STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Roosevelt WILLIAMS, Defendant-Appellant.
No. 96-1821-CR
Supreme Court
Oral argument November 2, 2000.—Decided March 13, 2001.
2001 WI 21 | 623 N.W.2d 106 | 241 Wis. 2d 631
For the defendant-appellant there was a brief and oral argument by Melinda A. Swartz, assistant state public defender.
¶ 1. N. PATRICK CROOKS, J. We review again the court of appeals decision that reversed the conviction of the defendant, Roosevelt Williams, State v. Williams, 214 Wis. 2d 412, 570 N.W.2d 892 (Ct. App. 1997). On April 27, 1999, this court issued a decision,
¶ 2. Florida v. J.L., 529 U.S. 266 (2000), relates to the first of the two issues facing this court, whether an anonymous tip containing a contemporaneous report of drug trafficking, combined with independent observations and corroboration of details from the tip justified the investigatory stop of Williams. Judge James Eaton, assigned to Milwaukee County Circuit Court, found that there was reasonable suspicion to justify the stop. The court of appeals reversed, concluding that the police officers did not have the requisite reasonable suspicion based upon the information before them. Now having the benefit of the Supreme Court‘s guidance in Florida v. J.L., we conclude that, considering the totality of the circumstances, including the indicia of reliability surrounding the anonymous tip and the police officers’ additional observations, the officers reasonably suspected that criminal activity was afoot.
¶ 3. The second issue before us is whether there was reasonable suspicion for the police officers’ subsequent search of the vehicle. The circuit court found that there was, and the court of appeals did not reach that question. We agree with the circuit court that under the circumstances, the officers reasonably suspected that they were in physical danger, justifying the protective search. We therefore reverse the court of appeals, and approve the decision of the circuit court,
I
¶ 4. Sometime during the afternoon of November 2, 1995, a 9-1-1 telephone call1 was received from an anonymous caller. The transcript of the call is as follows:
OPERATOR: Milwaukee Emergency Operator Number 62. How may I help you?
CALLER: Yes, I‘m calling...O.K., I don‘t want to get involved but there‘s some activity that‘s going in...going around in the back alley of my house where they‘re selling drugs and everything and I want to know who I can call to report so they can come around here.
OPERATOR: Are they outside or is (unintelligible)...already... dealing from a house or what?
CALLER: They‘re in the van and they [are] giving customers, you know, drugs.
OPERATOR: Do you have a description of the van?
CALLER: Um, hold on, I can get [it] for you.
OPERATOR: Okay.
CALLER: It‘s a blue and burgundy Bronco. Hello?
OPERATOR: Okay. A blue and burgundy?
OPERATOR: Okay. Is it in the alley or is it. . .it
CALLER: It‘s right in the driveway. Beca...ah, I stay at 4261 North Teutonia.
OPERATOR: Um hmm.
CALLER: And we have like this big parking lot on the side of our apartment.
OPERATOR: Okay.
CALLER: And it is right in between the...um...the parking way and the alley.
OPERATOR: So they‘re in the driveway?
CALLER: Right. It‘s a dark blue and burgundy.
OPERATOR: Okay, we‘ll send someone.
CALLER: Okay. Thank you.
OPERATOR: Thank you. Bye.
¶ 5. The above information was dispatched by radio to Police Officers Johnny Norred and Phillip Henschel, who were driving a general patrol squad car;
OPERATOR: Disrestrict (sic) until further notice.
OPERATOR2: 73R.
SQUAD 73R 73R.
OPERATOR2: 73R drug dealing complaint, 4261 North Teutonia and the alley. Somebody‘s dealing drugs from a blue and burgundy Ford Bronco that‘s parked in the driveway on the side of the building. Complaint number is 1119.
SQUAD 73R: 10-4.
¶ 7. The officers drove down an alley, and then turned to approach the vehicle so that the front of the police car faced the front of the Blazer. At this point, the officers observed that the Blazer had no license plates.3 Two persons were sitting in the front seat. Williams was seated in the driver‘s seat and a female was seated in the passenger‘s seat.
¶ 8. The officers also observed, as they pulled up, that Williams’ right hand was out of view, reaching down and behind the passenger front seat. The officers approached the vehicle, drew their weapons, and told the occupants to put their hands where they could see them. Neither of the occupants was holding weapons. Officer Norred opened the driver‘s car door and ordered them out of the vehicle. The officers conducted a pat-
¶ 9. Officer Norred returned to the Blazer and searched the area behind the passenger seat where he had observed Williams’ hand hidden earlier. Having noted that Williams had long arms, the officer searched wherever Williams could have reached. The officer also searched the area within reach of the passenger‘s arm.
¶ 10. Within the area that he searched, Officer Norred found a green leafy substance that appeared to be marijuana, a container with 26 rocks he suspected to be cocaine base and another small bag of marijuana. At this point, Williams was placed under arrest.
¶ 11. Williams was charged with knowing possession, with intent to deliver, five grams or less of cocaine, in violation of
¶ 12. In addition, Officer Norred testified that even though he and Officer Henschel took a “concealed route” in approaching the Chevy Blazer, he did not know if Williams had seen them or if Williams had a
¶ 13. Officer Norred testified that the purpose of his search of the Blazer was to secure his and Officer Henschel‘s safety. He stated that Williams “may have had a gun in his hands, and he possibly may have dropped it [behind the seat].” Officer Norred explained that “drug dealers have been known to carry guns—and my life is on the line. I don‘t know if he has a weapon there or not, and I certainly would—felt there was a possibility of danger to myself.” He also testified that he would have released Williams and the passenger to return to the vehicle had he not found what appeared to be cocaine base and marijuana.
¶ 14. The circuit court denied the suppression motion, finding that the officers reasonably relied upon the anonymous tip and verified the readily observable information contained in the tip. The circuit court also found that the defendant‘s hand was behind the passenger seat as the officers approached the vehicle. The court ruled that together, these considerations supported the officers’ reasonable suspicion in making the stop and the subsequent protective search of the occupants and the Blazer.
¶ 15. Williams pled guilty. The circuit court entered a judgment of conviction and sentenced Williams to 30 months in state prison.5 Williams appealed, and the court of appeals reversed the circuit court‘s ruling. The court of appeals held that the officers could not have had reasonable suspicion in these circum-
¶ 16. We granted review and reversed the court of appeals. We found that the court of appeals focused only upon the anonymous tip, rather than the totality of the circumstances facing the officers at the time of the stop. State v. Williams, 225 Wis. 2d at 180. Considering both the quality and quantity of the information known to the officers, and the surrounding circumstances, we held that the officers had the necessary reasonable suspicion for both the investigatory stop and the protective search. Id. at 180–81.
¶ 17. As noted above, Williams appealed our decision to the United States Supreme Court. The Supreme Court granted the petition for a writ of certiorari, vacated our decision and remanded for further consideration in light of Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375 (2000). Williams v. Wisconsin, 529 U.S. 1050, 120 S. Ct. 1552 (2000).
II
¶ 18. Whether there is reasonable suspicion that justifies a warrantless search implicates the constitutional protections against unreasonable searches and seizures contained in the Fourth Amendment of the United States Constitution and Article I, Section 11 of
¶ 19. In support of its determination that there was reasonable suspicion to stop and detain Williams and his companion, the circuit court made a number of findings of fact. According to the circuit court, the caller was a citizen complaining of overt drug dealing in broad daylight. She was observing a crime in progress.7 The caller responded to 9-1-1 operator‘s request for a description of the vehicle with “hold on, I can get it for you” and indicated that the vehicle was right beside the caller‘s apartment building. The court found that the police officers then confirmed the information from the telephone call. The vehicle‘s description and location matched the information given by the caller. The officers, in uniform, in a marked police car, in broad daylight, approached the vehicle, and saw that Williams’ hand was reaching behind the passenger seat. The court did not, however, find that Williams’ gesture was furtive. The circuit court also found the officers’ testimony to be credible, including their testimony that they feared for their physical safety upon approaching the vehicle and seeing that Williams’ hand was concealed. The court also imputed to them the information in the 9-1-1 call. State v. Mabra, 61 Wis. 2d 613, 625-26, 213 N.W.2d 545 (1974).
¶ 20. We do not find the circuit court‘s findings to be clearly erroneous. The findings are supported by the record, as it was developed at the evidentiary hearing on Williams’ motion to suppress.
¶ 22. In determining whether the police have lawfully conducted a Terry stop, we consider the totality of the circumstances. Alabama v. White, 496 U.S. 325, 328 (1990). “Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors—quantity and quality—are considered in the ‘totality of the circumstances—the whole picture,‘. . . .” Id. at 330, quoting United States v. Cortez, 449 U.S. 411, 417 (1981). The totality-of-the-circumstances approach views the quantity and the quality of the information as inversely proportional to each other. “Thus, 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
¶ 23. In considering the totality of the circumstances, however, our focus is upon the reasonableness of the officers’ actions in the situation facing them. “The essential question is whether the action of the law enforcement officer was reasonable under all the facts and circumstances present.” State v. Richardson, 156 Wis. 2d 128, 139–40, 456 N.W.2d 830 (1990).
¶ 24. Here, the circumstances include an anonymous tip, which brings to bear the latest of Terry‘s progeny, Florida v. J.L.
¶ 25. In Florida v. J.L.,
[A]n anonymous caller reported to the Miami-Dade Police that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. So far as the record reveals, there is no audio recording of the tip, and nothing is known about the informant. Sometime after the police received the tip—the record does not say how long—two officers were instructed to respond. They arrived at the bus stop about six minutes later and saw three black males “just hanging out [there].” One of the three, respondent J.L., was wearing a plaid shirt. Apart from the tip, the officers had no reason to suspect any of the three of illegal conduct. The officers did not see a firearm, and J.L. made no threatening or otherwise unusual movements. One of the officers approached J.L., told him to put his hands up on the bus stop, frisked him, and seized a gun from J.L.‘s pocket.
120 S. Ct. at 1377 (citations to the Petitioner‘s Appendix omitted).
¶ 27. The United States Supreme Court affirmed, holding that “an anonymous tip that a person carrying a gun is, without more, [in]sufficient to justify a police officer‘s stop and frisk of that person.” Id. at 1377. The Court concluded that the tip lacked “the indicia of reliability of the kind contemplated in Adams [v. Williams, 407 U.S. 143 (1972)] and White.” Id. at 1380.
¶ 28. The indicia of reliability in White related to the predictions contained in the anonymous tip. In White, an anonymous call relayed that Vanessa White would be leaving a specific address at a particular time, and would be going to a named motel, carrying cocaine located in a brown attaché case. 496 U.S. at 327. The call also provided a detailed description of the car White would be driving. Id. Within the timeframe given by the caller, White departed, without an attaché case, and headed towards the motel, where the police stopped her and found the case in her car pursuant to a consensual search. The case contained marijuana; later, the police found that White‘s purse contained the cocaine. The Court concluded that independent corroboration of the anonymous tipster‘s predictions
¶ 29. In Adams, the tip contained no predictive information, but merely relayed that “an individual seated in a nearby vehicle was carrying narcotics and had a gun at his waist.” 407 U.S. at 145. However, the tipster was a known informant who personally delivered the tip, and thus could be held accountable if the tip proved false. Id. at 146-47.
¶ 30. Comparing the tip before the Court in Florida v. J.L., the Court found none of the indicia of reliability that had existed in either White or Adams. The tip was from “an unknown, unaccountable informant.” Florida v. J.L., 120 S. Ct. at 1379. Indeed, the tip contained only information readily observable by passersby, J.L.‘s location—a bus stop, and a very general description—a young black man wearing a plaid shirt. Id. at 1377.
¶ 31. However, “there are situations in which an anonymous tip, suitably corroborated, exhibits ‘sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.’ ” Id. at 1378 (quoting White, 496 U.S. at 327). Florida v. J.L. requires us to examine the indicia of reliability surrounding the tip to determine the quality of the information provided to the police. There are myriad distinctions between the anonymous tip before us and the tip in Florida v. J.L., all indicating that the tip here was reliable.
¶ 32. The tip in Florida v. J.L. was a “bare-boned” tip about a gun. “All the police had to go on...was the bare report of an unknown, unaccounta-
¶ 33. In contrast, here, the anonymous tipster explains exactly how she knows about the criminal activity she is reporting: she is observing it. She says, “there‘s some activity that‘s going in...going around in the back alley of my house.... They‘re selling drugs,” and “they [are] giving customers, you know, drugs.” She then steps away from the phone momentarily to obtain a description of the vehicle. Quite simply, in contrast to the tipster in Florida v. J.L., the tipster here has made plain that she is an eyewitness.
¶ 34. Also in stark contrast to Florida v. J.L., where nothing was known about the informant—the tip was “from an unknown location by an unknown caller“—the informant here identified her location, 4261 North Teutonia. And, more than merely identifying her location, she repeatedly identified it as her home: “my house,” “my apartment building,” “our apartment.” She also described the immediate surroundings: the alley, the parking lot on the side of her apartment building. Even though the caller did not
¶ 35. Although the caller said that she did not “want to get involved,” by providing self-identifying information, she risked that her identity would be discovered. Consequently, the 9-1-1 caller put her anonymity at risk, contrary to Williams’ contention. We agree with the concurrence in Florida v. J.L. that if “an informant places his [or her] anonymity at risk, a court can consider this factor in weighing the reliability of the tip.” Florida v. J.L., 120 S. Ct. at 1381 (Kennedy, J., concurring).10 Risking one‘s identification intimates that, more likely than not, the informant is a genuinely concerned citizen as opposed to a fallacious prankster.11
¶ 36. In fact, the circuit court found that the caller here was a citizen informant. We have recognized the importance of citizen informants, and, accordingly, apply a relaxed test of reliability, that “shifts from a question of personal reliability to ‘observational’ reliability.” State v. Boggess, 110 Wis. 2d 309, 316, 328 N.W.2d 878 (Ct. App. 1982) (citing State v. Doyle, 96 Wis. 2d 272, 287, 291 N.W.2d 545 (1980), overruled on other grounds by State v. Swanson, 164 Wis. 2d 437, 475, 475 N.W.2d 148 (1991)).12 In particular, we view citizens who purport to have witnessed a crime
¶ 37. There are still other distinctions between the tip at hand and in Florida v. J.L. In Florida v. J.L., there was no audio recording of the tip. 120 S. Ct. at 1377. Here, there was an audio recording, a transcript of which was admitted at the suppression hearing. The recording adds to the reliability of the tip in a number of ways. It provides a record of the tip and its specific content. It provides an opportunity for review, albeit somewhat limited, of the tipster‘s veracity, not only based upon content, but also based upon its tone and delivery. The recording would also aid in the event that the police need to find the anonymous caller. “Voice recording of telephone tips might, in appropriate cases, be used by police to locate the caller. . . . [T]he ability of the police to trace the identity of anonymous telephone informants may be a factor which lends reliability to what, years earlier, might have been considered unreliable anonymous tips.” Id. at 1381 (Kennedy, J., concurring).
¶ 38. We note that the call came in on the 9-1-1 emergency services line to a Milwaukee Emergency Operator. According to
Nonetheless, we emphasize the content of the 9-1-1 call. The content of that call indicates that the caller volunteered
¶ 39. The reliability of the anonymous tip here was furthered bolstered by the police corroboration of innocent, although significant, details of the tip. The police, who arrived within four minutes of the dispatch, found the scene much as the 9-1-1 caller described it. The caller correctly identified that there was more than one person in the vehicle. She also accurately described the location of the vehicle, the general description of the vehicle, and the relative layout of the surroundings, the alley/driveway and adjacent empty lot.
¶ 40. We have found previously that “the corroboration by police of innocent details of an anonymous tip” lends credibility to that tip. Richardson, 156 Wis. 2d at 142.16 In addition to asserting criminal activity, identifying information, such as her address, and the relative location of her apartment at that address by describing her view. The caller clearly risked that the police might identify her.
the tips in Richardson, White and Adams all relayed details about apparently innocent activities. The police subsequently independently observed these activities, and thus found corroboration for the information contained in the tips. The corroboration also lent reliability to the tips. Consequently, in Richardson, for example, we concluded that “when significant aspects of an anonymous tip are independently corroborated by the police, the inference arises that the anonymous informant is telling the truth about the allegations of criminal activity.” Id. Here, also, there arises an inference that the anonymous caller was telling the truth about the alleged drug trafficking based upon the corroboration of significant details of the tip.17
¶ 41. Williams contends, however, that the corroboration of significant aspects of the 9-1-1 call here is not enough. Instead, he argues, the police needed to corroborate the tip‘s asserted illegal activity to reasonably rely upon the tip. We have specifically rejected a similar argument made in Richardson, “that verified details of an anonymous tip must carry with them a degree of articulable, suspicious conduct.” 156 Wis. 2d
¶ 42. Williams also contends that Florida v. J.L. requires that an anonymous tip contain predictive information in order to be reliable. The tips in both White and Richardson contained predictions; however, it was not the predictions in and of themselves that lent reliability to the tips. Rather, predictions, if they are or are not verified, facilitate an evaluation of the quality of the tip. In Florida v. J.L., the Court indicated that predictions provide one “means to test the informant‘s knowledge or credibility.” 120 S. Ct. at 1379. However, the Court did not mandate that predictions provided the only means to test a tip‘s reliability. Indeed, “there are many indicia of reliability respecting anonymous tips that we have yet to explore in our cases.” Id. at
¶ 43. There is yet another distinction between this case and Florida v. J.L., that relates to the reliability of the anonymous tip here and the totality of circumstances that gave rise to the officers’ reasonable suspicion. In Florida v. J.L., the Court noted that there was no visible reason to suspect J.L. or his companions of illegal conduct apart from the tip. Id. at 1377. Here, arguably, there are two facts, apart from the anonymous tip, that gave the officers reason to suspect that criminal activity was afoot. First, as the officers approached the Blazer, they observed Williams’ hand extended behind the passenger seat. The gesture, though not furtive, may have indicated that Williams was either reaching for a weapon or concealing evidence as he saw the officers’ approach.
¶ 44. The dissent‘s suggestion at ¶ 121 that because Williams’ action was not furtive it was unreasonable for the officers to conclude he was reaching for a weapon or concealing evidence, is, in itself, unreasonable. We agree with the circuit court‘s conclusion that,
It‘s broad daylight. The officers are dressed in police uniforms operating a marked car. Nothing surreptitious about that. They‘re approaching from the bow of the defendant‘s vehicle. They‘re within easy observation.
Who can tell, given those facts, when Mr. Williams began his reach.
But, in any case, there was a reach. His arm was extended. We don‘t know precisely when he extended it, but his arm was extended behind the passenger van or the passenger seat. . . .
I will tell counsel and I‘ll tell the appellate court that, recently, the court had an opportunity to see just how acute an officer‘s fear can be about having themselves put upon or their life taken. I think, when I balance the officers’ concern for their safety against the possibility that they‘re going to suffer bodily harm, grievous bodily harm or death, if they guess wrong, or if they determine wrongly, that it‘s better to—to be thorough.
(R. at 22:59-60.)
¶ 45. Second, the Blazer had no license plates. Although the lack of plates was not specifically developed or relied upon by the circuit court, we consider instead whether the officers relied upon that fact.20 As noted above, the record is unclear on this point. Accordingly, we do not solely rely upon the absence of the plates to justify the stop.21 See State v. McGill, 2000 WI 38, ¶ 15 n.2, 234 Wis. 2d 560, 609 N.W.2d 795.
¶ 46. Williams contends that the police could not reasonably rely upon either the outstretched arm or the lack of license plates because innocent explanations exist. Nonetheless,
[P]olice officers are not required to rule out the possibility of innocent behavior before initiating a brief stop. . . . [I]f any reasonable inference of wrongful conduct can be objectively discerned, notwithstanding the existence of other innocent inferences that could be drawn, the officers have the right to temporarily detain the individual for the purpose of inquiry.
State v. Griffin, 183 Wis. 2d 327, 333, 515 N.W.2d 535 (Ct. App. 1994) (quoting State v. Anderson, 155 Wis. 2d 77, 84, 454 N.W.2d 763 (1990)).
¶ 47. In Florida v. J.L., the Supreme Court held that “an anonymous tip that a person carrying a gun is, without more, [in]sufficient to justify a police officer‘s stop and frisk of that person.” 120 S. Ct. at 1377 (emphasis added). Here, there is plainly so much more than a “bare-boned” tip. Id. at 1380. The information upon which the police proceeded was substantial in both quality and quantity. The anonymous tip was supported by a wide array of indicia of
B
¶ 48. We next determine whether the protective search of the Chevy Blazer that followed the stop was justified. The Supreme Court noted in Florida v. J.L. that its holding “in no way diminishes a police officer‘s prerogative, in accord with Terry, to conduct a protective search of a person who has already been legitimately stopped.” 120 S. Ct. at 1380. The circuit court found that the officers feared for their physical
¶ 49. Wisconsin has codified the Terry standard for protective searches in
When a law enforcement officer has stopped a person for temporary questioning pursuant to s. 968.24 and reasonably suspects that he or she or another is in danger of physical injury, the law enforcement officer may search such person for weapons or any instrument or article or substance readily capable of causing physical injury and of a sort not ordinarily carried in public places by law abiding persons.
¶ 50. In State v. Moretto, 144 Wis. 2d 171, 174, 423 N.W.2d 841 (1988), we held that
¶ 51. Here, the officers approached the vehicle, and observed that Williams had his arm extended and
¶ 52. The concern that Williams may have dropped or hid a weapon is significant because the officers intended to release Williams and the passenger to return to the Blazer after the investigatory detention. The two vehicles were apparently nose to nose in an alley, or alley-like driveway. Had Williams and his companion been released to return to the Chevy Blazer, the officers would have been in the vulnerable position of having to back out of the alley from whence they came. Indeed, the entire situation rendered the officers particularly vulnerable. Because “a Terry investigation . . . involves a police investigation ‘at close range,’ . . . when the officer remains particularly vulnerable in part because a full custodial arrest has not been effected, and the officer must make a ‘quick decision as to how to protect himself and others from possible danger. . . .‘” Moretto, 144 Wis. 2d at 180 (quoting Michigan v. Long, 463 U.S. 1032, 1050-1052 (1983)).
¶ 53. Contrary to Williams’ contention, the scope of the Terry search here was ” ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” Terry, 392 U.S. at 19 (quoting Warden v. Hayden, 387 U.S. 294, 310 (1967) (Fortas, J., concurring)). The justifying circumstances here are not, as Williams argues and the dissent suggests, drug dealing
¶ 54. These same circumstances rebut Williams’ contention that, by finding there was reasonable suspicion here, we will create a categorical exception to the warrant requirement based upon a connection between drugs and weapons. Williams relies upon the Supreme Court‘s statement in Richards v. Wisconsin, 520 U.S. 385, 393 (1997), that “while drug investigation frequently does pose special risks to officer safety . . . not every drug investigation will pose these risks to a substantial degree.” However, that the officers were responding to a drug complaint is not the only reason to justify the protective search here. The more compelling reason is that Williams’ hand was concealed from view when the officers approached. This alone distinguishes this case from Richards.24
¶ 55. In view of the particularly vulnerable situation facing the officers here, we conclude that the officers acted reasonably. The officers reasonably suspected that they were in danger of physical injury and the circumstances warranted their search of the vehicle. Accordingly, the State has met its burden of showing that the protective search was justified.
¶ 56. We hold that the officers had the requisite reasonable suspicion to detain Williams in consideration of the totality of the circumstances. Those circumstances include the anonymous tip, viewed in light of the Supreme Court‘s recent decision, Florida v. J.L., and the police officers’ additional observations of Williams’ hand extended behind the passenger seat upon the officers arrival, and the absence of license plates on the suspects’ vehicle.
¶ 57. We further hold that the subsequent protective search was valid. The officers were reasonable in fearing for their safety and executed a limited search of the vehicle to quell that fear. We therefore reverse the court of appeals and uphold the judgment of conviction.
By the Court.—The decision of the court of appeals is reversed.
¶ 58. DAVID T. PROSSER, J. (concurring). We are asked in this case to determine whether two police officers had reasonable suspicion to make an investigatory stop of the defendant and his companion as they sat in the front seat of a blue and burgundy-colored automobile parked behind an apartment building at 4261 North Teutonia Avenue in Milwaukee. We know that the officers did not arrive at this site by happenstance. They were responding to an informant‘s tip that “they‘re selling drugs” out of a blue and burgundy vehicle behind her apartment. Thus, the issue presented is “whether the tip, as corroborated by independent police work, exhibited sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.” Alabama v. White, 496 U.S. 325,
¶ 59. Several cases discussed in the majority opinion involve police informants who were totally anonymous. In White, the Montgomery Police Department “received a telephone call from an anonymous person.” Id. at 327. The date was April 22, 1987. Id. In State v. Richardson, 156 Wis. 2d 128, 133, 456 N.W.2d 830 (1990), the La Crosse Police Department received an anonymous telephone call from a public telephone booth. The date was November 4, 1988. In Florida v. J.L., 529 U.S. 266, 268 (2000), the Miami-Dade Police received a tip from an “anonymous caller” who made a call from an unknown location. The date was October 13, 1995. Id.
¶ 60. Police officials knew nothing about the identity of the three informants in these cases. Hence, the reliability of the tips they received depended upon the richness of the detail provided by the informants, the bases of their information, and the corroboration of at least some of the detail through police investigation.
¶ 61. The Supreme Court explained in White why anonymous tips must be treated with great caution:
The opinion in [Illinois v. Gates, 462 U.S. 213 (1983)] recognized that an anonymous tip alone seldom demonstrates the informant‘s basis of knowledge or veracity inasmuch as ordinary citizens generally do not provide extensive recitations of the basis of their everyday observations and given that the veracity of persons supplying anonymous tips is “by hypothesis largely unknown, and unknowable.” This is not to say that an anonymous caller could never provide the reasonable suspicion necessary for a Terry stop.
¶ 62. The Court was satisfied in White that the tip and its partial corroboration established reasonable suspicion. Id. at 332. The anonymous caller spelled out in some detail that Vanessa White would follow a particular course of conduct at a specific time as she headed toward a particular destination carrying cocaine. Several of these predictions were thereafter confirmed through surveillance. The Court was impressed not only with the tip‘s “range of details” relating to easily obtained facts but also the prediction of future activities “not easily predicted.” Id. “What was important,” the Court said, “was the caller‘s ability to predict respondent‘s future behavior, because it demonstrated inside information—a special familiarity with respondent‘s affairs.” Id.
¶ 63. When the Supreme Court took up Florida v. J.L., it was confronted with a fact situation involving an anonymous informant but no predicted future activities. Hence, the question was “whether an anonymous tip that a person is carrying a gun is, without more, sufficient to justify a police officer‘s stop and frisk of that person.” Florida v. J.L., 529 U.S. at 268. The Court held that it was not. Id. The Court determined that the additional information required in these circumstances was information “reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” Id. at 272. The Court cited Professor LaFave, stressing “reliability as to the likelihood of criminal
911 caller
¶ 64. Two years ago, I argued that this case is not governed by the analysis above because it is not an anonymous informant case. State v. Williams, 225 Wis. 2d 159, 189-93, 591 N.W.2d 823 (1999) (Prosser, J., concurring), vacated by Williams v. Wisconsin, 529 U.S. 1050 (2000). It is not an anonymous informant case because the informant made a 911 call in an “enhanced” 911 system. Hence, “[t]he police knew the caller‘s identity or could easily have discovered it because of the information provided by 911.” Id. at 189. Thus, this case is close to the Court‘s decision in Adams v. Williams, 407 U.S. 143 (1972), in which the tip was not reliable in its assertion of illegality but the informant, the source of the tip, increased his reliability by putting himself at risk inasmuch as his identity was clearly known.
¶ 65. My colleagues appear unwilling to draw upon the dramatic technological advances in modern law enforcement because those advances are not fully documented in the record. By contrast, I am willing to take judicial notice of facts that are beyond dispute, recognizing that the enhanced 911 system in effect in Milwaukee County in late 1995 was not in effect in all other areas at that time, or even now.
¶ 66. In 1978, the Wisconsin legislature approved legislation establishing a statewide emergency services telephone number, 911. Ch. 392, Laws of 1977 (effective May 29, 1978). The legislation defined “automatic location identification” as a “system which has the ability to automatically identify the address of
¶ 67. According to a 1997 audit by the Legislative Audit Bureau, “[a]s of May 1997, an estimated 94 percent of the State‘s population was receiving 9-1-1 service from one of 121 answering points being operated in the 57 counties that provide 9-1-1 service.” State of Wisconsin Legislative Audit Bureau, A Best Practices Review: 9-1-1 Services 3 (July 1997). The audit indicated that 105 of the 121 answering points operated an “enhanced 9-1-1 system,” which automatically identifies and displays the caller‘s telephone number and location. Id. at 4. The “sophisticated system” defined in the statutes and the enhanced system referred to in the audit are the same thing.
¶ 68. The 1997 audit states that Milwaukee County has had an enhanced system since 1989. Id., Appendix III, at 2. Establishment of an enhanced system was preceded by a county-wide referendum on 911 services in November 1986. “By nearly 8 to 1, voters said in a referendum that they wanted [Milwaukee] County to establish a 911 system, which automatically records a caller‘s telephone number and address at a central dispatch location, even if the caller cannot speak.” 911 System Wins Big in County Referendum, Milwaukee Journal, Nov. 5, 1986, at 3B.
¶ 69. Today, an enhanced system normally provides authorities with (1) the telephone number of the telephone from which an incoming call is made, (2)
¶ 70. My reading of the evidence is that when the police dispatcher received the 911 call in this case, he or she knew at a minimum the address and telephone number of the caller. Moreover, the call was recorded. This means that the police had on tape the voice of the person making a 911 telephone call from a specific address at a specific time. This caller cannot be
¶ 71. The transcript of the call reveals that the dispatcher never asked the caller‘s name, address, or telephone number, implying that the dispatcher already knew most of this information. Drawing this inference is reasonable because the dispatcher replied “Um hmm” when the caller voluntarily disclosed that “I stay at 4261 North Teutonia.”
¶ 72. As the majority opinion skillfully observes in ¶ 34, the caller used the terms “my house,” “my apartment building,” and “our apartment” in addition to the statement “I stay at 4261 North Teutonia.” Had the incoming call been made from an address different from 4261 North Teutonia, the dispatcher would likely have asked the caller for an explanation.
¶ 73. The dispatcher did ask whether the caller had a description of the van, and the caller replied: “Um, hold on, I can get for you.” Thereafter, the caller returned to the phone and gave a more detailed description of the vehicle. The color of the vehicle, the location of the vehicle, and the fact that more than one person was in the vehicle were either described or alluded to by the caller and later confirmed by the investigating officers. The caller reported as a contemporaneous eyewitness and answered all questions asked by the dispatcher.
¶ 74. The recorded call and its subsequent transcript show both the caller‘s basis of information and the caller‘s reliability. The fact that the police agency either knew the identity of the caller or had the means to discover the caller‘s identity enhances the caller‘s credibility. The police were in a position to go back to their source. If the information provided had turned out to be untrue, the police would have been able to
follow up and confront the caller, demand an explanation, and pursue criminal charges.¶ 75. It is a violation of
¶ 76. From the outset, officials understood the possibility that the 911 system could be used to make false reports. The legislature created a monetary penalty for false reports in the initial legislation. § 3, ch. 392, Laws of 1977. The legislature added criminal pen
Any person who intentionally dials the telephone number “911” to report an emergency, knowing that the fact situation which he or she reports does not exist, shall be fined not less than $50 nor more than $300 or imprisoned not more than 90 days or both for the first offense and shall be fined not more than $10,000 or imprisoned not more than 5 years or both for any other offense committed within 4 years after the first offense.
A criminal penalty for false reporting in a 911 call existed for eight years before the 911 call in this case.
¶ 77. The enhanced 911 system increased the likelihood of enforcing these penalties. Leverett F. Baldwin, the former emergency government services director of Milwaukee County, now Milwaukee County Sheriff, said in 1988 that the new 911 system was expected to eliminate most prank calls because the caller‘s telephone number and address would be recorded and would be easy to track down. Ralph D. Olive, Single Number May Call for Help, Milwaukee Journal, Jan. 18, 1988, at 3B.
¶ 78. Florida has a criminal penalty for false 911 calls similar to that of Wisconsin. In United States v. Gibson, 64 F.3d 617, 625 (11th Cir. 1995), the court observed: “The state of Florida provides a significant deterrent against reporting false information to its law enforcement agencies and officers by making such acts punishable by law.
Instant caller identification is widely available to police, and, if anonymous tips are proving unreliable and distracting to police, squad cars can be sent within seconds to the location of the telephone used by the informant. Voice recording of telephone tips might, in appropriate cases, be used by police to locate the caller. It is unlawful to make false reports to the police. . .and the ability of the police to trace the identity of anonymous telephone informants may be a factor which lends reliability to what, years earlier, might have been considered unreliable anonymous tips.
Florida v. J.L., 529 U.S. at 276 (Kennedy, J., concurring).
¶ 79. Professor LaFave argues that this analysis is insufficient:
[I]t seems that the Williams concurrence ends one step short; it stresses that the police were aware of these characteristics of their 911 system, but surely that in and of itself is unimportant, for if the Williams caller deserves to be viewed as not anonymous and thus more reliable than the White informant, then surely the question is the informer‘s perception that his or her identity could easily be determined by the police and that false information might lead to criminal prosecution. And thus the ultimate question. . .is whether in the locale in question there exists such widespread public awareness of the characteristics of the 911 system and of criminal sanctions for false information that it is permissible for the police to presume that each 911 caller possesses such information.
¶ 80. This analysis deserves a response in the factual context of this case.
¶ 81. First, a Milwaukee resident observed what she thought was criminal conduct in progress in an alley behind her apartment building. She picked up the telephone to inform police, dialing the emergency number (911) provided in bold three and five-sixteenths inch type on the inside front cover of her telephone book.3 She reported her conclusions to a dispatcher. She answered all the questions posed by the dispatcher and voluntarily offered her address. Normally, we commend this sort of conscientious conduct on the part of a citizen.
¶ 82. Second, the dispatcher believed the caller. The dispatcher had the opportunity to hear the caller‘s voice. The dispatcher asked questions and received direct, polite answers. The dispatcher confirmed that the caller was calling from the address she said she was. The dispatcher then radioed Squad 73R with the succinct message that “somebody‘s dealing drugs from a blue and burgundy Ford Bronco” in an alley at 4261 North Teutonia. The public expects a dispatcher like Emergency Operator 62 to make an immediate good faith judgment in response to a 911 telephone call, whether the issue at hand is a health emergency, a fire, or a crime in progress. That is what this dispatcher did. The dispatcher‘s performance was reasonable.
¶ 83. Third, the two officers sent to North Teutonia did not know the source of the drug complaint. They were not able to interrogate the caller. They were required to rely upon the dispatcher, quickly
¶ 84. This case, then, raises important issues about the operation of the 911 system as well as issues about search and seizure. Today, there is widespread public understanding of the 911 system. “In our modern society we are trained, almost from birth, that we should telephone 911 to summon help in the event of a medical emergency.” Jeffrey D. Hickman, Note, It‘s Time to Call 911 for Government Immunity, 43 Case W. Res. L. Rev. 1067, 1067 (1993). “It is estimated that 99% of adult Americans living in an area serviced by a 911 system know to dial 911 in the event of an emergency; even children as young as three years old can be trained to dial 911.” Id. at n.2 (citing David Foster, ‘Help Officer, My Soufflé is Falling . . .’ Non-Emergency Clog 911 Lines, L.A. Times, Mar. 15, 1992, at A1).
¶ 85. In Wisconsin the Department of Public Instruction has for years encouraged public schools to train children to use 911 for emergency referrals, beginning in the first grade. Wisconsin Department of Public Instruction, A Guide to Curriculum Planning in Health Education, Table 1 (Curriculum Progress Chart) (1985). The Department recommends that young children go through the experience of dialing the emergency phone number. Moreover, the Department
¶ 86. The emergency number 911 has become ingrained in our popular culture.4 For example, it was featured in a nationally syndicated television program, Rescue 911, which aired weekly on the CBS television network in the early 1990s and once ranked twelfth in the Nielsen ratings.5 A special report in Ladies’ Home Journal in 1995 asserted that Rescue 911 “has probably done more than anything else to raise our expectations of what would happen should we have to call the nationally recognized emergency number.” Paula Lyons, Before You Call 911: Is the Emergency Number the Lifesaver It Should Be?, 112 Ladies’ Home J. 60 (May 1995). “Every state—though not every region in each state—has systems (called enhanced 911) that automatically provide the dispatcher with the caller‘s
¶ 87. Public knowledge of 911 emergency calls was reinforced in the murder trial of O.J. Simpson. Simpson was charged with murdering his former wife Nicole Brown Simpson and Ronald Goldman on June 12, 1994. The case was the subject of unprecedented national exposure and television coverage until Simpson was found not guilty on October 3, 1995. One of the key pieces of evidence in the case was the tape of a 1993 911 telephone call from Nicole Brown Simpson to police reporting domestic abuse. The tape was repeatedly discussed and played during the lengthy proceedings.6
¶ 88. One of O.J. Simpson‘s attorneys, Gerald Uelmen, described the initial appearance of the tape in his book, Lessons From The Trial 21 (1996):
On Wednesday, June 22, two days after Simpson‘s arraignment, the airwaves were filled with explosive excerpts from 911 emergency telephone calls made to police by Nicole Brown Simpson in both the 1989 incident and an October 1993 incident in which Simpson broke down a door. Every television news broadcast in America led off with audio recordings of the calls, with a rolling transcript and photos and video clips of Nicole Brown Simpson. Her sobbing voice was heard saying, “he‘s back,” “I think you know his record,” and “he‘s crazy.” The 911 tapes had the desired effect. Before they were aired, public opinion polls were reporting that more than 60 percent of the American population thought Simpson was probably innocent. After the 911 tapes, the polls showed that 60 percent thought that
he was probably guilty. The only problem, of course, was that the admissibility of the tapes as evidence was yet to be determined, and the only potential jurors who hadn‘t heard the tapes at least a half dozen times were those who lived in caves or trees.
¶ 89. The 911 call in this case occurred less than one month after the conclusion of the O.J. Simpson trial. One would be hard pressed to argue that by November 1995 the overwhelming majority of the American people did not understand that a 911 call is recorded and that it usually provides information about the source of the call. In any event, the caller here voluntarily gave her address. It would also be hard to argue that Wisconsin citizens do not understand that they are not free to initiate false statements to 911 dispatchers without suffering adverse consequences. The 911 system enjoys substantial public support. It is a system that citizens expect to depend upon in their own emergencies. It is not a system that a thinking person would seek to undermine. Milwaukee police were entitled to presume in 1995 that 911 callers knew how the 911 system worked and that they could not make false calls to 911 without risking prosecution.
¶ 90. The question of whether this investigatory stop was supported by reasonable suspicion is not an overly technical exercise. Richardson, 156 Wis. 2d at 140. Rather, it is a question about “common sense,” id. at 139 (citation omitted), “along with reasonable inferences and deductions which a reasonable officer could glean” from “the cumulative detail” of this situation. Id. at 142. Leaning firmly on a 911 tip, with all its attendant ability to identify callers, was entirely reasonable and within common sense in the “cumulative detail” of this case.
¶ 91. When they arrived at the scene and spotted the vehicle, Officers Johnny Norred and Phillip Henschel drove past the apartment building and then turned west on Roosevelt Drive. Eventually, they entered the alley at the point where they thought their squad car would be concealed. They drove through the alley, coming up to the front of a Chevy Blazer. There was no front license plate on the vehicle.
¶ 92. Like 29 other states and the District of Columbia, Wisconsin requires two license plates on a motor vehicle.7 For more than 20 years, there have been efforts in the Wisconsin legislature to move from two license plates to one license plate. According to the Legislative Fiscal Bureau, “the major objection to the single license plate proposal has been expressed by law enforcement officials. They contend that the front license plate has value because it allows identification of oncoming and parked vehicles.”8
¶ 93. In this case, there were no plates on the automobile. Under the circumstances, the primary concern of the officers would have been identifying the vehicle, not ticketing the driver for a motor vehicle violation. From the point of view of the officers, the suspected drug vehicle had been stripped of the standard means of identifying it. The absence of license plates added to the evidence which permitted the officers reasonably to conclude in light of their training
¶ 94. Police routinely view missing plates as unusual enough to warrant attention. See United States v. Sowers, 136 F.3d 24 (1st Cir. 1998) (missing front plate and troubled exhaust system led officer to stop car found to contain cocaine); United States v. Murray, 89 F.3d 459 (7th Cir. 1996) (missing rear license plate led police to stop driver found to have crack cocaine and handgun within car); United States v. Mitchell, 82 F.3d 146 (7th Cir. 1996) (missing front plate led officer to investigate driver found to have a loaded semi-automatic pistol inside vehicle within easy reach); United States v. Faulkner, 488 F.2d 328 (5th Cir. 1974) (sufficient nexus found between stop for missing front plate and police discovery of counterfeit bills in vehicle); United States v. Scott, 878 F. Supp. 968 (E.D. Texas 1995) (stop based on lack of visible license plate reasonable); United States v. $64,765,000 in United States Currency, 786 F. Supp. 906 (D. Ore. 1991) (missing plate on parked vehicle constituted reasonable suspicion for Terry stop); People v. Ryan, 672 N.E.2d 47 (Ill. App. Ct. 1996) (missing front plate prompted stop in which driver was found to be transporting marijuana); People v. Williams, 640 N.E.2d 981 (Ill. App. Ct. 1994) (missing front plate led to legal stop); People v. Ramirez, 618 N.E.2d 638 (Ill. App. Ct. 1993) (search following stop based on missing license plates led to arrest and weapons search).
¶ 95. The leading case in Wisconsin is State v. Griffin, 183 Wis. 2d 327, 329, 515 N.W.2d 535 (Ct. App. 1994), review denied, 520 N.W.2d 88 (Wis. 1994), cert. denied, 513 U.S. 950 (1994), in which the court of appeals held that the absence of license plates, and reasonable inferences that can be drawn from that fact,
¶ 96. In this case, the police investigated a tip that people were selling drugs out of a vehicle parked in an alley behind 4261 North Teutonia Avenue. They cautiously approached the vehicle. The absence of license plates on that vehicle, obstructing all possibility of running a license check on the vehicle without first dealing with its occupants, added significantly to the reasonable suspicion for an investigatory stop.
¶ 97. Reasonable suspicion is a smaller quantum of evidence than probable cause. Reasonable suspicion is all that is required for an investigatory stop because the temporary seizure of a person in an investigatory stop is less than the complete and lasting seizure of a person in an arrest.
¶ 99. WILLIAM A. BABLITCH, J. (dissenting). “There is no there there.” Gertrude Stein, commenting on the city of Oakland.1
¶ 100. Two years ago, a majority of this court upheld the same stop and frisk at issue here. State v. Williams, 225 Wis. 2d 159, 591 N.W.2d 823 (1999). (Bablitch, J. dissenting) (hereinafter Williams I). Williams appealed to the United States Supreme Court, and the Court sent this case back for reconsideration in light of its decision in Florida v. J.L., 529 U.S. 266 (2000).
¶ 101. In a yeoman-like effort to once again uphold this stop and frisk, the majority finds reasonable suspicion from three factors: (1) an anonymous tip
I
¶ 102. Turning first to the anonymous tip, I conclude that it has none of the indicia of reliability that may provide a basis for an investigatory stop that is compatible with the
¶ 103. Here, the majority asserts that the anonymous caller‘s basis of knowledge adds reliability to the tip. What is the caller‘s basis of knowledge in this case?
¶ 104. The majority repeatedly asserts that this tipster is an eyewitness to criminal activity. The major
¶ 105. The majority‘s assertions are incorrect and are not borne out by the record of the call. The anonymous caller described the car, but there is absolutely nothing else in the caller‘s statement to lead to the conclusion that she actually witnessed criminal activity. Instead, the caller‘s statement provides only a conclusory assertion of illegal conduct. For all we can tell from the record, her allegation of criminal wrongdoing is based upon nothing more than ” ‘idle rumor or irresponsible conjecture.’ ” United States v. Phillips, 727 F.2d 392, 397 (5th Cir. 1984) (quoting United States v. Bell, 457 F.2d 1231, 1238 (5th Cir. 1972)).
¶ 106. Professor LaFave‘s commentary is noteworthy:
It makes no sense to require some “indicia of reliability” that the informer is personally reliable but nothing at all concerning the source of his information, considering that one possible source would be another person who was totally unreliable. It may be argued, of course, that most informers report personal observations, and thus such should be assumed to be the case when the lesser standard for a stop rather than the arrest standard is being considered. But there is simply no established need to go to this extreme; as Justice White once observed, “if it may be easily inferred * * * that the informant has himself observed the facts or has them from an actor in the event, no possible harm could come from requiring a statement to that effect.”
¶ 107. The anonymous caller in this case is no more reliable than the anonymous caller in J.L., “who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L.” J.L., 529 U.S. at 271.
¶ 108. The majority also concludes that the tipster was reliable because, unlike the unknown caller at an unknown location in J.L., this caller revealed self-identifying information by giving her address. Majority op. at ¶ 34. In this instance, that information revealed little because the address was for an apartment building. The record does not tell us if 50 people or 500 lived at this address. As a result, no greater veracity or reliability can be attributed to the caller in this case than to any other nameless, unknown informant.
¶ 109. There is little support for the majority‘s contention that the caller‘s information is reliable because she put her anonymity at risk. Majority op. at ¶ 35. All of the evidence points to the conclusion that the caller thought she was placing an anonymous call. She started the call by saying she did not want to get involved. She did not provide her name, her telephone number, or her apartment number at 4261 North Teutonia. Despite this absence of meaningful identifying information, the majority opinion attempts to bolster the tip‘s reliability by characterizing the caller as a citizen informant, and accordingly more reliable than an anonymous tipster. Majority op. at ¶ 36. However, there is no basis in the record from which to conclude that the caller was what could be viewed as the classic citizen informant, an identified informant
¶ 110. This classic citizen informant case was presented in State v. Doyle, 96 Wis. 2d 272, 291 N.W.2d 545 (1980), overruled on other grounds by State v. Swanson, 164 Wis. 2d 437, 475 N.W.2d 148 (1991). In Doyle, two named informants—Mark and Leigh Livermore—contacted police and reported witnessing drug dealing. Id. at 286. This court characterized the Livermores as “two knowledgeable citizen eyewitnesses,” and distinguished citizen informers from ” ‘police contacts or informers who usually themselves are criminals.’ ” Id. at 286–87 (quoting State v. Paszek, 50 Wis. 2d 619, 630, 184 N.W.2d 836 (1971)).
¶ 111. The majority‘s reliance upon the citizen informant analysis in Doyle, and in State v. Boggess, 110 Wis. 2d 309, 316, 328 N.W.2d 878 (Ct. App. 1982), must be approached cautiously. Majority op. at ¶ 36. Categorization of a tip as one from a “citizen” informant, as opposed to an “anonymous” informant, may be relevant to assessing an informant‘s reliability under the totality of the circumstances analysis. However, both Doyle and Boggess were decided before the Supreme Court abrogated Aguilar v. Texas, 378 U.S. 108 (1964).2 Accordingly, it is questionable whether a tip labeled as one from a citizen informant should receive a “relaxed test of reliability,” majority op. at ¶ 36, when the issue before the court is an assessment of reasonable suspicion under the totality of the circumstances.
¶ 112. In a further attempt to distinguish the present case from J.L., the majority points out that in J.L. there was no audio recording of the anonymous
¶ 113. Again attempting to distinguish J.L., the majority relies upon the fact that the anonymous call was placed over the 9-1-1 system. It is argued that Milwaukee may have developed a “sophisticated emergency phone system” that contains an “automatic location identification and automatic number identification.” According to the majority, the caller exposed herself to risk of prosecution for making a false report because the 9-1-1 system may assist the police in tracing the anonymous caller. This is total speculation. The majority concedes, as it must, that there is nothing in the record to support the conclusion that Milwaukee actually had in place such a system at the time the call in this case occurred. Majority op. at ¶ 38. Instead, it relies upon the fragile inference that because the operator said “um hmm” after the caller volunteered her address that the caller‘s address was in fact automatically identified in the 9-1-1 system. Majority op. at n. 14. This analysis illustrates the lengths the majority must stretch to find anything in the record that would support a contention that Milwaukee had an operating “sophisticated emergency phone system” at the time the events in this case took place; it is simply unpersuasive.
¶ 114. In Williams I the argument was also made that a tip over the 9-1-1 system has a higher degree of reliability. Professor LaFave, commenting upon this court‘s decision in Williams I, pointed out that there is
[I]t seems that the Williams concurrence ends one step short; it stresses that the police were aware of these characteristics of their 911 system, but surely that in and of itself is unimportant, for if the Williams caller deserves to be viewed as not anonymous and thus more reliable than the White informant, then surely the question is the informer‘s perception that his or her identity could easily be determined by the police and that false information might lead to criminal prosecution. And thus the ultimate question, at best alluded to only indirectly in Williams, is whether in the locale in question there exists such widespread public awareness of the characteristics of the 911 system and of criminal sanctions for false information that it is permissible for the police to presume that each 911 caller possesses such information.
4 Wayne R. LaFave, Search and Seizure § 9.4(h) (Supp. 2001) (footnotes omitted).
¶ 115. In short, the majority‘s assertion that the caller is reliable because she put her identity at risk is incorrect because there is no reason to believe that she knowingly did so. And on that point, it is more reasonable to assume that the caller was unaware that her identity would possibly be at risk, for she began the conversation by stating that she did not “want to get involved.” It is essential to keep in mind that our analysis here is whether or not the officers had reasonable suspicion to conduct a Terry stop, and not simply whether or not the police should investigate anonymous calls reporting ongoing criminal activity. Because the caller did not knowingly or intentionally risk her anonymity, her assertion of criminal activity is
¶ 116. Finally, the majority contends that the tip‘s assertion of criminal activity is reliable because the police corroborated the innocent details provided in the tip. Majority op. at ¶¶ 40–41. However, corroboration of innocent details relayed by an anonymous tipster only gives rise to an inference that the caller is telling the truth about the alleged criminal activity when the detail from the tip establishes that the informant had an adequate basis of knowledge. State v. Richardson, 156 Wis. 2d 128, 142, 456 N.W.2d 830 (1990). For example, in White, the quintessential anonymous tip case, a tipster reported that Vanessa White would leave a specific apartment, at a particular time, in a particular vehicle, and would proceed to a specific location. White, 496 U.S. at 327. The caller also alleged that she would be carrying cocaine. Id. A majority of the Supreme Court concluded that police corroboration of the tip information established that the tip was reliable and that the anonymous caller‘s ability to predict White‘s behavior established the caller‘s basis of knowledge. Id. at 332. The Court concluded that “[b]ecause 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 have access to reliable information about that individuals illegal activities.” Id. In J.L., the Court restated this principle: “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., 529 U.S. at 272.
¶ 118. In contrast, the case at hand presents precisely the type of corroboration of the innocent aspects of a tip that the Supreme Court has indicated are not sufficient. As J.L. has instructed, information about readily observable details alone does not make a tip reliable in its assertion of illegality. J.L., 529 U.S. at 272. The only detail provided by the caller in this case is a description of a parked vehicle that she observed through her apartment window. Corroboration of these few facts does not bring reliability to the caller‘s allegation of criminal activity. Thus, on the one hand the majority contends that the caller is reliable because it construes her report to be one in which the caller is observing criminal activity first hand. On the other hand, the majority asserts that the caller is reliable because police corroboration of innocent aspects of the tip lends credibility to the tip‘s assertion of criminal conduct, even though the tip reports only what could ostensibly be observed through a window and, therefore, neither establishes that the caller had any intimate knowledge of the suspect‘s affairs nor that
¶ 119. In fact, however, the tip in this case does not satisfy the test set forth in J.L., for the caller neither explained how she knew about the alleged criminal activity nor did her tip supply any basis for believing that she had inside information. J.L., 529 U.S. at 271. As a result, this tip adds no weight to the reasonable suspicion calculation. Despite the sound and fury, these facts signify nothing.
II
¶ 120. “[I]f 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.” White, 496 U.S. at 330. The tip here, in my opinion, is unreliable for the purposes of providing a basis for reasonable suspicion to stop Williams. In its analysis of the totality of the circumstances the majority relies upon two additional facts which, it argues, combine with the tip to create reasonable suspicion for an investigatory stop. The first of these is that the officers had reason to suspect that criminal activity was afoot because Williams’ hand was extended behind the passenger seat. The second was the officers’ observation that the car had no license plates. Neither of these facts, alone or together, sustains its conclusion.
¶ 121. In finding the placement of Williams’ arm behind the passenger seat a reason to be suspicious, the majority notes, as it must, that Williams did not make a furtive gesture. Accordingly, it is unreasonable to conclude that Williams may have been reaching for a
Q: [I]t would not be accurate to say that you observed him move his hand from—say from his lap to his right or reaching over behind the seat, it was already there, true?
A: As I recall, it was already back there; I mean, from the point that I first observed him.
. . .
When I first noticed him, he had his hand there already, and we were right up in front of him at this point.
¶ 122. The position of Williams’ arm is only an innocent detail that adds no weight to the reasonable suspicion calculation. It is likely that in a significant percentage of cases, when an individual is sitting in a parked truck, perhaps elevated slightly higher that one would be in a car, his or her hand may not be in view. Furthermore, contrary to the inference in the majority opinion, Williams was not “reaching” because he saw the officers. Officer Norred testified that Williams’ hand was already behind the seat when the officers arrived at the scene.
¶ 123. Then there is the license plate issue. The majority notes that the lack of license plates on the vehicle was not a fact specifically developed or relied upon by the circuit court. Majority op. at ¶ 45. The lack
¶ 124. I disagree with the majority‘s conclusion that the officers had a basis for conducting an investigatory stop. However, even if the stop were proper based solely upon the vehicle‘s alleged lack of license plates, the subsequent frisk was not.
[T]he search of a passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on “specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant” the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.
Michigan v. Long, 463 U.S. 1032, 1049 (1983) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). The majority justifies the frisk primarily on the basis of the position of Williams’ arm and the close quarters in which the stop occurred. As has already been discussed, these events took place during broad daylight. Williams did not make a furtive move or engage in any other evasive or suspicious actions. There is no allegation that this was a high crime neighborhood. The anonymous caller
¶ 125. In sum, the facts of this case relied upon by the majority do not satisfy even the minimal constitutional standards required for a lawful stop or frisk. Accordingly, I respectfully dissent.
¶ 126. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice ANN WALSH BRADLEY join this dissent.
Notes
Article I, § 11 of the Wisconsin Constitution provides:[t]he 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.
We ordinarily interpret Article I, Section 11 of the Wisconsin Constitution in accordance with the United States Supreme Court‘s interpretation of the Fourth Amendment. State v. Phillips, 218 Wis. 2d 180, 195, 577 N.W.2d 794 (1998). Marcia Clark & Teresa Carpenter, Without a Doubt 79 (1997); Christopher A. Darden & Jess Walter, In Contempt 365 (1996); Jeffrey Toobin, The Run of His Life 262 (1996).[t]he 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 warrant 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.
After having identified himself or herself as a law enforcement officer, a law enforcement officer may stop a person in a public place for a reasonable period of time when the officer reasonably suspects that such person is committing, is about to commit or has committed a crime, and may demand the name and address of the person and an explanation of the person‘s conduct. Such detention and temporary questioning shall be conducted in the vicinity where the person was stopped.Cheryl McIlquham, State of Wisconsin Legislative Fiscal Bureau, Issue Paper #864, 1997-99 Budget, Single License Plate 2 (May 22, 1997).
If a public agency or group of public agencies combined to establish an emergency phone system under par. (d) has a population of 250,000 or more, such agency or group of agencies shall establish a sophisticated system.
While we applaud the efforts of the concurrence to bolster the majority‘s opinion, we again note that the record does not clearly establish that there was an operational 9-1-1 system here. Hence, while we wish we could adopt the concurrence‘s position that this is not an anonymous informant case, there is nothing in the record, and nothing of which we can take judicial notice, which would establish that a sophisticated 9-1-1 system was operating at the time the call came in to the Milwaukee Emergency Operator. See
Any person who intentionally dials the telephone number “911” to report an emergency, knowing that the fact situation which he or she reports does not exist, shall be fined not less than $50 nor more than $300 or imprisoned not more than 90 days or both for the first offense and shall be fined not more than $10,000 or imprisoned not more than 5 years or both for any other offense committed within 4 years after the first offense.
Nonetheless, we do not suggest, as the dissent contends (at ¶ 123), that the officers here were investigating a traffic violation.
“we do not attempt to assign a definitive number of details or list the types of detail that would give rise to reasonable suspicion under these circumstances. The analysis of reasonableness of an officer‘s reliance upon the corroborated, innocent details of an anonymous tip is necessarily governed by the unique facts and circumstances of the given case.”
Richardson, 156 Wis. 2d at 143 n.5.We also reject the dissent‘s suggestion at ¶¶ 115-117 that the only reliable tips are from persons who are “intimate with the suspect‘s affairs.” (Dissent at ¶ 117.) If that were the case, only those who associate with alleged criminals, rather than citizen informants, could provide reliable tips.
Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 1379-80 (2000). Accordingly, we no longer rely upon United States v. Clipper, 297 U.S. App. D.C. 372, 973 F.2d 944 (D.C. Cir. 1992), cert. denied, 506 U.S. 1070 (1993), and other similar cases which suggested a per se rule, and note, as the Supreme Court did, that these cases directly conflict with the Florida Supreme Court‘s decision that the United States Supreme Court affirmed in Florida v. J.L., 120 S. Ct. at 1378.If police officers may properly conduct Terry frisks on the basis of bare-boned tips about guns, it would be reasonable to maintain . . . that the police should similarly have discretion to frisk based on bare-boned tips about narcotics. As we clarified when we made indicia of reliability critical in Adams and White, the Fourth Amendment is not so easily satisfied. Cf. Richards v. Wisconsin, 520 U.S. 385, 393-94 . . . (1997) (rejecting a per se exception to the “knock and announce” rule for narcotics cases partly because “the reasons for creating an exception in one category [of Fourth Amendment cases] can, relatively easily, be applied to others,” thus allowing the exception to swallow the rule).