Feb 2010-MPT 01-NYBOLE-Above Average Answer 1


I. The Evidence Obtained From McLain's Vehicle and Shed Must Be Suppressed Because Officer Simon Did Not Have A Reasonable Suspicion To Stop McLain's Vehicle

The evidence obtained from McLain's vehicle and shed must be suppressed because receiving a tip from an anonymous, unknown informant and viewing McLain walk out of a grocery store with a paper bag did not give Officer Simon a reasonable suspicion to stop him.

"The Fourth Amendment protects individuals from unreasonable searches and seizures." State v. Montel (Fr. Ct. App. 2003). However, under the leading case of Terry v. Ohio, 392 U.S. 1 (1968), police may make brief investigatory stops if they have a reasonable suspicion that the person detained is involved in criminal conduct. Montel. To conduct a lawful Terry stop, officers must have "a reasonable suspicion, grounded in specific and articulable facts, that the person [is] involved in criminal activity." Id. (quoting Terry). In determining whether the officer's suspicion is reasonable, courts looks at the totality of the circumstances. Id.

Cases involving anonymous informants are particularly suspect. In Franklin and elsewhere, courts have long recognized that tips from anonymous informants lack the reliability of tips from known or identified informants. Montel. Accordingly, to support a reasonable suspicion, an anonymous tip must be (1) "reliable in its assertion of illegality, not just in its tendency to identify a determinate person," as well as (2) corroborated, "such as by investigation or independent police observation of unusually suspicious conduct . . . ." Montel (quoting Florida v. J.L., 529 U.S. 266, 272 (2000).

In this case, the totality of the circumstances indicates that Officer Simon did not have enough grounds to form a reasonable suspicion: the anonymous tipster who called the police about McLain was unknown to the police and otherwise lacking in reliability, and the tip itself was not supported by sufficient independent corroboration. For these reasons, Officer Simon's stop of McLain and subsequent search of his car and shed were unconstitutional, and the fruits of those unlawful searches must be suppressed.

A. The Anonymous, Unknown Tipster Who Identified McLain's Activity As Suspicious Was Lacking In Reliability

Officer Simon lacked reasonable suspicion justifying his decision to stop McLain because his primary source of information was entirely lacking in reliability. In a similar case, State v. Sneed (Fr. Ct. App. 1999), police stopped the defendant after he visited a house that police had been surveilling based on a tip from an "untested confidential informant." The court held that the police did not have reasonable suspicion to stop the defendant, noting that they stopped him without verifying the tip through independent investigation. Likewise, in Montel, a tip from even a known informant did not support a reasonable suspicion when it was otherwise lacking in reliability.

Here, the tipster who called the Centralia police hotline was an untested, anonymous informant who refused to give the hotline his name. Unlike previous hotline calls from the Oxford Street area, which had been from Shop-Mart managers and employees, this call was not from a Shop-Mart manager or employee and was otherwise unknown to the police. Moreover, whereas previous calls had involved shoplifting, this call was the first to report methamphetamine activity. Additionally, the informant did not have any firsthand knowledge that McLain was purchasing the items in question to manufacture drugs. Rather, the tipster made clear in the call transcript that it was his own conclusion that McLain was "clearly up to something." Unlike the tipster in State v. Grayson (Fr. Ct. App. 2007), who gave police specific details indicating knowledge that the defendant had cocaine in his briefcase, the tipster in this case had no concrete knowledge of unlawful activity, only a suspicion. Lastly, the informant refused to identify himself. All of these factors seriously call into question the reliability of the tipster. As in Montel, because the tip had a "relatively low degree of reliability, . . . [t]he tip, standing alone, was insufficient to provide reasonable suspicion for the officers' stop." Montel.

B. The Anonymous Tip Was Not Supported By Sufficient "Independent Police Corroboration"

Moreover, the "independent police corroboration" in this case falls fall short of the corroboration needed to supplement an otherwise unreliable tip. Independent corroboration can include such evidence as independent police observation and unusually suspicious conduct. Montel. It may also include specific knowledge that a location or area is often used for a particular illegal purpose. See Sneed (finding no reasonable suspicion where there was no evidence that the area was known for drug trafficking or that the house under surveillance had experienced short-term traffic); cf. Montel ("A person's mere presence in a high-crime area known for drug activity does not, by itself, justify a stop.")

Officer Simon's "independent police corroboration" in this case consisted solely in locating McLain's car, verifying that he matched the description given, and observing him coming out of the Cullen's Food Emporium with a small paper bag in his hand. Merely identifying that McLain's car and appearance matched the description given goes only to identification; it is insufficient to give rise to a reasonable suspicion of criminal activity. Officer Simon's observation that he matched the description is no more confirmatory than the observation made by the police in Montel that the defendant had a white Honda, and which the court held to be insufficient. Innocent shoppers walk out of grocery stores all day, and had the informant been lying or mistaken, Officer Simon could well have stopped and searched an innocent person. In such a case, his suspicion would clearly appear to be unreasonable.

This police work also falls short of the independent corroboration conducted by the police in Grayson. In Grayson, police followed the defendant and confirmed that he had followed the exact route that the informant had said he would. Moreover, in Grayson, the police also had more specific information from the informant that indicated that the informant had personal knowledge of the defendant's possession of illegal cocaine.

Moreover, McLain's conduct was not unusually suspicious. Viewing a man walk out of a grocery store with a paper bag falls far short of suspicious activity. While the informant had told police that McLain had purchased Sudafed from the Shop-Mart and had asked about engine-starter fluid, this information must be treated as suspect because of its unreliable source.

Finally, there is no indication here that the Oxford and 8th Street area is known for methamphetamine activity. While the area has experienced an uptick in crime, the fact that an area is high in crime is, by itself, insufficient. Montel ("The fact that the area of Franklin City where Montel's car was stopped is a high-crime area did not warrant the stop."). As Officer Simon testified, this was the first report of methamphetamine activity in the area. Therefore, Officer Simon's suspicion was lacking in this independent basis of support as well.

Because the anonymous tip was unreliable, and Officer Simon had not done sufficient independent police work to corroborate the tipster's information, he did not have a reasonable suspicion to stop McLain, and the motion to suppress should be granted.

II. The Equipment Possession Count (Count Two) Must Be Dismissed Because It Is A Lesser-Included Offense of the Manufacture Count (Count Three)

The equipment possession count, Count Two, against McLain must be dismissed because it violates McLain's constitutional right not to be placed in double jeopardy for the same criminal act. Where a criminal defendant is prosecuted for a "greater" crime which necessarily includes the "lesser" crime, "the latter offense is a lesser-included offense and prosecution of both crimes violates double jeopardy." State v. Decker (Fr. Sup. Ct. 2005) (citing Blockburger v. United States, 284 U.S. 299 (1932)). "A lesser included offense is necessarily included within the greater offense if it is impossible to commit the greater offense without first having committed the lesser offense."

Courts in Franklin analyze whether a crime is a lesser included offense by applying the "strict elements" test--comparing the elements of both offenses. Decker. Here, Franklin Criminal Code section 43 defines unlawful methamphetamine equipment possession as (1) knowingly (2) possessing equipment or chemicals (3) for the purpose of manufacturing methamphetamine. Franklin Criminal Code section 51 defines unlawful methamphetamine manufacture as (1) knowingly (2) manufacturing methamphetamine. Section 51 further defines "manufacture" to mean "produce, compound, convert, or process methamphetamine, including to package or repackage the substance, either directly or indirectly by extraction from substances of natural origin or by means of chemical synthesis."

The fact that the elements do not read exactly in the same way does not preclude a finding that equipment possession is not a lesser-included offense of manufacture. "Franklin case law does not require a strict textual comparison such that only where all the elements of the compared offenses coincide exactly will one offense be deemed a lesser-included offense of the greater." Decker. Here, the element "manufacturing methamphetamine" necessarily includes the elements of the equipment possession count; one cannot manufacture methamphetamine without knowingly possessing equipment or chemicals for the purpose of manufacturing methamphetamine. This case is not like State v. Jackson, in which the court concluded that possession of drug paraphernalia was not a lesser-included offense of possession of cocaine because one can possess drugs and not paraphernalia, as well as paraphernalia without drugs. Here, one cannot manufacture methamphetamine without knowingly possessing equipment or chemicals for the purpose of manufacturing methamphetamine. For these reasons, the equipment possession count is a lesser-included offense of the manufacture count, and the Constitution prevents the State from prosecuting McLain for both. Accordingly, the equipment possession count should be denied.