«New York State Bar Examination Essay Questions QUESTION 1 Bob and Ann were married in 2000 in State X. In 2001, the couple moved to New York, and Bob ...»
(quoting Terry). In determining whether the officer's suspicion is reasonable, courts looks at the totality of the circumstances. Id.
Cases involving anonymous informants are particularly suspect. In Franklin and elsewhere, courts have long recognized that tips from anonymous informants lack the reliability of tips from known or identified informants. Montel. Accordingly, to support a reasonable suspicion, an anonymous tip must be (1) "reliable in its assertion of illegality, not just in its tendency to identify a determinate person," as well as (2) corroborated, "such as by investigation or independent police observation of unusually suspicious conduct...." Montel (quoting Florida v. J.L., 529 U.S. 266, 272 (2000).
In this case, the totality of the circumstances indicates that Officer Simon did not have enough grounds to form a reasonable suspicion: the anonymous tipster who called the police about McLain was unknown to the police and otherwise lacking in reliability, and the tip itself was not supported by sufficient independent corroboration. For these reasons, Officer Simon's stop of McLain and subsequent search of his car and shed were unconstitutional, and the fruits of those unlawful searches must be suppressed.
A. The Anonymous, Unknown Tipster Who Identified McLain's Activity As Suspicious Was Lacking In Reliability Officer Simon lacked reasonable suspicion justifying his decision to stop McLain because his primary source of information was entirely lacking in reliability. In a similar case, State v. Sneed (Fr. Ct. App. 1999), police stopped the defendant after he visited a house that police had been surveilling based on a tip from an "untested confidential informant." The court held that the police did not have reasonable suspicion to stop the defendant, noting that they stopped him without verifying the tip through independent investigation. Likewise, in Montel, a tip from even a known informant did not support a reasonable suspicion when it was otherwise lacking in reliability.
Here, the tipster who called the Centralia police hotline was an untested, anonymous informant who refused to give the hotline his name. Unlike previous hotline calls from the Oxford Street area, which had been from Shop-Mart managers and employees, this call was not from a Shop-Mart manager or employee and was otherwise unknown to the police. Moreover, whereas previous calls had involved shoplifting, this call was the first to report methamphetamine activity. Additionally, the informant did not have any firsthand knowledge that McLain was purchasing the items in question to manufacture drugs. Rather, the tipster made clear in the call transcript that it was his own conclusion that McLain was "clearly up to something." Unlike the tipster in State v.
Grayson (Fr. Ct. App. 2007), who gave police specific details indicating knowledge that the defendant had cocaine in his briefcase, the tipster in this case had no concrete knowledge of unlawful activity, only a suspicion. Lastly, the informant refused to identify himself. All of these factors seriously call into question the reliability of the tipster. As in Montel, because the tip had a "relatively low degree of reliability,... [t]he tip, standing alone, was insufficient to provide reasonable suspicion for the officers' stop." Montel.
B. The Anonymous Tip Was Not Supported By Sufficient "Independent Police Corroboration" Moreover, the "independent police corroboration" in this case falls fall short of the corroboration needed to supplement an otherwise unreliable tip. Independent corroboration can include such evidence as independent police observation and unusually suspicious conduct. Montel. It may also include specific knowledge that a location or area is often used for a particular illegal purpose. See Sneed (finding no reasonable suspicion where there was no evidence that the area was known for drug trafficking or that the house under surveillance had experienced short-term traffic); cf. Montel ("A person's mere presence in a high-crime area known for drug activity does not, by itself, justify a stop.") Officer Simon's "independent police corroboration" in this case consisted solely in locating McLain's car, verifying that he matched the description given, and observing him coming out of the Cullen's Food Emporium with a small paper bag in his hand.
Merely identifying that McLain's car and appearance matched the description given goes only to identification; it is insufficient to give rise to a reasonable suspicion of criminal activity. Officer Simon's observation that he matched the description is no more confirmatory than the observation made by the police in Montel that the defendant had a white Honda, and which the court held to be insufficient. Innocent shoppers walk out of grocery stores all day, and had the informant been lying or mistaken, Officer Simon could well have stopped and searched an innocent person. In such a case, his suspicion would clearly appear to be unreasonable.
This police work also falls short of the independent corroboration conducted by the police in Grayson. In Grayson, police followed the defendant and confirmed that he had followed the exact route that the informant had said he would. Moreover, in Grayson, the police also had more specific information from the informant that indicated that the informant had personal knowledge of the defendant's possession of illegal cocaine.
Moreover, McLain's conduct was not unusually suspicious. Viewing a man walk out of a grocery store with a paper bag falls far short of suspicious activity. While the informant had told police that McLain had purchased Sudafed from the Shop-Mart and had asked about engine-starter fluid, this information must be treated as suspect because of its unreliable source.
Finally, there is no indication here that the Oxford and 8th Street area is known for methamphetamine activity. While the area has experienced an uptick in crime, the fact that an area is high in crime is, by itself, insufficient. Montel ("The fact that the area of Franklin City where Montel's car was stopped is a high-crime area did not warrant the stop."). As Officer Simon testified, this was the first report of methamphetamine activity in the area. Therefore, Officer Simon's suspicion was lacking in this independent basis of support as well.
Because the anonymous tip was unreliable, and Officer Simon had not done sufficient independent police work to corroborate the tipster's information, he did not have a reasonable suspicion to stop McLain, and the motion to suppress should be granted.
II. The Equipment Possession Count (Count Two) Must Be Dismissed Because It Is A Lesser-Included Offense of the Manufacture Count (Count Three) The equipment possession count, Count Two, against McLain must be dismissed because it violates McLain's constitutional right not to be placed in double jeopardy for the same criminal act. Where a criminal defendant is prosecuted for a "greater" crime which necessarily includes the "lesser" crime, "the latter offense is a lesser-included offense and prosecution of both crimes violates double jeopardy." State v. Decker (Fr.
Sup. Ct. 2005) (citing Blockburger v. United States, 284 U.S. 299 (1932)). "A lesser included offense is necessarily included within the greater offense if it is impossible to commit the greater offense without first having committed the lesser offense."
Courts in Franklin analyze whether a crime is a lesser included offense by applying the "strict elements" test--comparing the elements of both offenses. Decker.
Here, Franklin Criminal Code section 43 defines unlawful methamphetamine equipment possession as (1) knowingly (2) possessing equipment or chemicals (3) for the purpose of manufacturing methamphetamine. Franklin Criminal Code section 51 defines unlawful methamphetamine manufacture as (1) knowingly (2) manufacturing methamphetamine.
Section 51 further defines "manufacture" to mean "produce, compound, convert, or process methamphetamine, including to package or repackage the substance, either directly or indirectly by extraction from substances of natural origin or by means of chemical synthesis."
The fact that the elements do not read exactly in the same way does not preclude a finding that equipment possession is not a lesser-included offense of manufacture.
"Franklin case law does not require a strict textual comparison such that only where all the elements of the compared offenses coincide exactly will one offense be deemed a lesser-included offense of the greater." Decker. Here, the element "manufacturing methamphetamine" necessarily includes the elements of the equipment possession count;
one cannot manufacture methamphetamine without knowingly possessing equipment or chemicals for the purpose of manufacturing methamphetamine. This case is not like State v. Jackson, in which the court concluded that possession of drug paraphernalia was not a lesser-included offense of possession of cocaine because one can possess drugs and not paraphernalia, as well as paraphernalia without drugs. Here, one cannot manufacture methamphetamine without knowingly possessing equipment or chemicals for the purpose of manufacturing methamphetamine. For these reasons, the equipment possession count is a lesser-included offense of the manufacture count, and the Constitution prevents the State from prosecuting McLain for both. Accordingly, the equipment possession count should be denied.
ANSWER TO MPT
I. Officer Simon Had No Reasonable Suspicion to Justify the Stop and Interrogation of McLain.
A police officer may not stop and interrogate a person suspected of criminal conduct unless the officer has "'a reasonable suspicion, grounded in specific and articulable facts, that the person [is] involved in criminal activity' at the time." State v.
Montel (Fr. Ct. App. 2003) (citing Terry v. Ohio, 392 U.S. 1 (1968).
While an anonymous tip from an informant who has proven reliable to police in the past may provide a reasonable suspicion, "an anonymous tip is different; it must be corroborated, such as by investigation or independent police observation of unusually suspicious conduct, and must be 'reliable in its assertion of illegality, not just in its tendency to identify a determinate person.'" State v. Montel (Fr. Ct. App. 2003) (citing Florida v. J.L., 529 U.S. 266, 272 (2000). A stop "based solely on information received by an informant without [an independent investigation verifying the informant's investigation]" is invalid. State v. Montel (Fr. Ct. App. 2003) (discussing with approval State v. Sneed (Fr. Ct. App. 1999) wherein the Sneed court held that a tip from an untested confidential informant that a house was being used to peddle heroin was not sufficient to justify the search of an individual visiting the house where heroin was avertedly being peddled).
Officer Simon's stop and interrogation of McLain was exactly the sort of stop and interrogation based solely on an anonymous tip that is forbidden by Montel, and as the stop and interrogation violated McLain's Fourth Amendment rights, all evidence and statements following the stop must be suppressed under the fruit of the poisonous tree doctrine.
According to Officer Simon, McLain was stopped on the basis of the anonymous tipster's tip, and Officer Simon alluded to the justification that he further stopped McLain on the basis of his presence in a high-crime area. However, the averred high rate of criminal activity referred to by Officer Simon related to shoplifting and vandalism, and such crimes are irrelevant to the drug activity alleged by the anonymous tipster. In any event, any such assertion by Simon is irrelevant, as "a person's mere presence in a highcrime area known for drug activity does not, by itself, justify a stop[,]" and presence in a high-crime area does not suffice as sufficient corroboration to an anonymous tip to constitute reasonable suspicion justifying a stop and interrogation. State v. Montel (Fr.
Ct. App. 2003).
Further, the anonymous tipster did not even allege and criminal activity. The tipster merely speculated that a person buying cold medicine and coffee filters, and commenting on the sale of engine-starter fluid, was engaged in the manufacture of methamphetamine. As Officer Simon testified, the purchase of all these items is perfectly legal, and as Officer Simon testified, the tipster omitted that McLain also purchase other innocuous and legal items.
Moreover, the situation here is distinguishable from that in State v. Grayson (Fr.
Ct. App. 2007). In Grayson, the Franklin Court of Appeal held that an anonymous tip was "sufficiently corroborated [by independent police investigation]" as the tipster correctly predicted specific behavior that an individual would engage in, and the police then watched the individual to verify the tipster's reliability by cross-referencing the individuals behavior to the tipster's predictions. The tipster was able to accurately predict that the individual stopped left a particular apartment building, entered a particular vehicle with a broken tail-light, and followed a route described by the tipster. Id.
Here the anonymous tipster was only able to provide a general description of a "skuzzy looking" individual matching McLain's general description. Moreover, the anonymous tipster stated the "skuzzy looking" individual was at the Oxford Street ShopMart, when in fact, Officer Simon testified McLain was neither at Shop-Mart nor in Shop-Mart's parking lot. Further, the anonymous tipster reported that the "skuzzy looking" individual had purchased coffee filter, but omitted the fact he purchased coffee.
According to Officer Simon coffee filters are commonly used to manufacture methamphetamine, but as a matter of common knowledge coffee filters are assuredly more often purchased to brew and manufacture coffee.
Unlike Grayson, here the tipster provided inaccurate information that Officer Simon actually proved false by his independent investigation. The tipster's vague and speculative assertions of criminal activity were not only uncorroborated by independent police investigation, but were proven false by independent police investigation. The tipster's observations were false, involved a pyramid of assumptions based upon inaccurate and incomplete evidence, and in no way justified a stop and interrogation of McLain.
Thus, here, as in Montel, the tip from the unidentifiable caller was "hearsay...