Request By:
Zachary M. Becker, Assistant Commonwealth's Attorney
48th Judicial Circuit
Opinion
Opinion By: Jack Conway, Attorney General; S. Travis Mayo, Assistant Attorney General
Opinion of the Attorney General
Zachary M. Becker, Assistant Commonwealth's Attorney for the 48th Judicial Circuit of the Commonwealth of Kentucky, has requested an opinion of this office regarding the legality of the use of anonymous tips received through text-a-tip programs by law enforcement agencies. Specifically, Mr. Becker has requested an opinion as it relates to two questions:
(1) Whether the use of information obtained by a law enforcement agency from an anonymous tip provided via text-a-tip program (i.e., anonymous tips that are sent via SMS text message from an anony-mous citizen to a law enforcement cell phone is legal; and
(2) Whether such information is to be treated similarly to information provided via an anonymous phone call made to a dispatch center.
With respect to the first question, we advise that a law enforcement agency may use an anonymous tip received through a text-a-tip program without violating the Fourth Amendment to the United States Constitution if it bears sufficient reliability to provide a reasonable and articulable suspicion for a law enforcement officer to make a temporary investigatory stop. As to the second question, information received from an anonymous citizen via a text message, through a text-a-tip program or otherwise, should be treated like an anonymous tip made to a dispatch center. Like an anonymous tip received by telephone, an anonymous tip received by text message must bear sufficient indicia of reliability to provide reasonable and articulable suspicion to make an investigatory stop.
I. A Reliable Anonymous Tip May Justify an Investigatory Stop by a Law Enforcement Officer if it Creates the Requisite Reasonable Suspicion .
An anonymous tip received by and suitably corroborated by law enforcement officials may be sufficiently reliable to justify an investigatory stop. Under the Fourth Amendment, a law enforcement officer must have a reasonable and articulable suspicion that criminal activity may be afoot before making a temporary investigatory stop, such as a traffic stop or a stop on foot.
Commonwealth v. Brown, 250 S.W.3d 631, 634 (Ky. 2008) ( citing
Terry v. Ohio, 392 U.S. 1 (1968));
Hampton v. Commonwealth, 231 S.W.3d 740, 744 (Ky. 2007);
Henson v. Commonwealth, 245 S.W.3d 745, 748 (Ky. 2008);
Navarette v. California, 134 S. Ct. 1683, 1687 (U.S. 2014). Whether the information an officer has is sufficient to give rise to a "reasonable and articulable suspicion" is evaluated under the totality of the circumstances. Brown, 250 S.W.3d at 634 ( citing Terry, 392 U.S. 1); Hampton, 231 S.W.3d at 744 ( citing
Illinois v. Gates, 462 U.S. 213. 241-42 (1983)); see also Navarette, 134 S. Ct. at 1687 ( citing
United States v. Cortez, 449 U.S. 411, 417-18 (1981)).
While a mere "hunch" is not sufficient for such suspicion, the level of suspicion the standard requires is "considerably less than proof of wrongdoing by a preponderance of the evidence," and "obviously less than is necessary for probable cause." Navarette, 134 S. Ct. at 1687 ( quoting
United States v. Sokolow, 490 U.S. 1, 7 (1989)). An anonymous tip, by itself, will rarely show sufficient indicia of reliability to provide reasonable suspicion, because it seldom exhibits the tipster's basis of knowledge or veracity, unlike a tip from a known informant whose reputation can be assessed and who can be held responsible for fabrications. Brown, 250 S.W.3d at 634 ( citing
Florida v. J.L., 529 U.S. 266, 270 (2000)). An anonymous tip must have some increased indicia of reliability, such as independent verification or corroboration, before police may rely on it to make an investigatory stop. Brown, 250 S.W.3d at 634; Hampton, 231 S.W.3d at 745; see also Henson, 245 S.W.3d at 745; Navarette, 134 S. Ct. at 188;
Alabama v. White, 496 U.S. 325 (1990); J.L., 529 U.S. 266.
In White , the Court held that the officers' corroboration of certain details in an anonymous tip made the tip sufficiently reliable to create reasonable suspicion of criminal activity. 496 U.S. at 332. The tipster told the police that a woman would drive from a particular apartment building to a particular motel in a brown Plymouth station wagon with a broken right tail light at a particular time, and that the woman would be transporting an ounce of cocaine in a brown attache case. Id. at 327. Police confirmed the details, stopped the vehicle as it neared the motel, and found marijuana inside of the brown attache case and cocaine inside the suspect's purse. Id. The Court found that the officers had sufficiently corroborated the anonymous tip to provide reasonable suspicion to stop the vehicle. Id. at 331. Further, the tipster accurately predicted future behavior, which showed a special familiarity with the suspect's affairs and implied that the tipster had access to reliable information regarding the suspect's illegal activities. Id. at 332.
In Florida v. J.L. , a bare-bones tip lacking indicia of reliability did not sufficiently give rise to the reasonable suspicion required for an investigatory stop and frisk. 529 U.S. 266, 274. The tipster advised that a young black male in a plaid shirt standing at a bus stop was carrying a gun. Id. at 268. He neither said how he knew about the gun nor showed that he had any special familiarity with the young man's affairs. Id. at 271. Thus, police officers had no basis for believing the tipster knew of concealed criminal activity, and because the tip was absent of predictions of future behavior that the officers could corroborate to assess the tipster's credibility, the tip was not sufficiently reliable to justify a stop and frisk. Id. at 271-272. 1
Considering White and J.L. , the Court in Navarette held that under the totality of the circumstances, a tip received via telephone provided sufficient indicia of reliability to give rise to reasonable suspicion to justify a stop. 134 S. Ct. at 1693. Along with finding that the anonymous caller gave support to the reliability of the tip by providing specific information and eyewitness observation, which were close in proximity in time, the Court reasoned that the caller's use of the 911 emergency system also supported the caller's veracity. Id. at 1689. The Court noted the system's ability to identify and trace callers, and record calls, and pointed out that it could subject a person to criminal prosecution for false reports or reports with the intent to annoy or harass. Id. Law enforcement can verify callers' information, and the Federal Communications Commission requires cellular carriers to relay callers' phone numbers to 911 dispatchers and provide specifics about callers' locations. Id. (internal citations omitted).
Also discussing White and J.L. , the Supreme Court of Kentucky held in Commonwealth v. Brown that officers sufficiently corroborated an anonymous tip to provide the requisite reasonable suspicion to justify a stop. 250 S.W.3d 631, 636. A detective received information about Brown from the same anonymous tipster for six (6) months. Id. at 632. The tipster said Brown was a cocaine dealer, that he lived at a certain residence drove a black car that his wife owned, and that his drug activities occurred during the early evening hours in three (3) particular areas. Id. The detective corroborated the information concerning Brown's residence, the vehicle, and determined that Brown had a criminal record. Id. On the day of Brown's arrest, the tipster told the detective that Brown was "leaving at that moment" in the black car, with a quantity of cocaine that he was going to deliver in a specific area. Id. An officer observed the vehicle in a parking lot behind a Huddle House restaurant, and saw an apparent employee of the restaurant approach and stand by the vehicle. Id. Believing a drug transaction was happening, officers conducted an investigatory stop, observed Brown put something into his mouth and later exhibit signs of cocaine ingestion, and subsequently arrested Brown. Id. at 632-33. The Court found that the officers' corroboration of the predictive information in the anonymous tip lent an indicia of reliability to the tip. Id. at 635. The Court agreed with the trial court's determination that the officers had a reasonable and articulable suspicion that criminal activity was occurring, justifying the stop. Id. at 636.
II. Anonymous Tips Sent Via Text Message Should be Treated Similarly to Anonymous Tips Made to a Dispatch Center .
Just as with an anonymous tip by telephone, law enforcement officers may make an investigatory stop on the basis of a sufficiently reliable anonymous tip received by text message, if that tip gives rise to a reasonable and articulable suspicion that criminal activity is afoot. See Hampton, 231 S.W.3d at 744; Henson, 245 S.W.3d at 748; Navarette, 134 S. Ct. at 1687. This Office cannot conjure any reason or authority to distinguish an anonymous tip received by telephone from one received by text message, through a Text-a-Tip program or otherwise. An anonymous tip is an anonymous tip, regardless of the means by which it is transmitted. See, e.g.,
Helphenstine v. Commonwealth, 423 S.W.3d 708, 715, n. 22 (Ky. 2014) (involving an anonymous tip sent by letter). Law enforcement agencies and communities in Kentucky and across the nation have implemented text-a-tip programs. 2
Further, the factors lending credibility to anonymous phone calls to 911 emergency systems discussed in Navarette, 134 S. Ct. at 1689, may also exist with anonymous text messages to law enforcement officials. 3 Therefore, anonymous tips sent via text message to law enforcement officials should be treated similarly to anonymous tips made by telephone to a dispatch center or to law enforcement officers. If an anonymous tip sent by text message has sufficient indicia of reliability, such as through predictive information that officers may corroborate, that gives rise to a reasonable and articulable suspicion that criminal activity is occurring, an officer may conduct an investigatory stop.
III. Conclusion
In summary, a law enforcement agency may use an anonymous tip received through a text-a-tip program if it bears sufficient indicia of reliability to provide law enforcement officers with a reasonable and articulable suspicion that criminal activity is afoot. Such an anonymous tip may have sufficient indicia of reliability if law enforcement officers suitably corroborate it. Under the Fourth Amendment, if an officer has a reasonable and articulable suspicion that criminal activity is occurring, he may make a temporary investigatory stop. Furthermore, an anonymous tip made through a text-a-tip program should be treated like an anonymous tip made to a dispatch center. Thus, such a tip must bear sufficient indicia of reliability and create a reasonable and articulable suspicion that criminal activity is occurring to justify an investigatory stop.
Footnotes
Footnotes
1 Similarly, the Court in Henson ruled that an anonymous tip did not have the indicia of reliability required to justify a stop. 245 S.W.3d 745. The Court held that simply finding the suspect where the tipster said he would be, without further investigation, observation, or prior knowledge of the suspect, did not provide sufficient reasonable suspicion. Id. at 749. The tipster's prediction that the suspect would be in the vehicle the tipster identified involved a "readily observable location" that did not show the tipster had knowledge of any concealed criminal activity. Id. (quoting J.L., 529 U.S. at 272).
2 See Kentucky State Police, http://www.kentuckystatepolice.org/contact.html (last visited Sept. 23, 2015); Frankfort Crime Stoppers, http://www.frankfort.ky.gov/resource/frankfort-crime-stoppers (last visited Sept. 17, 2015); Franklin County Sheriff's Office, http://franklincounty.ky.gov/offices/sheriff/Pages/contactfcso.aspx (last visited Sept. 17, 2015). See also United States Federal Communications Commission, What You Need to Know About Text-to-911, https://www.fcc.gov/text-to-911 (providing an Excel spreadsheet identifying areas where Text-to-911 is available) (last visited Sept. 23, 2015).
3 Just as with the 911 emergency telephone service, KRS 65.750 and KRS 65.752, the wireless enhanced 911 system provide the geographical location of a call from a wireless phone, as well as the capability for automatic number identification and automatic location identification features. See KRS 65.7621(19). A commercial radio service provider must provide customer mobile phone numbers and names to public safety answering points for emergency response services, and the information may be disclosed only by the permission of the provider or by Court order. KRS 65.7639; and 202 KAR 6:030. See also 47 C.F.R. § 20.18. Pursuant to KRS 519.040, falsely reporting an incident to law enforcement officials is a Class A Misdemeanor. Under KRS 65.7641, a person who knowingly uses or attempts to use wireless emergency telephone service for a purpose other than obtaining public safety assistance is guilty of a Class A Misdemeanor.