Criminal: BLACK V. COMMONWEALTH (COA 10/6/2006)

CRIMINAL:   Search & Seizure; Anonymous Tip
DATE RENDERED:  10/6/2006

Following remand from SC, CA reinstated its previous opinion reversing and remanding. Upon the totality of the circumstances, CA held the anonymous tip was insufficient to create reasonable suspicion that Black was engaged in criminal activity; thus, the investigatory stop was violative of the Fourth Amendment of the United States Constitution and of Section 10 of the Kentucky Constitution.
The "stop" took place when the officer blocked appellant’s path with the police cruiser, approached Black, and ordered him to place the newspaper on the ground. At this point, a reasonable person would not believe he was free to leave. Whether Officer Lewis possessed the requisite reasonable suspicion of criminal activity must be measured by what he knew before the "stop" took place. As the investigatory stop took place before Black was ordered to remove his hand from his pocket and before the cocaine was discovered in the newspaper, such circumstances cannot form the basis of reasonable suspicion to justify the stop. Indeed, Officer Lewis testified that other than the anonymous tip he had no reason to stop the Defendant.

It is well established that an anonymous tip may provide the reasonable suspicion necessary to justify such an investigatory stop. See Alabama v. White, 496 U.S. 325 (1990); Stewart v. Commonwealth, 44 S.W.3d 376 (Ky.App. 2000). To determine if an anonymous tip supplied the requisite quantum of suspicion, the court must look to the "totality-of-the-circumstances." In particular, the anonymous tip must contain: "[A] range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted." . . . What was important was the caller’s ability to predict respondent’s future behavior, because it demonstrated inside information-– a special familiarity with respondent’s affairs.

In the case at hand, the facts supplied by the anonymous tip could have been easily observed by any member of the general public. The tip merely described Black’s appearance and location. The tip failed to predict Defendant’s future behavior and, thus, failed to reveal an insider’s knowledge of concealed criminal activity. Additionally, the tip was not corroborated by Officer Lewis nor did he observe any criminal activity prior to the stop. Simply stated, the tip provided no information upon which police could corroborate its reliability and provided no basis for its allegation of criminal activity.

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