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Terry stops and firearms

I've said on numerous occasions that the 8th District is the most 4th-Amendment friendly in the state, if not the country.  State v. Morgan seems to be the latest effort on their part to prove I'm wrong.

The case begins with the police receiving a call of gunshots being fired from a black Cadillac; a police officer responding to the call less than five minutes later sees a black Cadillac four blocks away from the scene, and calls for backup.  He follows it for thirty blocks until backup arrives, then pulls it over.  The driver and occupant have no guns, but they do have some marijuana, which they helpfully placed in plain view so the officers could easily see it as they approached the car. 

The sole question is the validity of the investigative stop of the vehicle; since there was no traffic violation, that requires a "reasonable suspicion" that the occupants had engaged in criminal activity -- in this case, that they were the ones who had fired the shots. 

In affirming the trial court's denial of the motion to suppress, the appellate panel first distinguishes between a tip given by an anonymous informant versus one given by an identified citizen, and concludes, correctly, that the latter is granted greater credibility than the former.  The reason for that, of course, is that an identified informant is more likely to give credible information, knowing the potential penalties for giving false information to the police, penalties which an anonymous informant does not face.

The relevance of that distinction, though, isn't apparent here.  The real issue in this case is not whether shots were actually fired from a black Cadillac, but whether they were fired from this particular black Cadillac.  There was nothing other than the generic description of the vehicle; no mention of year, number of occupants, or anything activities of the driver or occupants which might engender additional suspicion:

The officer had testified that he did not observe the driver of this black Cadillac violate any traffic laws, nor did he see the car speeding away from the scene. Asked if there was anything specific "that would set this black Cadillac apart from all the scores of other black Cadillacs that you would perhaps see on your route," Officer Weaver responded, "It was the first one we came across. Other than that, there was nothing special."

And so the court relies on a more substantial distinction:   the fact that the case involved guns, and, more particularly, gunshots.  A report of "recently fired gunshots increases the need for more immediate action by the police," and the court cites a number of prior cases holding that such a report, "standing alone, provides reasonable suspicion of criminal activity." 

Unfortunately, the cases the court cites don't really hold up.  The first is State v. Bankston, in which the police received a call that shots had been fired from a gray Chrysler Concorde near Westfield and London in Cleveland, and while responding saw a gray Chrysler Concorde driving on London, about four blocks from the scene.  The police turned around followed the vehicle, and observed the passenger looking back at them, then leaning forward as if to place something under the front seat.  The defendant relied on  Florida v. J.L., where the police had responded to an anonymous tip that a young black male standing at a bus stop and wearing a plaid shirt was carrying a gun.  They went to the bus stop, saw a young black male wearing a plaid shirt, frisked him, and found a gun.  The Court threw out the search, finding that a tip giving only a physical description didn't permit a frisk unless the police corroborated it by observing some indication of illegal activity.  The Bankston court distinguished J.L., noting that the Court found that J.L. "made no threatening or otherwise unusual movements," in contrast to the actions of Bankston in making the movements as if to hide a gun.

The second case cited by the court, State v. Johnson (the opinion incorrectly cites it as State v. Jackson), is a bit closer to the mark; while the description was much more specific than the one here ("bright yellow newer model car," which the court found "unique"), the opinion emphasizes that it was the report of gunshots which tipped the scales, relying on "a line of recent federal appellate decisions" which held that a major factor in evaluating whether the "totality of the circumstances" permit a stop is "when the tip concerns firearms."

The problem with Johnson and the federal cases it cites are that they all predate J.L. (which the court in Morgan never mentions), and in J.L., the state (and the US as amicus), made pretty much the same argument that those cases adopted: 

that the standard Terry analysis should be modified to license a "firearm exception." Under such an exception, a tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard pre-search reliability testing.

While acknowledging that "firearms are dangerous, and extraordinary dangers sometimes justify unusual precautions," the Court, in a unanimous opinion, flatly refused to create one.

It's difficult to reconcile the result in Morgan with J.L.  There are some differences, of course; this case involved the firing of a gun, while J.L. involved only possession of one.  That's an awful slender distinction, though.  The holding that a mere report of gunshots can itself support the stopping of any car vaguely resembling the one mentioned is certainly not consistent with the 8th's previous high regard for the 4th Amendment.

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