Recently the Third Circuit handed down its opinion in United States of America v. Anthony Johnson, No. 09-2245 (Filed January 27, 2010), and the results make absolutely no sense.
The Fourth Amendment governs police conduct when they approach citizens. The police may request permission to ask questions, and the citizen has every right to refuse. Police officers may also stop an individual temporarily, which means the individual is not free to leave. The police have this power even though the individual may not have been placed under arrest. But it is absolutely clear the police do not have carte blanche to exercise this authority.
The law allows this only if the circumstances provide a basis reasonably to suspect criminal conduct either has taken or is taking place. This means the police must be able to detail who, what, when, where, and how they perceived events.
Furthermore, those observations must provide an objectively reasonable basis for their beliefs. The authority to stop includes, but is not limited to, people walking on foot and driving in cars.
A tip from a citizen does not provide reasonable suspicion unless certain criteria are satisfied. I blogged more extensively about this here, so I will repeat only the general principles now.
When looking at information from a tipster, courts must use common sense. Common sense is, far and away, the biggest principle to remember. The law requires courts to consider the reliability, truthfulness, and knowledge basis of the tip. But the analysis does not end there. The court must find the police took steps independently to corroborate the tip before they took any action.
In summary, the overarching concepts here are simple. First, the Fourth Amendment protects individual freedom. It appears in the Bill of Rights, so clearly its purpose is not merely perfunctory. Second, the law requires the court to use common sense in making a determination.
Consider the facts of this case using common sense. The tipster called 911 to report things she thought she saw and heard. It was night time on January 7, 2007, and the rain was coming down hard.
Common sense instructs us it was cold outside and difficult to see for three reasons:
- it was night time,
- it was raining, and
- it was the middle of a Pennsylvania winter.
All of these details are important because they tend to undercut what the tipster thought she saw and heard. Despite the time and the weather, the tipster claimed she was standing in the front door. Despite the natural environment, she reported three things.
First, she thought she saw a white taxi with a green roof light park in a lot across the street. Notably, the taxi did not park on the street in front of her house. Furthermore, it did not park across the street opposite her house. Instead the taxi went into a parking lot on the other side of the street from her house on a dark, rainy night. Although the opinion does not indicate the distance, it clearly was not immediately in front of her. Additionally, the record is unclear whether the roof light was actually green or white.
Second, the tipster thought she observed two men exit two separate vehicles and wrestle on the ground in the lot across the street in the rain. But the tipster clearly did not provide any details at all about the men involved.
Third, she thought she heard at least one gun shot, and saw the taxi leave. Calling 911 she told the dispatcher "I'm standing here on [sic] my front door," and during the call she said she saw a police car as it arrived on the scene.
It seems, based either on the time of night, the weather, or having heard the sound of gun fire, that any reasonable person would have stayed clear of the door in a place that was safe if not warm. It seems this would dissuade a court engaged in analysis that calls for common sense.
Even putting those things aside, this is all the information the police had when they spotted a taxi ten blocks away. The taxi matched the description the tipster had provided only in respect of its color. The record reflects the roof light might have been green, or it might have been white. She had not provided a license plate or any other identifying information. She had not provided any details about the occupants, which meant the police knew absolutely nothing about the people in the cab. Finally the police did not witness the cab commit any motor vehicle offenses. Apparently Harrisburg does not have many taxis.
Nevertheless the police stopped the taxi, approached with guns drawn, ordered the driver and the defendant out, handcuffed them, and secured the defendant's young son. This stop resulted in the seizure of a gun from the defendant who has a prior felony record.
Despite all the common sense problems with these facts, the Court reasoned the tip provided reasonable suspicion to stop the cab. Along the way, the court's reasoning not only gave the benefit of all doubts to the government, but also it allowed innocent facts to play into the calculation for reasonable suspicion. Apparently courts only require the police independently to corroborate innocent details, and will find reasonable suspicion based on this.
In all events, these are among the many reasons this opinion is troublesome. Here the United States Court of Appeals for the Third Circuit turned a shield, the Fourth Amendment, into a sword. Now precedent in this circuit, the police can intrude on the right to be left alone based on absolutely nothing suspicious at all.
United States of America v. Anthony Johnson, No. 09-2245 (Filed January 27, 2010)
