ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JEFFREY J. JINKS KAREN FREEMAN-WILSON
McMains Foster Jinks & Morse Attorney General of Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
WILLIE WASHINGTON, ))
OPINION FOR PUBLICATION
Id. at 332.
The assurance that the high court relied upon was that when significant aspects of the callers predictions were verified, there was reason to believe not only was the caller honest, but also that he was well-informed, at least well enough to justify the stop. Id. The anonymous tip, in combination with officer-observed activity that verified aspects of the callers information, validated the information gained and substantiated the reasonable suspicion requirement for a legal Terry stop.
Similarly, the Seventh Circuit, in United States v. Price, 184 F.3d 637, 642 (7th Cir. 1999) found that an anonymous tip that an amount of cocaine would be in a particular car, a description of the defendant and those traveling with him, where the trip originated, and where it would conclude, provided reasonable suspicion for a Terry stop.
The most recent United States Supreme Court opinion addressing anonymous tips is Florida v. J.L., ___ U.S. ___, 120 S. Ct. 1375 (2000). In J.L., an anonymous caller reported to Miami-Dade Police that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. The police responded and found three black males at the bus stop, one wearing a plaid shirt. Apart from the tip, the officers had no reason to suspect any of the three of illegal conduct, as they did not see a firearm and J.L. made no threatening or otherwise unusual movements. The officers performed a Terry frisk on all three males, seizing a gun from J.L. The Court stated that:
[t]he reasonableness of official suspicion must be measured by what the officers knew before they conducted their search. All the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L. If White was a close case on the reliability of anonymous tips, this one surely falls on the other side of the line. . . . 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. Cf. 4 W. LaFave, Search and Seizure § 9.4(h), p. 213 (3d ed. 1996) (distinguishing reliability as to identification, which is often important in other criminal law contexts, from reliability as to the likelihood of criminal activity, which is central in anonymous-tip cases).
Id. at 1379.
2. Indiana Authority
A number of recent Indiana cases discuss anonymous tips and what creates reasonable suspicion. Most recently, in Bogetti v. State, 723 N.E.2d 876 (Ind. Ct. App. 2000), we addressed a stop of a motorist after a concerned citizen approached officers eating dinner at a McDonalds restaurant and reported a possibly intoxicated truck driver leaving the same location. When the officers stopped Bogetti, he was unable to produce the trucks registration and ultimately failed the field sobriety tests. We found that anonymous or unidentified informants can supply information that gives police reasonable suspicion. A tip will be deemed reliable when an individual provides specific information to police officers such as a vehicle description. Id. at 879.
Bogetti relied on two cases: Adams v. State, 542 N.E.2d 1362 (Ind. Ct. App. 1989) and Lampkins v. State, 682 N.E.2d 1268 (Ind. 1997). In Lampkins, an anonymous phone call giving a specific location, a complaint of open-air drug dealing, a license plate number and description of the vehicle was verified through another confidential informant amidst other random complaints citing open-air drug dealing. This tip was supplemented by additional information from the defendants girlfriend.
Adams involved an anonymous phone call that alleged a stolen vehicle was being driven at a specific location and identifying the car and the driver by name. Adams fled the attempted investigatory stop. The vehicle Adams was driving was hot-wired, and the trunk lock had been removed. The anonymous phone call was substantiated by officer-observed activity that confirmed the substance of the phone call and provided reasonable suspicion to freeze the situation and investigate.
The State offers two additional cases: State v. Springmier, 559 N.E.2d 319 (Ind. Ct. App. 1990) and State v. Smith, 638 N.E.2d 1353 (Ind. Ct. App. 1994). Springmier was charged with operating while intoxicated based upon an investigation initiated after an anonymous call from a car phone. The caller complained of possible drunk driving and described the vehicle and the location. A Marion County Sheriffs Deputy proceeded to the scene and immediately located the described vehicle, driven by Springmier. The trial court granted Springmiers motion to suppress. We reversed, stating The information Deputy Maher received from the dispatcher provided Deputy Maher with the reasonable suspicion based upon specific and articulable facts that the Defendant may have been committing a crime. 559 N.E.2d at 321. The opinion contains no reference to what the specific and articulable facts were, nor was a basis for the reasonable suspicion identified.
In Smith, through 911 calls and truck drivers using citizens band radios, a series of concerned citizens complained of a driver operating in the median and erratically changing lanes. Once authorities were dispatched to investigate, a professional truck driver assisted in further identifying the driver and directing authorities to the offending vehicle in traffic. We stated that [t]he reasonable suspicion justifying a limited investigative stop of an automobile does not give the police officer all the rights attendant to an arrest, but only gives the police officer the right to temporarily freeze the situation in order to make an investigative inquiry. 638 N.E.2d at 1355; see also Platt v. State, 589 N.E.2d 222, 227 (Ind. 1992).
Of additional interest is Stalling v. State, 713 N.E.2d 922 (Ind. Ct. App. 1999). In Stalling, we re-affirmed that a totality of the circumstances approach should be utilized in determining whether the police had reasonable suspicion to believe criminal activity was afoot. We explained that courts, in judging the reasonableness of investigatory stops, must strike a balance between the public interest and the individuals right to personal security free from arbitrary interference by law enforcement. Id. at 924. There we found that a defendant who turned away from a fully uniformed approaching officer and then stuck his hand in his waistband did not present specific nor articulable suspicion that justified a Terry stop. Id. at 922.
3. Our Analysis
The federal constitution applies to the states through the provisions of the fourteenth amendment, which prohibit a state from falling below certain minimal standards. Taylor v. State, 639 N.E.2d 1052 (Ind. Ct. App. 1994). However, Indiana courts have the responsibility of independent constitutional analysis, Cooper v. State, 540 N.E.2d 1216, 1217 (Ind. 1989), and the Indiana Constitution may offer protections more extensive than those provided by its federal counterpart. Taylor, 639 N.E.2d at 1053. We have interpreted the protections provided by Article I, § 11 of the Indiana Constitution regarding investigatory stops to be consistent with federal interpretation of protections provided by the Fourth Amendment to the United States Constitution. Id. at 1054, citing Terry v. Ohio and Alabama v. White.
The federal precedent requires ability to predict future behavior, White, 496 U.S. at 332, validating the informants knowledge as reliable in its assertion of illegality, J.L., 120 S. Ct. at 1379, in contrast to information that might be relayed to police by a prankster or a police officer acting in bad faith. See Bogetti, 723 N.E.2d at 879 (noting Bogetti had made no claim that he was acquainted with the individual who reported the incident and there is no evidence to suggest that the citizen concocted a false report, told some tall tale of Bogettis suspected intoxication or otherwise acted in a manner which might have placed the citizens motive or credibility at issue.
We accordingly hold that an anonymous telephone tip, absent any independent indicia of reliability or any officer-observed confirmation of the callers prediction of the defendants future behavior, is not enough to permit police to detain a citizen and subject him or her to a Terry stop and the attendant interruption of liberty required to accomplish it. See footnote
Based on the totality of the circumstances of Washingtons stop, including the absence of any officer-observed activity which would provide an independent basis for a traffic stop or otherwise generate reasonable suspicion and the absence of detailed predictions of Washingtons future behavior or other indicia of reliability that would reflect the knowledge of the anonymous caller, we must reverse.
ROBB, J., and MATHIAS, J., concur.