June 21, 2006
The police receive an anonymous tip that a black male wearing black clothing and walking through a parking lot has a gun. The police arrive within thirty seconds, see a black male wearing black clothing walking through the parking lot. He doesn't respond when the officers tell him to stop and take his hands out of his pockets, so they stop and frisk him, finding an Altoids tin containing PCP. (Talk about "curiously strong.") Good search or bad?
Bad, says the court in State v. Kittrell, reiterating that in order for an anonymous tip to furnish the basis for a stop, it "must provide more than a mere description of the person's appearance and location"; the police have to be able to corroborate some detail of the informant's tip which indicates that criminal activity is afoot before making the stop. This is in accord with previous cases, such as this one, which contains a particularly nice quote at the end from Judge Timothy McMonagle extolling the values of the 4th Amendment, and this one.
The lodestar, as we say in the law biz, on this subject remains the US Supreme Court case in Florida v. J.L., where the police received an anonymous tip that there was a young black male in a plaid shirt with a gun at a bus stop, the police arrived at the scene and observed a young black male in a plaid shirt at a bus stop, and a subsequent search revealed he had a gun. The Supreme Court unanimously struck down the search.
I had a case last year which was almost on all fours, as we also say in the law biz, with J.L. I won't mention the judge, but he would be universally regarded by defense attorneys as one of the fairest and most solicitous of constitutional rights. I cross-examined the cop and got him, rather easily, to acknowledge that he hadn't seen anything other than what the anonymous tip had told him: a black male at a certain place wearing certain clothing. I gave the judge a copy of J.L., and he agreed that the search was bad. As he walked off the bench, he mentioned that it was the first time in twelve years that he'd granted a motion to suppress.
And all I could think was that if this judge had granted a single motion to suppress in twelve years, the 4th Amendment was in a lot worse shape than I thought.
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