State v. Williams

ROBERT M. BELL, Judge,

dissenting.

The Supreme Court, in Alabama v. White, 496 U.S.-, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), addressed the question, “whether [an anonymous telephone] tip, as corroborated by independent police work, exhibited sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop.” In answering that, under the circumstances of that case, it did, the Court resolved conflicts in state and federal court decisions on the issue. 110 S.Ct. at 2415. The Court’s holding was not entirely unexpected, however. See Illinois v. Gates, 462 U.S. 213, 246, 103 S.Ct. 2317, 2336, 76 L.Ed.2d 527 (1983); Adams v. Williams, 407 U.S. 143, 149, 92 S.Ct. 1921, 1925, 32 L.Ed.2d 612 (1972). In fact, a divided panel of this Court, in Millwood v. State, 72 Md.App. 82, 87-94, 527 A.2d 803 (1987), cert. denied, 486 U.S. 1042, 108 S.Ct. 2033, 100 L.Ed.2d 618 (1988), anticipated the White holding. The majority, therefore, is correct, reasonable suspicion for an investigatory stop may rest upon information furnished in *750an anonymous tip. The majority makes much of the point. Unfortunately for the majority, that is not the issue in this case.

Nor is the issue whether the tipster’s information was sufficiently corroborated to have rendered the tip trustworthy enough to have justified an investigatory stop prior to the time when appellant started to return to his car and the female, with whom he met, left the scene. For purposes of this opinion, I am prepared to concede that the citizen tipster, by providing information quite similar, if not identical, to that supplied by the confidential, reliable informant, demonstrated sufficient reliability to have justified the officer's reliance on the citizen's subsequent tip and, thus, his entertaining a reasonable suspicion that the delivery location had been changed. Furthermore, I do not think it necessary (although I think it reasonable, as the court found 1) that the details as to the receivers and deliverers of *751the cocaine, initially provided by both the citizen and the reliable informant in connection with the first location, be strictly applied to the changed location.

In my opinion, the issue presented, one of first impression, involves the life expectancy of reasonable articulable suspicion. Stated more precisely, it is whether specific and sufficient articulable suspicion to conduct an investigatory stop can survive observations which negate, rather than confirm, the bottom line prediction—in this case, that drugs would be delivered to a certain location—of the tipster? Stated differently, where an anonymous tip that a crime will be committed, some of the details of which have been verified, supplies a police officer with reasonable suspicion sufficient to conduct an investigatory stop and the officer chooses not to make such stop until after the point when the crime should have occurred, but the crime does not occur, may the officer thereafter, nevertheless, conduct an investigatory stop? This issue was not addressed in *752White and it has never been addressed by an appellate court in this State.

There is no dispute concerning the facts.2 Officer Jagoe, having received information from the citizen tipster that the delivery location had been changed, proceeded to the new location. Once there, he observed: 1) a female standing in a park area; 2) appellee arrive in a car matching the description of the delivery car; 3) a meeting between appellee and the female; 4) the female leave the area; and 5) appellee start to return to his car. He observed neither the delivery of cocaine, as the tipster had predicted, nor an exchange of any kind, although he had a perfect vantage point from which to do so, had one occurred. Notwithstanding, the officer decided to conduct an investigatory stop of appellee, which was done as appellee was returning to his car and the female was leaving the area.3

*753According to the majority, because the officer, based upon the information supplied by the citizen tipster, had a reasonable suspicion that criminal activity was afoot, the investigatory stop was justified and legally permitted. That it occurred after appellee met with the female, with no transaction of any kind having been observed is, to the majority, of no moment. It says that Jagoe did not have to observe illegal activity, he only had to “verify ‘significant aspects’ of the informant’s prediction in order for the prediction to carry sufficient indicia of reliability to justify an investigatory stop.” The majority relies upon White, 110 S.Ct. at 2417.

The majority is simply wrong. White never addressed this issue. Indeed, White supports the trial judge’s ruling.

In White, the defendant was stopped before she reached the destination predicted by the tipster. Significantly, however, many of the details the tipster provided had been corroborated by the time she was stopped. Of primary significance to the Court’s conclusion that the investigatory stop was justified on the basis of specific articulable facts— “because it demonstrated inside information—a special familiarity with [the defendant’s] affairs,” 110 S.Ct. at 2417,-—was the accuracy with which the tipster had predicted the defendant’s future conduct. There, the tipster predicted that there would be a brown station wagon in front of a particular building at a particular time and that the defendant would, within that time frame, leave the building and enter that particular station wagon and proceed to an *754identified destination. Police observations confirmed most of the tipster’s predictions.4 In addition, because the stop occurred before the final destination was reached, the Court observed that the police confirmed that the route the defendant took was the most direct one to the destination to which the tipster predicted she would go. It was in this context that the Court indicated that “when significant aspects of the caller’s predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop.” 110 S.Ct. at 2417.

The real and, indeed, it may be postulated, the only, purpose of a tip is to provide law enforcement personnel with information concerning criminal activity. More often than not, in addition to a prediction of a criminal violation, the tip contains information pertaining to the where, when, and how of the crime’s commission. When the tipster has no track record, the law enforcement personnel may assess his or her credibility in at least two ways. One, they may corroborate any details supplied by the tipster, to bolster the ultimate prediction. Those details may, themselves, involve predictions of future conduct, although short of that which would constitute the predicted criminal activity. In such situation, verification of a sufficient number of the details demonstrates the tipster’s credibility and, consequently, justifies an investigatory stop. This is the White situation.

The second method of assessing the tipster’s credibility involves testing the accuracy of the ultimate prediction, itself, i.e., determining whether the predicted activity does or does not occur. When this option is used, corroboration of the tip results in catching the criminal red handed in the commission of the predicted, or related, criminal activity. *755On the other hand, failure to corroborate the tip results in the negation of the prediction, i.e., the observation of no criminal conduct. Whether the tip is verified or negated, when this option is used the investigatory process is at an end. Therefore, when the prediction which was the real object of the tip is negated, rather than confirmed, the prior corroboration of details tending to support the accuracy of the now unsubstantiated prediction, no longer supports reasonable articulable suspicion justifying an investigatory stop. This is so both because those details can have no more relevance or effect than the accuracy of the prediction they underlay and because there is no further need for investigation. In other words, if no criminal activity occurs as predicted, verification of details supportive of the prediction loses the effect it had when the prediction remained plausible.

In assessing the reasonableness of a stop made after the ultimate prediction has been negated, a court may not rely solely upon the accurate predictions underlying the tip and disregard all other observations. On the contrary, evaluation of the totality of the circumstances requires that it also consider the accuracy of the ultimate prediction. It is, after all, the accuracy of that prediction by which the tipster’s ultimate worth must ultimately be judged. Therefore, just as corroboration of significant aspects of the tipster’s prediction is critical to the officer’s formation of reasonable suspicion, his failure to corroborate or, more to the point, the negation of, the bottom line prediction must necessarily dissipate any reasonable suspicion which theretofore may have existed.

White does not even suggest, much less hold, that an investigatory stop would have been permitted had, instead of being stopped before she reached the predicted destination, the defendant had been allowed to continue and she had not stopped at that destination. What the Court said on the subject suggests otherwise:

As for the caller’s prediction of respondent’s destination, it is true that the officers stopped her just short of *756Dobey’s Motel and did not know whether she would have pulled in or continued on past it. But given that the four-mile route driven by respondent was the most direct route possible to Dobey’s Motel, ... but nevertheless involved several turns ... we think respondent’s destination was significantly corroborated.

It must be recalled that even the majority in White characterized it as a “close case.” 110 S.Ct. at 2417.

Here, unlike in White, the officer undertook to corroborate not only the facts underlying the tip, but the bottom line prediction itself, i.e. that a cocaine delivery would occur. In short, he chose to go for an arrest; he decided to allow the scenario to play itself out in the hopes that he would observe, first hand, criminal conduct which would justify appellee’s arrest. When that did not occur, the reliability of the tip and the credibility of the tipster were negated, as was the reasonableness of the suspicion which the corroboration of the underlying details engendered.

The majority says that the officer’s failure to observe a drug transaction or, for that matter, an exchange of any kind does not negate the accuracy of the tipster’s information. In justification of that conclusion, it tells us:

From Jagoe’s standpoint, the participants had apparently chosen, at the last moment, to abort the delivery. It was not unreasonable for him to suspect that contraband was at the scene ready to be delivered.

There is absolutely nothing in the record that supports those statements. And, as I have already demonstrated, White certainly does not. Adopting the majority's position and taking it to its logical conclusion would mean that reasonable suspicion, once acquired, can never be dislodged. That simply cannot be. The police cannot pursue an investigation to its conclusion by waiting for a crime to occur and, then, when it does not, still conduct an investigatory stop as if it had. There is, at that point, simply no need for an investigatory stop. But, notwithstanding, and despite its attempt to fit this case into the White rule, this is precisely what the majority’s holding now permits.

*757In conclusion, the majority may be right, the tip may well have given the officer reasonable suspicion to believe that a drug delivery was going to occur. That suspicion, in turn, may well have justified an investigatory stop of the appellee prior to, or during, the meeting with the unknown female. After the investigation was concluded, however—when the female began to leave the area and appellee started toward his car—without a delivery having been made, it was clear that the prediction of criminal activity was inaccurate. Pri- or accurate predictions of details cannot overcome that fact and neither can the reasonable suspicion dependent upon those predictions.

The circuit court correctly granted the motion to suppress. Accordingly, I dissent.

. If the information supplied by both the tipster and the informant as to the first location is deemed to be so interrelated to that supplied by the tipster as to the second location as to be inseparable, it is nevertheless far from clear, as the majority seems to believe, that an investigatory stop was warranted on that basis. Because the only information concerning the second location comes from the citizen, it is the citizen’s credibility, i.e. track record, that must be evaluated. When it is recalled that nothing occurred at the first location, it seems obvious that the citizen has no track record. Furthermore, none of the players mentioned in connection with the first location were present at the second location except, arguably, those in the tannish gold car.

The trial court took this approach in ruling on the motion to suppress. The court said:

So then what you have to look at is you have to look at what ■ happened and how many of the details were right. Were all details right or were only part of the details right. Well, the only details that are right in this case is that it was a tan car and that it was the location. A tan car at this location.

We never knew who the seller was. It is not the same buyers and it is not the same place. I just don’t think you can put the two together. What you really have, you have nothing more than what you would have if an independent citizen calls the police and says there is going to be drug transaction occurring perpetrated by somebody in a tan car at this location. That is really essentially what you have here and the police go and observe that.

*751Now, they know that it is not the same buyers and there is nobody else around. It is 3:00 in the morning. There is one person there who can buy drugs and they know no drug transaction took place. That is really a key factor here. There is nobody else around to buy drugs so if there was going to be a drug transaction why wasn’t it? All they know is that this man—there was no flight as there was in Green [v. State, 77 Md.App. 477, 551 A.2d 127 (1989) ] and of course the Court in Green said that that flight wasn’t enough without something else. But there is no flight here. He runs out of his car and he runs back.

Based on the Green case, based on what I find the facts to be, I can’t find that the officer had probable cause or even a reasonable suspicion to stop this man. The only thing he did was he was a person who drove in a tan car. That is all we know. Given all that, I’m going to suppress the evidence that was seized.

The lower court’s first level fact-finding is entitled to deference. See McAvoy v. State, 314 Md. 509, 514-15, 551 A.2d 875 (1989); In Re: Anthony F., 293 Md. 146, 152, 442 A.2d 975 (1982); Parker v. State, 66 Md.App. 1, 10-11, 502 A.2d 510, cert. denied, 306 Md. 70, 507 A.2d 184 (1986). The findings are not clearly erroneous. Moreover, I believe that making an independent constitutional appraisal of the record to determine what to make of those facts leads inescapably to the conclusion that the trial court correctly suppressed the evidence. McAvoy v. State, 314 Md. at 515, 551 A.2d 875.

. With few exceptions, I do not quarrel with the facts as set out by the majority. I think it significant, however, that when appellee left the park area, the female, with whom he met, also left. The majority studiously avoids that "fact”. Moreover, the observations in footnote 4 of the majority opinion are, for purposes of this case, irrelevant. The connection between the delivery car and the information concerning "Calvin’s” involvement in drug deliveries, in general, and this delivery, in particular, did not become apparent until after appellant’s arrest.

The majority uses quite a lot of space to rehearse the facts, presumably to demonstrate that the record evidence is inadequate to support a finding that appellee was seized before he discarded the cocaine. We all know, and agree, see note 3 infra, that the State conceded the point below. Therefore, that the majority dwells on the point is perplexing. Perhaps, reminiscent of a ploy often utilized by experienced trial counsel, the majority has chosen to argue the facts, the law not being as clearly on its side as it would like. Using this approach, it hopes that the clearer it can establish that appellee did, in fact, possess cocaine, the easier it will be to convince the reader that its position is correct.

. At oral argument, the question was raised whether appellee was in his car, or was returning to his car, when he was stopped. We were told that appellee was stopped as he was driving out of the parking lot. That is consistent with the representation in the State’s brief. The transcript seems to contradict that representation, however. A reading of Jagoe's testimony suggests that appellant was stopped as he returned to, but before he reached, his car. Nevertheless, in argu*753ment before the lower court, the State conceded that appellant was stopped and that concession was received and considered by the court. Under the circumstances, the majority acknowledges that it is "constrained to treat the cocaine as having been seized rather than abandoned.”

The majority notes in footnote 7 that the State’s concession "does not appear to have been warranted by the record presented to us.” This is, of course, true and I acknowledged as much above. It is not possible to say more, however, because the concession avoided the need for further clarification of the record. It is quite possible, in other words, that the concession is justified.

. The tipster said that the defendant “would be in possession of about an ounce of cocaine inside a brown attaché case." 110 S.Ct. at 2414. The defendant did not have an attaché case when she left the building and entered the car.