PEOPLE OF MI V TIMOTHY MICHAEL JOHNSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 9, 2001
Plaintiff-Appellant,
v
No. 230938
Oakland Circuit Court
LC No. 99-164251-FH
TIMOTHY MICHAEL JOHNSON,
Defendant-Appellee.
Before: Griffin, P.J., and Markey and Meter, JJ.
GRIFFIN, P.J. (concurring).
I agree with the result of the majority opinion and with much of its analysis. I write
separately to state only that I would not rely on People v Faucett, 442 Mich 153, 157; 499 NW2d
764 (1993), because the Michigan Supreme Court’s decision is inconsistent with the Fourth and
Fourteenth Amendments as construed by the United States Supreme Court in Florida v JL, 529
US 266, 272; 120 S Ct 1375; 146 L Ed 2d 254 (2000).
In JL, an anonymous telephone caller reported to the police that a young African
American man was illegally carrying a firearm. According to the tipster, the criminal was
wearing a plaid shirt and could be found standing at a particular bus stop. Thereafter, the police
proceeded to the bus stop and observed three black males “hanging out.” One of the three was
wearing a plaid shirt. Based on the anonymous tip and their observation of the man matching its
description, the police conducted a Terry v Ohio1 “stop and frisk.” The search revealed a gun in
the defendant’s pocket that was seized by the police. In affirming the lower court orders
granting the defendant’s motion to suppress the firearm as a product of an illegal search and
seizure, the United States Supreme Court applied and clarified its earlier holding in Alabama v
White, 496 US 325; 110 S Ct 2412; 110 L Ed 2d 301 (1990). In JL, supra at 146 L Ed 2d 260,
the Supreme Court characterized Alabama v White as a “borderline” and “close case.”
In White, supra, an anonymous caller reported that a woman carrying cocaine would be
leaving an apartment building at a specified time, enter a particular automobile, and drive to a
named hotel. Such a detailed prediction of defendant’s future movements, confirmed by police
observation prior to the stop and frisk, was deemed to be marginally sufficient to withstand a
1
Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968).
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Fourth Amendment challenge.
explained:
The Supreme Court in White, supra at 110 L Ed 2d 310,
What was important was the caller’s ability to predict respondent’s future
behavior, because it demonstrated inside information—a special familiarity with
respondent’s affairs. The general public would have had no way of knowing that
respondent would shortly leave the building, get in the described car, and drive
the most direct route to Dobey’s Motel. Because 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 individual’s illegal activities. See [Illinois v]
Gates, [462 US 213] supra, at 245; 76 L Ed 2d 527; 103 S Ct 2317. When
significant aspects of the caller’s predictions were verified, there was reason to
believe not only that the caller was honest but also that he was well informed, at
least well enough to justify the stop. [Emphasis in original and added.]
In contrast to White, the anonymous tipster in JL, supra, did not predict the defendant’s
future itinerary, but merely reported what was readily observable. Any member of the public
could see a young African-American man wearing a plaid shirt at the bus stop. Therefore, the
report was insufficient to establish that the caller had reliable information regarding criminal
activity of the defendant:
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.
[JL, supra at 146 L Ed 2d 261.]
In my view, our Supreme Court’s decision in Faucett, supra, should not be followed
because it is contrary to JL, supra. In Faucett, the majority identified the following four facts
that it deemed sufficient to establish the reliability of the anonymous caller:
(1) the anonymous caller identified defendant, (2) the caller knew at the
time of the call that defendant was en route, (3) the caller described the pickup
truck with substantial accuracy, and (4) defendant’s travel route was described in
significant detail. [Id. at 177.]
As noted by Justice Levin in dissent, the first three factors were conditions that were
readily observable by the public. Any person at the locale could have reported that he had seen
the defendant driving his pickup truck in a general direction. The only information conveyed by
the caller predicting future activity was that the defendant was traveling toward town and may be
turning from “Hobbs Drive on to either Third or Grant Streets.” However, unlike White, such an
equivocal prediction of a traffic turn is not a detailed prediction of the defendant’s itinerary. In
this regard, I agree with the following analysis by Justice Levin:
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Evaluating the majority’s four “critical facts,” there was not sufficient
indicia of reliability to justify a stop in this case. Although the officers verified
that it was Faucett in the truck and that the truck appeared to have been traveling
along Werth Road, this part of the tip, the first three of the four “critical facts”
relied on by the majority, did not provide indicia of reliability under the principles
set forth in White. The tipster’s statement that Faucett was traveling in his blue
pickup into Alpena on Werth Road did not indicate that the caller had inside
information, and is more properly characterized as a condition existing at the time
of the tip, observable by any member of the general public.11
This leaves what is left of the fourth “critical fact,” namely, that Faucett
would turn from Hobbs Drive onto either Third or Grant. And thus the majority
concludes that the Alpena police had reasonable suspicion to make an
investigative stop of Faucett’s truck simply because the police had verified that
Faucett would turn from Hobbs Drive – where Faucett was first observed by the
Alpena Police – onto either Third or Grant.
Under the principles set forth in White, this was not sufficient indicia of
the reliability of the tip.
11
Faucett was identified by name, and this might have some relevance in
determining whether the remainder of the tip was credible. Anyone who knew
Faucett but lacked “inside information” or “special familiarity” with his affairs
could, however, have so identified him.
[Faucett, supra at 177-178 (footnotes omitted).]
In the present case, I agree with the majority that under the totality of the circumstances
the tip provided sufficient reasonable suspicion necessary to justify the stop of defendant’s
vehicle. Unlike JL, the tip came from a known source, not from an anonymous caller.
According to Officer Wells, the informant is an acquaintance whom he has known for fifteen
years. Further, the informant had given accurate information to Wells on one prior occasion that
resulted in the recovery of a stolen car. Because the informant is known and his credibility can
be assessed, the reliability concerns litigated in White and JL are not applicable.
I join with the majority in reversing and remanding for further proceedings.
/s/ Richard Allen Griffin
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