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State v. Boyea12/1/2000
l alleging the subject was carrying a gun or even narcotics. Id. "As we clarified when we made indicia of reliability critical in Adams and White, the Fourth Amendment is not so easily satisfied." Id. at 1380.
All of which virtually compels me to ask: If J.L. had turned on his heel and run away when he saw the police officer's approach, as Wardlow had done, would the Court have found the police justified in their response under the Fourth Amendment? Probably so, if the bus stop was in a "high crime" area.
It is also difficult to reconcile the decision in J.L. with the Court's earlier holding in Adams, remembering that there was no evidence in that case to show the basis of the anonymous informant's knowledge that the defendant, a man sitting in a car readily observable by anyone walking by, was carrying narcotics, the only assertion of an illegality involved.
Nevertheless, as the majority here aptly notes, the Court in J.L. stressed that its decision was closely confined to the facts: "The 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. at 1380. The Court hypothesized that a report of a person carrying a bomb as an example of a tip that might require less indicia of reliability than a report of a person carrying a gun. It is important to note that both are allegations of possessory offenses.
Which brings me to what I believe has been the dominant and determinative factor in the Court's development of Fourth Amendment search and seizure law - the unrelenting extension of the principles of Terry to cases where the suspected illegal activity is a possessory offense. Florida v. J.L. (gun), Alabama v. White (drugs), United States v Sokolow (drugs) and Adams v. Williams (drugs and gun) all involved possessory offenses. The cases relied on by the dissent, State v. Altieri, 951 P.2d 866, 867 (Ariz. 1997) (drugs), Commonwealth v. Lyons, 564 N.E.2d 390, 391 (Mass. 1990) (drugs), State v. Kennison, 590 A.2d 1099, 1100 (N.H. 1991) (drugs), United States v. Soto-Cervantes, 138 F.3d 1319, 1321 (10th Cir. 1998) (drugs), United States v. Roberson, 90 F.3d 75, 75 (3rd Cir. 1996) (drugs), all involve possessory offenses. The concerns expressed by Justices Douglas, Brennan and Marshall have receded into history. Application of Terry principles to police actions involving such offenses has become standard.
These decisions are significant, not least because the case before is so clearly distinguishable. The offense alleged here did not involve a concealed crime - a possessory offense. What was described in the police dispatch to the arresting officer was a crime in progress, carried out in public, identifiable and observable by anyone in sight of its commission. Unlike the tip alleged in White - that White was carrying narcotics - or in Adams - that the defendant was carrying narcotics and a gun - here a total stranger could have observed defendant's driving abilities. No intimate or confidential relationship was required to support the accuracy of the observation. The caller simply reported a contemporaneous observation of criminal activity taking place in his line of sight. (Obviously, the caller may have used words other than "erratic driving" to describe what was observed and the dispatcher may have reduced the tipster's information to police lingo before issuing the BOL.)
Thus, to return to the question posed at the beginning - "what would the Supreme Court do under the facts of this case?" - I suggest that it would begin by observing that the veracity, reliability, and basis of the tipster's knowl
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