State v. Hobson

McQUADE, Justice

(dissenting).

The trial court held that the stopping and questioning of Hobson was an arrest and that the police did not possess sufficient information about Hobson’s illegal drug activities at the time of the stop to meet the constitutional probable cause requirement for an arrest. The trial court granted Hobson’s motion to suppress the use of the amphetamines as evidence on the ground that they were the fruit of an *926 unlawful arrest. The majority reverses the trial court on the basis that the stopping of Hobson was not an arrest, but a constitutional investigatory stop which requires something less than probable cause. The majority bases its conclusion that the stop was constitutional on the recent Supreme Court cases of Terry v. Ohio 1 and Adams v. Williams. 2 The decisions of the Supreme Court in the areas of criminal procedure and protection of constitutional rights establish only the minimum standards of protection, and the states are free to adopt higher standards of protection. 3 A reading of Terry v. Ohio and Adams v. Williams reveals that they do not set forth any reasonably articulable test to guide the police in street encounters. By adopting the Supreme Court’s cases, the majority opinion does not set forth any guidelines for the police to follow in street encounters which will result in a large number of appeals on this issue. This Court should attempt to establish a clear test to guide the police in street encounters rather than adopting the Supreme Court’s decisions on a wholesale basis.

Although the majority adopts Terry v. Ohio and Adams v. Williams, it fails to follow them in this action. The conduct of the police failed to even meet the minimum standards set forth by the Supreme Court and therefore, the trial court must be affirmed.

In Terry v. Ohio, the Supreme Court ruled for the first time on the constitutionality of investigatory stops and frisks. The case involved a police officer with thirty-nine years of experience who observed the following:

“[T]wo men hover about a street corner for an extended period of time, at the end of which it becomes apparent that they are not waiting for anyone or anything; where these men pace alternately along an identical route, pausing to stare in the same store window roughly 24 times; where each completion of this route is followed immediately by a conference between the two men on the corner; where they are joined in one of these conferences by a third man who leaves swiftly; and where the two men finally follow the third and rejoin him a couple of blocks away.” 4

After the above observations the officer confronted the individuals, identified himself and asked them their names. Upon becoming fearful for his own safety he grabbed one of the suspects and discovered a concealed weapon in a pat-down search. In Terry v. Ohio, the Supreme Court was mainly concerned with the constitutionality of the search not the stop. The Court held,

“We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.” 5

Although the Terry case is not particularly artfully drafted, it appears that the test for a constitutional stop is that the conduct of the suspects would lead a reasonable man *927 to conclude that criminal activity is afoot. In applying the reasonable man test the Court warned,

“The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate? Cf. Carroll v. United States, 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925); Beck v. Ohio, 379 U.S. 89, 96-97 , 85 S.Ct. 223 , 13 L.Ed.2d 143 (1964). Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction. See, e. g., Beck v. Ohio, supra ; Rios v. United States, 364 U.S. 253 , 80 S.Ct. 1431 , 4 L.Ed.2d 1688 (1960); Henry v. United States, 361 U.S. 98 , 80 S.Ct. 168 , 4 L.Ed.2d 134 (1959). And simple 1 “good faith on the part of the arresting officer is not enough.” . If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be “secure in their persons, houses, papers, and effects,” only in the discretion of the police.’ Beck v. Ohio, supra, at 97 , 85 S.Ct. 223 .” 6

There was also need for immediate action in the Terry case, because the officer believed that he was witnessing the beginning of an armed robbery and weapons were found on the suspects.

The question for this Court in this action if it adopts the Supreme Court’s stop and frisk rule is whether the police officers possessed sufficient information that would lead a reasonable man to conclude that “criminal activity may be afoot.” The only information that the police possessed concerning Hobson was through an anonymous phone call in which Hobson was named, the color, make and location of his automobile was described, and he was accused of possessing illegal drugs. On the basis of this information alone, without further investigation or apparent need for an immediate arrest, five parol cars located Hobson in a different part of Boise than stated in the tip, and pulled him over for questioning. Contrary to Terry, this is not a case in which the police became suspicious about a person by observing his conduct because the only information they had was from an anonymous tipster and the only part of that information that involved criminal activity was the bald allegation of possession of illegal drugs. Also contrary to Terry, there is nothing in the record to indicate that immediate action was necessary by the police. On the basis of the majority opinion anyone can call the police, describe an automobile and its owner and allege possession of illegal drugs with the result that the described person will be pulled over, required to identify himself, interrogated about criminal behavior, and his automobile subjected to a visual search. The majority sets up an excellent means of harassment. Because of the lack of any basis upon which a detached reasonable man could conclude that Hob-son was involved in criminal activity, the case of Terry v. Ohio does not support the result reached by the majority.

The second Supreme Court case relied on by the majority is Adams v. Williams. 7 In that case a stop and frisk based on a tip was held constitutional. The facts of the case were that the police officer was on patrol in a high-crime area of Bridgeport, Connecticut. A person known to the officer informed him that an individual seated in a nearby automobile was carrying narcotics and had a gun at his waist. The of *928 ficer went over to the car and ordered the occupant to get out. Instead, the occupant rolled down the window and the officer reached in and removed the gun. The arrest for possession of the gun was upheld. In considering the reasonableness of the officer’s actions in relationship to the information he possessed, the Court stated,

“The informant was known to him [the officer] personally and had provided him with information in the past. This is a stronger case than obtains in the case of an anonymous telephone tip. The informant here came forward personally to give information that was immediately verifiable at the scene. Indeed, under Connecticut law, the informant might have been subject to immediate arrest for making a false complaint had Sgt. Connolly’s investigation proved the tip incorrect. Thus, while the Court’s decisions indicate that this informant’s unverified tip may have been insufficient for a narcotics arrest or search warrant, see, e. g., Spinelli v. United States, 393 U.S. 410 , 89 S.Ct. 584 , 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 (1964), the information carried'enough indicia of reliability to justify the officer’s forcible stop of Williams.” (Emphasis added). 8

Clearly this action is not controlled by the Williams case because this action involves an anonymous telephone tip which was impliedly rejected by the Supreme Court as a basis for a stop and frisk.

The Fourth Amendment of the United States Constitution and art. 1, § 17 of the Idaho Constitution guarantee the right of the people to be secure against unreasonable seizures. The majority acknowledges that the stopping of Hobson was a seizure and based on the Supreme Court’s analysis adopted by the majority, it was an unreasonable seizure.

It is unfortunate that the evidence in this action must be suppressed because it appears that Hobson was involved in illegal drugs. Had the police conducted an investigation to corroborate the anonymous tip before seizing Hobson, it is likely that this action would not be before this Court. The police must be given authority to investigate criminal activity, but there are constitutional limits on the scope of the investigative power. In conducting this action, this Court must look beyond the facts of this case to the impact of its ruling on the general public. In this case the anonymous tip led to a person involved in illegal drugs, but how many times will innocent citizens be stopped and interrogated about criminal involvement? This Court only sees the cases in which criminal complaints are filed and does not see the cases where citizens were stopped and questioned and generally harassed and no evidence of criminal conduct discovered. It must be remembered that rules adopted by this Court will be applied to both the guilty and the innocent.

By guaranteeing freedom from unreasonable seizures, the Idaho and United States Constitutions recognize the citizen’s right to be free from arbitrary governmental interference. Stopping and questioning a citizen with five patrol cars based on an uncorroborated anonymous telephone tip is arbitrary and unreasonable interference with Hobson’s right to be let alone, and therefore unconstitutional.

. 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968).

. 407 U.S. 143 , 92 S.Ct. 1921 , 32 L.Ed.2d 612 (1972).

. Cooper v. California, 386 U.S. 58 , 87 S.Ct. 788 , 17 L.Ed.2d 730 (1966) ; People v. Kelly, 14 Crim.L.Rptr. 1089 where the New York County Criminal Court held that it would not follow the recent Supreme Court cases dealing with searches incident to a traffic arrest.

. U., 392 U.S. at 23 , 88 S.Ct. at 1881 .

. Terry v. Ohio, supra, 30, 88 S.Ct., at 1884 .

. Id., at 21-22 , 88 S.Ct. at 188 .

, Supra, note 2.

. 407 U.S., at 146-147 , 92 S.Ct., at 1923 .