Tenth Circut US v. Madrid 12-2095

Decision here.

   An anonymous 911 caller reported that there was suspicious activity in the parking lot of an apartment complex.  He reported that there were two men and two women, and that the two men were "in each other's faces" and looked like they were about to fight.  He described the people involved and their vehicles.  He expressed fear for his fiancee's safety (she was apparently about to arrive). And when the police showed up and the suspects scattered, he said so.

   Officers arrived about five minutes after the call was first placed.  Based on the information relayed to them from dispatch, they stopped both cars.  Madrid was the driver of one of them.

   The officers who stopped Madrid recognized him from previous contacts (one of them had served a search warrant on his house a month ago).  They both knew that he was a convicted felon.  The cover officer saw a rifle case in the back of Madrid's car, so the primary officer got him out of the car and handcuffed him.  The cover officer left for five minutes (the officer who had stopped the other car needed backup while arresting one of the occupants for a warrant), then returned and took the rifle case out of the car.  It did, in fact, contain a rifle.

   The officers told Madrid that he could be charged with being a felon in possession of a firearm, and agreed to let him work off the charge by assisting them in other investigations.  Madrid was released, but his rifle was kept as evidence.  No report was filed at the time.

   Madrid did not assist the police in other investigations, so they went forward with charges against him.  He moved to suppress the rifle, arguing that the stop of his car had been illegal.

   Terry v. Ohio established a two prong test for determining the reasonableness of investigative stops.  First, they must be justified at their inception.  Second, they must be reasonably related in scope to the circumstances justifying the detention.  Madrid's argument is that the stop was not justified at its inception.

   The question is whether officers had a particularized and objective basis for believing that Madrid was doing something illegal.  The courts have held that as long as this standard is met, reasonable suspicion can exist even where it is more likely than not that the person detained was not guilty of anything.

   Madrid argued that the officers who stopped him should have known that no physical fight had occurred, but they were responding to a call of two males who were about to fight.  They had reason to believe that Madrid (and the others) had just been involved in criminal activity, and the covernment's interest in stopping people who are currently engaged in or fleeing from the scene of criminal activity is stronger than its interest in stopping people who have previously been involved in criminal activity and are now going about their (lawful) business.

   Madrid argued that the court should have taken into account the minor nature of the crime the police were stopping him for.  The court recognized that Madrid was apparently fleeing from the scene of a reported fight, and also noted that his initial detention was no more intrusive than a traffic stop.  It only became more intrusive after the police had probable cause to believe he was a felon in possession of a firearm.

   And finally, Madrid argued that the anonymous tip was unreliable and did not justify stopping him.  The courts have identified five relevant factors in determining the reliability of an anonymous tip: 

[R]elevant factors include: (1) whether the informant lacked "true

anonymity" (i.e., whether the police knew some details about the

informant or had means to discover them); (2) whether the informant

reported contemporaneous, firsthand knowledge; (3) whether the

informant provided detailed information about the events observed;

(4) the informant's stated motivation for reporting the information;

and (5) whether the police were able to corroborate information

provided by the informant.

   In this case, the informant had true reliability.  The police could have speculated that he or his fiancee lived in the apartment complex, but they had no phone number, no way of knowing whether or not he really lived there, and no way of knowing whether or not he would stay there once they arrived.  On the other hand, he was clearly reporting contemporaneous, firsthand knowledge.  He was providing detailed information about the events (such as suspect descriptions), his stated motivation for making the report was the safety of his fiancee, and although any fight was over when they got there the police were able to corroborate the suspect vehicle descriptions provided by the informant.

   Anyway, anonymity notwithstanding, the informant's tip was sufficiently reliable to justify the brief detention which led to Madrid's arrest.  His conviction was affirmed.

Colorado Court of Appeals People v. Novitskiy 10CA2023

Decision here.

   Novitskiy paid for some gas and a lotto ticket with a counterfeit $20 bill, and the manager immediately called the police.  Novitskiy was still there when the police showed up, and the manager told them "That guy gave me a fake 20."  An officer ordered Novitskiy to produce any money on his person, and found more fake money.  Novitskiy was arrested, and eventually convicted of forgery.  Novitskiy appealed his conviction, arguing that the scope of the search exceeded what was permissible during an investigative detention, and arguing that the police lacked probable cause to arrest.

   The Court of Appeals noted that where the identity of an informant is known, they may generally be presumed credible.  In cases where the informant provides information that relies on special expertise (such as identifying fake money), that expertise can sometimes be inferred from the circumstances (such as where the informant works with cash for a living, and probably knows how to spot a fake bill).  Therefore, even though all the police had was a cashier pointing out the defendant and saying "That guy gave me a fake 20," that information was enough to establish probable cause to arrest.  The officer's demand that Novitskiy produce all his money was justified as a search incident to arrest.

   The decision also explains that probable cause is not based on mathematical probability, but just on common sense and reasonable grounds.  Novitskiy's conviction was affirmed.

Tenth Circuit US v. Conner 12-1063

Decision here.

   A reporting party called the police at 11 PM, and did not give his name but did give his phone number and address.  The RP said that he had just seen a light-skinned black male wearing a fuzzy hunter hat get out of a black SUV and hide a pistol in his waistband after someone yelled "No, no!"  Officers would later testify that the area where this occurred is one of the worst neighborhoods in Denver.

   I am inclined to agree.  Any place where people where fuzzy hunter hats is no place that I want to be.

   Police officers responded to the call and found a light skinned black male (Conner) wearing a fuzzy hunter hat and walking away from a black SUV which was parked exactly where the caller had said it would be.  They detained Conner at gunpoint, searched him, and found that he was in fact concealing a pistol in his pants.  Conner was charged with being a felon in possession of a firearm.

   Conner moved to suppress the gun as the fruit of an illegal stop.  His argument was that the initial report was an anonymous tip, and therefore unreliable, and also that even if the tip were reliable it didn't establish reasonable suspicion.  Amusingly, Conner acknowledged that the police had enough information to necessitate an investigation.  He just thinks they should have tried a consensual contact instead of gunpointing him.  What bizarre logic.... Anyway, the trial court was having none of it, so Conner appealed to the Tenth Circuit.

   Conner's argument against the reliability of the tip leans heavily on Florida v. J.L. (the Supreme Court decision about the anonymous tip that someone at a bus stop had a gun.  I've been meaning to add that case to this site for a while now).  The problem with his argument is that the two cases don't have much in common with each other.  In J.L, the police had no information about the anonymous caller at all.  In this case, the police didn't know the caller's name but they did have enough information to go contact him if they needed to.  In J.L, the caller didn't say how he knew that someone had a gun, and there was no other information to corroborate the tip.  In this case, the caller claimed to have just witnessed the events he was calling in, and he provided a detailed description of the suspect and the circumstances, all of which were verified when the police found a suspect matching the description in the immediate area of the black SUV which was parked exactly where the caller said it would be.  The Court held that the tip was plenty reliable for the police to act on it.

   Regarding reasonable suspicion, the court again held that RS just requires a minimal level of objective justification.  Conner hiding the gun in his waistband right after someone yelled "No, no!" gave the police reason to suspect that Conner was involved in some sort of armed confrontation.  That was reason enough to justify the stop.

   I really loved the last paragraph of the court's decision, so I'm just going to paste it here (minus some internal quotation marks):

Therefore, we conclude that this is clearly not a case of police officers
arbitrarily stopping an individual walking down the sidewalk during the middle of
the afternoon.  Nor is this a case of police officers arbitrarily stopping an individual walking
down an alley late at night in a high-crime area.  Here, the officers had a
sufficiently reliable tip and a reasonable suspicion of criminal activity—they
believed Mr. Conner might have been involved in an armed confrontation.
Reasonable suspicion requires a dose of reasonableness and simply does not
require an officer to rule out every possible lawful explanation for suspicious
circumstances before effecting a brief stop to investigate further.

   Conner's conviction was affirmed.  

Tenth Circuit US v. Cruz 11-2136

Decision here.

   In March of 2010, police searched Cruz's home and found baggies of meth, cash, fake IDs, and horse steroids (which are apparently used to cut meth.  Holy hell!).  There was no paraphernalia associated with actually using meth found in the home, though.  Cruz was charged with (and eventually convicted of) possession with intent to distribute.  A week prior to the raid, police had watched a controlled buy with a confidential informant.

   The informant did not testify, and the prosecution did not disclose the informant's identity.  Instead, police testified that they watched the informant go into the house, then come back out with something that tested positive for meth.  One of Cruz's arguments on appeal was that the court had erred in not disclosing the identity of the informant.

   The Tenth Circuit observed that whether or not an informant's identity needs to be disclosed depends on the facts of the case.  The courts are required to balance the defendant's interest in mounting a defense against society's interests in protecting the identity of informants (for their safety, and for the sake of future investigations).  Courts which have held that an informant's identity must be disclosed have generally done so under circumstances where an informant was the only witness who could support a defense theory or refute a prosecution witness.  Courts which have held that an informant's identity may remain secret have generally done so under circumstances where the value of the informant to the defense was speculative or irrelevant.  In this case, the court held that the informant's testimony was more likely to incriminate Cruz, and that the controlled buy hadn't formed the basis of Cruz' indictment (the basis was the evidence found in the search).  Cruz's conviction was affirmed, as was the order denying the disclosure of the CI's identity.

US Supreme Court Florida v. JL 98-1993

Decision here.

   Police received an anonymous tip that a black male standing at a particular bus stop wearing plaid shirt was carrying a gun.  J.L. was a black male standing at that bus stop while wearing a plaid shirt, and there were two other people with him (only J.L. matched the suspect description, though).  Nothing else was known about the reporting party.

   Based on the anonymous tip, officers searched J.L. and recovered a handgun.  They also searched the other two guys, apparently because it was physically possible to do so.  J.L. was subsequently charged with CCW and with possessing a handgun whilst under 18.  He moved to suppress the gun as the fruit of an unreasonable search, and this case made it all the way up to the Supreme Court.

   The Court held that in order to establish reasonable suspicion, an anonymous tip must have sufficient indicia of reliability.  The only such indication put forth in this decision is "the correct forecast of the subject's not easily predicted movements."  The decision discussed another case where an RP predicted that a woman would leave a particular place in a particular kind of car and check into a particular hotel, and that she would have drugs.  That case had been deemed by the court to just barely satisfy reasonable suspicion.

   By contrast, the court held that the tip in J.L.'s case was not reliable enough to establish reasonable suspicion.  The court recognized that the RP specifically described J.L., but held that simply providing enough information to identify a suspect doesn't make a tip reliable.

   The prosecution had argued for a firearms exception that would make stops based on anonymous tips regarding guns reasonable per se.  The court didn't like the slippery slope something like that would create, and talked about how if they were to humor that then eventually the exception would swallow the rule (because other kinds of criminals are known to carry guns, so anonymous tips not involving firearms could theoretically be treated like anonymous tips involving firearms...).  So the Supreme Court specifically did not create a rule that would allow us to stop people based on anonymous tips regarding firearms.

   The court did note that if the circumstances were different, such as if a case were to involve a suspect carrying a bomb, or if a case involved a place where the expectation of privacy is diminished (like an airport or school), then maybe it would be possible to justify a search using information that would otherwise be insufficient.  But there was nothing like that here, so the evidence in J.L.'s case was suppressed.