Using Anonymous Informants to Establish Reasonable Suspicion for a Stop

• Publication year: 2003
• Pages: 61

32 Colo.Law. 61 Colorado Lawyer 2003.

2003, June, Pg. 61. Using Anonymous Informants to Establish Reasonable Suspicion for a Stop

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61

Vol. 32, No. 6, Pg. 61

The Colorado Lawyer
June 2003
Vol. 32, No. 6 [Page 61]

Specialty Law Columns
Criminal Law Newsletter
Using Anonymous Informants to Establish Reasonable Suspicion for a Stop
by R. Jason Richards

This column is sponsored by the CBA Criminal Law Section. It features articles written by prosecutors, defense lawyers and judges to provide information about case law legislation, and advocacy affecting the prosecution, defense and administration of criminal cases in

Colorado state and federal courts.

Column Editors:

Leonard Frieling, a criminal defense attorney in private practice, Boulder - (303) 449-0092; Morris Hoffman, a judge for the Second Judicial District Court, Denver

About The Author:

This month's article was written by R. Jason Richards, a former deputy district attorney for the Thirteenth Judicial District of Colorado. He is a sole practitioner in Ft. Collins - (970) 231-6551,

jason@jasonrichardslaw.com.

This article reviews the vital, yet controversial, role that anonymous informants play in the criminal justice system. It analyzes a recent Colorado Supreme Court decision

clarifying the law relative to using anonymous tips to establish reasonable suspicion to make a stop.

The beneficial use of informants has long been recognized in Colorado.1 It provides citizens with the opportunity to become involved in curbing criminal activity and serves as a valuable weapon for police. The extent to which police rely on anonymous informants, however, involves serious Fourth Amendment (search and seizure) issues, which turn on the particular facts of each case. For years, Colorado courts have struggled to determine how much corroboration arising out of an anonymous tip is sufficient to establish reasonable suspicion.2

In 2001, the Colorado Supreme Court addressed the issue of anonymous informants in People v. Polander,3 a thus far little-noticed opinion with perhaps significant consequences to practitioners, law enforcement personnel, and courts alike. This article reviews case law pre- and post-Polander. The article addresses anonymous tips in the context of reasonable suspicion for a stop, rather than in the context of probable cause for a search or an arrest.4 However, as one judge noted, "[b]ecause probable cause is a higher standard than that of reasonable suspicion, [a] Court's analysis may certainly be applied in assessing whether the less stringent standard has been met."5

Relevant U.S. Supreme Court Case Law

In the 1983 case of Illinois v. Gates,6 the U.S. Supreme Court supplanted the long-standing Aguilar/Spinelli test,7 which focused on the joint concerns of "reliability" and "basis of knowledge" relative to the anonymous tip.8 In its place, the Gates court adopted the "totality of the circumstances test" with respect to the use of anonymous informants to justify searches and seizures. Under the Gates totality standard, an anonymous tip, standing alone, could establish probable cause if the police could corroborate some (not necessarily all) aspects of the tipster's information.

Although the Court failed to articulate exactly what corroboration might be necessary to fulfill this purpose, the practical effect of the Gates totality of the circumstances test was to allow probable cause to be based on the mere corroboration of anonymous information involving otherwise innocent activity.9 Colorado adopted the totality of the circumstances test three years later in People v. Pannebaker.10

The U.S. Supreme Court further developed the anonymous informant doctrine in a 1990 case, Alabama v. White.11 In applying the totality of the circumstances test from Gates, the Court elaborated that the "quality and quantity" of the anonymous information may be considered in examining the totality standard. The White case involved an anonymous tip to police that a woman would shortly be leaving an apartment carrying cocaine in her briefcase. The anonymous tipster further said that the woman would get into a specific car and drive to a stated location. Thereafter, the woman acted in accordance with the tipster's predictions.

The Court acknowledged that this was a "close case" because while an informant's "[k]nowledge about a person's future movements indicates some familiarity with that person's affairs, . . . [to] have such knowledge does not necessarily imply that the informant knows, in particular, whether that person is carrying hidden contraband."12 Nevertheless, the Court found that "sufficient indicia of reliability" existed to justify the investigatory stop because the reported facts later were corroborated by independent police investigation.13 Thus, according to the Court, there existed "some minimal...