Highlights of This Issue

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Anonymous Tip of Person With a Gun Did Not Support a Stop and Frisk Without Predictive Information Concerning Illegality.

Florida v. J.L., 120 S.Ct. 1375, 2000 WL 309131, No. 98-1993 (2000).

The police received an anonymous tip that one of three young African-American males standing at a bus stop in front of a pawnshop at a specific and public location was carrying a concealed firearm. The tipster described the appearance of each of the young males and said that the individual with the gun was wearing a "plaid-looking" shirt.

Two officer responded within six minutes after receiving the tip. They immediately verified the accuracy of all the appearance and location information provided by the tipster.

Defendant, a juvenile, was standing by the bus stop with two other young African-American males and he was wearing a plaid shirt. A police officer with fourteen years experience approached defendant, asked him to put his hands above his head, and conducted a pat down of his outer garments. She then seized a gun that she saw protruding from the defendants' left pocket. Defendant was taken into custody and charged with unlawfully carrying a concealed firearm and possession of a firearm by a minor under eighteen years of age.

The Supreme Court of Florida ruled that the officer lacked reasonable suspicion for her conduct under Terry v. Ohio, 392 U.S. 1 (1968), in view of the tip's failure either to allege a suspicious activity that the police could verify or to accurately predict some future behavior of the subject. It approved suppression of the handgun, in spite of the fact that the officer had actually verified all the details of the tip. 727 So.2d 204.

On appeal to the United States Supreme Court the Court affirmed in a unanimous decision and an opinion written by Justice Ginsburg. The Court ruled that an anonymous tip that a person is carrying a gun is not, without more, sufficient to justify a police officer's stop and frisk of that person. While the Court reaffirmed the holding of Terry that an officer, for the protection of himself and others, may conduct a carefully limited search for weapons in the outer clothing of persons engaged in unusual conduct where, inter alia, the officer reasonably concludes in light of her experience that criminal activity may be afoot and that the persons in question may be armed and presently dangerous, in this case the officers' suspicion that defendant was carrying a weapon arose not from their own observations but solely from a call made from an unknown location by an unknown caller. The tip did not carry sufficient reliability to provide a reasonable suspicion to make an investigative stop under Terry. There was no predictive information and therefore the police had no way to test the informant's knowledge or credibility.

The Court rejected Florida's argument that the tip was reliable because it accurately described defendant's visible attributes. This argument, the Court said, misapprehends the reliability needed for a tip to justify a Terry stop. The reasonable suspicion in this case required that the tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. The Court declined to adopt a rule that the standard Terry analysis should be modified to create a "firearm exception," under which a tip alleging an illegal gun would justify a stop and frisk even if the accusation would not satisfy the standard pre-search reliability test.

Justice Ginsburg did suggest, however, that the need for reliability might be relaxed in cases where "great danger" was alleged, such as a report that someone was carrying a bomb, or in places such as schools or airports, "where the reasonable expectation of Fourth Amendment privacy is diminished."

Justice Kennedy filed a concurring opinion, joined by the Chief Justice. They noted that while "the Court says all that is necessary to resolve this case," it would have more to say in future cases about the ways in which anonymous tips might be tested for reliability.

Police Practice Points:

As a practical matter, what steps can the police take when faced with an anonymous tip such as that involved in this case? Some of these things were suggested by the concurring opinion of Justice Kennedy:

"It seems appropriate to observe that a tip might be anonymous in come sense yet have certain other features, either supporting reliability or narrowing the likely class of informants, so that the tip does provide the lawful basis for some police action. One such feature, as the Court recognizes, is that the tip predicts future conduct of the alleged criminal. There may be others. For example, if an unnamed caller with a voice which sounds the same each time tells police on two successive nights about criminal activity which in fact occurs each night, a similar call on the third night ought not be treated automatically like the tip in the case now before us. In the instance supposed, there would be a plausible argument that experience cures some of the uncertainty surrounding the anonymity, justifying a proportionate police response. . . .

"If an informant places his anonymity at risk, a court can consider this factor in weighing the reliability of the tip. An instance where a tip might be considered anonymous but nevertheless sufficiently reliable to justify a proportionate police response may be when an unnamed person driving a car the police officer later describes stops for a moment and, face to face, informs the police that criminal activity is occurring. This too seems to be different from the tip in the present case. See United States v. Sierra-Hernandez, 581 F.2d 760 (C.A.9 1978).

"Instant caller identification is widely available to police, and, if anonymous tips are proving unreliable and distracting to police, squad cars can be sent within seconds to the location of the telephone used by the informant. Voice recording of telephone tips might, in appropriate cases, be used by police to locate the caller. It is unlawful to make false reports to the police, e.g., Fla. Stat. Ann. sec. 365.171(16)(Supp.2000); Fla.Stat.Ann. sec. 817.49 (1994), and the ability of the police to trace the identity of anonymous telephone informants may be a factor which lends reliability to what, years earlier, might have been considered unreliable anonymous tips."