public Defender, Wilfredo Bonilla, Jr.,
Assistant Federal Public Defender, Alexandria, Virginia, for
J. Boente, United States Attorney, Alexandria, Virginia,
Megan M. Cowles, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Newport News, Virginia, for
WILKINSON, MOTZ and KING, Circuit Judges.
GRIBBON MOTZ, CIRCUIT JUDGE.
Joseph Kehoe entered a conditional plea to being a felon in
possession of a firearm, reserving the right to appeal the
district court's order denying his motion to suppress.
Kehoe now appeals that order. For the reasons that follow, we
August 2, 2016, the Newport News Police Department received
two phone calls reporting a potential issue at RJ's
Sports Bar involving a man drinking while carrying a
concealed firearm. Police officers went to RJ's and,
after investigating, seized a gun from Kehoe's person and
jury indicted Kehoe for possession of a firearm by a felon,
in violation of 18 U.S.C. § 922(g)(1). Kehoe moved to
suppress the gun seized from his person and his statements to
officers. He argued that the officers lacked reasonable
suspicion for the seizure. At the suppression hearing, the
district court admitted recordings of the two phone calls, a
"call for service report, " body camera footage,
and a photo of the firearm recovered from Kehoe's person.
The court also heard testimony from two Newport News police
officers, Gary Lipscomb and E.D. Barnes. Although Kehoe
called Officer Lipscomb as a witness, Kehoe did not testify
or offer any other witnesses on his behalf.
to recordings of the two phone calls, the first caller
reported that he was at RJ's, and that a white male
wearing "a blue-and-white striped shirt" had a gun
"on his side" "under his shirt" and had
"been drinking." The caller stated that he wished
to be anonymous, but at the 911 operator's request,
provided his first name and phone number. Almost
simultaneously, a second caller, an off-duty police officer,
informed the police that a "bartender at RJ's"
had called to inform him that a white male at RJ's was
"intoxicated" and "carrying a firearm."
on these two phone calls, the Police Department dispatched
multiple officers to RJ's, including Officers Lipscomb
and Barnes. Both officers testified that RJ's was in a
"known problem area." Newport News officers had
previously responded to a "myriad of calls" at
RJ's and in the surrounding area for incidents involving
"gunshots, " "intoxicated individuals refusing
to leave after being kicked out of the bar, " and
"fights in the parking lot."
officers did not listen to the 911 calls before entering
RJ's. Instead, they reviewed a written police "call
for service report." That report includes some, but not
all, of the information supplied by the two callers.
Specifically, it notes that the first caller, who provided
his first name and telephone number, described seeing at
RJ's a white male in a blue-and-white striped shirt who
had a "gun on his side covered by his shirt" and
was "drinking." The call for service report states
that a second caller said that the RJ's bartender was
concerned about a white male in unknown clothing who was
carrying a firearm. The report does not indicate that the
second caller was a police officer or otherwise identify him,
nor does it indicate that the second caller stated that the
suspect was intoxicated.
arriving at RJ's, but before entering the bar, the police
officers "went over some of the different code
sections." Officer Lipscomb testified that, based on
this review, the officers determined that under state law,
persons "could be inside of a bar possessing a firearm
concealed if they had a concealed permit, as ...