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Criminal Constitutional Law § 2.07
DAVID S. RUDSTEIN
Professor of Law Illinois Institute of Technology Chicago-Kent College of Law Chicago, Illinois
C. PETER ERLINDER
Professor of Law William Mitchell College of Law St. Paul, Minnesota
DAVID C. THOMAS
Clinical Professor of Law Illinois Institute of Technology Chicago-Kent College of Law Chicago, Illinois
Part I
§ 2.07 Stop and Frisk
Part I
[1] In General
[2] What Constitutes a Forcible Stop (“Seizure”)
[3] Grounds for a Forcible Stop: The “Reasonable Suspicion” Standard
Part II
[4] Limitations Upon an Investigatory Stop
[a] In General
[b] The Use of Force or a Show of Force in Making an Investigatory Stop
[c] Permissible Investigative Techniques
[d] Duration
[e] Moving Suspect from Place of Stop
[f] The “Least Intrusive Means” Requirement
[5] Grounds for a Frisk
[6] The Permissible Scope of a Frisk
[7] Limited Search of the Area Within a Suspect’s Immediate Control
[8] Traffic Stops
[9] The Seizure of Personal Property for Investigative Purposes
[1] In General
In Terry v. Ohio,1 decided in 1968, the Supreme Court for the first time considered the constitutionality of that rubric of police conduct euphemistically termed “stop-and-frisk,” that is, a brief stop of an individual on the street or in some other public place for investigatory purposes and a careful exploration of the outer surfaces of his clothing in an attempt to find weapons that could be used against the investigating officer. The Court concluded that an investigatory “stop,” however brief, constitutes a “seizure” within the meaning of the Fourth Amendment and that a “frisk” is a “search” within the meaning of that same amendment.2
Nevertheless, it recognized that because the type of police conduct at issue necessarily requires swift action predicated upon on-the-scene observations by an officer in the field, it cannot as a practical matter be subjected to the warrant procedure.3 The Court therefore tested the conduct involved by the Fourth Amendment’s general prohibition of unreasonable searches and seizures, balancing the governmental interest involved against the degree of intrusion upon individual rights.4 It concluded that the government’s interest in effective crime prevention and detection and in the safety of police officers outweighs the limited intrusion on an individual’s personal security from a stop-and-frisk.5 Accordingly, the Court held that under certain circumstances the Fourth Amendment permits a police officer to stop and detain a person for investigatory purposes and to subject him to a limited search for weapons, even though the officer does not have probable cause for an arrest.6
As the Court subsequently explained in Adams v. Williams:7
The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.8
Although Terry involved the stop of a pedestrian (and Adams the “seizure” of an individual seated in a parked automobile), it is now clear that police officers also can stop a moving vehicle and briefly detain its occupants to investigate whether they are involved in criminal activity.9
[2] What Constitutes a Forcible Stop (“Seizure”)
The Supreme Court recognized in Terry v. Ohio10 that “not all personal intercourse between policemen and citizens involves ‘seizures’ of persons.”11Rather, it said, a seizure occurs “[o]nly when [an] officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.”12
More recently, the Court in Brendlin v. California13 stated that “[a] person is seized by the police … under the Fourth Amendment when the officer, by means of physical force of show of authority, terminates or restrains his freedom of movement through means intentionally applied.”14
In California v. Hodari D.,15 the Supreme Court held that the common law of arrest “defines the limits of a seizure of the person”16 for purposes of the Fourth Amendment. Thus, with respect to the use of physical force, a police officer “seizes” an individual when he grasps or applies physical force to him.17 This is true whether or not he succeeds in subduing the individual,18 although, because “[a] seizure is a single act, not a continuous fact,”19 the individual would no longer be “seized” if the officer were unsuccessful in subduing him and he escaped.20
For a “seizure” to be effected through a “show of authority,” the individual must submit to the officer’s assertion of authority.21
Thus, no “seizure” occurs when a police officer yells “Stop, in the name of the law” at a fleeing form that continues to flee,22 or when he pursues a fleeing individual who does not yield.23 In such circumstances, “there is at most an attempted seizure.”24 What amounts to submission to a show of authority “depends on what a person was doing before the show of authority.”25 For example, a person fleeing from a police officer following the officer’s show of authority is not seized until he either is “physically overpowered”26 or he yields by stopping his flight of his own accord.27 On the other hand, a person sitting in a chair can submit to a show of authority “by not getting up to run away,”28 and a passenger in a motor vehicle stopped by the police can submit “by staying inside” the vehicle.29
A “show of authority” normally exists “if, in view of all the circumstances surrounding the incident, a reasonable person would … believe that he [is] not free to leave.”30However, where an individual’s freedom of movement is restricted by a factor independent of police conduct, such as by his voluntary obligations to his employer31 or by his being a passenger on a bus,32 the “free to leave” analysis is inapplicable.33 “In such a situation, the appropriate inquiry is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.”34
These tests are objective ones: “not whether the citizen perceive[s] that he [is] being ordered to restrict his movement [or to comply with the officer’s requests], but whether the officer’s words and actions would … convey that to a reasonable person.”35 The subjective state of mind of the particular citizen involved in the encounter is irrelevant,36 as is the subjective intent of the police officer, unless the officer communicates that intent to the citizen.37
Of course, “what constitutes a restraint on liberty prompting a person to conclude that he is not free to ‘leave’ [or to terminate the encounter] will vary, not only with the police conduct at issue, but also the setting in which the conduct occurs,”38including the place where the encounter takes place.39 One thing is clear, however: an encounter between a police officer and a citizen is not a Fourth Amendment seizure merely because the person asking the questions is a law enforcement officer.40 Something more is required.
In Florida v. Royer,41 for example, the Supreme Court concluded that an individual approached by two plainclothes narcotics agents in an airport was seized for purposes of the Fourth Amendment when the agents asked for and examined his airline ticket and driver’s license,42 identified themselves as narcotics agents, told the individual that they suspected him of transporting narcotics, and asked him to accompany them to a police room at the airport, while retaining his ticket and driver’s license and without indicating in any way that he was free to leave.43
Some guidance as to what “more” is required to constitute a “sufficient show of authority” was provided by Justice Stewart in his opinion announcing the judgment of the Court in United States v. Mendenhall (1980).44 He stated that circumstances indicating that a Fourth Amendment seizure occurred include “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.”45Absent some such evidence, he stated, “otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.”46
Although only Justice Rehnquist joined this part of Justice Stewart’s opinion,47 a majority of the Supreme Court subsequently indicated its agreement with this view. In holding that two police officers in a squad car did not seize an individual when they drove parallel to him as he ran down the street, the Court in Michigan v. Chesternut (1988)48 noted that the police officers did not activate a siren or flashers, command the individual to halt, display any weapons, or operate their squad car in an aggressive manner to block the individual’s course or otherwise control the direction or speed of his movements.49 Then, in Kaupp v. Texas (2003)50 the Court, in defining a “seizure,” quoted with approval the “examples” given by Justice Stewart in Mendenhall.51
The lower court decisions generally are consistent with Justice Stewart’s position in Mendenhall.When holding that a particular police-citizen encounter did not constitute a seizure, they frequently point out that only one officer approached the individual52 or that the officers involved in the encounter were not wearing uniforms.53 Similarly, they often note that the police officers spoke in a normal54or conversational55 tone of voice,56 did not make any threats,57 use a tone of voice or language indicating that compliance with their requests was required,58display any weapons,59 touch the individual,60 block his path,61 or use physical force.62
Conversely, when holding that a particular police-citizen encounter did constitute a seizure within the meaning of the Fourth Amendment, courts typically stress the presence of one or more additional factors, such as the large number of officers involved,63 the absence of other members of the public,64 that the officer blocked the individual’s path with his squad car65 or that several officers encircled the individual and blocked his movement,66 that the police officers approached the individual with their weapons drawn,67 that a police officer in a squad car drove onto the sidewalk and closely pursued a pedestrian,68 or that the officer involved in the encounter called to the individual to stop and identify himself,69 told the individual to “hold it” and to keep his hands where they could be seen,70 ordered the individual to “freeze”71 or to lie down on the ground,72 made physical contact with the individual,73 told the individual to wait while he conducted a warrant check,74 asked questions in an accusatory, persistent, and intrusive manner,75 retained the individual’s driver’s license76 or identification,77ordered the individual into a squad car78 or into the individual’s own vehicle,79handcuffed the individual,80 “requested”81 the individual to accompany him to some other place82 or asked the individual to return when he began walking away.83
The same principles apply when a police officer comes across an individual seated in a parked or otherwise stopped motor vehicle. Thus, no Fourth Amendment seizure occurs when a police officer approaches such an individual and talks to him,84 even if he knocks on the driver’s window to gain his attention.85 However, a seizure does occur when a police officer pulls his squad car behind the parked or stopped vehicle and activates the squad car’s flashing lights86 or positions his squad car so that it blocks the vehicle in which the individual is sitting,87 or when several officers surround the vehicle.88
A seizure also occurs if the officer approaches the vehicle with his weapon drawn,89 if he asks or directs the individual to roll down the window,90 open the door,91 shut off the engine,92 show his hands,93 or get out of the car,94 or if he tells the individual to remain seated in the vehicle while he “checked out the situation.”95 Although some courts have concluded that no “seizure” occurs when a police officer asks for and receives the individual’s driver’s license or identification card,96 others have reached the opposite conclusion.97
Of course, if the police officer retains the individual’s driver’s license or identification, it is likely that he will be deemed to have “seized” the individual.98
Stopping or diverting a private motor vehicle in transit is “materially more intrusive” than a question put to a passing pedestrian.99 Among other things, it gives the law enforcement officer the opportunity to visually inspect areas of the passenger compartment not otherwise observable.100 Consequently, it generally is agreed that stopping or diverting a private moving vehicle,101 whether by the use of flashing lights—either alone102 or in conjunction with a siren,103 by blocking the path of the vehicle,104 or by some other means105—constitutes a seizure of the vehicle’s driver as well as any passengers in the private vehicle106 for purposes of the Fourth Amendment.107
However, police officers do not conduct a seizure for purposes of the Fourth Amendment when,as part of a program to interdict illegal drugs, they board an interstate or intrastate bus at a scheduled stop on its route and randomly ask a passenger some questions, for identification, and for permission to search his luggage, so long as the officers do not convey a message that the passenger is required to comply with their requests.108 As the Supreme Court made clear in United States v. Drayton109 during such encounters police officers need not advise passengers of their right not to cooperate.110
[3] Grounds for a Forcible Stop: The “Reasonable Suspicion” Standard
The Supreme Court held in Terry v. Ohio111 that a police officer can forcibly stop and briefly detain an individual for investigatory purposes when the officer
“observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot.”112
This standard requires that the officer be able to articulate
“something more than an ‘inchoate and unparticularized suspicion or hunch.’ ”113 Rather, he must have a “reasonable suspicion, based on objective facts”114 —in shorthand terms, a “reasonable suspicion”115 —that the individual is involved in criminal activity.
To put it another way, based upon
“the totality of the circumstances—the whole picture,”116 —the officer must have a “particularized and objective basis”117 for suspecting that the particular person stopped “is, or is about to be,118 engaged in criminal activity,”119
or that
he “was involved in or is wanted in connection with a completed felony.”120
The level of suspicion required for an investigatory stop is less demanding than for probable cause121 and is “considerably less than proof of wrongdoing by a preponderance of the evidence.”122 What is required is a “moderate chance”123 that the individual is engaged in wrongdoing.
In determining whether reasonable suspicion exists, an officer may draw upon his experience and specialized training to make inferences and deductions about the cumulative information available to him that might elude an untrained person.124Moreover, where there has been some cooperation between police officers, the collective knowledge of the cooperating officers at the time of the stop must be examined to determine whether reasonable suspicion exists.125
The Supreme Court has recognized that “the concept of reasonable suspicion is somewhat abstract,”126 and has “deliberately avoided reducing it to a neat set of legal rules.”127 In attempting to explain the reasonable suspicion standard in United States v. Cortez,128 the Court stated:
The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible.
First, the assessment must be based upon all the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions—inferences and deductions that might well elude an untrained person.
The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common sense conclusions about human behavior; jurors as factfinders are permitted to do the same—and so are law enforcement officers.
Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.
The second element contained in the idea that an assessment of the whole picture must yield a particularized suspicion is the concept that the process just described must raise a suspicion that the particular individual stopped is engaged in wrongdoing.129
A reasonable suspicion of criminal activity can arise from wholly lawful conduct.130 In determining whether reasonable suspicion exists in a given case, “the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.”131
For example, in United States v. Sokolow,132 the Supreme Court concluded that federal drug agents had a reasonable suspicion to stop an individual following his arrival at Honolulu International Airport.133 At the time of the stop, the agents knew that:
(1) the individual paid $2,100 in cash for two round-trip airline tickets from a large roll of $20 bills;
(2) the name under which he traveled did not match the name under which his telephone number was listed;
(3) his original destination was Miami, a source city for illegal drugs;
(4) he stayed in Miami for only 48 hours, even though a round-trip flight from Honolulu to Miami takes 20 hours;
(5) he appeared nervous during his trip; and
(6) he did not check any of his luggage.134
Similarly,
in United States v. Sharpe,135 the Supreme Court concluded that law enforcement officers had an articulable and reasonable suspicion that the two individuals were engaged in marijuana trafficking.136 In that case, an officer in an unmarked car observed the individuals’ vehicles—one of which was a pickup truck with a camper shell, the type of vehicle frequently used to transport large quantities of marijuana—traveling in tandem for twenty miles in an area known to be frequented by drug traffickers. The truck seemed to be heavily loaded, and the windows of the camper were covered with quilted bed-sheet material, rather than curtains. Moreover, as soon as a second law enforcement officer began following the individuals in a marked police car, their vehicles took evasive actions and began speeding.137
On the other hand,
in Brown v. Texas,138 the Court concluded that a police officer did not have a reasonable suspicion to stop an individual he saw walking away from another man in an alley in a “high drug problem area.” The Court reasoned that although the officer thought the situation “looked suspicious,” he could not point to any facts supporting his conclusions.139
Similarly,
in Utah v. Strieff,140 the Court held that a police officer did not have reasonable suspicion to stop and question a man just because he had left a suspected drug house.141 However, the story did not end there: after the police officer illegally seized Strieff, he discovered Strieff had an outstanding warrant for an unpaid parking ticket.142 Strieff was arrested, and in a subsequent search incident to arrest, drug evidence was found.143 In a fiercely argued 5-4 decision, the majority chose to forgive the illegality of this stop and allow the illegally obtained evidence into trial.144
In contrast,
the Supreme Court in Illinois v. Wardlow145 held that a police officer had a reasonable, articulable suspicion of criminal activity when he observed an individual holding an opaque bag flee after seeing a police “caravan” approaching him in an area known for heavy narcotics trafficking.146 The Court stated that while “[a]n individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime,”147 police officers can, in determining whether the circumstances are sufficiently suspicious to warrant further investigation, take into account “the relevant characteristics of a location,”148 such as whether it is a “high crime area.”149 Additionally, the Court reasoned that “nervous, evasive behavior is a pertinent factor in determining reasonable suspicion,”150 and that unprovoked, headlong flight is “the consummate act of evasion,”151 which, “although not necessarily indicative of wrongdoing, … is certainly suggestive of such.”152
Although Terry v. Ohio153 involved a forcible stop based upon the personal observations of the police officer,154 the Supreme Court in Adams v. Williams155expressly rejected the argument that reasonable cause for a stop and frisk can be based only upon an officer’s firsthand observations. It stated:
Informants’ tips, like all other clues and evidence coming to a policeman on the scene, may vary greatly in their value and reliability. One simple rule will not cover every situation. Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized. But in some situations—for example, when the victim of a street crime seeks immediate police aid and gives a description of his assailant, or when a credible informant warns of a specific impending crime—the subtleties of the hearsay rule should not thwart an appropriate police response.156
The Court in Adams concluded that reasonable suspicion can be based upon information supplied by another person, provided the information carries sufficient “indicia of reliability.”157
The Supreme Court returned to this issue in Alabama v. White.158 There it made it clear that the “veracity” of an informant, the “reliability” of his information, and his “basis of knowledge”—all of which are highly relevant in determining the existence of probable cause159 —also are relevant in the “reasonable suspicion” context.160Nevertheless, it stated that “allowance must be made in applying [these factors] for the lesser showing required to meet that standard.”161 It explained:
Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause … . Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors—quantity and quality—are considered in the “totality of the circumstances—the whole picture,” … that must be taken into account when evaluating whether there is reasonable suspicion. Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.162
What constitutes sufficient “indicia of reliability” to allow a police officer to rely upon information supplied by another person differs depending upon the source of the information.163 With respect to information supplied by a typical police informant, that is, one who is closely associated with criminal activity and who supplies information in exchange for payment or concessions from the authorities, sufficient “indicia of reliability” clearly are present when:
1) the informant obtained his information through the firsthand use of his senses (or the information contains sufficient details to allow the inference that he did so); and
2) the informant provided information on previous occasions that proved to be accurate, or, alternatively, the information itself contains some guarantee of trustworthiness (for example, a declaration against penal interest) or the police partially corroborate the information through observation of suspicious facts.
Thus, in United States v. Hensley,164 the Supreme Court held that the wealth of detail revealed by an informant concerning an armed robbery, together with her admission of tangential participation in the robbery, “carried enough indicia of reliability” to justify an investigatory stop of the individual the informant said drove the getaway car in the robbery.165
Unfortunately, such a strong showing of reliability is not essential.
In Adams v. Williams166 the Supreme Court held that the informant’s tip that an individual seated in a nearby automobile was carrying narcotics and had a gun at his waist contained sufficient “indicia of reliability” to justify an investigatory stop of that individual. In reaching this result, the Court noted that the informant was personally known to the police officer and had provided him information in the past; the informant personally came forward to give information that was immediately verifiable at the scene; and, under state law, the informant might have been subject to immediate arrest for making a false complaint had the officer’s investigation proved the tip incorrect.167
However, even if the informant in Adams could be considered credible,168 there was no showing that he obtained his information in a reliable manner, as opposed to, for example, overhearing an offhand remark in a neighborhood bar.169 Given the result in Adams, it is not surprising that lower courts have been quite willing to find sufficient “indicia of reliability” in an informant’s tip where a credible informant reported information in a conclusory manner without stating how he had obtained his information or reached his conclusions.170
The Supreme Court pointed out in Adams that a case involving a tip from a known informant is “a stronger case than obtains in the case of an anonymous telephone tip,”171 thereby indicating that a tip from an anonymous informant might not be sufficient to justify an investigatory stop.172
Subsequently,
in Alabama v. White,173 the Court concluded that the anonymous telephone tip received by the police in that case did not, by itself, contain sufficient “indicia of reliability” to provide reasonable suspicion for an investigatory stop.174 Indeed, the Court stated that “an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.”175 Nevertheless, the Court recognized that there are circumstances in which an anonymous tip, if suitably corroborated by the police through independent investigation, can exhibit “sufficient indicia of reliability to provide reasonable suspicion to make an investigatory stop.”176 White, it concluded, was such a case.177 The Court reached this result even though the facts corroborated by the police were innocent ones, rather than facts raising a suspicion of criminal activity.
The facts in White indicate just how little is needed to justify an investigatory stop. In that case an anonymous telephone caller told the police that a woman named Vanessa White would be leaving a certain unit in an apartment complex at a particular time in a described automobile, that she would be going to a particular motel, and that she would be in possession of about an ounce of cocaine inside a brown attaché case.
Acting upon this tip, two police officers went to the designated apartment complex, where they observed a woman leave the specified building, carrying nothing in her hands, and enter the described vehicle. The officers followed her as she drove the most direct route to the named motel. When she reached the highway on which the motel was located, they had a patrol vehicle stop her and then obtained her consent to search her car and a brown attaché case they found therein. Although the Supreme Court acknowledged that the police did not corroborate every detail mentioned by the tipster, it stressed the caller’s ability to predict the woman’s future conduct, reasoning that “[b]ecause only a small number of people are generally privy to an individual’s itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual’s illegal activities.”178
In contrast to White,
the Supreme Court held in Florida v. J.L.179 that an anonymous tip that a person is carrying a gun is not sufficient to justify a police officer’s stop and frisk of that person, even though the police corroborate the tipster’s description of the suspect and his location.180
The Court in J.L. distinguished White on the basis that the anonymous call concerning J.L., unlike the one concerning Vanessa White, “provided no predictive information and therefore left the police without the means to test the informant’s knowledge or credibility.”181 With respect to the corroboration of the tipster’s description of the suspect and his location, the Court stated:
An accurate description of a subject’s readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, 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.182
In addition,
the Court in J.L. refused to adopt a “firearm exception” to the standard Terry reasonable suspicion analysis, under which a tip alleging that a person was illegally carrying a gun would justify a police officer’s stop and frisk of that person even in the absence of sufficient indicia of reliability.183 The Court recognized that armed criminals pose a serious threat to public safety, but concluded that the standard Terry rule allowing protective police searches on the basis of reasonable suspicion responds to that concern.184 Moreover, the Court believed that an automatic firearm exception to established reliability analysis would “rove too far,”185 and enable anyone seeking to harass another person to set in motion an intrusive, embarrassing police search of that person merely by placing an anonymous telephone call to the police falsely reporting that the person in question is unlawfully carrying a gun.186
As to information supplied by the victim of a crime, Adams indicates that such information usually possesses enough “indicia of reliability” to be relied upon in determining the existence of reasonable suspicion to make an investigatory stop.187
The same is true when the information comes from an individual who has witnessed a crime or observed suspicious activity.188 The concerns raised about the reliability of police informants are not present when the police are dealing with a “citizen” informant, who normally is motivated by good citizenship and civic duty, rather than by payments or concessions from the authorities.189 Consequently, in the absence of any apparent motive to fabricate, such citizen informants are presumed to be reliable.190
This is true even when the exigencies of the situation are such that the police fail to ascertain the identity and background of the informant.191 Moreover, citizen informants typically are not passing along idle rumor or repeating an offhand remark overheard in a neighborhood bar, for they either have been the victims of the crime or have witnessed criminal or suspicious activity.192
Nevertheless, a police officer should not be permitted to rely solely upon a citizen informant’s tip that merely states a conclusion unsupported by a sufficient factual basis.193
Moreover, in order to justify an investigatory stop of an individual, the quantum of facts provided to the police by the victim or witness, when considered with the officer’s own observations and inferences based upon his training and experience, must give rise to a reasonable suspicion of criminal activity by that individual.194
Following these precedents, therefore, it is not entirely unexpected that the Supreme Court would hold, in Navarette v. California,195 that an anonymous and uncorroborated tip regarding a possibly intoxicated driver provided the reasonable suspicion necessary to justify an investigative traffic stop.
In Navarette, a 911 dispatch team for the California Highway Patrol (CHP) received a call from another CHP dispatcher in a neighboring county who relayed a tip from a 911 caller, which the was recorded as follows: “ ‘Showing southbound Highway 1 at mile marker 88, Silver Ford 150 pickup. Plate of 8-David-94925. Ran the reporting party off the roadway and was last seen approximately five [minutes] ago.’ ”196 The county team then broadcast that information to CHP officers. The identity, location, phone number, or any identifying information of the 911 caller was unknown to the CHP.197
A CHP officer heading northbound toward the reported vehicle responded to the broadcast. The officer followed the truck for about five minutes, during which time he observed no indication of impairment. The truck had committed no traffic violations; however, he decided to conduct an investigative stop and pulled the truck over. A second officer, who had separately responded to the broadcast, also arrived on the scene. As the two officers approached the truck, they smelled marijuana. A search of the truck bed revealed 30 pounds of marijuana. The officers arrested the driver, petitioner Lorenzo Prado Navarette, and the passenger, petitioner José Prado Navarette. Petitioners moved to suppress the stop of the vehicle because the officer lacked reasonable suspicion of criminal activity.
The magistrate and the Superior Court upheld the stop. The California Court of Appeal reasoned that the content of the tip indicated that it came from an eyewitness victim of reckless driving, and that the officer’s corroboration of the truck’s description, location, and direction established that the tip was reliable and that the caller reported driving that was sufficiently dangerous to merit an investigative stop without waiting for the officer to observe additional reckless driving himself.198 The California Supreme Court denied review. The Supreme Court granted certiorari and affirmed.
Justice Thomas delivered the majority opinion of the 5-4 divided Court. The majority cited two previous anonymous-informant cases, Alabama v. White199 and Illinois v. Gates,200 as “guides” for determining whether the anonymous source in this case provided the sort of “especially trustworthy” information upon which the Court had privileged law enforcement to act in other cases as opposed to cases in which “truly anonymous” informants who can never be held accountable for being wrong, or malicious, had been rejected by the Court in Florida v. J.L.201
In White, an anonymous tipster told the police that a woman would drive from a particular apartment building to a particular motel in a brown Plymouth station wagon with a broken right tail light. The Court held that the officers’ corroboration of certain details of innocent activity made the anonymous tip sufficiently reliable to create reasonable suspicion of criminal activity.202 By accurately predicting future behavior, the tipster demonstrated “a special familiarity with respondent’s affairs,” which in turn implied that the tipster had “access to reliable information about that individual’s illegal activities.”203 The Court also recognized that an informant who is proved to tell the truth about some things is more likely to tell the truth about other things, “including the claim that the object of the tip is engaged in criminal activity.”204
In J.L., by contrast, the Court determined that no reasonable suspicion arose from an anonymous tip that a young black male in a plaid shirt standing at a bus stop was carrying a gun.205 The tipster did not explain how he knew about the gun, nor did he suggest that he had any special familiarity with the young man’s affairs. As a result, police had no basis for believing “that the tipster ha[d] knowledge of concealed criminal activity.” Furthermore, the tip included no predictions of future behavior that could be corroborated to assess the tipster’s credibility.206 The Court accordingly concluded that the tip was insufficiently reliable to justify a stop and frisk.207
The majority conceded that the principled distinction between the two sets of facts in White and Florida v. J.L. is difficult to discern. But in this case, the Court reasoned, the caller provided enough substantiated detail to be assumed reliable. Not only was the tip assumed reliable, but, standing alone, it provided reasonable suspicion of drunk driving. That reasonable suspicion was not dispelled by the officers’ own observations.208
Even in White, where we upheld the stop, there was scant evidence that the tipster had actually observed cocaine in the station wagon. We called White a “ ‘close case’ ” because “[k]nowledge about 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.” 529 U.S., at 271. A driver’s claim that another vehicle ran her off the road, however, necessarily implies that the informant knows the other car was driven dangerously
…
Even a reliable tip will justify an investigative stop only if it creates reasonable suspicion that “criminal activity may be afoot.” Terry, 392 U.S., at 30. We must therefore determine whether the 911 caller’s report of being run off the roadway created reasonable suspicion of an ongoing crime such as drunk driving as opposed to an isolated episode of past recklessness. See Cortez, 449 U.S., at 417 (“An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity”). We conclude that the behavior alleged by the 911 caller, “viewed from the standpoint of an objectively reasonable police officer, amount[s] to reasonable suspicion” of drunk driving. Ornelas v. United States, 517 U.S. 690, 696 (1996). The stop was therefore proper.209
The majority also conceded that, like White, this was a “close case.” The indicia of the 911 caller’s reliability are stronger than those in J.L., where the Court held that a bare-bones tip was unreliable, but different from those the Court found sufficient in White.210 However, there is more than one way to demonstrate “a particularized and objective basis for suspecting the particular person stopped of criminal activity.”211 Justice Thomas found that the caller’s use of the 911 system and her claim that the other vehicle ran her off the road were relevant in determining the veracity of the tip. Under the totality of the circumstances, therefore, the indicia of reliability in this case was sufficient to provide the officer with reasonable suspicion that the driver of the reported vehicle had run another vehicle off the road, making it reasonable under the circumstances for the officer to execute a traffic stop.212
The dissent by Justice Scalia, with whom Justices Ginsburg, Sotomayor, and Kagan joined, acknowledged that, with the facts of case viewed in the context of state drunk-driving, relaxed probable-cause standards may not seem to be a departure from existing precedent. However, they saw the case in stark Fourth Amendment terms eliminating the necessity of corroboration of anonymous informants who, without such corroboration, are free to “lie with impunity,” as has been pointed out by prior opinions of the Court, although it purported to adhere to prior cases.213
Justice Scalia noted that the CHP knew nothing about the tipster, on whose word—and that alone—they seized Lorenzo and José Prado Navarette. They did not know the tipster’s name, her phone number, address, or where she called from.214
The tipster said the truck had “[run her] off the roadway,” id., at 36a, but the police had no reason to credit that charge and many reasons to doubt it, beginning with the peculiar fact that the accusation was anonymous. “[E]liminating accountability … is ordinarily the very purpose of anonymity.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 385 (1995) (Scalia, J., dissenting). The unnamed tipster “can lie with impunity,” J. L., supra, at 275 (Kennedy, J., concurring). Anonymity is especially suspicious with respect to the call that is the subject of the present case. When does a victim complain to the police about an arguably criminal act (running the victim off the road) without giving his identity, so that he can accuse and testify when the culprit is caught?215
Justice Scalia’s dissent examined step by step each bit of information provided by the 911 caller and held each to the standard with which the Court purports to apply, i.e., whether the “content of information possessed by police and its degree of reliability”216 gave the officers reasonable suspicion that the driver of the truck (Lorenzo) was committing an ongoing crime. When the only source of the government’s information is an informant’s tip, the Court asks whether the tip bears sufficient “indicia of reliability”217 to establish “a particularized and objective basis for suspecting the particular person stopped of criminal activity.”218
As compared to White, the tipster was right about the fact that a silver Ford F-150 truck (license plate 8D94925) was traveling south on Highway 1 somewhere near mile marker 88. But, Justice Scalia reasoned, anyone who saw the car would have that knowledge; anyone who wanted the police to stop the car would have to provide that information. The claim to “eyewitness knowledge” of being run off the road supports not at all its veracity; nor does the prediction (far short of what existed in White) that the petitioners’ truck would be heading south on Highway 1.219
Justice Scalia also rejected the Court conflating the corroboration of police locating the truck/person that the informant meant to accuse from corroboration that the informant “was telling the truth” when the tipster alleged she had been run off the road. Driving while being a careless or reckless person, he argued, unlike driving while being a drunk person, is not an ongoing crime.220 In other words, in order to stop the driver, the officers not only had to assume, without basis, the accuracy of the anonymous accusation but also had to posit an unlikely reason (drunkenness) for the accused behavior. In sum, at the moment the police spotted the truck, it was more than merely “possib[le]” that the petitioners were not committing an ongoing traffic crime.221
It was overwhelmingly likely that they were not. Moreover, good police work following the car for five minutes confirmed there was no traffic violations taking place which would give rise to reasonable articulable suspicion or probable case, Whren v. United States.222 Justice Scalia thus framed the Fourth Amendment issues at stake:
The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity:
(1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and
(2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunkenness.
All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police.
If the driver turns out not to be drunk (which will almost always be the case), the caller need fear no consequences, even if 911 knows his identity.
After all, he never alleged drunkenness, but merely called in a traffic violation—and on that point his word is as good as his victim’s.
Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving.223
A police officer is entitled to rely upon information or directions received directly from a fellow officer224 or through police communication channels, such as a radio dispatch,225 a “wanted flyer” or bulletin,226 or a briefing at the stationhouse.227 A stop based upon such information or directions will be valid so long as the facts and circumstances within the collective knowledge of the police amount to reasonable suspicion to stop the particular individual.228
However, if it turns out that the police, as a whole, lacked reasonable suspicion, then a stop in reliance upon such information or directions violates the Fourth Amendment.229
The same principles apply when an officer from one police department makes an investigatory stop on the basis of information or directions—including a “wanted flyer” or bulletin230 —received from another police department.231
Finally, a reasonable mistake of law also provides reasonable suspicion to justify a vehicle stop under the Fourth Amendment.
In Heien v. North Carolina,232 the Court focused on whether the Fourth Amendment prohibition of “unreasonable searches and seizures,” which permits reasonable mistakes of both fact and law,233 can give rise to the reasonable suspicion necessary to uphold a seizure under the Fourth Amendment, and held that it does.
A sergeant observing traffic noticed a vehicle passing by on the interstate highway and thought the driver looked “very stiff and nervous,”234 but was not committing any traffic violations. The sergeant pulled onto the interstate and began following the vehicle. A few miles down the road, the vehicle braked as it approached a slower vehicle, but only the left brake light came on. Noting the faulty right brake light, the sergeant pulled over the vehicle.
Two men were in the car: the driver Vasquez, and a passenger Heien in the back seat. The sergeant found nothing amiss with the car’s documentation and issued the driver a warning ticket. During the course of the stop, however, the sergeant became suspicious of the occupants and asked if he could search the car. The driver did not object but said Heien owned the car. Heien also gave his consent. The sergeant and a fellow officer found drug contraband in the side pocket of a duffel bag found in the car and arrested both men.235
Heien moved to suppress the evidence seized from the car, contending that the stop and search violated the Fourth Amendment. The trial court denied the suppression motion, concluding that the faulty brake light had given the sergeant reasonable suspicion to initiate the stop, and that Heien’s subsequent consent to the search was valid. Heien pleaded guilty but reserved his right to appeal the suppression decision.236
The North Carolina Court of Appeals reversed,237 holding that the initial stop was not valid because driving with only one working brake light was not actually a violation of N.C. Gen. Stat. Ann. § 20-129(g).238 The state supreme court reversed the Court of Appeals,239 concluding that the sergeant “could have reasonably, even if mistakenly, read the vehicle code to require that both brake lights be in good working order.”240 The court found that the sergeant’s mistaken understanding of the vehicle code was reasonable; therefore, the stop was valid. “An officer may make a mistake, including a mistake of law, yet still act reasonably under the circumstances. … [W]hen an officer acts reasonably under the circumstances, he is not violating the Fourth Amendment.”241 On remand, the court of appeals affirmed the suppression and the state supreme court affirmed.242
As the Court has repeatedly stated in its Fourth Amendment cases, “the ultimate touchstone of the Fourth Amendment is reasonableness.”243
Reasonableness need not be perfect and allows for government officials’ mistakes and leeway to enforce the law.244
The cases cited by the majority to support the “mistake of law” analysis rely on late eighteenth century statutes enacted by Congress that authorized indemnification of customs agents for damages from unlawful customs seizure,245 despite acknowledging that these “older precedents … dating back two centuries … are not directly on point.”246
In Riddle, Justice Marshall was not construing the Fourth Amendment but was nevertheless explaining the concept of probable cause.247Courts were to issue certificates of probable cause on a showing that the officer had “reasonable cause”—a synonym for “probable cause”—for the challenged seizure.248
However, the majority opinion did look to “a much more recent precedent,”249Michigan v. DeFillippo,250 a twentieth century case in which an officer made a good faith arrest under a Detroit ordinance requiring a person to identify himself and produce evidence of his identity.
The ordinance was struck down as unconstitutional only after the arrest but was presumptively valid at the time of the arrest, an important factual distinction that the Court dispensed with.
The DeFillippo Court held that the results of the pat down search following the good faith arrest under the unconstitutional statute could be used to prosecute DeFillippo for a drug offense.
The majority characterized the DeFillippo case as a “mistake of law” precursor to this case, rejecting the implication that the basis for that decision was the exclusionary rule and not probable cause.251
It conceded to Justice Sotomayor’s dissenting point that all of the cases in which “reasonableness” was at issue, at least since the nineteenth century, were cases involving “mistakes of fact.”252 DeFillippo actually was not a case implicating an officer’s legal error based on a presumptively-valid law but the legislature’s failure in enacting an unconstitutional statute.
The dissent pointed out that, in contrast, the offense for which Heien was stopped “never actually existed;” thus, “no law ever actually criminalized Heien’s conduct.”253
The thin precedent the majority relied upon depends upon argument from negative implication because, “none of the cases Heien or the dissent cites precludes a court from considering a reasonable mistake of law in addressing that question.”254Because of the ambiguity in the North Carolina statutes in question,255 the majority had “little difficulty” holding that the officer was reasonable, in this mistake of law, in concluding there was probable cause.256
The concurrence by Justice Kagan, with whom Justice Ginsburg joined, is an extremely important addition to the majority opinion because of its emphasis on the reasonable suspicion needed to stop a vehicle under the Fourth Amendment. Justice Kagan elaborated on the important limitations of the reasonable mistake of law.257
[T]he Court correctly emphasizes that the “Fourth Amendment tolerates only … objectively reasonable” mistakes of law. And the Court makes clear that the inquiry into whether an officer’s mistake of law counts as objectively reasonable “is not as forgiving as the one employed in the distinct context of deciding whether an officer is entitled to qualified immunity.”
First, an officer’s “subjective understanding” is irrelevant: As the Court notes, “[w]e do not examine” it at all. That means the government cannot defend an officer’s mistaken legal interpretation on the ground that the officer was unaware of or untrained in the law. And it means that, contrary to the dissenting opinion in the court below, an officer’s reliance on “an incorrect memo or training program from the police department” makes no difference to the analysis. 366 N.C. 271, 284, 737 S.E.2d 351, 360 (2012) (Hudson, J., dissenting).
Second, the inquiry the Court permits today is more demanding than the one courts undertake before awarding qualified immunity … Our modern qualified immunity doctrine protects “all but the plainly incompetent or those who knowingly violate the law.” Ashcroft v. al-Kidd, 563 U. S. ___, ___ (2011) (slip op., at 12) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). By contrast, Justice Story’s opinion in The Friendship, 9 F. Cas. 825, 826 (No. 5,125) (CC Mass. 1812), suggests … [T]he test is satisfied when the law at issue is “so doubtful in construction” that a reasonable judge could agree with the officer’s view. The Friendship, 9 F. Cas., at 826.
A court tasked with deciding whether an officer’s mistake of law can support a seizure thus faces a straightforward question of statutory construction. If the statute is genuinely ambiguous, such that overturning the officer’s judgment requires hard interpretive work, then the officer has made a reasonable mistake. But if not, not.
… And indeed, both North Carolina and the Solicitor General agreed that such cases will be “exceedingly rare.” Brief for Respondent 17; Tr. of Oral Arg. 48.
Justice Sotomayor in dissent accepted the proposition that “the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’ ”258 but argued that determining whether a search or seizure is reasonable requires evaluating an officer’s understanding of the facts against the actual state of the law, without room for the officer’s reasonable interpretation of the law.259 “What matters are the facts as viewed by an objectively reasonable officer, and the rule of law—not an officer’s conception of the rule of law, and not even an officer’s reasonable misunderstanding about the law, but the law.”260
According to Justice Sotomayor, officers have leeway in making probable-cause determinations focused on their assessments of facts because of the recognition that officers are generally in a superior position, relative to courts, to evaluate those facts and their significance as they unfold.261 Officers’ factual assessments are rooted in recognition that police officers operating in the field have to make quick decisions, “but also … that police officers have the expertise to ‘dra[w] inferences and mak[e] deductions … that might well elude an untrained person.’ [But this does not apply to] the law[, which] is not probabilistic in the same way that factual determinations are.”262 “Rather, ‘the notion that the law is definite and knowable’ sits at the foundation of our legal system. And it is courts, not officers, that are in the best position to interpret the laws.”263
Justice Sotomayor provided a critique of the precedential underpinnings of the majority opinion, pointing out that all of the nineteenth century cases cited, based on Congressional customs statutes, were understood at the time to be examples of statutory construction, not constitutional principles.264 She also described the absence of precedential support in the twentieth century cases for the “mistake of law” analysis adopted by the majority. Her argument is persuasive and reinforces the importance of the limiting principles emphasized by Justice Kagan in her concurring opinion, which attempts to hold the majority to its stated principle that “mistake of law” must be “objectively reasonable” and applied rarely.
Without these limits, Justice Sotomayor’s concerns that Fourth Amendment “reasonableness” protections could be sacrificed to the mercy of law enforcement’s “best guesses” of what the law “might be … or not” will be realized, and law enforcement, rather than legislatures or the judiciary, by default, will be in a position to call the tune.
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