Facts
Police received a complaint from an anonymous caller that “young men, young black men, are standing out on the sidewalks, corners, selling drugs” at the 500 block of Union Street in Greenville, Mississippi. Upon arrival at Union Street, police found two men standing in the sidewalk area in front of a house located on the 500 block.
An officer recognized Tazarius Cooper from prior narcotics calls, exited the vehicle, and commanded Cooper to “come here and let me talk to you.” Cooper, however, began running toward the house, forced the door open, and continued inside.
This particular house was decrepit and unlivable with holes in the walls and floor. As the officer went up the stairs to enter the house in pursuit of Cooper, he saw Cooper throw a plastic baggie containing a blue substance into a hole in the wall inside the house.
The officer entered the house and detained Cooper and then retrieved the discarded bag from the hole in the wall and discovered that it contained twenty one blue pills with dolphin imprints, which field tested positive for ecstasy. He was convicted of possession of ecstasy with intent to distribute and sentenced to seven years.
On appeal, he argued the stop lacked reasonable suspicion and so the drugs should have been suppressed. MSC agreed that the initial stop lacked reasonable suspicion; however, under the facts of this case, his flight allowed police to pursue and he then had no standing to object to drugs he abandoned in a house that did not belong to him.
Analysis
A. No reasonable suspicion in this case
Before conducting an investigatory, or Terry stop, officers are required to have reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in a felony or some objective manifestation that the person stopped is or is about to be engaged in criminal activity.
Reasonable suspicion can arise from an officer’s personal observations, a tip by a trusted police informant, or by anonymous tip. An anonymous tipster’s veracity, reliability, and basis of knowledge are relevant considerations in establishing reasonable suspicion.
Although the U.S. Supreme Court in Alabama v. White, 496 U.S. 325 (1990), has opined that an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity, it also has held in Florida v J.L., 529 U.S. 266 (2000), that there are situations in which an anonymous tip, suitably corroborated, exhibits sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.
In McClellan, this court held that the initial anonymous tip of a man and woman buying large amounts of pseudoephedrine and leaving in a specific car may have been somewhat vague, but we held the stop was proper because the police accumulated many more details about the suspects and their activities before making the stop.
In Linson, a confidential informant stated that three black males were selling drugs at a specific intersection. Police went and observed the men approach two different vehicles for brief meetings, after which the vehicles would drive away. MCOA found that Linson’s investigatory stop and frisk were justified because the tip was received from a confidential informant who had been reliable in the past and because of the suspicious activity witnessed when investigating the facts of the tip.
Considering the totality of the circumstances in the case before us today, we find that the anonymous tip lacked sufficient indicia of reliability to form reasonable suspicion before stopping Cooper. The tip had a significant lack of detail, with just a general description of the race and gender of the suspects, a generic allegation of illegal drug activity, and the general area in which the activity was occurring.
Unlike Linson, the caller did not identify the number of men engaging in illegal drug activity or a specific location where these events occurred. Also, there was no identification of the suspects by physical attributes, such as clothing, or other distinguishing features.
Of equal importance is the fact that the officers conducted no independent investigation to corroborate the few details provided in the tip or to accumulate more information about the alleged drug trafficking activity before stopping Cooper. They merely proceeded to the 500 block and attempted to stop Cooper and Wright, the first black males they observed in the vicinity.
While an officer’s knowledge of Cooper’s identity from prior narcotics related complaints may only slightly bolster the tip’s credibility, this fact alone does not elevate an otherwise unreliable tip to the level of creating reasonable suspicion. The officers should have accumulated additional specific and articulable facts to determine if a reasonable basis existed to believe Cooper was engaged in the illegal sale or possession of narcotics, similar to the course of action officers took in Linson.
B. Terry stop doesn’t occur until there is a seizure
In California v. Hodari, 499 U.S. 621 (1991), the U.S. Supreme Court held that, absent the use of physical force, a seizure requires submission to an officer’s show of authority. In that case, Hodari fled from police and was not seized until he was tackled by police.
Like Hodari, Cooper did not yield to the officer’s show of authority – a command to “come here and let me talk to you.” Instead, he immediately began to flee after hearing the officer’s command. Thus, we find that – even though the officers lacked reasonable suspicion to conduct a Terry stop – Cooper was not seized until after he ran, discarded the drugs, and was detained by police.
So we affirm the trial court’s denial of Cooper’s motion to suppress – not because the officers had reasonable suspicion sufficient for a Terry stop – but because the Terry stop never took place.
C. Flight allowed police pursuit in this case
The U.S. Supreme Court in Illinois v Wardlow, 528 U.S. 119 (2000), determined that headlong flight — wherever it occurs — is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such. Furthermore, nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.
On the other hand, the U.S. Supreme Court also stated in Wardlow that where an officer, lacking reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go about his business.
But this was not a situation where Cooper was merely exercising his right to disregard the police and go about his business. As officers exited the vehicle to approach Cooper, he was already starting to back off a little bit.
Clearly, this was an act of evasion upon approach of police, which, combined with the officer’s prior knowledge of the area’s reputation for drug trafficking and criminal activity and history associated with Cooper, gave rise to a suspicion that Cooper was somehow associated with illegal activity.
So, even before seeing Cooper throw the bag of ecstasy into the wall, the officer was justified in his pursuit. Although officers lacked reasonable suspicion to conduct a Terry stop before his initial interaction with Cooper, based upon the totality of the circumstances, we find that Cooper’s flight gave rise to reasonable suspicion sufficient for officers to follow in pursuit.
D. Cooper lacks standing to object to items found in home
Cooper lacks standing to challenge the warrantless search of the home because he lacked a legitimate and reasonable expectation of privacy there. The Fourth Amendment of the U.S. Constitution and Article 3, Section 23 of the Mississippi Constitution protects occupants of a home from warrantless and nonconsensual entry by police.
But to claim protection under the Fourth Amendment, a defendant must have a legitimate expectation of privacy in the invaded place, typically restricted to those who rent, own, or otherwise reside in the dwelling. The U.S. Supreme Court in Minnesota v Olsen, 495 U.S. 91 (1990), extended this protection to overnight guests as staying overnight in another’s home is a longstanding social custom that serves functions recognized as valuable by society.
Here, it is clear that Cooper did not have a reasonable expectation of privacy when he entered the house in question. Cooper admitted that he did not live there, and an officer testified at the hearing that he knew the actual occupant of the home.
Further, Cooper provided a home address on a different street in Greenville at the time of his arrest. The officer also testified that Cooper had to force open the door to enter, which also suggests that he did not have a right to be inside the dwelling. Because Cooper discarded the ecstasy before being seized or detained by police, in a home in which he did not have a reasonable expectation of privacy, we find that the search of the home and seizure of the evidence were proper.
Thoughts
I know this is a long case but it is important to understand. The first Terry stop was unjustified and was not completed (Cooper was not seized). Then, Cooper fled.
There is a U.S. Supreme Court case named Illinois v. Wardlow, 528 US 119 (2000), which holds that sudden and unprovoked flight in a high crime area justifies an officer’s reasonable suspicion to stop the subject. Under the specific facts of this case, that is what allowed officers to pursue Cooper.
Finally, he had no standing to object to drugs he discarded in a home that did not belong to him.
If you are going to use Wardlow, you need to be able to properly articulate in your police report 1) the high crime area and 2) the sudden and unprovoked flight which justified your actions.