You’re confusing PC (probable cause) with the Terry standard of reasonable, articulable suspicion.
Reasonable suspicion is a quantum of suspicion less than probable cause. It is means that the officer must be able to articulate specific reasons for his suspicions. They must be more than a hunch, or an inchoate, unformed idea.
However, an anonymous tip, standing alone, does not give rise to even reasonable suspicion. This was settled ten years ago in Alabama v. White, 496 U.S. 325 (1990), the seminal case on anonymous tips.
The tip must be corroborated with information that indicates the tipster has inside knowledge - for example, by predicting the subject’s movements or actions.
No, I’m not confusing P.C. with R.S. What statement did I make that confused the two?
I am not familiar with Alabama v. White, so obviously I am behind the times. Even so, if I get a call that someone alleges Johnny is out on the street with a gun, and I encounter Johnny:
[ul][li]I should have R.S. to do a pat-down (not a full search) - I think we agree that R.S. is all that is needed for a frisk, don’t we?[/li]Regardless of the court’s decision, police will frisk if they feel their safety is in question.[/ul]
Yes, it’s all that’s needed - but no, you don’t have it. The tip must provide some indicia of its reliability - such as claiming that Johnny will be walking along Seventh Street at 8:30 AM heading east.
If the anonymous tip merely alleges that Johnny is carrying a gun, it does not give you sufficient information, as a matter of law, to frisk.
True. But they’ll lose the evidence in court if they do.
Surely a better approach is to initiate a consensual encounter, and let the suspect’s nervous gestures, furtive manner, or inconsistent answers give you the reasonable suspicion needed to make the frisk good.
I confess I’m way out of touch with recent case law - for better or worse, my livlihood no longer depends on it. So naturally, I’m supremely qualified to make this analysis:
Making the assumption (and its a big one) that when the police encountered the defendant on the street they did nothing that would lead the defendant to believe he was not free to leave, then the initial interview (not interrogation) was consensual. IOW, if the police did not immediately say “hands against the wall” or “freeze” or some such, and did not immediately take physical action indicating restraint of the defendant, then it was consensual.
Is my impression still true, Rick? (granted, I’m oversimplifying, and further granted that this may not have been the situation in the recent case).
Yes, you’re exactly correct. The police are free to initiate a conversation with someone, as long as they are free to disregard the questions and walk away.
The moment that the police restrain the person in any meaningful way, or interfere with his liberty, it becomes a seizure within the meaning of the Fourth Amendment.
A lot of court time is spent arguing about whether a reasonable person in the defendant’s shoes would have felt free to leave in the particular circumstances of each case. The Commonwealth will piously claim that despite the presence of six police officers with drawn guns, it was a consensual encounter. The defense bar will earnestly aver that an officer’s, “How ya doin’?” and a wave constituted a seizure.
In general, the court resolves the question by looking to the totality of the circumstances and applying the reasonable man test. If the officers request and don’t order, and they don’t have their weapons drawn, it’s going to be consensual. Now, if you’ve worked the streets as a cop, you know as well as I do that, “Hey - why don’t you come over here a sec, partner?” can sound an awful lot like a command.
If the dirtb… er, the suspects knew their case law, there would be a lot fewer convictions.
I must confess that this is one area where the courts have interpreted such contact in favour of the police, beyond practical reason. Not complaining, mind you, but c’mon: how can any reasonable person, when approached by an officer in uniform, think that they have the option of walking away without consequences? Yet, as you say, traditionally the courts have allowed that such contact is consensual (it is consensual from a truly legal POV, but the individual 99/100 times will feel it is not).
Same holds true, though probably to a lesser extent, when police ask for consent to search. Typical example I witnessed: officer pulls over a violator for speeding; notes odd behaviour; officer asks “may I have a look in your trunk”; soon-to-be defendant says “sure”; defendant opens trunk to reveal it literally stuffed to the brim with bags of marijuana. What was this guy thinking? Clearly, he believed he had no choice.
BTW, Rick, I think there’s a huge demand for a Web site devoted to legal urban legends, such as the “if you ask if they’re a cop and they say no…” and driving barefoot, and of course our infamous driving in the left lane issue. Are you game?