Hello my friends, it’s Anthony Bandiero here, attorney and senior legal instructor for Blue to Gold Law Enforcement Training, bringing you a roadside chat.
This one comes from an officer in California. A call comes in of a man with a gun standing on a street corner, and when the officer arrives he sees the person but no firearm.
Can you detain someone based on a call that they have a gun?
All right, this one comes from an officer in California, and the basic question is: can you search a person based on a reporting party calling in that the person has a firearm?
The context here is a police officer who receives a call of a man with a gun. You know, for example, the guy was on a street corner holding a firearm. Upon arrival the police officer sees the person, but no firearm. What can we do? Can we now search them for the firearm? Can we pat them down? Does it include backpacks and so forth? All right, let’s walk through this step by step.
What did Florida v. J.L. say about anonymous tips?
So the first thing we want to know is that there’s a case out there called Florida v. J.L., U.S. Supreme Court. What happened there was an anonymous tip came in that this person, a young person, possessed a firearm. Nothing about, you know, brandishing, just that they had a firearm. The police arrived, they did see that the person was there, matched the description, patted him down. He was holding an illegal firearm because he was a juvenile. And the U.S. Supreme Court said that that was an unlawful detention and an unlawful frisk.
Here’s why. There’s two things when it comes to acting on an anonymous tip. Number one, why should we believe the person, right? How do we know that they’re being trustworthy? And the second thing is, okay, how do they know what they know? It’s the same type of analogy, or an analysis, that we use for confidential informants.
In J.L. the problem is we have a truly anonymous tip. This person cannot be tracked down, right, so there’s no consequences on the line to the police. The other thing is we don’t know that they’re being reliable, because they’re not telling us any kind of inside information, no corroboration. They’re just basically accusing a person at a bus stop of being a criminal.
Why isn’t an anonymous tip alone enough for reasonable suspicion?
And if the U.S. Supreme Court buys off on this, if they allow these detentions, essentially what they’re allowing is a license to harass. That just makes sense, right? So we’d be running around with our heads cut off, because all these calls are coming in where anonymous tips are saying hey, that guy’s selling drugs, that guy has an illegal gun, right, all this kind of stuff. And that’s not enough.
And also I want to know, why do you think it’s illegal for the person to have a firearm? If they say I saw this young guy with a gun, clearly that’s illegal, right? So we can. But the first part’s missing. We don’t know that they’re reliable.
Is a 911 caller reliable if they won’t give their name?
Let’s bring it, let’s modernize this a little bit though. We also have another case called Navarette v. California, where a person called 911 and accused Navarette of being a drunk driver. However, let’s just assume for the argument’s sake that they don’t want to get involved. They don’t want to sign a citation, they don’t want to sign a witness report. They just want to share this information with you and be left alone.
Is that person reliable? Right, is that a truly anonymous tip? And the answer is no, they’re not truly anonymous, and yes, they are presumed to be reliable. And here’s why. Modern-day 911 systems track the caller, right. We know who they are, we can track them down if need be.
And what can we do if they give us a false report? What can we do if we do act on this tip, and we pull over Navarette, and he’s like, oh let me guess, you got a call that I’m a drunk driver. You’re like, yeah. And I guarantee you that person is my ex-wife, this is the third time she’s done this in, you know, a week or two, right. Then you could go back and get her subscriber info, she didn’t leave her name, and charge her with a crime. So the Supreme Court in that case said people understand the consequences of giving a false report to 911, and they are more reliable than a truly anonymous tip.
Does a man with a gun call give you reasonable suspicion?
Okay, the second thing is, okay fine, we can, let’s say in this case we actually have something that we can track down, so they’re presumed reliable. The second part is how do they know what they know, and is what they’re telling you a crime?
Well, right now we have very limited facts, right. But we have a guy holding a gun on a street corner. That would, in my opinion, be reasonable suspicion that criminal activity is afoot, right. Why should a person be holding a firearm? Even if we don’t have, you know, evidence of a brandishing, or a threatening, or a pointing and so forth, it’s still at least a moderate chance of criminal activity. Why are you pulling out a gun where other people can see you, you know, on a street corner? Is it that maybe the witness did not see who he’s trying to intimidate and so forth? And I think we at least have reasonable suspicion. I mean, in J.L., if the tip was reliable that would be a good stop, because it was a young person, right.
Is seeing a gun in public enough to detain someone?
There have been other cases where simply showing a firearm in public, just seeing a firearm, is not reasonable suspicion, and I completely agree with that. This is simply, you know, imagine you have lawful concealed carry like in a state like Texas, right. Tennessee, most states are lawful carry, you can get concealed weapons permits and so forth. And the way the wind blows your jacket back, and somebody sees the firearm and they call 911. Fine, they’re reliable, because they’re using their own phone and so forth, and they say hey, I saw this guy carrying a concealed weapon. In those states that is not enough to detain that person. There’s no, you know, moderate chance of criminal activity. Just having a firearm in and of itself is not going to be reasonable suspicion in states that have shall issue type of concealed weapons permits, right.
And we also cannot stereotype people. Oh Anthony, what if it’s a high crime area? No, we don’t work like that. In fact, maybe the logic is that people in high crime areas should be seeking concealed weapons permits. So we don’t want to stereotype, and just because they’re in a high crime area, you know, the weapon is probably illegal. That’s not how it works either.
Do California and New Jersey presume a gun is illegal?
So there you go. So that’s the two part: can we trust them, and are they giving us information that would lead us to believe that criminal activity is afoot. I think the answer is yes here. But there is also one more caveat in California.
In California, unfortunately I don’t agree with this, but in California and New Jersey, and it would be in another state like this, there is a presumption that a person, even if it wasn’t the clearly displayed kind of case, which this is more clearly just, you know, the jacket flying back, there is some case law that basically says that you can presume that the gun is illegal because concealed weapon permits are so rare in a place like New Jersey and certain places in California, right. It’s just so rare, and you can make that presumption. Again, I don’t like it. I don’t like the fact that they don’t have concealed carry to begin with, they’re not shall issue states, but that’s not what we’re here for. But just also know that.
What can officers actually do on a man with a gun call?
So the answer in this case for my cop in California, I think it’s a good stop. Now let’s go through what can we do. I don’t think we have probable cause, right. I think we have reasonable suspicion. So our search is going to be a pat down. So we start with the person’s outer clothing, you know, we go from there.
Can you pat down a backpack or a purse for a gun?
If the gun is not found on them from a pat down of their outer clothing, can we pat down the backpack or the purse? And the answer is yes. What the courts would like to see, you know, again, we’re going to ask this person questions, and he says hey, back up, I got a concealed weapons permit, I didn’t bring it out or anything like that, just maybe my jacket blew back, and he pulls out his permit. You know, maybe you’re done at that point, right, unless there’s other allegations he’s doing something threatening.
But if he’s like no, I don’t have a gun, and you know, especially if he has a criminal history and maybe he’s possibly engaged in other criminal activity like drug sales and so forth, and you choose to pat down the backpack, you start from the outside just like you do with the person. You do the best job you can. If you feel a firearm in there, then you take care of business. If the backpack is not conducive to patting down from the outside, then courts would allow a limited intrusion into the interior to basically look for a firearm, right. This is not going to the coin purses. This is not going to smaller areas that cannot hold the firearm. But that’s basically it. You have to make use of good judgment, and that’s kind of where we’re at.
All right, I hope it helped. I hope I helped you get it right every time. See you next time.
The short version
- There’s two things when it comes to acting on an anonymous tip. Number one, why should we believe the person? And the second thing is, okay, how do they know what they know?
- In J.L. the problem is we have a truly anonymous tip. This person cannot be tracked down, so there’s no consequences on the line to the police.
- If they allow these detentions, essentially what they’re allowing is a license to harass.
- Modern-day 911 systems track the caller. We know who they are, we can track them down if need be.
- People understand the consequences of giving a false report to 911, and they are more reliable than a truly anonymous tip.
- We have a guy holding a gun on a street corner. That would, in my opinion, be reasonable suspicion that criminal activity is afoot.
- Just having a firearm in and of itself is not going to be reasonable suspicion in states that have shall issue type of concealed weapons permits.
- We also cannot stereotype people. Oh Anthony, what if it’s a high crime area? No, we don’t work like that.
- I don’t think we have probable cause. I think we have reasonable suspicion. So our search is going to be a pat down.
- If the backpack is not conducive to patting down from the outside, then courts would allow a limited intrusion into the interior to basically look for a firearm. This is not going to the coin purses.
Related from Blue to Gold
- Frisking a Student Based on an Anonymous Tip
- Can Police Unload or Disassemble a Lawfully Carried Gun During a Traffic Stop?
- Purses, Bags and Backpacks
This article is an edited transcript of Roadside Chat Ep. #181. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
