Carl Richard Cook v. State of Mississippi , 159 So. 3d 534 ( 2015 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2012-CT-01553-SCT
CARL RICHARD COOK a/k/a CARL R. COOK a/k/a
CARL COOK
v.
STATE OF MISSISSIPPI1
ON MOTION FOR REHEARING
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 09/10/2012
TRIAL JUDGE: HON. JOHN HUEY EMFINGER
COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: CLARENCE TERRELL GUTHRIE, III
ATTORNEYS FOR APPELLEE: MICHAEL A. BOLAND
RICHARD H. WILSON
DISTRICT ATTORNEY: MICHAEL GUEST
NATURE OF THE CASE: CRIMINAL - MISDEMEANOR
DISPOSITION: REVERSED AND RENDERED - 03/12/2015
MOTION FOR REHEARING FILED: 10/29/2014
MANDATE ISSUED:
EN BANC.
KING, JUSTICE, FOR THE COURT:
¶1. The motion for rehearing is denied. The previous opinions are withdrawn, and these
1
In the Notice of Appeal, this case is correctly styled State of Mississippi v. Carl
Richard Cook. Without explanation, the case style was changed to Carl Richard Cook v.
Rankin County, which does not comport with the mandate of Article 6, Section 169, of the
Mississippi Constitution, that “all prosecutions shall be carried on in the name and by the
authority of the ‘State of Mississippi. . . .’” Miss. Const. art. 6, § 169. We have corrected the
style of this case to bring it back in, compliance with the Mississippi Constitution.
opinions are substituted therefor.
¶2. Carl Richard Cook was convicted of misdemeanor driving under the influence
(“DUI”), first offense, in the Rankin County Justice Court. Cook appealed to the County
Court of Rankin County. At a trial de novo before the county court, Cook’s counsel moved
to dismiss the case, claiming that the investigatory stop which led to Cook’s arrest was an
illegal search and seizure because it was based on an anonymous tip that lacked sufficient
indicia of reliability. The county court denied the motion and entered a judgment of
conviction. Cook then appealed to the Rankin County Circuit Court, and the circuit court
affirmed the county court’s conviction. Next, Cook appealed his conviction to this Court,
and the case was assigned to the Court of Appeals. Cook v. Rankin County, ___ So. 3d ___,
2013 WL 6233891 (Miss. Ct. App. Dec. 3, 2013). Finding that the investigatory stop was
legally justified, the Court of Appeals affirmed the judgment of the Circuit Court of Rankin
County. Having granted Cook’s Petition for Writ of Certiorari, we now consider whether the
investigatory stop, which was based on an anonymous tip and led to Cook’s arrest, violated
Cook’s Fourth-Amendment right to be free from unreasonable searches and seizures.
FACTS AND PROCEDURAL HISTORY
¶3. Because the facts of today’s case are not in dispute, they are quoted, in part, from the
Court of Appeals’ opinion:
On March 12, 2011, Reservoir Patrol Officer Timothy Ware of the Pearl River
Valley Water Supply District was on duty in the area of Northshore Parkway
and Timber Lake Campground in Rankin County, Mississippi. Officer Ware
received a call from the Reservoir patrol dispatch to “be on the lookout”
(BOLO) for a vehicle that was driving erratically and the driver of the vehicle
possibly flashing a badge of some sort.
2
Officer Ware did not know who made the initial call to law enforcement. To
his knowledge, the “tip” was from an anonymous caller and was
uncorroborated. The call described a gray Chevrolet Avalanche, and gave the
license-plate number. Officer Ware saw a vehicle that matched the description
he received. He turned his patrol vehicle around and proceeded behind the
suspect Avalanche. Officer Ware observed the Avalanche for a short period
of time, though he did not observe the vehicle driving erratically at that time.
Nor did he observe the driver flashing a badge or committing any crimes.
Deputy Fred Lovett of the Rankin County Sheriff’s Office was also in the area
when the BOLO came over both the Reservoir patrol dispatch and the Rankin
County Sheriff’s dispatch. Deputy Lovett met the Avalanche head on. He
then turned around and got within “a couple” of car lengths behind Officer
Ware and the Avalanche.
Officer Ware initiated the stop on the Avalanche on Church Street in the
Reservoir area. Based on subsequent interactions between Officer Ware,
Deputy Lovett, and Cook, Cook was arrested for DUI, first offense.
Cook was convicted of misdemeanor DUI, first offense, in violation of
Mississippi Code Annotated Section 63-11-30(1)(a) (Supp. 2012), in the
Rankin County Justice Court. Cook appealed and received a trial de novo
before the Rankin County County Court. In a non-jury trial before the county
judge, Cook’s counsel moved to dismiss the case at the conclusion of the
State’s case-in-chief. Cook argued that the BOLO that led to the investigatory
stop violated his Fourth Amendment rights against illegal search and seizure,
as it was based on an anonymous tip that lacked sufficient indicia of reliability.
The county judge denied the motion and entered a detailed order overruling the
motion to dismiss. The county judge also entered a judgment of conviction.
Cook then appealed his conviction to the Rankin County Circuit Court. As
error, Cook argued that the county judge erred in the application of the Fourth
Amendment standards regarding uncorroborated anonymous tips. The circuit
court entered an opinion and order that affirmed the county court’s conviction.
Id. at *1.
¶4. The Court of Appeals affirmed the circuit court’s judgment, finding that the stop did
not violate Cook’s Fourth-Amendment rights. Id. at *6. Essentially, the Court of Appeals
found that there were sufficient indicia of reliability when the officers located a vehicle
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matching the description of Cook’s vehicle. Id. Further, the court held that the behavior
reported – “reckless driving and impersonating a law enforcement official [–] . . . justified
[the] investigatory stop to resolve the ambiguous situation.” Id.
ANALYSIS
¶5. In his Petition for Writ of Certiorari, Cook raised the following issue: “Whether law
enforcement officers in Mississippi may conduct an investigatory stop on a vehicle based on
an anonymous tip that lacks any corroboration . . . .”
¶6. This Court applies a mixed standard of review when considering Fourth-Amendment
issues. Eaddy v. State, 63 So. 3d 1209, 1213 (Miss. 2011) (quoting Dies v. State, 926 So.
2d 910, 917 (Miss. 2006)). We apply de novo review when determining whether probable
cause or reasonable suspicion exists. Id. But the de novo review is limited to the trial court’s
“decision based on historical facts reviewed under the substantial evidence and clearly
erroneous standards.” Dies, 926 So. 2d at 917.
¶7. An individual’s right to be free from unreasonable searches and seizures is protected
by the Fourth Amendment to the United States Constitution and Article 3, Section 23 of the
Mississippi Constitution. See Eaddy, 63 So. 3d at 1212-13 (citing U.S. Const. amend. IV;
Miss. Const. art. 3, § 23; Graves v. State, 708 So. 2d 858, 861 (Miss. 1997)). Under the
Fourth Amendment’s protections, police officers may detain a person for an investigatory
stop when the officers have “reasonable suspicion, grounded in specific and articulable facts”
which allow “the officers to conclude the suspect is wanted in connection with criminal
behavior.” Eaddy, 63 So. 3d at 1213 (citing Walker v. State, 881 So. 2d 820, 826 (Miss.
2004)). Reasonable suspicion generally stems from one of two sources: an officer’s personal
4
observation, or an informant’s tip. Eaddy, 63 So. 3d at 1213 (citing Williamson v. State, 876
So. 2d 353, 355 (Miss. 2004)). “[A]n informant’s tip may provide reasonable suspicion if
accompanied by some indication of reliability; for example, reliability may be shown from
the officer’s independent investigation of the informant’s information.” Eaddy, 63 So. 3d
at 1213 (citing Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000)).
¶8. Cook cites J.L., 529 U.S. 266, in support of his argument that the stop in today’s case
was not based on reasonable suspicion. In J.L., a young African-American male was
charged with carrying a concealed firearm without a license and possessing a firearm while
under the age of eighteen. Id. at 269. J.L.’s arrest stemmed from an anonymous tip reporting
that “a young black male standing at a particular bus stop and wearing a plaid shirt was
carrying a gun.” 2 Id. at 268. Officers responded to the tip and found three young African-
American males near the subject bus stop. Id. One of the three males, J.L., had on a plaid
shirt. Id. The officers frisked J.L. and seized a gun from his pocket. Id. J.L. eventually
appealed his conviction to the United States Supreme Court, claiming that the search and
seizure were invalid under the Fourth Amendment. Id. at 269.
¶9. The Court in J.L. first noted that the search was based solely on the anonymous tip,
as opposed to the officers’ personal observations. Id. at 270. Further, the tip came from an
anonymous source, rather than a known informant. Id. (quoting Adams v. Williams, 407
U.S. 143, 146-47, 92 S. Ct. 1921, 32 L. Ed. 2d (1972) (“an anonymous tip alone seldom
2
The dissent attempts to distinguish this description, which described the person and
his clothing, as well as describing his exact location, from this case, because the informant
described the car as well as its location in the instant case. Dis. Op. ¶33. Yet the
descriptions are virtually equivalent.
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demonstrates the informant’s basis of knowledge or veracity”)). But the Court recognized
that “there are situations in which an anonymous tip, suitably corroborated, exhibits
‘sufficient indicia of reliability to provide reasonable suspicion to make the investigatory
stop.’” J.L., 529 U.S. at 270 (quoting Alabama v. White, 496 U.S. 325, 329, 110 S. Ct. 2412,
110 L. Ed. 2d 301 (1990)). Thus, the relevant inquiry was “whether the tip pointing to J.L.
had those indicia of reliability.” J.L., 529 U.S. at 270. The Supreme Court found that it did
not. Id. at 274.
¶10. The Court’s holding had two bases. First, the anonymous call contained “no
predictive information and therefore left the police without means to test the informant’s
knowledge or credibility.” Id. at 271. Second, the accurate description of the subject’s
location and appearance, standing alone, is not a sufficient indicium of reliability:
An accurate description of a subject’s readily observable location and
appearance is of course reliable in this limited sense: It will help the police
correctly identify the person whom the tipster means to accuse. Such a tip,
however, does not show that the tipster has knowledge of concealed criminal
activity. The reasonable suspicion here at issue requires that a tip be reliable
in its assertion of illegality, not just in its tendency to identify a determinate
person. Cf. 4 W. LaFave, Search and Seizure § 9.4(h), p. 213 (3d ed. 1996)
(distinguishing reliability as to identification, which is often important in other
criminal law contexts, from reliability as to the likelihood of criminal activity,
which is central in anonymous-tip cases).
Id. at 272.
¶11. Although the Court found in J.L. that the tip did not have sufficient indicia of
reliability, the Court did recognize that there are some circumstances where the danger
alleged may warrant a search without the requisite showing of reliability. Id. at 273. For
example, a call reporting that a person is carrying a bomb is distinguishable from a call
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reporting that a person is carrying a firearm. Id. at 273-74. The dissent attempts to
distinguish the case at hand, positing that a car, which officers did not observe violating any
traffic laws, and about which no allegations of any sort of devastating weapons exist, is
somehow an imminent danger. Dis. Op. ¶33. The Supreme Court specifically stated that it
did “not say, for example, that a report of a person carrying a bomb need bear the indicia of
reliability we demand for a report of a person carrying a firearm.” J.L., 529 U.S. at 273-74.
A firearm carries as much, if not more, potential for devastation as does a car. A bomb
carries a much greater potential for devastation. Moreover, firearms and cars are both legal
items, whereas a bomb is not. A car is more closely equated to a firearm, rather than a bomb.
¶12. Similar to J.L., this Court in Eaddy, 63 So. 3d at 1214, found that officers lacked
reasonable suspicion to stop a vehicle after they received an anonymous tip stating that a man
with three outstanding arrest warrants, Wendell Barnes, was driving a red Cadillac with
Texas plates in Port Gibson. One officer was familiar with Barnes and could visually
identify him. Id. at 1211. The officers eventually located a vehicle matching the informant’s
description and stopped the car. Id. Barnes was not in the car; but the officers saw a gun on
the passenger seat, smelled alcohol, and saw an empty liquor bottle in the car. Id. One of
the officers searched the driver of the vehicle, Terrance Eaddy, for officer-safety purposes
and found two bottles of a white substance, which appeared to be cocaine. Id. Eaddy was
arrested for possession of cocaine with intent to distribute and possession of a weapon by a
convicted felon. Id. He then filed a motion to suppress evidence of the cocaine and the gun
discovered during the search, and the trial court denied the motion. Id. On appeal, this Court
found that the officers did not have reasonable suspicion to stop and search Eaddy, in part,
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because the informant’s tip did not provide reasonable suspicion to make an investigatory
stop. Id. at 1214.
¶13. Prior to Eaddy, this Court in Williamson v. State, 876 So. 2d 353 (Miss. 2004),
affirmed a trial court’s order denying a defendant’s motion to suppress evidence obtained as
a result of an anonymous tip. In Williamson, the defendant was arrested after police received
a the following information:
(1) two white males had come into Campbell’s Big Star and purchased “large
quantities” of Pseudoephedrine (also known as Sudafed); (2) these two
individuals had also attempted to purchase Sudafed from the Family Dollar
Store; (3) these two white males left Campbell’s Big Star in a white van with
license number 4BA 347, and headed west on Highway 84, also known as
Azalea Drive.
Id. at 354. Apparently, the information received was from two sources, but the informants’
identity was unknown. Id. Officers then spotted two men in the white van described in the
tips parked at a Fred’s Dollar Store, which also is known to sell Sudafed. Id. Officers
eventually approached the van, searched it, and found chemicals which are “precursors” used
in the manufacture of controlled substances. Id. The defendant appealed to this Court and
contested the trial court’s denial of his motion to suppress. Id. Finding that all of the details
provided by the tips were verified by the officers prior to the stop, and considering that retail
stores often called in these types of tips to police, this Court affirmed the trial court’s denial
of the defendant’s motion to suppress. Id. at 356.
¶14. We also have addressed reasonable suspicion in driving-under-the-influence (DUI)
cases. In Floyd v. City of Crystal Springs, 749 So. 2d 110, 112 (Miss. 1999), this Court
upheld the defendant’s DUI conviction, finding that reasonable suspicion to stop the
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defendant was present. An off-duty police officer in Floyd received a tip from a known
informant that a person was driving a red convertible Mustang in a reckless manner. Id. at
112. The off-duty officer relayed the information to a dispatcher, who radioed the
information to an on-duty officer. Id. The on-duty officer then intercepted a car matching
the description and eventually pulled over the car, although the officer never observed the
Mustang driver violate any traffic laws. Id. at 112. The officer pulled over the vehicle and
observed an open liquor bottle on the passenger side. Id. At that point, the driver exhibited
signs of intoxication, including staggering while attempting to walk and slurred speech. Id.
¶15. Considering the accuracy of the informant’s description of the vehicle in Floyd and
the fact that the informant was known and had provided correct information to officers in the
past, this Court found that the tip provided reasonable suspicion to stop the vehicle. Id. at
119. In its analysis, this Court cited with approval a Texas Court of Appeals case which
noted that “a tip by unnamed informant of undisclosed reliability standing alone will rarely
establish the requisite level of suspicion necessary to justify investigative detention.” Id. at
118 (citing State v. Sailo, 910 S.W. 2d 184 (Tex. App. 1995)).
¶16. Today’s case is distinguishable from Floyd and Williamson. In Floyd, 749 So. 2d at
112, the police officer who received the tip knew the informant, and the informant had
provided correct information to the officer in the past. In today’s case, the informant was
anonymous. In Williamson, 876 So. 2d at 354, officers received tips from two sources and
eventually located the suspects in the parking lot of a store known to sell “precursors.” The
informants had reported the suspects for purchasing “precursors” at other stores. Id. In
today’s case, one anonymous caller reported a person driving erratically and flashing what
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appeared to be some type of badge at other drivers. This behavior was never observed by the
officers in today’s case prior to stopping Cook. While the dissent requires only that the
readily identifiable description of the car be reliable, the United States Supreme Court
requires more, in that the tip must be “reliable in its assertion of illegality, not just in its
tendency to identify a determinate person.” J.L., 529 U.S. at 272. Put simply, the
anonymous tip in today’s case lacks the indicia of reliability that were present in previous
cases before this Court.
¶17. Rather, today’s case is similar to Eaddy, where an unknown informant reported that
a person with outstanding arrest warrants was in a particular car. Like Eaddy, the officers
here failed to take further action to corroborate the criminal activity reported in the tip prior
to stopping Cook. Without taking further action to corroborate the criminal activity reported,
the officers did not have reasonable suspicion to stop Cook. An accurate description of
Cook’s vehicle and location is insufficient. As the United States Supreme Court noted in
J.L., reliability of identification of a person and reliability as to the identification of criminal
activity must be distinguished. See J.L., 529 U.S. at 272 (A tip correctly identifying a person
in a particular location “does not show that the tipster has knowledge of concealed criminal
activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion
of illegality, not just in its tendency to identify a determinate person.”). Further, permitting
a stop solely on an anonymous tip such as the one here can open the door for legal stops
based on tips provided by persons with intent to harass or embarrass others. See id. To be
clear, however, today’s opinion does not stand for the proposition that any anonymous tip,
standing alone, will not sufficiently justify a search. For example, a report of someone
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intending to carry out a mass shooting would not require the same indicia of reliability as a
report of an erratic driver. See id. at 273.
¶18. The lack of sufficient indicia of reliability in today’s case, coupled with the officers’
failure to corroborate the criminal activity reported, results in the stop violating Cook’s
Fourth-Amendment right to be secure from unreasonable searches and seizures. As such, the
trial court erred in denying Cook’s motion to dismiss. For this same reason, the Court of
Appeals erred in affirming the trial court.
CONCLUSION
¶19. The Court of Appeals erred in finding that reasonable suspicion to stop Cook existed
in today’s case. Therefore, we reverse the judgments of the Court of Appeals and the Rankin
County Circuit Court affirming Cook’s conviction. Without the evidence gathered as a result
of the stop, the evidence against Cook is insufficient to sustain a DUI conviction. See Eaddy,
63 So. 3d at 1216. As such, we reverse and render a judgment of acquittal.
¶20. REVERSED AND RENDERED.
WALLER, C.J., DICKINSON, P.J., KITCHENS AND CHANDLER, JJ.,
CONCUR. PIERCE, J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY RANDOLPH, P.J., LAMAR AND COLEMAN, JJ.
PIERCE, JUSTICE, DISSENTING:
¶21. Respectfully, I dissent from the majority’s decision to reverse Carl Cook’s conviction
for misdemeanor driving under the influence (DUI). Consistent with this Court’s decision
in Floyd v. City of Crystal Springs, 749 So. 2d 110 (Miss. 1999), both the trial court and the
Court of Appeals correctly found that the authorities had reasonable suspicion to conduct an
investigatory traffic stop in this instance.
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FACTS
¶22. At trial in county court, Cook moved to dismiss his DUI charge following the State’s
case-in-chief, on the basis that his Fourth-Amendment rights were violated. Cook claimed
that authorities pulled him over based on a “be on the lookout” (BOLO) report from a police
dispatcher that was based on an uncorroborated anonymous tip that lacked sufficient indicia
of reliability. Cook thus argued that the stop was illegal and any evidence obtained by the
authorities following the illegal stop was inadmissable. The county court preserved Cook’s
motion and ordered briefs from both parties on the issue. After receiving those briefs, the
county judge denied Cook’s motion and issued the following factual findings:
On the afternoon of March 12, 2011, Officer Timothy Ware . . . and Deputy
Fred Lovett . . . heard a BOLO [“be on the lookout”] . . . for a vehicle alleged
to be driving erratically and/or recklessly, flashing its headlights at other
motorists, and “flashing” what was purported to be a badge of some type in an
apparent attempt to pull over other motorist(s). That BOLO, which came to
both officers via official police radio channels, contained very specific
information, including the make, model, color, and license tag number of a
particular vehicle which was allegedly engaged in the potentially illegal
conduct. The operator of the vehicle was also described in general terms in the
BOLO. Finally, the area where the strange driving conduct was occurring was
described with specificity[,] . . . an area within the jurisdiction of both
[officers].
Almost simultaneously, both officers spotted a vehicle matching the precise
description given in the BOLO, down to the exact license number. Contact
with that vehicle was made in the [officer’s jurisdiction], the license number
was verified by Officer Ware, and a traffic stop was immediately initiated by
him, followed closely by back-up from Deputy Lovett. It is undisputed that
Officer Ware did not personally observe any traffic violations by the subject
vehicle and its operator prior to initiating the traffic stop. Upon the officers’
approach to the vehicle, many indicia of [DUI] were immediately observed by
them, including: smell of an intoxicating beverage, slurred speech, and
disorientation of the operator. Further, within the first few moments of the
encounter, [Cook] admitted to having consumed alcoholic beverage and to
having “flashed” a business card, not a badge, at other motorist(s). [Cook]
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also had “watery” eyes, swayed in a circular motion upon exit, and held on to
the vehicle for support after exiting. A [p]ortable [b]reath [t]est (PBT) was
administered to [Cook], and it registered positive for the presence of alcohol.
Finally, Officer Ware reported that [Cook] was extremely nervous and
disoriented throughout the original encounter and declined to take the
Intoxilyzer 8000 test back at the station, stating that he “ ‘probably would not
pass’ ” that test. For those and other reasons not mentioned herein, the court
found proof beyond a reasonable doubt that [Cook] was, in fact, operating a
motor vehicle while under the influence of alcohol.
¶23. The county judge’s conclusions of law relied primarily on this Court’s decision in
Floyd. The county judge included the following language from Floyd, in which this Court
held:
[G]iven reasonable circumstances an officer may stop and detain a person to
resolve an ambiguous situation without having sufficient knowledge to justify
an arrest. . . . Such an investigative stop of a suspect may be made so long as
an officer has “a reasonable suspicion, grounded in specific and articulable
facts, that a person they encounter was involved in or is wanted in connection
with a felony” . . . or as long as the officers have “some objective
manifestation that the person stopped is, or is about to be engaged in criminal
activity.”
Floyd, 749 So. 2d at 114.
¶24. Applying Floyd, the county judge concluded:
In the instant case, the BOLO carried information about reckless/erratic
driving. However, it included the additional information that the driver of the
vehicle had been flashing his lights at other motorists and flashing what
appeared to the reporter in this case to be some type of badge. Not only were
these officers confronted with a report of dangerous driving conduct, but they
were also alerted to the very real possibility that someone might be
impersonating a law enforcement officer and attempting to pull over
unsuspecting members of the motoring public. If there was ever an ambiguous
situation which warranted immediate investigation, this was such a situation.
The report of reckless driving was enough. As the Court held in Floyd, . . .
“[t]o cling to a rule which would prevent a police officer from investigating a
reported complaint of reckless driving would thwart a significant public
interest in preventing the mortal danger presented by such driving.” Id. Add
to that the potential criminal nature of the other bizarre conduct described in
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the BOLO and the potential danger to the public from one pretending to be a
law enforcement officer, and the officers in this case could have been outright
derelict in the duty to protect the public had they not acted swiftly as they did
here.
It should also be noted that the information contained in the BOLO in the
instant case was very specific. The offending vehicle was described by make,
model, color, exact license number, and location. Before making the stop, the
officers verified every one of those facts as being present in [Cook]’s vehicle.
Under the totality of those circumstances, the balancing test here goes strongly
in favor of the law enforcement officers, particularly compared to the brief
intrusion into the travels of [Cook] for purposes of resolving the obviously
ambiguous situation described in the BOLO. According to the credible
testimony, the interaction with [Cook] following the stop would likely have
been very brief but for the indicia of intoxication displayed by [Cook]
immediately upon contact with the officers. The fact that things went rapidly
and steadily downhill for [Cook] following that contact does not enter the
equation; what matters is what happened before the stop.
....
Under all the circumstances of this case, . . . this court finds that the facts
herein not only allowed but in effect mandated the law enforcement action
taken here via investigatory stop. The details of the BOLO, and the officer’s
confirmation of those details within minutes by spotting the exact vehicle
exactly where the BOLO had stated it would be, create the constitutionally
mandated “sufficient indicia” of reliability.
DISCUSSION
¶25. As noted by the majority, seldom will an anonymous tip of undisclosed reliability,
standing alone, establish the requisite level of suspicion necessary to justify an investigative
detention. Floyd, 749 So. 2d at 118. That is because “ordinary citizens generally do not
provide extensive recitations of the basis of their everyday observations, and an anonymous
tipster’s veracity is ‘by hypothesis largely unknown, and unknowable.’” Navarette v.
California, 134 S. Ct. 1683, 188 L. Ed. 2d 680, 134 S. Ct. at 1688 (2014) (quoting Alabama
v. White, 496 U.S. 325, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990)). Under appropriate
14
circumstances, however, “an anonymous tip can demonstrate ‘sufficient indicia of reliability
to provide reasonable suspicion to make an investigatory stop.’” Id. (quoting White, 496
U.S. at 327).
¶26. We spoke to this in Floyd, which, as the majority points out, is distinguishable from
the case before us, in that, unlike here, the person who called authorities was not anonymous.
Floyd expressed, though, again as the majority points out, that an anonymous tip can be
sufficiently credible and reliable and provide sufficient basis of knowledge to justify an
investigatory stop. Floyd, 749 So. 2d at 119 (citing State v. Melanson, 140 N.H. 199, 665
A.2d 338, 340-41 (1995)) (holding that unknown caller’s report that provided a specific
description of a car whose driver was thought to be intoxicated, knowledge of its exact
location at the time, and specific information of its movements, reasonably supported the
conclusion, for the purpose of determining whether officer had reasonable suspicion to stop
the vehicle, that the basis of the caller’s knowledge was his personal observation of the
vehicle).
¶27. Floyd reiterated that the test is “one of reasonableness, and neither this Court nor the
United States Supreme Court has articulated a concrete rule to determine what circumstances
justify an investigatory stop.” Id. (citing Green v. State, 348 So. 2d 428, 429 (Miss. 1977)).
The question must be approached on a case-by-case basis. Id. In determining the
reasonableness of an investigatory stop “less intrusive than a traditional arrest depends ‘on
a balance between the public interest and the individual’s right to personal security from
arbitrary interference by law officers.’” Id. (quoting Brown v. Texas, 443 U.S. 47, 50, 99
S. Ct. 2637, 61 L. Ed. 2d 357 (1979)). “Consideration of the constitutionality of seizures
15
involves a weighing of the gravity of the public concerns served by the seizure, the degree
to which the seizure advances the public interest, and the severity of the interference with
individual liberty.” Id. (quoting Brown, 443 U.S. at 50-51).
¶28. Here, Officer Ware received a “BOLO” report of a vehicle that was driving erratically
and whose driver was flashing what appeared to be a law-enforcement badge at other
motorists. The report provided the vehicle’s location and gave a very specific description
of the vehicle–its make, model, color, and license-plate number. Upon receiving the report
and spotting the vehicle, Officer Ware proceeded behind the vehicle and verified the
vehicle’s license-plate number with the number reported. Officer Ware observed no erratic
driving patterns by the motorist. Concerned, though, with the report that the driver of the
vehicle had flashed what purported to be a law-enforcement badge at another motorist,
Officer Ware felt obligated to stop the vehicle to investigate what had been reported.
According to Officer Ware, he decided to make contact with the vehicle in order to find out
“if there was a police officer in some distress, a police officer in route to something, . . . or
if somebody was impersonating a police officer.”
¶29. Based on the information relayed to Officer Ware, it cannot be said that Officer Ware
lacked reasonable grounds to act. As the county court found, “[u]nder the totality of those
circumstances, the balancing test here goes strongly in favor of the law enforcement officers,
particularly compared to the brief intrusion into the travels of [Cook] for purposes of
resolving the obviously ambiguous situation described in the BOLO.”
¶30. Indeed, the circumstances of this case presented an “ambiguous situation,” which
necessitated a common-sense response. As articulated by Officer Ware, his concern, based
16
on the “bizarre” conduct reported to and relayed by the 911 dispatcher, was not just for the
safety of other motorists, but also for the subject individual’s. Given that a possible
emergency situation was at hand, Officer Ware reasonably acted as expected.
¶31. Floyd explained:
The local policeman . . . is also in a very real sense a guardian of the
public peace and he has a duty in the course of his work to be alert for
suspicious circumstances, and, provided that he acts within constitutional
limits, to investigate whenever such circumstances indicate to him that he
should do so.
Floyd, 749 So. 2d at 117 (quoting United States v. West, 460 F.2d 374, 375-76 (5th Cir.
1972)). Acknowledging the community-caretaking function, adopted by other jurisdictions
and ultimately by this Court in Trejo v. State, 76 So. 3d 684 (Miss. 2011), Floyd said: “The
question is whether there were reasonable grounds to believe that some kind of an emergency
existed, that is, whether there was evidence which would lead a prudent and reasonable
official to see the need to act.” Floyd, 749 So. 2d at 117 (quoting State v. Alexander, 124
Md. App. 258, 721 A.2d 275 (Spec. App. 1998)); see also Trejo, 76 So. 3d at 689 (“The
question becomes whether a reasonable person, given the totality of the circumstances, would
believe the individual is in need of help, or that the safety of the public is endangered.”).
¶32. As noted in Trejo, Floyd did not expressly adopt the community-caretaking rule,
because the Floyd Court upheld the stop at issue in that case as reasonable under the
reasonable-suspicion standard. In my opinion, this case does not necessarily fall under the
community-caretaking rule because, as the aforementioned facts plainly illustrate, the
reported information was sufficiently credible and reliable to provide a sufficient basis of
knowledge to justify Officer Ware’s stop of the vehicle. On the other hand, however, given
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Officer Ware’s testimony, the circumstances of this case do meet the standards enunciated
by this Court in Trejo.
¶33. Nor do I find the circumstances of the case before us on par with the United States
Supreme Court’s decision in Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d
254 (2000). There, in a relatively brief unanimous ruling, the high court held that, absent any
other indicia of reliability, an anonymous tip that an individual was in possession of a firearm
did not justify a stop and frisk. In so holding, the Supreme Court rejected the government’s
argument that firearms were sufficiently dangerous in and of themselves to justify dispensing
with the requirement of reliability. The Court, however, was particularly careful to limit its
holding to the facts of the case before it, explaining: “The facts of this case do not require us
to speculate about the circumstances under which the danger alleged in an anonymous tip
might be so great as to justify a search even without a showing of reliability.” Id. at 267.
The Court held only “that an anonymous tip lacking indicia of reliability of the kind
contemplated in . . . White does not justify a stop and frisk whenever and however it alleges
the illegal possession of a firearm.” Id.
¶34. J.L. differs from the case before us in several respects. First, the information here was
more reliable. The Court in J.L. emphasized that the anonymous tipster had provided
nothing more than a bare-bones description of an individual simply standing at a bus stop.
Id. at 273. There was none of the “predictive” information about individuals’ movements
which lent credibility to the anonymous informant in White, supra. Whereas here, another
motorist provided a detailed description of the subject vehicle that was on the move and
accurately predicted its exact location, information which Officer Ware confirmed within
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moments of the call. Second, and moreover, the J.L. Court noted the relative lack of urgency
confronting the investigating officers. While acknowledging that guns are dangerous, the
J.L. Court analogized the situation to one involving an anonymous tip concerning the
possession of narcotics. Id. In either case, the contraband could pose a potential public risk,
but in neither is the danger necessarily imminent. Id. Not so here. In determining the
validity of Officer’s Ware’s stop, it is not unreasonable to consider both the risk of harm
resulting from a failure to stop the vehicle, based on the reasons articulated by Officer Ware,
and the level of intrusiveness occasioned by a detention. See State v. Richardson, 156 Wis.
2d 128, 456 N.W.2d 830, 834 (1990) (reasonableness of stop “is a common sense question,
which strikes a balance between the interests of society in solving crime and the members
of that society to be free from unreasonable intrusions”) (internal quotation marks and
citation omitted). The police intervention in this case consisted of a brief motor-vehicle stop
and inquiry, “not a hands-on violation of the person.” See State v. Boyea, 171 Vt. 401, 410,
765 A.2d 862, 868 (2000) (holding that police officer could make investigative stop of
vehicle based on anonymous tip that vehicle was operating erratically, without personally
observing incriminating behavior). The “liberty interest at stake” in the case before us “did
not rise to the level which confronted the Court in J.L.” Boyea, 765 A.2d at 868.
¶35. Under the above-stated circumstances of this case, a reasonable officer could not have
pursued any other prudent course. And I would affirm Cook’s DUI conviction. For these
reasons, I respectfully dissent.
RANDOLPH, P.J., LAMAR AND COLEMAN, JJ., JOIN THIS OPINION.
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