Constitutional Criminal Procedure - James P. Fleissner

• Citation: Vol. 47 No. 2
• Publication year: 1996

Constitutional Criminal Procedureby James P. Fleissner^*

I. Introduction

This Article surveys significant 1995 decisions of the United States Court of Appeals for the Eleventh Circuit in the field commonly referred to as "Constitutional Criminal Procedure." The primary focus of this branch of criminal procedure is on the interpretation of the Fourth, Fifth, and Sixth Amendments to the Constitution. In selecting notable cases from 1995, the author looked for important interpretations of legal tests, rulings in cases of first impression, and opinions on close or controversial questions. I have endeavored to provide criminal practitioners with a useful "briefing" on recent significant developments in the Eleventh Circuit. Furthermore, I hope that the analysis and critique of the cases surveyed will constitute a modest contribution to the dialogue concerning the judicial branch's interpretation of the provisions of the Bill of Rights that are the foundation of the criminal justice system.

Is there a theme that characterizes these 1995 decisions of the Eleventh Circuit? Of course, it is difficult to discern any single, clear analytical thread running through a year's decisions concerning a number of complex issues. It is fashionable to render a judgment about whether a court's decisions reflect a pro-law enforcement or pro-defense tendency, and perhaps never more fashionable than now. The recent public controversy concerning a suppression order entered, and then withdrawn, by a federal district judge in New York has brought

Constitutional criminal procedure to the forefront.¹ Indeed, it appears that the philosophy of federal judges on these issues will be a prominent issue in the coming political season of 1996.² In the parlance of the political sound bite, the tenor of the Eleventh Circuit's 1995 cases in the field of constitutional criminal procedure was "pro-law enforcement." While that label omits much, including some government losses, it captures a general truth. Nineteen-ninety-five was a good year for prosecutors in the Eleventh Circuit. Having rendered that judgment after a fashion, it is important not to overdo it by drawing more sweeping conclusions that may unfairly impute motives or imply purely outcome-oriented decision making.³ The critique of the decisions of a court is most fair, and meaningful, when addressed to specific issues.

II. The Fourth Amendment

A. Investigatory Stop and Frisk Cases

The Eleventh Circuit issued several noteworthy decisions concerning the validity of investigatory stops and protective pat-down searches. The first was United States v. Gibson,⁴ a case involving the recurring problem of investigatory stops that are based on anonymous tips to the police. In Gibson, the police received an anonymous telephone call reporting that there were two armed African-American men at Tiny's Bar in Miami.⁵ The tipster described one of the men as wearing a white shirt and beige pants and the other man as wearing a long black trench coat.⁶ Two policemen arrived at the bar minutes later and saw an African-American man wearing a white shirt and beige pants standing outside the bar.⁷ As the police approached, the man in the white shirt and beige pants walked away, and the police were not able to confront him.⁸ The police officers then entered the bar and quickly spotted an African-American in a trench coat; that man was defendant Gibson.⁹ As the officers approached Gibson, they saw Gibson turn to face them and reach behind his back with both hands.¹⁰ One officer took out his weapon and pointed it at Gibson while saying that the officers believed Gibson had a firearm.¹¹ The other officer frisked Gibson and found an ammunition clip in the pocket of the trench coat and a firearm tucked behind Gibson's back in the waist area.¹² Gibson was arrested and later charged with being a felon in possession of a firearm.¹³ The officers testified that the decision to initiate the stop and frisk of Gibson was based exclusively on the anonymous tip and a general knowledge that the carrying of weapons was common in the neighborhood.¹⁴

Gibson appealed from the district court's denial of his motion to suppress.¹⁵ Gibson contended that the officers lacked reasonable articulable suspicion to believe that he was committing a crime or that he was dangerous. The court of appeals held that the stop and frisk of Gibson was justified.¹⁶ What is surprising about Gibson is not the outcome, but the court's reasoning, which appears to endorse an expansive view of the authority of the police to stop and frisk suspects. The most simple reasoning supporting the holding would have emphasized the importance of Gibson's reaction to being approached by the police. Under this analysis, the court could have found that no seizure occurred until Gibson's reaction to seeing the police. Up to that point, there had been no "physical force or show of authority" that "in some way restrained the liberty" of Gibson.¹⁷ Put another way, the encounter between the police and Gibson had not yet ripened into a seizure.¹⁸ However, Gibson's turning and reaching behind his back significantly changed the complexion of the encounter by corroborating the presence of a weapon and creating a perception of immediate danger. In fact, the officers responded defensively to Gibson's threatening move. Once Gibson made a move that the trained officers (correctly) viewed as a reach towards a weapon, it is easy to conclude that the officers had reasonable articulable suspicion to support both an investigative stop and a protective pat-down search.¹⁹ This approach to resolving the case would simply find that Gibson's reaction to the approach of the officers put the officers "over the top": At that moment, the officers had not only the anonymous tip, but confirming and threatening conduct. Under the circumstances, the conduct of the officers looks reasonable. Curiously, the court did not emphasize Gibson's reactive conduct, referring to it once as an "innocent" detail and relegating mention of the potential significance of the conduct to a footnote.²⁰

The reasoning employed by the court appears to sanction investigative stops based on anonymous tips, even with minimal corroboration, especially where the tip concerns potentially dangerous individuals. The court addressed the Supreme Court's decision in Alabama v. White,²¹ which upheld an investigative stop based on an anonymous tip in a "close case," emphasizing that police investigation confirmed not only innocent details in the tip, but aspects of the tip predicting future behavior of the suspect.²² In Gibson, the court of appeals refused to interpret White as requiring the corroboration of predictive information in anonymous tips in order for reasonable suspicion to exist.²³ The court concluded that a tip could be corroborated based on present rather than future actions.²⁴ But the "present actions" corroborated by the police who stopped Gibson were mostly innocent details, such as the race and clothing of the men and the departure of the man standing outside. The remarkable feature of the court's reasoning is its emphasis on the potential for danger to the officers based on the content of the anonymous tip. After construing White, the court stated: "More importantly, the anonymous tip concerned the presence of two potentially armed individuals in a public establishment. This fact raised the stakes for the officers involved because they not only had to worry about their own personal safety, but that of 20 to 40 innocent bystanders who were also present."²⁵ The court's great concern for police safety during encounters with potentially armed individuals is admirable and well inten-tioned, but it appears to have led the court to condone a stop and frisk based on the content of the tip and the unparticularized hunch of the officers.²⁶ In fact, the court's assessment of the risk confronted by the officers in Gibson is a bit exaggerated. The tip referred only to two armed men and there was no indication that any violence was in the offing. Based on the report of weapons possession, the court went so far as to state, "The police officers were compelled to act immediately upon their arrival at Tiny's Bar."²⁷ The court's opinion may be read as sanctioning stops and frisks based on anonymous tips that correctly describe individuals and allege possession of weapons, especially when the police have "the knowledge that guns were common to the area."²⁸ This license seems too permissive, allowing investigative stops and protective searches without reasonable articulable suspicion and opening the door to abuse of anonymous tips.²⁹ Furthermore, the court's logic could easily be extended to other cases involving some risk of danger, further eroding the reasonable suspicion standard.³⁰

United States v. Lee³¹ also involved an anonymous tip. In Lee, the Mobile police received an anonymous call reporting drug dealing.³² In addition, the police met with the caller on one occasion.³³ The tipster provided a description of the suspect, the suspect's nickname ("Pony-tail"), the name and address of the suspect's motel, a description of the suspect's car and its tag number, the location where the car was parked and that the suspect was in the company of a woman and a child.³⁴

The tipster also told police that it was Ponytail's usual practice to meet drug dealers at his motel and travel in their vehicles instead of his, which bore an out of county tag.³⁵ The police went to the suspect's motel and made observations consistent with the information in the tip, including seeing the suspect carrying a paper bag and leaving the motel in a car other than the car described in the tip.³⁶ The police stopped the car and conducted protective pat-down searches.³⁷ The persons in the car were charged with dealing crack.³⁸

The defendants argued that the police did not have a sufficient basis to stop the vehicle.³⁹ The district court denied the...