Thursday, May 14, 2015
911 call does not always give basis to stop for DWI
The NJ Supreme Court in State v. Gallato 178 N.J. 205 (2003) held:
“The ‘[r]easonable suspicion necessary to justify an investigatory stop requires ‘‘some minimal level of objective justification for making the stop.’’” State v. Nishina, 175 N.J. 502, 511 (2003) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed.2d 1, 10 (1989)).
The test is “highly fact sensitive and, therefore, not readily, or even usefully, reduced to a neat set of legal rules.” Ibid. (internal citation and quotation marks omitted). For analytical purposes in this case, a stop founded on a suspected motor vehicle violation essentially is governed by the same case law used to evaluate a stop based on suspected criminal or quasi-criminal activity.
An informant’s tip is a factor to be considered when evaluating whether an investigatory stop is justified. In that regard, the NJ Courts recently summarized the relevant principles followed by the United States Supreme Court and by this Court:
An anonymous tip, standing alone, is rarely sufficient to establish a reasonable articulable suspicion of criminal activity. Alabama v. White, 496 U.S. 325, 329, 110 S. Ct. 2412, 2415, 110 L. Ed.2d 301, 308 (1990). The United States Supreme Court has warned that “the veracity of persons supplying anonymous tips is ‘by hypothesis largely unknown, and unknowable.’” Ibid. (quoting Illinois v. Gates, 462 U.S. 213, 237, 103 S. Ct. 2317, 2332, 76 L. Ed.2d 527, 548 (1983)). That Court also has instructed that an informant’s “veracity,” “reliability,” and “basis of knowledge” are “relevant in determining the value of his report.” Id. at 328, 110 S. Ct. at 2415, 110 L. Ed. 2d at 308 (citation and quotation marks omitted). To justify action based on an anonymous tip, the police in the typical case must verify that the tip is reliable by some independent corroborative effort. Id. at 329-30, 110 S. Ct. at 2415-16, 110 L. Ed. 2d at 309.
Generally, “if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.” Id. at 330, 110 S. Ct. at 2416, 110 L. Ed. 2d at 309. Stated differently, courts have found no constitutional violation when there has been “independent corroboration by the police of significant aspects of the informer’s predictions[.]” Id. at 332, 110 S. Ct. at 2417, 110 L. Ed. 2d at 310. The analysis in any given case turns ultimately on the totality of the circumstances. Id. at 330, 110 S. Ct. at 2416, 110 L. Ed. 2d at 309.
[State v. Rodriguez, 172 N.J. 117, 127-28 (2002).]
We reaffirm the enhanced protections that we have accorded citizens under the New Jersey Constitution, particularly in respect of motor vehicles. See, e.g., State v. Cooke, 163 N.J. 657, 670 (2000) (declining to apply reduced federal standard when evaluating automobile exception to warrant requirement); State v. Carty, 170 N.J. 632, 647 (establishing State standard for obtaining consent to search automobile, beyond valid motor vehicle stop), modified, 174 N.J. 351 (2002). Without diminishing those protections, the fact remains that in the hierarchy of interests, “[t]here is a lesser expectation of privacy in one’s automobile, and in one’s office, than in one’s home.” State v. Johnson, 168 N.J. 608, 625 (2001) (internal citations omitted). _From a constitutional standpoint, that lesser privacy interest and the nature of the intrusion (an investigatory stop, not a full-blown search, prompted by allegations of erratic driving) are relevant in assessing the reasonableness of the government’s conduct. If those variables were absent or existed under different conditions, our analysis might differ.
We do not, however, suggest that any information imparted by a 9-1-1 caller will suffice. The information must convey an unmistakable sense that the caller has witnessed an ongoing offense that implicates a risk of imminent death or serious injury to a particular person such as a vehicle’s driver or to the public at large. The caller also must place the call close in time to his first-hand observations. When a caller bears witness to such an offense and quickly reports it by using the 9-1-1 system, those factors contribute to his reliability in a manner that relieves the police of the verification requirements normally associated with an anonymous tip. Nor do we suggest that no corroboration or predictive information is necessary in this setting. We adopt the formulation of other courts that the 9-1-1 caller must provide a sufficient quantity of information, such as an adequate description of the vehicle, its location and bearing, or “similar innocent details, so that the officer, and the court, may be certain that the vehicle stopped is the same as the one identified by the caller.” Wheat, supra, 278 F.3d at 731.
We are satisfied that such details, when verified or observed by the officer conducting the stop and viewed within the context of the factors described above, provide an adequate basis under the Fourth Amendment and Article I, paragraph 7 to justify the government’s conduct.
State v. Gallato 170 N.J. 205 (2003)
To justify the stop, the officers required "specific and articulable facts which, taken together with rational inferences from those facts," give rise to a reasonable suspicion of criminal or quasi-criminal activity. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed.2d 889, 906 (1968). The reasonable suspicion required to justify an investigatory stop is lower than the probable cause required for an arrest. State v. Stovall, 170 N.J. 346, 356 (2002).
Recently, in State v. Rodriguez, 172 N.J. 117 (2002), the Supreme Court addressed whether the information provided by an anonymous tip, standing alone, may form a reasonable articulable suspicion of criminal or quasi-criminal activity. The Court held that typically some verification or corroboration of the anonymous tip must be obtained. Justice Veniero wrote: Generally, "if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable." [Alabama v. White, 496 U.S. 325,] 330, 110 S. Ct. [2412,] 2416, 110 L. Ed 2d [301,] 309 . Stated differently, courts have found no constitutional violation when there has been "independent corroboration by the police of significant aspects of the informer's predictions[.]" Id. at 332, 110 S. Ct. at 2417, 110 L. Ed. 2d at 310. The analysis in any given case turns ultimately on the totality of the circumstances. Id. at 330, 110 S. Ct. at 2416, 110 L. Ed. 2d at 309. [Id. at 127-28.]
In Rodriguez, the Court found that the police decision to escort defendant to the patrol office at a bus terminal based on nothing more than that he fit the description provided by an anonymous caller was not justified by a reasonable articulable suspicion of criminality. Id. at 131.
Here, defendant was stopped for no other reason than he was driving based on a call. Neither officer observed any action by defendant which would confirm that he was operating the vehicle erratically.
The State urges that the tip received in this case is particularly reliable because it was given by a citizen rather than a confidential informant who might be engaged in criminal activity.
In State v. Lakomy, 126 N.J. Super. 430 (App. Div. 1974), a named citizen informer called the police to report that an armed person was on the premises of a business. The informer met the police, led the police to the washroom and identified defendant as the armed man. Id. at 432. The involvement by the citizen informer provided a measure of reliability to the uncorroborated tip. Id. at 436. This circumstance, coupled with the potential for violence due to the presence of a gun, justified the stop and frisk of defendant. Ibid. Similarly, in Stovall, supra, 170 N.J. 346, the Court found that information from an identified airline ticket agent conveyed to an experienced narcotics investigator provided reasonable articulable suspicion for the investigator to conduct an investigatory stop of an arriving passenger. Notably, in Stovall, the ticket agent raised concerns about the validity of the identification documents used by two passengers and the investigator at the airport confirmed that the identification was fraudulent. Id. at 366. Furthermore, other facts were gathered and evaluated by the investigator which, considered in their entirety, provided ample reasonable suspicion of criminal activity and warranted an investigatory stop. Id. at 369. In Lakomy, the source of the tip was a corporate executive who not only provided information to the police but also led the police to the suspect. Lakomy, supra, 126 N.J. Super. at 436. In Stovall, the airline ticket agent was identified and provided specific information to raise concerns about the use of fraudulent identification. Stovall, supra, 170 N.J. at 366-67.
Here, however, the informant is not a reliable informant. Thus, we cannot cloak the anonymous caller with any enhanced level of reliability or trustworthiness. Moreover, unlike Stovall, the police officers in this case made no observations of defendant's behavior as a driver. In short, there is nothing in this record from which the officers could determine the veracity and the basis of knowledge of the person supplying the tip and ultimately the tip itself. For these reasons, the officers did not have a reasonable articulable suspicion of quasi-criminal activity to justify the stop of defendant.