Spotlight On: Florida v. J.L., 120 S.Ct 1375 (2000). A "Gun Exception" to the Fourth Amendment? Think Again.

by John Brigham1

Contrary to the predictions of may Supreme Court observers and contrary also to the trend of most recent Court decisions interpreting the Fourth Amendment, a unanimous Court has found that an anonymous tip which reports that a person might be carrying a firearm is not, by itself, sufficient to justify a police officer's stop and frisk of that person. Many commentators had anticipated the possibility, particularly in view of the fact that a de facto "drug exception" to the Fourth Amendment may already exist (an exception that can be said to require a lesser standard of probable cause or reasonable suspicion, similar to the "automobile exception"), that the facts of this case indicated a favorable ruling for the government. However, in Florida v. J.L., 120 S. Ct 1375; 2000 U.S. Lexis 2345; 146 L., Ed. 2d 254; 68 U.S.L.W. 4236; 2000 Cal. Daily Op. Service 2409; 2000 Daily Journal DAR 3226; 13 Fla. Law W. Fed S. 216, the Court has resoundingly rejected that possibility. For this reason Florida v. J.L. is noteworthy primarily because it does not break new ground.

Facts and Proceedings of the Case: Florida v. J.L.

Miami police received an anonymous telephone report that a young black male, wearing a plaid shirt and carrying a firearm, was waiting at a particular bus stop. Officers went to that location. three black males were in the vicinity.

The officer noticed that one of the black males (respondent J.L., then 15 years old) wore a plaid shirt, however, the officers saw no signs of any unusual or criminal activity. One officer frisked the male in the plaid shirt and found a firearm in his pocket. He was arrested and charged with unlawful possession of a firearm by a minor and with carrying a concealed firearm without a permit.

At trial, the court agreed with the respondent's claim that the gun was the fruit of an illegal search. It granted his motion to suppress. The intermediate appellate court reversed that finding.

On appeal, the Florida Supreme Court found the search invalid under the Fourth Amendment and reversed, 727 So. 2d 204. The Florida Supreme Court noted that anonymous tips are usually less reliable than those from known informants (see Adams v. Williams, 407 U.S. 143, 146-147, 32 L. Ed. 2d 612, 92 S. Ct. 1921 (1972)) and thus can form an adequate basis for reasonable suspicion only if accompanied by specific indicia of reliability, such as foretelling a suspect's "not easily predicted" movements, 727 So. 2d at 207 (quoting Alabama v. White, 496 U.S. 325, 110 L. Ed. 2d 301, 10 S. Ct. 2412 (1990)). The tip about respondent J.L. at the bus stop, the Florida Supreme Court stated, lacked any "such predictions" and omitted "any other qualifying indicia of reliability." Id. at 207-208. Two justices dissented and, citing the threat to public safety posed by firearms, even called for a "firearms exception" to the general rule prohibiting investigatory stops and frisks based only on sketchy anonymous tips, 727 So. 2d at 214-215.

The United States Supreme Court granted certorari, 528 U.S.__(1999), and unanimously affirmed the judgment of the Florida Supreme Court.

Stop and Frisk and Anonymous Tips

The legal justification for a stop and frisk originated with Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 889, 88 S.Ct. 1868 (1968). Terry established the principle that:

"Where a police officer observes unusual conduct which leads him reasonably to believe that criminal activity is afoot and that the persons with whom he is dealing may be armed and presently dangerous...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 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...to conduct a carefully limited search...of such persons in an attempt to discover weapons..."Id. at 30.

However, the U.S. Supreme Court distinguished respondent's situation from Terry. The officers' suspicions that respondent carried a weapon arose solely from the anonymous telephone call, not from any observations of theirs, reasonable or otherwise. This anonymous tipster could not be held responsible for the quality of his or her information. Nor was his or her information subject to verification.

However, not all anonymous tips, especially if sufficiently corroborated, necessarily lack "sufficient indicia of reliability to provide reasonable suspicion..." Alabama v. White, 496 U.S. at 327, In White, the police also received, via an anonymous tip, information about criminal activity. The caller reported that a woman was carrying cocaine and that she would leave a particular building, at a specified time, and drive a particular car to a designated location. Subsequent police observation soon confirmed each of these predictions and the defendant's arrest followed. Because the tipster accurately predicted the woman's movements, the White court held, it was reasonable to believe the tipster had accurate knowledge about the suspect. The arrest in White, therefore, was valid, even though the Court was careful to note that the fact pattern in White made it a very "close" call. Florida v. J.L., 120 S. Ct. at 1378, citing White, at 332.

The tip in respondent's case lacked even the "moderate" indications of reliability present in Alabama, Florida v. J.L, at 1379. It offered no predictive information and eliminated any chance that the police had to verify the informant's reliability or credibility. The fact that the allegation about the gun proved to be correct does not establish that the officers' suspicion of respondent was therefore reasonable. The reasonableness of their suspicion must be measured by evaluating what the officers knew before they made their search. The Court emphatically rejected the argument made by the State of Florida that the tip was reliable because the description of the respondent proved accurate; there really was a young, black male in a plaid shirt at the bus stop. This proposition, the Court said, is a fundamental misunderstanding of the degree of reliability required for a Terry-type stop. A mere description or identification is not enough. The tip, in order to support a valid stop and frisk, must offer reliability in its description of illegality and in its identification of the suspect. Without both, the tip completely fails to establish any knowledge of any stealthy criminal activity.

The Firearm Exception

A second major argument proposed by Florida and the United States, as amicus curiae, was that the scope of Terry should be expanded to include an exception for firearms. Florida, at 1379. This exception, as proposed, would permit a stop and frisk based on an anonymous tip, even if the reliability of the tip failed the White and the Terry requirements for validity, provided the tip alleged the presence of an illegal gun. The Court unanimously rejected this position.

The Court acknowledged that firearms are dangerous and sometimes require "unusual precautions." Florida, at 1379. Terry, the Court pointed out, in large part exists for this reason. But a firearm exception, on the scope proposed by Florida and the United States, would unjustly permit virtually unlimited opportunity for harassment based on nothing more than anonymous telephone calls. Worse, creating such a wide exception would inevitably create the risk of its expansion to dangers other than just firearms. Many federal appellate cases, for instance, have explicitly recognized a frequent link between firearms and illegal drugs. See, e.g., United States v. Sakhu, 160 F. ed 164, 169 (CA4 1998); United States v. Dean, 59 F.3d 1479, 1490, n. 20 (CA5 1995); United States v. Odom, 13 F.3d 949, 959 (CA6 1994). Some have classified this connection as "per se foreseeable." Florida, at 1379. It is not difficult to imagine, if police were permitted to conduct Terry frisks based on such limited and uncorroborated tips about firearms, that it would eventually seem logical to extend this exception to narcotics as well. But this should not be so easily done. See Richards v. Wisconsin, 520 U.S. 385, 393-394, 137 L. Ed. 2d 615, 117 S. Ct. 1416 (1997) (a per se exception to the requirements for knock and announce rule not allowable in narcotics cases). The danger is that "the reasons for creating an exception in one category [of Fourth Amendment cases] can, relatively easily, be applied to others, 'thus allowing the exception to swallow the rule'." Florida, at 1379 citing Richards v. Wisconsin, 520 U.S. at 393-394.

The Youth Exception

Florida also argued that the respondent's age (15) made the stop and frisk valid, because Florida law requires that persons must be over the age of 21 to carry concealed weapons. The Court rejected this argument also. It pointed out that even if the officers knew that respondent was under the age of 21 (which they did not), they had no reason to be confident that he was, in fact, carrying an illegal weapon. The fact that the anonymous tip described illegal activity does not, by itself, permit a Terry stop. The reliability requirement for Terry must also be satisfied, and respondent's relative age in no way contributed to that determination.

The Limits of Florida v. J.L.

The Court declined to expand unnecessarily on the scope of the holding in Florida. It did not speculate on what other threats or level of dangerousness, if any, if alleged in an anonymous report might justify a stop and frisk without evidence of reliability. It held out the possibility that a report of a bomb, for instance, might not require the same standard of reliability as required for a firearm. And the Court was careful to allow for the possibility that protective searches in public spaces, those spaces in which our reasonable expectation of Fourth Amendment protection is necessarily curtailed (airports, for example), would still be permissible "on the basis of information insufficient to justify searches elsewhere." Florida, at 1380.

Florida v. J.L. makes it clear: police officers may not justify stops and frisks abased on anonymous tips that lack the indications of reliability which White and Adams require.

1 John Brigham is a Senior Attorney at APRI's Juvenile Justice Prosecution Program.