State v. Boyea

¶1dissenting. Constitutional rights are not based on speculations. Whatever frightening scenarios may be imagined by police officers or appellate judges, the Framers of our Constitution struck a balance between individual privacy and the intrusive power of government, a balance that we have a duty to protect. The Fourth Amendment is the source of protection against searches and seizures that are based on unreliable information. When an anonymous tip provides the sole basis for the seizure, the need for reliability is heightened. Today’s decision allows the police to dispense with this constitutional requirement and turn over to the public the power to cause the search or seizure of a person driving a car.

¶2In this case, Officer Billings was told to be on the lookout for a particular car because the driver was allegedly “operating erratically.” On the basis of that instruction, nothing else, he stopped Ms. Boyea. He corroborated only the generally-available information about the exterior of the car described by the tip. During the time he had her in sight while she exited the highway, he saw nothing to arouse suspicion. The majority claims that the “totality of the factual circumstances in this case satisfied the requirements of reliability.” 171 Vt. at 408 n.6, 765 A.2d at 867 n.6. It asserts that the tip “predicted” information that the police officer verified and that this predictive value lent credibility to the tip. The “totality of the circumstances” in this case has never been shown to be anything more than an anonymous telephone call claiming that a car on the highway was “operating erratically.” The entire predictive value of this tip was that the tipster “predicted” a car on a limited access highway would continue on the highway in the direction it was traveling.

¶3By ignoring the requirement of reliability for anonymous tips, the majority has created an automobile exception to our established search and seizure jurisprudence for which there is no precedent and no conceivable limit. I respectfully dissent.

¶4I.

¶5The record in this case is indistinguishable from recent and relevant precedent from the United States Supreme Court. Because *424defendant has not raised a claim under Article 11 of the Vermont Constitution, we consider the issue solely under the- United States Constitution. We are therefore bound by the Supreme Court’s decisions interpreting the Fourth Amendment. We must apply the Supreme Court precedent using our best judgment about what that Court would do if faced with similar facts. For many years, the Court has required that police action must be based on objectively rehable information. We have the benefit of a recent pronouncement by that Court on the exact issue of anonymous tips, Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375 (2000), and yet the majority of this Court dispenses with this precedent and diverges from the Supreme Court’s interpretation of the Fourth Amendment in a closely analogous case.

¶6The anonymous tip in Florida v. J.L. described a particular person by appearance and specified his location. The tip alleged that a young black male wearing a plaid shirt at a particular bus stop was carrying a gun. Police checking the specified location saw a male matching the description given by the anonymous informant. They saw nothing to indicate any illegal conduct, and the individual made no threatening or suspicious movements. Id. at 268, 120 S. Ct. at 1377.

¶7The Supreme Court unanimously held that corroboration of generally available facts about a person’s location, appearance, or clothing does not indicate the reliability of the tip. See id. at 271-72,120 S. Ct. at 1379. The Court began its analysis by noting that ‘“an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.’” Id. at 270, 120 S. Ct. at 1378 (quoting Alabama v. White, 496 U.S. 325, 329 (1990)). The tip in J.L. came from “an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L.” Id. at 271, 120 S. Ct. at 1379. Florida and the United States argued that the tip was reliable because its description of J.L. and his location had proved accurate. The Court rejected this analysis, stating “[tjhese contentions misapprehend the reliability needed for a tip to justify a Terry stop.” Id. at 272, 120 S. Ct. at 1379. This kind of public information, the Court explained, does not demonstrate that the tipster has inside information about concealed wrongdoing. The reasonable suspicion needed for such a stop “requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” Id.Therefore, the Court held that this tip, lacking indicia of reliability and uncorroborated in its accusation of criminal behavior, did not provide reasonable suspicion for a Terry stop. Id. at 274, 120 S. Ct. at 1380.

¶8*425The need for reliability in anonymous-tip cases was first articulated by the Court in Alabama v. White. There, the Court held that the assessment of anonymous tips is “dependent upon both the content of the information possessed by police and its degree of reliability.” White, 496 U.S. at 330. In White, an anonymous call reported that Vanessa White would leave a specific apartment in an apartment complex at a particular time, in a brown Plymouth station wagon with the right taillight broken, would drive to Dobey’s Motel, and that she would be carrying an ounce of cocaine. Id. at 337. Officers observed a woman emerge from the apartment complex at the specified time, enter the described car, and follow the exact route outlined in the anonymous tip. The Court upheld the stop, while acknowledging that it was a “close case,” id. at 332, and, in fact, three justices dissented forcefully. For the majority, the police corroboration of the tip information established that the tipster was reliable and the tipster’s ability to predict White’s behavior indicated the basis of knowledge behind the tip. The Court reasoned that, “[bjecause only a small number of people are generally privy to an individual’s itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual’s illegal activities.” Id.Because the informant had been proven to be reliable by corroboration of its predictions and the content of the tip was very detailed and specific, the Court upheld the stop.

¶9The WhiteCourt explained the connection between reliability- and content as an inverse relationship. “Reasonable suspicion ... is dependent upon both the content of information possessed by police and its degree of reliability. . . . [I]f 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. The Court instructed that the totality of the circumstances approach gives “the anonymous tip the weight it deserve[s] in light of its indicia of reliability as established through independent police work.” Id.The Court distinguished the Whiteinformation from other tips consisting of “easily obtained facts and conditions existing at the time of the tip.” Id. at 332. Thus, “easily obtained facts and conditions existing at the time of tip” do not establish the reliability of a tip and form little support for reasonable suspicion.

¶10The J.L. Court noted that the tip lacked even the “moderate indicia of reliability present in White,” J.L., 529 U.S. at 271, 120 S. Ct. at *4261379, and it concluded that public information, such as a description of appearance, does not provide a basis for judging the tipster’s reliability. Information that simply “identifies] a determinate person,” id. at 272, 120 S. Ct. at 1379, but does not indicate a special or confidential relationship between the informant and the subject of the tip, does not make a tip reliable, even when police can corroborate it, as they did in J.L. The Fourth Amendment requires reliability of a different type. Such reliability may be shown by an informant explaining how she/he knows about the illegal behavior, or by other information that demonstrates the informant has “inside information.” Id. at 271, 120 S. Ct. at 1379. Because the J.L. tipster did not indicate such a confidential relationship, nor any other indication of reliability, the tip was not reliable as a basis for the stop-and-frisk.

¶11Reliability, the Supreme Court instructed, may not be dispensed with even in a case involving the immediate and obvious.danger of firearms. See id. at 272, 120 S. Ct. at 1379. The Court therefore held that police may not conduct Terry stops “on the basis of bare-boned tips about guns” because “the Fourth Amendment is not so easily satisfied.” Id. at 273, 120 S. Ct. at 1380. The Court suggested parenthetically that creating a dangerousness exception for Terry-stop requirements would be an exception that could swallow the rule. Id.The Court reasoned that “[t]he facts of this case do not require us to speculate about the circumstances under which the danger alleged in an anonymous tip might be so great as to justify a search even without a showing of reliability.” Id.Because the prosecution failed to produce a record that showed anything other than a bare, anonymous tip, the record in J.L. did not support a finding of any reliability. Id. at 274, 120 S. Ct. at 1380.

¶12The record in the instant case is no more complete than in J.L. The prosecution in this case failed to produce a record showing anything other than a bare, anonymous tip. The description of defendant’s blue-purple Jetta with New York license plates is precisely like the description of a young black man wearing a plaid shirt. And just as J.L. was described as being at a specific bus stop, defendant’s car was described at a particular location — on Interstate 89. Finally, the allegation of wrongdoing, J.L.’s carrying a gun and Ms. Boyea’s “erratic driving,” stands alone, with no explanation of how or why the tipster knows this.

¶13The majority contends that the informant in this case “predicted” that the Jetta would continue to be on the Interstate and that this “prediction” was proven true, thereby corroborating the tip. This *427“prediction” is no such thing. The tipster in J.L. did not “predict” that J.L. would remain at the bus stop; the tip simply accused a specific person, an actual man at a real location, of carrying a gun. The police then saw the person described at the specified location. The facts in this case are no different. The informant did describe an actual car, Ms. Boyea’s car, at a real location, which was on Interstate 89 headed south. This information is not a “prediction” — it is a description, it relates actually existing information about a determinate car but it does not predict the future activities of the driver in a way that demonstrates inside information. That is the hallmark of a prediction that is reliable when corroborated. See White, 496 U.S. at 322. This “prediction” is utterly unlike the prediction of White, that the defendant would drive a particular car at a particular date and time along a four-mile long route described in minute detail. See id.The content of this tip was simply that a specific ear was allegedly “operating erratically.” In fact, this “prediction” is no more and no less than the “prediction” implicit in the J.L. tip that the defendant would continue standing at the bus stop. If the Whitetip, with all of its detail and corroborated predictions, was “close” to the line between reliable and unreliable anonymous tips, id. at 332, this accusation of erratic driving is well over the line into unreliability.

¶14It is certainly possible to speculate that the police might have had more information, but they have not shown that they did, and it is not our job to supplement the record. In fact, our job is the opposite; we are not permitted to create a new rule of law in order to compensate for a failure in the record. We are to review the record that was before the trial court and base our decision on that record.1 This constraint is inherent in the nature of an appellate court; we must bow to “the controlling force of the record” and consider only those facts that were established below. D. Meador & J. Bernstein, Appellate Courts in the United States 55 (1994); see also In re M.C.P., 153 Vt. 275, 296, 571 A.2d 627, 638 (1989) (role of this Court is limited to reviewing trial court findings to determine if they are supported by the record). The State has made no showing that the nature of the tip demonstrated firsthand knowledge, or any basis for knowledge, other than that it identified a particular car on the highway. As the J.L. concurrence observed, there might be other characteristics of the tip that support *428its reliability, such as predictive value, prior accurate tips, a face-to-face encounter, or a narrow class of likely informants. J.L., 529 U.S. at 275-76, 120 S. Ct. at 1381 (Kennedy, J., concurring, joined by Rehnquist, C.J.); see also State v. Lamb, 168 Vt. 194, 720 A.2d 1101 (1998) (where tip content indicated, inter alia, that it came from one of two women in household with named defendant, it provided reasonable suspicion). Where the State provides no evidence, however, that “the dispatcher or arresting officer had any objective reason to believe that this tip had some particular indicia of reliability,” it does not provide a lawful basis for police action. J.L., 529 U.S. at 275-76, 120 S. Ct. at 1381.

¶15Because the claim here is based solely on the Fourth Amendment, we must ask ourselves how the United States Supreme Court would be likely to rule about the anonymous tip in this case after Whiteand J.L. The majority says we can predict nothing from Whiteand J.L. because this case involves a car. The majority’s rule is that if an automobile-operation crime is alleged, then the crime is so dangerous that police need not have reliable information. This “automobile” exception has no basis in Supreme Court precedent. To the extent there was a “dangerousness” exception developing in the lower courts based on guns, automobiles, and drugs, see 4 W LaFave, Search and Seizure § 9.4(h), at 230 (3d ed. 1996 & Supp. 2001), that development has been curtailed by the Supreme Court. The J.L. Court rejected the developing exception for guns and pointed out that creating such exceptions could swallow the rule of reliability. “[A]n automatic firearm exception to our established reliability analysis would rove too far,” concluded the Court, and no one “could . . . securely confine such an exception to allegations involving firearms.” J.L., 529 U.S. at 272, 120 S. Ct. at 1379, 1380. It is now less likely that another exception, for automobiles, will emerge after J.L.

¶16This Court’s decision in Lambreasoned that the principle of the gun-exception cases could be extended to the situation of drunk-driving. See Lamb, 168 Vt. at 200, 720 A.2d at 1105. The reasoning of those gun cases has been criticized by the J.L. Court, however, see J.L., 529 U.S. at 272-73, 120 S. Ct. at 1379-80, and the majority’s continued reliance on Lamb’s reasoning is troubling for that reason. The Lambdecision committed exactly the kind of expansion that the J.L. Court warned against by saying a firearm exception would be impossible to contain.

¶17Used improperly, cars, guns, and a host of other instrumentalities may be dangerous to innocent people. A man carrying a concealed *429weapon on a street can easily remove the weapon and fire into a group of people faster than any police officer can intercept him. A loaded and concealed weapon is a danger our courts have been concerned with for years, and it is the danger that justified the innovation of the Terry stop. See id. at 272, 120 S. Ct. at 1879. A drunk driver of a car may cause a collision with another car or with pedestrians. Both dangers are serious and cannot be taken lightly. But if an unreliable, anonymous tip about a gun does not justify a Terry stop, than neither does an unreliable, anonymous tip about erratic driving.2

¶18Other jurisdictions interpreting the Fourth Amendment have rejected a rule that permits police to act on anonymous tips without corroboration, no matter how ridiculous, malicious, or impossible they may be. See State v. Altieri, 951 P.2d 866, 869 (Ariz. 1997) (“[T]he anonymous tip contained only neutral, non-predictive information about the defendant and his activities and was itself insufficient to provide reasonable suspicion for the stop. The corroboration did not sufficiently substantiate the reliability of the tip to support the investigative stop.”); People v. George, 914 P.2d 367, 371 (Colo. 1996) (informant said possible altercation occurring in certain parking lot between van and another vehicle; corroboration of van in that lot, “a fact presumably known or knowable by everyone” was not sufficient for reasonable suspicion under White); Commonwealth v. Lyons, 564 N.E.2d 390, 393 (Mass. 1990) (finding no reasonable suspicion where anonymous call identified two white males in car carrying drugs, because “the police verified no predictive details that were not easily obtainable by an uninformed bystander”); State v. Lee, 938 P.2d 637, 640 (Mont. 1997) (where anonymous caller said only that she believed a person was driving under the influence and speeding, and where officer observed no irregularities consistent with impaired driving, officer lacked particularized suspicion to justify stop); State v. Kennison, 590 A.2d 1099, 1101-02 (N.H. 1991) (finding anonymous tip describing car, defendant’s employment and predicting that defendant would return home after work and then go out again did not create reasonable suspicion where police “were unable to corroborate any of the incriminating allegations”); State v. Guthmiller, 499 N.W.2d 590, 591-93 (N.D. 1993) (anonymous call of “a DUI driver” in *430a blue pickup with certain license number at certain location was corroborated by police verification of description and observation of inordinately long stop at stop sign, thus stop was justified by reasonable suspicion); Muscatell v. Cline, 474 S.E.2d 518, 527 (W. Va. 1996) (anonymous report of light blue car traveling certain road having been involved in hit-and-run, corroborated only by seeing car but no damage, was not reasonable suspicion); State v. Stuart, 452 S.E.2d 886, 891-92 (W. Va. 1994) (anonymous call of drunk driving was corroborated by police finding vehicle in specified area and observing unusually slow travel; call and tip added up to reasonable suspicion); McChesney v. State, 988 P.2d 1071, 1077 (Wyo. 1999) (“[T]he investigating officer is required to corroborate the tip in some other fashion, usually by observing either a traffic violation or driving indicative of impairment.”).

¶19A number of federal decisions have reached the same conclusion. See, e.g., United States v. Soto-Cervantes, 138 F.3d 1319, 1322-23 (10th Cir. 1998) (anonymous tip of drug distribution at certain location involving men and grey pickup, when corroborated only by observation of men and truck, did not supply reasonable suspicion); United States v. Roberson, 90 F.3d 75, 79 (3d Cir. 1996) (anonymous tip that described person at location and said person was selling drugs, plus corroboration of described person at location, was not reasonable suspicion as anyone could have predicted those facts).

¶20Given the recent precedent of the United States Supreme Court and the numerous state and federal cases in accord, I would reverse.

¶21II.

¶22The effect of the majority’s opinion is to turn over to anyone with a telephone the power to make the government intrude into a private citizen’s life without any oversight or control. The question raised by the majority’s opinion is whether the social ill in this case — drunk driving — justifies its decision to curtail Fourth Amendment protection. In my view, there are two problems with this approach to Fourth Amendment jurisprudence. First, permitting a seizure based solely on an anonymous tip, without any effective requirement of reliability, abdicates the duty of the government to exercise self-restraint. It does away with the neutral review and evaluation of complaints on the criterion of “reasonableness” that is the cornerstone of the Fourth Amendment. Second, it is exactly this indiscriminate and unre*431strained power of search and seizure that the Fourth Amendment was intended to curtail.

¶23Throughout the centuries of Anglo-American debate over search and seizure practices, reliability of information has always been a central concern. In the history of England and colonial America, the requirement of reliability was enforced in dozens of ways. Englishmen and Americans alike expressed outrage over searches based on “bare suggestion” or “surmizes,” on “deceitful tattle tale” or a “bare false assertion.” See W Cuddihy, The Fourth Amendment: Origins and Original Meaning, 602-1791 at 203, 933, 1119 (1990) (unpublished Ph.D. dissertation, Claremont Graduate School) (on file with University of Michigan Library).3 In the centuries preceding the adoption of the Fourth Amendment, both England and the colonies increasingly insisted that accusers provide sworn statements before the government could act on the accusation. See id. at 667, 686-87, 836-37, 1146, 1187, 1189, 1524. Further, both England and her colonies used tort law to deter false accusations; a fruitless search was a tort for which the informant could be sued. See id. at 541, 676, 699, 700, 1196, 1220, 1532. Another safeguard against false accusations was the rule that warrants were to be granted based only on suspicion judged sufficient by a magistrate or justice of the peace and not on frivolous or malicious accusations. See, e.g., id. at 836, 1188, 1189, 1198, 1524.

¶24Americans were even more aggressive in requiring reliable information before permitting searches and seizures. When the newly-minted states drafted their constitutions, several states “not only disallowed general warrants but elevated specific warrants, probable cause, and the idea of unreasonable search and seizure to a position of higher law.” Id. at 1234. They did this by explicitly focusing on the sufficiency of suspicion. See id. at 1245 (Massachusetts, Maryland, and Pennsylvania Constitutions). These constitutions enshrined the understanding that the Supreme Court’s decisions embody: the truthfulness or reliability of an accusation is central to whether the government may reasonably act on it.

¶25*432As search and seizure practice evolved in the American colonies, reliability was required for warrantless procedures as well as searches or seizures based on a warrant. A Massachusetts statute required warrantless customs searches to be based on written, sworn statements describing both where the taxable goods had been smuggled and where they had been taken. See id. at 1291. One commentator argued that only an informant “of substantial character,” speaking from direct knowledge and not vindictively motivated, could provide the basis for a search or seizure. Id. at 1524. Cuddihy observes that “[m]any statutes operated on similar assumptions.” Id.

¶26Reliability and specificity were inherent prerequisites to a reasonable search or seizure, either with warrant or without warrant, by the time the Amendment was adopted. From his twenty years of research, Cuddihy concluded that “[ajlthough the language of the amendment equates probable cause with warrants, it absorbed practices that required such cause for warrantless procedures.” Id. at 1529. “The amendment’s opposition to unreasonable intrusion, by warrant and without warrant, sprang from a popular opposition to the surveillance and divulgement that intrusion made possible.” Id. at 1546. The unmistakable conclusion from the historical record is that Americans wanted all searches and all seizures to be based on reliable information, rather than on bald accusations by persons of unknown character.

¶27We must therefore follow the Supreme Court’s guidance and implement the Amendment by requiring the police to exercise judgment about the reliability and truthfulness of anonymous accusations of illegal conduct. As Justice Dooley has observed, we must be “concerned about giving a central place to anonymous accusations in law enforcement because we cannot know the motive of the accuser or judge the accuser’s reliability.” Lamb, 168 Vt. at 203, 720 A.2d at 1107 (Dooley, J., dissenting). Justices Stevens, Brennan, and Marshall offered a similar caution: “Anybody with enough knowledge about a given person to make her the target of a prank, or to harbor a grudge against her, will certainly be able to formulate a tip about her like the one predicting Vanessa White’s excursion.” White, 496 U.S. at 333 (Stevens, J., dissenting, joined by Brennan and Marshall, JJ.). Today’s majority would not even require that the accuser know anything about Vicki Boyea — they would be satisfied if someone saw her car getting on the Interstate because that person can then “predict” that her car will continue to be on the Interstate. And this *433insider “prediction” justifies stopping any car because the driver might be driving drunk.4

¶28The majority is eloquent about the danger of drunk driving, but public safety is not a novel concern of this century. The Framers of the Amendment lived under a system of unbridled search and seizure allegedly justified by dozens of “dangers” that evolved in the British common law and statute books. Moreover, their dangers were not so very different from ours. Searches and seizures were repeatedly used to control and confiscate weapons, from the Tudor period right through the American Revolution. See, e.g., Cuddihy, supra, at 99, 185, 357, 380, 439, 611, 1150. Nor is alcohol a new problem. Both sides of the Atlantic experienced searches and seizures directed at controlling alcohol consumption, see id. at 376, 381, 390, 488, as well as at distilleries and breweries. See id. at 386, 387, 390. Drinking was not merely a moral crime but a compelling danger to the public for the American colonists. In the southern colonies, general searches were used, among other purposes, to “stop riotous drinking.” Id. at 438. Finally, smuggling and trading with the enemy, which we perhaps do not think of as modern dangers, were among the most compelling threats to governmental authority in the century surrounding the adoption of the Amendment. Massachusetts was described in 1676 as a “‘deformed anarchy,’ in which annual violations of the Navigation Acts exceeded a hundred thousand pounds,” id. at 696, and by 1776, “epidemic smuggling had eviscerated” the Massachusetts customs authority. See id. at 1051. In the newly-federated United States, trading with the enemy in wartime “imperiled the very survival of the state” and yet general warrants were not permitted as an instrument to control the illegal trading. Id. at 1279.

¶29It was against this backdrop that the Fourth Amendment was drafted and adopted. It was in a context full of dangers that had for centuries justified a wide variety of intrusive searches and seizures. The Amendment deliberately rejected the idea that any claim to be *434acting for public safety necessarily justified promiscuous search and seizure powers. The Constitution protects privacy against the fears and anxieties of the moment; it forces the State to act cautiously, even slowly, despite the risks entailed. As Professor Steiker observed, “[individual liberties entail social costs. . . . Nowhere is this more true than with the Fourth Amendment. . . . Particularly in times of rampant violent crime or other serious threats to security, the inhibiting power of the Fourth Amendment can seem ‘too extravagant to endure.”’ C. Steiker, Second Thoughts About First Principles, 107 Harv. L. Rev. 820, 820 (1994) (citation omitted). As she points out, the claimants of the Fourth Amendment’s protections often “appear less than sympathetic.” Id. at 820-21. It was for this very reason that the proponents of the Bill of Rights insisted that those rights be enshrined in the Constitution and set out of the reach of political tides. In submitting the amendments to Congress, Madison “declared that, since tyranny originated at the locus of power, a government based on popular consent would be more likely to become the majority’s instrument for oppressing the minority than the reverse. . . . [Thus,] the right against unreasonable search and seizure was intended to restrain ‘the body of the people operating by the majority against the minority.’” Cuddihy, supra, at 1473-74. As Professor Strossen put it, “[t]he Bill of Rights itself manifests the Framers’ considered judgment that the rights it guarantees presumptively, if not conclusively, outweigh the competing societal concerns in all cases.” N. Strossen, The Fourth Amendment in the Balance: Accurately Setting the Scales Through the Least Intrusive Alternative Analysis, 63 N.Y.U. L. Rev. 1173, 1186 (1988). The Amendment is designed not to collapse at the cry of “public safety” but to hold the government to a requirement of reasonableness even when the government argues it is acting for public safety. It is the inherent nature of police work to deal with dangerous situations; if danger becomes a justification for dispensing with the requirement of reliability, then there will be nothing left of the Fourth Amendment.