Rel 04/04/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2007-2008
_________________________
CR-07-0445
_________________________
B.J.C.
v.
State of Alabama
Appeal from Jefferson Juvenile Court
(JU-07-53663)
WELCH, Judge.
On November 29, 2007, B.J.C. was adjudicated delinquent
after pleading guilty to the underlying charge of carrying a
concealed weapon, a violation of § 13A-11-50, Ala. Code 1975.
CR-07-0445
Before to entering his guilty plea, B.J.C. reserved the right
to appeal the trial court's denial of his motion to suppress.
At the suppression hearing, Tarrant Police Officer James
Phillip George, Jr., testified that at approximately 3:15 p.m.
on November 1, 2007, he received a dispatch in reference to "a
black male wearing a sleeveless Chicago Bulls basketball
jersey, khaki pants, and a black hat [and] carrying a firearm
...
[i]n
the
1400
block
of
Sloan
Avenue."
(R.
6.)
Apparently, the dispatch was the result of an anonymous caller
reporting this information to the police. Officer George went
to the 1400 block of Sloan Avenue, where he saw a person
walking down the street who matched the description provided
by
the
anonymous
caller.
Officer
George
passed
the
individual, stopped his patrol car, got out of the car, and
drew his weapon. Officer George ordered B.J.C. to the ground.
B.J.C. hesitated for a moment but then complied. Once B.J.C.
was on the ground, Officer George "put [his] knees across the
back of [B.J.C's] thighs to keep him from being able to get
up, started to pat down the back of his pants and he ... asked
me what I was doing.
I said, Where's the gun.'"
(R. 7-8.)
At first, B.J.C. denied having a gun, but he finally told
2
CR-07-0445
Officer George that he had a gun in his back pocket.
After
removing a small handgun from B.J.C's back pocket, Officer
George turned B.J.C. over onto his back, at which time B.J.C.
told George that he had another gun in his front waistband
which George recovered.
At
the
hearing,
defense
counsel
argued
that
the
circumstances surrounding the stop were identical to the facts
of Florida v. J.L., 529 U.S. 266 (2000), and that the trial
court should grant the motion to suppress based on the United
States Supreme Court's ruling in that case.
The trial court
took the matter under advisement and subsequently denied the
motion.
On appeal, B.J.C. argues that the trial court erroneously
denied his motion to suppress. The State agrees, stating that
the instant case is indistinguishable from the United States
Supreme Court's decision in J.L.
"When an appellate court reviews the findings and
holdings of a trial court resulting from a hearing
on a motion to suppress evidence, if the evidence
before the trial court was undisputed, the 'ore
tenus rule,' pursuant to which the trial court's
conclusions on issues of fact are presumed correct,
is inapplicable, and the reviewing court will sit in
judgment on the evidence de novo, indulging no
presumption
in
favor
of
the
trial
court's
application of the law to those facts."
3
CR-07-0445
Ex parte Kelley, 870 So. 2d 711, 714 (Ala. 2003).
In J.L., an anonymous caller reported to the police that
a young black male was at a particular bus stop wearing a
plaid shirt and that he was carrying a gun.
Officers went to
the bus stop, where they saw three black males.
males, J.L., was wearing a plaid shirt.
and frisked the males.
One of the
The officers stopped
A gun was seized from J.L.'s pocket.
The United States Supreme Court held that an anonymous tip
that
a
person
is
carrying
a
gun
is
not,
without
more,
sufficient to justify a police officer's stop and frisk of
that person.
"Our 'stop and frisk' decisions begin with Terry
v. Ohio, 392 U.S. 1 (1968). This Court held in
Terry:
"'[W]here a police officer observes
unusual conduct which leads him reasonably
to conclude in light of his experience that
criminal activity may be afoot and that the
persons with whom he is dealing may be
armed and presently dangerous, where in the
course of investigating this behavior he
identifies himself as a policeman and makes
reasonable inquiries, and where nothing in
the initial stages of the encounter serves
to dispel his reasonable fear for his own
or others safety, he is entitled for the
protection of himself and others in the
area to conduct a carefully limited search
of the outer clothing of such persons in an
4
CR-07-0445
attempt to discover weapons which might be
used to assault him.' Id., at 30.
"In the instant case, the officers' suspicion
that J.L. was carrying a weapon arose not from any
observations of their own but solely from a call
made from an unknown location by an unknown caller.
Unlike a tip from a known informant whose reputation
can be assessed and who can be held responsible if
her allegations turn out to be fabricated, see Adams
v. Williams, 407 U.S. 143, 146-147 (1972), 'an
anonymous
tip
alone
seldom
demonstrates
the
informant's basis of knowledge or veracity,' Alabama
v. White, 496 U.S., at 329. As we have recognized,
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
327. The question we here confront is whether the
tip pointing to J.L. had those indicia of
reliability.
"In White, the police received an anonymous tip
asserting that a woman was carrying cocaine and
predicting that she would leave an apartment
building at a specified time, get into a car
matching a particular description, and drive to a
named motel. Ibid. Standing alone, the tip would not
have justified a Terry stop. 496 U.S., at 329. Only
after police observation showed that the informant
had accurately predicted the woman's movements, we
explained, did it become reasonable to think the
tipster had inside knowledge about the suspect and
therefore to credit his assertion about the cocaine.
Id., at 332.
Although the Court held that the
suspicion in White became reasonable after police
surveillance, we regarded the case as borderline.
Knowledge
about
a
person's
future
movements
indicates some familiarity with that person's
affairs, but having such knowledge does not
necessarily imply that the informant knows, in
particular, whether that person is carrying hidden
5
CR-07-0445
contraband. We accordingly classified White as a
'close case.' Ibid.
"The tip in the instant case lacked the moderate
indicia of reliability present in White and
essential to the Court's decision in that case. The
anonymous
call
concerning
J.L.
provided
no
predictive information and therefore left the police
without means to test the informant's knowledge or
credibility. That the allegation about the gun
turned out to be correct does not suggest that the
officers, prior to the frisks, had a reasonable
basis for suspecting J.L. of engaging in unlawful
conduct: The 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.
"Florida contends that the tip was reliable
because its description of the suspect's visible
attributes proved accurate:
There really was a
young black male wearing a plaid shirt at the bus
stop. Brief for Petitioner 20-21. The United States
as amicus curiae makes a similar argument, proposing
that a stop and frisk should be permitted 'when (1)
an anonymous tip provides a description of a
particular person at a particular location illegally
carrying a concealed firearm, (2) police promptly
verify the pertinent details of the tip except the
existence of the firearm, and (3) there are no
factors that cast doubt on the reliability of the
tip....' Brief for United States 16.
These
contentions misapprehend the reliability needed for
a tip to justify a Terry stop.
6
CR-07-0445
"An accurate description of a subject's readily
observable location and appearance is of course
reliable in this limited sense: It will help the
police correctly identify the person whom the
tipster means to accuse. Such a tip, however, does
not show that the tipster has knowledge of concealed
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. 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).
"A second major argument advanced by Florida and
the United States as amicus is, in essence, that the
standard Terry analysis should be modified to
license a "firearm exception."
Under such an
exception, a tip alleging an illegal gun would
justify a stop and frisk even if the accusation
would fail standard pre-search reliability testing.
We decline to adopt this position.
"Firearms are dangerous, and extraordinary
dangers sometimes justify unusual precautions. Our
decisions recognize the serious threat that armed
criminals pose to public safety; Terry's rule, which
permits protective police searches on the basis of
reasonable suspicion rather than demanding that
officers meet the higher standard of probable cause,
responds to this very concern. See 392 U.S., at 30.
But
an
automatic
firearm
exception
to
our
established reliability analysis would rove too far.
Such an exception would enable any person seeking to
harass another to set in motion an intrusive,
embarrassing police search of the targeted person
simply by placing an anonymous call falsely
reporting the target's unlawful carriage of a gun.
Nor could one securely confine such an exception to
7
CR-07-0445
allegations involving firearms. Several Courts of
Appeals have held it per se foreseeable for people
carrying significant amounts of illegal drugs to be
carrying guns as well. See, e.g., United States v.
Sakyi, 160 F.3d 164, 169 (C.A.4 1998); United States
v. Dean, 59 F.3d 1479, 1490, n. 20 (C.A.5 1995);
United States v. Odom, 13 F.3d 949, 959 (C.A.6
1994); United States v. Martinez, 958 F.2d 217, 219
(C.A.8 1992).
If police officers may properly
conduct Terry frisks on the basis of bare-boned tips
about guns, it would be reasonable to maintain under
the above-cited decisions 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, 393-394 (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).
"The facts of this case do not require us to
speculate about the circumstances under which the
danger alleged in an anonymous tip might be so great
as to justify a search even without a showing of
reliability.
We do not say, for example, that a
report of a person carrying a bomb need bear the
indicia of reliability we demand for a report of a
person carrying a firearm before the police can
constitutionally conduct a frisk. Nor do we hold
that public safety officials in quarters where the
reasonable expectation of Fourth Amendment privacy
is diminished, such as airports, see Florida v.
Rodriguez, 469 U.S. 1 (1984) (per curiam ), and
schools, see New Jersey v. T.L.O., 469 U.S. 325
(1985), cannot conduct protective searches on the
basis of information insufficient to justify
searches elsewhere.
8
CR-07-0445
"Finally, the requirement that an anonymous tip
bear standard indicia of reliability in order to
justify a stop 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. We speak in
today's decision only of cases in which the
officer's authority to make the initial stop is at
issue. In that context, we hold that an anonymous
tip lacking indicia of reliability of the kind
contemplated in Adams and White does not justify a
stop and frisk whenever and however it alleges the
illegal possession of a firearm."
Florida v. J.L., 529 U.S. at 269-74(footnote omitted).
We agree with the parties that the factual situation in
the present case is almost identical to the factual situation
in J.L.
Based on the authority of Florida v. J.L., supra, we
hold that Officer George was not justified in the stop and
frisk of B.J.C.
Therefore, the trial court erred in denying
B.J.C.'s motion to suppress the evidence seized from B.J.C's
person.
For the reasons set forth above, the judgment of the
trial court is reversed, and the cause is remanded for further
proceedings consistent with this opinion.
REVERSED AND REMANDED.
Baschab, P.J., and McMillan, Shaw, and Wise, JJ., concur.
9
