911, “Anonymous Tip” Not Enough To Give Police Reasonable Suspicion for Stop
Police rely heavily on anonymous tips to solve crimes. But anonymous tips can be highly inaccurate and misleading because they are motivated by a wide range of intentions—civic duty to petty revenge. Unlike confidential informants, with whom the police work with on a daily basis, anonymous tipsters are just a voice on an incoming call. Police have no meaningful way to evaluate either the credibility of the information being provided or the reliability of the tipster providing it.
The U.S. Supreme Court in 1990 in Alabama v. White first visited the “anonymous tip” issue. In that case the court held an anonymous tip, standing alone, does not provide the “reasonable suspicion” necessary to conduct a Terry “stop and frisk.” The Supreme Court expanded this narrow holding a decade later in Florida v. J.L. in which the court held an anonymous tip is an insufficient reason to conduct a Terry stop. The tip received in J.L. case was that a “young black male” in a plaid shirt was carrying a gun at a bus stop. A subsequent Terry frisk revealed the individual indeed had a gun. Not enough, the court said. Even if an anonymous tip proves accurate does not satisfy the “reasonable suspicion” standard necessary to justify a Terry stop. Bottom line: the court said an anonymous tip must be suitably corroborated before it has a “sufficient indicia of reliability” to meet the Terry “reasonable suspicion” standard.
The Second Circuit this past November in United States v. Freeman dealt with a case similar to Florida v. J.L. Joseph Freeman was convicted of one count of being a felon in possession of a firearm—a weapon discovered based on two anonymous 911 calls to the New York City Police Department in April 2011.
Even though the calls were made from a cell phone whose number was identified, the identity of the caller was never established. The caller informed the 911 operator that a “Hispanic male” had a gun near a bank in the Bronx, New York. The caller provided specific information that the man was wearing a black hat and a white t-shirt. A radio dispatch was sent to nearby officers who were told that “a person is possibly armed with a firearm” and was “arguing with a female” near the bank. One officer asked the dispatcher whether the 911 caller had “actually saw a firearm.” The dispatcher was unable to confirm this information. As the officers approached the scene, they received another dispatch which indicated the suspect was actually a “male black” wearing “a white du-rag, black hat, and a long white t-shirt.”
From their unmarked vehicle, the two responding officers observed Freeman walking in the area near the bank. He fit the most recent description given to them. One of the officers got out of the vehicle, approached Freeman, and attempted to speak to him. Freeman ignored the request, continuing to walk away. The officer then placed his hand on Freeman’s elbow who shrugged it off and kept walking. Both officers later testified that Freeman never ran from them, but they felt a need to physically restrain him. One officer grabbed him around the waist while the other tripped him to the ground. A short struggle ensued with other responding officers joining in as they handcuffed Freeman and removed a gun from his waistband.
Freeman sought to have the weapon suppressed but the effort was rejected by the trial court. He was convicted at a bench trial and appealed to the Second Circuit. The appeals court, as an initial matter, had to “determine when exactly the police seized Freeman” before it could decide whether they had the necessary “reasonable suspicion” to conduct the Terry stop. The court brushed aside the Government’s proposition that the police did not “seize” Freeman until they “had placed handcuffs on him.” This argument did not square with a finding by the Supreme Court in the 1968 Terry decision that a seizure under the Fourth Amendment occurs once the police have “by means of physical force or show of authority, … in some way restrained the liberty of a citizen.”
With this clear guidance, the Second Circuit had no difficulty concluding that when police grabbed Freeman around the waist in a “bear hug,” the suspect was physically restrained. The fact that Freeman did not attempt to break away or flee from the officers prevented the Government from relying upon Supreme Court precedent that a fleeing suspect, after being ordered by the police to stop, is sufficient “reasonable suspicion” to justify a seizure.
The Second Circuit then addressed a minor distinction between the anonymous tip received in J.L. and the Freeman case; namely, that the call in J.L. was not recorded. The Government seized upon this distinction as an indication by the high court that a recorded 911 call, as was the case in Freeman, was not truly “anonymous” since technology would allow the police to ultimately identify and locate the caller. The appeals court was not impressed by the Government’s reasoning. “ … The fact that the [Freeman] call was recorded and that the caller’s apparent cell phone number is known does not alter the fact that the identity of the caller is still unknown, leaving no way for the police (or for the reviewing court) to determine her credibility and reputation for honesty—one of the main reasons tips from known sources are afforded greater deference than anonymous ones.”
“The fact that her identity remains unknown unhinges the risk of consequences from the fact of the calls,” the appeals court added. “Knowledge of the caller’s number—without more—has no altered the factors that underlie J.L.’s demand that anonymous calls be supported by indicia of reliability. Moreover, reasonable suspicion must exist at the time a Terry stop is made. At the time this [Freeman] stop was made—and continuing to this day—the police did not know if they would be able to track down the caller, and thus, had and have no way of knowing whether the consequences for false reporting at all influenced this caller to tell the truth. Thus, even though the call was recorded, the two factors that distinguish tips from known and unknown sources are both still operative in this case—the caller’s credibility cannot be assessed and there is no risk of consequences for a false report in this instance.”
But what about an “anonymous tip” to a 911 operator from a freeway driver reporting a vehicle dangerously swerving in and out of traffic as though driven by someone intoxicated? Should this tip, which turns on the immediate issue of public safety, provide the kind of “reasonable suspicion” mandated by J.L.? The Supreme Court in October in Navarette v. California agreed to resolve this very question:
Whether a motorist recklessly driving can be stopped by the police based an anonymous tip without any further corroboration?
Given the heightened law enforcement interest in preventing “driving under the influence,” this case will be closely watched by police chiefs across the country as well as by advocacy groups fighting drunk driving.
While we recognize the dangers posed by DWI drivers, we are not prepared to endorse removing “corroboration” required by J.L. to establish “reasonable suspicion” in “anonymous tip” cases.