We have for review State v. J.L., 689 So.2d 1116 (Fla. 3d DCA 1997), which expressly and directly conflicts with Butts v. State, 644 So.2d 605 (Fla. 1st DCA 1994). We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution. For the reasons expressed below, we decline the State's invitation to create a firearm or weapons exception
The facts and issues in this case and Butts are similar in nature. Both cases involve an anonymous telephone tip and the issue of whether the police possessed the necessary reasonable grounds to stop and frisk a citizen based solely upon the anonymous tip.
In this case, the police received an anonymous tip stating that several young black males were standing at a specified bus stop during the daylight hours. The anonymous informant stated only that one of the individuals, the one wearing the "plaid-looking" shirt, was carrying a gun. Two police officers arrived at the specified bus stop approximately six minutes after receiving the anonymous tip and observed three black males, one of whom was wearing a plaid shirt. The three males were engaged in no suspicious or illegal conduct and no additional suspicious circumstances were observed by the officers. One of the officers immediately accosted J.L., who was wearing a plaid shirt, and ordered him to put his hands above his head. Then, without questioning or other introduction, the officer proceeded to frisk J.L. and seized a gun from J.L.'s left pocket. At the same time, the second officer, again without discussion, frisked the other two individuals. At trial, J.L.'s motion to suppress the gun was granted. On appeal, the Third District Court of Appeal reversed and held that the police had a reasonable suspicion that J.L. was carrying a concealed weapon. See J.L., 689 So.2d at 1117. The district court reasoned that the investigatory stop and frisk was justified because the surrounding circumstances indicated to the officers that the anonymous tip was reliable. See id.
In Butts, the police received an anonymous tip describing the appearance and location of a man on a bicycle who was said to be carrying a concealed gun and possibly selling drugs. The officers responded to the tip and observed Butts, who matched the description provided by the informant, riding a bicycle in the location described by the informant. The officers stopped Butts after a brief chase and detained him. The officers observed a gun in Butts' pocket and seized it. The officers frisked Butts and seized packets of cocaine and heroin. At trial, Butts' motion to suppress the gun and drugs was denied. On
In this case, J.L. asserts that the police officers did not have the requisite reasonable suspicion to justify a stop and frisk and that consequently the seizure of the firearm was unconstitutional. J.L. notes that the anonymous tip included no predictive qualities and that the officers only verified the innocent details of the tip.
We begin our analysis by noting that one of the cornerstones of this nation's foundation is the constitutional protection that individuals have a right to be free from unreasonable searches and seizures. See U.S. Const. amend. IV. The decision of the district court in J.L. seriously infringes upon this defining right.
The law is well established that a police officer may, in appropriate circumstances, stop a person for the purpose of investigating possible criminal behavior, even though there is no probable cause for an arrest, as long as the officer has reasonable suspicion that the person is engaged in criminal activity. See Terry v. Ohio, 392 U.S. 1, 19-23, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The circumstances may even require a frisk of the person to determine whether the person is carrying a weapon, if the police officer has a reasonable suspicion that the person is armed and poses a threat to the officer or others. See id. at 27, 88 S.Ct. 1868. However, when the police act on the information of an informant, the reliability of that information must be established before a citizen can be stopped and frisked.
Anonymous tips are generally less reliable than tips provided by known informants who have previously provided information to the police in the past, see Adams v. Williams, 407 U.S. 143, 146-47, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), or face-to-face informants, see United States v. Salazar, 945 F.2d 47, 50-51 (2d Cir.1991). Tips from known reliable informants, such as an identifiable citizen who observes criminal conduct and reports it, along with his own identity to the police, will almost invariably be found sufficient to justify police action. In contrast, anonymous tips must be closely scrutinized. "[A]n anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity inasmuch as ordinary citizens generally do not provide extensive recitations of the basis of their everyday observations and given that the veracity of persons supplying anonymous tips is `by hypothesis largely unknown, and unknowable.'" Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) (quoting Illinois v. Gates, 462 U.S. 213, 237, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).
However, an anonymous tip can provide the basis for reasonable suspicion, provided that it can be established that the tip is reliable. See White, 496 U.S. at 332, 110 S.Ct. 2412. A tip's reliability can be established in a number of different ways. A tip may describe suspicious details concerning conduct that is presently occurring or is about to occur in the future (i.e., a call received after midnight, on a warm summer evening, stating, "A person is carrying a gun; that person is wearing a ski mask and a long trench coat and is approaching a convenience store."). Verification by the police of the suspicious details clearly provides the police with the requisite reasonable suspicion to make a Terry stop.
The more difficult case involves those tips which allege criminal conduct, but only describe "innocent details of identification," for which the details in and of themselves are in no way incriminating or indicative of criminal behavior. Butts, 644 So.2d at 606 (quoting Robinson v. State, 556 So.2d 450, 452 (Fla. 1st DCA 1990)). Innocent detail tips merely provide the police with verifiable details
Reasonable suspicion can be established by verification of a presently-occurring innocent detail tip coupled with an independent police investigation. See generally United States v. Bold, 19 F.3d 99, 103 (2d Cir.1994). But for these types of tips (presently-occurring innocent detail tips), the independent police investigation would have to uncover something more than just a verification of the innocent details. The police must observe additional suspicious circumstances as a result of the independent investigation. See White, 496 U.S. at 329, 110 S.Ct. 2412 ("Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of the suspect would be authorized."). Judge Allen's opinion in Butts provides the correct framework for analysis:
644 So.2d at 606.
The State argues that the tip in the present case is reliable. We disagree. Initially, we must observe that the essential issue presented here would be the same whether the anonymous tip involved three white males in business suits waiting for a taxi, or three white females waiting for a ride to a certain location. The officers received an anonymous tip that a young man was carrying a concealed weapon. The tip disclosed that the young man was standing by a bus stop at a specific location and that he was wearing a plaid-looking shirt. The reliability of this tip was not proven by any of the previously described ways recognized as sufficient in our case law. The tip did not involve suspicious behavior which the police could have verified as suspicious upon arrival; rather the tip involved innocent details, none of which involved incriminating or criminal behavior.
Further, the innocent details provided in the tip did not involve future action for which the police could verify whether or not such future action would occur; rather the tip involved present action which could have been provided by "any pilgrim on the roadway." Butts, 644 So.2d at 606 (quoting Robinson, 556 So.2d at 452). Finally, the presently-occurring innocent detail tip was not corroborated through an independent investigation on the part of the police which established that the suspect was engaging in suspicious behavior; rather, "the officers' independent investigation added nothing to the reliability of the tip"—the officers merely verified that the defendant was in fact standing by the bus stop and wearing a plaid shirt, neither of which is suspicious. Butts,
The officers in the present case merely arrived at the scene and confirmed that a male was wearing a plaid-looking shirt and standing by a bus stop. There is nothing suspicious about either of these details. Further, the officers did not observe anything suspicious about the suspect prior to performing the Terry stop. The officers' actions are also called into serious question by the fact that the officers frisked all three individuals standing near the bus stop, not just the individual wearing the plaid shirt. Under the totality of the circumstances, we are unable to conclude that the officers had reasonable suspicion to stop and detain the three people at the bus stop and conduct a frisk in this case. Of course, there was nothing to prevent the police from engaging in a consensual encounter with the trio or from questioning them concerning their possession of a weapon as reported in the anonymous tip. However, the officers' forcible actions in response to the anonymous tip were an active intervention into an otherwise peaceful situation and did not warrant a frisk until some observable suspicious conduct took place. Therefore, we agree with the trial court that the evidence recovered as a result of the impermissible stop and frisk should have been suppressed.
We are aware that other jurisdictions appear to recognize a "firearm exception"
Commonwealth v. Hawkins, 547 Pa. 652, 692 A.2d 1068, 1071 (Pa.1997). In Florida, it is generally not illegal to possess a firearm. See generally ch. 790, Fla. Stat. (1997). Additionally, Florida provides that individuals are permitted to carry concealed weapons with a proper license. See § 790.06, Fla. Stat. (1997). There are even certain situations (not involved here) where juveniles are permitted to possess firearms. See § 790.22, Fla. Stat. (1997).
For the reasons stated herein, we determine that there is no firearm or weapons exception to the Fourth Amendment and the bare-boned anonymous tip involved herein, by itself, did not provide the police with sufficient cause to stop and frisk.
We recognize that in State v. Webb, 398 So.2d 820 (Fla.1981), this Court held that the anonymous information contained in a police BOLO (be on the lookout) bore sufficient indicia of reliability, therefore justifying a stop and frisk. We find that Webb is distinguished from the present case. In Webb, the BOLO was pursuant to an investigation regarding alleged crimes that had already occurred on the previous two days. The suspect matching the BOLO was apprehended in the vicinity of the crime scene, providing further support that the person apprehended was in fact the perpetrator of the crimes. These two factors considered together provided the police with the necessary suspicion to make the stop. These circumstances are in contrast to the facts of the present case, where the police were not investigating a crime that had previously taken place.
In the present case, the Third District relied on this Court's previous decision in Hetland v. State, 387 So.2d 963 (Fla.1980). In Hetland, this Court held that an anonymous tip can provide the basis for a valid stop if the tip carries sufficient indicia of reliability. We reaffirm this holding in today's decision. However, we find that a mere detailed description of a person's clothing and location, by itself, is not enough to sufficiently establish a tip's indicia of reliability.
Accordingly, we quash the decision under review. We approve the opinion of the First District Court of Appeal in Butts.
It is so ordered.
SHAW, KOGAN and ANSTEAD, JJ., concur.
HARDING, C.J., concurs with an opinion, in which KOGAN and ANSTEAD, JJ., concur.
OVERTON, J., dissents with an opinion, in which WELLS, J., concurs.
WELLS, J., dissents with an opinion.
HARDING, C.J., concurring.
I concur with the majority. I write to emphasize that the solution to this country's firearm epidemic cannot come at the expense of the principles set forth in the federal Constitution. I am aware that our streets and school grounds
This point is exemplified by a careful analysis of the Supreme Court's language in Terry. The setting in Terry involved "on-the-spot observations of the officer on the beat." Id. at 20, 88 S.Ct. 1868. The Supreme Court clearly set out the test for determining when such limited intrusions may take place:
Id. at 21-22, 27, 88 S.Ct. 1868 (emphasis added) (citations omitted). Applying this language to the facts of the present case, it becomes obvious that the information provided in the anonymous tip in question was the equivalent of an "inchoate and unparticularized suspicion or hunch," which in and of itself is insufficient to justify police intrusion. Thus, if the language of Terry, and indeed the Fourth Amendment, is to have any meaning, the evidence in the present case must be suppressed. A contrary result would lead to the "evaporation" of the constitutional rights of the Fourth Amendment.
It seems that the main concern of the dissenting justices is the ease with which individuals are able to access weapons, a concern which is well founded. However, the right to bear arms is not the issue in the present case; rather, we are concerned with the right to be free from unreasonable searches and seizures. The effect of allowing a "firearms exception" would be the equivalent of saying that there are no unreasonable searches and seizures, and thus no Fourth Amendment rights, so long as the anonymous informant uses the magic word "firearm." To allow such an exception would threaten the basic protections of this nation's Constitution.
KOGAN and ANSTEAD, JJ., concur.
The possession without authority of a concealed firearm by any individual in a public place or at a public event is a prescription for disaster, but the possession of a concealed firearm by a child is an especially dangerous and explosive situation. In deciding not to allow the stop and frisk in this case, the majority fails to follow the clear controlling precedent of this Court, and in addition expresses a holding contrary to the view of the overwhelming majority of jurisdictions that have considered the issue. In my view, the majority also makes a poor public policy decision that is dictated neither by the law nor by common sense. The majority decision is not only bad policy—I believe it threatens the physical safety of the law enforcement officers and citizens of this state. What must be remembered is that the Florida and United States constitutions protect against "unreasonable searches and seizures." Under the circumstances of this case, stopping and frisking this child and seizing the concealed weapon is not unreasonable.
The unfortunate reality of today's society is that dangerous persons of all ages stand armed and ready to shoot law enforcement officers and citizens. I am unable to ignore the daily headlines of our nation's newspapers and the statistics compiled by law enforcement agencies that reveal the great risk of harm posed by firearms in this country. According to the Uniform Crime Reports published by the Federal Bureau of Investigation, firearms claimed the lives of 92% of the 696 law enforcement officers killed in the line of duty from 1987 through 1996. Of those murders committed with firearms, 71% involved handguns—weapons that are easily concealed. Recent events have tragically demonstrated that children, such as the petitioner, and guns are an especially explosive mixture.
To more fully explain my position, it is necessary to restate part of the facts in this case. The police received an anonymous tip that one of three young black males standing at a bus stop in front of a pawnshop at a specific and public location was carrying a concealed firearm. The tipster described the appearance of each of the young males and said that the individual with the gun was wearing a "plaid-looking" shirt. Officer Carmen Anderson, a police officer with more than fourteen years of experience, and another officer arrived at the scene only six minutes after receiving the anonymous complaint. The officers immediately verified the accuracy of all of the appearance and location information provided by the tipster. J.L. was standing by the bus stop with two other young black males and he was wearing a plaid shirt. Officer Anderson approached J.L., asked him to put his hands above his head, and conducted a pat-down of his outer garments. Officer Anderson then seized a gun that she saw protruding from J.L.'s left pocket. J.L. was taken into custody and charged with unlawfully carrying a concealed firearm
J.L.'s motion to suppress was granted by the trial court. The Third District Court of Appeal reversed, holding that the police had a reasonable suspicion that J.L. was carrying a concealed weapon. The district court stated that the investigatory stop and frisk was justified because the surrounding circumstances indicated to the officers that the
J.L., 689 So.2d at 1118.
In reaching its decision, the district court appropriately relied upon this Court's decision in Hetland v. State, 387 So.2d 963 (Fla. 1980), which expressly adopted the decision of the Second District Court of Appeal in State v. Hetland, 366 So.2d 831 (Fla. 2d DCA 1979). In Hetland, the sheriffs deputies received an anonymous tip that Hetland was on his way to a local tavern to shoot someone. The tipster gave Hetland's description to the police and informed them that he was carrying a silver revolver. The deputies immediately proceeded to the tavern and identified Hetland sitting at the bar. "There was no commotion; all was quiet. [Hetland] was... sitting at the bar and there was nothing in his manner or actions which was suspicious." Hetland, 366 So.2d at 833 (emphasis added). One of the deputies asked Hetland to stand up. When Hetland complied, the deputy saw a gun protruding from Hetland's waistband. The weapon was seized and Hetland was arrested for carrying an illegally concealed firearm. The trial court suppressed the revolver as evidence. On appeal, the Second District Court of Appeal reversed, holding that the tip was sufficiently reliable to justify the investigatory detention and seizure. On review, this Court summarily approved of the decision of the district court and expressly adopted its opinion.
One year following our decision in Hetland, this Court again considered the issue of the validity of a stop and frisk based on an anonymous tip that concerned a concealed weapon. In State v. Webb, 398 So.2d 820 (Fla.1981), a bulletin was issued for the police to "be on the lookout" (BOLO) for a white male with specific physical features who was suspected of having committed two armed robberies on the two previous days. The BOLO was based on apparently anonymous information. The BOLO also provided that the suspect was carrying a black gun. Six hours after the BOLO was issued, the police saw Webb walking down a street approximately two miles from the scene of the robberies. Because Webb matched the description given in the BOLO, the officers conducted a stop and frisk of Webb and recovered a concealed firearm. Webb was arrested for carrying the concealed firearm. Webb was not charged with the robberies that he had been suspected of committing, but was charged with carrying an illegally concealed weapon. The trial court denied Webb's motion to suppress. On appeal, the district court reversed. This Court quashed the district court's decision, holding that the apparently anonymous information in the BOLO was specific and corroborated such that it bore sufficient indicia of reliability. In conclusion, we wrote as follows:
Webb, 398 So.2d at 826.
Hetland and Webb clearly control the issue presented in this case and demand the same
The law is clear that a police officer may make an investigatory stop of a citizen if the officer has a reasonable suspicion that the individual is committing or is about to commit a crime. Terry. The "totality of the circumstances" test is used to determine whether the investigatory stop was supported by the requisite reasonable suspicion. Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). If the officer has a reasonable suspicion that the detained individual is armed and dangerous to the officer or others, a limited frisk for weapons may be conducted. Terry; Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). The United States Supreme Court has deemed such a stop and frisk to be a "limited intrusion." Adams v. Williams, 407 U.S. 143, 148, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)(emphasis added). Under appropriate circumstances, an anonymous tip may carry sufficient indicia of reliability to justify an investigatory stop and frisk. White, 496 U.S. at 328, 110 S.Ct. 2412. The reliability of the anonymous tip is based in part on the specificity of the information provided and the ability of police officers to quickly and independently corroborate significant aspects of the information. White, 496 U.S. at 331-32, 110 S.Ct. 2412. The corroboration of only the innocent details of an anonymous tip concerning certain illegal activities, such as the sale or possession of drugs, is insufficient to provide police officers with a reasonable suspicion of criminal activity. See Robinson v. State, 556 So.2d 450 (Fla. 1st DCA 1990). However, as stated by Professor LaFave:
4 Wayne R. LaFave, Search and Seizure § 9.4(h), at 229 (3d ed.1996).
An anonymous tip concerning an individual with an illegally concealed firearm presents a unique situation. When confronted with this situation, police officers may not be able to verify more than the innocent details of the tip without substantially risking their safety or the safety of the general public. As stated by the Second Circuit Court of Appeals:
United States v. Bold, 19 F.3d at 104. I fully agree. To say that the officers in this case should have waited until this child did something more to arouse their suspicion is unreasonable. I fear that the "additional suspicious circumstances" required by the majority before the police may act will too often turn out to be the suspect's actual use of the unseen firearm. In light of the recent homicides committed by children, I suspect that the public's reaction to the majority's decision will be, "Where is your common sense?"
I would do what the majority of jurisdictions have done and recognize a "firearm exception" to the general rule that the corroboration of only the innocent details of an
I strongly emphasize that this holding should apply only to investigatory stop and frisks supported by reliable anonymous tips regarding individuals possessing illegally concealed firearms. As explained by the United States Court of Appeals, District of Columbia Circuit, the distinction between an anonymous tip involving a firearm and a tip involving possession of other contraband, such as illegal drugs, is significant:
United States v. Clipper, 973 F.2d at 951.
The anonymous tip in this case specifically described the appearance and location of a juvenile carrying a concealed firearm. The location was along a street where other members of the public were present. This fact raised the stakes for the officers because they had to worry about not only their own safety but also the safety of others nearby. The police officers, at least one of whom had substantial law enforcement experience, responded to the tip in a matter of minutes. The timing of their arrival ensured that the reported information was still fresh, thereby increasing the possibility that the officers would confront the suspect before any violence could occur and reducing the possibility that the officers would detain the wrong person. Upon arriving at the scene, the officers immediately verified all of the appearance and location information provided by the tipster. The only information the officers were unable to verify was J.L.'s actual possession of a concealed weapon. Officer Anderson conducted an investigatory stop and frisk of J.L. and seized a gun. This limited privacy intrusion was clearly reasonable and necessary for the protection of the officers and nearby members of the public. I would find that, under the totality of the circumstances, this anonymous tip concerning the illegal possession of a concealed firearm, corroborated by independent police work, justified the stop and frisk of J.L. Consequently, the seizure of the gun from J.L. would be valid. While the majority states that there is potential for abuse in recognizing a "firearms exception," I believe the potential for such abuse is minimal when compared to the harm that concealed firearms may cause to law enforcement and the general public. Accordingly, consistent with our decision in Hetland and Webb, and the decisions of the majority of jurisdictions that have considered the issue, I would approve the decision of the Third District Court of Appeal in this case and disapprove Butts v. State, 644 So.2d 605 (Fla. 1st DCA 1994).
WELLS, J., concurs.
WELLS, J., dissenting.
I join in the thorough and well-reasoned dissent of Justice Overton.
I write separately only to point out, contrary to the assertion of the concurring opinion, that my decision is not based upon a confusion between the right to bear arms and the right to be free from unreasonable searches and seizures. Rather, I conclude that to guard the constitutionally protected right to be free from unreasonable searches and seizures, this Court is not required to ignore the reality of what is happening daily in our country, our state, and in every local community of Florida.
Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (emphasis added).
Those jurisdiction recognizing a "firearm exception" are in essence carving out an exception to an exception, by requiring less than reasonable suspicion for a Terry stop in response to an anonymous tip which alleges that an individual is carrying a firearm. We are unwilling to carve out this new exception from the original exception recognized in Terry.
Terry, 392 U.S. at 16-17, 88 S.Ct. 1868 (footnote omitted).
Justice Overton also focuses on the fact the defendant in the present case is a juvenile. It is important to point out that the "firearm exception" would apply to all citizens, not just juveniles.
Terry, 392 U.S. at 24, 88 S.Ct. 1868.
Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.
Terry, 392 U.S. at 27, 88 S.Ct. 1868.