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No. 98-1993: Florida v. J.L.

No. 98-1993

In the Supreme Court of the United States

STATE OF FLORIDA

v.

J.L.

ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF FLORIDA

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER



SETH P. WAXMAN
Solicitor General
Counsel of Record
JAMES K. ROBINSON
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
IRVING L. GORNSTEIN
Assistant to the Solicitor
General
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217



QUESTION PRESENTED

Whether police officers may possess reasonable suspicion for a stop andfrisk when they receive an anonymous tip that a person of a particular description,at a particular location, is illegally carrying a concealed firearm, andthe officers promptly verify the observable details provided by the tip.



In the Supreme Court of the United States

No. 98-1993
STATE OF FLORIDA

v.

J.L.

ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF FLORIDA

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER


INTEREST OF THE UNITED STATES

This case presents a recurring question of whether police officers may respondto an anonymous tip that a particular person is illegally carrying a concealedfirearm by verifying observable details of the tip, and then conductingan investigative stop and frisk. Because that question arises in prosecutionsconducted by the United States, the United States has a substantial interestin its resolution.

STATEMENT

1. Florida police received an anonymous tip that several young black maleswere standing at a bus stop in front of a pawn shop near 183d Street andNorthwest 24th Avenue, Miami, Florida, and that one of them was carryinga gun. The anonymous caller gave a description of each person, and saidthat the person carrying the gun had a plaid-looking shirt. Officer CarmenAnderson and another officer were dispatched to the location specified inthe tip and arrived there within approximately six minutes. When OfficerAnderson arrived, she saw three young black males standing at the bus stopin front of the pawn shop; one of the three was wearing a plaid shirt. Andersonimmediately approached the person wearing the plaid shirt (respondent) andasked him to put his hands up on the bus stop. As she began to frisk respondent,Officer Anderson noticed the butt of a gun protruding from his left pocket.Anderson then removed the gun from respondent's pocket. Pet. App. A39-A43.While officer Anderson frisked respondent, the other officer frisked thetwo persons who were standing with respondent at the bus stop. Id. at A45.

Respondent, who was then 16 years old, was charged in juvenile court withcarrying a concealed firearm in violation of Fla. Stat. Ann. § 790.01(1995), and possession of a firearm by a minor, in violation of Fla. Stat.Ann. § 790.22(3) (1995). Respondent moved to suppress the gun on theground that it was obtained in violation of the Fourth Amendment to theConstitution. The district court granted the motion to suppress. Pet. App.A35.

2 Third District Court of Appeal reversed. Pet. App. A31-A34. The courtheld that when police officers verified all the details of the anonymoustip other than the existence of the gun, they had a reasonable suspicionthat respondent was committing the crime of carrying a concealed weapon,and therefore had authority to stop and frisk him. Id. at A33. The courtexplained that "where a confirmed tip concerns an individual with agun, the officer is faced with the choice of stopping and searching theindividual, or waiting until the individual brandishes or uses the gun andthe latter choice is unacceptable, thus leaving the stop and frisk as theonly reasonable choice." Ibid.

3. The Supreme Court of Florida quashed the decision of the Third DistrictCourt of Appeal. Pet. App. A1-A28. The court held that an anonymous tipconcerning presently occurring criminal activity cannot give rise to reasonablesuspicion when police can verify only the innocent details of the tip. Instead,the court held that an anonymous tip could serve as the basis for reasonablesuspicion in three narrowly-defined circumstances: (1) when the tip relatessuspicious behavior which the police verify as suspicious upon arrival;(2) when the tip contains predictions of future events that the police subsequentlyverify; and (3) when the tip is coupled with independent police work thatuncovers additional suspicious circumstances. Id. at A5-A6. Applying thatanalysis, the court held that, because the tip in this case concerned presentlyoccurring criminal activity and police verified only the innocent detailsof the tip, the police lacked reasonable suspicion to stop and frisk respondent.Id. at A7-A9.

The court acknowledged that other jurisdictions had held that police verificationof the innocent details of an anonymous tip can create reasonable suspicionwhen the tip concerns a concealed firearm. Pet. App. A9-A10. The court rejectedthe reasoning in those cases, stating that "we determine that thereis no firearm or weapons exception to the Fourth Amendment." Id. atA11.

Two judges dissented. Pet. App. A15-A28. The dissent observed that "[t]hepossession without authority of a concealed firearm by any individual ina public place or at a public event is a prescription for disaster, butthe possession of a concealed firearm by a child is an especially dangerousand explosive situation." Id. at A15. Noting that "[t]he unfortunatereality of today's society is that dangerous persons of all ages stand armedand ready to shoot law enforcement officers and citizens," id. at A16,the dissenting judges concluded that, "when the police receive an anonymoustip alleging that a person is carrying an illegally concealed weapon andonly the innocent details of the tip are verifiable, the police may conductan investigatory stop and frisk of the suspect," id. at A18.

SUMMARY OF ARGUMENT

The Fourth Amendment permits a police officer to conduct a brief investigatorystop of an individual based on reasonable suspicion that criminal activityis afoot, and, when the officer reasonably believes that the suspect maybe armed and dangerous, the officer may frisk him for weapons. An officer'sreasonable suspicion that an individual may be illegally carrying a concealedfirearm justifies both a stop and a frisk. And that reasonable suspicionmay be based on an anonymous tip that an individual of a particular descriptionis currently in a particular place and is illegally carrying a concealedweapon, when the officer corroborates the observable facts in the tip andhas no reason to find the tip unreliable.

In Alabama v. White, 496 U.S. 325 (1990), this Court made clear that ananonymous tip may furnish the requisite reasonable suspicion for an investigativestop. In that case, the reasonableness of relying on the tip was strengthenedby the tip's accurate prediction of the suspect's movements. But the Courtdid not establish a bright-line rule in White that an anonymous tip mustcontain predictive details that the police confirm in order to establishreasonable suspicion. Nor would any such rule accord with this Court's consistentrecognition that reasonable suspicion turns on the "totality of thecircumstances-the whole picture." United States v. Cortez, 449 U.S.411, 417 (1981).

The totality of the circumstances necessarily includes not only the qualityof the information in an anonymous tip and its reliability (as revealedthrough corroboration), but also the nature and immediacy of the threatflowing from the illegal activity described in the tip. Officers who receivean anonymous tip that an individual of a particular description is carryinga bomb outside of a courthouse, or is concealing an automatic pistol outsidea school, cannot ignore the potential threat of violence when, upon arrivingat the location, they find the described individual at the scene. The sameis true when police receive an anonymous tip that a described individualis illegally carrying a concealed weapon in a public place. An anonymoustip that an individual has a gun will not always provide the reasonablesuspicion to justify a stop and frisk; the question turns on the particularfacts, assessed in a common-sense manner. But the potential for immediateand lethal use of the gun is a highly relevant factor in determining whetherthe police have reasonable suspicion for a stop and frisk.

All of the federal courts of appeals and the majority of the state courtsthat have considered the issue have come to that conclusion. In determiningthat a stop and frisk may be conducted in certain cases when police receivean anonymous tip that a described individual is carrying a weapon, thosecourts have emphasized the absence of any alternative course for the policeto take that is consistent with protection of the officer's and the public'ssafety. For an officer to approach the individual and seek to engage himin a consensual conversation runs the risk that the officer may be shot.And for the officer to observe and follow the individual as he moves aboutthe streets may make it impossible for the officer to intervene before theindividual uses the weapon in an act of violence, which could be fatal forinnocent members of the public. A stop and frisk in that situation may strikethe appropriate balance between the individual's privacy interests and theprotection of public safety.

The state supreme court erred in rejecting all reliance on an anonymoustip that an individual has a gun where the officer cannot point to observablesuspicious behavior or accurate predictions of future behavior. The courtbelieved that to hold otherwise would create a "firearms exception"to reasonable suspicion analysis, but that is incorrect. The totality ofthe circumstances test accommodates consideration of the possible presenceof an illegally concealed weapon in assessing what action officers may takein response to an anonymous tip. Nor does the approach we advocate permitofficers to act on anonymous tips regardless of indicia of unreliability.Some tips may warrant no response, or only further investigation. But anonymoustips are often a valuable source of information in law enforcement. A categoricalrule that deprives officers of the use of anonymous tips in forming a reasonablesuspicion, absent the inclusion of accurate predictions of future behavior,places an unjustified restraint on the ability of the police to preventviolent criminal activity.

ARGUMENT

AN OFFICER CAN HAVE REASONABLE SUSPICION TO CONDUCT A STOP AND FRISK WHENTHE OFFICER CONFIRMS THE INNOCENT DETAILS OF AN ANONYMOUS TIP THAT A PERSONIS ILLEGALLY CARRYING A CONCEALED FIREARM

A. Reasonable Suspicion That A Person Is Illegally Carrying A ConcealedFirearm Justifies A Stop And Frisk

1. In Terry v. Ohio, 392 U.S. 1, 30 (1968), the Court held that police officersmay stop and briefly detain a person for questioning when they have reasonto conclude that "criminal activity may be afoot." The Court hassubsequently made clear that the standard for a Terry stop is one of "reasonablesuspicion supported by articulable facts." United States v. Sokolow,490 U.S. 1, 7 (1989). That standard does not permit an investigative stopbased on an officer's subjective hunch. Ibid. The level of suspicion fora Terry stop, however, "is considerably less than proof of wrongdoingby a preponderance of the evidence," and is "obviously less demandingthan that for probable cause." Ibid. All that is required is "someminimal level of objective justification to validate the detention or seizure."INS v. Delgado, 466 U.S. 210, 217 (1984). In evaluating the validity ofa stop, a court must consider "the totality of circumstances-the wholepicture." Cortez, 449 U.S. at 417.

The principle that an officer may conduct an investigative stop based onreasonable suspicion of wrongdoing serves government interests of overwhelmingimportance. As explained in Adams v. Williams, 407 U.S. 143, 145-146 (1972):

The Fourth Amendment does not require a policeman who lacks the preciselevel of information necessary for probable cause to arrest to simply shrughis shoulders and allow a crime to occur or a criminal to escape. On thecontrary, Terry recognizes that it may be the essence of good police workto adopt an intermediate response. A brief stop of a suspicious individual,in order to determine his identity or to maintain the status quo momentarilywhile obtaining more information, may be most reasonable in light of thefacts known to the officer at the time.

2. In Terry, the Court also recognized that an officer who makes an investigativestop potentially places himself at great risk. Noting that "every yearin this country many law enforcement officers are killed in the line ofduty and thousands more are wounded," the Court concluded that policeofficers who make investigative stops should not be required "to takeunnecessary risks in the performance of their duties." 392 U.S. at23.

The Court therefore held that, when an officer has reason to believe thata suspect "may be armed and presently dangerous," the officer"is entitled for the protection of himself and others in the area toconduct a carefully limited search of the outer clothing of such personsin an attempt to discover weapons which might be used to assault him."392 U.S. at 30; id. at 17 n.13. Such a weapons search, known as a "frisk,"is a "reasonable search under the Fourth Amendment, and any weaponsseized may properly be introduced in evidence against the person from whomthey were taken." Id. at 31. As the Court has subsequently explained,"[s]o long as the officer is entitled to make a forcible stop, andhas reason to believe that the suspect is armed and dangerous, he may conducta weapons search limited in scope to this protective purpose." Adams,407 U.S. at 146.

3. Under Terry, not every investigative stop automatically justifies a frisk.In some cases, an officer may have reasonable suspicion that a crime isbeing committed, but the crime is not one that is ordinarily associatedwith violence, and the officer has no other basis for believing that theperson suspected of the offense may be armed and dangerous. In such cases,the officer may conduct a stop, but not a frisk. Where the nature of crimeitself supplies a reasonable suspicion that the suspect may be armed anddangerous, however, a reasonable suspicion that the crime is occurring simultaneouslyfurnishes a justification for both a stop and a frisk.

That was the situation in Terry itself. The activities of the individualsinvolved in that case created a reasonable suspicion that they were planninga robbery, and it was "reasonable to assume," that such a crime"would be likely to involve the use of weapons." 392 U.S. at 28.The officer in Terry therefore had a justification for both a stop and afrisk. That same analysis is applicable when an officer has a reasonablesuspicion that a person is illegally carrying a concealed firearm. Sinceit is reasonable to believe that a person committing a crime involving theillegal carrying of a concealed weapon may be dangerous, an officer whohas a reasonable suspicion that such a crime is occurring may simultaneouslystop and frisk the person suspected of the offense.

B. A Sufficiently Verified Anonymous Tip Can Create Reasonable Suspicion

1. In Terry, the officer's reasonable suspicion of wrongdoing was basedon his own observations. Reasonable suspicion, however, can also be basedon information supplied by another person. For example, in Adams, the Courtheld that an officer had a sufficient basis to conduct a stop and a friskwhen a person known to the officer approached him and informed him thata man in a nearby vehicle was carrying narcotics and had a gun at his waist.407 U.S. at 144-147. The Court expressly rejected the argument that a stopand frisk can only be based on an officer's personal observations, explainingthat:

Informants' tips, like all other clues and evidence coming to a policemanon the scene, may vary greatly in their value and reliability. One simplerule will not cover every situation. Some tips, completely lacking in indiciaof reliability, would either warrant no police response or require furtherinvestigation before a forcible stop of a suspect would be authorized. Butin some situations-for example, when the victim of a street crime seeksimmediate police aid and gives a description of the assailant, or when acredible informant warns of a specific impending crime-the subtleties ofthe hearsay rule should not thwart an appropriate police response.

Id. at 147.

In Adams, the Court pointed out that information from a known informantpresents a "stronger case [for reasonable suspicion] than obtains inthe case of an anonymous telephone tip." 407 U.S. at 146. But anonymoustips, if sufficiently detailed and corroborated, may support a finding ofeven probable cause. In Illinois v. Gates, 462 U.S. 213 (1983), this Courtsustained a warrant based on an anonymous letter to the police implicatinga husband and wife in narcotics trafficking and predicting a travel itineraryinvolving a short round trip from Illinois to Florida, which turned outlargely to be accurate. Even though the police were able to verify onlyinnocent behavior, id. at 243 n.13, the Court held that the totality ofthe circumstances supported the issuance of the warrant in that case.

In White, 496 U.S. at 325, the Court held that a less-detailed anonymoustip that is sufficiently corroborated can establish reasonable suspicionfor a Terry stop. There, police received an anonymous tip that Venesa Whitewould be leaving 235-C Lynwood Terrace Apartments at a particular time ina brown Plymouth station wagon with the right taillight lens broken, thatshe would be going to Dobey's Motel, and that she would be in possessionof about one ounce of cocaine in a brown attache case. Police proceededimmediately to the apartment building, saw a person leave the 235 buildingwith nothing in her hands, saw that person enter a car that matched thedescription given by the caller, and observed the person drive the car inthe direction of Dobey's Hotel. Officers stopped the car just before itreached the Hotel. The Court held that, while the tip standing alone wasinsufficient to establish reasonable suspicion of wrongdoing, id. at 329,it was sufficiently corroborated to justify the investigative stop, id.at 330.

In reaching that conclusion, the Court acknowledged that police had notconfirmed some of the significant details of the tip, including the nameof the woman and the particular apartment from which she left, and it recognizedthat police had stopped the car without being certain that it would stopat the Hotel rather than drive past it. 496 U.S. at 331. The Court concluded,however, that the tip had been sufficiently confirmed to warrant a reasonablesuspicion of wrongdoing. Id. at 331-332. The Court explained that "itis not unreasonable to conclude in this case that the independent corroborationby the police of significant aspects of the informer's predictions impartedsome degree of reliability to the other allegations." Ibid. The Courtgave particular weight to confirmation of the predictive elements of thetip, reasoning that a caller's ability to predict future behavior tendsto demonstrate "inside information." Id. at 332. The Court stressedthat "[b]ecause only a small number of people are generally privy toan individual's itinerary, it is reasonable for police to believe that aperson with access to such information is likely to also have access toreliable information about that individual's illegal activities." Ibid.

The lesson of White is that confirmation of significant aspects of an anonymouscaller's predictions of future behavior can be sufficient to establish reasonablesuspicion. White did not suggest, however, that verifying a prediction offuture behavior is a necessary precondition for crediting an anonymous tip.Instead, White reaffirmed that the question whether a particular tip furnishesreasonable suspicion depends on "the totality-of-the-circumstances."White, 496 U.S. at 330. See United States v. Bold, 19 F.3d 99, 104 (2d Cir.1994) (White does not establish categorical rule that anonymous tips musthave predictive information that police confirm in order to establish reasonablesuspicion); United States v. Clipper, 973 F.2d 944, 949 (D.C. Cir. 1992)(same).

2. Because the value of an anonymous tip in establishing reasonable suspiciondepends on the totality of the circumstances, the relevant standards, aswith other reasonable suspicion inquiries, "are 'not readily, or evenusefully, reduced to a neat set of legal rules.'" Ornelas v. UnitedStates, 517 U.S. 690, 695- 696 (1996) (quoting Illinois v. Gates, 462 U.S.at 232). As the Court has made clear, both the quantity and detail of theinformation as well as its reliability, as revealed by corroboration, arecritical factors in assessing the worth of an anonymous tip. White, 496U.S. at 330. But the reasonable suspicion calculus also takes into accountthe nature and immediacy of the criminal threat described in the tip. Thatfactor plays an important role in determining whether a tip provides a sufficientobjective basis to justify the investigatory step of a stop and frisk.

a. As for the quality of the tip, a tip that is definite about the occurrenceof criminal activity is more likely to help create a reasonable suspicionthan a tip that states only that criminal activity may be occurring. Inthe Interest of H.B., 381 A.2d 759, 762-763 (N. J. 1977). A tip that issufficiently specific and detailed to identify a particular person at aparticular place is more likely to help establish a reasonable suspicionthan a description that could potentially apply to numerous persons in anarea. Id. at 761-762; Speight v. United States, 671 A.2d 442, 447-448 (D.C.1995). And a tip that appears to be based on personal observation is morelikely to help create a reasonable suspicion than one that appears to bebased on second or third-hand knowledge. State v. Williams, 591 N.W.2d 823,830 (Wis. 1999); see also State v. Pulley, 863 S.W. 2d 29, 32 (Tenn. 1993)(when an informant reports an incident at or near the time of its occurrence,it is often reasonable for police to adopt a working assumption that thetip is based on first-hand knowledge); State v. Hasenbank, 425 A.2d 1330,1333 (Me. 1980) (same).

b. As for reliability, confirmation of the innocent details of an anonymoustip lends some reliability to the report of wrongdoing. Bold, 19 F.3d at103. Police need not confirm all details of a tip in order to have a reasonablesuspicion of wrongdoing.1 The Fourth Amendment requires neither "perfection"nor "infallibility." Gates, 462 U.S. at 245-246 n.14. The extentof corroboration is nonetheless relevant. The failure to confirm at leastsome significant details of the tip could readily undermine a finding ofreasonable suspicion. In contrast, when police confirm all innocent detailsof a tip, that can lend significant support to a finding of reasonable suspicion.United States v. Gibson, 64 F.3d 617, 622-623 (11th Cir. 1995). The timingof corroboration is also significant. When police promptly arrive at theplace that criminal conduct is allegedly occurring and immediately confirmthe innocent details of a tip, it both helps to ensure that the reportedinformation is not stale and reduces the possibility of detaining the wrongperson. Id. at 623. When police do not arrive promptly, the inference ofreasonable suspicion is weakened. Speight, 671 A. 2d at 447-448.

c. A critically important factor bearing on the totality of the circumstancesis whether the tip concerns conduct that may pose an immediate danger ofviolence. For example, if an officer receives an anonymous tip that a personmeeting a particular description is standing outside a particular federalbuilding with a bomb, and police immediately verify that a person meetingthat description is outside that building, police should be able to conducta stop and frisk. Similarly, if police receive an anonymous tip that a personmeeting a particular description is standing outside a particular elementaryschool and is carrying a concealed sawed-off shotgun, and police promptlyconfirm that a man meeting that description is outside that school, policeshould have authority to conduct a stop and frisk. What those examples havein common is that the reported conduct may pose an immediate danger of violence,and the only alternatives to an immediate stop and frisk-a consensual encounteror further observation-create an unreasonable risk of danger to the policeand the public. See Wayne R. LaFave, Search and Seizure § 9.4(h), at229 (3d ed. 1996) ("in some instances the need for immediate actionmay be so great that substantial doubts about the reliability of the informantor his information cannot be permitted to stand in the way of prompt policeaction").

Violence resulting from an individual's sudden use of an illegally concealedweapon presents particular dangers to the public. For example, in 1990,the use of firearms resulted in approximately 37,000 gunshot deaths and259,000 nonfatal injuries. Bold, 19 F.3d at 104. Moreover, between 1987and 1996, the use of firearms resulted in the deaths of 696 law enforcementofficers, 92% of the officers killed in the line of duty. Pet. App. A16.An individual who is illegally carrying a concealed weapon thus poses aparticular danger to the public.2

C. A Stop and A Frisk Are Generally Justified When An Anonymous Caller ReportsThat A Person Is Illegally Carrying A Concealed Firearm And Police PromptlyConfirm The Innocent Details Of The Tip

As the preceding discussion makes clear, there is no categorical rule concerningwhen the combination of an anonymous tip and police corroboration can establishreasonable suspicion. Anonymous tips and police corroboration come in avariety of forms, and no rule can capture all the relevant permutationsand combinations. But at least when (1) an anonymous tip provides a descriptionof a particular person at a particular location illegally carrying a concealedfirearm, (2) police promptly verify the pertinent details of the tip exceptthe existence of the firearm, and (3) there are no factors that cast doubton the reliability of the tip, a stop and frisk should be permitted. Insuch cases, the totality of circumstances establish a "reasonable suspicion"that a particular person is engaged in criminal activity and may be armedand dangerous.

All of the federal circuits that have addressed the question have come tothat conclusion. The leading case is Clipper, 973 F.2d at 944. There, theD.C. Circuit held that police officers had reasonable suspicion for a stopand a frisk when they obtained an anonymous tip that a person wearing particularclothing was at a particular location and was armed with a gun, and theofficers promptly confirmed all the details except the existence of thegun. The court explained that the totality of the circumstances "mustinclude those in which the anonymous informant makes no predictions, butprovides the police with verifiable facts while alerting them to an imminentdanger that the police cannot ignore except at risk to their personal orthe public's safety." Id. at 949-950.

The court also emphasized that "an officer who has been able to corroborateevery item of information given by an anonymous informant other than actualpossession of a weapon is faced with an 'unappealing choice.'" Clipper,973 F.2d at 951. "He must either stop and search the individual or'at best follow him through the streets . . . hoping he [will] commit acrime, or at least brandish the weapon, out of doors,' where the policecan intervene." Ibid (quoting United States v. McClinnhan, 660 F.2d500, 502 (D.C. Cir. 1981)). The court added that "[t]his element ofimminent danger distinguishes a gun tip from one involving possession ofdrugs. If there is any doubt about reliability of an anonymous tip in thelatter case, the police can limit their response to surveillance or engagein 'controlled buys.' Where guns are involved, however, there is the riskthat an attempt to 'wait out' the suspect might have fatal consequences."Ibid.

Similarly, in Bold, 19 F.3d at 99, the Second Circuit held that police hadreasonable suspicion to conduct a stop when they promptly confirmed allthe innocent details of an anonymous tip that a specifically identifiedman in a certain location was armed. Like the D.C. Circuit, the Second Circuitreasoned that "[w]here the tip concerns an individual with a gun, thetotality-of-the-circumstances test for determining reasonable suspicionshould include consideration of the possibility of the possession of a gun,and the government's need for a prompt investigation." Id. at 104.The court noted that 200 million handguns and other lethal firearms arein circulation in the United States, that more than 4.2 million are addedeach year, and that in 1990, those weapons caused 37,000 gunshot deathsand 259,000 nonfatal injuries. Ibid. The court concluded that, given thereport that the suspect was armed with a gun, the likelihood that the suspect'spossession of the gun was illegal, and the inability of the officer to confirmthat the suspect was armed, the officer had reasonable suspicion to conducta stop. Ibid.

In Gibson, 64 F.3d at 617, the Eleventh Circuit reached a similar conclusion,upholding a stop and frisk of a man in a bar, based on an anonymous tip,swift confirmation of all the innocent details of the tip, and several otherfactors. The court emphasized that "the anonymous tip concerned thepresence of two potentially armed individuals in a public establishment,"and that "[t]his fact raised the stakes for the officers involved becausethey not only had to worry about their own personal safety, but that ofthe 20 to 40 innocent bystanders who were also present." Id. at 623.

Finally, in United States v. Deberry, 76 F.3d 884 (1996), the Seventh Circuitheld that police had reasonable suspicion to conduct a stop when they confirmedthe innocent details of an anonymous tip that a person was illegally carryinga concealed firearm. The court explained that "[a]rmed persons areso dangerous to the peace of the community that the police should not beforbidden to follow up a tip that a person is armed, and as a realisticmatter this will require a stop in all cases." Id. at 886.

The federal circuits do not stand alone in holding that officers ordinarilyhave authority to conduct a stop and frisk when they confirm the detailsof an anonymous tip that a person is illegally armed. The state courts thathave addressed the question have generally reached the same conclusion.In the Interest of H.B., 381 A.2d at 763-764 (To deny police the right toconduct a stop and frisk "in the face of the violent climate of thetimes and the universal threat of handguns, * * * would seem foolhardy andwrong, and needlessly expose society and the police community to seriousrisk of death or injury."); Hasenbank, 425 A.2d at 1333 ("Whenpolice receive detailed and immediately verifiable information that a specificallydescribed individual possesses a concealed weapon, the police are justifiedin stopping the person and conducting a limited protective search for weapons.");State v. Jernigan, 377 So.2d 1222, 1225 (La. 1979) (When an anonymous tipis sufficiently specific, police corroborate the details of the tip, and"the information, if correct, presents an immediate and real dangerto the public, prompt police action is justified to prevent a possible seriousharm."); United States v. Johnson, 540 A.2d 1090, 1092 (D.C. 1988)(Where tip provided "detailed information about the precise locationwhere the suspect could be found and suggested an on-going crime involvingthe sale of a gun or guns," and there was "virtually immediatecorroboration of all the innocent circumstances," police had reasonablesuspicion to conduct an investigative stop.); State v. Kuahuia, 616 P.2d1374, 1375 (Haw. 1980) (Where anonymous informant "detail[ed] the time,place, and his personal observation of the firearm," and police "promptlyresponded to verify and to act upon the information," and "especiallybecause a firearm was allegedly involved, the police were duty-bound tomake at least a temporary stop for investigative purposes."); Pulley,863 S.W. 2d at 32-34 (Given the report of a presently occurring firearmsoffense, the corroboration of many of the details, and the threat of violence,police had a sufficient basis for an investigative stop.); Speight, 671A.2d at 448 ("[T]he report that an individual was armed-potentiallyimplicating the safety of both police officers and the public-combined withthe officers' corroboration of an extremely detailed description minutesafter hearing the radio broadcast, justified the intrusion involved in brieflydetaining and frisking the [suspect]."). The analysis of those courtsis sound and should be followed here.

D. The State Court's Reasons For Precluding A Finding Of Reasonable SuspicionIn This Case Are Unsound

The Florida Supreme Court, in finding that the officers lacked reasonablesuspicion, raised two objections. First, the court believed that policeverification of the innocent details of an anonymous tip that describesa presently occurring crime cannot, absent predictions of future behavior,sufficiently show that a tip is reliable. Pet. App. A3-A9. Second, the courtreasoned that to hold otherwise would create a "gun exception"to the reasonable suspicion standard, id. at A9-A11. That reasoning is seriouslyflawed.

1. To take the later objection first, the approach we advocate does notcreate a "gun exception" to the reasonable suspicion standard.Instead, it simply recognizes that what constitutes "reasonable"suspicion depends in part on whether a tip describes a situation that couldpose an immediate danger of violence.

That recognition is fully in keeping with the Court's stop and frisk decisions.In particular, the Court's cases instruct that the reasonable suspicionstandard takes into account the "totality of the circumstances."Cortez, 449 U.S. at 417, that it is to be examined from the point of viewof the "reasonably prudent" officer, Terry, 392 U.S. at 27, andthat it does not "require that police officers take unnecessary risksin the performance of their duties," id. at 23. Given those teachings,the reasonable suspicion standard necessarily takes into account what any"reasonably prudent" officer would consider: that when an anonymouscaller reports that a person is illegally carrying a concealed firearm,and there is no reason to discredit the tip, the reasonably prudent courseis to conduct an immediate stop and frisk. Public safety requires that theofficer engage in some form of intervention before the weapon is deployed.If the officer must engage in a consensual encounter with the suspect andask him whether he has a gun, he runs a risk that the response will be abullet. And if the officer must await the brandishing of the gun, he runsthe risk that the gun will be used on someone else before he can preventit. The requirement that an officer have "some minimal level of objectivejustification" before conducting a stop or frisk (Delgado, 466 U.S.at 217), does not require an officer to run those risks.

The concept of "reasonable suspicion" is a "fluid" onethat "take[s] [its] substantive content from the particular contextsin which the standard[] [is] being assessed." Ornelas, 517 U.S. at696. The Fourth Amendment protects against "unreasonable" searchesand seizures; it does not prevent officers from taking reasonable measuresto prevent individuals from illegally walking the streets with concealedfirearms. It is not "unreasonable" for an officer to conduct astop and frisk when an anonymous caller reports that a particular personin a particular place is carrying an illegally concealed firearm, policeofficers confirm all the details of the tip besides the existence of thefirearm, and there are no specific reasons to discredit the tip. A reasonablesuspicion standard that led to a different conclusion would not fulfillits intended purpose of implementing the Fourth Amendment's protection againstunreasonable searches and seizures. See Terry, 392 U.S. at 19 ("[S]topand frisk theory" should not "divert attention from the centralinquiry under the Fourth Amendment-the reasonableness in all the circumstancesof the particular governmental invasion of a citizen's personal security.").

In a variety of Fourth Amendment settings, the Court has held that the FourthAmendment permits police to take reasonable steps to protect their own safetyor the safety of others. Richards v. Wisconsin, 520 U.S. 385, 394 (1997)(police may make an unannounced entry to execute a warrant when they have"reasonable suspicion that knocking and announcing their presence would,under the particular circumstances, be dangerous"); Maryland v. Buie,494 U.S. 325, (1990) (police officers executing an arrest warrant in a housemay take reasonable steps to ensure their safety including conducting aprotective sweep for weapons based on reasonable suspicion); Tennessee v.Garner, 471 U.S. 1, 11 (1985) (police officer may use deadly force whenthey have "probable cause to believe that the suspect poses a threatof serious physical harm, either to the officer or to others"); Michiganv. Long, 463 U.S. 1032, 1052 (1983) (police may search the interior of carduring traffic stop based on reasonable suspicion, in part because policeofficers are "particularly vulnerable" during such investigations).Pennsylvania v. Mimms, 434 U.S. 106, 106 (1977) (per curiam) (police mayorder driver out of car during traffic stop in order to protect the safetyof the officer); Warden v. Hayden, 387 U.S. 294, 297-299 (1967) (When thereare exigent circumstances, police officers who have probable cause do notneed a warrant to continue a hot pursuit into a house and search for a robberysuspect and weapons he might use against them, since "the Fourth Amendmentdoes not require police officers to delay in the course of an investigationif to do so would gravely endanger their lives or the lives of others.").The principle underlying those cases is also applicable here.

2. The state supreme court's requirement of confirmed predictions beforean anonymous tip can form the basis for reasonable suspicion would deprivethe police of a source of valuable information that may prevent some violentcrime. It bears emphasis that anonymous tips "frequently contributeto the solution of otherwise 'perfect crimes.'" Gates, 462 U.S. at238. The value of anonymous tips would be significantly reduced if therewere a categorical rule that only tips containing verifiable predictionsof future behavior can create reasonable suspicion. Valuable tips come notonly from "insiders" who have the ability to make predictionsof future behavior, but also from persons who personally observe presentlyoccurring crime in their own neighborhoods and wish to remain anonymousbecause of a bona fide fear of retaliation. Williams, 591 N.W.2d at 831;United States v. White, 648 F.2d 29, 43-44 (D.C. Cir. 1981); United Statesv. Walker, 294 A.2d 376, 377-378 (D.C. 1972). The Fourth Amendment shouldnot be interpreted to categorically preclude officers from relying on suchtips simply because the tips do not contain predictions of future behavior.

There is always a possibility that an anonymous caller who reports a presentlyoccurring offense is someone with a grudge attempting to settle a scorethrough a false claim of criminal conduct. But the same could have beensaid about the caller in White. Indeed, that was the basis for the dissentin that case. 496 U.S. at 333 (Stevens, J., dissenting). The Court's decisionin White necessarily rejects the view that the mere possibility that a calleris a dishonest person with a grudge, rather than a person with reliableinformation, undermines reliance on an anonymous tip.

Moreover, States, including Florida, make it a crime to provide a fraudulentreport to the police. Fla. Stat. Ann. § 365.171(16) (West 1999) (false"911" calls); Id. § 817.49 (West 1999) (false reports ofthe commission of crimes to law enforcement officers). When combined withthe increasingly common police practice of using caller ID to identify thetelephone number and location of the caller, and the increasing public awarenessof that practice, those laws can significantly deter the making of falsereports. LaFave, supra, § 9.4, at 45-46 (2000 pocket part).

There remain legitimate concerns about reliance on anonymous tips. But whenthe tip concerns conduct as potentially dangerous as the illegal concealmentof a firearm, police verify the innocent details of the tip, and no circumstancescall into question the reliability of the tip, the public interest in preventingviolence outweighs those concerns. Because the Florida Supreme Court failedto apply that analysis, and instead adopted the view that verification ofthe innocent details of an anonymous tip of a presently occurring crimecan never provide reasonable suspicion, even when the crime consists ofcarrying a concealed firearm, its judgment should be reversed.

CONCLUSION

The judgment should be reversed and the case should be remanded for furtherproceedings.

SETH P. WAXMAN
Solicitor General
JAMES K. ROBINSON
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
IRVING L. GORNSTEIN
Assistant to the Solicitor
General

DECEMBER 1999


1 Thus, as noted above, although the police in White could not confirm severalof the significant details of the tip, reasonable suspicion was nonethelessestablished. 496 U.S. at 331-332. And in Gates, confirmation of significantdetails of an anonymous letter was sufficient to establish probable cause,even though there was one significant mistake in the letter. 462 U.S. at245-246 & n.14.

2 Florida law prohibits a person from carrying a concealed firearm unlesshe is licensed to do so. Fla. Stat. Ann. § 790.01(2) and (3) (West1999). A person under 21 years of age is not eligible for such a license.Id. § 790.06(b). Florida law therefore prohibits any person under 21from carrying a concealed firearm.