Search and Seizure Based on an Anonymous Caller

CRIMINAL LAW – Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.
14-2-8702 State v. Thorpe , App. Div. (per curiam) (11 pp.)  This is an important case addressing the need by the police to independently verify information received from an anonymous caller to establish their own probable cause for the search, arrest and eventual charging of a criminal defendant.

The key legal standard to apply, as outlined by the court, provides:

In this case, the trial court derived its legal conclusions from the law of search and seizure. The Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect against unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. “No 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, unless by clear and unquestionable authority of law.” Terry v. Ohio 392 U.S. 1, 9, 88 S. Ct. 1868, 1873, 20 L. Ed. 2d 889, 898 (1968) (quoting Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734, 737 (1891)). Thus, “[p]eople, generally, are free to go on their way without interference from the government. That is, after all, the essence of the Fourth Amendment — the police may not randomly stop and detain persons without particularized suspicion.” State v. Shaw, 213 N.J. 398, 409-10 (2012).

“A seizure occurs if, ‘in view of all the circumstances surrounding the incident, a reasonable person would have believed that he [or she] was not free to leave.'” State v. Sloane, 193 N.J. 423, 429 (2008) (quoting State v. Stovall, 170 N.J. 346, 355 (2002)). “Even a brief detention can constitute a seizure.” Stovall, supra, 170 N.J. at 356. Because warrantless seizures and searches are presumptively invalid, when the police seize a person and evidence without a warrant, and the defendant moves to suppress the evidence, the State bears the burden of proving by a preponderance of the evidence the seizure and search fell within “one of the ‘well-delineated exceptions’ to the warrant requirement.” State v. Shaw, 213 N.J. 398, 409 (2012) (quoting State v. Frankel, 179 N.J. 586, 598, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004)).

The key facts are as follows:

The State presented one witness at the suppression hearing. Trenton police officer Jamar Booker testified he and his partner, Officer Vito Renna, were patrolling in a marked police car on the night they arrested defendant. They were dispatched to Martin Luther King Boulevard and Rossell Avenue at approximately ten o’clock in response to an anonymous call reporting “a black male with a gun standing next to a silver automobile.” The dispatcher gave no other information to the officers about the man with the gun, such as a name or description, and Officer Booker knew nothing about the caller’s reliability. He did not even know if the caller had personally observed a man with a gun.

According to Officer Booker, the neighborhood at Martin Luther King Boulevard and Rossell Avenue is a residential, high crime area. It was not unusual for people to be out of their homes at ten o’clock at night. The street and sidewalk were illuminated by a nearby street light, and the officers activated a white, sidebar light on the patrol car. It was not raining.

When the officers arrived, Officer Booker saw four black males standing on the sidewalk near the house on the corner. A silver vehicle was parked in front of the second house from the corner. The officer saw no weapons and saw no outline of a weapon in the men’s clothing.

Officer Booker exited the patrol car’s passenger side and approached one of the men, Alphonso Clark, whom he recognized from past arrests. The officer explained he was “drawn to him because he was the first individual that I accosted coming out of my vehicle.” Officer Booker “went to actually grab him and place him in a pat frisk position,” but diverted his attention to a second black male, defendant, when he saw defendant “reach for his waistband, and that’s an area we know in law enforcement where guns are concealed.” Officer Booker described how defendant reached into his waistband and then pulled his sweatshirt “over top of his waistband as if to conceal something.” Based on his training and experience, as well as the content of the dispatch, the officer believed defendant was concealing a firearm. for his safety, Officer Booker immediately approached [defendant]. I went to put him in [a] pat frisk position and reached for the waistband where I saw him reach, and he actually reached. I put my hand on top of his, removed it and I reached again and felt the bulge.

Officer Booker pulled back defendant’s hand, removed 40 caliber Smith and Wesson semi-automatic handgun, arrested defendant, and secured the weapon. When Officer Booker finished testifying, the State rested. Defendant presented two witnesses: Lucy Johnson and Curtis Burnett. Lucy Johnson, an investigator for defendant, took photographs and measurements of the intersection and surrounding area. Burnett testified that he, defendant, and Alphonso Clark were eating in front of the house on the corner of Martin Luther King Boulevard and Rossell Avenue; a man who stayed there cooked shrimp, fish, and chicken, and “a lot of people [were] standing around getting food and eating it.” He, defendant and Clark were sitting on the porch when the police arrived.

Burnett gave the following account of defendant’s arrest: Fearing a loaded When they came down the street, they didn’t have no sirens on, no headlights. They just whipped up and told us, one of you all got a gun on you all. The other one jumped out, came around. He told me and the other guy turn around. Booker grabbed [defendant]. The other cop told us turn around a face the wall. We turned around, faced the wall. He told him, you can let them two go, we got who we want. And we went walking off. When Officer Booker, Burnett said, “somewhat.” Burnett did not see defendant reach for his waistband. Burnett explained: “The cops whipped up. They told us put our hands up, and they grabbed [defendant], and told us to turn around.” According to Burnett, defendant put up his hands when told to do so by the officers.

The court’s decision requires the police actions, when involving an anonymous call must obtain their own independent verifiable facts establishing their own probable cause for criminality to effectuate a warrantless stop and search of any citizen.  It distinguished an anonymous call from that of an informant as well.  That type of information has a different standard of review than the ‘anonymous caller’.  The court reasoned:

Generally, “[p]olice may conduct a brief, investigatory stop, sometimes called a Terry stop, if there is reasonable suspicion that the person being stopped is engaged, or is about to engage, in criminal activity.” State v. Gamble, 218 N.J. 412, 428 (2014) (citing State v. Nishina, 175 N.J. 502, 510-11 (2003)). An anonymous tip alone will seldom establish such reasonable suspicion. That is so because “‘ordinary citizens generally do not provide extensive recitations of the basis of their everyday observations,’ and an anonymous tipster’s veracity is ‘by hypothesis largely unknown, and unknowable.’” Ibid. (quoting Alabama v. White, 496 U.S. 325, 329, 110 S. Ct. 2412, 2415, 110 L. Ed. 2d 301, 308 (1990)).

Thus, in in Florida v. J.L., 529 U.S. 266, 268, 120 S. Ct. 1375, 1377, 146 L. Ed. 2d 254, 258-59, 262 (2000), the Court held an anonymous caller’s report to police “that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun,” without more, was insufficient “to justify a police officer’s stop and frisk of that person.” The United States Supreme Court restricted its holding to “cases in which the officer’s authority to make the initial stop is at issue,” stating: “In that context, we hold that an anonymous tip lacking indicia of reliability . . . does not justify a stop and frisk whenever and however it alleges the illegal possession of a firearm.” Id. at 274, 120 S. Ct. at 1380, 146 L. Ed. 2d at 262. See also, State v. Rodriguez, 172 N.J. 117, 131, (2002) (holding anonymous caller’s accurate description of two individuals the caller said would arrive in Atlantic City by bus, carrying drugs, was insufficient, without more, to justify an investigatory stop).

In this matter, the only information the anonymous caller provided was “a black male with a gun standing next to a silver automobile” was at the corner of Martin Luther King Boulevard and Rossell Avenue. This was no more information than the anonymous caller provided in J.L., supra, 529 U.S. at 268, 120 S. Ct. at 1377, 146 L. Ed. 2d at 262, and less information than the anonymous caller provided in Rodriguez, supra, 172 N.J. at 131. Here the police came upon either three or four men, not one, standing a house away from where the silver vehicle was parked, not next to it as the anonymous caller had reported. The police had no articulable suspicion justifying the detention of any one man, let alone all of them.

In denying defendant’s suppression motion, the trial court focused on defendant’s conduct after the men were detained, namely, defendant’s reaching into his waistband and apparently attempting to conceal something by covering it with his sweatshirt. The trial court overlooked the initial detention of the men.

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