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Reasonable Suspicion – “Terry” Stop – Basis – Anonymous but In-Person Report of Drug Dealing and Loitering

State v. Tamara C. Limon, 2008 WI App 77, PFR filed 5/7/08
For Limon: Wm. Tyroler, SPD, Milwaukee Appellate; Lisa A. Packard, Law Student

Issue/Holding1:

¶17      The investigative stop stemmed from an anonymous citizen’s tip of drug use and loitering on the porch of the residence. … Where an anonymous tipster is involved, police are required to conduct an independent investigation to corroborate the information provided. …

¶18      Here, the tipster presented himself to the officer, thus allowing the officer an opportunity to personally assess the tipster, which led him to conclude that the tipster “seemed very credible. He wasn’t intoxicated. He wasn’t high. He was very articulate in what he was telling me, and I had no reason to doubt what he was telling me was true.” Moreover, the tipster jeopardized his anonymity and risked arrest if the tip proved to be false by approaching the officer in person, as opposed to making an anonymous telephone call, and by further telling the officer that he was frequently in the area where the residence was located. See State v. Rutzinski, 2001 WI 22, ¶32 & n.8, 241 Wis. 2d 729, 623 N.W.2d 516. “Risking one’s identification intimates that, more likely than not, the informant is a genuinely concerned citizen as opposed to a fallacious prankster.”Williams, 241 Wis. 2d 631, ¶35; see also United States v. Heard, 367 F.3d 1275, 1279 (11th Cir. 2004) (face-to-face anonymous tip presumed to be inherently more reliable than anonymous telephone tip).

¶19      Support for an anonymous tip can also be found via “police corroboration of innocent, although significant, details of the tip.” Williams, 241 Wis. 2d 631, ¶39. The officers corroborated that neither Limon nor the two men resided at the residence. If any of the three had permission to be at the residence, it is reasonable to infer that such information would have been offered to the police officers. Yet, there is no indication in the record that any explanation was provided.

Someone approached the police and complained about drug-dealing on the porch of an unoccupied lower flat. Several days later a squad on patrol espied Limon and two others on the porch and acted on the prior information. One thing led to another and a small amount of drugs were seized from Limon’s purse in a “frisk.” But before getting to that, the threshold question is whether the police had an adequate basis to seize her. Although the court indicates that “(t)he issue of her seizure is not relevant,” ¶2  n. 3, the court seems to mean that it prefers the nomenclature, “investigatory stop.” What, then, of her “stop”? That issue turns in part on reliability of the informant, who gave an in-person report but didn’t give his name and to that extent must be deemed unknown. The court implicitly recognizes that informant reliability is on a sliding scale, not a binary (reliable/unreliable) one. In other words, “the totality of the circumstances approach” doesn’t support “neat categories of known or anonymous” informants, United States v. Elmore, 482 F.3d 172, 181 (2nd Cir. 2007). It follows that “when the informant is only partially known (i.e., her identity and reliability are not verified, but neither is she completely anonymous), a lesser degree of corroboration may be sufficient to establish reasonable suspicion,” id. Although the court here neither cites Elmore nor labels the informant partially anonymous, that is how it treats him as a pragmatic matter in the sense that it details the corroboration that led to the stop of Limon. (¶¶18, et seq.). Consider, however, Durden v. State, 2013 Ga. App. LEXIS 154 (3/8/13) (“face-to-face communication” distinguishable from anonymous phone tip,, such that former deemed “a concerned citizen whose reliability could be presumed”).

Issue/Holding2:

¶20      Upon telling one of the men to stand up and subsequently noting the presence of a fresh-looking marijuana blunt, the officers had reason to suspect a violation of the criminal statutes prohibiting possession of marijuana, as well as Milwaukee’s ordinance specifically pertaining to drug loitering, Milwaukee, Wis., Ordinance § 106-35.6.2. …

¶21      Limon argues that, pursuant to Ordinance § 106-35.6.2, the officer was required to ask the three individuals to explain their presence. According to her, the officer should have asked what the three were doing on the porch because it may have been that they had just arrived and were looking for the owner of the residence, or perhaps, they went to the wrong address. We do not agree with Limon that the officer was required to make this inquiry. Rather, when the officer asked Limon and the two men whether anyone resided at the residence, he adequately provided the three individuals with “an opportunity to explain [their] presence and conduct,” in accordance the ordinance. Id. As previously noted, if an innocent explanation had been available to the three, it is reasonable to infer that it would have been offered at the time.

Reasonable suspicion, then, for both possession and loitering. Take the latter first. The ordinance requires “opportunity to explain,” which the court finds satisfied by the officer asking the three if they lived at the house. Not quite the same as asking them to explain their purpose, is it? In effect, the court seems to assume (whether acknowledging it or not) that the “suspects” must volunteer their innocent purpose. The cops asked a specific question and got a responsive answer, but the question was too narrowly framed to address an “opportunity to explain.” Or so it might have been argued before this holding. The net effect is that the ordinance is now stretched pretty far in relation to compliance with this requirement. Keep in mind, though, that the court does not say how much time elapsed between asking the question and taking intrusive action. Whether the record shows the timing is beside the point. The court assumes (if implicitly) that sufficient time elapsed, in whatever increment. Put it like this: if the cop “stopped” the person simultaneous to the answer, then how much of an “opportunity” was really afforded? Same if a mere second elapsed. Point is, don’t treat this as laying down black-letter law applicable in all settings. Like anything else, it’s fact-contingent. The holding surely reduces the amount of wiggle-room you have but doesn’t abrogate the need to keep the facts uppermost in mind. Just the contrary.

When all is said and done, there still remains the question of exactly what Limon did that amounts to “loitering.” That term, after all, requires at a bare minimum, a type of behavior, more specifically: lingering aimlessly. Is that what Limon did? The court doesn’t say—but that is because, quite bluntly, the court can’t know, because the cops approached the trio at first sight and so the police themselves had no possible way of knowing whether the suspects were “loitering.” Can the court do away with this behavioral requirement by the simple expedient of ignoring it? Perhaps it means to, but that will only create due process tensions with respect to notice of what sort of behavior is off-limits.

What about possession of the blunt? The problem here is that it is a single blunt, of unknown age (nicely described by the officer as “fresh”; which is probably what he would have said about any non-carbonized substance). More lessons: next time the cop testifies that something is “fresh,” ask him about his training and experience in the area, and while he’s at it to distinguish hours’- from days’-old freshness, etc. The answers may hurt the cause, but leaving it at “fresh” dooms you anyway. In any event, the court started out saying there was reasonable suspicion for possession of marijuana, a statement that very clearly ascribes possession to Limon. But there is a good deal less than meets the eye:

¶23      Although she recognizes that “[t]he blunt, of course, was contraband—itself evidence of criminal activity,” Limon argues that the police lacked reasonable suspicion to attribute possession of the blunt to her. … The State, however, was not required to prove that Limon had possession of the marijuana in order to establish that the officers reasonably suspected that she was committing, was about to commit, or had committed a crime. See Wis. Stat. § 968.24. All that was necessary to justify the officers’ investigative stop was a “‘reasonable inference of wrongful conduct.’” State v. Griffin, 183 Wis. 2d 327, 333, 515 N.W.2d 535 (Ct. App. 1994) (citation omitted). …

So, in the end, the cops didn’t have a basis to assign possession to her? And if not, then just what was her “wrongful conduct”? The court simply doesn’t say. This is a result in search of a rationale.

 

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