Sunday, March 25, 2018

Anonymous Police Tips and DWI

Anyone can call in a police tip. But whether that police tip will hold up constitutionally is another story entirely. Anonymous tips where the caller chooses to not reveal who they are face greater scrutiny. Because anonymous tips are less reliable and credible they must be more specific.

One recent DWAI drugs case (2018, People v. Feinberg) was tossed because the tip wasn't up to snuff. Why?

Anonymous Tips are Hearsay

Hearsay can be substantiated or unsubstantiated, of course if it has more substance it is likely more true.

Anonymous Police Tips Must be Credible and Reliable

If the law enforcement gets an anonymous tip they must be cautious in it's use. Just pulling over a car (a stop under the 4th amendment) is a seizure. A lawful seizure without probable or reasonable cause (usually an equipment or moving violation) can face challenges. Were the police acting lawfully?

Remember warrantless stops have to pass muster. How do we go from just an anonymous tip that can't be used to stop a car legally to a tip that easily be used?

Anonymous Tips to Police Have to Generally Predict Future Behavior

It's not enough to say that a car is on a certain highway. It is far better to say I saw the car at exit 43 moving towards exit 46. It can also say I saw the car on highway I 17 get off on the Elmira exit. A description of the car alone is rarely enough to make out the reliable standard.

Anonymous tips to Police are Better When You State How You Know

I was driving on I 17/86, and saw a red chevy, license number 889xyz traveling westbound is better than just saying a red chevy is traveling westbound. Giving your location or that you saw this person at a party get into a car drunk or high gives the tip further validity.

Anonymous Tips to Police that State Specific Troubling Behavior are More Credible 

I saw a red chevy driving 90 mph, moving lane to lane without signaling, and he almost hit the guardrail. The more vague the tip the less it can be counted upon to stop a car lawfully.

People v. Feinberg, 2018 DWAI Drugs Car Stop and Arrest

Feinberg was driving along when another person phoned into the New York state police that they saw a car where the driver was either sick or intoxicated. The caller didn't give their name, or why they thought the driver was in that condition. State troopers pulled over a car matching the anonymous caller's description. The car was traveling at a normal rate of speed and displayed no signs of driving impairment.

Feinberg stated to the trooper he took morphine and valium at 8:00 am that morning. Feinberg was asked to exit the car, he was unsteady on his feet and had to hold the car for  balance. Feinberg failed some sobriety tests and submitted to a blood test. He was arrested for New York DWAI drugs 1192(4).

During the suppression hearing, there was no testimony or evidence as to the identity of the person who had contacted the police and reported the erratic operation of the motor vehicle. Without such evidence, the presumption of reliability of "an identified citizen informant" does not apply (People v. Parris, 83 NY2d 342, 350). The People may argue that they have evidence of the caller's reliability and/or identity. However, the People failed to present that evidence at the suppression hearing. Therefore, any such evidence cannot be considered by this Court (People v. Argyris, 24 NY3d 1138, 1185 [footnote 5] [2014], cert. denied, 135 S. Ct. 2902 [2015]); see People v. Washington, 291 AD2d 780, 781 [4th Dept., 2002], lv. denied 98 NY2d 682 [2002]). 
Further, the trooper did not testify as to any observation of the defendant driving erratically or committing any traffic infraction. Rather, the evidence establishes that the trooper pulled over the defendant's vehicle based solely upon the unnamed informant's tip. "Reasonable suspicion to justify the stop of defendant's vehicle was not established, in the absence of evidence [*2]at the suppression hearing showing specific and articulable facts communicated by the informant concerning the allegedly erratic driving (see, People v. Scheff, 166 AD2d 821) or the basis for the informant's knowledge (see, People v. Phillips, 225 AD2d 1043, 1044)" (People v. Valdes, Docket No. 98-1233, Supreme Court, Appellate Term, 9th and 10th Judicial Districts [1999]). In addition, "whether evaluated in light of the totality of the circumstances or under the Aguilar-Spinelli framework, [the hearing record is devoid of any testimony establishing] the reliability of the tip...The caller's cursory allegation that the driver of the car was [driving erratically], without more, did not supply the trooper who stopped the car with reasonable suspicion that defendant was driving while intoxicated [or impaired]" (People v. Argyris, 24 NY3d 1138, 1141 [2014] citing People v. De Bour [La Pene], 40 NY2d 310, 225, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976]; cf. Navarette v. California, 134 S. Ct. 1683 at 1690-1692 [2014]).

Lawyer Challenges Car Stop Based Upon the Anonymous Tip to Police

 Judge held that the stop of Feinberg's car was UN-lawful (illegal) by the trooper. It didn't meet the credible and reliable standard because it didn't state:

How they knew that Feinberg was sick or intoxicated?
What behavior by the car or Feinberg alerted them to suspect that?
No predication of future behavior by Feinberg?
The trooper didn't see any equipment or moving violations.

Judge threw out all of evidence gathered against Feinberg.

Statements by Feinberg about the drugs.
The failed sobriety tests.
The blood test.

DWAI drugs case dismissed without evidence. The 4th amendment to the constitution which protects us against unreasonable search and seizure lives another day. Anonymous tips must all be evaluated because they may be unreliable and not credible.