TIPS FROM KNOWN BUT NEW INFORMANT AND REASONABLE SUSPICION
by Brian S. Batterton, Attorney
©2016 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
On January 11, 2016, the Eleventh Circuit Court of Appeals decided the United States v. Brown [i], which serves as an excellent review concerning tips to police and reasonable suspicion. The relevant facts of Brown, taken directly from the case, are as follows:
The following facts were elicited at a magistrate judge's hearing on Brown's motion to suppress. Richmond County Sherriff's Office Sergeant William Leisey testified that, on September 4, 2013, a "trusted friend" (the "informant"), whom he had known for eight years, called him and reported that the informant had witnessed Brown selling heroin out of his restaurant, the Eros Bistro. The informant told Leisey that Brown lived in an apartment above the restaurant and carried heroin in a backpack with him everywhere he went. Leisey acknowledged that the tip neither predicted any future criminal behavior nor relayed any information concerning the amount of drugs Brown possessed, his comings and goings, or how the alleged sales transpired. But he testified that, based on his relationship with the informant, he "absolutely" believed the information was truthful.
Leisey explained that the informant was the spouse of a friend whom he had known for fifteen years and that both were "dear family friends." Leisey noted that he had entrusted the informant with his own child on numerous occasions. According to Leisey, the informant never had provided him with criminal tips in the past and did not receive any benefit or compensation for the tip. He did not run a criminal history check on the informant.
Leisey testified that he relayed the tip to Investigator P.J. Hambrick. According to Leisey, Hambrick advised that he had received similar information from another person. Leisey testified that Hambrick asked if he could get more information from the informant. Leisey contacted the informant, who sent him a photograph of Brown's car from Facebook and told him where Brown routinely parked.
Jason Kennedy, the narcotics investigator in this case, testified that he drove by Eros Bistro to confirm the description of Brown's vehicle and location after receiving details about the tip from Hambrick. Kennedy testified that, a few days later, while conducting surveillance on Brown with another investigator, he observed Brown exit his building with his wife and baby and a backpack.
Kennedy decided not to approach Brown at that time because he did not want the child involved.
Kennedy returned the next day and observed Brown drive up in his vehicle outside the building. Kennedy and his fellow investigator approached the vehicle to conduct an interview with Brown. During the evidentiary hearing, Kennedy admitted that while surveilling Brown he never saw Brown engage in any drug transaction, nor did he see any lookouts or drugs.
Nonetheless, according to Kennedy, Brown appeared very nervous upon seeing the officers; his eyes were large, he took a deep breath, and he had a "look of shock on his face like a deer in the headlights." Brown leaned forward in his seat with his hands extended towards the floor of the car. Kennedy testified that, based on his experience, he believed Brown may have been putting something under the seat or reaching for a weapon. Kennedy observed a backpack sitting in the passenger seat of the vehicle. He testified that, after seeing Brown acting nervous with his backpack in the car, Kennedy "believe[d] that the tip had a very strong possibility of being very true and . . . just wanted to further investigate that." Kennedy also testified that he believed the tip, plus his observations during the surveillance and his interaction with Brown when he approached, gave him reasonable suspicion to detain Brown briefly to investigate further.
Kennedy asked Brown if he could speak with him outside the vehicle. Kennedy then advised Brown of the tip the police had received and inquired whether Brown had any narcotics or weapons on him. Brown replied that he had none. Kennedy asked Brown if he could search the vehicle. When Brown asked him why, Kennedy explained that the police were searching the car because of the tip. Brown said nothing further, so Kennedy requested a canine unit to sniff for drugs in the vehicle.
After the canine unit arrived and the dog "alerted" to the vehicle, the officers searched the vehicle and discovered a .38 caliber revolver lying on the driver's side floorboard. The gun was located in the same general area Brown had been leaning toward, positioned "like it had just been placed there," according to Kennedy. The officers then arrested Brown for possession of a firearm by a convicted felon.
At the evidentiary hearing, Brown agreed with the government that once the narcotics dog alerted to the car, there was probable cause to search the car. After placing Brown in custody, the officers also searched the backpack on the passenger seat, revealing twenty-one aluminum foil packets of heroin, other plastic baggies with heroin, several prescription bottles in Brown's name containing various pills, a digital scale, plastic tubing, a spoon, and syringes. After Brown gave the officers permission to search his apartment, the officers discovered .38 caliber ammunition and several empty clear plastic baggies of the type commonly used to package narcotics. [ii]
Brown was indicted on federal drug and weapons charges. He filed a motion to suppress the evidence and alleged that his stop, which was based on the tip by the informant of unknown reliability, was not supported by reasonable suspicion and therefore violated the Fourth Amendment. The district court denied the motion and the Brown pleaded guilty with the right to appeal the denial of the motion to suppress. He then filed a timely appeal with the Eleventh Circuit Court of Appeals.
The issue on appeal was whether the officers had reasonable suspicion to make the initial stop based upon the informant’s tip and the information corroborated by the officers.
At the outset, the court stated:
Consistent with the Fourth Amendment, law enforcement may conduct a brief warrantless investigatory stop of an individual "where (1) the officers have a reasonable suspicion that the suspect was involved in, or is about to be involved in, criminal activity, and (2) the stop was reasonably related in scope to the circumstances which justified the interference in the first place." Lewis, 674 F.3d at 1303 (internal quotation marks omitted). Reasonable suspicion exists when an officer has a "particularized and objective basis" for suspecting a person of criminal activity, given the totality of the circumstances. United States v. Arvizu, 534 U.S. 266, 273 (2002). "Reasonable suspicion need not involve the observation of illegal conduct, but does require more than just a hunch." Lewis, 674 F.3d at 1303 (internal quotation marks omitted). [iii] [emphasis added]
The court also noted that they must view the totality of the circumstances in making a determination regarding whether the tip provided reasonable suspicion. The court then set out to examine the reliability of the informant and the reliability of the tip itself.
First, the court discussed the reliability of the informant. The court stated:
When an informant is known to an officer personally, the officer may act "justifiably in responding to his informant's tip." Adams v. Williams, 407 U.S. 143, 146 (1972)… Such a known informant presents "a stronger case than . . . . in the case of an anonymous telephone tip" and may alone be sufficient to justify an investigatory stop. Adams, 407 U.S. at 146. [iv] [emphasis added]
Here, the informant was personally known to Sergeant Leisey. He was a family friend of over a decade and had been trusted to watch the sergeant’s children on occasion. Further, while the investigator who made the stop did not speak face to face with the informant, he was able to get into contact with the informant via the sergeant. In fact, he requested more information and was provided a photograph of Brown’s vehicle and the location he normally parked. The court then held, regarding the informant:
Despite the fact that this was the informant's first tip to the police, we agree with the district court that the informant was reliable enough to create reasonable suspicion, especially considering the reliability of the tip… [v]
The court next discussed the reliability of the tip to determine if it bore sufficient indicia of reliability to support reasonable suspicion. The court stated:
[A] known, albeit unproven, informant coupled with subsequent corroboration of the tip's details can justify a reasonable suspicion of criminality." United States v. Kent, 691 F.2d 1376, 1380 (11th Cir. 1982). [vi]
The court observed that, in Brown’s case, the police confirmed significant facts provided by the informant such as the color, make, model and location of Brown’s car, that Brown always carried a backpack, and that Brown lived above the Eros Bistro. Further, the police confirmed, via surveillance, Brown’s usual business practice of selling heroin out of the backpack he always carries. In fact, when he was stopped, the backpack was in the front, passenger seat. Additionally, the informant stated that he witnessed Brown selling heroin, which enhances the reliability or credibility of the tip. The court stated:
When an informant has personal knowledge of the crime, including viewing the crime in progress, "[t]hat basis of knowledge lends significant support to the tip's reliability." Navarette v. California, 134 S.Ct. 1683, 1689 (2014); see Gates, 462 U.S. at 234. Therefore the informant's claim of first-hand knowledge of Brown's crime further indicates the reliability of the tip. [vii]
However, the court did note that the tip failed to predict future behavior, and prediction of future behavior does enhance the reliability of the tip. However, the court stated:
We do not suggest, however, that tips must always predict future behavior to be reliable. Prediction is but one indicator of reliability. [viii] [emphasis added]
The court then held that, based on the totality of the circumstance, the tip was sufficiently reliable support reasonable suspicion to justify the stop.
Brown’s second argument was that the officers detained him because he refused to consent to a search. However, the court noted that Brown was detained because officers had reasonable suspicion to believe he had heroin in his backpack. As such, they were acting within the scope and purpose of the stop when they called a canine unit after he refused consent to search. The court stated:
[W]hen the police have already observed, before asking for permission to search, facts sufficient to raise a reasonable suspicion," an officer may detain a suspect even after a refusal to consent. [ix] [emphasis added]
Therefore, the stop and the detention for the canine sniff were based on reasonable suspicion and the court of appeals affirmed the denial of the motion to suppress.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 14-15602, 14-15707 (11th Cir. Decided January 11, 2016 Unpublished)
[ii] Id. at 1-3
[iii] Id. at 8
[iv] Id. at 9
[v] Id. at 10
[vi] Id. at 11
[vii] Id. at 12
[viii] Id. at 13
[ix] Id. at 16