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Particularized, Individualized Suspicion Required by the Fourth Amendment

On April 2, 2019, the Connecticut Supreme Court released the opinion of State v. Davis, 331 Conn. 239 (2019) regarding the issues of a Terry Stop, reasonable suspicion and an anonymous tip.

The defendant claimed that his detention by police officers violated the Fourth Amendment because the anonymous tip that the police received did not give rise to reasonable suspicion that the defendant had been or was about to be engaged in criminal activity.

Facts

One evening in the City of New Haven, an anonymous tipster called 911 reporting that a “group of men” were gathered near a black Infinity parked outside the caller’s window. The tipster continued that “a young man” within the group had a handgun. The caller stated that he could not identify the individual because within the group they were all moving around and were all wearing dark clothing. With this information, New Haven police responded.  At the time of the arrival of the New Haven police officers, a group of six men were in the area and began to walk away. The police ordered them to stop. Some of the officers had their handguns drawn. The defendant in this matter, continued to walk away. Officers again ordered him to stop, at which time they observed the defendant throw something into a trash can, which a subsequent search revealed to be a handgun. The defendant was arrested for possession of a pistol and carrying without a permit.  The defendant filed a motion to dismiss on Fourth Amendment grounds which was denied in the trial court an appealed to the Connecticut Supreme Court.

The Connecticut Supreme Court’s decision was based on the issue of whether the defendant’s motion to suppress the handgun should have been granted. In its decision, the Connecticut Supreme Court touched on a few major issues including the reliability of an anonymous tip, and whether the anonymous tip was “sufficiently specific to give rise to the particularized, individualized suspicion required by the fourth amendment.”

Reliability of an Anonymous Tip

According to the United States Supreme Court in Navarette v. California, 572 U.S. 393 (2014), the following factors must be considered in determining whether an anonymous tip “has sufficient indicia of reliability.”

  1. Whether the tipster had first-hand knowledge of the alleged criminal behavior;
  2. Whether the report was contemporaneous with the alleged criminal behavior;
  3. Whether the report was made “under the stress of excitement caused by a startling event”; and
  4. Whether the tipster used the 911 emergency system, which allows calls to be recorded, thereby providing “victims with an opportunity to identify the false tipster’s voice and subject him to prosecution…”  Navarette, 572 U.S. 399-400.

In State v. Davis, the Connecticut Supreme Court, following the guidance of the United States Supreme Court in Navarette, found the anonymous tipster to be reliable. The court found that the anonymous tipster called 911, provided a contemporaneous, first-hand account which was later corroborated by law enforcement and it could have reasonably been startling to see a handgun – according to the court.

Reasonable Articulable Suspicion

Once the court determines that the anonymous tipster is reliable, the court must continue its analysis to determine that based upon that reliability, does the tip give rise to the reasonable articulable suspicion to give rise to a Terry Stop.
In State v. Davis, the Connecticut Supreme Court found that the anonymous tipster “did not provide a sufficiently detailed, specific description of the ‘young man’ who had the handgun to allow the police to identify that particular individual.”  State v. Davis. This decision has been recognized by numerous courts throughout the country where the lack of detailed, specific descriptive information sufficient to enable the police to identify the particular individual involved in the criminal activity “fatally undermines the sufficiency of an anonymous tip.”  United States v. Wheat, 278 F.3d 722, 731 (8th Cir. 2001). (Emphasis added).

Refresher of Seizure in the State of Connecticut – State v. Oquendo, 223 Conn. 65 (1992)

Under Connecticut law, a person is “seized” when by means of physical force or show of authority the individual’s freedom of movement is restrained. In determining whether seizure has occurred, the court will consider whether in view of all circumstances surrounding incident, reasonable person would have believed that he was not free to leave.

Factors that we know will be considered to a “seizure” are use of lights and/or siren, number of officers, position of officers and/or cruisers, “asking” as opposed to “ordering” and the drawing and pointing of weapons.

This is an important fact, because if there is no reasonable, articulable suspicion at the time of the “seizure,” all evidence obtained at that point, as well as any evidence derived from the illegally obtained evidence, will be excluded at trial due to fact that it was obtained in violation of the Fourth Amendment. SeeExclusionary Rule – Mapp v. Ohio, 367 U.S. 643 (1961) and Fruit of the Poisonous Tree – Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920).

Court’s Conclusion

At the end of their analysis the Connecticut Supreme Court stated, that “the tip was not sufficiently detailed or specific to enable the police to know which of the six individuals subjected to the Terry stop had the handgun…we conclude that the tip was not sufficiently specific to give rise to the particularized, individualized suspicion required by the fourth amendment.”  Therefore, what the court determined was that although the anonymous tip met Navarette test for reliability, it failed to provide sufficient detail and specificity as to the defendant and did not provide the reasonable articulable suspicion needed for the responding officers to seize the defendant under the Fourth Amendment grounds in the State of Connecticut.

Practical Application

When relying on an anonymous tip, we must ensure that it meets the four-part test of Navarette: first-hand knowledge; contemporaneous; “startling event”; and recorded. Next, we must ensure that if the tip is reliable it must particularized and individualized to an individual – not just the group. The information provided must be sufficiently detailed as to one person so as to demonstrate reasonable, articulable suspicion to justify a Terry stop, because the description as to a large group of people will not justify the detention of one individual within that group.

If the anonymous tip does not meet Navarette, or does not rise to the level of particularized, individualized suspicion required by the Fourth Amendment in Connecticut, officers must limit their interaction to a consensual encounter (until the point where based upon all of the factors involved, a level of reasonable, articulable suspicion is obtain justifying a Terry stop) ensuring officers’ conduct does not create an environment where a reasonable person would feel as though there were not free to leave thereby creating a “seizure” under Connecticut law.  A misstep at any of these junctures may result in evidence obtained being excluded at trial.