The
NJ Supreme Court in State v. Gallato 178 N.J. 205 (2003)
held:
“The
‘[r]easonable suspicion necessary to justify an investigatory stop requires
‘‘some minimal level of objective justification for making the stop.’’” State
v. Nishina, 175 N.J. 502, 511 (2003) (quoting United
States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed.2d 1, 10 (1989)).
The
test is “highly fact sensitive and, therefore, not readily, or even usefully,
reduced to a neat set of legal rules.” Ibid. (internal citation and
quotation marks omitted). For analytical purposes in this case, a stop founded
on a suspected motor vehicle violation essentially is governed by the same case
law used to evaluate a stop based on suspected criminal or quasi-criminal
activity.
An
informant’s tip is a factor to be considered when evaluating whether an
investigatory stop is justified. In that regard, the NJ Courts recently
summarized the relevant principles followed by the United States Supreme Court
and by this Court:
An
anonymous tip, standing alone, is rarely sufficient to establish a reasonable
articulable suspicion of criminal activity. Alabama v. White, 496 U.S. 325, 329, 110 S. Ct. 2412, 2415, 110 L. Ed.2d 301, 308 (1990). The United
States Supreme Court has warned that “the veracity of persons supplying
anonymous tips is ‘by hypothesis largely unknown, and unknowable.’” Ibid.
(quoting Illinois v. Gates, 462 U.S. 213, 237, 103 S. Ct. 2317, 2332, 76 L. Ed.2d 527, 548 (1983)). That Court
also has instructed that an informant’s “veracity,” “reliability,” and “basis
of knowledge” are “relevant in determining the value of his report.” Id.
at 328, 110 S. Ct. at 2415, 110 L. Ed. 2d at 308 (citation and
quotation marks omitted). To justify action based on an anonymous tip, the
police in the typical case must verify that the tip is reliable by some
independent corroborative effort. Id. at 329-30, 110 S. Ct. at
2415-16, 110 L. Ed. 2d at 309.
Generally,
“if a tip has a relatively low degree of reliability, more information will be
required to establish the requisite quantum of suspicion than would be required
if the tip were more reliable.” Id. at 330, 110 S. Ct. at 2416,
110 L. Ed. 2d at 309. Stated differently, courts have found no
constitutional violation when there has been “independent corroboration by the
police of significant aspects of the informer’s predictions[.]” Id. at
332, 110 S. Ct. at 2417, 110 L. Ed. 2d at 310. The analysis in
any given case turns ultimately on the totality of the circumstances. Id.
at 330, 110 S. Ct. at 2416, 110 L. Ed. 2d at 309.
We reaffirm the enhanced
protections that we have accorded citizens under the New Jersey Constitution,
particularly in respect of motor vehicles. See, e.g., State v. Cooke,
163 N.J. 657, 670 (2000) (declining to apply reduced federal standard
when evaluating automobile exception to warrant requirement); State v. Carty,
170 N.J. 632, 647 (establishing State standard for obtaining consent to
search automobile, beyond valid motor vehicle stop), modified, 174
N.J. 351 (2002). Without diminishing
those protections, the fact remains that in the hierarchy of interests,
“[t]here is a lesser expectation of privacy in one’s automobile, and in one’s
office, than in one’s home.” State v. Johnson, 168 N.J. 608, 625
(2001) (internal citations omitted).
_From a constitutional standpoint, that lesser privacy interest and the
nature of the intrusion (an investigatory stop, not a full-blown search,
prompted by allegations of erratic driving) are relevant in assessing the
reasonableness of the government’s conduct.
If those variables were absent or existed under different conditions,
our analysis might differ.
We do not, however, suggest
that any information imparted by a 9-1-1 caller will suffice. The
information must convey an unmistakable sense that the caller has witnessed an
ongoing offense that implicates a risk of imminent death or serious injury to a
particular person such as a vehicle’s driver or to the public at large. The
caller also must place the call close in time to his first-hand observations.
When a caller bears witness to such an offense and quickly reports it by using
the 9-1-1 system, those factors contribute to his reliability in a manner that
relieves the police of the verification requirements normally associated with
an anonymous tip.
Nor do we suggest that no corroboration or predictive
information is necessary in this setting. We adopt the formulation of other
courts that the 9-1-1 caller must provide a sufficient quantity of information,
such as an adequate description of the vehicle, its location and bearing, or
“similar innocent details, so that the officer, and the court, may be certain
that the vehicle stopped is the same as the one identified by the caller.” Wheat,
supra, 278 F.3d at 731.
We are satisfied that such details,
when verified or observed by the officer conducting the stop and viewed within
the context of the factors described above, provide an adequate basis under the
Fourth Amendment and Article I, paragraph 7
to justify the government’s conduct.
State v. Gallato 170 N.J. 205 (2003)
To justify the stop, the
officers required "specific and articulable facts which, taken together
with rational inferences from those facts," give rise to a reasonable
suspicion of criminal or quasi-criminal activity. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed.2d 889, 906 (1968). The reasonable
suspicion required to justify an investigatory stop is lower than the probable
cause required for an arrest. State v. Stovall, 170 N.J. 346, 356
(2002).
Recently, in State v.
Rodriguez, 172 N.J. 117 (2002), the Supreme Court
addressed whether the information provided by an anonymous tip, standing alone,
may form a reasonable articulable suspicion of criminal or quasi-criminal
activity. The Court held that typically some verification or corroboration of
the anonymous tip must be obtained. Justice Veniero wrote: Generally,
"if a tip has a relatively low degree of reliability, more information
will be required to establish the requisite quantum of suspicion than would be
required if the tip were more reliable." [Alabama v. White, 496 U.S. 325,] 330, 110 S. Ct.
[2412,] 2416, 110 L. Ed 2d [301,] 309 [1990]. Stated
differently, courts have found no constitutional violation when there has been
"independent corroboration by the police of significant aspects of the
informer's predictions[.]" Id. at 332, 110 S. Ct. at 2417,
110 L. Ed. 2d at 310. The analysis in any given case turns ultimately on
the totality of the circumstances. Id. at 330, 110 S. Ct. at
2416, 110 L. Ed. 2d at
309.
[Id. at 127-28.]
In
Rodriguez, the Court found that the police decision to escort defendant
to the patrol office at a bus terminal based on nothing more than that he fit
the description provided by an anonymous caller was not justified by a
reasonable articulable suspicion of criminality. Id. at 131.
Here,
defendant was stopped for no other reason than he was driving based on a call.
Neither officer observed any action by defendant which would confirm that he
was operating the vehicle erratically.
The
State urges that the tip received in this case is particularly reliable because
it was given by a citizen rather than a confidential informant who might be
engaged in criminal activity.
In
State v. Lakomy, 126 N.J. Super. 430 (App. Div. 1974), a named
citizen informer called the police to report that an armed person was on the
premises of a business. The informer met the police, led the police to the
washroom and identified defendant as the armed man. Id. at 432. The
involvement by the citizen informer provided a measure of reliability to the
uncorroborated tip. Id. at 436. This circumstance, coupled with the
potential for violence due to the presence of a gun, justified the stop and
frisk of defendant. Ibid.
Similarly, in Stovall,
supra, 170 N.J. 346, the Court found that
information from an identified airline ticket agent conveyed to an experienced
narcotics investigator provided reasonable articulable suspicion for the
investigator to conduct an investigatory stop of an arriving passenger.
Notably, in Stovall, the ticket agent raised concerns about the validity
of the identification documents used by two passengers and the investigator at
the airport confirmed that the identification was fraudulent. Id. at
366. Furthermore, other facts were gathered and evaluated by the investigator
which, considered in their entirety, provided ample reasonable suspicion of
criminal activity and warranted an investigatory stop. Id. at 369.
In Lakomy, the source of the tip was a
corporate executive who not only provided information to the police but also
led the police to the suspect. Lakomy, supra, 126 N.J. Super.
at 436. In Stovall, the airline ticket agent was identified and provided
specific information to raise concerns about the use of fraudulent
identification. Stovall, supra, 170 N.J. at 366-67.
Here,
however, the informant is not a reliable informant. Thus, we cannot cloak the
anonymous caller with any enhanced level of reliability or trustworthiness.
Moreover, unlike Stovall, the police officers in this case made no
observations of defendant's behavior as a driver. In short, there is nothing in
this record from which the officers could determine the veracity and the basis
of knowledge of the person supplying the tip and ultimately the tip itself. For
these reasons, the officers did not have a reasonable articulable suspicion of
quasi-criminal activity to justify the stop of defendant.
