CLIENT ALERT MEMORANDUM
April 14, 2000
To: All Police Chiefs and Sheriffs
From: J. Scott Tiedemann
SEARCHES BASED ON ANONYMOUS TIPS
We write to draw your attention to a recent decision of the United States Supreme Court which may impact the manner in which your agency responds to anonymous tips of criminal activity.
In Florida v. J.L., 2000 W.L. 309131 (March 28, 2000), the Supreme Court held that an anonymous phone tip that a, “young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun,” lacked, “sufficient indicia of reliability” to permit police to search the suspect in response to the tip.
On October 13, 1995, an anonymous caller reported to the Miami-Dade Police that a young black male standing at a bus stop and wearing a plaid shirt was carrying a gun. The call was not recorded and nothing is known about the informant. Two officers were dispatched to the bus stop. At the bus stop, the officers observed three black males, “just hanging out,” one of whom was wearing a plaid shirt. Aside from the anonymous tip, the officers had no reason to believe that any of the individuals were engaged in criminal activity. Nonetheless, one of the officers frisked the individual in the plaid shirt and found a gun in his pocket. J.L., the individual wearing the plaid shirt, was charged with carrying a concealed firearm without a permit and unlawful possession of a firearm by a minor.
The trial court granted a defense motion to suppress the gun as the fruit of an unlawful search. The decision was ultimately upheld by the Supreme Court of Florida and prosecutors appealed to the United States Supreme Court.
Recognizing that, “there are situations in which an anonymous tip, suitably corroborated, exhibits ‘sufficient indicia of reliability to provide reasonable suspicion to conduct an investigatory stop,'” the Court indicated that the issue in Florida v. J.L. was, “whether the tip pointing to J.L. had those indicia of reliability.” The Court concluded that the tip lacked sufficient indicia of reliability.
Of primary importance to the Court was the fact that the tip provided no “predictive information” by which the police could test the informant’s knowledge and credibility. To demonstrate the type of predictive information that needs to be provided, the Court referred to its decision in Alabama v. White, 496 U.S. 325 (1990). In White, an anonymous informant accurately predicted that the suspect would leave an apartment building at a specific time, get into a car matching a particular description, and drive to a named motel. Even so, the Supreme Court characterized White as a “close case.”
The Court also indicated that an accurate description of the suspect’s location and appearance is helpful, but not enough. “Such a tip . . . does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.”
The State of Florida urged the Court to adopt a “firearms exception,” to the reliability requirement. The Court however declined to establish such an exception. “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.”
The Court did leave open the possibility that some searches based on anonymous tips might be lawful even if sufficient indicia of reliability is otherwise missing. “We do not say, for example, that a report of a person carrying a bomb need bear the indicia of reliability we demand for a report of a person carrying a firearm before the police can constitutionally conduct a frisk.” The Court also indicated that an exception might exist in places where there is a diminished expectation of privacy, e.g., airports.
This decision negatively impacts the ability of your agency to rely upon anonymous tips, except in extreme circumstances. While an anonymous tip might serve as the impetus for an investigation into possible criminal activity, an anonymous tip, by itself, does not equate to reasonable suspicion.
If your agency receives an anonymous tip of possible criminal activity, efforts should be made to obtain as much information as possible from the informant. The more information that you receive, the better able you will be to determine the reliability of the tip in accordance with the standards established by the Supreme Court. Remember, the mere fact that the informant identifies a suspect and accuses him or her of criminal activity is probably insufficient. Courts will likely be looking to see if your agency receives and, through investigation is able to verify, some “insider” information from the informant about the suspect.
The Supreme Court’s decision is, as described by the Los Angeles Times in a recent article, “a rare rebuff to police.” It is more than likely not a coincidence that the decision was rendered against the backdrop of the Rampart scandal in Los Angeles and controversial police shootings in New York. Police are receiving increasing scrutiny as a result of these controversies and it is having a real effect, including influencing court decisions. It should be interesting to watch whether law enforcement’s political capital with the Court is spent or whether this decision represents a temporary aberration in the Court’s otherwise pro law enforcement record.
As always, before taking any action regarding legal matters, we urge that you confer with your department’s designated legal advisor. Should you wish to discuss this matter in greater detail, please do not hesitate to contact any of us in the office at (562) 590-8280.
As always, before taking any action regarding legal matters, we urge that you confer with your department’s designated legal advisor. Should you wish to discuss this matter in greater detail, please do not hesitate to contact any of us in the office at (562) 590-8280.
JST/sgc
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