Anonymous Tips -- Can they create reasonable suspicion to stop?

When anonymous informants cannot create reasonable suspicion

Generally, anonymous tips cannot provide reasonable suspicion to stop a suspect because the tipster is not accountable for the information provided. (*But see below)


For example, in FLORIDA V JL an anonymous caller told police that a black man on a certain corner wearing a plaid shirt had a gun. Officers saw the man matching the description, stopped him, patted him down and found the weapon.


The United States Supreme Court held that the anonymous caller did not create reasonable suspicion for the stop in that the informant was not accountable for any of the information given. Therefore the weapon was suppressed. (* See Below.)


When anonymous informants can give reasonable suspicion

In one of the most important 4th amendment decisions ever, the United States Supreme Court held that an anonymous tip does create reasonable suspicion to stop if the tip predicts the movement of the suspect. The Court reasoned that anonymous tipsters are more reliable if they can foretell the movements of the suspect to be stopped.

The salient facts of the case were this -- an anonymous caller told police that a woman, White, would leave her home with a briefcase. She would get into her car and would drive to a certain motel where she would exchange drugs -- in her briefcase -- for money.

A couple of problems for the police here were that the police had no criminal record on the woman -- and she did not have the briefcase in her hand when she got into her car -- so really no crime-related corroboration at all.

The officers followed White as she drove toward the motel, then stopped her.

They asked to search the briefcase (which was already in the car when she entered it earlier). She consented to the search -- and the officers found the drugs.

The question in the case was -- did the officers have reasonable suspicion to stop the car in the first place? The Court's answer is above. (ALABAMA V WHITE)

* IMPORTANT TIP -- The Court implied that even in those cases where the anonymous tipster does not predict movement, the stop will be upheld if the officers would have just saved the tape of the call.

** ANOTHER IMPORTANT TIP -- AND -- Advice to the wise -- always save the tape (whether the tip predicts movement or not). That way you never have to worry about a defense attorney calling you a liar on the witness stand -- i.e. saying you never got a call at all -- and that you are just making up the tip.

Vehicles - Is it a "search" at all

Q: Under what circumstances do courts rule that officers "search" a vehicle?


A. Only when officers enter the vehicle.


So consider this recent case -- and try to figure out if the officer entered an area where the defendant had a reasonable expectation of privacy.

A witness, at around midnight, saw a red Mitsubishi 3000 GT two-door sports coupe going about 80 mph in Tempe. The witness then heard a thud and saw something (a body) fly through the air. The witness then realized that the car had hit a person and killed him.

An officer began to look around the neighborhood. The officer saw a two-door red sport coupe covered by a tarp (except for the bottom 12-15 inches). The officer also noticed that the seat belt was hanging out the door. The officer peeled back the cover on the front of the car and noticed extensive damage.

The issue in the case was -- did the officer conduct a search by looking under the tarp?

The trial court ruled that the officer, indeed, DID conduct a search -- and since the officer did not have probable cause -- the court suppressed the evidence.

The Arizona Court of Appeals ruled that simply pulling back a tarp is not a search. Therefore the evidence was admissible. The court reasoned that the USSC has held that taking paint chips from a vehicle that had recently been in an accident was a "search" (CARDWELL V LEWIS)

-- so why should it be a search to lift a tarp -- which is probably less intrusive than removing paint chips?

In my opinion this is a very close case. so if the supreme court takes the case, don't be surprised if the supreme court reverses the court of appeals.

But at least this fits my model -- it's almost impossible to "search" a vehicle unless you enter it.

You can read lots more about vehicle searches in my legal source book.

The Emergency and Exigency Doctrines - What is the Relationship?

Question:
How does the emergency doctrine work with hot pursuit? If an Officer thinks someone has committed a misd. by being in a bar underage. He calls out for the person to stop and the person runs. The Officer gives chase and ultimately loses the person. 30 min. go by and two other Officers who have the descrip. of the person see a possible matchseveral blocks away from the first foot chase. They call out to stop and ID themselves. This second person runs to the back of a house and goes in. The Officers are close behind, they go in and find the person (a Juvenile) they also find him under the influence of alcohol and cannibis. They place him under arrest. They cite and release him to his mother at the Station. The first pursuing Officers are reasonably sure the person the second set of Officers have is not the same person who fled from them. How do we stand on the seizure of the juvenile?

Answer:
The United States Supreme Court recently held that an emergency is simply a subset of the exigency doctrine (BRIGHAM CITY V STUART). An exigency is a circumstance that must be responded to immediately (so, obviously, the emrgency doctrines fits that description).

I like to separate the doctrines as they relate to searches of premises as the exigency doctrine has always seemed more to relate to probable cause -- but impractical to get a warrant.

Whereas, the emergency doctrine tends more toward trying to save or protect a life or property (no real strong crime related motive).

Anyway, your question goes more toward the exigency theory under my model --

I don't believe that it would be wise to follow the suspect into a home for a such a minor crime even if I knew absolutely that the kid was the person who had been involved in underaged drinking.

If you had asked me at the scene I would have advised that you cut the suspect loose -- and tell him:

• that you are giving him a break -- and
• to stop drinking and using drugs.
  

These are the kind of cases that you wait two years -- and then exhale.

The Emergency Doctrine

The emergency doctrine is a theory which generally trumps the 4th and 5th Amendments.

The emergency doctrine is precipitated by a situation where officers reasonably believe that they need to save or protect a life or protect or preserve property -- and that in order to do so they must do an act that would otherwise be a violation of citizen's 4th or 5th Amendment rights.

The emergy doctrine is some times characterized as "community caretaking" or "welfare checking" or maybe "rescue" doctrine.

A couple of examples:

1. A man is stepping off a curb and into the lane of an uncoming bus. An officer grabs the man and puls him to the curb safely. If a court held this to be a "seizure" at all, it would be a reasonable seizure under the emergency doctrine.

2. An officer sees a fire in a house. The officer (or fireman) enters the house and puts the fire out. The entry of the house is a search -- but a reasonable search under the 4th Amendment.

Some times the cases are not so clear -- but the courts are usually willing to bend over backward to permit the search or seizure if the officer was under the good faith belief that the search was seizure was necessary to protect life or property.

The 4th Amendment -- the United States Supreme Court
The United States Supreme Court ruled specifically on the emergency theory for the first time recently in a case called BRIGHAM CITY V STUART. In that case officers responded to a noisy party. When they knocked on the front door, no one answered; so the officers went to the back door.

When they arrived at the back door they could see a fight in the kitchen with fists flying and appliances moved by the bodies bouncing off of them. One guy was spitting blood into the sink.

The officers entered, broke up the fight -- and arrested residents.

The Utah courts ruled that the fight did not constitute an emergency -- and that the officers entry violated the residents' 4th Amendment rights.

The United States Supreme Court reversed ruling 9-0 that this was an emergency / exigency --and that the officers' entry of the home was reasonable.

The 5th Amendment -- The Rescue Doctrine
The issue has even arisen under the 5th Amendment. What if the suspect has buried the victim alive and the officers must violate his "Miranda" rights to find out where the victim is? (remember "Dirty Harry"?)

Most courts have adopted the "rescue doctrine" to enable the officers to forget the Miranda rights in order to save a life. But this doctrine is not used much and is not well defined.

(Obviously, Dirty Harry violated the suspect's 14th -- not 5th -- Amendment rights which would make the suspect's statement inadmissible everywhere -- except possibly Afghanistan. Had Harry violated only the suspect's 5th Amendment rights, I think the confession and the body would have been admissible).

IMO a life is virtually always more important than the 5th (or 4th) Amendment -- so if a life is at stake I would virtually always think first about the life at stake -- and next about constitutional rights -- period.

You can learn lots more about the emergency doctrine by reading my legal source book.

The Most Important Case Ever - 4th Amendment

The most important 4th Amendment -- and Section 1983 -- case ever?
IMO -- That's easy -- Graham v Connor.

The Facts
The salient facts of this case are easy too. Officers are watching a convenience store -- probably thinking it is going to get robbed. A guy drives up to the store, the passenger, Graham, gets out of the car and goes into the store. A couple minutes later, Graham runs out of the store, gets back into the car, and they speed away.

The officers stop the suspects' car. Graham gets out of the car walks around the car and sits on the curb while mumbling incoherently.

One officer, Connor, thinking that Graham is drunk or on drugs, handcuffs Graham and bops his head off the hood of the patrol car while telling him to shut up.

Officers then check with the convenience store to find out what was stolen in the robbery -- only to find out there was no robbery at all.

The reason why Graham was acting in such a bizarre manner was that he was diabetic and was in great need of sugar. He went in to the store only to see that the line was too long. So he ran out and told the driver to hurry to a friend's house to get some orange juice. It was at that point that the police stopped the car.

Graham sues Connor and the case eventually goes up to the United States Supreme Court, the issue being excessive force -- in a non-deadly force circumstance.

The Law
Prior to this case the courts handle "excessive force" cases primarily under principles of common law tort with all of the concomitant rules and theories --i.e. what was the mental state of the officer? was the officer the proximate cause? were the injuries forseeable? etc., etc.

In this case the United States Supreme Court decided to change all the rules by spelling out explicitly what the Court had stated implicitly in Tennessee v Garner (the deadly force case).

The Court ruled that from that moment on all "excessive force" cases would be decided under 4th Amendment (Constitutional) rules -- not common law tort rules.

In effect, this means that officers must use "reasonable force" during stops and arrests in the same sense spelled out in suppression motions and other motions under the 4th Amendment.

This case made it much more important to understand the 4th Amendment than ever before because all of a sudden excessive force became a 4th Amendment issue.

As an aside --presently, an officer can be sued for ANY 4th Amendment violation under Section 1983.

So the moral is to learn what you can -- and cannot -- do under the 4th Amendment.

You can learn lots more about this case by reading my legal source book.

Searching Vehicles -- Under the Search Incident to Arrest Doctrine

Depending on how you count them, there are about ten (10) theories or doctrines which permit you to search vehicles. Each one has a different when where and why. The one I am going to discuss here is the "search incident to arrest" doctrine.

The general reasoning, or rationale, for the search incident to arrest doctrine is that an arrestee can "lunge" to a weapon or destroy evidence contemporaneous with (at the same time as) the arrest.

This type of search has been around long before the Constitution.

Unfortunately, as the search relates to vehicles, it has been hard for courts to apply.

In the 70's, courts usually permitted officers to search vehicles under this doctrine only when the arrestee had not yet been handcuffed and was still near the vehicle.

Officers, in order to "game" the system would have other officers stand near the arrestee while some officers searched the vehicle -- in order to comply with rules of the search incident doctrine. The whole approach started to become a bit ridiculous and farcical.

Then in the early 80's the United States Supreme Court ruled that it was better to just create a "bright-line" rule for officers. That bright-line rule was simply that officers may always search the passenger compartment of vehicles incident to a valid custodial arrest (New York v Belton).

Since that decison, almost every court in the country has assumed that officers may handcuff the arrestee -- and place the arrestee in the back of the patrol car prior to the search. Unfortunately, last year one United States Supreme Court Justice (Scalia) stated in one case -- how can it be a search incident to arrest when the arrestee cannot possibly get to the passenger compartment to destroy evidence or obtain a weapon (Thornton v United States)? Since Scalia is a very influential CONSERVATIVE member of the Court, his opinion sort of sent shock waves through the system (as obviously most liberal members of the court probably feel this way).

Now the "other shoe" has dropped -- The Arizona Supreme Court ruled recently that basically officers may NOT search a vehicle under the search incident doctrine once the arrestee has been secured (State v Gant). This holding means, in effect, that officers will be required generally to go back to the 70's approach of allowing arrestees to remain near the vehicle until the officers search it.

Arizona intends to appeal the case to the United States Supreme Court. If the Court accepts the case, the decison will have an enormous impact on law enforcement throughout the country. It will be a very close case, I think -- probably a 5-4 one way or the other. I predict that the Court will affirm the Arizona decision -- and that the rule by the end of next year will be that officers may no longer place arrestees in the patrol car and then search the vehicle.

As an aside, obviously, if one of the other nine search doctrines or theories apply to the search of the vehicle. officers will still be able to search the vehicle under the rules of one or more of those theories. But I predict that the search incident theory will soon be severely restricted if the United States Supreme Court takes the Gant case and rules on it.

Presently, officers in Illinois and Texas may, of course, continue to search the passenger compartment even if though the arrestee is in the back seat of the patrol car (until the United States Supreme Court rules otherwise).

However, Arizona officers normally may search the passenger compartment only if the arrestee (or possibly other occupant) is within lunging distance of the vehicle, uless the United States Supreme Court rules otherwise.

You can learn lots more about the search incident to arrest doctrine as it relates to the search of vehicles in my legal source book.

10 Biggest Myths About the 4th Amendment

Common MYTHS about the 4th Amendment*

1. Officers may take suspects to the station to question them without probable cause. These “investigative detentions” are constitutional as long as the suspect is given his Miranda rights and taken to a judge within the period required by the rules of criminal procedure.

(For example, more murderers are getting off by officers who are basically taking suspects into custody without probable cause than all other suppression issues combined, IMO, so if you take murderers to the station on less than PC, be very careful.)

2. Officers may search (only) those areas within the arrestee's reach at the time of the arrest after the arrest of an occupant of a vehicle.

(Under BELTON, officers may always search the passenger compartment and closed containers therein.) (Caveat -- In Arizona, the Supreme Court just held in State v Gant that once the arrestee is secure the passenger compartment can no longer be searched as there is no danger then that the arrestee can get a weapon from the vehicle or destroy and evidence.)

3. Officers must get a search warrant to search a vehicle when they have probable cause to believe it contains crime-related evidence.

(Normally unless the vehicle is on the suspect's premises, officers may search a vehicle on probable cause alone.)

4. An inventory of a vehicle is not a "search."

(Virtually every court in the country for the past 30 years have agreed that an inventory of a vehicle IS a search. Therefore officers must follow the constitutional rules related to inventory searches.)

5. Officers may always search the entire vehicle – including the trunk --during a "felony stop" in order to “clear” the vehicle.

(If the felony stop is only reasonable suspicion -- officers may not search (clear) the trunk without probable cause to believe it contains crime-related evidence or the officers obtain consent (or the inventory theory applies).

6. Once officers are in a house which is a crime / homicide scene, they need not get a warrant as long as they don’t leave the scene.

(If a defendant has a reasonable expectation of privacy in the home, officers must obtain a warrant or consent when the exigency is over. The fact that a homicide occurred, only allows the officers to search during the period of the exigency.)

7. An officer may arrest a suspect if the suspect refuses to give the officer identification during a Terry stop. Also, if a Terry suspect will not, or cannot, provide verifiable identification, the suspect may be taken to the station for fingerprinting.

(Your state must have a statute which permits you to arrest for failure to identify during a TERRY stop. For example, Arizona has such a statute; Illinois does not.)

8. An officer may never stop / seize a suspect based on an anonymous tip (alone).

(Normally, an officer may TERRY stop a suspect when the anonymous tip can PREDICT THE MOVEMENTS of the suspect for whom an officer has been told the suspect has crime-related evidence -- usually drugs [See e.g. ALABAMA V WHITE]. Also, most courts rule that if the officer saves the tape of the anonymous call, the officer can use the message as reasonable suspicion if the caller says the suspect has crime-related evidence [the USSC in FLORIDA V JL implied originally that if the officers would have saved the taped the stop would have been good. Most courts now agree with that.)

9. An officer who conducts a lawful stop (based on reasonable suspicion to believe the suspect committed a crime, may conduct a Terry search (that is, “stop’n’frisk” is one word).

(An officer must have reasonable suspicion to believe that the suspect has a weapon in order to search him / her.)

10. Probable cause means an officer must have suspicion / evidence which satisfies the “more-than-likely” test. In other words, it must be more than likely that the suspect committed the crime / or that the evidence is in the place searched to constitute probable cause.

(The USSC on several occasions has said that the test is not the "more-than-likely test -- and virutally every court in the country agrees.)

* Important myth -- There are 100% rules in constitutional law.

PS All of the above are elaborated upon extensively in the books Illinois, Texas and Arizona Officers Legal source Books.

You can learn a lot more about these issues in my legal source book.

Legislation -- Arresting TERRY Suspects Who Refuse to Identify

Presently the HIIBEL case says, in effect, that have the constitutional POWER to get TERRY suspects' names. In other words, a TERRY suspect has no RIGHT to refuse to give you his name during a lawful stop.

However, since HIIBEL was decided by the United States Supreme Court, we have attempted on several occasions to get legislation passed to make it a CRIME to refuse to give a name during a TERRY stop.

Unfortunately, we been unable to get the legislation passed.

The Black Coalition and the Bar Association have thwarted efforts to pass the legislation arguing that the law will just be used by police to harass blacks and othe minority groups.

The impact of the refusal to pass this legislation is that if you, as an officer, see a suspect in an alley at midnight with a televison set, you can ask him for his name -- but if he won't give it to you, there is nothing you can do about it!

You cannot take such suspects to the station to fingerprint them. That is unconstitutional. (If you have a fingerprint kit, you can fingerprint them there at the scene -- if they will let you.)

So -- here is my very strong suggestion. Find out who your respresentatives are down in Springfield. And talk to them about voting for this legislation.

This legislation will soon be offered again this year in the House and Senate.

If you decide to do nothing, don't complain when the legislation is NOT passed again -- and you get screwed in court because you don't have this power -- that you should have.

Top 10 Testimonial Issues

THE 10 MOST IMPORTANT THINGS TO CONSIDER WHEN YOU TESTIFY

Most of the time it is the defense attorney who is going to try to destroy you on the witness stand. (Some times, however, prosecutors do it inadvertantly). So the following list of my top 10 testimonial problems goes mainly to defense attorney questioning.

Generally, defense attorneys get officers into a "funnel" by asking yes or no questions. If you have discussed the main issues with the prosecutor, you will know when you must be concerned about this.

If a defense attorney asks you to answer "yes" or "no" that is very important moment to know that you should reflect for a moment and then just start explaining. Usually answering "yes" or "no" will get you into the yes or no funnel, either of which will hurt you.

With that in mind, here are my top 10 Testimonial suggestions (in no particualar order).

1. Always ask the prosecutor this one question before you testify --
"What is the defense attorney going to ask me?" If the prosecutor doesn’t know, follow up with, "Where is my report weak?" If he /she still doesn’t know, tell the prosecutor that maybe he /she needs a continuance to get prepared.

2. Know the law related to the issues you are about to testify about.
Know the law. Make sure the prosecutor briefs you on the legal areas where you might be cross examined, especially those related to constitutional issues. The most common way that officers get impeached -- particularly during suppression hearing -- is when the defense attorney knows the law -- and the officer doesn't.

3. When asked whether you talked to the prosecutor about the case, say, "Yes."
If the prosecutor hasn’t discussed the case with you, he / she is incompetent. If the defense attorney follows up by asking, "what did the prosecutor say to you" -- you should answer, "He told me to tell the truth (the whole truth and nothing but the truth)." (Then smile -- you have just beaten the defense attorney at his own "game." It's great in front of a jury.)

4. The Mark Furhman dilemma – always tell the truth.
There are so many videos, audios, etc. around – don’t commit perjury. If a judge thinks you are engaging in "creative" testimony, you might well destroy not only your own credibility in that court forever, but also the credibility of every other officer in your department. (About the 4th time you testify that another guy got out of a car and drugs fell on the ground, you need to realize that your credibility is going to be seriously questioned.)

5. Do not constantly refer to your report. It makes you look unprepared.
You should know all of the relevant facts in the case and what your report says. Of course, you can refresh your memory once in awhile by looking at your report, but if you are aksed what your name is and you have to look at your report, you are either very nervous -- or you need to be better prepared.

6. Know when to be sure about a fact -- and when you don’t have to be.
Do not get caught testifying that you are certain about a fact that isn’t important. If you get into a debate with the defense attorney over the question of whether the incident occurred on a Tuesday or a Wednesday, you are in trouble. Usually, it is trick -- who cares? The problem is that if you are mistaken about a minor fact and are proved mistaken., the defense attorney on a big issue will ask, "Are you as sure about this as you were that the crime occurred on a Tuesday?" And the jury will know that you have been impeached.

7. Do not answer questions calling for an opinion, conclusion or speculation.
These questions are almost always tricks. You can’t win answering them.

8. Engage in creative policing – not creative report writing.
You can "change" the "facts" in the street by changing what you DO in the street.

9. Be sure that you know your prior testimony related to the case.
A defense attorney can exploit anything you testify to that’s different from what you said previous on the stand, in your reports, etc.

10. Know what testimony will / may cause a mistrial.
Mentioning that the defendant asserted his rights, mugshots, bad acts, asserting that defendant is guilty, etc. will make the judge – and the prosecutor – mad at you.

PS The "Testimony" Chapter of the Illinois Officers Legal Source Book is an important source of information on how to testify. If you really want to know how to testify, you should read that chapter.

You can learn lots more about testifying by reading the Testimony chapter in my legal source book.







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SCOTT V HARRIS (USSC 2007)

An officer chased a suspect at speeds exceeding 90 mph. The officer intentionally bumped the suspect's car. The suspect spun out of control, hit something and was rendered a quadripaglegic.

The suspect sued under Section 1983 arguing that the officer exerted deadly force against the suspect when he bumped him -- thereby violating the suspect's 4th Amendment rights.

The United States Supreme Court ruled that the bumping of the suspect's car was a seizure -- in fact deadly force as alleged by the suspect / plaintiff.

The Court held also that the deadly force was justified as the suspect represented a threat of serious bodily injury to everybody on the road.

Therefore the officer should have been granted summary judgment because there was no constitutional violation.

Note: Officers can still be sued under "common law" tort for chases at high speed -- so follow your departments policy on chases.

You can learn more about seizures and deadly force by reading my legal source book.

Reinitiating Q'ing of a Suspect Who Asserts His Rights

Q: If I make a PC arrest today for a burglary and the suspect has a gun and other evidence on him. At the jail and post Miranda he says "I want my lawyer." Can a different detective from my own agency make contact on a shooting investigation that is unrelated to my arrest? And if after Miranda and an explanation of what he wants to talk about gets a statement, can it be used?

A: Generally -- NO -- The United States Supreme Court has ruled that the assertion of one's right to counsel is more powerful than the assertion of the right to remain silent. An officer may not seek to determine if a suspect wants to talk to him at all after the suspect has asserted his right to an attorney. The suspect him / herself must reinitiate the conversation.

My suggestion is that if a suspect asserts his right to an attorney, tell him that he will have to reinitiate the discussion and give him / her your card.

This is all covered in my book in the Statements Chapter under the Miranda Section.

Section !983

Section 1983 is the most important statute ever written.

Especially as it relates to officers, the statute permits officers to be sued for any constitutional violation -- usually a 4th Amendment violation. The reason these violations are getting so expensive is that attorney's fees are awarded to the "prevailing party." When the plaintiff's attorney proves that an officer violated their clients rights, the attorney can get some ungodly awards (from the jury) and unconscionable attorney fees awarded by the judge.

Officers are being sued the most under Section 1983 for is:
1. excessive force,
2. getting in the middle of civil disputes and arresting a party to the dispute when probable cause is questionable,
3. arresting people without probable cause -- particularly when the charge is obstructing, resisting, disturbing, etc.

It is especially dangerous when the officer experiences all three of the above (and particularly when the plaintiff is mentally ill).

The case law related to these is in the last chapter of the Illinois (Arizona and Texas) Officers Legal Source Book(s). Read it and you will be much better prepared to avoid Section 1983 suits against you.