E.D.Wis.: CI’s only nonpublic fact wasn’t corroborated, so no RS

By John Wesley Hall
Law Offices of John Wesley Hall
Jul 28, 2016

The tipster provided only easily known public information, but for the fact defendant sat in his car and smoked marijuana during his lunch breaks. Police watched him and he didn’t do that. Because the police never corroborated the one observable nonpublic fact, they lacked reasonable suspicion from the CI. United States v. Derrick, 2016 U.S. Dist. LEXIS 96022 (E.D.Wis. June 10, 2016), adopted, 2016 U.S. Dist. LEXIS 96006 (E.D.Wis. July 22, 2016):

In Illinois v. Gates, the Supreme Court held that a highly detailed tip from an anonymous informant that was corroborated by independent police work establishes probable cause. 462 U.S. 213, 246, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); see also White, 496 U.S. at 329 (stating that if “an informant is shown to be right about some things, he is probably right about other facts that he has alleged, including the claim that the object of the tip is engaged in criminal activity”). In White, the Court set forth the following approach for analyzing the reliability of an informant’s tip: “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.” 496 U.S. at 330-31. Thus, a court must “consider the informant’s information—in amount and in degree of reliability—and the degree of corroboration of that information by the officers.” United States v. Navarro, 90 F.3d 1245, 1253 (7th Cir. 1996); see also United States v. Gilbert, 45 F.3d 1163, 1166 (7th Cir. 1995) (stating that “reliability may be shown by the informant’s past record of reliability, [and/or] through independent confirmation or personal observation by the police”).

To be sure, the tipster here did provide Mr. Griffin’s name, his workplace, a description of his car, his status as a convicted felon, and the observation that Mr. Griffin would sit in his car during work breaks to smoke marijuana. But the bulk of these facts are all readily observable or obtainable, even the felony conviction (which can be determined through a public search of the Wisconsin Circuit Court Access website). The only allegedly illegal, and not publicly available, activity reported by the tipster that could have been observed prior to the stop, that Mr. Griffin smoked marijuana while sitting in his car, was contradicted by law enforcement during their fifteen-minute surveillance of Mr. Griffin prior to his seizure.

The tipster here therefore did not supply predicative information that was later corroborated by law enforcement that would have provided the requisite reliability supporting a Terry stop. For example, in White, which the Court itself described as a “close case,” an anonymous tipster told law enforcement that a suspect was carrying cocaine and predicted that she would leave an apartment building at a specific time, get in a car matching a specific description, and then drive to a named motel. 496 U.S. at 329. Because law enforcement confirmed each of these predictions, deemed “inside information,” the Court held that it became reasonable for law enforcement also to conclude that the tipster had sufficient and specialized familiarity with the suspect and her affairs to believe the allegation of cocaine possession. Id. at 332. It was law enforcement’s corroboration of the inside information that gave the tip in White the requisite reliability. Id.

Here, the tipster’s allegations about Mr. Griffin’s public and readily knowable habit of taking breaks outside his workplace in his car are not akin to allegations about future travel plans that the White Court found to be persuasive. See also Gates, 462 U.S. at 245 (crediting an informant’s tip as reliable due to the tipster’s knowledge of the future travel plans of the suspects, which law enforcement corroborated). Additionally, as the J.L. Court observed, “[k]nowledge about a person’s future movements indicates some familiarity with that person’s affairs, but having such knowledge does not necessarily imply that the informant knows, in particular, whether that person is carrying hidden contraband.” 529 U.S. at 271.

Just so here. The only thing the tipster said about Mr. Griffin that suggested, even remotely, that the tipster had some non-public, inside information was the allegation that he smoked marijuana while sitting in his car, a prediction that law

enforcement found did not bear out. Tr. 43; 53; 70. Where the facts contained in a tip are readily observable, the fact that police corroborated them is insignificant. It is only where a tip provides inside information that shows a special familiarity with a suspect’s affairs that police corroboration imparts indicia of reliability to the tip. J.L., 529 U.S. at 271.

“The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search.” Id. In this case, law enforcement candidly testified that Mr. Griffin did not engage in any suspicious behavior, besides leaning over the center console, when they initially drove past him, when they surveilled him for fifteen minutes or when they pulled up on him with lights flashing. Tr. 13; 15-16; 21; 43; 53-54; 63-64; 70; 74. Mr. Griffin did not try to flee and was cooperative during the encounter with police. Tr. 31; 33; 67. The tipster’s allegations had not proved to be true in a crucial aspect (smoking marijuana), and there was nothing else about the tip that would have justified the stop.