Spring 2014 Newsletter
By J. Stephen Toland
Does an officer have the right to detain you based on a private citizen’s 911 call? The answer may surprise you. An officer may detain you if they have ‘sufficient reason to believe the caller’s information is accurate’; ie: if the information contains a sufficient indicia of reliability. What circumstances are relevant in making this determination? And how might officers find out whether these circumstances exist? This article will attempt to answer those questions.
I’m sure it is no surprise to most that a 911 call is the most common means through which police and emergency personnel learn that there is someone in a dangerous situation who urgently needs help. There is, however, another type of 911 call to which officers regularly respond. And it is this type of ‘call’ that we as criminal defense practitioners regularly address in our practice. These are calls from people who are reporting actual or suspected criminal activity that, although it is now occurring, does not constitute an imminent threat to life or property. Typically these calls include reports of drug dealing in a public place, a person carrying a concealed handgun or “suspicious” activity. When officers respond to investigative calls such as these and locate a potential suspect, can they then detain him based solely on the caller’s information? Or, must the officer first make contact with the individual?
The answer depends on the reliability and specifics of the information left by the 911 caller, and therein arises a potential problem. The only person who can judge the reliability of the caller’s information is the operator who spoke with him. Whether 911 operators adequately understand this area of law and whether they are receiving proper training in this area are subjects for a different day. Once the encounter is over, a criminal defense practitioner must determine whether the operator asked for relevant information, sought additional information when necessary and notified responding officers why a caller appears reliable or not reliable. This so-called ‘reliability determination’ can be critical in determining the legality of a detention and can be done quickly through a condensed or coded explanation transmitted to the arriving officer. In many jurisdictions, operators have received ‘reliability determination’ training in this area and transmit a “reliable/not-reliable” conclusion to the responding officers.
Any information not transmitted to responding officers will not be considered by the courts in determining whether the detention was justified.
The Citizen Informant
Texas courts have consistently held that information provided by a private citizen during a 911 call is presumptively reliable, and therefore may detain a suspect based solely on such a communication, if the caller is a “citizen informant”. To qualify as a citizen informant, the caller must meet two essential requirements: 1) Firsthand Knowledge: the information communicated must be based upon the caller’s firsthand knowledge, as opposed to hearsay or rumor. 2) Identity Known: the caller must have directly or indirectly identified himself to the operator. State and federal courts alike consider it unlikely that a person would knowingly furnish false information if he knows the police can identify him, and thus, the presumption of reliability. It can be argued that even if a caller gives his name he shouldn’t qualify as a citizen informant unless his identity is verified. However, most federal circuits have held that it would be an unreasonable duty imposed on the police if they were required to confirm the identity of every 911 caller. Moreover, there exists a presumption that a 911 caller who identifies himself is giving his true name. This presumption does NOT exist, however, if a reasonable 911 operator would have disbelieved the caller. For example, many courts cite examples of callers identifying themselves as movie stars or musicians such as “Arnold Schwarzenneger” or “Jon Bon Jovi”. In those types of cases a reliability presumption does not exist because the operator should have disbelieved the caller.
The Anonymous Informant
Unlike citizen informant calls, most courts are naturally skeptical about the reliability of 911 callers who refuse to identify themselves. This is because, as the United States Supreme Court noted, “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, an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.” Obviously common sense alone suggests that some anonymous 911 callers are pranksters and some fabricate incriminating stories to cause problems for their adversaries. It is unclear though how many anonymous callers are genuinely calling 911 but desire to remain anonymous as a means of self-preservation versus those who are not genuine. Because some callers, such as neighbors, can fear retaliation for getting ‘involved’ courts do not require that officers ignore information from anonymous 911 callers in determining whether a detention is warranted. Instead, such information may be considered if, as noted earlier, it bears “sufficient indicia of reliability.” The question, then, is what indicia of reliability are sufficient? Courts genuinely hold that any of these three types of anonymous calls may support detention of a suspect: (1) the caller risked being identified, (2) officers verified some of the caller’s information, and (3) there was circumstantial evidence of reliability.
Even though a caller is technically anonymous, he may provide 911 operators with information through which officers might be able to determine his identity. As a caller’s anonymity decreases and his risk of accountability increases, the inference that the tip is reliable strengthens. As a practical matter, the majority of anonymous 911 callers who expose themselves to identification do so by saying something that makes it possible-at least theoretically possible-for officers to identify or locate them. In addition, with the advent of automatic tracing and recording of 911 calls (and the widely held public awareness that all 911 calls are recorded) most courts tend to view 911 calls as reliable.
Additionally, a common way an anonymous caller may expose himself to identification is by directly or indirectly disclosing their whereabouts. A common example is the neighbor who calls the police to report suspicious drug related activity ‘in the back alley of my house’ and provides her address to the 911 operator. Similarly, in a recent Texas court of appeals case, man phoned the sheriff’s department, said he was “an attendant at the Exxon Tiger Mart Station” and provided a specific address. He then reported that a suspected drunk driver had just left the station. He also described the car and its direction of travel. About three minutes later, an officer stopped the car and, as things progressed, arrested the driver for driving while intoxicated. The court rejected the argument that the caller was anonymous on the basis that he identified himself as a station attendant at a specific gas station. The court went on to state that, at least for purposes of making a limited investigatory stop, the officer was justified in assuming that the caller was being truthful in describing himself because he exposed himself to identification by furnishing officers with a means of determining his identity.
Information from an anonymous caller may be deemed sufficiently reliable to justify a detention if the responding officers are able to corroborate it in some way. There are essentially two types of corroboration that may be available to officers who are responding to such calls: (1) verification and (2) circumstantial evidence of accuracy. Verification works on the theory that a caller who is “right” about some facts is “more probably right about other facts.”
The first principle of verification is that it is virtually meaningless if the verified information was widely known or easily obtained. For example, an anonymous caller reported that a young man who was now standing at a particular bus stop was carrying a concealed handgun. The caller said the man was black and was wearing a plaid shirt. When officers arrived at the bus stop about six minutes later they spotted a person there who matched that description. Although they saw nothing to indicate he was armed or was otherwise involved in criminal activity, they pat searched him and found a gun in his pocket. In ruling the pat search was unlawful, the U.S. Supreme Court pointed out that the caller’s knowledge that a black man wearing a plaid shirt was standing at a certain bus stop did not prove much about his reliability.
For the same reason that verifying easy-to-get information is insignificant, verification of “inside” information is highly relevant. It is information about a suspect or his activities that is not easily obtained or predicted, and the more detailed the information, the more likely courts will uphold the detention as it indicates the caller has special knowledge about the suspect’s activities.
Circumstantial Evidence of Accuracy
Even if officers cannot verify anything the caller said, a detention may nevertheless be justified if, when they arrived at the scene, they saw or heard something that was consistent with the caller’s tip that the suspect was engaged in criminal activity. If that happens, the officers might reasonably conclude that the caller’s tip and the circumstances at the scene combine to justify a detention. Examples of circumstances at the scene that can be cast in a suspicious light from an anonymous tip include: Suspect’s physical condition (officer arrives and sees a suspect injured, bleeding, dirty, out of breath, sweating, torn clothing) Conduct consistent with criminal activity (officer arrives and sees furtive hand movements, group of people flee quickly with heads down, crouching down in a parking lot at 3 a.m. when business was closed).
Miscellaneous Additional Factors
There are more relevant factors than can possibly be addressed in this article. These include the following: Detailed Information (Courts note whether the caller provided detailed information or a generic conclusory statement; Firsthand Knowledge (If the caller’s tip is based on personal observation, as opposed to rumor or other hearsay, it is deemed more reliable); Excited Caller (If the caller is reporting a crime in progress than Courts expect the caller to seem frightened or alarmed); Time Lapse (Courts view an anonymous tip as more reliable if the caller was reporting something that was now occurring or had just occurred); Danger (Courts consider the extent to which the crime reported by the caller presents a threat to life or property, even though the threat does not constitute an exigent circumstance).
In conclusion, a detention based upon a private citizen’s phone call may only be justified if the information provided contains specific indicia of reliability. Hopefully this article illustrates that a good criminal defense practitioner never assumes a detention is valid. Rather, a thorough and complete investigation of all relevant factors is completed before concluding a detention is justified.