By David Daggett
On June 5, 2018 the Maryland Court of Special Appeals, in the case of Mack v. State, 2018 Md. LEXIS 309, limited Navarette v. California, 134 S. Ct. 1683 (2014) as a tool in the police and prosecutor tool belt, at least when it comes to stopping suspected impaired drivers. In the grand scheme of things it is not the toughest loss we’ve had to deal with—it’s like losing an awl or a file as opposed to a hammer, screwdriver or pliers. Unfortunately, Navarette—while still good law—at this point is probably more trouble than it’s worth.
For anyone sleepwalking through the past four years, prior to Navarette, law enforcement, upon receiving an anonymous citizen complaint of a possible impaired driver, was required to locate the suspect vehicle and develop their own reasonable suspicion or probable cause before initiating a traffic stop. Navarette changed that, but after Mack, its scope is now somewhat limited. We will address that impact in due time.
Maurice Mack v. State
Two Baltimore City police officers responded to a call from dispatch that two African-American men, one wearing a blue and one wearing a gray jacket, were selling drugs from a silver Honda Accord in the 5500 block of Ready Avenue. The officers were aware that that particular location was a “high drug crime area” and had responded to numerous calls to that area in the past. Dispatch also noted that the caller did not provide a name or any identifying information. The officers arrived at the scene simultaneously in separate cars and upon seeing a silver Honda with the motor running with two African-American men sitting in it, parked their cars in front of and behind the Accord, effectively blocking it from being moved.
One of the officers observed through the front windshield that young Maurice Mack (a.k.a. The Space Cowboy and The Gangster of Love) was wearing a gray jacket and that both men were “dipping their shoulders down to the lower part of the seat.” In the officer’s experience, “an armed person would usually dip their hands down to the lower part of the seat, underneath the seat, to either grab a weapon or put one away.” The officer testified at a suppression hearing that based upon his observations and experience, he believed the men to be armed. After ordering them out of the Accord, both were frisked for weapons. A sergeant then arrived on the scene to provide back-up.
As Mack was being frisked, the sergeant noticed a small piece of plastic hanging outside Mack’s underwear, which he believed to be a sandwich baggie likely having narcotics in it. Sure enough the baggie did contain illegal narcotics, and as a result the car was searched and a handgun was discovered. Mack sought to have the drugs and handgun suppressed, contending that the initial blocking of his car constituted an unlawful seizure of his person and that the only basis for the seizure was the anonymous tip. His motion was denied by the Circuit Court and his appeal followed.
The Court of Special Appeals in resolving Mack provided an excellent analysis of Navarette, Alabama v. White, 496 U.S. 325, 330 (1990) and Florida v. J.L., 529 U.S. 266 (2000) but began with a refresher on the levels of suspicion required when police conduct consensual encounters and detentions.
Consensual Encounter (Accosting)
In order to merely approach a private citizen in a public area to engage in conversation or request information, law enforcement requires no level of suspicion. A police officer is every bit as free to approach a citizen on public property and ask a question as would be any private citizen. Legally speaking, such an approach is called an “accosting” but that word sounds somewhat nefarious so we prefer the term “consensual encounter.” “Accosting” sounds more like what happens when you’re out mowing your lawn and someone walking through your neighborhood tries to get you to buy magazines to send a kid to camp. The subject of such a consensual encounter is free to walk away without answering and cannot be detained. Fourth Amendment protections are not implicated in such an encounter.
Detention (Investigatory Stop)
In order to temporarily detain the person and ask further questions, law enforcement must have a reasonable articulable suspicion of possible criminal activity, be it past, present or future criminal activity. At that point the citizen is not free to leave, but may only be detained for “…as long as it takes a police officer to confirm or dispel his
The central issue facing the Court of Special Appeals in Mack was whether the information relayed in the 911 call was of sufficient weight to establish reasonable suspicion of criminal activity at the time the officers’ hemmed in Mack’s vehicle. The answer to that question hinged on the Court’s application of Florida v. J.L. and Navarette v. California.
Florida v. J.L., 529 U.S. 266 (2000)
In Florida v. J.L., a tip was received by police that a young black male in a plaid shirt was standing at a particular bus stop and was carrying a gun. The tipster did not explain how he knew about the gun, nor did he suggest that he had any special familiarity with the young man or his affairs. Two officers arrived on the scene and observed three black juveniles hanging out, with J.L being the only one wearing a plaid shirt. Apparently, wearing a plaid, flannel shirt in Florida, while possibly deserving of a fashion citation, does not rise to the level of criminal activity. Other than the anonymous call, the officers had no reason to suspect the lads of any criminal activity. J.L. was frisked and much to his chagrin, a gun was recovered.
The Supreme Court noted that the officers’ suspicion that the youngsters were engaged in criminal activity was based “solely from a call from an unknown location by an unknown caller and not from any observations of their own.” The SCOTUS noted that, unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if it turns out to be bogus, “an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.” J.L. at 270.
The Court determined that no reasonable suspicion arose from such a minimal tip and as a result, the police had no basis for believing “that the tipster had knowledge of concealed criminal activity,” and that they did not develop any independent reasonable suspicion. Furthermore, the tip included no predictions of future behavior that could be corroborated to assess the tipster’s credibility. The Supreme Court concluded that the tip was not sufficient to justify a stop and frisk of J.L. No audio recording of the call was placed in evidence and the record failed to indicate any information regarding the informant.
The Court did note that there are situations in which an anonymous tip – should it be sufficiently corroborated – may exhibit “sufficient indicia of reliability to provide reasonable suspicion to make an investigatory stop” and cited from Alabama v. White, 496 U.S. 325 (1990). In that case the tip involved an anonymous caller reporting that a woman was carrying cocaine and would be leaving a specific apartment building at a specific time, would get into a brown Plymouth station wagon with a broken tail light (the caller didn’t specify whether it was a Volaré or Reliant) and would drive to a named motel. The Court noted that, standing alone, the tip wouldn’t have justified a Terry stop, but the fact that officers confirmed the “predictive information” prior to making the stop, made the suspicion reasonable. The tip in Florida v. J.L. did not contain any predictive behavior that the officers could confirm in order to make their suspicion reasonable. The Court noted the following:
An accurate description of a subject’s readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. J.L. at 272
While the Supreme Court was unanimous in its decision, it was the concurring opinion by Chief Judge Rehnquist, noting that the stop and frisk was not justified because the record failed to indicate any documentation of whether the call was made either by a voice recording or tracing the call to a telephone number, that paved the way for the Court’s holding in Navarette some 14 years later.
Navarette v. California, 134 S. Ct. 1683 (2014)
The saga of the Navarette brothers began in Mendocino County, California on August 23, 2008. Mendocino County is located north of the greater San Francisco Bay area and west of the Central Valley. It is noted for its distinctive Pacific Ocean coastline, Redwood forests, its sublime Chablis’, assorted microbrews, and liberal views about the use of cannabis. It is estimated that roughly one-third of Mendocino County’s economy is based on the cultivation of marijuana. Apparently our protagonists were fledgling entrepreneurs engaged in bolstering that economy… or maybe they just liked to smoke a lot of grass.
At approximately 3:42 in the afternoon, a dispatch was received by the California Highway Patrol from a recorded 911 call. The Mendocino County Dispatch team then broadcast the following information to CHP officers at 3:47 p.m: “Showing southbound Highway 1 at mile marker 88, Silver Ford 150 pickup. Plate of 8-David-94925. Ran the reporting party off the road and was last seen approximately five minutes ago.”
At 4:00 p.m. a CHP officer saw the vehicle at mile marker 69 and followed it for approximately five minutes and, after failing to notice any further violations, nevertheless pulled it over at 4:05 p.m. Another officer arrived on the scene and as the two approached the truck, they noticed the smell of marijuana. A search of the truck bed revealed 30 pounds of ganja and the Navarette brothers – Jose and Lorenzo – were arrested. Moving to suppress the evidence, they argued that the traffic stop violated the Fourth Amendment because the officers lacked reasonable articulable suspicion of criminal activity. Two lower courts disagreed and the California Court of Appeals affirmed the conviction, concluding that the officer did have reasonable suspicion to conduct a stop. The California appellate court reasoned that the content of the tip indicated that it came from an eyewitness victim of reckless driving and that the officer’s corroboration of the truck’s description, location and direction established that the tip was enough to justify a traffic stop. The California Court of Appeals also concluded that the caller reported driving behavior that was sufficiently dangerous to merit an investigative stop without waiting for the officer to observe additional reckless driving himself. The California Supreme Court denied review and the Supreme Court granted certiorari.
The SCOTUS (Justice Thomas) held that the Fourth Amendment permits brief investigatory stops – such as the traffic stop in a case such as this – when a law enforcement officer has “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” The reasonable suspicion necessary to justify such a stop “is dependent upon both the content of information possessed by the police and its degree of reliability.” Alabama v. White @ 330 (1990). The Court determined that the standard takes into account “the totality of the circumstances – the whole picture” and although a mere “hunch” does not create reasonable suspicion, the level required to satisfy the reasonable suspicion standard is considerably less than that required for probable cause. Probable cause requires that it is more likely than not that a particular crime was committed and that a particular person committed the crime (preponderance of the evidence).
The Navarette Court, in a tight 5-4 decision, determined that these principles apply with full force to investigative stops based on information from anonymous tips. While acknowledging that an anonymous tip alone seldom demonstrates an informant’s basis of knowledge or veracity, under appropriate circumstances, an anonymous tip can demonstrate “sufficient indicia of reliability to provide reasonable suspicion to make an investigatory stop.” The Court cited Alabama v. White and Florida v. J.L. as providing useful guides.
The Supreme Court differentiated the tip in Florida v. J.L. from the one in Navarette in that in the latter, “(1) the tipster claimed eyewitness knowledge of the alleged dangerous driving; 2) the officer’s observation of the truck at a location where it logically might be based on a timeline of events gave reason to believe that the 911 caller was telling the truth; and 3) a 911 call has some features that allow for identifying and tracing callers, and thus provide some safeguards against making false reports with impunity.” Navarette at 1690
Back to Mack
Returning to Mack v. State, the Maryland Court of Special Appeals opined that when applying a Navarette analysis to a 911 initiated Terry-type stop the Court should examine all the information available to the officers based upon the totality of circumstances as viewed through the eyes of a reasonable and prudent police officer. In Navarette, the Supreme Court did not simply rely on the fact that the tip was through a 911 call, but that the caller indicated personal knowledge of the violation of the law.
In Mack, the Court noted that there was an absence of any record supporting an enhanced reliability of the 911 call and that it is the State’s burden to prove that the search or seizure was reasonable. “It is the State’s obligation to provide persuasive evidence that the tip was reliable.” Slip Opinion at 13. The Court then spent a bit of time reviewing the section of the Public Safety Article dealing with the 911 emergency telephone system and how in today’s world the State has a much greater ability to track down the caller’s information if need be and “can provide a much better basis for determining the caller’s knowledge and reliability than broad assumptions or inferences drawn merely from whether the call is an anonymous one.” Slip Opinion at 14
As mentioned earlier, when it comes to impaired driving traffic stops based upon 911 calls, the prudent course of action (so long as the safety of others isn’t at risk) is for the officer to locate the vehicle and then develop their own reasonable articulable suspicion or probable cause before making the stop. Chances are good that if a driver’s behavior is so bad that a citizen would take the trouble to call 911, then the driver will still be exhibiting that behavior when the officer locates the suspect vehicle.
The Court of Special Appeals wrapped up the Mack decision by cautioning that “it would behoove the State, when relying on an anonymous tip, to produce the recording (or explain its absence) and give the suppression court the ability to listen to the conversation – all the information supplied by the caller and not just what the police dispatcher relayed to patrol officers – in order to make a more informed judgment regarding its reliability.” Slip Opinion at p. 14
While certainly not impossible to do, it would surely make things much easier if the stopping officer would simply wait a moment to develop independent RAS or PC before turning on their emergency equipment and initiating a traffic stop.
When investigating other crimes (not involving a traffic stop), the general rule of thumb is, the more information elicited from the caller (and the more of that information corroborated), the better. Corroborated information regarding future behavior is strongly encouraged, as are observations resulting in reasonable articulable suspicion of criminal behavior on the part of the subject of the tip.
Again, this is not to say that Navarette is bad law, it is merely a cautionary tale against relying too quickly on anonymous phone calls.
AS ALWAYS, PLEASE CONSULT WITH YOUR LOCAL STATE’S ATTORNEYS’ OFFICE WITH ANY SPECIFIC QUESTIONS REGARDING THIS SUBJECT MATTER.