PEOPLE v FAUCETT
Docket No. 93765
Supreme Court of Michigan
Decided May 11, 1993
442 Mich 153 | 500 N.W.2d 707
Argued December 10, 1992 (Calendar No. 12).
In an opinion by Justice RILEY, joined by Chief Justice CAVANAGH, and Justices BRICKLEY, BOYLE, GRIFFIN, and MALLETT, the Supreme Court held:
Given the totality of the circumstances, the police officer had reasonable suspicion to make an investigative stop.
- The Fourth Amendment protects citizens from unreasonable sеarches and seizures. Brief investigative stops short of arrest are permitted where police officers have a reasonable suspicion of ongoing criminal activity. Information from anonymous informants may supply reasonable suspicion where it carries sufficient indicia of reliability. The factors offered to establish these indicia of reliability, which include the informant‘s knowledge, veracity, and the degree of police corroboration, are to be considered in their totality rather than independently.
- In this case the district court‘s characterization of the anonymous call is not supported by the record. The record indicated that the tipster identified the defendant, knew that at the time of the call that the defendant was en route, specified the route to be traveled, and described the defendant‘s pickup
REFERENCES
Am Jur 2d, Searches and Seizures §§ 78, 121.
See ALR Index under Informers; Search and Seizure.
Reversed and remanded.
Justice LEVIN, dissenting, stated that, under White, to possess sufficient indicia of reliability to justify a stop, an anonymous tip must indicate that the caller has special familiarity with the defendant‘s affairs so as to predict future behavior. In this case, there was insufficient indicia of such reliability to justify the stop.
193 Mich App 499; 484 NW2d 670 (1992) reversed.
SEARCHES AND SEIZURES — INVESTIGATIVE STOPS — ANONYMOUS TIPS — TOTALITY OF CIRCUMSTANCES.
Whether an anonymous tip provides an indicia of reliability sufficient to support a reasonable suspicion of criminal activity and a subsequent investigative stop must be tested in the light of the totality of the circumstances (
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Dennis P. Grenkowicz, Prosecuting Attorney, Robert A. Reuther, Chief Assistant Prosecutor, and Stuart R. Sergeant, Assistant Prosecuting Attorney, for the people.
Robert B. Kane for the defendant.
RILEY, J. We are called upon to review the exсlusion of evidence in proceedings for defendant‘s possession of approximately a quarter pound of marijuana. Specifically, the Court of Appeals affirmed the trial courts’ conclusions that an anonymous telephone call relied upon by the Alpena Police Department to make an investigative stop of defendant‘s vehicle did not provide the basis to support a reasonable suspicion of criminal behavior. Resolution of this issue requires this Court to consider for the first time the effect of Alabama v White, 496 US 325; 110 S Ct 2412; 110 L Ed 2d 301 (1990), upon Michigan jurisprudence.1 We conclude that given the totality of the circumstances, the police officer had reasonable suspicion to make an investigative stop. Accordingly, we reverse and remand for further proceedings consistent with this opinion.
I. FACTS
At approximately 6:30 P.M. on July 9, 1988, the Alpena police dispatcher received a telephone call from an anonymous source who stated that defеndant was presently transporting a quarter pound of either marijuana or cocaine in a “newer model blue pickup, possibly a Datsun.” The caller stated that defendant was en route to Alpena via Werth Road. The informant also stated that defendant would be turning onto Hobbs Drive, then possibly onto either Third or Grant. According to the tip, the drugs were concealed in a carrying case behind the front seat of the vehicle.
This information was relayed to Officer Michael Roy of the Alpena Police Department and to other law enforcement authorities including the state police. Minutes after receiving the information, Officer Roy observed a blue Mazda pickup truck traveling on Hobbs Drive. Officer Roy recognized defendant driver from a previous arrest and began
At about the same time, Michigan State Police Trooper Roger Liedke arrived at the scene. Having heard the same information that was relayed to Officer Roy, Trooper Liedke approached the pickup truck. Through the open passenger side window, Trooper Liedke detected the strong odor of fresh marijuana.3 The subsequent search of the pickup truck uncovered a black attaché case containing eleven bags of marijuana behind the front seat.
The district court ordered suppression of the evidence on the ground that the anonymous tip did not support the investigative stop that led to seizure of the contraband. On appeal, the circuit court affirmed the district court‘s dismissal, as did
II. ANALYSIS
The exclusionary rule providing for suppression of unlawfully obtained evidence derives from protections contained in the United States Constitution.5
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Fourth Amendment, then, protects citizens from unreasonable searches and seizures. Terry v Ohio, 392 US 1, 9; 88 S Ct 1868; 20 L Ed 2d 889 (1968); United States v Brignoni-Ponce, 422 US 873, 878; 95 S Ct 2574; 45 L Ed 2d 607 (1975); United States v Sharpe, 470 US 675, 682; 105 S Ct 1568; 84 L Ed 2d 605 (1985); People v Shabaz, 424 Mich 42, 52; 378 NW2d 451 (1985). The reasonableness of a Fourth Amendment seizure balances the governmental interest that justifies the intrusion against an individual‘s right to be free of arbitrary police interference. Terry, supra at 20-21; Brignoni-Ponce, supra.
In addition, the federal constitutional protections against unreasonable searches and seizures have been extended to state proceedings through the Due Process Clause of the Fourteenth Amendment. See Mapp v Ohio, 367 US 643, 655; 81 S Ct 1684; 6 L Ed 2d 1081 (1961); People v Nash, 418 Mich 196, 211; 341 NW2d 439 (1983) (opinion of BRICKLEY, J.); People v Burrell, 417 Mich 439, 448, n 15; 339 NW2d 403 (1983). Because the Michigan Constitution does not provide more protection than its federal counterpart, under the cirсumstances of this case, federal law controls our inquiry. Thus, consideration of defendant‘s motion for exclusion of the marijuana necessarily implicates his federal constitutional rights. See People v Toohey, 438 Mich 265, 270-271; 475 NW2d 16 (1991), and People v Collins, 438 Mich 8, 25-31; 475 NW2d 684 (1991).6
The seminal federal case recognizing the validity of investigative stops is Terry v Ohio, supra. In Terry, a police officer stopped three men whom he suspected of “casing a job, a stick-up” after observing two of the men repeatedly walk past and peer into a store window. 392 US 6. The officer stopped the men and asked for identification. Because adequate identification was not provided, the officer conducted a weapons search of the petitioner. The search uncovered a .38 caliber revolver in the left breast pocket of the petitioner‘s overcoat. Another weapon was found in the possession of one of the other men. In response to the defendants’ motion to suppress the guns as the product of an illegal search and seizure, the Supreme Court recognized an intermediate form of weapons search for less than probable cause to arrest as long as the search was based upon specific and articulable facts together with any rational inferences drawn from those facts. Terry, supra at 20-21.
Over a decade later, the Supreme Court decided Adams v Williams, 407 US 143; 92 S Ct 1921; 32 L Ed 2d 612 (1972), in which it concluded that the information provided by a known informant supported a reasonable suspicion of criminality that justified an investigative stop. In Adams, the informant told a police officer that an individual seated in a nearby vehicle possessed narcotics and carried a gun at his waist. On the basis of this information, the officer asked the individual to get out of his vehicle. Instead, the defendant rolled down his window. Although the gun was not visible, the
Informants’ tips, like all other clues and evidence coming to a policeman on the scene, may vary greatly in their value and reliability. One simple rule will not cover every situation. Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized. But in some situations . . . the subtleties of the hearsay rule should not thwart an appropriate police response. [407 US 147.]
In United States v Cortez, 449 US 411; 101 S Ct 690; 66 L Ed 2d 621 (1981), the Supreme Court was asked to assess the constitutionality of an investigative stop of a truck containing illegal aliens. The Court concluded that the observations of border patrol officers were sufficient to justify an investi
In assessing the validity of the investigative stop, the Cortez Court relied upon the totality of the circumstances test. Specifically, the Court concluded that an assessment of constitutionality must be based upоn all of the circumstances. Furthermore, the assessment of all the circumstances must yield a particularized suspicion that the specific individual being stopped is engaged in wrongdoing. The Supreme Court also voiced the following caution:
The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same and so are law
enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. [Cortez, supra at 418.]
Several years later, the Supreme Court rejected the two-pronged Aguilar-Spinelli test for probable cause to search or arrest on information provided by an anonymous tip. Illinois v Gates, 462 US 213, 238; 103 S Ct 2317; 76 L Ed 2d 527 (1983). In reаffirming the use of the totality of the circumstances test for probable cause, the Gates majority noted that the two-pronged Aguilar-Spinelli test had “encouraged an excessively technical dissection of informants’ tips, with undue attention being focused on isolated issues that cannot sensibly be divorced from the other facts. . . .” Gates at 234-235.9 Although the informants’ bases of knowledge and veracity are still highly relevant to the issue whether probable cause exists, the failure of one no longer requires the conclusion that probable cause does not exist. Rather, deficiencies in one may be compensated for by strengths of the other, or by other factors. See id. at 233-234.
In United States v Sokolow, 490 US 1; 109 S Ct 1581; 104 L Ed 2d 1 (1989), the Supreme Court reversed the United States Court of Appeals for the Ninth Circuit for its creation of unnecessary difficulty in dealing with the concepts concerning the reasonable suspicion analysis embodied in the Fourth Amendment.10 Id. at 7. The ninth circuit
With regard to the issue whether an anonymous tip supports a reasonable suspicion to stop a suspect, Michigan case law tracks federal precedent.11 In addition, the decisions of our courts regarding
B. ALABAMA V WHITE
On April 22, 1987, Corporal Davis of the Montgomery Police Department received an anonymоus phone call informing him that Vanessa White would be leaving apartment 235-C of the Lynwood Terrace Apartments at a particular time later in the day. The caller also described White‘s vehicle as a brown Chrysler station wagon with a broken right taillight lens. According to the caller, White was going to Dobey‘s Motel with a brown attaché case containing about an ounce of cocaine.
Corporal Davis staked out the apartment complex, where he and his partner saw the vehicle described by the anonymous informant. The officers also saw White enter the station wagon and proceed toward Dobey‘s Motel. Davis radioed ahead for a patrol unit to pull White over. White was asked to step to the rear of the vehicle and informed that she had been stopped for suspected possession of narcotics. When asked if she would permit a search of the vehicle, White consented. White also gavе the officers the combination to a locked brown attaché case found in the vehicle. The attaché case contained marijuana.
White was charged with possession of marijuana and cocaine.13 The Montgomery County Court denied a motion to suppress the narcotics evidence. On appeal, the Alabama Court of Criminal Ap
The Supreme Court began its analysis by recalling its decision in Adams v Williams, supra. In Adams, the majority concluded that the information provided by a known informant, though unverified, carried with it sufficient indicia of reliability to justify an investigative stop and weapons search. White, supra at 328. Next, the White majority revisited the Gates decision in which the Court rejected the Aguilar-Spinelli two-pronged test for the reliability of anonymоus tips in favor of the totality of the circumstances test.15 The Adams and Gates precedents formed the basis for the White Court‘s test for assessing whether an anonymous tip furnishes the reasonable suspicion necessary to make an investigative stop.16
The Court concluded that independent police corroboration of the informant‘s predictions “imparted some degree of reliability to the other
C. FACTUAL COMPARISON OF WHITE AND FAUCETT
In White, an anonymous caller (1) identified Vanessa White, (2) knew the apartment from which she would be leaving, (3) specified the time, (4) described the vehicle, and (5) told police White‘s destination. For purposes of comparison, we borrow from the White opinion certain weaknesses noted in their findings. First, the police on surveillance observed White leave the apartment building but not apartment 235-C. Second, Corporal Davis did not state the exact time that was given
In this case, we find the following facts to be critical: (1) the anonymous caller identified defendant, (2) the caller knew at the time of the call that defendant was en route, (3) the caller described the pickup truck with substantial accuracy, and (4) defendant‘s travel route was described in significant detail. Furthermore, Officer Roy of the Alpena Police Department corroborated defendant‘s identity through a LEIN search of the pickup truck‘s license plate, defendant‘s travel on Hobbs Drive as stated, and the predicted turn onto Grant Avenue before making the stop.
Although the caller‘s information lacked a point of departure as in White, we believe that this information lacked relevance because at the time
III. SUMMARY
As noted earlier, the Fourth Amendment protects citizens from unreasonable searches and seizures. Terry, Brignoni-Ponce, Sharpe, Shabaz, supra. From Terry, we learn that brief investigative stops short of arrest are permitted where police officers have a reasonable suspicion of ongoing criminal activity. Adams teaches that information from known informants may supply reasonable suspicion where it carries sufficient indicia of reliability. The Cortez holding made clear that the totality of the circumstances test was to be used in investigative stop cases. Moreover, the Cortez Court warned against overly technical reviews of a police officer‘s common-sense assessment of the probabilities that criminal activity was afoot. In Gates, the Supreme Court rejected the inflexible requirement that an anonymous tipster‘s information satisfy both the basis of knowledge prong and the veracity prong of the Aguilar-Spinelli test in probable cause cases. Instead, these factors are to
The district court concluded that the information provided by the anonymous informant was insufficient to create a reasonable suspicion,19 stating:
[T]here is no [police] corroboration except for the fact that the officer observed the Defendant Faucett in the general area . . . and that it was Merl Faucett and he was driving a blue late model pickup truck, although the wrong make.
Similarly, in its opinion, the circuit court stated
that the anonymous tip did not contain the necessary range of details concerning the Defendant‘s present and future actions. Herein, the anonymous information was limited to a vehicle description
and the general direction it was traveling. This limited information combined with the lack of corroboration on the part of the police including the fact that the make of the truck differed from that contained within the anonymous tip, did not providе the reliability necessary to raise a reasonable suspicion. [Emphasis added.]
The Court of Appeals agreed with the district court and the circuit court that the anonymous caller only predicted two facts, namely: “(1) that the defendant was driving a blue pickup truck and (2) that defendant‘s vehicle was traveling toward town by way of Hobbs Drive and possibly Grant Street.” Id. at 504.
Although a trial court‘s ruling on a motion to suppress evidence is entitled to deference and is not to be disturbed unless it is clearly erroneous, Burrell, supra at 448,20 we find that the court‘s characterization of the anonymous call is not supported by the record. We read the record as indicating that the tipster identified defendant, knew that at the time of the call defendant was on the road, specified the route to be traveled, and described the pickup truck with substantial accuracy. Clearly none of these facts, standing alone, would support a finding of reasonable suspicion, however, it was error to disregard them in light of the totality of the circumstances analysis required by White. See Burrell, supra. Furthermore, a significant distinction between the facts in White and in this case is the timing of the anonymous phone call. In White, the Montgomery police had time to establish a surveillance. In this case, the phone call came after defendant had left with the narcot-
Moreover, we take issue with certain characterizations of the facts mаde by all three courts. For example, the described travel route was more than a “general description” on the basis of the degree of its detail. In addition, the caller described the vehicle as a “newer model blue pickup, possibly a Datsun.” We believe that this described the vehicle with sufficient certainty. That the pickup truck turned out to be a Mazda does not substantially affect the accuracy of the statement, particularly in light of the caller‘s qualification of the vehicle‘s manufacturer by use of the word “possibly.” Furthermore, the circuit court‘s and the Court of Appeals apparent disregard of the police officer‘s identification of defendant and of the tipster‘s knowledge that defendant was en route runs afoul of the Cortez and White requirement that all facts must be considered in their totality. Even probable
Despite certain factual weaknesses in the White case, such as the failure to verify White‘s destination, the Supreme Court, applying the totality of the circumstances test, held that the quantum of evidence supported a finding of reasonable suspicion on the basis of an anonymous tip made reliable by a degree of independent police corroboration. We are persuaded that application of the White analysis to the facts of this case supports the conclusion that there was a reasonable suspicion of criminal activity sufficient to justify an investigative stop.22 The government‘s interest in the prevention of drug trafficking is a strong one. In contrast, a brief traffic stop on suspicion of a serious crime is not so intrusive as to persuade this Court that the stop was unreasonable. See Terry and Brignoni-Ponce, supra.
IV. CONCLUSION
We conclude that the tipster‘s information carried with it sufficient indicia of reliability under the totality of the cirсumstances to support a finding that Officer Roy had a reasonable suspicion to make the investigative stop. Because the courts
Reversed and remanded for further proceedings consistent with this opinion.
CAVANAGH, C.J., and BRICKLEY, BOYLE, GRIFFIN, and MALLETT, JJ., concurred with RILEY, J.
LEVIN, J. (dissenting). The majority concludes that an anonymous tip provided to the Alpena Police Department was sufficient to justify a stop and subsequent search of Merl Faucett‘s vehicle, and reverses the dеcision of the Court of Appeals. I would affirm.
I
The Alpena Police received an anonymous telephone call advising that Faucett was then transporting a quarter of a pound of either marijuana or cocaine in a “newer model blue pickup, possibly a Datsun,” and that he was traveling into Alpena on Werth Road and would turn onto Hobbs Drive and then onto either Third or Grant. The tipster also advised that the drugs would be concealed in a carrying case behind the front seat of the vehicle.
The circuit court suppressed evidence of drugs found during a subsequent stop, finding that the anonymous tip did not justify a reasonable suspi-
We all appear to agree concerning thе law. The minimum constitutional standard that the police and the anonymous tip must meet is established under the federal constitution. The recent decision of the United States Supreme Court in Alabama v White, 496 US 325; 110 S Ct 2412; 110 L Ed 2d 301 (1990), is controlling.2
The focus in White was whether the anonymous tip sufficiently predicts future behavior of the defendant, verified by the police, to justify the police in concluding that the tipster has special familiarity with the affairs of the defendant, and thus there is sufficient indicia of reliability of the tip to justify a stop.
In White, Corporal Davis of the Montgomery Police Department received an anonymous telephone call informing him that Vanessa White (1) would be leaving apartment 235-C of the Lynwood Terrace Apartments at a particular time
Davis and his partner watched the Lynwood Terrace Apartments and observed a woman leave building 235 in the time frame designated by the caller, enter the brown station wagon, and proceed in the most direct route possible to Dobey‘s Motel. White was stopped by another squad car at Davis’ direction before actually reaching the motel. Before stopping White, the Montgomery Police Officers had corroborated the following predictions made by the anonymous tipster: (1) a woman would leave building 235 of the Lynwood Terrace Apartments during a designated time frame, (2) she would enter a specifically described vehicle, and (3) would drive to a specific destination.
In deciding on the sufficiency of the tip in White, the Court emphasized the caller‘s ability to predict White‘s future behavior. As the Court observed (quoting its prior opinion in Illinois v Gates, 462 US 213; 103 S Ct 2317; 76 L Ed 2d 527 [1983]), ” ‘the anonymous [tip] contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted’ ”4 (emphasis added). The Court explained:
The fact that the officers found a car precisely matching the caller‘s description in front of the 235 building is an exаmple of the former. Anyone could have “predicted” that fact because it was a condition presumably existing at the time of the
call. What was important was the caller‘s ability to predict respondent‘s future behavior, because it demonstrated inside information—a special familiarity with respondent‘s affairs. The general public would have had no way of knowing that respondent would shortly leave the building, get in the described car, and drive the most direct route to Dobey‘s Motel.5
In finding the tip sufficient to support the investigative stop under the totality of the circumstances—and the Court said that White was a “close case“—the Court focused on the tipster‘s prediction of White‘s future behavior that was verified by the police, and concluded that there was sufficient indicia of reliability to establish reasonable suspicion justifying the stop of her vehicle. It was the verification of the prediction of future behavior that provided indicia of reliability and the police in White with reasonable suspicion:
Because only a small number of people are generally privy to an individual‘s itinerary, it is reasonable for police to believe that a person with access to such information is likely to also hаve access to reliable information about that individual‘s illegal activities. When significant aspects of the caller‘s predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop.6
II
To provide sufficient indicia of reliability to justify an investigative stop, the tip must indicate that the caller has special familiarity with the
The anonymous tip in this case did not contain the same level of indicia of reliability, arising from the verification of prediction of future behavior, as did the tip in White.
The tip to the Alpena Police Department was made while Faucett was already driving into Alpena on Werth Road in his “newer model blue pickup, possibly a Datsun.” Thus, the only prediction of future behavior contained in the tip that could possibly have been verified by the police was that Faucett would turn onto Hobbs Road, and then onto either Grant or Third. The only prediction actually verified by the police was that Faucett would turn from Hobbs—where he was first observed—onto either Grant or Third.
The majority relies on the following as critical to its conclusion that the anonymous tip to the Alpena Police was sufficient to justify the stop in this case: “(1) the anonymous caller identified defendant, (2) the caller knew at the time of the call that defendant was en route, (3) the caller described the pickup truck with substantial accuracy, and (4) defendant‘s travel route was described in significant detail.”8
Evaluating the majority‘s four “critical facts,” there was not sufficient indicia of reliability to justify a stop in this case. Although the officers verified that it was Faucett in the truck and that the truck appeared to have been traveling along Werth Road,9 this part of the tip, the first three of the four “critical facts” relied on by the majority, did not provide indicia оf reliability under the
This leaves what is left of the fourth “critical fact,” namely, that Faucett would turn from Hobbs Drive onto either Third or Grant. And thus the majority concludes that the Alpena police had reasonable suspicion to make an investigative stop of Faucett‘s truck simply because the police had verified that Faucett would turn from Hobbs Drive —where Faucett was first observed by the Alpena Police—onto either Third or Grant.
Under the principles set forth in White, this was not sufficient indicia of the reliability of the tip. I would affirm the decision of the Court of Appeals.
Notes
The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation. The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug seized by a peace officer outside the curtilage of any dwelling house in this state.
See, generally, Zupanec, anno: Odor of narcotics as providing probable cause for warrantless search, 5 ALR4th 681, §§ 3 and 4, pp 687-692. In the instant case, the odor of fresh marijuana was detected. Thus, the odor detected by Trooper Liedke could support a finding of probable cause to search defendant‘s vehicle. See, e.g., United States v Gorthy, 550 F2d 1051, 1052 and n 1 (CA 5, 1977); State v Sandoval, 92 NM 476; 590 P2d 175 (1979). The prohibited substance was found in the attaché case, but this was after the stop and search and did not provide retrospectively a basis for the stop.[I]t is not reasonable to infer present use of marijuana, or to conduct a search for it, on the basis of past use of marijuana evidenced solely by a residual odor of marijuana in an automobile occupied by the defendant, absent determination with reаsonable accuracy of the time frame of use in relation to defendant‘s occupancy. [Id. at 326.]
The emphasized language has been read to provide a degree of protection equivalent to the Fourth Amendment of the United States Constitution absent a “compelling reason” requiring the imposition of a different interpretation. See Collins, supra at 25 and n 26. Id.The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation. The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug . . . seized by a peace officer outside the curtilage of any dwelling house in this state. [Emphasis added.]