Florida v. J.L.: To Frisk or Not to Frisk; The Supreme Court Sheds Light on the Use of Anonymous Tipsters as a Predicate for Reasonable Suspicion

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1 Florida v. J.L.: To Frisk or Not to Frisk; The Supreme Court Sheds Light on the Use of Anonymous Tipsters as a Predicate for Reasonable Suspicion I. INTRODUCTION The Fourth Amendment to the United States Constitution protects all citizens from unreasonable searches and seizures by requiring the government to show probable cause in order to obtain a warrant for a search and seizure.' Although the privacy rights of citizens are held as sacred, courts have allowed exceptions to the probable cause requirement. 2 Included in these exceptions is the warrantless "stop and frisk" of a citizen based on a mere "reasonable suspicion." 3 The issue of where the requisite "reasonable suspicion" is derived from, has been discussed in many court decisions, including the recent decision of Florida v. J.L. 4 In J.L., the Court appeared to reverse its earlier holding in Alabama v. White, 5 which allowed anonymous tips to provide the predicate reasonable suspicion required for a Terry stop. 6 In J.L., the Court held that an anonymous tip, without more, did not provide sufficient indicia of reliability to conduct a Terry stop. 7 Section III of this Comment examines the history and development of Fourth Amendment search and seizure principles as well as the "exclusionary rule." It discusses the landmark case of Terry v. Ohio 8 and the development of a stop and frisk exception. Additionally, Section III explores case law allowing informants, both known and anonymous, to provide probable cause. Section IV analyzes Alabama v. White 9 and the treatment of cases which followed. It summarizes the arguments for and against allowing anonymous tips to provide reasonable suspicion as outlined in various court decisions. Section V discusses how the Court viewed these arguments in Florida v. J.L' and its holding which focused on two main areas: the relia- 1. See U.S. CONST. amend. IV. 2. See discussion infra Section III Part I.C. 3. See Terry v. Ohio, 392 U.S. 1, 30 (1968) (allowing an investigatory stop and pat frisk based on an officer's reasonable suspicion that "criminal activity may be afoot") U.S. 266 (2000) U.S. 325 (1990). 6. See id. at See J.L, 529 U.S. at 274 (emphasis added) U.S. 1 (1968) U.S. 325 (1990) U.S. 266 (2000).

2 CRIMINAL AND CIVIL CONFINEMENT [Vol. 28:161 bility of the tip and the nature of the behavior being reported. This Comment concludes that the Court's holding in Florida v. J.L." did not categorically disallow anonymous tips from being used as a predicate for a Terry stop. II. FACTS AND PROCEDURAL HISTORY On October 13, 1995, the Miami-Dade Police Department received a telephone call from an anonymous caller.' 2 The caller indicated that there was a "young black male standing at a particular bus stop and wearing a plaid shirt.,, " The caller told police that the black male was in possession of a gun.' 4 The police knew nothing about this particular informant, and there was no audio recording of the actual call. 5 Within minutes, the police arrived at the street corner described by the informant and observed "three black males 'just hanging out [there]."" ' 6 One of the three males observed matched the description given in the anonymous tip. 7 "The three males were engaged in no suspicious or illegal conduct and no additional suspicious circumstances were observed by the officers."' 8 However, J.L., a minor, was approached and asked to "put his hands up on the bus stop...."" "Then, without questioning or other introduction...,"'o J.L. was frisked and a gun was seized from his pocket."' The other two individuals with J.L. were also frisked, but were found to be devoid of any illegal substances. 22 Based on what the police discovered, J.L. "was charged under state law with carrying a concealed firearm without a license and possessing a firearm while under the age of 18. ' "3 At trial, J.L. "moved to suppress the gun as the fruit of an unlawful search, and the trial court granted his motion." Id. 12. See J.L., 529 U.S. at Id. 14. See id. 15. See id. The fact that there was no recording of the call was later found to be significant. See id. at 275 (Kennedy, J., concurring). 16. Id. (citing App. to Pet. for Cert. A-42) (alteration in original). 17. See id. 18. J.L. v. State, 727 So. 2d 204, 205 (Fla. 1998). 19. J.L., 529 U.S. at J.L., 727 So. 2d at See id. 22. See J.L., 529 U.S. at Id. at 269. At the time he was arrested, J.L. was "'10 days shy of his 16 ' birth[day].'" Id. (citing Tr. of Oral Arg. 6) (alteration in original). Florida Statute provides that "a person who carries a concealed weapon... on or about his or her person commits a misdemeanor of the first degree... FLA. STAT. ANN (West 2000). 24. Id.

3 Winter, 2002] FLORIDA v. J.L: - ANONYMOUS TIPSTERS The State of Florida appealed the ruling and "[t]he intermediate appellate court reversed...25 The Supreme Court of Florida, however, reversed the appellate court and found that based on Fourth Amendment principles the search was, in fact, invalid and the gun was properly suppressed by the district court. 26 The State of Florida asked, but the court refused, to "create a firearm or weapons exception to the limitations on searches and seizures set out in the Fourth Amendment to the United States Constitution and the parallel provisions of the Florida Constitution. 27 The State of Florida asked the court to follow prior decisions allowing similar seizures based on anonymous tips. 28 The Supreme Court of Florida distinguished the earlier cases from the one at hand and found that "[alnonymous tips...are generally less reliable than tips from known informants and can form the basis for reasonable suspicion only if accompanied by specific indicia of reliability...,29 The State of Florida sought review by the United States Supreme Court and certiorari was granted. 3 The United States Supreme Court affirmed the Florida Supreme Court's finding that "an anonymous tip lacking [sufficient] indicia of reliability... does not justify a stop and frisk whenever and however it alleges the illegal possession of a firearm." 3 1 III. A BACKGROUND IN THE FOURTH AMENDMENT AND ITS RELEVANT PRINCIPLES A. A Foundation in The Fourth Amendment The Fourth Amendment to the United States Constitution provides that: [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 3 2 "[O]ne of the cornerstones of this nation's foundation is the constitutional protection that individuals have a right to be free from unreasonable 25. Id. 26. See id. (citing J.L., 727 So. 2d 204). 27. J.L., 727 So. 2d at See generally id. The state argued that Alabama v. White, 496 U.S. 325 (1990), and United States v. Bold, 19 F.3d 99 (2d Cir. 1994), allowed anonymous tipsters to provide reasonable suspicion. See id. 29. J.L., 529 U.S. at 269 (citing J.L. v. State, 727 So. 2d 204, 207 (Fla. 1998)). 30. See id. 31. Id. at 274 (discussing Adams v. Williams, 407 U.S. 143 (1972), and Alabama v. White, 496 U.S. 325 (1990)). 32. U.S. CONST. amend. IV.

4 CRIMINAL AND CIVIL CONFINEMENT [Vol. 28:161 searches and seizures." 33 The Fourth Amendment was developed by the colonists as a reaction to the practice of the issuance of "Writs of Assistance" in England. 34 These writs arbitrarily granted plenary power to search and seize, and were left open for the life of the issuing sovereign. 35 Thus, the Fourth Amendment was created and "'[n]o right is held more sacred, or is more carefully guarded, by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others Since its adoption, "the question of how to strike the proper balance between citizens' privacy and effective law enforcement has puzzled scholars, practitioners, and citizens." 37 These privacy rights have also been extended to apply to the states. 38 Consequently, a variety of courts have been faced with attempting to execute a balance between individual privacy rights and the need of law enforcement to be effective and efficient. 39 Additionally, many view the Fourth Amendment as containing two separate, but sometimes distinct, provisions or clauses." n These two clauses, the "warrant clause" and the "reasonableness clause," can implicate different 33. J.L., 727 So. 2d at 206 (citation omitted). 34. See NELSON B. LASSON, THE HISTORY AND DEVELOPMENT OF THE FOURTH AMEND- MENT TO THE UNITED STATES CONSTITUTION, (1970). Also known as a "Writ of Assistants" these writs were first issued by Charles II. See id. at 53 (emphasis added). They were used as a convenient method to combat violations of trade laws. See id. "[T]hey commanded all officers and subjects of the Crown to assist in their execution... " thus the name. Id. at They were later used in the colonies and issued by courts and governors. See id. at The result was that custom officials and civil officers would forcibly enter buildings and "break open chests, trunks, etc." Id. at 54 n See id. at Terry v. Ohio, 392 U.S. 1, 9 (1968) (quoting Union Pac. R.R. Co. v. Botsford, 141 U.S. 250, 251 (1891)). 37. Amy B. Cooper, Note, The Pennsylvania Supreme Court Declines an Invitation to Join the Federal Circuit Trend Towards Diminished Fourth Amendment Protections - Commonwealth v. Jackson, 698 A.2d 571 (Pa. 1997), 72 TEMP. L. REV. 743, 743 (1999). 38. See Mapp v. Ohio, 367 U.S. 643, 655 (1961) (deciding the "Fourth Amendment's right of privacy has been declared enforceable against the states."). 39. See generally Oliver v. United States, 466 U.S. 170 (1984) (holding that privacy is restricted to the curtilage of one's home); United States v. Watson, 423 U.S. 411 (1976) (allowing a warrantless arrest where the officer has probable cause to believe that a felony has occurred); United States v. Robinson, 414 U.S. 218 (1973) (allowing police to conduct a warrantless search incident to a lawful arrest); Warden v. Hayden, 387 U.S. 294 (1967) (allowing police to make a warrantless entry when faced with the exigency of "hot pursuit"); Hester v. United States, 265 U.S. 57 (1924) (holding that privacy did not extend to activities in an "open field"). 40. See James A. Adams, Lecture: The Supreme Court's Improbable Justifications for Restriction of Citizens' Fourth Amendment Privacy Expectations in Automobiles, 47 DRAKE L. REV. 833, 836 (1999). The so called "reasonableness clause" is implicated by the provision in the Fourth Amendment proclaiming a protection for the people against unreasonable searches and seizures. See id. The "warrant clause" follows by stating that "no Warrants shall issue, but upon probable cause... " U.S. CONST. amend. IV; see also supra note 32 and accompanying text.

5 Winter, 2002] FLORIDA v. J.L.: - ANONYMOUS TIPSTERS types of protection. 4 Searches conducted without either a warrant or some recognized exception to the warrant requirement are "per se unreasonable." 4 2 However, even where a particular search would be permissible under the warrant clause, it may still violate the reasonableness clause. 43 B. Search and Seizure The Fourth Amendment does not prohibit "all searches and seizures, but unreasonable searches and seizures. ' '4 " There are fundamental questions which courts must answer in determining whether a search and seizure is reasonable: what is a search and seizure and does the "governmental action constitute[ ] a 'search' within the meaning of the Fourth Amendment." 45 One may only take advantage of Fourth Amendment protections where they illustrate "a legitimate privacy interest that would be infringed upon by a specific governmental practice. ' "46 "A constitutionally-protected privacy interest exists when: (1) a citizen exhibits an actual, subjective expectation of privacy in an object; and (2) society deems the expectation to be reasonable." 4 7 The Supreme Court narrowed these definitions to enunciate that "whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person" within the meaning of the Fourth Amendment. 48 Additionally, "a careful exploration of the outer surfaces of a person's clothing... in an attempt to find weapons is not a 'search"' under the Fourth Amendment. 49 In Katz v. United States, 5 " the Supreme Court found that "the Fourth Amendment protects people, not places."'" The Court established that an 41. See Adams, supra note 40, at Katz v. United States, 389 U.S. 347, 357 (1967). 43. See Adams, supra note 40, at Elkins v. United States, 364 U.S. 206, 222 (1960) (emphasis added); see also Cady v. Dombrowski, 413 U.S. 433, 440 (1973) (holding that the facts and circumstances of each case must be examined when deciding whether a particular search and seizure is unreasonable with respect to the Fourth Amendment). 45. Brett Andrew Harvey, Comment, Minnesota v. Dickerson and the Plain Touch Doctrine: A Proposal to Preserve Fourth Amendment Liberties During Investigatory Stops, 58 ALB. L. REV. 871, 873 (1995). 46. Id. (citing Katz v. United States, 389 U.S. 347 (1967)). 47. Id. (citing Katz, 389 U.S. at 361) (Harlan, J., concurring). 48. Terry v. Ohio, 392 U.S. 1, 16 (1968). 49. Id U.S. 347 (1967). Katz was charged and convicted of illegal gambling by using a payphone. See id. at 348. The FBI had attached a listening device to the payphone. See id. The Supreme Court found that Katz should enjoy a right to privacy when he enclosed himself in a public payphone. See generally id. at Id. at 351. Compare this idea to the way search warrants are considered. "Search warrants are not directed at persons; they authorize the search of 'place[s]' and the seizure of 'things,' and as a constitutional matter they need not even name the person from whom the

6 CRIMINAL AND CIVIL CONFINEMENT [Vol. 28:161 individual may enjoy a "reasonable expectation of privacy" even outside his private space. 5 2 The Court found that Fourth Amendment "protections go further [than individual privacy], and often have nothing to do with privacy at all." 53 C. Exceptions to the Fourth Amendment "Warrant Requirement" The Fourth Amendment contains the clause: "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, particularly describing the place to be searched and the persons or things to be seized." 54 "The ultimate standard set forth in the Fourth Amendment is reasonableness. 55 The United States Supreme Court has held that "a search or seizure... without a warrant is per se unreasonable, unless... it falls within one of a carefully defined set of exceptions.... "56 Over time, courts have carved out some exceptions which allow for law enforcement to conduct searches and seizures without a warrant. In such cases, the courts will uphold a search or seizure provided the officer can show the requisite probable cause existed. 57 D. The Exclusionary Rule Operating in conjunction with one's privacy rights under the Fourth Amendment is the "exclusionary rule." 58 In Boyd v. United States, 59 the things will be seized." Zurcher v. Stanford Daily, 436 U.S. 547, 555 (1978) (citing United States v. Kahn, 415 U.S. 143, 155 n.15 (1974)) (alteration in original). 52. Katz, 389 U.S. at Id. at U.S. CoNsT. amend. IV. 55. Dombrowski, 413 U.S. at Coolidge v. New Hampshire, 403 U.S. 443, 474 (1971). 57. See generally United States v. Santana, 427 U.S. 38 (1976) (holding that during "hot pursuit," police may enter a home without a warrant); Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (holding that a warrantless search is permitted where consent was voluntarily given); Coolidge v. New Hampshire, 403 U.S. 443, 468 (1970) (plurality opinion) (holding that police do not require a warrant to seize items that are in 'plain view'); Chimel v. California, 395 U.S. 752 (1969) (holding that a search which is incident to a lawful arrest may be completed absent a warrant but is limited to the arrestee's "wingspan"); Carroll v. United States, 267 U.S. 132, 153 (1925) (upholding the warrantless search of an automobile when the officer has probable cause to conduct a search but obtaining a warrant would risk the vehicle's removal from the jurisdiction). 58. See generally Weeks v. United States, 232 U.S. 383 (1914) (declaring that improperly obtained evidence may not be used against an individual). The Court held that "[i]f letters and private documents can [illegally] be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value... Id. at U.S. 616 (1886). Boyd was charged with importing thirty-five cases of plate glass into the United States and using false invoices to avoid paying the appropriate taxes. See id. at He was compelled by the government to produce incriminating documents in order to prove the case against himself. See id. at 618.

7 Winter, 2002] FLORIDA v. J.L.: - ANONYMOUS TIPSTERS Court "began to develop the exclusionary rule, which has since become the primary focus of the [F]ourth [A]mendment. " By combining the Fourth Amendment with the Fifth Amendment, the Court created "a Fourth Amendment exclusionary rule... "61 The Court reasoned that the seizure of one's private documents or other such evidence was the equivalent of compelling the individual to testify against himself. 62 Therefore, the illegal seizure of evidence was thought to be tantamount to self-incrimination. 63 In fact, the exclusionary rule provides the primary support which gives force to the Fourth Amendment.' E. Stop and Frisk Although the Fourth Amendment exists in order to protect personal liberties, it "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 crime to occur or a criminal to escape. 65 The practice of "investigative stops" to question and possibly search suspicious individuals for investigatory purposes was in place for many years prior to the landmark case Terry v. Ohio. 66 In 1968, the United States Supreme Court recognized that law enforcement officers could act on less than the probable cause required to place an individual under arrest. 67 The Court viewed the temporary detention of a person on the street to be much different than the exhaustive and destructive search of one's home. 68 Thus, in the case of 60. Orrin S. Shifrin: Supreme Court Review: Fourth Amendment - Protection Against Unreasonable Search and Seizure: The Inadequacies of Using an Anonymous Tip to Provide Reasonable Suspicion for an Investigatory Stop, 81 J. CRIM. L. & CRIMINOLOGY 760, 763 (1991). 61. Id. 62. See id. (citing Boyd v. United States, 116 U.S. 616, 633 (1886)). 63. See Boyd v. United States, 116 U.S. 616, 636 (1886). 64. See Wayne R. LaFave, "Case-by-Case Adjudication" Versus "Standardized Procedures": The Robinson Dilemma, 1974 Sup. CT. REv. 127, 141 (1974). 65. Brian A. Wilson, Note, The War on Drugs: Evening the Odds Through Use of the Airport Drug Courier Profile, 6 B.U. PUB. INT. L.J. 203, 214 (1996) (describing the rationale of the Court in Terry v. Ohio, 392 U.S. 1 (1968)). 66. See John F. Wagner, Jr., Annotation, Law Enforcement Officer's Authority, Under Federal Constitution's Fourth Amendment, to Stop and Briefly Detain, and to Conduct Limited Protective Search of or "Frisk,"for Investigative Purposes, Person Suspected of Criminal Activity - - Supreme Court Cases, 104 L. Ed. 2d 1046, 1049 (1999) (citing Wayne R. LaFave, "Street Encounters" and the Constitution: Terry, Sibron, Peters, and Beyond, 67 MICH. L. REv. 39 (1968)). 67. See generally Terry, 392 U.S. at See LaFave, supra note 64, at 144. The Court characterized the Terry stop as a "'petty indignity,' [which is] 'totally different... from ransacking [a person's] house for everything which may incriminate him.'" Id. (citing United States v. Kirschenblatt, 16 F.2d 202, 203 (2d Cir and Terry, 392 U.S. at 17)).

8 CRIMINAL AND CIVIL CONFINEMENT [Vol. 28:161 Terry v. Ohio, the Court recognized that these investigatory stops were permitted Terry v. Ohio On October 31, 1963, Detective Martin McFadden was working in the downtown area of Cleveland. 7 " McFadden was an experienced officer who had worked as a detective for thirty-five out of his forty-nine years on the force. 71 On that day his attention was drawn to two men, Terry and Chilton, standing on the street. 72 McFadden later testified at trial how he had developed "habits of observation over the years" and that "'they didn't look right to me at the time.' "7 McFadden observed the two individuals as they paced back and forth suspiciously while looking in a store window." After they met up with a third individual, McFadden suspected the two of "casing a job" and, thus "he feared 'they may have a gun.'-7 McFadden approached the men, identified himself, and asked for their names. 76 Unsatisfied with the response, "McFadden grabbed [Terry], spun him around... and patted down the outside of his clothing." 7 7 McFadden discovered a.38-caliber revolver in Terry's breast pocket causing him to pat down Chilton and the other individual as well. 78 He also discovered a revolver on Chilton. 79 McFadden testified "that he only patted the men down to see whether they had weapons, and that he did not put his hands beneath the outer garments of either Terry or Chilton until he felt their guns." 8 The Supreme Court essentially agreed with the lower court 8 ' in deciding "whether the officer's action was justified at its inception, and whether it 69. See id. at See Terry, 392 U.S. at See id. 72. See id. 73. Id. 74. See id. at Id. 76. See Terry, 392 U.S. at Id. at See id. 79. See id. 80. Id. 81. See generally State v. Terry, 5 Ohio App. 2d 122 (1966). Terry and Chilton were both arrested and convicted; however, prior to the Supreme Court's grant of certiorari, Chilton died. See Terry, 392 U.S. at 5 n.2. On a motion to suppress the revolvers, the lower court rejected the prosecution's theory that the guns were obtained during a search incident to a lawful arrest. See id. at 7. The Court felt that the facts did not support McFadden having probable cause to arrest Terry and Chilton prior to patting them down. See id at 7-8. However, "[t]he court distinguished between an investigatory 'stop' and an arrest, and between a 'frisk' of the outer clothing for weapons and a full blown search for evidence of crime." Id. at 8. "The frisk, it held, was essential to the proper performance of the officer's

9 Winter, 2002] FLORIDA v. J.L.: - ANONYMOUS TIPSTERS was reasonably related in scope to the circumstances which justified the interference in the first place." 82 The Court compared the terms "stop" versus "seizure" and "frisk" versus "search" in order to evaluate what level of protection one may expect under the Fourth Amendment. 8 3 It was determined that an investigatory stop is a seizure of the person within the meaning of the Fourth Amendment. 84 Next, the Supreme Court focused on the portion of Terry's case which involved the search of his person. 85 In doing so, the Court declared that "there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. ' "86 The Court continued that,"[t]he officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in similar circumstances would be warranted in the belief that his safety or that of others was in danger." 87 Although the Court indicated that a "hunch" is not enough to establish this level of certainty, it was willing to give deference to the officer's experience and allow him to draw inferences. 88 Thus, it was determined that Officer McFadden caused only a minimal intrusion on Terry and Chilton by stopping them briefly for a limited purpose, based on suspicions about their activities. 89 In allowing this type of encounter, the Court created what is now referred to as the "Terry doctrine." 9 Simply stated, this doctrine allows an officer to make a brief investigatory stop and conduct a protective frisk for weapons where there is a reasonable suspicion that criminal activity is occurring, investigatory duties, for without it 'the answer to the police officer may be a bullet, and a loaded pistol discovered during the frisk is admissible."' Id. Thus, the lower court allowed the guns into evidence, and it sustained McFadden's "frisk" of the individuals, despite his lack of probable cause to arrest them. See Terry, 5 Ohio App. 2d at Terry, 392 U.S. at See id. at See id; see also United States v. Mendenhall, 446 U.S. 544, (1980). 85. See Terry, 392 U.S. at 19. "We thus decide nothing today concerning the constitutional propriety of the investigative 'seizure'... [o]bviously, not all personal intercourse between policemen and citizens involves 'seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' occurred." Id. at 19 n Id. at Id. (emphasis added). 88. See id. 89. See United States v. Reese, 108 F. Supp. 2d 1338, 1340 (M.D. Ala. 2000) (comparing the case against Reese with Terry). The Court also distinguished Reese from Terry viewing a difference between an officer stopping an individual based on "criminal activity" versus "criminal identity". See id. at See generally Terry, 392 U.S. 1. See also United States v. Sokolow, 490 U.S. 1 (1989); Alabama v. White, 496 U.S. 325 (1990); Illinois v. Wardlow, 528 U.S. 119 (2000).

10 CRIMINAL AND CIVIL CONFINEMENT [Vol. 28:161 or is about to take place. 9 " Under the Terry doctrine, this brief detention will satisfy the Fourth Amendment where the "officer's action [is] 'justified at its inception' and the stop and frisk [is] 'reasonably related in scope to the circumstances which justified' its initiation. ' "92 The objective of crime prevention weighed heavily on the Court, which permitted an officer's search based upon the reduced level of "articulable suspicion" rather than the traditional, higher standard of "probable cause." 93 The Court limited the search that a police officer is permitted to conduct, to "a carefully limited search of the outer clothing...in an attempt to discover weapons which might be used to assault him." 9 4 When the officer's primary goal is not safety or the initial pat down is not for weapons, the Court will find that the contact with the suspect violates the Fourth Amendment "Stop and Frisk" Developed Post Terry Since its holding in Terry, the Court has applied the same logic to expand the protective frisk to allow officers to seize items other than weapons and to use "plain touch" just as they use "plain view. ' "96 In Michigan v. Long, 9 7 the United States Supreme Court allowed the search of the passenger compartment of an automobile when the officers had reason to believe that there may be weapons within. 98 The decision in Long had the effect of allowing officers to frisk an automobile for weapons based on Terry logic. 99 Additionally, the Court found that "[i]f, while conducting a legitimate Terry search of the interior of an automobile, the officer should... discover contraband other than weapons, he clearly cannot be required to ignore the 91. See Terry, 392 U.S. at 27; see also Harvey, supra note 45, at Harvey, supra note 45, at 877 (quoting Terry, 329 U.S. at 19-20). 93. See id. at Terry, 392 U.S. at 30. LaFave has commented that this limiting language is "ambiguous, although the Court earlier notes that with respect to suspect Terry the officer 'did not place his hands in their pockets or under the outer surface of their garments until he had felt weapons... '" LaFave, supra note 64, at n See Sibron v. New York, 392 U.S. 40, 65 (1968). Decided on the same day as Terry, the officer in Sibron was conducting a frisk for drugs rather than weapons. See id. There, the Court did not uphold the frisk as it was not limited in scope to a protective search for weapons. See id. 96. See Harvey, supra note 45, at 880 (discussing Michigan v. Long, 463 U.S (1983)) U.S (1983). 98. Id. at Officers stopped to check on a vehicle in a ditch and observed a knife on the floor of the vehicle. See id. at They conducted a pat down of the driver but did not find any weapons. See id. at While conducting a search for weapons within the passenger area of the vehicle, officers discovered marijuana. See id. The seizure of the marijuana was upheld by using the same "principles espoused in Terry and its progeny." See Harvey, supra note 45, at See Harvey, supra note 45, at 880.

11 Winter, 2002] FLORIDA v. J.L: - ANONYMOUS TIPSTERS contraband, and the Fourth Amendment does not require its suppression in such circumstances."'" This case was significant because the Court found that contraband, other than weapons discovered during a lawful Terry stop, are permitted to be seized.' ' Under Terry, an officer is also permitted "to rely upon his sense of touch to determine if an object is a weapon." 0 2 Contemporaneously, officers are permitted, absent a warrant, to seize contraband that is within their plain view. ' 3 The idea that an officer may use "plain touch" in the same way as "plain view" was explored in Minnesota v. Dickerson.'" In Dickerson, the Court combined the plain view doctrine with its holding in Long to create "the plain touch exception to the warrant requirement in the context of a Terry stop and frisk."' 0 5 Long had already allowed the seizure of items that did not pose a threat to the officer or others.' 0 6 The Court applied the plain view doctrine and found that: [iff a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere [sic] in the plain view context F. "Tips" From Named, Unnamed, and Anonymous Informants Providing Probable Cause Like probable cause, the type of reasonable or articulable suspicion required in a Terry stop is based not only on the totality of the police officer's 100. Id. (quoting Michigan v. Long, 463 U.S. 1032, 1050 (1983)) (alteration in original) See Long, 463 U.S. at Harvey, supra note 45, at See generally Coolidge v. New Hampshire, 403 U.S. 443 (1971). Under the plain view doctrine, an officer who is lawfully present and inadvertently comes upon evidence or contraband can seize that evidence when its illegality is immediately apparent. See id. at The Court found that requiring the officer to obtain a warrant under those circumstances would be a "needless inconvenience...." Id U.S. 366 (1993). Police observed respondent leaving a known drug house. See id. at 368. When the respondent observed the officers, he walked briskly in the opposite direction. See id. at "[T]he officers decided to stop respondent and investigate further." Id. at 369. The officer frisked Dickerson but did not find any weapons. See id. However, the officer felt what he believed to be a crack rock in plastic. See id. Dickerson was subsequently charged with possession of a controlled substance. See id Harvey, supra note 45, at 892 (citing Minnesota v. Dickerson, 508 U.S. 366 (1993)) See generally Long, 463 U.S. 1032, 1050 (stating that if the search of the car is valid under Terry, the officer need not ignore contraband even though it poses no threat to the safety of the officer) Harvey, supra note 45, at 893 (citing Minnesota v; Dickerson, 113 S.Ct. 2130, 2137 (1993)).

12 CRIMINAL AND CIVIL CONFINEMENT [Vol. 28:161 knowledge, but also on the degree of reliability of that knowledge.'08 Generally, information may come to law enforcement officers through either a known source or by an individual who chooses to remain anonymous. The Court has examined the use of tips by informants as a basis for probable cause Named Informants In Draper v. United States,'" the Court examined whether information provided by a known informant gives the officer "'probable cause' within the meaning of the Fourth Amendment...." Draper was convicted based on evidence obtained after a search which was prompted by a known informant.' 12 Draper sought to have the drug evidence excluded at trial; however, both the trial court and the court of appeals rejected his claim." 3 Draper argued that the law enforcement agent lacked sufficient information to establish probable cause for his arrest The Supreme Court found that "[p]robable cause exists where 'the facts and circumstances within the arresting officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed."' 15 Here, the federal agent was able to verify all of the information the informant provided except whether Draper actually had the narcotics on him. 116 However, the Court explained that "'[i]n dealing with probable cause,... as the very name implies, we deal with probabili See United States v. Colon, 111 F. Supp. 2d 439 (2000) (holding that imputing knowledge from 911 operators to arresting officers is proper) See generally Aguilar v. Texas, 378 U.S. 108 (1964); see also Spinelli v. United States, 393 U.S. 410 (1969). The "two prong" test created by the holdings in Aguilar and Spinelli were later abandoned in favor of a "totality of the circumstances" approach. See generally Illinois v. Gates, 462 U.S. 213, 238 (1983) U.S. 307 (1959). A federal drug agent was informed by Hereford, a known and paid informant, that James Draper was to arrive on a train from Chicago with heroin. See id. at 309. Hereford had given tips to the Denver Narcotics Bureau for approximately six months and had always proved to be reliable. See id. On September 7, 1956, he gave Agent Marsh information concerning a trip Draper was taking to Chicago. See id. He gave detailed information of Draper's description, including his attire and gait, and said Draper would be carrying "a tan zipper bag." See id. Surveillance was established and Hereford's information was corroborated. See id. Draper was stopped and found to have heroin. See id. at 310. He was arrested and convicted despite his objections to the evidence. See Draper, 358 U.S. at Draper, 358 U.S..at See id. at See Draper v. United States, 248 F.2d 295, (1957) See Draper, 358 U.S. at Id. at 313 (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)) (emphasis added) See id.

13 Winter, 2002] FLORIDA v. J.L.: - ANONYMOUS TIPSTERS ties.""' 7 Thus, the Court determined that the tip by the known informant provided sufficient probable cause to believe that Draper was committing a crime Known but Unnamed Informants In Aguilar v. Texas, 1 19 the Court held that a search warrant based on a known informant's tip should not have been allowed and, therefore excluded evidence seized by officers.' In Aguilar, the informant was known to the police but was not named. 12 ' The Court viewed the information provided in the affidavit skeptically They felt that "[f]or all that appears, the source here merely suspected, believed or concluded that there were narcotics in petitioner's possession." 12 3 The Court declared that, while informants may be utilized, the magistrate issuing the warrant must have more information outlining the informant's basis of knowledge. 124 The magistrate must be apprised of "some of the underlying circumstances from which the officer concluded that the informant was 'credible' or his information 'reliable.' "125 Subsequently, the Supreme Court revisited the requirements of credibility and reliability in Spinelli v. United States In Spinelli, the Court applied the same two principals to a tip from an informant who was known to the FBI The FBI executed a search warrant and discovered evidence of a gambling operation.' 28 Spinelli sought to suppress the evidence arguing that the warrant did not establish sufficient evidence of probable cause. 129 Here, the Court found that although the FBI agent indicated in the affidavit that the known informant was reliable, he did not indicate any support of his knowledge of that fact The Court concluded that this informant's tip 117. Id. (quoting Brinegar v. United States, 338 U.S. 160 (1949)) See Draper, 358 U.S. at U.S. 108 (1964). Police obtained a search warrant to search Aguilar's home and found drugs. See id. at The affidavit for the warrant indicated a basis of knowledge from a known, but unnamed source. See id. at See generally Aguilar, 378 U.S. at See id. at See id. at Id. at See id. at Id U.S. 410 (1969). Spinelli was arrested by the FBI and charged with illegal interstate gambling. See id. at 411. The FBI obtained a search warrant which was supported, in part, by an unnamed informant. See id. at 413. The informant reported that Spinelli was "operating a handbook and accepting wagers and disseminating wagering information by means of the telephones." Id. at See id. at See Spinelli, 393 U.S. at See id See id. at 416.

14 CRIMINAL AND CIVIL CONFINEMENT [Vol. 28:161 lacked any independent indication of credibility."' 3 Furthermore, the Court found a lack of credibility, because the tip did "not contain a sufficient statement of the underlying circumstances from which the informer concluded that Spinelli was running a bookmaking operation."' 32 In other words, the Supreme Court focused on how. How the FBI agent knew the informant was "reliable" and exactly how the informant came upon the information. 33 Therefore, while known informants were generally permitted by the Court to provide probable cause, without specific "reliability" and "credibility" enunciated in the affidavit a warrant was thought to not show probable cause. 134 In so holding, the Court refused to consider probable cause under a "totality of the circumstances."' ' Anonymous Informants In Illinois v. Gates, the Supreme Court considered all of the circumstances in their totality. 136 Gates presented information from an informant as a basis of probable cause. 137 However, the informant was anonymous which posed a challenge in verifying his reliability or credibility Upon a motion to suppress, both the trial and the appeals court applied the two prong test of reliability and credibility, finding that the anonymous tip failed to provide probable cause. 139 The Supreme Court adopted a much broader interpretation of its holding in Spinelli, indicating that although the "reliability" and "basis of knowledge" were important factors, "these elements should [not] be understood as entirely separate and independent requirements to be rigidly exacted in each case.. "1"o Instead, the Court determined that the factors discussed in Aguilar and Spinelli "should be understood simply as closely intertwined issues that may usefully illuminate the common sense, practical question whether there is 'probable cause' to believe that contraband or evidence is 131. See id Id See id See Spinelli, 393 U.S. at 418; see also Aguilar v. Texas, 378 U.S. 108, 115 (1964) See Spinelli, 393 U.S. at See generally Illinois v. Gates, 462 U.S. 213 (1983) See generally Illinois v. Gates, 462 U.S. 213 (1983). The Bloomingdale Police Department received an anonymous letter informing them that Lance and Sue Gates would be travelling to Florida and would be returning with drugs in their car. See id. at 225. Based on the tip and observations through investigation, the police obtained a search warrant for their home and automobile. See id. at 226. Upon the execution of the search warrant, police found 350 pounds of marijuana in the trunk of their car. See id. at See id. at See generally People v. Gates, 423 N.E.2d 887 (Ill. 1981) rev'd by Illinois v. Gates, 462 U.S. 213 (1983) Gates, 462 U.S. at 230.

15 Winter, 2002] FLORIDA v. J.L.: - ANONYMOUS TIPSTERS located in a particular place."" 14 Thus, the Court adopted a much more lenient "totality of the circumstances" view of probable cause The Court viewed probable cause as a "fluid concept" which must be assessed in each set of circumstances based on the facts of the case Applying these concepts to Gates, the Court focused on the factors which establish probable cause when considered in their totality.' 1 It was thought important that an independent investigation had been made subsequent to the anonymous tip and its corroboration of the information. 45 As the investigation developed, the police were able to corroborate more of the tipster's information; therefore, the fact that the tipster was anonymous and lacked a track record of reliability became less important.' 46 Finally, the Court illustrated that the tip, while anonymous, "contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted." 147 ' Therefore, the Court held that anonymous tips may be sufficient under the "totality of the circumstances" to establish probable cause. 148 IV. PRE-Florida v. J.L.: Why did the Supreme Court Need to Act? A. Alabama v. White: The Supreme Court Hints at Leniency As discussed above, the Terry doctrine allows an officer to briefly detain and frisk an individual for weapons where the officer has reasonable suspicion that criminal activity is, or is about to take place The Court held that the source of the reasonable suspicion need not come directly from the officer's observations as long as the alternative source contains sufficient indicia of reliability. 150 In Adams v. Williams,"' 5 the Court rejected "the argument that reasonable cause for a stop and frisk can only be based on the 141. Id See id. at See id. at See id. at See id. at See Gates, 462 U.S. at 244. "[Blecause an informant is right about some things, he is more probably right about other facts... Id. (citing Spinelli v. United States, 393 U.S. 410, 427 (1969) (White, J., concurring)) Gates, 462 U.S. at See id. at See generally Terry v. Ohio, 392 U.S. 1 (1968) See Adams v. Williams, 407 U.S. 143, 148 (1972). Police received a tip from a known informant that Robert Williams was in possession of narcotics and a firearm. See id. at 145. Acting on that tip, the police approached Williams and reached into his car pulling a handgun from his waistband. See id. Williams was arrested for being in possession of a firearm. See id. Upon a search incident to that arrest, heroin, another gun, and a machete were seized. See id U.S. 143 (1972).

16 CRIMINAL AND CIVIL CONFINEMENT [Vol. 28:161 officer's personal observation, rather than on information supplied by another person."' 5 2 The Court gave an example of a situation where an officer receives information from a victim about the perpetrator of the crime. 153 Before reacting, the police should first consider and evaluate the reliability of the information. 154 As noted above, Gates examined anonymous tips in the context of probable cause. 155 In Alabama v. White, 56 ' the issue became whether an anonymous tip, "as corroborated by independent police work, exhibited sufficient indicia of reliability to provide reasonable suspicion to make an investigatory stop."' 1 57 In White, the Montgomery Police Department received an anonymous phone call indicating that Vanessa White was in possession of drugs The caller provided White's name, a description of her vehicle, and where she would be leaving from and going to. 159 Police conducted surveillance and observed White leaving her home and getting into the car that was described. 6 When White neared the motel that the tipster indicated as her destination, the police stopped her.1 61 Upon a search of White's attach6 case, police found marijuana and placed her under arrest.1 62 Although the Supreme Court of Alabama would not review the case, the United States Supreme Court granted certiorari "[b]ecause of differing views in the state and federal courts over whether an anonymous tip may furnish reasonable suspicion for a stop...,163 In considering its decision, the Supreme Court recognized that: 152. Id. at See id See id See supra notes and accompanying text U.S. 325 (1990) Id. at (emphasis added) See id. at See id See id See id. at See White, 496 U.S. at 327. The trial court denied White's motion to suppress the evidence. See id. The appellate court reversed, finding that the officers did not have sufficient reasonable suspicion to stop White's car. See id. at Id. at 328. See e.g., U.S. v. McClinnhan, 660 F.2d 500 (D.C. Cir. 1981) (holding corroborated information from an anonymous caller which provided descriptive information with the prediction of future behavior was sufficiently reliable); Hetland v. State, 387 So. 2d 963 (Fla.1980) (affirming the lower court's decision and upholding a stop and frisk based on information from an anonymous telephone call); State v. Webb, 398 So. 2d 820 (Fla.1981) (holding that apparently anonymous information in a BOLO (Be On the Look Out) was a reasonable basis for a stop and frisk because it bore sufficient indicia of reliability). But see e.g., United States v. McLeroy, 584 F.2d 746 (5th Cir. 1978) (holding an apparently anonymous tip is insufficient to provide reasonable suspicion for the police in order to conduct an investigatory stop); Robinson v. State, 556 So. 2d 450 (Fla.1990) (holding that the anonymous tip did not establish reasonable suspicion because the caller provided only "innocent details.").

17 Winter, 2002] FLORIDA v. J.L.: - ANONYMOUS TIPSTERS [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.' 64 The Court simply expanded its earlier holding in Adams v. Williams The Court stated that, both the "quantity and quality-are considered in the 'totality of the circumstances-the whole picture.' 166 Here, although the tipster was anonymous, their reliability could be bolstered by using a "totality of the circumstances" approach and verifying the details Although the Court recognized that the corroboration by the officers in the present case was not as strong as that in Gates, it reasoned that because the reasonable suspicion standard was less than probable cause, it required less corroboration. 6 8 Thus, the Court found "that under the totality of the circumstances the anonymous tip, as corroborated, exhibited sufficient indicia of reliability to justify the investigative stop of the respondent's car." 16 9 B. The Effects of Alabama v. White Some viewed the decision in White as further eroding an already diminished Fourth Amendment. 7 ' White has been criticized for the possibility that, "[any unscrupulous police officer who is prepared to commit perjury can testify that a warrantless stop was based on an anonymous informant's tip predicting whatever conduct the police officer just observed." 17 ' Furthermore, the dissent in Adams v. Williams1 72 noted that the Terry doctrine "was meant for the serious cases of imminent danger or of harm recently 164. White, 496 U.S. at U.S. 143, 147 (1972) (holding that tips from known informants are sufficiently reliable to justify a Terry stop) White, 496 U.S. at 330 (quoting United States v. Cortez, 449 U.S. 411,417 (1981)) See id. at 330; see also Illinois v. Gates, 462 U.S. 213 (1983) (holding that because a tipster is right about some things, he is probably right about others as well) See White, 496 U.S. at Cf Adams v. Williams, 407 U.S. 143 (1972). While the tip in Williams was from a known source, the Court found that although the tip alone may not rise to the level of probable cause, it could nevertheless suffice to provide reasonable suspicion. See id White, 496 U.S. at 332. The dissent pointed out that the information given to police could have come from a source with no true knowledge of the fact that White possessed drugs. See id. at 333 (Stevens, J., dissenting). Justice Stevens pointed out that the tipster may have been someone with a grudge or simply playing a prank. See id. He also noted that the record did not indicate how often White made the predicted movements. See id. "[F]or all we know, she may have been a room clerk or telephone operator working the evening shift [at the motel]." Id See Shifrin, supra note 60, at Id. at (discussing the problem of "post hoc police fabrications") U.S. 143 (1972).

18 CRIMINAL AND CIVIL CONFINEMENT [Vol. 28:161 perpetrated to persons or property, not the conventional ones of possessory offenses." 173 More importantly, the Court in White, just as in Gates, rested its decision on what it believed was sufficient corroboration of the anonymous tip. 74 Therefore, following White, courts grappled with what constituted sufficient corroboration to establish reasonable suspicion. Although courts generally recognized that third party information could provide reasonable suspicion, "Itihe difficult question [was] how much corroboration is necessary to justify an intrusion of the suspect's Fourth Amendment rights."' 7 5 The tip in White identified a suspect and accurately predicted future behavior, which the Court determined gave sufficient credibility to the tipster's reliability.' 76 However, the Court failed to give any bright-line distinction on what constitutes sufficient corroborative information. C. The Jurisdictions Disagree on the Treatment of Anonymous Tips As noted above, the Supreme Court's ruling in Alabama v. White left the lower courts with an ambiguous definition of reliability. Following the ruling, various courts became divided on their treatment of anonymous tips. The Second, Seventh, Eleventh, and District of Columbia United States Circuit Courts of Appeals followed the White decision, upholding anonymous tips as providing reasonable suspicion Conversely, the Third and Tenth United States Circuit Courts of Appeals, as well as some state supreme courts, found anonymous tips to be an unsatisfactory basis for reasonable suspicion Id. at 153 (Brennan, J., dissenting) See White, 496 U.S. at United States v. White, 648 F.2d 29, 41 (D.C. Cir. 1981), cert. denied, 454 U.S. 924 (1981) (holding that a corroborated anonymous tip of a drug transaction provided reasonable suspicion for an investigatory stop); see also United States v. McClinnhan, 660 F.2d 500 (D.C. Cir. 1981) (holding an anonymous phone call that a particular person had a sawedoff shotgun in a briefcase, was sufficient corroboration to allow a stop and frisk of the individual) See White, 496 U.S. at See e.g., United States v. Bold, 19 F.3d 99 (2d Cir. 1994); United States v. De- Berry, 76 F.3d 884 (7th Cir. 1996); United States v. Gibson, 64 F.3d 617 (11th Cir. 1995); United States v. Clipper, 973 F.2d 944 (D.C. Cir. 1992) See e.g., United States v. Roberson, 90 F.3d 75 (3rd Cir. 1997); United States v. Soto-Cervantes, 138 F.3d 1319 (10th Cir. 1998); United States v. Fernandez, 943 F.Supp. 295 (S.D.N.Y. 1996); Commonwealth v. Lyons, 564 N.E.2d 390 (Mass. 1990); Commonwealth v. Hawkins, 692 A.2d 1068 (Pa. 1996).

19 Winter, 2002] FLORIDA v. J.L.: - ANONYMOUS TIPSTERS 1. Courts that Found Reasonable Suspicion Based on Anonymous Tips The facts of United States v. Clipper closely paralleled those in J.L In Clipper, police received an anonymous phone call alerting them that there was a black male in possession of a gun on a particular street corner. 180 Just as in J.L., the caller gave only a description of the subject's clothing and location. 1 ' Police responded to the location and observed Ronald Clipper wearing the clothing described by the caller The police conducted a stop and frisk of Clipper and, although no gun was recovered, found drugs and money. 183 Claiming that the police did not have reasonable suspicion to conduct a Terry stop, Clipper moved to have the drugs suppressed. 84 Clipper argued that under the Supreme Court's holding in Alabama v. White, an anonymous tip requires predictions of future behavior. 185 The appeals court disagreed, reasoning that "[t]he Court in that case did not depart from its wellestablished 'totality of the circumstances' test; nor did it adopt a categorical rule requiring the corroboration of predictive information as a precondition to reliance on anonymous tips." ' 186 The court believed that the "totality of the circumstances" discussed in White balanced interests and concluded that the tip to the police in this case was sufficient under the circumstances to provide reasonable suspicion. 187 The Second Circuit also evaluated an anonymous tip against the holding in White. In United States v. Bold, 188 police received an anonymous tip that three black males were in a four door gray Cadillac, located in a White Castle restaurant parking lot in New York.' 8 9 The tipster informed police that one of the occupants of the car was twenty-one years old, wearing a hooded sweatshirt, and armed with a gun.' 9 Police responded and upon an F.2d 944 (D.C. Cir. 1992) See Clipper, 973 F.2d at See id. The caller gave only a description of the subject's jacket and hat. See id See id. at See id. at 946. Clipper fled after a brief detention, but was subsequently subdued. See id See id. at See Clipper, 973 F.2d at Id. The Court also noted that reasonable suspicion is a less demanding standard than probable cause and, therefore, requiring less reliable information. See id. (citing Alabama v. White, 496 U.S. 325, 330 (1990)) See id. at F.3d 99 (2d Cir. 1994) See id. at See id.

20 CRIMINAL AND CIVIL CONFINEMENT [Vol. 28:161 investigatory stop, found that Bold and another occupant matched the description of suspects in a bank robbery from earlier that day."' Here, the defendant made a slightly different argument for suppression than in Clipper Bold focused more on the reliability itself rather than simply on the predictive information,' 93 arguing that an anonymous tip, by itself, did not justify the investigative stop. 194 He attacked the reliability of the tip claiming: [11 that the reliability of the anonymous tip is not shown simply by corroborating easily obtained facts existing at the time of the tip... [2] confirmation that a gray Cadillac was located at a specific White Castle could not add to the reliability of the report that one of the Cadillac's occupants had a gun, and [3] that there were here none of the factors present in other cases... that would raise the tip to the level of a reasonable suspicion. 195 The district court in Bold suppressed the evidence, reasoning that the Alabama v. White holding required future predictions by the tipster or significant observations by the police which would otherwise establish the tipster's reliability. 196 However, shortly after the district court's ruling, the Second Circuit in United States v. Walker 197 held that although an anonymous tip itself provided little indicia of reliability, reasonable suspicion was established under the totality of the circumstances "because the police verified nearly every aspect of the tip." '198 As a consequence of the holding in Walker, the Second Circuit reversed the district court's decision in Bold and found that the officers had reasonable suspicion under a "totality of the circumstances" test.' 9 9 The court specifically agreed with the holding in Clipper stating, "[t]here is nothing in 191. See id. at 101. Officers asked each of the occupants to get out of the car. See id. Upon searching the occupants, they found a large quantity of cash, a toy gun, a tweed coat, and a briefcase. See id. One of the officers remembered that there had been a bank robbery in the area earlier that day and radioed for a description of the robbers. See Bold, 19 F.3d at See Bold, 19 F.3d at See id See id Id. Bold argued that other factors were present in cases upholding a stop based on an anonymous tip. See id. Some factors noted were "prior information about the informant, significant observations at the scene giving credence to the tip, or the location being noteworthy for the type of crime being alleged... Id See Bold, 19 F.3d at (citing Alabama v. White, 496 US. 325 (1990)) F.3d 26 (2d Cir. 1993). Amtrak police received an anonymous tip that described a black male who would be arriving in New York from the south transporting firearms. See id. at 27. Walker was later located in the station and his bags were searched. See id. at Walker was arrested after the police recovered two guns and ammunition from his bag. See id. at Id. at See Bold, 19 F.3d at 104.

21 Winter, 2002] FLORIDA v. J.L.: - ANONYMOUS TIPSTERS White that precludes police from acting on an anonymous tip when the information to be corroborated refers to present rather than future actions. In United States v. DeBerry, 20 the Seventh Circuit also decided a case on facts similar to those in J.L. and accepted yet another argument for upholding reasonable suspicion. 2 2 Here, the police received an anonymous tip that described a particular black male on a certain street corner who had a gun The Seventh Circuit articulated that the tip, by itself, would be inadequate to establish reasonable suspicion and that "[a]nyone who saw De- Berry, whether or not he knew him, might have supplied the tip. Despite this observation, the court found the fact that the caller alleged that DeBerry was in possession of a gun contributed significantly to the "totality of the circumstances" and provided officers with the requisite reasonable 205 suspicion. 2. Courts that Found No Reasonable Suspicion from Anonymous Tips Some courts have followed a narrower interpretation of White, holding that predictive information is required to lend credibility to an anonymous tip. In United States v. Roberson, 20 6 the Third Circuit examined an anonymous tip concerning the sale of drugs The tipster described Roberson's build, clothing, and location and informed the police that the person was selling drugs on the street. 2 8 The police responded, and as they approached Roberson with guns drawn, they observed a gun in his waistband The police recovered the gun, drugs, and cash. 210 Roberson challenged the seizure claiming that the anonymous tip did not give the officers reasonable suspicion to detain him. 2 " 200. Id F.3d 884 (7th Cir. 1996) See id. at See id Id. at 886. But see United States v. Packer, 15 F.3d 654 (7th Cir. 1994) (holding that police did not have reasonable suspicion to make an investigatory stop based on an anonymous tip which described only a suspicious car and made only an averment to a particular crime) See DeBerry, 76 F.3d at 886. The court seems to support a firearms exception, finding reasonable suspicion based solely on the fact that the reported criminal activity involved a weapon. See id; see also United States v. Clark, 1999 U.S. App. LEXIS (7th Cir. Dec. 7, 1999) (unpublished table decision) F.3d 75 (3d Cir. 1996) See generally id See id. at See id. at See id See id.

22 CRIMINAL AND CIVIL CONFINEMENT [Vol. 28:161 The Third Circuit agreed with Roberson's reasoning that "Alabama v. White stressed corroboration and predictiveness. '212 The court found that the tip in this case provided innocent details which could have been provided by anyone observing the subject because the details were describing present conditions The court refused to "stretch Alabama v. White any further, [holding] that police do not have reasonable suspicion for an investigative stop when, as here, they receive a fleshless anonymous tip of drugdealing that provides only readily observable information... In United States v. Soto-Cervantes, 215 the Tenth Circuit also found that an anonymous tip, by itself, could not establish reasonable suspicion. 216 An anonymous tipster notified police that a group of Mexican nationals were involved in selling drugs in a gray pickup truck at a certain location. 217 The police responded and after an investigatory detention, discovered that Soto- Cervantes was an alien who had been deported and was in the country illegally. 218 The court noted that the tipster had provided specific descriptions of the individuals involved, their car, and the location of the activity. 219 However, the court held that "[w]hile verification of those facts may have increased the officer's confidence in the tipster's information, it did not provide enough reasonable suspicion by itself to justify the stop., 22 0 Individual state supreme courts also adopted a strict reading of Alabama v. White In Commonwealth v. Hawkins, 222 the Pennsylvania Supreme Court found that the police lacked reasonable suspicion to stop and frisk Hawkins. 223 Police received a report from an unknown source that a black male wearing certain clothes was on a particular street corner and was in possession of a gun Police responded quickly and observed Hawkins 212. Roberson, 90 F.3d at See id Id. at F.3d 1319 (10th Cir. 1998) See id. at The court did, however, deny the defendant's motion to suppress the evidence because a multitude of other factors combined together to provide reasonable suspicion under the totality of the circumstances. See id. at The court noted that other subjects of the tip took action in the presence of the officers which created the necessary reasonable suspicion. See id See id. at See Soto-Cervantes, 138 F.3d at See id. at Id U.S. 325 (1990) A.2d 1068 (Pa. 1997) See id. at See id. at 1069.

23 Winter, 2002] FLORIDA v. J.L.: - ANONYMOUS TIPSTERS who matched the description They conducted a Terry stop and frisked Hawkins, finding a gun in his waistband The court found that the police had no way to assess the reliability of the tip in this case, nor did they make any independent observations that would justify the stop. 227 The court denied that reasonable suspicion existed, holding that where police respond to an anonymous call such as this, "they have no certain knowledge except that the caller accurately described someone at a particular location. ' 228 The Massachusetts Supreme Judicial Court strongly rejected the White standard. 229 In Commonwealth v. Lyons, 23 police received an anonymous tip that two white males had just bought drugs and would be traveling to Maine in a silver Hyundai. 231 The caller gave the registration number for the car, which was observed shortly thereafter by police Based solely on the tip, the police stopped the car and discovered drugs. 233 The court declared that the "totality of the circumstances" described in White was "flexible, but [ ] also 'unacceptably shapeless and permissive.', 234 The court concluded that the police lacked reasonable suspicion, as they were unable to establish the reliability of the informant It was particularly noted that the tip lacked predictive information and the "corroboration went only to obvious '2 36 details, not non-obvious details. Therefore, the tipster did not demonstrate "any special familiarity with the defendants' affairs that might substitute for explicit information about the basis of the caller's knowledge." 23' 7 V. FLORIDA v. J.L. ATTEMPTS TO TIGHTEN THE REINS As discussed above, subsequent to the White decision, courts struggled to determine precisely which type of factors were determinative of a "reliable" tip. 238 The court in Alabama v. White reasoned that "an anonymous tip 225. See id See id See id. at Hawkins, 692 A.2d at See generally Commonwealth v. Lyons, 564 N.E.2d 390 (Mass. 1990) N.E.2d 390 (Mass. 1990) See id. at See id See id Id. (quoting Commonwealth v. Upton, 390 Mass. 562, 574 (1983)) See Lyons, 564 N.E.2d at Id. Id See, e.g., United States v. Gibson, 64 F.3d 617 (11 th Cir. 1995) (holding a corroborated anonymous tip sufficient to provide reasonable suspicion); United States v. Salazar, 945 F.2d 47 (2d Cir. 1991) (holding an anonymous tip of drug sales sufficient for reasonable suspicion when corroborated). But see, e.g., United States v. Roberson, 90 F.3d 75 (3d Cir.

24 CRIMINAL AND CIVIL CONFINEMENT [Vol. 28:161 alone seldom demonstrates the informant's basis of knowledge or veracity. ' 239 Therefore, some other factors must be present to develop the anonymous tip into sufficiently reliable information for a proper investigatory stop. The United States Supreme Court attempted to bring some clarification to the factors that were being considered in the case of Florida v. J.L. 24 In J.L., a unanimous Supreme Court addressed the two main arguments of both parties involved and examined other court decisions which evaluated whether an anonymous tip was sufficient to establish reasonable suspicion. 2 4 ' A. Reliability Perhaps the most prominent consideration in any court's decision on accepting anonymous tips as creating reasonable suspicion has been whether the information provided is based simply on innocent details or "indicates some familiarity with that person's affairs... "242 In Florida v. J.L., the information provided to the police concerned a "young black male standing at a particular bus stop and wearing a plaid shirt...,,243 The Court found that the details provided by the tipster were not sufficient to give the police an opportunity to evaluate the reliability of the informant. 244 The Court reasoned that a tip that included nothing more than observation of the subject was limited in its usefulness Details of a subject's location and appearance such as in J.L.'s case may be useful for purposes of identification. 246 However, this type of non-predictive information makes no assertion to knowledge of criminal activity and "[t]he reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality 1996) (holding an anonymous tip of drug sales insufficiently reliable to show reasonable suspicion); United States v. Fernandez, 943 F. Supp. 295 (S.D.N.Y. 1996) (holding an anonymous tip of a person with a gun was not sufficiently reliable for reasonable suspicion) Alabama v. White, 496 U.S. 325, 329 (1990). The Court found, however, that when properly corroborated, an anonymous tip was sufficient to justify an investigatory stop. See id U.S. 266 (2000) See generally id. Justice Ginsburg wrote the opinion and Justice Kennedy filed a concurring opinion with which Chief Justice Rehnquist joined. See id. at Id. at 271. The Court highlighted its earlier decision in White and found it to be a "close case." Id. It noted that having such intimate knowledge "does not necessarily imply that the informant knows, in particular, whether that person is carrying hidden contraband." Id J.L., 529 U.S. at 268. There is no indication that the caller gave any additional information or that the call was recorded. See id See id. at See id. at See id.

25 Winter, 2002] FLORIDA v. J.L.: - ANONYMOUS TIPSTERS..*,247 Justice Kennedy's concurring opinion notes that while a tip may be, strictly speaking, anonymous, it may have other features that make it more reliable. 248 "One such feature... is that the tip predicts future conduct of the alleged criminal." 249 ' The Court noted that in its prior decision of Alabama v. White, 25 it was only after the anonymous tipster's information concerning the predicted behavior was corroborated that it became reasonable to believe that the tipster had intimate knowledge of the subject. 2 It was only then that police had a reasonable basis for establishing that the anonymous tip contained sufficient "indicia of reliability" and had grounds to conduct an investigatory stop. 252 The police in J.L., however, received no information regarding any future behavior leaving them in a very different position than the police involved in White. 53 Where the police in White were able to bolster the reliability of the informant with corroboration of predictive information, here no such details were given to support a basis of the informant's information. 254 The Court declared that "[i]f White was a close case on the reliability of anonymous tips, this one surely falls on the other side of the line." 255 Interestingly, in Hetland v. State, 256 a case decided prior to J.L., the Florida Supreme Court held that police could conduct an investigatory stop based on an anonymous tip when surrounding circumstances warranted it. 257 The court also decided another case on similar facts to J.L. in In Robinson v. Florida, 258 the Tallahassee Police Department received an anonymous tip "that a black male, approximately 40 years of age, wearing a brown jacket and green army pants, was selling crack cocaine near the chapel in the 400 block of West Georgia Street. '259 As in J.L., the informant gave explicit details of the subject, but no predictions of future behavior or any other indications of a basis of knowledge of criminal activity Id. The Court drew a distinction between reliability of an identification and reliability of knowledge of criminal activity. See id See J.L., 529 U.S. at 275. Justice Kennedy went on to suggest a number of factors that would enhance the reliability of an anonymous tip. Those factors include: predictive information, successive calls of verified information, face-to-face informant(s), voice recording and recordings of phone numbers. See id Id. at U.S. 325 (1990) See J.L. 529 U.S. at See id See id. at See id Id So.2d 963 (Fla. 1980) See id. at So. 2d 450 (Fla. Dist. Ct. App. 1990) Id. at See id. at 452. Although the subject in this case was in a posted no trespass area, the department procedure on arrest for trespassing was to have a letter on file from the

26 CRIMINAL AND CIVIL CONFINEMENT [Vol. 28:161 Here, the court found that "the tip itself offered nothing more than innocent details of identification that could have been provided by any pilgrim on the roadway." 26 ' Additionally, the possibility that an anonymous tip was provided by a spiteful individual who was simply causing trouble for the subject of the tip has been addressed in past cases In United States v. McClinnhan, 63 the court recognized that "it is possible for anyone with a grudge to fabricate a tip whose neutral details, such as clothing and location, would provide the corroboration required... " 2 6 Similarly, the dissenting opinion by Justice Stevens in Alabama v. White 265 points out that even the predictive information given to the police should be suspect. 266 Justice Stevens wrote that "[a]nybody with enough knowledge about a given person to make her the target of a prank, or to harbor a grudge against her, will certainly be able to formulate a tip... like the one predicting Vanessa White's excursion. ' "267 Subsequent to the holding in Florida v. J.L., the United States District Court in Texas made a similar determination citing a lack of predictive information in United States v. Lopez-Valdez. 268 In Lopez-Valdez, the court dealt with an anonymous phone tip indicating that a vehicle contained illegal aliens. 269 The court followed the reasoning of Florida v. J.L. and found that "without corroboration of predictive information or the independent observation by the agents of suspicious activity, the anonymous caller's information is not sufficiently reliable to justify the intrusion of an immigration stop." 2 70 The court found that, much like in J.L., the only information that had been corroborated was that of identification, in this case a vehicle. 27 ' Additionally, the court mentioned that unlike the firearm in J.L., one's immigraproperty owner. See id. at 451. The owner of the property in this case had no such letter on file. See id Id. at See Alabama v. White, 496 U.S. 325, 333 (1990) (Stevens, J., dissenting); see also United States v. McClinnhan, 660 F.2d 500, 502 (D.C. Cir. 1981) F.2d 500 (D.C. Cir. 1981) Id. at 502 (discussing United States v. White, 648 F.2d 29 (D.C. Cir. 1981)) U.S. 325 (1990) See id. at 333 (Stevens, J., dissenting). Justice Stevens points out that the subject of the tip in this case could have had a regular routine and may have worked at the motel that she was said to be heading to. See id Id. (suggesting that Vannessa White's trip to the motel could have been easily predicted if it was one that she made regularly, such as if she had worked there) F.Supp. 2d 728 (W. D. Tex. 2000) See generally id Id. at See id. at 731.

27 Winter, 2002] FLORIDA v. J.L.: - ANONYMOUS TIPSTERS tion status is not readily apparent, requiring the caller to provide a basis for such a conclusion in order to establish reasonable suspicion. 272 Justice Kennedy's concurring opinion in J.L. illustrates that, generally, when considering whether third party information establishes the requisite reasonable suspicion, courts will lend credibility to tipsters who provide information in such a way that their identity could be discovered. 273 In United States v. Salazar, 274 the Second Circuit stated that "a face-to-face informant must.., be thought more reliable than an anonymous telephone tipster, for the former runs the greater risk that he may be held accountable if his information proves false. '2 75 The Fourth Circuit recently agreed, indicating in United States v. Christmas, 2 76 that these face-to-face tips hold more reliability because police officers have the ability to assess the informant's "credibility and demeanor In J.L., however, the tipster made an anonymous phone call. The police had to rely solely on the content of the information provided to assess reliability. 278 A more updated extension of the heightened conduit of the tip as enhancing reliability is the recorded 911 call. 279 Justice Kennedy's concurring opinion points out that with caller identification and voice recordings, there exists a greater possibility to identify the caller. 280 This avoids the truly anonymous situation where the caller "has not placed his credibility at risk and can lie with impunity. '281 For instance, in Arizona v. Gomez, 282 the Arizona Court of Appeals held that the police had reasonable suspicion to make an investigatory stop based on a recorded 911 call The court makes a clear distinction between traceable and untraceable calls indicating that "[b]y making a traceable call from her home, this caller placed her credibility at risk.. " See id. at See J.L., 529 U.S. at 276 (Kennedy, J., concurring). "If an informant places his anonymity at risk, a court can consider this factor in weighing the reliability of the tip." Id F.2d 47 (2d Cir. 1991) Id. at F.3d 141 (4th Cir. 2000) See id. at 144 (distinguishing the facts of this case from those in Florida v. J.L. as the tip here had more credibility because it was a face-to-face encounter) See J.L., 529 U.S. at 275 (Kennedy, J., concurring) See id. at See id Id. at P.3d 765 (Ariz. Ct. App. 2000) See id. The caller reported that the passenger of a truck was pointing a gun out of the truck's window moments before. See id. at 766. She provided police with a description of the truck as well as the plate number and direction of travel. See id. The caller indicated that she wished to remain anonymous; however, the police were able to call the tipster back. See id. at Gomez, 6 P.3d at 768; see also United States v. Colon, 111 F. Supp. 2d 439 (S.D.N.Y. 2000). Police recorded a 911 call from a female who alleged that a man was in a

28 CRIMINAL AND CIVIL CONFINEMENT [Vol. 28:161 B. The Nature of the Behavior Alluded to in the Tip One argument advanced by the State of Florida in J.L., as well as the United States as amicus, was that the nature of the illegal activity, such as the possession of a firearm, should justify a more relaxed standard of what constitutes reasonable suspicion. 285 The Court's reasoning in Terry v. Ohio 28 6 was based on a similar argument. 287 In Terry, the Court held that "[t]he officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. '288 Indeed, the Supreme Court enunciated in United States v. Sokolow 2 89 that when evaluating reasonable suspicion, "we must consider 'the totality of the circumstances-the whole picture.'"29 Professor LaFave suggests that there is no basis for taking any such action short of "'serious personal injury or grave irreparable property damage... "291 In all other cases, police should establish surveillance or gain additional reliable information. 292 The United States Court of Appeals disagreed in United States v. McClinnhan 293 considering such a situation to be an "unappealing choice. '294 The court reasoned that it was proper for the officers to conduct an investigatory stop based on an anonymous tip of a concealed weapon, rather than "follow [the defendant] through the streets of Washington hoping he would commit a crime, or at least brandish the weapon In fact, two dissenting Justices of the Florida Supreme Court in J.L disagreed with Professor LaFave, opining that public safety justifies a firearms exception. 296 The District of'columbia Circuit Court considered the issue as a balance in United States v. Clipper The court in Clipper supported nightclub with a gun. See id. at 440. The caller said that although she wished to remain anonymous, another officer at the station had a report of a prior assault on her by the subject. See id See J.L. v. State, 727 So. 2d 204, 214 (Fla. 1998) (Overton, J., dissenting) U.S. 1 (1968) See id. at Id U.S. 1 (1989) Id. at 8 (quoting United States v. Cortez, 449 U.S. 411, 417 (1981)) Wayne R. LaFave, "Street Encounters" and the Constitution: Terry, Sibron, Peters and Beyond, 67 MICH. L. REv. 40, 78 (1968) (quoting People v. Taggart, 229 N.E. 2d 581, 584 (1967)) See id F.2d 500 (D.C. Cir. 1981) See id. at Id. at See J.L. 727 So. 2d at 214 (Overton, J., dissenting). "[T]he United States Supreme Court, in formulating the 'reasonable suspicion' test under Terry, balanced the privacy interests of citizens with the safety interests of police officers and the public." Id. at F.2d 944 (D.C. Cir. 1992).

29 Winter, 2002] FLORIDA v. J.L.: - ANONYMOUS TIPSTERS a firearms exception as part of the totality of the circumstances. 298 The court reasoned that the totality of the circumstances included not only predictive information, but corroborated facts "alerting them to an imminent danger that the police cannot ignore except at risk to their personal or the public's safety. '299 The court viewed this reasoning as not disturbing prior decisions regarding the Fourth Amendment. 3 " The court explained that post Terry decisions "involve a careful balancing of interests. ' "301 However, The United States Supreme Court in J.L reasoned that "an automatic firearm exception to our established reliability analysis would rove too far., The Court declined to adopt such an exception for cases where a firearm was the subject of the tip. 3 3 The Court reasoned that an automatic firearms exception would create a situation where any person seeking to cause harassment could simply call and falsely report that someone was carrying a firearm. 3 " Additionally, many courts have found that it is per se foreseeable that people who are dealing drugs are also in possession of firearms The Court in J.L. was concerned that "[i]f police officers may properly conduct Terry frisks on the basis of bare-boned tips about guns,... the police should similarly have discretion to frisk based on bare-boned tips about narcotics While the Court declined to create a general exception for firearms, it did consider the dangerousness of the subject of the tip to be a factor. 3 " 7 The Court indicated that circumstances may exist where the public danger involved in an anonymous tip is "so great as to justify a search even without a showing of reliability." 30 8 The Court gave an example of a situation where the police receive a tip that a person is carrying a bomb The Court also indicated that protective searches may be reasonable with less reliability where there is a diminished expectation of privacy such as schools or airports. 3 " 0 There is a similar public safety argument which attempts to justify reducing the level of scrutiny used in cases involving apparently intoxicated driv See id. at id. at See id Id J.L., 529 U.S. at See id See id See, e.g., United States v. Sakyi, 160 F.3d 164, 169 (4th Cir. 1998); United States v. Dean, 59 F.3d 1479, 1490 (5th Cir. 1995); United States v. Odom, 13 F.3d 949, 959 (6th Cir. 1994); United States v. Martinez, 958 F.2d 217, 219 (8th Cir. 1992) J.L., 529 U.S. at See id Id See id See id. at 274.

30 CRIMINAL AND CIVIL CONFINEMENT [Vol. 28:161 ers. In Stewart v. State, 31 ' the state argued that an anonymous tip of a driver who appeared intoxicated should be allowed to provide the reasonable suspicion for an officer to stop the vehicle, even when no erratic behavior is directly observed by the officer In Stewart, the Texas Court of Appeals followed a strict reading of Alabama v. White 3 13 and held that while anonymous phone tips are sufficient to initiate an investigation "alone, [they] will rarely establish the level of suspicion required to justify a detention." 314 The Texas Court of Criminal Appeals agreed with the Supreme Court's view in Florida v. J.L that the anonymous tip serves a limited purpose of reliability. 316 The court concurred that an accurate description of a subject's present state is reliable to "help the police correctly identify the person whom the tipster means to accuse...[but] does not show that the tipster has knowledge of concealed criminal activity Consequently, as an allegation of illegal activity is necessary, the court finds that the tip by itself may not create reasonable suspicion Just as in J.L., the Texas Court of Criminal Appeals declined to allow the danger posed by the subject of the tip, such as an intoxicated driver, to be calculated into the totality of the circumstances C. The J.L. Result When considering the holding in J.L. with the preceding cases, it is clear that although the Court appeared to stress the predictive nature of the tip, the true concern lies with the caller's reliability The current state of the law requires a strict adherence to circumstances which indicate the informant's reliability, which simply may come by way of a high degree of predic S.W.3d 646 (Tex. Crim. App. 2000) See id. at 648. Police received an anonymous telephone call that there was a green Camaro with a white driver and one passenger parked at the gas pumps at a particular convenience store. See id. The caller reported that the driver appeared intoxicated. See id. Police responded within two minutes and located a car matching the description at the gas pumps. See id. The officer observed the vehicle proceed to the roadway and immediately stopped the vehicle. See id U.S. 325 (1990) Stewart, 22 S.W.3d at U.S. 266 (2000) See Stewart, 22 S.W.3d at J.L., 529 U.S. at See Stewart, 22 S.W.3d at See id. at See Alabama v. White, 496 U.S. 325, 332 (1990) (holding that "[w]hen significant aspects of the caller's predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed..."); see also J.L., 529 U.S. at 268 (holding that an anonymous tip is not, "without more, sufficient to justify a police officer's stop and frisk..." (emphasis added)).

31 Winter, 2002) FLORIDA v. J.L.: - ANONYMOUS TIPSTERS tive information where no other factors are present to enhance reliability. 32 ' However, other tests of an anonymous tipster's reliability are available and continue to be valid. 322 It has been suggested that it would not be rational to expect law enforcement officers to make snap, case-by-case decisions assessing the level of "reasonableness" present for a search and seizure The United States Supreme Court has said that "a single, familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront." 324 ' It has been argued that "categorical Fourth Amendment rules often lead to substantial injustice; in addition, their artificiality commonly makes them difficult, not easy, to apply. 325 The United States Supreme Court in J.L. refused to draw a bright line rule for or against anonymous tips This may leave the law enforcement officer to question on a case-by-case basis exactly what more the Court believed would make an anonymous tipster credible enough to establish reasonable suspicion The Court's opinion in J.L. makes it clear that predictive information, when thoroughly corroborated, is key "indicia of reliability The Court makes clear, however, that the predictions must be for some future conduct suggesting that the informant possesses some 9 intimate knowledge of the subject's affairs. Where no predicative information is provided by the anonymous informant, the concurring opinion by Justice Kennedy, in which Chief Justice Rehnquist joined, offers some suggestions for reliability enhancement See J.L., 529 U.S. at 271 (determining that "[tihe anonymous call concerning J.L. provided no predictive information and therefore left the police without means to test the informant's knowledge or credibility."). But see Christmas, 222 F.3d at 141 (holding an anonymous tip which included no predictive information was sufficiently reliable to create reasonable suspicion where the tipster gave the information face-to-face) See J.L., 529 U.S. at 274; see also Christmas, 222 F.3d at See LaFave, supra note 64, at 141. A highly sophisticated set of rules, qualified by all sorts of ifs, ands, and buts and requiring the drawing of subtle nuances and hairline distinctions, may be the sort of heady stuff upon which the facile minds of lawyers and judges eagerly feed, but they may be 'literally impossible of application by the officer in the field.' Id. (quoting United States v. Robinson, 471 F.2d 1082, 1122 (D.C. Cir. 1972) (Wilkey, J., dissenting)) Dunaway v. New York, 442 U.S. 200, (1979) Albert W. Alschuler, Bright Line Fever and the Fourth Amendment, 45 U. PIrr. L. REv. 227, 231 (1984) See J.L., 529 U.S. at See id. at 268. The Court held that an anonymous tip was not "without more" sufficient to create reasonable suspicion. See id See id. at See id. at See id. at 275 (Kennedy, J., concurring).

32 CRIMINAL AND CIVIL CONFINEMENT [Vol. 28:161 Justice Kennedy suggested that where calls by the same anonymous voice on "two successive nights about criminal activity which in fact occurs each night, a similar call on third night..." may be thought to be sufficiently reliable."' Justice Kennedy also discussed the impact of the method by which the tipster conveys the information, reasoning that when the tipster risks his anonymity, his information may be considered more reliable. 32 Included in these risks are face-to-face tips, traceable 911 calls, and the ability to identify a passerby in a car Accordingly, a number of courts have found reasonable suspicion where no predictive information was given by an anonymous caller. In United States v. Reese, 334 the police received information that the passenger of a particular car was Herbert Reese, who had an outstanding arrest warrant In Reese, the tip came from an anonymous informant in another car The Court found this tip to be sufficiently reliable, as the informant had placed her anonymity at risk The Fourth Circuit also found that a face-to-face tip allows officers to evaluate the credibility of an otherwise anonymous informant and may be sufficiently reliable to justify an investigative stop. 338 Similarly, as Justice Kennedy suggested, 911 calls have been found by courts to lend credibility to anonymous informants. In State v. Gomez, 33 9 police received an anonymous tip reporting that the passenger of a truck had been brandishing a gun out of the window. 34 " Although the caller had described the truck with particularity, including a registration number, the court rested its decision on the method used to convey the tip. 341 The court found that because the caller had used 911 to call in the tip from her home, and the call was therefore traceable to her home, the caller had placed her credibility sufficiently at risk to justify police stopping and investigating the subject's truck J.L., 529 U.S. at 275 (Kennedy, J., concurring) See id. at See id F. Supp. 2d 1338 (2000) See id. at The police also knew that they were within a block of Reese's mother's house. See id See id See id. at See Christmas, 222 F.3d at 144. Police received a face-to-face tip from a woman identifying herself as the subject's neighbor. See id. The tipster reported that her neighbor was in possession of drugs and firearms. See id P.3d 765 (Ariz. App. 2000) See id. at See id. at 766, See id.

33 Winter, 2002] FLORIDA v. J.L.: - ANONYMOUS TIPSTERS IV. CONCLUSION At first glance, the Court's holding in Florida v. J.L may be thought of as a reversal of its holding in Alabama v. White. 3 " Nevertheless, it is consistent with all of the Court's holdings since Terry v. Ohio Courts have consistently held that "[a] tipster need not deliver an ironclad case to 346 the authorities on the proverbial silver platter. Accordingly, Florida v. J.L. was consistent in its holding that anonymous tips may be sufficient to establish articulable suspicion for an investigatory stop. 347 The Court has made clear, however, that more than simple "innocent details" are necessary as corroboration under the "totality of the circumstances. ' 348 The end result is that law enforcement officers must now more carefully consider whether information that comes from an anonymous source is indicative of the tipster's reliability. The caller's intimate knowledge of the subject's criminal activity, predictions of future behavior, and risks of losing anonymity may all be considered by the officer in evaluating a tipster's credibility. Edward W. Krippendorf U.S. 266 (2000) U.S. 325 (1990). Compare J.L., 529 U.S. at 275 (holding an anonymous tip insufficient to establish reasonable suspicion), with White, 496 U.S. at (allowing an anonymous tip as sufficient to establish reasonable suspicion) U.S. 1 (1968); see also discussion supra Part I.E United States v. Chapdeline, 616 F. Supp. 522, 526 (D. R. I. 1985), affd 795 F.2d 75 (1st Cir. 1986) See J.L., 529 U.S. at 275. The Court held that "an anonymous tip lacking indicia of reliability of the kind contemplated in Adams and White does not justify a stop and frisk... Id. (emphasis added); see also discussion supra Part 3.A See id. at 275; see also J.L., 529 U.S. at 266.