State v. Williams

WILLIAM A. BABLITCH, J.

¶ 86. (dissenting). The majority opinion allows any report called in to 911 to trigger a police stop and frisk if the anonymous caller describes a vehicle, tells how many people are in it, where it is parked, and then alleges the unnamed occupants are selling drugs. The potential for mischief-making directed to totally innocent people is patent. Neither the quantity nor the quality of the facts relied upon by the police create a reasonable suspicion to conduct an investigatory stop under the Fourth Amendment in this case. Accordingly, I respectfully dissent.

¶ 87. The facts are few and can be listed briefly. On November 2, 1995, an anonymous 911-caller alleged that drugs were being sold from a blue and burgundy vehicle in the driveway at the side of an apartment building at a Milwaukee address. Officers were quickly dispatched to the address. The officers corroborated the three lone facts supplied by the 911-caller: 1) there was a vehicle matching the color and general model in caller's description, 2) at the location provided by the caller, and 3) two people were in the vehicle, comporting with the caller's'use of the plural "they're selling drugs." The officers contemporaneously observed that the vehicle did not have a front license *197plate, and the defendant's right hand was behind the passenger seat. Guns drawn, the two officers approached the vehicle to conduct an investigatory stop.

¶ 88. With these facts in mind, our task is to objectively assess the reasonableness of the decision by the officers to conduct an investigatory or Terry1 stop. A professional law enforcement officer may find reasonable suspicion from objective facts that appear ordinary to the untrained. United States v. Cortez, 449 U.S. 411, 419 (1981). But I conclude the facts alone are in too short of supply to form a legitimate basis for an investigatory stop in this case. The record shows only bits and fragments of information.

¶ 89. The first fragment of information is supplied by an anonymous informant to a 911-operator. Certain anonymous tips describing only innocent details of identification can be factored into a reasonable suspicion determination if it can be found that the tip is reliable. State v. Richardson, 156 Wis. 2d 128, 142-43, 456 N.W.2d 830 (1990); Alabama v. White, 496 U.S. 325 (1990). As explained in Richardson, "the greater the amount, specificity and uniqueness of the detail contained in an anonymous tip, the more likely it is that the informant has an adequate basis of knowledge." Richardson, 156 Wis. 2d at 142. The anonymous callers in Richardson and White, however, provided far greater detail than the caller in this case. In White, the caller told police the name of the suspect, a specific address where she could be found at a specific time, the details of her vehicle down to its broken taillight and a detailed description of her future itinerary. Even with *198these details White was characterized as a "close case" by the Supreme Court. White, 496 U.S. at 332.

¶ 90. In comparison to White and Richardson, the tipster here provided little. The anonymous caller did not provide a name or physical description of the occupants. The caller did not state any details with respect to the purchase of drugs. The caller did not state how long the suspects had been parked in the lot. The caller did not allege that the defendant was armed. The caller did not allege any facts that indicated that violence was in the offing. The anonymous caller did not provide any information other than a general description of a vehicle, its location, and that it was occupied by one or more individuals. I agree with Chief Judge Posner, who said:

to deem the tip adequately corroborated by circumstances that, as in this case, show nothing more than that the tipster had seen the person he was reporting would be mere bootstrapping, for the tipster could easily be a prankster who seeing a perfectly innocent-looking person in the street calls up the police and describes the location and appearance of the person. It is different if the details that are given by the tipster and that the police corroborate before making the stop are details that only, someone personally acquainted with the suspect would know. There is still a chance that the tip is a lie — the tipster may be a personal enemy of the person he is reporting — but the probability is sufficiently low to permit the police to stop the person reported on the basis of the tip.

United States v. DeBerry, 76 F.3d 884, 886 (7th Cir. 1996) (internal citations omitted).

¶ 91. Corroboration of the spare details provided by the anonymous caller in the instant case is mere *199bootstrapping and adds no weight to the "reasonable suspicion" calculation. This type of tip may be a useful lead for police surveillance and further investigation but to justify a "stop and frisk," additional facts must be established. White, 496 U.S. at 329 (for Fourth Amendment purposes, tips " 'completely lacking in indicia of reliability. . .require further investigation before a forcible stop of a suspect would be authorized ...'") (citation omitted). The police investigation of the tip must provide additional information to justify moving from being merely suspicious of the vehicle and its occupants to having reasonable suspicion justifying a Terry stop.

¶ 92. Turning then to the actions by the officers at the location, the officers did indeed corroborate the descriptive observations provided by the 911-caller. The officers saw more than one person sitting in the described vehicle at the described location. The officers could not know whether these were in fact the same people the caller claimed to have seen engaging in criminal activity because the caller did not provide any physical description whatsoever of the alleged drug dealers.

¶ 93. The majority opinion resolves this problem by stating that the officers arrived promptly at the scene while the information from the caller was still fresh, decreasing the likelihood of detaining the wrong suspect. However the anonymous 911-tipster did not provide any time frame of when the illegal activity was observed, or any descriptive facts which would show whether the caller actually saw illegal drugs being sold, other activity which a trained law enforcement officer would associate with illegal activity, or merely suspected criminal activity.

*200¶ 94. Next, the officers observed that the driver, Williams, had his right hand behind the passenger seat. The officers did not see Williams make any sort of a "furtive" gesture. The officers observed no sudden, guilty or threatening moves. Additionally, the officers did not see any weapon and the anonymous caller did not allege any weapon to be present or in use. In total, the record presents no facts from which I can infer circumstances placing the public in immediate and substantial risk of danger and requiring swift action by the officers.

¶ 95. The facts do not suggest that time was of the essence. Nevertheless, the officers did not conduct any surveillance to see whether there was any drug activity going on in connection with the vehicle or its occupants; they did not observe Williams or the other passenger do anything that appeared to be illegal; nor did they observe anything else that endangered public safety or the safety of the officers. Thus, the observations by the officers at the scene did not add any facts to "establish the requisite quantum of suspicion than would be required if the tip were more reliable." White, 496 U.S. at 330.

¶ 96. A greater quantity of even innocent facts could have supported reasonable suspicion. See United States v. Sokolow, 490 U.S. 1 (1989). In Sokolow, the Supreme Court found reasonable suspicion when federal agents knew the defendant paid over $2000 cash for two airline tickets from a roll of $20 bills containing nearly twice that amount of cash; traveled under a name that did not match the name under which his telephone number was listed; had traveled on a round-trip flight from Honolulu to Miami, a source city for illicit drugs; stayed in Miami for only 48 hours, even though a round-trip ticket from Honolulu to Miami *201takes 20 hours; appeared nervous; and checked none of his luggage. Sokolow, 490 U.S. at 3-4, 6. The court held that the total impact of this quantity of facts supported the agent's conclusion that criminal action was afoot and an investigatory stop was warranted. In the present case the quantity of facts in the record simply falls far short of the required mark.

¶ 97. Moreover, while an allegation of drug dealing is a most serious matter, the majority opinion links the allegation to violent criminal action by observing that where drugs are involved, guns are probably involved as well. See Richards v. Wisconsin, 520 U.S. 385, 393 (1997) ("[W]hile drug investigation frequently does pose special risks to officer safety and the preservation of evidence, not every drug investigation will pose these risks to a substantial degree.") The officers in this case, however, did not observe anything resembling drug dealing nor did they observe any weapons, nor did the tipster report weapons or gunfire. It was daytime when the officers responded to the call.

¶ 98. Finally, I agree with the court of appeals' conclusion that although the police testified that the Williams vehicle had no front license plate, neither party pursued the issue at the evidentiary hearing and therefore the record on this issue is insufficient to serve as an alternative basis on which the circuit court may be affirmed. State v. Williams, 214 Wis. 2d 412, 414 n.3, 570 N.W.2d 892 (Ct. App. 1997).

¶ 99. These facts are insufficient to support a stop and frisk. I respectfully dissent.

¶ 100. I am authorized to state that CHIEF JUSTICE SHIRLEY S. ABRAHAMSON and JUSTICE ANN WALSH BRADLEY join this dissent.

Terry v. Ohio, 392 U.S. 1 (1968).