Anonymous Tips and Frisks.

Determining Reasonable Suspicion 

The law enforcement profession is a precarious and perilous one. Its priorities are protecting the public and ensuring officer safety. Officers must be cautious because violence is always possible. Caution, however, does not mean that constitutional rights can be overlooked. It has been argued that "in dealing with rapidly unfolding and often dangerous situations on city streets, the police are in need of an escalating set of flexible responses, graduated in relation to the amount of information they possess." [1]

The Supreme Court of the United States has addressed this need by recognizing search warrant exceptions that apply to situations where the usual search warrant requirement would hinder law enforcement in acquiring evidence that may be otherwise lost, or in obtaining items that would pose a danger to the public or to the officers. These exceptions require a sufficient showing of probable cause, or in cases of safety, reasonable suspicion. The Court appears reluctant to create any further search warrant exceptions other than the five it has currently allowed. These exceptions are: 1) the emergency or exigent circumstances exception, which requires a reasonable suspicion of danger to justify a limited search [2] or probable cause to allow a search to prevent escape [3] or to avoid the destruction of evidence; [4] 2) the consent exception, which requires a reasonable belief that the consenting party has apparent authority, control, and access over the property and voluntarily consents; [5] 3) the motor vehicle e xception requires probable cause to believe there is evidence or contraband in the motor vehicle; [6] 4) the search incident to arrest exception, which is justified by a lawful custodial arrest, [7] permitting a search of the arrestee, personal items in his possession, [8] the area within the arrestee's immediate control [9] for weapons, means of escape and evidence of any crime, and immediate adjacent areas for persons who may pose a danger to officers; [10] and 5) the inventory exception, which allows law enforcement to locate and identify valuable or dangerous items contained within property they have lawful custody of, using a standardized inventory policy. [11] This article discusses one aspect of the emergency exception regarding frisks for weapons and the decisions made by the Court about frisks for weapons based on anonymous tips in Florida v. J.L. [12]

Florida v. J.L.

On October 13, 1995, an anonymous caller reported to police that a young black man was standing at a particular bus stop wearing a plaid shirt and carrying a gun. Officers went to the bus stop within minutes after receiving the information and saw three black males, one of whom was wearing a plaid shirt. Apart from the tip, the officers had no reason to suspect any of the three of illegal conduct. The officers did not see a firearm or observe any unusual movements to indicate the existence of a firearm. Without hesitation or question, one of the officers, who was a 14-year veteran, frisked the young man wearing the plaid shirt and seized a gun from his pocket. The other officer frisked the remaining two youths, against whom no allegations had been made, and found nothing. The youth who carried the gun was charged under state law with carrying a concealed firearm without a license and possessing a firearm while under the age of 18.

The Florida trial court granted the youth's motion to suppress the gun as the fruit of an unlawful search. The intermediate appellate court reversed, but the Supreme Court of Florida quashed that decision and held the search invalid under the Fourth Amendment. The case then came before the U.S. Supreme Court to determine whether an anonymous tip that a person is carrying a gun is, without more, sufficient to justify a police officer's stop and frisk of that person.

The opinion of the Court delivered by Justice Ginsburg held that an anonymous tip of a person carrying a gun is not, without more information, sufficient to justify police officers stopping and frisking that person. The Court found that officers, for the protection of themselves and others, may detain individuals based on a reasonable suspicion that criminal activity is about to occur. As long as officers can articulate a separate reasonable suspicion that the individual is armed, they can conduct a carefully limited search of the individual's outer clothing for weapons. Officers' assessment of reasonable suspicion can be based on their own perceptions, their training and experience, their knowledge of the area or person(s), and witness or informant information, including corroborated anonymous tips. This is a reiteration of the Court's landmark case, Terry v. Ohio. [13]

Terry v. Ohio

Terry involved three individuals who were stopped and frisked by Officer McFadden after he had observed them repeatedly walking up and down a street and peering into the window of a particular store. In Terry, the Court said, to justify a stop, the officer must identify specific articulable facts which, when taken with their logical inferences establish a reasonable suspicion that criminal activity is about to occur. This makes the intrusion reasonable.

Officer McFadden was a 36-year veteran with 30 years working the same beat. He observed the individuals and concluded that he did not know them and, based upon his training and experience, determined that they were "casing the joint" for an armed robbery. Having come to this conclusion, Officer McFadden approached the individuals to engage them in conversation. When Officer McFadden identified himself and asked the individuals who they were and what they were doing, they gave mumbled responses. It was only then that Officer McFadden frisked the individuals, having a reasonable suspicion that they were armed and therefore dangerous. His actions were deemed reasonable by the Court.

Anonymous Tips and Reasonable Suspicion

Terry v. Ohio and Florida v. J.L. present an interesting contrast. In Florida v. J.L., the officer's suspicion that J.L. was carrying a weapon arose not from any personal observations, training, or experience, but solely from a telephone call made by an unknown caller. In the course of investigating the anonymous tip, the officers did not identify themselves as police or make reasonable inquiries. They observed no unusual conduct that might have led the officers to reasonably conclude, in light of their experience and training, that criminal activity was about to occur or that the individuals with whom they were dealing were armed and dangerous. Officers are entitled to conduct a carefully limited search of the outer clothing of individuals who pose a danger to them for the protection of themselves and others in the area and in an attempt to discover weapons which might be used to assault them. however, neither J.L. nor his associates were shown to pose a danger to the officers or to the public.

Anonymous tips alone seldom demonstrate the tipster's basis of knowledge or veracity, unlike tips received by police from known informants whose reputation can be assessed and can be held responsible if the allegations turn out to be fabricated. [14] However, the Court has recognized that there are situations in which an anonymous tip, suitably corroborated, can be enough to give rise to the reasonable suspicion required to make an investigatory stop.

Anonymous Tips and Reliability

In Alabama v. White, [15] police received an anonymous tip that a woman would be leaving a particular apartment at a particular time in a particular vehicle. The tip also included information that the woman would drive to a named motel and would have cocaine in a brown attache case. Police corroborated the information by going to the apartment building and observing the car described by the caller. They then saw the suspect leave the apartment building, enter the car, and drive the route toward the specific motel. Officers stopped the car just short of the motel. A consensual search of the car resulted in the recovery of marijuana. After her arrest, cocaine was found in her purse.

The Court held that the anonymous tip, standing alone, did not justify White's detention. However, once police corroborated the informant's accurate prediction of the woman's future movements, it became reasonable for police to think that the tipster had inside knowledge about the suspect and bolstered his assertion about the cocaine possession. Although the Court held that the detention was reasonable in White, the detention was regarded as borderline in regard to establishing the necessary reasonable suspicion to stop and detain. The Court explained that "knowledge concerning a person's future movements indicates some familiarity with that person's affairs, but having such knowledge does not necessarily imply that the informant knows, in particular, whether that person is carrying hidden contraband." [16]

Predicting future behavior is important. Unlike the White case, the tip concerning J.L. provided descriptive information, but no predictive information. It, therefore, left the police without any means to test the reliability of the informant's information and, more important, the informant's credibility. All that the police knew in J.L. was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information concerning J.L. The fact that officers found a gun did not add credence to the tipster's allegation. The officers, prior to the frisks, had no reasonable basis for suspecting J.L. of engaging in unlawful conduct. Reasonable suspicion must be based on what officers know prior to their stop and frisk, not on what they find as a result of a search.

Possible Means of Establishing Reliability

Florida v. J.L. and Alabama v. White make it clear that an anonymous tip that merely identifies a person, but does not show that the tipster has knowledge of concealed criminal activity is not sufficient to establish a reasonable suspicion justifying a stop and frisk. An anonymous tip may be bolstered where it predicts the subject's future behavior, and police can corroborate that prediction through observation and investigation.

Two additional suggestions as to establishing the reliability of an anonymous tipster were given in the concurring opinion of Justice Kennedy joined by Chief Justice Rehnquist. They advised that an anonymous tip may be thought reliable where the tipster has somehow put his identity at risk. For example, a tip given to police by a person in a vehicle, even if the tipster does not give his name, is entitled to more weight than the anonymous telephone tipster. [17] They speculated that reliability may be bolstered where an anonymous tip is received by law enforcement on a telephone line equipped with caller I.D. and the tipster has not blocked the caller I.D., enabling police to identify the caller. [18] They also suggested that a repeat anonymous caller with a recognizable voice, who repeatedly provides police with information that has proven to be true, may be deemed a reliable source even though his true identity is not known. [19] The full Court may not adopt these views, but they do provide some guidance in this as yet unsettled area of the law.

Firearms Exception to Terry

The state of Florida and the federal government argued before the Court that there should be a firearms exception to the Terry rule. The United States, as amicus curiae (or friend of the court), specifically argued that a stop and frisk should be permitted when 1) an anonymous tip provides a description of a particular person at a particular location illegally carrying a concealed firearm, 2) police promptly verify the pertinent details of the tip except the existence of the firearm, and 3) there are no factors that cast doubt on the reliability of the tip. [20] The basis of this argument is that it is reasonable for law enforcement officers to begin an investigation into a tip concerning a person with a gun by protecting themselves and the public with an automatic frisk of the person(s) in question.

The Court responded to this argument by stating that "an automatic firearm exception to our established reliability analysis would rove too far. Such an exception would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target's unlawful carriage of a gun." [21] The Court also expressed a fear that such an exception would be difficult to limit to firearms and that it would eventually be extended to allegations of drug possession. Several courts of appeals have held it per se foreseeable that people carrying large amounts of drugs also carry weapons.[22] The Court was concerned that these holdings would soon be used to justify an automatic frisk exception in cases where the anonymous tip alleged mere drug possession, allowing the "exceptions to swallow the rule."[23]

The Court reaffirmed the reasonable suspicion standard in Terry. It decided that the Terry rule creates the proper balance between the safety concerns of police and an individual's personal privacy guaranteed by the Fourth Amendment. Law enforcement officers must conduct a case-by-case analysis and be able to articulate why a particular individual is armed.

The Court did note that under certain circumstances the danger alleged in an anonymous tip might be so great as to justify a search without a showing of reliability. However, the Court did not articulate what these circumstances might be. The Court did state that in places where there is a diminished expectation of privacy, such as in airports[24] or schools,[25] protective searches could be conducted on the basis of information that would not be sufficient elsewhere.

Conclusion

An anonymous tip providing an accurate description of a subject's readily observable location and appearance identifies the person whom the tipster means to accuse. However, this descriptive information alone is not necessarily enough to show that the accused is engaged in criminal activity. Predictive information may be necessary to establish the reliability of the tip in its assertion of illegality. The requirement that an anonymous tip bear some standard of reliability in order to justify a stop in no way diminishes a police officers' prerogative, in accord with Terry, to conduct a protective search of a person who has already been legitimately stopped.

The Court, in Florida v. J.L., recognized the serious threat that armed criminals pose. Firearms are dangerous and extraordinary dangers sometimes justify unusual precautions. The Terry rule is such a precaution. It permits protective police searches based on a reasonable suspicion rather than the higher standard of probable cause normally required for police to conduct a search. However, the Court has reminded law enforcement that even a limited search of an individual's outer clothing" constitutes a severe...intrusion upon cherished personal security, and surely must be an annoying and frightening, and perhaps humiliating experience."[26] As such, it should only occur when permitted by the Constitution of the United States.

Special Agent Bulzomi is a legal instructor at the FBI Academy.

Endnotes

(1.) Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968).

(2.) Ibid.

(3.) Welsh v. Wisconsin, 566 U.S. 740 (1984).

(4.) Schmerber v. California, 384 U.S. 757 (1966).

(5.) Illinois v. Rodriguez, 110 S. Ct. 2793 (1990).

(6.) "Maryland v. Dyson, 119 S. Ct. 2013 (1999).

(7.) US. v. Robinson, 414 U.S. 218 (1973).

(8.) US. v. Edwards, 415 U.S. 800 (1974).

(9.) Chimel v. California, 395 U.S. 752 (1969).

(10.) Maryland v. Buje, 494 U.S. 325 (1990). (11.)

(11.) South Dakota v. Opperman, 428 U.S. 362 (1976).

(12.) Florida v. J.L., 120 5. Ct. 1375 (2000).

(13.) Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968) at 1874

(14.) Adams v. Williams, 407 U.S. 143,928. Ct. 1921 (1972) at 1923-1924.

(15.) Alabama v. White, 496 U.S. 325, 110 5. Ct. 2412 (1990) at 2415.

(16.) Florida v. J.L., 120 5. Ct. 1375 (2000) at 1378.

(17.) Id at 1381.

(18.) Ibid.

(19.) Ibid.

(20.) Id at 1379.

(21.) Id. at 1380.

(22.) See US. v. Sakyi, 160 F.3d 164 (C.A. 4 1998) at 169; U.S. v. Dean, 59 F.3d 1479, (C.A. 5 1995) at 1490, n.20; U.S. v. Odom, 13 F.3d 949 (C.A. 6 1994) at 959; US. v. Martinez, 958 F.2d 217 (C.A. 8 1992).

(23.) Richards v. Wisconsin, 520 U.S. 385, 117 S. Ct. 1416 (1997) at 1421-1422. (rejecting a per se exception to the knock and announce rule for narcotics eases partly because the reasons for creating an exception in one category [of Fourth Amendment cases] can, relatively easily, be applied to others, thus allowing the exception to swallow the rule).

(24.) See Florida v. Rodriguez, 469 U.S. 1, 105 S. Ct. 308 (1984)(per curiam).

(25.) See New Jersey v. TL.O., 469 U.S. 325, 105 5. Ct. 733 (1985).

(26.) Terry v. Ohio, 392 U.S. 1, 88 5. Ct. 1868 (1968).