Vol. 78, No. 6, June 2005

Cell phone tips of crime and 'reasonable suspicion'

Sidebars:

• The Wisconsin Criminal Defense Manual guides lawyers through complicated procedures

by Rex R. Anderegg

ew technological innovations have had greater impact on the reporting of crime than the cell phone. According to the Cellular Telephone Industry Association, there are currently more than 175 million cell phone subscribers in the United States, and a recent study revealed more than 54 percent of drivers carry wireless phones in their vehicles.¹ This article examines how traditional "reasonable suspicion" analysis has evolved to respond to the use of this new technology in reporting crimes.

A strong correlation exists between the great proliferation of wireless technology and the frequency with which police investigations now begin with a cell phone call from the scene of a crime. Every year more than 73 million calls are placed to 9-1-1 hotlines from cell phones.² While many of these calls are placed for emergency medical assistance, an increasing percentage of such calls are to report crime. The primary significance of this development to the criminal justice system is that crimes, particularly driving offenses, are now routinely reported while still in progress, thereby giving rise to an urgent desire by law enforcement to act quickly. Acting quickly, however, oftentimes means acting with limited information. Investigative detentions based on limited information, in turn, frequently beget suppression motions challenging whether there was reasonable suspicion to stop the defendant.

The courts have responded to such reasonable suspicion challenges by posing, evaluating, and answering several questions. Is the tipster truly anonymous or does she identify herself? Is it possible to trace the call back and identify the caller if the tip is fabricated? What is the basis of the caller's knowledge about the alleged criminal behavior? How serious is the alleged crime? How immediate of a threat does the alleged criminal behavior pose to the public? Is the caller reporting a crime in progress or a crime that has already occurred? Many of these inquiries have historically been important to courts when examining the question of reasonable suspicion. However, as explained in this article, what is of particular significance to reasonable suspicion analysis is the elevated status, within the reasonable suspicion paradigm, being granted to those specific inquiries that focus on exigency.

The U.S. Supreme Court on Anonymous Tips

At the turn of the millennium, the U.S. Supreme Court took a fresh look at the implications of cell phone tips on the Fourth Amendment. The backdrop presented in Florida v. J.L.³ was a report from an anonymous tipster that a young African-American male at a bus stop was carrying a gun. Applying its rulings in Adams v. Williams⁴ and Alabama v. White⁵ regarding informants' tips to its reasonable suspicion analysis from Terry v. Ohio,⁶ the Supreme Court held that an anonymous tip that a readily identifiable teenager at a particular bus stop possessed a gun was not, without more, sufficient to justify a Terry stop of the youth.⁷ The decision hinged largely on the fact that the Supreme Court did not view the tip as particularly reliable in its assertion that illegal behavior had occurred. The J.L. court noted that a tip's reliability is a function of the informant's credibility and the basis of his or her knowledge. The Supreme Court reasoned that it is not enough that an informant provides readily observable details about a suspect if the informant cannot also demonstrate "inside knowledge" about the suspect's criminal behavior. Because the bus stop tip came from an anonymous caller and lacked any predictive information other than the subject's easily observable location and description, police were left with no means to test the informant's credibility or basis of knowledge.⁸

Florida, however, citing the danger posed by firearms, urged the Supreme Court to modify its standard Terry analysis to allow for a "firearm exception" to the reasonable suspicion requirement. The Supreme Court flatly rejected the request on the ground that creating such an exception would lead to a slippery slope of additional exceptions, "thus allowing the exception[s] to swallow the rule."⁹ Although possession of a weapon by anyone under age 21 was illegal in Florida, and notwithstanding the obvious danger posed by a youngster allegedly packing heat in public, the Supreme Court did not consider the danger to be so imminent as to support a stop and frisk. The pre-9/11 Supreme Court refused to speculate about the circumstances under which the danger alleged in an anonymous tip might be so great (for example, a report of a person carrying a bomb) as to justify a stop and search even absent any showing of reliability.¹⁰ Nevertheless, the Supreme Court did observe that "extraordinary dangers sometimes justify unusual precautions," and thus the seeds of an exigency analysis - seeds that would later bear fruit in Wisconsin - were sown.

Of particular interest was a concurring opinion by Justice Kennedy, who observed that to the extent an informant remains completely anonymous and does not place her identity at risk, such an informant is free to lie with impunity. Since a court would be powerless to judge the credibility of such an individual, the risk of fabrication, in Justice Kennedy's view, would be unacceptable.¹¹ Justice Kennedy went on to suggest, however, that if an informant were to reveal her identity and thereby expose herself to criminal penalties for making a false report, such a factor would be fair game for a judicial assessment of the tip's reliability. Those facts were not before the J.L. court, however, and a discussion of such a scenario was therefore left for another day. In Wisconsin, that day dawned roughly one year later.

The Importance of Identifying the Tipster

In July 2001, the Wisconsin Court of Appeals was presented with circumstances similar to those in J.L. The Wisconsin court, however, reached a different conclusion solely because the 9-1-1 caller provided the name "Sedrick Forbes" to the dispatcher, who identified the call as coming from a payphone.¹² Like the tipster in J.L., Forbes reported seeing two men with guns entering a building and described their race and clothing. On the basis of the tip, police located two men matching the suspects' descriptions sitting in a car a half-block from the building in question. After briefly questioning the suspects, the police asked one of them, Sisk, to exit the vehicle and then frisked him and found a gun in his pants pocket. Sisk was charged with being a felon in possession of a firearm.

Relying on J.L., the trial court reasoned that a 9-1-1 call from a payphone, even with the caller's name, imbued the tip with no greater reliability than would an anonymous report, because there was nothing to link the call back to the caller if the report was false. The trial court further observed that the tip gave no predictive information about the alleged criminal activity and provided only a readily observable description of the alleged gun-toters. Although the trial court's rationale seemed faithful to J.L., the appellate court viewed the matter differently and reversed the order that had suppressed evidence of the firearm. The appellate court reasoned that it was error to characterize the tip as anonymous since the 9-1-1 caller had put his identity at risk by providing "what he said was his name."¹³ Sisk therefore breathed life into Justice Kennedy's concurrence, albeit on facts less compelling than Justice Kennedy might have contemplated. In so doing, Sisk observed it would be dangerous to require police to take time to verify the caller's identification rather than respond to a crime in progress.¹⁴

The Immediate Public Danger Suggested by the Tip

The same year Sisk was published, the Wisconsin Supreme Court addressed whether a cell phone caller's anonymous tip about the driving of a vehicle the caller was following was ipso facto sufficient to warrant a traffic stop. The tipster reported that the vehicle was tailgating, weaving within its lane, and varying in speed from too fast to too slow. In State v. Rutzinski,¹⁵ the Wisconsin Supreme Court, drawing on factual distinctions alluded to by J.L., observed that although the cell phone caller did not provide his name, he did tell the responding officer (via dispatch) the location of his car vis-a-vis the suspect's car. The court reasoned that by doing so, he exposed himself to identification (through the tracing of his license plates) if he was fabricating the tip. In addition, he had provided to the dispatcher contemporaneous information about Rutzinski's driving as he was following the vehicle.¹⁶

The Wisconsin Supreme Court began its analysis by acknowledging that before an officer may detain an individual solely on an informant's tip, the officer must first consider both the veracity of the informant and the content of the tip as it relates to the informant's basis of knowledge of the alleged illegal activity.¹⁷ If the tipster's credibility and basis of knowledge are weak, additional investigation is needed before reasonable suspicion will support a Terry stop. Because the test, however, requires consideration of the totality of the circumstances, the court noted that a deficiency in one consideration may be compensated by a strong showing as to the other.¹⁸

The most interesting aspect of the Rutzinski decision, however, was its introduction of exigency into the analysis. Recalling J.L.'s admonition that "extraordinary dangers sometimes justify unusual precautions," the Wisconsin Supreme Court ruled that in some circumstances, an exigency can supplement the reliability of an informant's tip and justify what would otherwise be an improper investigative stop.¹⁹ Cognizant that its decision would be subject to scrutiny under the holding in J.L., the Rutzinski court identified three factors that distinguished the facts before it from the anonymous report about an armed youth at a bus stop: 1) by giving the location of his vehicle, the informant exposed himself to identification by police; 2) the informant provided police with verifiable information indicating his basis of knowledge; and 3) the tip suggested Rutzinski posed an imminent threat to public safety.²⁰ The court believed the first two of these factors increased the reliability of the tip while the third factor tipped the scales in favor of an immediate stop. Thus, leaning heavily on the danger posed by potential drunk drivers, Rutzinski held that the immediate threat posed by the reported erratic driving overcame any lack of reliability demonstrated by the anonymous tip and, therefore, that the traffic stop was reasonable.²¹

A Blanket Rule for OWI Cases?

While Rutzinksi explicitly stopped short of creating a blanket rule to except tips alleging drunk driving from a reliability requirement, that nevertheless may be the practical import of the decision. As Justice Kennedy suggested, there may be cases in which identification of the tipster and exposure to penalties for submitting a false police report would enhance the reliability of an otherwise "anonymous" tip. While this premise rings true when a tipster alleges that the subject, for example, is carrying a concealed weapon or possesses illegal drugs, either of which can be "immediately verified at the scene," the underlying logic is less compelling when the tipster alleges bad driving.

When an officer relies on such an allegation to stop a vehicle without independently observing any bad driving - an act largely sanctioned by Rutzinski - it is difficult to discredit the allegation that prompted the stop. In such a scenario, the putative exposure to criminal penalties for making a false report appears to be largely a fiction. Indeed, it does not even appear necessary for a tipster to specifically allege "drunk" driving (which arguably could be verified at the scene of a stop) to create an imminent threat to public safety. A report of any bad driving, in turn characterized by a dispatcher as "erratic" driving, has been interpreted by courts as indicative of "drunk" driving and grounds for an immediate investigation of the driver.²² Consequently, notwithstanding the Rutzinski court's pledge, there does appear to be something of a blanket rule allowing immediate detentions of drivers reported to be driving erratically, at least when the informant provides - ala Sisk - a name. This may be due, in part, to the fact that the presumption of unreasonableness that attends a warrantless seizure in a home is not present during traffic stops.²³

When Does an Exigency Dissipate?

One question the Wisconsin Supreme Court has not addressed is when the exigency posed by erratic driving dissipates such that an uncorroborated stop or detention of a driver is no longer lawful. By examining both published and unpublished opinions of the court of appeals, however, one can piece together a rough answer to this question. In an unpublished opinion, the court of appeals was not persuaded that the urgency of a public threat evaporated simply because the driver was within a block of his home.²⁴ Nor was the appellate court, in another unpublished opinion, convinced the threat had sufficiently passed even though the driver had just pulled into her driveway.²⁵ The latter unpublished decision held that although the suspected drunk driver had reached what the officer knew to be her driveway, and had exited her car before the officer was able to reach her, a tip suggesting that she had been driving while intoxicated with two minor children in her vehicle strongly weighed in favor of immediate police investigation.²⁶

State v. Larson, a published opinion, however, strongly suggests the exigency may evaporate once the suspect crosses his or her doorstep.²⁷ In Larson the court of appeals addressed whether a warrantless entry into a suspected drunk driver's home, based on two tips, one from a gas station clerk and both from individuals who identified themselves, was reasonable under the Fourth Amendment.²⁸ On the basis of the tips, the dispatcher provided a patrol deputy with the vehicle's license plate and the registered owner's address. The deputy drove to that address, observed the vehicle in an apartment complex parking lot, and knocked on the registered owner's door. When the defendant opened the door, the deputy immediately stepped across the threshold to prevent the defendant from closing the door. During a short conversation in which the defendant admitted drinking and stated he was going to bed, the deputy detected an odor of intoxicants and slurred speech and therefore moved further into the apartment to arrest the defendant for operating while intoxicated.

The defendant argued that the deputy lacked probable cause and exigent circumstances to overcome the presumption that the warrantless home entry was unreasonable. The court of appeals agreed. The court first confirmed that the step across the threshold was an entry under the Fourth Amendment.²⁹ It then observed that the deputy lacked probable cause because at that time, he knew only that two tipsters had alleged the driver of the truck found parked outside the apartment was driving while intoxicated. At that precise moment, the deputy could neither have detected the odor of intoxicants on Larson's breath or his slurred speech nor known whether Larson was the driver of the truck. Most interesting to the question of exigency, however, was the appellate court's remark that even if the deputy could have established probable cause to enter Larson's home, no exigent circumstances justified the entry.³⁰ Indeed, any court contemplating an extension of the concept of exigency to include a driver who is safely at home will have to contend with Welsh v. Wisconsin,³¹ in which the court long ago held that in cases involving minor traffic offenses, a warrantless home arrest cannot be upheld simply because blood alcohol will dissipate while police obtain a warrant.³² Moreover, while the prosecution attempted to characterize the deputy's investigation as a "hot pursuit" of Larson, the appellate court dismissed that argument because there was no immediate or continuous pursuit of the defendant.

Establishing What Information was Known to the Investigating Officer

As noted at the outset of this article, cell phone reports prompt police to act with limited information. Defense attorneys should be aware that the amount of information available at the time of a suppression hearing, however, is oftentimes more plentiful than when the police first acted. Police reports, dispatch audiotapes, and written statements from the informant will materialize to put meat on the bare bones information the officer on the street originally possessed. Prosecutors will capitalize on this development by arguing that an officer's belief may be partially predicated on hearsay information and that the officer may rely on the collective knowledge of the officer's entire department.³³ On the surface, the point is well taken.

A more profound examination of the applicable case law, however, suggests that defense attorneys should not let this position go unchallenged. While information generally in the possession of a law enforcement agency may be imputed to a particular officer, the proposition holds true only if the officer, when he or she acts, actually has the benefit of that information via communication with others in the agency.³⁴ Thus, to the extent prosecutors wish to rely on information possessed by an investigating officer's colleagues, prosecutors should be prepared to demonstrate timely communication of the information to the officer. Conversely, defense attorneys should endeavor to establish what information actually was conveyed to the investigating officer and limit the court's analysis accordingly.

Conclusion

As wireless technology continues to improve and proliferate, so too will the number of criminal investigations hastily commenced by reports of ongoing or just completed criminal activity. Prosecutors and defense attorneys alike should be prepared to analyze the lawfulness of the Terry stops that will flow from such investigations. The analysis must center on what information is available to the officer who makes the stop. In particular, both sides should focus on whether the tipster identifies herself and what basis she has to make the particular allegations.

In light of Rutzinski, counsel also should examine the tip in terms of what immediate danger it suggests is facing the public at large, keeping in mind the trend toward viewing exigency as the touchstone of reasonable suspicion analysis. The societal benefits of wireless technology in terms of public safety and crime-solving have been immense. As is so often the case with technological advances, however, there is a corresponding threat to the individual's interest in freedom from unreasonable police detention. In the case of cell phones, the danger stems from the ease with which a police investigation can be set in motion based on what appears to be suspicious, but may ultimately turn out to be innocuous, activity. Attorneys must be prepared to assist the courts in striking a reasonable balance between these competing interests.

Endnotes

¹National Highway Transportation Safety Administration.

²AAA Newsroom, Help with Auto Repairs is as Convenient as your Cellular Phone, Oct. 28, 2004.

³Florida v. J.L., 529 U.S. 266 (2000).

⁴Adams v. Williams, 407 U.S. 143 (1972).

⁵Alabama v. White, 496 U.S. 325 (1990).

⁶Terry v. Ohio, 392 U.S. 1 (1968).

⁷J.L., 529 U.S. at 269-74.

⁸Id. at 271.

⁹Id. at 273.

¹⁰Id. at 273-74.

¹¹Id. at 274-75.

¹²State v. Sisk, 2001 WI App 182, 247 Wis. 2d 443, 634 N.W.2d 877.

¹³Id. ¶ 8.

¹⁴Id. ¶ 9.

¹⁵State v. Rutzinski, 2001 WI 22, 241 Wis. 2d 729, 623 N.W.2d 516.

¹⁶Id. ¶¶ 31-37.

¹⁷Id. ¶ 18.

¹⁸Id. (citing Illinois v. Gates, 426 U.S. 213, 233 (1983)).

¹⁹Id. ¶ 26.

²⁰Id. ¶¶ 32-36.

²¹Id. ¶¶ 34-35.

²²See id. ¶ 34 (citing State v. Swanson, 164 Wis. 2d 437, 453 n.6, 475 N.W.2d 148 (1991)).

²³State v. Pallone, 236 Wis. 2d 162, 190, 613 N.W.2d 568 (2000).

²⁴State v. Christopher, No. 01-2524-CR, 2002 WL 31074663 (Wis. Ct. App. Sept. 18, 2002) (unpublished).

²⁵State v. Baer, No. 01-0423-CR, 2001 WL 864284 (Wis. Ct. App. Aug. 1, 2001) (unpublished).

²⁶Id. ¶ 11.

²⁷State v. Larson, 2003 WI App 150, ¶ 9, 266 Wis. 2d 236, 668 N.W.2d 338.

²⁸Id. ¶ 9.

²⁹Id. ¶ 11.

³⁰Id. ¶ 17.

³¹Welsh v. Wisconsin, 466 U.S. 740 (1984).

³²Id. at 754.

³³State v. Cheers, 102 Wis. 2d 367, 386, 38889, 306 N.W.2d 676 (1981).

³⁴See State v. Orta, 2000 WI 4, ¶ 23, 231 Wis. 2d 782, 604 N.W.2d 543 (citing State v. Friday, 147 Wis. 2d 359, 434 N.W.2d 8 (overruled on other grounds)).

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