20 May 2004

Virginia Supreme Court

Jackson v. Commonwealth - Subject: Reasonable articulable suspicion arising from an anonymous tip. The Supreme Court dismantles a decision from the Virginia Court of Appeals. In so doing, it sets out the typical vague definition of reasonable articulable suspicion:
Reasonable suspicion is something "more than an 'inchoate and unparticularized suspicion or "hunch" ' of criminal activity." However, it is something less than probable cause. [T]he Supreme Court of the United States explained that "[r]easonable 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."

The "totality of the circumstances," which includes "the content of information possessed by police and its degree of reliability," i.e. "quantity and quality," must be considered when determining whether reasonable suspicion exits. "[I]f 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." "[A] deficiency in one [the informant's 'veracity' or 'reliability' and his or her 'basis of knowledge'] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." The converse is likewise true. "[I]f there are strong indicia of the informant's veracity, there need not necessarily be any indicia of the informant's basis of knowledge."
The Court then goes through a primer on the Federal Supreme Court's holdings concerning anonymous tips (well worth reading) which is summed up fairly well in this paragraph:
Unlike the informant in Adams, the caller in this case was not known to the police and did not personally appear before an officer. Thus, the informant was not subjecting himself to possible arrest if the information provided to the dispatcher proved false. In other words, the informant was not placing his or her credibility at risk and could "lie with impunity." There also is no evidence that the caller had supplied information on any previous occasions. When, as in this case, there are virtually no indicia of the informant's veracity, more information is required in order "to establish the requisite quantum of suspicion than would be required if the tip were more reliable." The tip in this case, however, also lacked sufficient information to demonstrate the informant's basis of knowledge and to establish the "requisite quantum of suspicion." . . . The tip included only "easily obtained facts and conditions existing at the time of the tip" which anyone could have known, including the allegation of brandishing a firearm. It failed to include . . .predictions about the defendant's future behavior. Such details are important because they demonstrate "inside information" that would not be available to the public generally. Thus, as in J. L., "[t]he anonymous call . . . provided no predictive information and therefore left the police without means to test the informant's knowledge or credibility." That the officers in fact found a gun when they searched Jackson does not mean that, prior to the search, they had a reasonable basis for believing that Jackson had engaged in criminal conduct. Even when an informant reports the commission of an open and obvious crime, if the tip is truly anonymous and provides no explanation for how the informant acquired the information, i.e., the informant's basis of knowledge, there remains a "layer of inquiry respecting the reliability of the informant that cannot be pursued."
The Supreme Court then goes on to reject the Court of Appeals three part analysis:
The Court of Appeals distinguished this case from J. L. and found the tip here "reliable in its assertion of illegality" because this tip unlike the "carrying a gun" tip in J.L. provided information permitting the officers reasonably to infer that it (i) came from a concerned citizen making a contemporaneous eyewitness report, (ii) involved an open and obvious crime rather than mere concealed illegality,[ ] and (iii) described criminality posing an imminent danger to the public. However, the first factual predicate is not supported by the record, the second factor does not distinguish this case from J. L., and the third element was rejected by the [Federal] Supreme Court in J. L.
The Court goes on to explain its reasoning; of note is the reasoning concerning the third factor:
Finally, with regard to the Court of Appeals' reliance on the imminent danger to the public, the Supreme Court declined to carve out a "firearm exception" to its established reliability requirements for anonymous tips. The Court stated that "an automatic firearm exception . . . would rove too far" because it "would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target's unlawful carriage of a gun." i.e.:"[A] police officer's "hunch" that the defendant was trespassing could not be raised to the level of reasonable suspicion based on an anonymous informant's assertion that the defendant was armed; the Commonwealth could not "bootstrap[] the legitimate concern for law enforcement officers' safety, which permits a protective search of a legally detained suspect, to serve as the basis for detaining the suspect."
The Court then goes on to distinguish the cases cited by the Commonwealth. Those of you who are prosecutors may want to pay special attention to this case:
[I]n Williams, 623 N.W.2d 106, the informant was not truly anonymous. There, the caller identified her location; indeed, she referred to it as "my house." The court concluded that the informant had provided "self-identifying information" and therefore put her "anonymity at risk." "Risking one's identification intimates that, more likely than not, the informant is a genuinely concerned citizen as opposed to a fallacious prankster."
If putting one's identity at risk is an important criteria almost anyone in modern times does so. We live in an era of caller ID and cellular phones which actually have GPS built into them. Any use of a phone that is not open to public use (basically only pay phones) would put the caller's anonymity at risk and therefore provide weight to an anonymous tip.

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