Necessity to Make Offer Of Proof of Excluded Evidence Highlighted

US v. Connor, No. 12-1063 (Colo), 11/15/12 (Published) - Denial of motion to suppress evidence derived from detention based on anonymous tip affirmed. Tipster called 911 around 11 pm and reported having just seen light-skinned black guy wearing fuzzy hunting cap get out of SUV parked in an alley in a high crime area and put handgun in his waistband, right after hearing someone yell “no, no.” Tipster gave address and phone number but not name. Dispatch relays the info to patrol cops, who spot defendant as he is walking away from area and try to cut him off. He turned and started walking into a parking lot. They stop him, pat him down and find gun. Held - tip was reliable enough, with much of it corroborated, to justify suspicion of criminal activity and Terry investigatory stop. Tipster giving name and address made it more likely (s)he was concerned citizen rather than malicious, area and time of day relevant, as was evasive behavior, enough info to suggest defendant had just assaulted someone with the gun, etc.

The takeaway here is a procedural matter. The district court said it didn’t admit exhibits at suppression hearings after defendant tried to introduce a map of the area, so defendant did not offer the 911 tape itself and a transcript of it. He tried to use them on appeal but the court said no. The rules of evidence don’t apply with full force at preliminary hearings to determine admissibility of evidence, but the “procedural regulation of the process of the admission and exclusion remains applicable.” Federal Rule of Evidence 103 requires an offer of proof to preserve issue of exclusion, and none made here. No plain error because exclusion of the tape and transcript did not affect defendant’s substantial rights because he loses anyway.