When Easily Identifiable Informants Are Treated As Anonymous Tipsters

People v. Holmes, 2019 IL App (1st) 160987 (March). Episode 601 (Duration 9:33)

An essentially anonymous tip was treated as wholly unreliable resulting in an outright reversal of this gun conviction.

Gist

Police approach a man with a gun and pat him down.

Facts

A Chicago police officer received information from a sergeant, who received information from an unidentified Chicago Park District security guard, whose source of information was unknown, that a man in Brainerd Park had a gun in his pocket.

The man was described as black, about five-and-a-half feet tall, wearing a purple shirt and black jeans.

Two or three minutes after talking to the sergeant, the officer and his partner saw defendant, who matched the description. There was nothing inappropriate about defendant’ conduct. Nonetheless, the officers approached defendant, and one of the officers immediately touched the pocket of his jeans.

The officer felt what he recognized as the trigger and trigger guard of a gun. The officers ordered defendant to the ground, put him in handcuffs, and placed him under arrest.

Issue

Defendant now challenges the initial seizure, before his arrest, as an unconstitutional Terry stop. He argues that the officers did not have reasonable suspicion to stop him.

In particular, both the security guard’s identity and the source of information remain unknown, “effectively” an anonymous tip, which, without more, cannot provide a reasonable suspicion of criminal activity.

Defendant asserts that the officer’s frisk of his person constituted a Terry stop sufficient to trigger the protections of the fourth amendment and that the tip lacked the requisite legal corroboration to establish reasonable suspicion for a Terry stop and frisk.

Guard Not Anonymous

The State responds that the tip was reliable and not anonymous and contained sufficient information to support the Terry stop. The State argues the tip that led to defendant’s detention came from an identifiable security guard.

The State assures us that we can rely on the security guard’s tip because it was given in person and security guards are presumptively more trustworthy reporters of crime than ordinary eyewitnesses.

Terry Stops

Broadly speaking, Terry, 392 U.S. 1, governs.

Terry gives officers a “narrowly drawn authority” to detain people and search for weapons where they reasonably believe that “criminal activity may be afoot” and that the person seized “may be armed and presently dangerous.” Id. at 27, 30.

A seizure, short of an arrest, is justified only where an officer “reasonably suspects that the person apprehended is committing or has committed a criminal offense.” Arizona v. Johnson, 555 U.S. 323, 326 (2009).

Once seized, he or she may only be frisked if an officer “reasonably suspect[s] that the person stopped is armed and dangerous.” Id.

Informant Tips

In short, the validity of the initial stop constitutes a necessary precondition to the validity of any later search. Informant tips “may vary greatly in their value and reliability.” Adams v. Williams, 407 U.S. 143, 147 (1972).

Cases involving known informants are “stronger cases” than those involving anonymous tipsters. In all cases involving tips, anonymous or otherwise, paramount concerns involve the informant’s “veracity, reliability, and basis of knowledge.” Alabama v. White, 496 U.S. 325, 328 (1990).

Anonymous Tip

An anonymous tip, without more, generally provides “virtually nothing” by which one could conclude that the tipster is honest, that his or her information is reliable, or that he or she has a basis by which to predict a suspect’s criminal activity. 

See People v. Lopez

Episode 549 – People v. Lopez, 2018 IL App (1st) 153331 (October) (Anonymous Tip On A DUI Has Got To Be Specific)

In every legally relevant respect, the tip on which the officers relied is strikingly similar to the tip in Lopez. Just as the officer in Lopez, the officer received his tip from another officer. While the sergeant told the officer that he received information about a man with a gun from a park security guard, just as in Lopez, no testimony identified the ultimate source of the information that the first officer received.

Finally, just as the officer in Lopez, the officer confirmed that defendant matched the general description but did not notice defendant doing anything illegal when he saw him.

Analysis

The State’s argument depends on multiple assumptions that the record does not support.

The State assumes that the security guard provided the tip in person; the record reveals that the officer did not know how the security guard reported the sergeant. The State argues that security guards by nature are more reliable eyewitnesses, but we do not know whether the security guard was actually an eyewitness or learned his or her information elsewhere or, for that matter, whether he or she was an experienced or inexperienced security guard.

There is nothing in the record to indicate whether the guard personally observed the gun possession or if the guard received the information from somebody else. Just as the officer in Lopez, the officer was told a general description of defendant’s appearance and that he was somewhere in the park. Nothing in the record explains the source of the security guard’s information. As a result, we cannot say that the security guard was an “eyewitness.”

 For that reason, the institutional pressures that bear on security guards to avoid falsely implicating someone do not apply. For example, a guard who hears of some criminal activity from another source does not bear personal responsibility for the error if the source turns out to be wrong. He or she can simply pass on the blame for the incorrect information to the unknown source.

Given all of these unknowns, we agree with defendant that the tip was “effectively anonymous” and did not support a finding of reasonable suspicion. 

We see no reason for the State not to have called the park security guard, if he or she is as identifiable as the State purports, to give a firsthand account.

But They Description Of The Man Was Spot-On

As a final argument, the State asks us to find the tip reliable because the sergeant’s description—a black man, 5 feet, 6 inches to 5 feet, 8 inches tall, wearing a purple shirt and black jeans—was more specific than the description in J.L. See 529 U.S. at 268 (“a young black male standing at a particular bus stop and wearing a plaid shirt”).

So what.

We fail to see any indication in J.L. that the outcome would have differed had the tipster been able to describe J.L.’s height. J.L. expressly rejected location and physical appearance as sufficient indicators of the most important fact necessary for a Terry stop: suspicion of criminal activity.

The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.

So Much We Don’t Know

We do not know how the security guard came across the information in the first place, whether he or she personally observed the gun possession or whether it was reported by another source.

Similarly, while we know that it was only two to three minutes from the time the sergeant told the officer and Montes about the man with a gun to the time that defendant was stopped, we have no idea how long it took from the time of the original observation of the man with the gun to the time the sergeant was told.

We may know where the sergeant got his information, but the identity of the ultimate source of the tip—which was undisputedly the State’s burden to provide—remains a mystery.

Holding

We find the security guard’s tip insufficiently reliable. We reverse the trial court’s denial of defendant’s motion to suppress and reverse his conviction outright.

We cannot confirm the reliability of the tip the officers received because there is too much that we do not know about it. We do not reverse defendant’s conviction as a criticism of the officers. We reverse because the State failed to meet its burden to identify the source of the tip—despite its repeated claims that the security guard, who could confirm the source, would be easy to find—rendering the tip’s reliability irrecoverably suspect.

We find that defendant’s seizure was unlawful, having been based on a factually insufficient and unreliable tip. We reverse the trial court’s denial of defendant’s motion to suppress evidence. Because the State will be unable to proceed without evidence of the gun on remand, we reverse defendant’s conviction outright.

See Also

Episode 101 – Navarette v. California, 134 S.Ct 1683 (2014) (April) (police received reliable tip that a driver ran the caller off the rode)

 Episode 468 – People v. Meo, 2018 IL App (2d) 170135 (March) (Gas station attendant calls the police on defendant to report he almost hit the building, so DUI stop justified.)