Verification of tip caller's identity
Even if a caller provides his name, address and phone number, police still
need more to verify the
caller's identity before he can be considered a citizen-informant
to justify the search of a criminal suspect, the 2nd DCA said.
The DCA said a trial court should have granted a motion to suppress evidence
against a man charged with possession of cocaine and drug paraphernalia.
Curtis Johnson was arrested after a deputy, acting on a telephone tip, found
him sitting on a curb with a cigarette pack containing crack cocaine lying
approximately a foot away. The DCA concluded that the informant's information,
without further verification, was insufficient to provide reasonable suspicion
for the deputy to question Johnson. The court cited the Florida Supreme Court's
1998 decision in J.L. vs. State, which held that innocent detail tips from
anonymous informants must be substantiated in some additional manner.
"In this case, the informant was anonymous because the police did not independently
verify his identity after he called, even though he provided his name, address,
and telephone number. Additionally, the deputy testified that he did not
have any independent reason to believe that Johnson was selling drugs. Because
the anonymous informant's assertion that Johnson was selling drugs was not
substantiated in any additional manner before (the deputy) initiated the
search, he did not have reasonable suspicion of criminal activity to pat
down Johnson," the DCA said. Opinion # 10006
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
CURTIS JOHNSON, Appellant, v.
Case No. 98-03161 STATE OF FLORIDA, Appellee. ------------------------------
Opinion filed October 1, 1999.
Appeal from the Circuit Court for Hillsborough County; Jack Espinosa, Jr., Judge.
Rex Curry, Tampa, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Ann Pfeiffer Howe, Assistant Attorney General, Tampa, for Appellee.
Following a plea of no contest to the charges
of possession of cocaine and possession of drug paraphernalia, Curtis Johnson
appeals his dispositive motion to suppress. We reverse because the law enforcement
officer did not have reasonable suspicion to conduct a Terry
stop based on an anonymous informant's tip or probable cause to arrest Johnson
based on the discovery of cocaine in a cigarette pack. In April 1998 Deputy Amsler was dispatched regarding
a complaint that a black male in his forties, wearing burgundy pants and
a white shirt, was selling narcotics at a certain address. Although the
complainant had provided the police his name, address, and telephone number,
the police did not corroborate this information prior to dispatching the
deputy. When the deputy arrived at the address, he saw Johnson sitting on
the curb alone, whittling with a knife. Johnson fit the informant's description
of the suspect. Approximately a foot away from Johnson, Deputy
Amsler noticed an empty cigarette pack with a flip top that was lying open.
As the deputy reached for the cigarette pack, Johnson reached toward it,
but abruptly pulled back. Inside the cigarette pack, the deputy found one
small piece of rock cocaine. Deputy Amsler directed Johnson to stand up
and be patted down. In Johnson's left rear pocket, the deputy felt a long
object, removed it, and discovered a glass pipe with wire stuck into it.
Deputy Amsler put Johnson in his vehicle while he ran a Valtox test, and
determined that the substance was presumptively crack cocaine. The deputy
then arrested Johnson. On appeal, the State contends that the informant's tip provided reasonable suspicion to conduct a Terry
stop of Johnson. The State also claims that the discovery of cocaine in
the cigarette pack created probable cause to arrest Johnson. We disagree
and address the State's contentions in turn. We conclude that the information provided by
the informant in this case did not give Deputy Amsler reasonable suspicion
to pat down Johnson. The Florida Supreme Court has recently held that innocent
detail tips from anonymous informants must be substantiated in some additional
manner. SeeJ.L. v. State,
727 So. 2d 204, 207 (Fla. 1998) (an officer did not have reasonable suspicion
to stop a defendant based solely on an anonymous informant's description
of the defendant's clothing and location and belief that he was engaging
in illegal activity). In this case, the informant was anonymous because
the police did not independently verify his identity after he called, even
though he provided his name, address, and telephone number. SeeMaynard v. State,
No. 98-02708 (Fla. 2d DCA June 4, 1999) (requiring the police to verify a
caller's identity by either dispatching an officer to the caller's address
or calling them back to gain information that would corroborate their identity
in order for the caller to qualify as a citizen-informant). Additionally,
the deputy testified that he did not have any independent reason to believe
that Johnson was selling drugs. Because the anonymous informant's assertion
that Johnson was selling drugs was not substantiated in any additional manner
before Deputy Amsler initiated the search, he did not have reasonable suspicion
of criminal activity to pat down Johnson. Moreover, the discovery of crack cocaine in
the open cigarette pack could not have provided probable cause to arrest
Johnson because there was no evidence that Johnson ever had possession of
the cigarette pack. Deputy Amsler noticed what appeared to be an empty cigarette
pack on the ground a foot away from Johnson. There was no testimony that
the pack was ever in Johnson's possession or that Johnson claimed ownership
of the pack. Even though Johnson reached toward the cigarette pack, he pulled
back to let the deputy grab it first. The State's argument that Johnson
abandoned the crack cocaine found in the cigarette pack is also without merit
for the same reason. Johnson could not have abandoned property if there
was no evidence that he possessed it in the first place. Since Deputy Amsler
did not have probable cause to arrest Johnson, any contraband obtained as
a result of a search incident to arrest must be suppressed. SeeGnann v. State, 662 So. 2d 406, 408 (Fla. 2d DCA 1995). Because the anonymous informant's tip did not
provide reasonable suspicion to pat down Johnson and the discovery of cocaine
in the cigarette pack did not provide probable cause to arrest him, the trial
court erred in denying the motion to suppress. Accordingly, we reverse and
remand with directions for the trial court to grant Johnson's motion to suppress.
Reverse and remanded. THREADGILL, A.C.J., and PARKER and SALCINES, JJ., Concur.