I dropped by a suppression hearing recently and listened to a prosecutor argue the merits of an anonymous tip, which they claimed justified an investigatory detention. I was puzzled. The State asserted their anonymous tip was “reliable” and, therefore, justified the stop and subsequent arrest of the defendant. Though recent case law had expanded the realm of situations in which anonymous tips may justify a detention, I soon realized the prosecutor was arguing only half the story. Evaluating a stop based upon an anonymous tip was actually a two step process. First, was the tipster’s information reliable? If yes, was the information contained in the tip sufficient to establish reasonable suspicion to detain the suspect for further criminal investigation?
A few facts from the hearing may help clarify the approach to challenging an anonymous tip. A bicycle cop and his partner were patrolling a bar district late one night, several hours before closing time. One officer observed an unidentified person leaving a nearby parking lot driving a pick-up truck. The truck drove past the officer and reported that “some occupants in a tan Silverado just knocked into our doors getting into their vehicle . . . you should check on them.” The anonymous tipster then sped away, never to be seen or heard of again. The bike cop then peddled over to a tan Silverado, which was attempting to leave the parking lot. He detained the driver and two passengers and subsequently developed probable cause to arrest the driver for driving while intoxicated. The cop testified the driver of the Silverado may have been intoxicated based on the time of day, the sizable number of bars in the area, and the fact intoxicated persons were often careless when opening their car doors in close proximity to other vehicles.
In the anonymous tip context, Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) developed the idea that both the quantity and quality of information possessed by the police were important in evaluating an investigatory detention. In White, police received an anonymous telephone tip that Ms. White would be leaving a particular apartment, at a particular time, in a particular vehicle going to a particular motel, and that she would be in possession of cocaine. When evaluating law enforcement’s detention of Ms. White, the Court stated that: “Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors – quantity and quality – are considered in the ‘totality of the circumstances – the whole picture,’ [citations omitted] – must be taken into account when evaluating whether there is reasonable suspicion.” White, 496 U.S. at 330.
Case law interpreting the reliability of anonymous tips is extensive and should be examined for each situation. But in a recent Supreme Court opinion regarding the reliability of such tips, Navarette v. California, _ U.S. _, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014), Justice Thomas wrote for the majority and held that under appropriate circumstances an anonymous tip could demonstrate “sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop” by accurately predicting future behavior. Navarette, 134 S.Ct. at 1688. (citing Alabama v. White, 496 U.S. 325, 327 (1990)). The Court noted their anonymous caller necessarily claimed to have eyewitness knowledge of alleged dangerous driving and that is was reported contemporaneously with observations made by the caller. Further, the Court believed the caller’s use of the 911 system somewhat eliminated the possibility of making a false, yet anonymous report since these calls could be traced and were routinely tape recorded. Significantly, Justice Scalia dissented and claimed the majority opinion was a departure from the Court’s Fourth Amendment requirement that anonymous tips must be corroborated. He further cautioned that Navarette would be interpreted by police as a rule allowing stops based upon anonymous tips without any corroboration. 134 S.Ct. at 1692 (Scalia, J., dissenting).
Following Navarette, the Texas Court of Criminal Appeals decided Matthews v. State, 431 S.W.3d 596 (Tex. Crim. App. 2014), another anonymous tip case. In Matthews, an unnamed tipster reported a black male called Neal Matthews, wearing a white muscle shirt and dark pants, was selling crack cocaine out of a white van parked in front of a particular store, a high-crime area known for weapons and drug arrests. The Court noted Navarette and stated an anonymous tip containing adequate indicia of reliability could support reasonable suspicion enough to justify an investigatory detention by police. The Court went on to hold that Mr. Matthews’ detention was supported by reasonable suspicion because the caller’s tip contained enough specific facts, corroborated by police, giving the tip its necessary reliability.
Even if reliable, though, an anonymous tip may still not provide enough quality content to provide law enforcement justification to detain someone for further investigation. In Stewart v. State, 22 S.W.3d 646 (Tex. App. – Austin 2000, reh’g denied) the court considered whether an anonymous tip was reliable enough in its assertion of illegality. The detention was based on anonymous information asserting a green Camaro was parked by the gas pumps at a local convenience store. The caller further stated it was occupied by a passenger and Caucasian driver who was observed falling down “a couple times” trying to get into the vehicle and appeared “highly intoxicated.” Stewart, 22 S.W.3d at 648. The responding officer did not observe anything independently to support reasonable suspicion or to corroborate the anonymous report. The Austin Court of Appeals ruled the stop was illegal. “We are mindful of the public danger posed by intoxicated drivers. But we are also mindful of our obligation to follow established Fourth Amendment precedent. Under that precedent, the anonymous caller’s tip, which was uncorroborated in its assertion of possible illegality, did not objectively support a reasonable suspicion that appellant was driving while intoxicated.” 22 S.W.3d at 650.
Another applicable case was State v. Griffey, 241 S.W.3d 700 (Tex. App. – Austin 2007, no pet.). There an unnamed Whataburger store manager reported a person was “passed out behind the wheel in the drive-through.” Griffey, 241 S.W.3d at 702. When the responding officer arrived an unidentified employee pointed to Mr. Griffey’s car. Griffey was detained by police and, ultimately, arrested for driving while intoxicated. The Austin Court ruled the stop was illegal. It held the manager’s tip did not support reasonable suspicion because the information provided to the police did not allege any criminal activity. The court also effectively distinguished Griffey’s facts from other cases in which informants had allegedly observed and reported specific behavior consistent with the commission of crimes.
As I observed the defense attorney respond to the State’s lop-sided argument, I noticed there were facts cutting both ways concerning the reliability of the anonymous report from the pick-up driver. On the one hand, the anonymous information seemed to be contemporaneously communicated to the officer and was purportedly based upon an eye-witness account. Cutting against reliability was the tipster’s quick exit from the scene after briefly talking to the officer, making their identity unknowable. But what struck me was the quantity of information the State attempted to use to establish reasonable suspicion. Was “knocking doors” in a crowded parking lot, in a bar area of town, enough to establish reasonable suspicion the driver of the Silverado may be intoxicated? The tipster had not reported they seemed drunk or that any illegal activity was afoot. Moreover, there was zero information whether the Silverado’s driver was perpetrating the door knocking themselves. Interestingly, the county court at law judge (a former prosecutor herself) did not immediately rule but took the matter under advisement. Maybe that portended a successful outcome for the defense.
(“Off the Back” featured in the “Voice For The Defense” May 2017)
Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.
“Off the Back” is an expression in competitive road cycling describing a rider dropped by the lead group who has lost the energy saving benefit of riding in the group’s slipstream. Once off the back the rider struggles alone in the wind to catch up. The life of a criminal defense lawyer shares many of the characteristics of a bicycle rider struggling alone, in the wind, and “Off the Back.” This column is for them.