911 Callers Presumed Reliable
Can a police officer stop a vehicle based on an anonymous tip, then use evidence from the traffic stop to build a criminal case? The U.S. Supreme Court recently said yes, sometimes.
Some legal commentators say the Supreme Court’s 2014 decision went too far in extending police authority to act on anonymous tips.
Undaunted by the top court’s weak concern for civil liberties, an Oklahoma court quickly followed suit – maybe too quickly, according to a dissenting judge. Oklahoma Court of Criminal Appeals Presiding Judge David Lewis dissented in part with his peers’ decision in State v. Alba, 2015 OK CR 2.
Although many say the Navarette v. California, (2014) decision went too far in granting police authority to act on anonymous tips, the Supreme Court did not grant police unlimited authority to follow wherever any anonymous tipster leads.
Instead, the Navarette opinion means police and courts must examine the “totality of circumstances” to determine when an anonymous tip can be considered reliable, Lewis pointed out in his partially dissenting opinion.
While we agree with Lewis, and agree even more so with dissenting Supreme Court Justice Antonin Scalia’s view that the anonymous tip in Navarette was insufficient to provide an officer the reasonable suspicion required for a traffic stop, a comparison of Navarette and two Oklahoma anonymous tip cases is informative. Viewed together, the cases offer insight into current law when criminal charges are based on anonymous tips.
Oklahoma Court Reverses Anonymous Tip Stance
In Alba, the Oklahoma Court of Criminal Appeals reversed a district judge’s decision to suppress evidence in a drunk driving arrest. The arrest followed a traffic stop based on another driver’s 911 call along with that other drivers’ effort to point a patrol officer toward the suspect vehicle.
The Oklahoma court in Alba asserted that Navarette guided their decision. The court went so far as to say the 2014 decision in Navarrete means an earlier Oklahoma anonymous tip opinion should also be overruled.
In that earlier case, Nilsen v. State 2009 OK CR 6, a caller had reported to police seeing a man drinking a beer while driving. The Oklahoma court in that case took a dim view of anonymous tipster’s reliability. In Nilsen, OCCA judges concluded,
“Because the informant was anonymous, the law enforcement officials had no means of assessing his or her reliability and there was no threat of criminal repercussion in case of false accusation. Further, the informant provided only identifying information and included nothing – not even predictive information – to sufficiently corroborate the allegation of criminal activity.”
In Navarette, an officer built a felony case on marijuana found in a truck first identified by an anonymous 911 caller. According to a 911 dispatcher, the truck had almost run the tipster’s vehicle off the road.
At the Supreme Court, a narrow majority concluded police correctly treated the tipster’s information as reliable.
The court’s majority held the 911 call was placed too soon after the alleged incident for the caller to have concocted a story. The court’s circular logic presumes an allegation of an incident is reason to believe the incident occurred.
The caller’s use of the 911 system also means there could be criminal repercussions for making a false report, further establishing the reliability of the tip, the Navarette court concluded.
In all three cases, an officer followed a vehicle identified by a 911 caller and saw no further evidence of impaired driving. The driver’s failure to exhibit suspicious behavior after police were following did not diminish the officers’ otherwise reasonable suspicions based on the anonymous tip in Navarette, the court concluded.
If all it takes is a call to 911 to pass the Navarette test, all three cases could be considered nearly identical. But there are differences.
The Alba tipster called police then followed the offending driver long enough to attract an officer’s attention. The tipster provided identifying information to 911 operators.
In his partial dissent to the Alba opinion, Lewis disagreed that Navarette shed new light on the Oklahoma court’s earlier judgment. Because the Alba caller was not anonymous, the OCCA has no reason to overrule an earlier precedent where the caller was anonymous, Lewis wrote.
Court: Weigh Indicators of Reliability
The Navarrette court did not, however, say police need to know who called 911 for a tipster’s call to be reliable. Criminal penalties associated with false 911 calls tends to mean 911 callers are more reliable than a purely anonymous tipster, the U.S. Supreme Court decided.
On the other hand, the Navarrette court did not rely on just one indicator to establish when a tip is reliable. The court identified several factors that contributed to the tipster’s reliability.
The Navarrette caller provided specific information, including a vehicle description and license number, related to a specific dangerous offense – running another vehicle off the road – to which the caller claimed to be an eyewitness. The report was made contemporaneously to the alleged offense, so much so that police located the vehicle a predictable distance away a few minutes later.
The Navarette court contemplated how a caller’s particular knowledge, predictive information, contemporaneous report or excited utterance – weighed together – can help determine whether an anonymous tip may be reliable.
In addition to those factors established in case law as lending reliability to an anonymous tip, the Navarette court cited an additional factor. The caller alleged specific, dangerous results of the drivers conduct. The tipster in Navarrette alleged “more than a minor traffic infraction and more than a conclusory allegation of drunk or reckless driving.”
That is the difference that separates Alba from Nilsen, and Navarrette from Nilsen. In Alba, a caller alleged the driver had been unsteady on her feet and walked into a light pole before getting behind the wheel of a vehicle. In Navarrette, a driver reported someone who allegedly ran them off the road. In Nilsen, the tipster had merely alleged seeing a driver with a beer can in hand.
Under the case-by-case guidelines suggested in Navarette, it might not matter whether a caller provides their identity to 911. Lewis nonetheless pointed out that, unlike Nilsen, in Alba the caller had identified herself. When the “totality of circumstances” are considered, as Navarette suggests, a callers willingness to be identified could lend credibility to a 911 report.
Given the OCCA’s fast-handed suggestion that a five-year-old precedent should be overruled, one might fear that the Oklahoma court could venture beyond the U.S. Supreme Court’s “close case” call in Navarette.
We would hope no court would join such a fool’s errand that could only lead to costly and time consuming reversal by a higher court. A better outcome would be for the appeals court – and Oklahoma trial courts – to carefully weigh the multiple factors spelled out in Navarette that can lend reliability to an anonymous tip.
Navarette set a low bar for anonymous tips, but the court did not exactly say any anonymous prankster with a pen and a cell phone could direct police to conduct traffic stops that will stand up to Fourth Amendment scrutiny. The totality of circumstances – supposedly – still matters.
Free Consultation: Tulsa Defense Lawyer
For a person arrested based in part on the allegations of an anonymous tipster, some of the information a tipster provided might not be admissible, despite the trends of some recent anonymous tip cases.
Court decisions in U.S. and Oklahoma cases alike involved anonymous tips related to drunk drivers. The courts – in these cases – did not address warrants or other investigative measures where police have more time to confirm the veracity of a tip before taking action.
To find out more about whether information from an anonymous tipster might be admissible in a criminal case, contact a skilled Oklahoma criminal lawyer. For a free consultation with a Tulsa defense lawyer, call Wirth Law Office at (918) 879-1681 or send your question using the form at the top of this page.