I have written about confidential informants (“snitches”) previously—those situations where police employ a person (whose identity the police know), but whose identity remains unknown to the accused.
But, often enough, neither the police nor the accused know who a tipster is. In anonymous calls to 911, a whole set of legal issues arise regarding the quality (and specificity and reliability) of the information that the caller, or “tipster,” provides. As I have previously noted in my blog on confidential informants, courts generally take a skeptical view of anonymous tips precisely because they are anonymous—when a tipster fails or refuses to provide their name,
Whether a “tip” is sufficient to constitute “reasonable suspicion” is to be determined by applying the same “totality of the circumstances” analysis used in determining whether a tip constitutes probable cause, making adjustments for the fact that the less demanding standard of “reasonable suspicion” is being applied. Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412 (1990). The application, however, of this approach is dramatically affected by whether the tipster’s identity is known or not.
Barebones Anonymous Tips Are Insufficient
A barebones anonymous tip is itself insufficient. See e.g., Florida v. J.L., 529 U.S. 266, 271, 120 S.Ct. 1375, 1379 (2000). In J.L., an anonymous tipster called Miami-Dade County police to report that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. Nothing was known about the informant (i.e. whether the informant was credible, and had cooperated with police in the past; who the informant was; what the informant’s connection to the young black male was; etc.) Police arrived at the bus stop, and saw three young black men “just hanging out.” One was wearing a plaid shirt. None of the young men made any threatening or otherwise unusual movements. Nevertheless, police approached the young man in the plaid shirt, told him to put his hands up on the bus stop, patted him down, and recovered a handgun from his pocket. Fifteen year-old, J.L., was then arrested and charged with carrying a concealed firearm without a license. The case was appealed. The Supreme Court of the United States heard the case, and ruled that the barebones tip (“young black male at a particular bus stop, and wearing a plaid shirt would be carrying a gun”) was not sufficient to constitute reasonable suspicion, even where responding officers observed, at the specified bus stop, a young black male wearing a plaid shirt.
Should it matter that the tip concerned a gun? The Court noted in its opinion that, though firearms are dangerous, permitting police to dispense with the reasonable suspicion standard in such cases would “enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting that the (person) was unlawfully carrying a gun.” The Court declined to make any exception for reports involving guns.
An anonymous tip may, however, be sufficient where adequate corroboration exists. Id. But, the level of corroboration required must indicate a credibility regarding matters that are more than merely incidental or readily observable. Matters that are readily observable, such as the location, color, make, model, and license plate of a vehicle—as well as information concerning the number, age, gender, and physical description of the occupants of a given vehicle—are generally insufficient to constitute reasonable suspicion. Predictions about “future behavior,” however, are more credible. Consider Alabama v. White, where an anonymous tipster told the police that a woman would drive from a particular apartment building to a particular motel in a brown Plymouth station wagon with a broken right tail light. The tipster further asserted that the woman would be transporting cocaine. The Supreme Court held that by accurately predicting future behavior, the tipster demonstrated “a special familiarity with (the woman’s) affairs,” which in turn implied that the tipster had “access to reliable information about that individual’s illegal activities.” 496 U.S. 325, 110 S.Ct. 2412 (1990).
In Martinez v. State, the Texas Court of Criminal Appeals held that a cop lacked reasonable suspicion to detain a pickup truck driver based on an anonymous caller’s report that (1) a pickup truck of the same make and similar color had stopped at a particular intersection (2) where the driver then placed two bicycles in the bed of the truck and drove west (3) and where police stopped the pickup three quarters of a mile west of the reported location and (4) then observed two bicycles in the bed of the truck upon approaching the truck, and eventually arrested the driver for possession of marijuana and DWI. 348 S.W.3d 919 (Tex.Crim.App. 2011). The Court reasoned that there had been no complaint of stolen bicycles, and the anonymous caller did not report any contextual factors linking the usual and suspicious activity to a theft. Take a second and think about what was reported: driver stops, picks up two bicycles, and drives off. God help us if this is a valid reason to stop someone.
Navarette v. California: 911 Calls Aren’t Magic
In 2014, the Supreme Court of the United States heard the case of Navarette v. California. (134 S.Ct. 1683) Navarette is often waived around in court, mistakenly (or perhaps insidiously) purported to stand for the proposition that anonymous 911 calls are reliable. They usually offer some meaningless tautology such as: 911 calls are reliable because they are 911 calls and 911 calls allow for tracing calls. This is misreading Navarette.
Navarette actually stands for the proposition that anonymous 911 calls can, “under appropriate circumstances,” demonstrate a sufficient indicia of reliability to provide reasonable suspicion for a stop. What are the “appropriate circumstances”? In Navarette, the anonymous caller gave the following information: the brand, make, and model of the truck; the license plate number; an eyewitness account of the events (reckless driving) that was temporally consistent with police firsthand observations; and predictions about future behavior (reckless driving.)
Note that nothing in the nature of the 911 calls alone—the fact that they can be traced, for example—exalts an anonymous 911 call to instant reliability. (I am tempted her to comment on the UNT’s recent Tweet of October 10, 2014 which reported that: “Denton is having problems getting 911 calls. Learn what you can do if you call 911 and can’t get through.”) This was always the law, so I am not convinced that Navarette actually adds anything, if only that the fact that 911 calls can be traced is something to consider in examining the totality of the circumstance.
Instead, the ability to predict future behavior, and observe significant details that can be independently corroborated by police work towards establishing “reliability.”
In June of 2014, two months after the Supreme Court’s opinion in Navarette the Texas Court of Criminal Appeals issued its opinion in Matthews v. State. 431 S.W.3d 596 (2014). In further proof that Navarette does not stand for the proposition that anonymous 911 calls are in and of themselves sufficient to warrant reliability, the Court wrote that: “in addition to the description and location of the (defendant) and the van (defendant was found in), the caller also identified the defendant by name. While the specificity of this tip contains an indicia of reliability, we need not decide whether this tip alone supported reasonable suspicion because [the officer] had additional facts before making his investigatory detention.” Id. at 604. Namely, that the defendant refused to comply with the cop’s repeated demands to show the cop his hands, and was acting suspiciously. Id.
I would suggest that at the end of the day, then, we are left with what common sense asserts: anonymous snitching is unreliable, because it is anonymous. It is easy to make accusations, whether contrived or not, when your identity will not be disclosed. It’s also, to be quite frank, cowardly.