Alabama v. White - Oral Argument

Argument of Joseph G. L. Marston, III

Chief Justice Rehnquist: We'll hear argument next in Number 89-789, Alabama v. Vanessa Rose White.

Mr. Marston.

Mr. Marston: Mr. Chief Justice, may it please the Court:

At issue in this case is the stopping of a vehicle on a public highway in the middle of the afternoon.

Having stopped the respondent's automobile, the officers requested and received permission to search it.

And that was given.

The consensual search produced controlled substances upon... on the basis of which the respondent was taken into custody.

The Court of Criminal Appeals of Alabama ruled that this was an investigatory stop and that it was illegal, contrary to the Fourth Amendment, because it was allegedly not based on reasonable suspicion.

Now, this case is basically a scaled-down version of Illinois v. Gates.

The cases are virtually identical except for the scope of the matter, Gates involved a cross-country trip, there and back.

Unknown Speaker: Also, there the question is probable cause.

Mr. Marston: Yes, sir.

That was my next point.

Unknown Speaker: And... and this case is... you say reasonable suspicion?

Mr. Marston: Reasonable suspicion.

Yes, sir.

Gates involved a cross-country trip.

This involved a cross-town trip.

Gates involved the search of a home, probable cause.

This involved the stopping of an automobile under reasonable suspicion.

Unknown Speaker: And Gates involved activities which on their face looked sneaky and underhanded.

I mean, as soon as you saw the activities that... that had been noticed to the police, you said, gee, this is a very strange kind of activity going on.

It looks like there's something afoot.

Whereas one wouldn't think there was anything afoot in this case.

It's just like saying, you know, if you go out there you will see somebody walking down the street.

And the cop goes out and says, ah-hah, there is somebody walking down the street.

There is something afoot here.

That was not Gates.

Gates was a very complicated system of people driving cars back and coming back by plane.

And you says, gee, why are they doing that?

It must be some, you know, something under it.

Isn't that a big difference between Gates and this case?

There was no indication here, no reason to suspect anything.

Mr. Marston: Justice Scalia, I... first of all, I would disagree with you.

I think the facts in Gates were that... that Mr. Gates... of course, first of all you have the anonymous tip that predicted this.

Mr. Gates flew down to Florida.

He met an unidentified woman, who turned out to be Mrs. Gates, and they drove back to Illinois.

And that's what the officer saw.

And that, you know... yes, it's unusual, but there is nothing criminal about it.

It could have been the wife was sick.

I mean, you know, it's not... there was nothing there that if you take away the anonymous tip that isn't... is even... is indicative of criminal activity at all.

And that's true here.

If you take away the anonymous tip, you have perfectly normal activity.

I mean, that can't be disputed.

But I think the facts in Gates come up the same thing.

Take away the anonymous tip and you have, perhaps unusual activity, but not anything criminal, not anything suspicious.

If... if in Gates you took away the anonymous letter and you... you cite those facts, I don't think any police officer would be justified in taking any action on what they saw.

We would point out, of course, both cases involve anonymous tips.

Both related to specific persons; both predicted the presence of drugs in an automobile.

Now, and Gates--

Unknown Speaker: You say... you say this related to a specific purpose... person?

Mr. Marston: --Person.

Unknown Speaker: How did the officer at the time know this was a specific person?

Mr. Marston: Well, they did not get the identification of Ms. White before they stopped the car.

However--

Unknown Speaker: Well, then, how can you possibly rely on the identification as a justification for stopping the car?

Mr. Marston: --No, sir, I'm not suggesting that they... the fact that they knew, because they didn't.

But the anonymous tipster had said Vanessa Rose White will come out of apartment 235-C, Lynwood Terrace Apartments, get in a brown station wagon.

Unknown Speaker: But they didn't know she came out of 235-C and they did know she was... whatever her name was.

Mr. Marston: They saw her come out of building 235.

Unknown Speaker: They saw a woman come out of that particular building.

Mr. Marston: And get into a brown station wagon with a broken right tail light.

Unknown Speaker: Yeah.

Mr. Marston: And then proceed to the Doby Motel.

Unknown Speaker: She was--

Mr. Marston: They stopped her just short of the Doby Motel.

Unknown Speaker: --She was supposed to be carrying a brown brief case and she wasn't.

Mr. Marston: She was supposed to be... no... yes, sir, she was, but they didn't see it until they got the car stopped.

Unknown Speaker: Well, she wasn't carrying it when she got in the car.

She just--

Mr. Marston: No.

Unknown Speaker: --It was just in the car before she got in it.

Mr. Marston: Yes, but the tipster didn't say she'd be carrying it.

She said... he said, she would have it in the car.

Now, she could have been carrying it, but she... they, in fact, did not see her carrying anything getting in the car.

Unknown Speaker: I... I... does it say that she would have it in the car?

Was that what the tipster said?

Mr. Marston: The tipster said she would be... she would go to the Doby Motel and be carrying a brown brief case.

I do not believe that... I don't understand that to mean she would carrying it out of the house but rather that it would be in the car.

Because that... that's what he said.

And it was, of course, in fact in the car but they couldn't see that, and it was seen after the car was stopped.

But they couldn't see that until the car was stopped.

Unknown Speaker: Well, the record shows they didn't even ask for her name until after she was out of the car and a search commenced.

Isn't that correct?

Mr. Marston: Yes, sir.

They did not ask her name.

Of course, again, that would be after the car was stopped.

Unknown Speaker: Well, but then--

Mr. Marston: And it's the stopping of the car--

Unknown Speaker: --but then... the... the name just doesn't help you at all in this case.

Mr. Marston: --No, sir.

I don't... I don't contend that at all.

What identified this person as the person the tipster referred to was the fact she came out of that apartment building, got in this car and drove to Doby's Motel.

It was all those... those factors.

Unknown Speaker: Did the tipster also say that she would do that at a particular time of day?

Mr. Marston: He said now.

I mean, it was... it was immediate, and they went right out there and here she came.

So, we had time, place, vehicle and destination.

Unknown Speaker: I thought the stop was made before arrival at the motel.

Mr. Marston: Yes.

Unknown Speaker: So, we don't know if the destination was the motel.

Mr. Marston: No, ma'am, but she's... it was just short of the motel.

There are two driveways between... well, she was stopped at one driveway.

There's another driveway.

The next one is the motel.

So, it was right at Doby's Motel.

Unknown Speaker: But not at the motel?

Mr. Marston: Not at... no, no, ma'am.

They stopped--

Unknown Speaker: So, you don't have that factor to rely on.

Mr. Marston: --That she got to the motel?

No.

But we do have the factor that she was headed to the motel, in the right direction.

And when they stopped her, she was in position to be going toward the motel.

Unknown Speaker: What do you think the test is for reliability of anonymous tips?

Mr. Marston: I would suggest that... that... that there should be any... any strict test, but rather should be if the tip is verified.

If the factors are verified to indicate... enough to indicate--

Unknown Speaker: Well, how many of the factors and what factors?

Mr. Marston: --Well, see, that is going to depend on the situation.

It's going to be very difficult to formulate a precise rule that'll work in every case.

But I would suggest that what... what the Court should look for is whether or not enough was identified, enough was verified to say this tipster knew this woman and... or this person... and knew enough in this case to say what her itinerary was that afternoon.

Now, the reason for that is... there are many reasons for it, but one is that that... if we had a false tip, that would limit the number of suspects when they go out to investigate who turned a false tip.

So... so I would say that... that if enough details are verified to say this tipster knew this person and knew enough about a situation so that we know, yes, this is the person they're talking about.

Unknown Speaker: Does it make any difference in your view if it's a potentially dangerous crime?

For instance, an anonymous tip that somebody in an airport or airplane is carrying a bomb that's going to be detonated.

How much is required there?

And is more required for a drug stop?

Mr. Marston: Justice O'Connor, I would suggest, as we have in brief, that basically the requirements should be the same except that in the case of a bomb or something you've got exigency.

And that justifies excusing the... the verification which is, of course, is wide of this case.

But the point is everyone agrees that if these officers had gotten a bomb tip and said, you know, Vanessa... there's a bomb in Vanessa Rose White's car, such and such... everything else... if they had gone right out there and searched the car, that would have been fine.

And that... and it would have been, because the exigency would excuse the verification.

But normally that would be required.

Again, everybody seems to agree on that.

Unknown Speaker: Suppose the anonymous tipster says that... that Vanessa White is going to leave the building at a certain time, she's going to be wearing a certain... describes her clothes in exact detail, describes the car in exact detail and... is that... is that just generally enough?

Mr. Marston: Describes her clothes and the car in exact detail?

Unknown Speaker: Yeah.

Mr. Marston: That would be enough to say that whoever it is knows this person.

Unknown Speaker: Oh, yeah, knows the person.

Mr. Marston: Okay.

Now--

Unknown Speaker: But don't you have to have some basis for thinking that the person knows what is in the bag?

Mr. Marston: --Well, again, we don't engage it in the same thing.

Unknown Speaker: All... all... all--

Mr. Marston: See--

Unknown Speaker: --anybody could know that this person is going to be driving down the street to a hotel, but have no basis whatsoever for believing there is something in her handbag.

Mr. Marston: --Justice White, I don't think anybody would know.

That's what the court of criminal appeals said.

That this is generally known to the public.

But I don't think the public is privy to an ordinary citizen's everyday moving from a house to a hotel.

That would have to be someone who knows this person and... and... and there... you know, what that tells us is they know something about this person.

And if they have taken the trouble and called the police and said this person is carrying controlled substances, they're running a risk, of course.

Anyone... I mean, these people are anonymous, but that's no guarantee the police can't identify them.

And they're running a risk of facing criminal charges and civil charges... I mean, ostracized by society and all this.

Unknown Speaker: Suppose somebody calls up and says, I just saw Mrs. White leaving the building.

She's wearing such and such clothes.

She's carrying a brown briefcase.

She's getting into a brown station wagon, and she has cocaine in her bag... handbag.

Mr. Marston: That, again... I mean, that would be--

Unknown Speaker: Well, all it means is that somebody saw her--

Mr. Marston: --That's right.

Unknown Speaker: --get in a car dressed so and so.

Mr. Marston: But they know her as Vanessa Rose White.

Unknown Speaker: Oh, yes.

Oh, yes, they certainly know--

--But you're not relying on that here, because they didn't ask for her identity.

So that's out of the case.

Mr. Marston: Right.

Right.

But the point is with this situation if the tip is false, and that's one... one... not the only reason... but one reason for the verification is we're down to a limited number of suspects, and the person would have to know that the police are going to pursue them for giving a totally false tip.

They're open to civil suit and that sort of thing.

That's what gives the tip some veracity.

Unknown Speaker: But the tip was false on the crucial--

Mr. Marston: That would... that would open them up to that.

Unknown Speaker: --The tip was false in the sense that they didn't find in the... in the case what the tipster said would be found.

Mr. Marston: They did find controlled substances, though.

And they did find cocaine on her person, in her purse.

Unknown Speaker: Well, they didn't find... the tip was wrong.

The tip was not accurate.

Mr. Marston: That's right, sir.

But what we have to justify is the stopping of the car, and they didn't find that until afterward.

This Court from time immemorial, and quite logically, has said you can't get a search upheld by what you find.

Of course, the converse would have to true.

If they were justified--

Unknown Speaker: But you... you do agree that you have... know enough facts that... that... what the tipster... you must eventually say that we can conclude that the tipster knew this person well enough to have a reasonable belief that she had cocaine in the... in the case?

Mr. Marston: --Yes, sir.

Unknown Speaker: Unless it's a serious crime?

Mr. Marston: Well, again, yes.

Again, that's not... you know, I'm not here to defend that today but that's always accepted.

The telephone call that says there's a bomb and out they go, SWAT team and army bomb dispose and everything else.

And everyone says... all the commentators... that's fine.

And yet, you know, if it's drugs, many commentators say, no, you can't do it if it's drugs.

It doesn't make any sense.

If an anonymous tip has any probative value at all, it's going to be the same.

And... and of course--

Unknown Speaker: Well, I'm not sure what rule you're recommending.

You say, it doesn't make any sense, but... that's the rule you're recommending?

Mr. Marston: --No, I'm making... I'm suggesting that the seriousness of what the anonymous tipster alleges is not... does not affect the value of the tip.

In other words, if a person calls up and, and says there's a bomb, that doesn't make it more likely to be true than if he calls up and says there's... there's drugs.

Unknown Speaker: So, it really doesn't matter, you're saying, whether the tipster gives any indication of knowing the person well.

I mean, you know, when a tipster calls up and says there's a bomb in the building, you don't say, now wait a minute, do you know the owner of the building?

You don't care at all, do you?

Mr. Marston: In that situation, no, sir, because--

Unknown Speaker: Well, now, you can't have it both ways.

Mr. Marston: --Well... my position is... I mean, that would not bother me if the Court was to say, you don't have to verify it.

But--

Unknown Speaker: Right.

But that's not the position you're taking.

That... that's a sensible position, a consistent position.

But you're... you're trying to ride the two horses it seems to me.

Mr. Marston: --Well, the fact--

Unknown Speaker: Does the nature of the crime make a difference or doesn't it?

Mr. Marston: --It does... it does not... it makes a difference as to exigency, as to the need to move.

Unknown Speaker: Well, that's just giving it a fancy name.

Mr. Marston: No, sir, it's not.

This Court... this Court has recognized exigency as justifying excusing a search warrant.

Officers go out and under certain circumstances... I mean, you know, they're supposed to always get a search warrant.

Certain circumstances the need for a search warrant is excused.

Here, you'd have the same thing.

Normally, the reasonable thing to do is to check out the tip, see if... if the... there's any basis for believing the tipster, find out if... if this tipster knows something about this person and so on.

But you don't have to do that... where doing that might endanger human life and limb.

And I don't... no, sir, I don't think that's consistent at all.

I would say... and this is consistent... that in both cases the probative value of the tip is the same.

The difference is that reasonably you should take greater and more rapid action with regard to something that poses an imminent danger to human life and limb.

And it's not unreasonable to require that they verify a tip that involved drugs which do not create a present, now, immediate danger.

Unknown Speaker: When you talk about--

--Would you distinguish between a felony and a misdemeanor?

At common law they distinguished, didn't they, between the circumstances under which you might... an officer or citizen might arrest and some of that distinction turned on felony versus misdemeanor.

Mr. Marston: I know of one case where that was done, and... and it really is not completely logical except that it is traditional and it does look to the legislature as the determiner of the seriousness of the crime.

That's a distinction many courts and commentators make between serious crimes and not serious crimes.

If you're going to make that distinction, it would make more sense to say that a serious crime is one so defined by the legislature by making it a felony than, you know, just sit up and take a guess and say drugs are not serious and murder is serious and so on.

Unknown Speaker: Well, was the crime to which the respondent here pleaded guilty... was that a felony or a misdemeanor under Alabama law?

Mr. Marston: That was a felony.

He pleaded guilty to two felonies, and the crime alleged by the tipster was a felony.

So, both cases... you know, we're doing felonies both ways.

Unknown Speaker: So, suppose there's an anonymous tip that just says the people standing on the corner of 4th and M are engaged in a drug transaction?

Mr. Marston: The people?

Unknown Speaker: The people standing on the corner of 4th and M are engaged in a drug transaction.

Mr. Marston: Right now?

Unknown Speaker: Right now.

Mr. Marston: Okay.

Unknown Speaker: And that's all.

Mr. Marston: All right.

They would... I would suggest that... that that's probably not specific enough because there could be a lot... the requirement--

Unknown Speaker: So, you would say that if the police officers then proceeded and saw some people standing there talking he could not engage in the stop based on the tip?

He saw how many people?

I mean, see, you'd get into a lot of different problems.

How many people on this street?

What time is it?

If it--

Mr. Marston: --Well, there's just some people standing on the street.

Unknown Speaker: --Well, you get... the problem with it is in the case of an investigative stop, it's got to be specific, and that's what you're going to have problems with there.

Now, if it's at a time of day when there's no one else around and there's two people there, yes, sir.

That might well be enough to create a reasonable suspicion.

If it's at noon and you've got all kinds of people walking around, you're going to get into a lack of specificity.

You're not limiting it to one person.

You're creating a danger that all... the same danger with a general search warrant or something.

The danger that, you know, you're going out and bringing in the whole world.

And... and that would be the problem with that type of a situation.

But it would have to be investigated.

You'd have to look at the situation.

I would point out, of course, that in Gates neither... nor here... no one knew who the tipster was or why they should be believed or why they came forward with their information.

And... and this case is exactly like Gates in that respect.

This case differs from Gates other than in scope only in that in some instances this case is a little more specific.

In Gates the... the tipster said that the Gates would be going to Florida, which is a big state.

Here, they were going to Doby's Motel.

In this case, the tipster said cocaine and here... in Gates, he said drugs.

Mr. Marston, can I ask you a question about the facts, if I may, over here?

Mr. Marston: I'm sorry.

Unknown Speaker: The one... does the record tell us why they used a second patrol car and stopped the woman before she got to the motel?

Mr. Marston: The record does not tell you that, sir, but I can tell you if you'd like to know.

They were in... these were narcotics officers in an unmarked car.

Unknown Speaker: I see.

They had to have one with a light on.

Mr. Marston: And they didn't have a light and probably a rather strange car.

I think any person probably seeing some narcotics officers motioning to get over would think they were, you know, in danger.

Unknown Speaker: That would explain why they would use the second car.

Mr. Marston: They used the second car.

Unknown Speaker: But it wouldn't really explain why they wouldn't wait until she got to the motel.

Mr. Marston: Well, that record also doesn't explain that.

Unknown Speaker: It doesn't.

Mr. Marston: But I would suggest to you that probably they figured one she got in the motel... of course, the tip would have been exhausted at that point because the tipster said she would be going to the motel and that's all.

So, they might have thought that--

Unknown Speaker: But they stopped her in front of the... and actually they called the other car and told them to stop her while she was on the Mobile Road, didn't they?

Mr. Marston: --Mobile... yes, sir.

Unknown Speaker: Mobile.

Mr. Marston: Yes, sir.

Unknown Speaker: But isn't that kind of a main highway?

Mr. Marston: Yeah--

Unknown Speaker: Is that a limited access highway?

Mr. Marston: --No, it's not limited access.

It's a very, very busy city boulevard.

Unknown Speaker: I see.

Mr. Marston: Both of these streets... all the streets involved are.

But I believe what happened was they... they said, all right, we're going to have to stop her and they called this patrol car and simply were not able to do it in a surgical fashion.

The patrol car moved in and made the stop and... and she happened to be in front of the Jet Motel... I mean Drive-In.

Unknown Speaker: Why did they want to make the stop?

They didn't make the stop when she came out and got in the car--

Mr. Marston: Yes, sir.

Unknown Speaker: --I mean, why at that particular time?

Mr. Marston: All right.

Justice Marshall, the reason for that was, first of all, when she first came out of the apartment--

Unknown Speaker: Yeah.

Mr. Marston: --all of that time, from the time she got out of the car up until the time she got almost to Doby's, they were... they were verifying the things that this informer had told them.

Unknown Speaker: But she didn't have a bag.

Mr. Marston: They didn't see a bag when she came out of the building.

The bag was already in the car.

Unknown Speaker: Well, then what... if she had... was carrying the bag, they would have seen it.

Mr. Marston: Yes, sir.

Unknown Speaker: And they didn't see it.

Mr. Marston: No, sir.

Unknown Speaker: Well, now why all of a sudden do they want to look for the bag?

Mr. Marston: Because that is where the tipster said that the cocaine--

Unknown Speaker: Well, why didn't they stop her there and look in the car, when she first got in the car?

Mr. Marston: --Well, that would have been fine, but at that point, Justice Marshall, they had relatively little verification.

They had the fact that she had come out of this particular apartment building at that time.

Now--

Unknown Speaker: Well, what happens to give them additional information?

Mr. Marston: --The fact that she got that brown Plymouth station wagon with the broken right tail light and then headed to Doby's Motel.

They were just adding verification.

Now, you... you might well be right, Justice Marshall.

Perhaps they could have stopped her coming out of the--

Unknown Speaker: Yeah.

Mr. Marston: --out of the apartment right there.

But I would suggest that... that, you know, we should compliment officers for being more cautious, for being, you know, developing things more rather than moving in at the first opportunity.

Unknown Speaker: Mr. Marston, how many... how likely is it that somebody that left where she left in the car would have gone by the Doby Motel?

I mean, is it--

Mr. Marston: I don't have--

Unknown Speaker: --is it a circuitous route to get there or is the Doby Motel, you know... if you went one of two ways on the main street when you left where she was, you were bound to go by the Doby Motel?

Mr. Marston: --No, sir.

The Doby Motel is four... a little less than four miles from where she started and it's a circuitous--

Unknown Speaker: Circuitous.

Mr. Marston: --Circuitous.

Unknown Speaker: I missed it the first time, too.

Mr. Marston: It goes down one, two, three, four turns.

Unknown Speaker: Uh-huh.

Mr. Marston: And it's not... it's a relatively small motel.

It would be... I can't give you the mathematical probability, but it would be astronomical that a person not intended by the... by the informer would get in the car and... and do all the... get in that car, get in that--

Unknown Speaker: Let me ask you another thing.

What was the purpose of the stop?

What... is... is it your position that had they stopped her and seen the suitcase or the briefcase that they could have... could have made an arrest?

Mr. Marston: --Possibly.

Possibly.

But they did not do that.

Unknown Speaker: But you don't think that's necessary to your case?

Mr. Marston: No, sir.

It's not necessary to our case because all they did was stop the car and ask her permission to search.

Now, they did ask her to get out of the car and move to the rear.

But they... of course, that isn't what produced the evidence, number one.

And it--

Unknown Speaker: Well, why does the tip give justification to do that?

Because the theory is that if the person has cocaine in the briefcase, the person, of course, will let you search the briefcase and... why does it justify a stop?

Mr. Marston: --Well, it justifies a stop because it creates... it is articulable, objective reasons that this specific person is engaged in criminal activity.

Now, as far as your... your basic question... what were they planning to do... this Court in Terry ruled that when an officer has these reasonable articulable suspicions and so on that the officer may stop the person in question.

Now, of course, common sense tells us it would be a most remarkable situation where the person made a full confession.

Usually what happens in the investigatory stop situation is... and this is really I think the beauty of Terry... is that if it's an innocent person, they do just that.

They tell the officer who they are.

What are you doing here?

Well, I'm looking for my cat or whatever.

If it's a if it's a person with something to hide, that commonly they'll do something else.

Very commonly they will flee or they will abandon the contraband and that sort of thing.

In this case, Ms. White just stopped the car and did what the officers asked.

So about all they were left with was to say, may we search your car?

And she said yes.

Unknown Speaker: What if she'd said no?

Do you think they could have said we'll search it anyway?

Mr. Marston: We're... we're back to--

Unknown Speaker: That's the--

Mr. Marston: --Justice Scalia's question.

Unknown Speaker: --I guess that's the question.

Mr. Marston: That if seeing... and they had at that point seen the attache case in plain view... if that was enough to turn this to probable cause, yes, they would have been justified in searching.

Otherwise, it would have been, good afternoon, Ms. White.

Unknown Speaker: Do you think the fact that she might have said have no could be taken as evidence supporting the search if they--

Mr. Marston: I have always... and I cannot cite a case on this that this Court has handed down analogous rulings... but I have always taken the position in... in training police officers that you cannot cite the invocation of a constitutional right as evidence of guilt.

So, I would say, no, sir.

Thank you so much.

Unknown Speaker: --Thank you, Mr. Marston.

Mr. Byrne, we'll hear now from you.

Argument of David B. Byrne, Jr.

Mr. Byrne: Mr. Chief Justice, members of the Court:

The core issue in this case is to what degree may a police officer rely upon an anonymous tip informing reasonable, articulable suspicion necessary to justify a Terry stop.

We respectfully suggest that in the... facts in this case did not rise to that level of articulable suspicion.

And the reason is that the reasonable suspicion requires more than minimal corroboration of innocent details.

There were at least four spots in this factual scenario where the police officers probably could have gotten that reasonable suspicion but did not for various reasons.

A reference to our brief at page 33 and 34, I set forth or seek to set forth 12 deficiencies in this... in these facts that fail to meet the reasonable articulable suspicion required for a Terry-type stop.

And in this case we began with the premise that the officers knew nothing about their informant.

During the suppression hearing Officer Davis candidly admitted that he had no facts to determine the credibility, the believability, the veracity of his informant.

And secondly, he had no facts upon which he, as an officer, could rely upon in determining whether there was a factual basis for his knowledge.

Unknown Speaker: That for an articulable suspicion?

You might need it for probable cause, but if somebody just calls... calls me up anonymously... I have no idea who it is, but says, you know, so and so is stealing from your garden every night... do you think I might not go out and look that night to see if somebody's stealing my tomatoes?

Mr. Byrne: I think one might look to see if--

Unknown Speaker: Why?

Mr. Byrne: Because I would have... I would have a suspicion, an articulable suspicion.

Well, I think at that point, Your Honor, that you would probably be there because you were both curious as to why the tomatoes were missing and also wanting to find if the culprit might show up that night, but you didn't have the factual basis.

In this case, I think the key element that's missing, Judge... Justice... is the fact that we do not have any description as a threshold matter of Vanessa White.

If they had given a detailed description or, second, if the officers knew who Vanessa White was... but in this case any lady could have entered that brown Plymouth station wagon with a broken right tail light and that's what they had.

Unknown Speaker: Well, but they... they had someone emerging from 235-C Lynwood Terrace Apartments, and they had it at a certain time of day, which certainly suggests that the informant knew something about the movements of the person.

Mr. Byrne: --Chief Justice Rehnquist, if you look at the joint appendix at page 16, I think that there is not a suggestion that the person later identified as Vanessa White came from that particular apartment, but rather she would be... the fact the informant gave would be that she would be leaving the area.

Now, I think that is substantially different from leaving a particular apartment.

In this case, had the informant... or had the officer gotten there and had simply said, let me call the gas company or let me call and see if, during this hour of passage of time, if Vanessa White actually rented 235-C, or if they had determined that in this case the brown Plymouth station wagon was registered to Vanessa White--

Unknown Speaker: Well, in the--

Mr. Byrne: --But they didn't do either.

Unknown Speaker: --In the opinion of the Alabama Court of Criminal Appeals, which is at page 22, 23, 24 of the... what is it, the petition +/?

the Alabama Court of Appeals says that Corporal Davis received a phone call from an anonymous person stating that Vanessa White would be leaving 235-C Lynwood Terrace Apartments at a particular time in a brown Plymouth station wagon.

Now, I thought you just said that the tip was that she would be leaving that area?

Mr. Byrne: Yes, sir, at page 16 of the joint appendix--

Unknown Speaker: Well, I'm talking about the opinion... we're reviewing the court of appeals' opinion.

Mr. Byrne: --I agree, sir, that is... Chief Justice, that is what it says.

I believe it to be factually in error.

Unknown Speaker: What how... what about page 5--

Mr. Byrne: But it is--

Unknown Speaker: --of the joint appendix?

Maybe you could help me with that.

The question specifically,

"From what location would she be leaving? "

Answer:

"She would be leaving 235-C Lynwood Terrace. "

That's the direct examination of Corporal Davis.

Mr. Byrne: --Yes, sir.

Unknown Speaker: Now, is there... is there something that appears in the transcript that indicates he later recants that?

Mr. Byrne: The cross-examination of Corporal Davis, beginning on page 13 of the joint appendix--

Unknown Speaker: Well, I think... I think what he's saying there... that exchange that you quoted... I think all he meant to say is that the caller didn't say that 230... whatever the number is... 30... 235-C... was her residence.

The question is the caller... so, in effect the information was that she would be leaving her residence at a given time.

The caller didn't say she would be leaving her residence.

He just said she would be leaving this area.

I... I think what was left out is whether that was her residence or not.

I... I think you'll find, Mr. Byrne, if there is any doubt about it, that we will probably take the view of the Alabama Court of Criminal Appeals.

Mr. Byrne: --I think that if the Court does that, it would not change the result because in this case the officers did not verify that the lady who appeared and ultimately got in the brown Plymouth station wagon came from 235-C.

Had they done that, I think it would have been helpful.

But they were outside, in effect, surveilling the brown Plymouth station wagon.

Unknown Speaker: Again, the Alabama Court of Criminal Appeals says the officers observed appellant leave the 235 building.

Mr. Byrne: Yes, sir.

That building, Your Honor, houses more than one apartment.

Unknown Speaker: So you... you say they saw... they saw her observe the building but not the 235-C?

Mr. Byrne: Yes, sir, not the particular apartment.

As I understand it, the officers took up a position of surveillance and observed... observing both the 235 building and the brown Plymouth station wagon which was parked in front of the building.

Unknown Speaker: Well, do you think the anonymous tip would have been significantly left... less precise if it had said a woman will leave the 235 building and get into a brown station wagon than if it had said a woman will leave 235-C in the 235 building and get into a Plymouth station wagon?

Mr. Byrne: I think that--

Unknown Speaker: Both of them seems to me to be, you know, narrowing it down to a--

Mr. Byrne: --I think that would be still pretty minimal corroboration, Your Honor, because in this case, absent a specific description, we don't know who was getting into that vehicle.

We do not know that it was Vanessa White.

We simply know that it was a lady that entered the vehicle.

A detailed description... and as Justice White suggested... if we had the kind of description initially given in Draper... now, Draper's facts of course were... were probable cause facts... but I think it's significant also that that was a known informant... in fact, a paid... a paid special employee.

But in that case, they described the gentleman who would be leaving the train, Draper, coming back to Denver from Chicago, as being a black male, five, eight, 160, wearing brown pants, black shoes, carrying a tan briefcase.

Now, the visual observation then of the officer who saw a person fitting that exact description, coupled with the further detail that that person, Draper, would be moving at a rapid pace, brisk walk.

And, indeed, the person fitting that description, with that walk, did get off the train from Chicago in the... the Denver terminal.

And under those circumstances... and I will grant to the Justice that that was a probable cause for arrest and search.

Because they found, in fact, the contraband on Draper that day.

But in this case I think we have to go back to Justice White's opinion in Jernigan v. Louisiana where he dissented from a denial of cert., and as he focuses the critical issue there he asked us and draws our attention to the specificity of the information provided, the independent corroboration by the police.

In here the corroboration is extraordinarily minimal.

And third, the danger to the public, which gets back to the... to the observation of two of the Justices of the Court.

Now, in Gates Justice White was reluctant.

And granted, Gates was a case that wanted to foster the warrant process.

But at least in that case Gates... Justice White in Gates was reluctant to prove any standard which did not require a showing of the facts from which an inference might be drawn, first, that the informant was credible or believable and, secondly, was that information obtained in a reliable fashion.

Unknown Speaker: --Well, Gates, too, was a probable cause case, was it not?

Mr. Byrne: Yes, sir, no question about it.

But I differ from my brother in saying that the facts in Gates in my judgment were extraordinarily different.

And this is not a mini-Gates factual scenario.

The facts in Gates involved the verification by a police officer of eight separate facts dealing from unique travel arrangements, where Sue Gates would drive, Lance Gates would fly.

The destination: West Palm Beach, Florida.

In fact, within 24 hours of the time predicted, passage is booked.

He does... he, Lance Gates, flies to that location.

He goes directly to a Holiday Inn where Sue Gates is registered there.

The two of them immediately leave, driving by a highway, an arterial highway that is frequently used in going back to Bloomingdale, Illinois and to the Chicago area.

The length of time in Florida--

Now, as one of the Justices... and I may be wrong in this, but I believe Justice White said this... this wasn't innocent activity.

This was suspicious as the dickens.

And I... I would tend to agree with that, because this is--

Unknown Speaker: I said that.

I just said that a little earlier today.

Mr. Byrne: --I'm sorry, sir.

But at any rate, I would suggest that this also doesn't reach the stop situation that the Chief Justice's opinion in Sokolow addressed late in 1989 because there, DE agents... DEA agents, excuse me... observed and verified with their own eyes and senses six objective characteristics of a drug courier.

And that was the $2,100 in cash from a roll of 20s; they travelled under an assumed name; the destination at Miami was a source city for drugs; they stayed in Miami 48 hours and it takes 20 hours to simply fly there and get on the plane and fly back; apparent nervousness; and he checked none of the luggage.

I also would like to digress and go back to Gates because I left out something.

When my brother suggests there was totally innocent activity in Gates, let me suggest that suspicion also should have been generated by reason of the fact that Lance Gates was using switched plates on the vehicle that went back to Bloomingdale.

It was a plate, albeit registered to him, but it was a plate for a different kind of car... I believe a Hornet automobile, as opposed to the Mercury that he was driving.

In total, though, and in sum, I would suggest that... that we've got far more verification, reasonable suspicion, articulable suspicion in Sokolow than are present in these facts.

Unknown Speaker: What if you had these... these facts and the caller added,

"And she will be carrying a bomb which she is going to plant at the hotel? "

Mr. Byrne: I think reasonably articulable suspicion is a standard that is reasonably fixed, but I think reasonable men, dependent upon what the crime is, must react differently.

And if we've got the danger to the public as being the third criteria that Justice White suggests, when you get the area of bomb in a possible motel, then whether or not you make a particular criminal case

"in a neat, tight package. "

or you preserve life, we must, as a society, preserve life.

Unknown Speaker: What does that mean?

That there... that there was a reasonable... reasonable... reasonably articulable suspicion in that case?

Mr. Byrne: No, sir.

Once again, I don't think--

Unknown Speaker: Or you don't care in that case?

Mr. Byrne: --Yes, sir, I care.

I think what I would do in that case is if I were the police officer on the street, given those facts, I would preserve life and then run the risk that I couldn't make my case.

Unknown Speaker: You don't care.

You'd say there still is no reasonably articulable suspicion but the officer ought to do it anyway.

Mr. Byrne: I don't think there is reasonably articulable suspicion.

Unknown Speaker: Then the law should not protect the officer in that case if he is sued for a violation of the Fourth Amendment?

Mr. Byrne: In my... in my... in my judgment, Your Honor, given those... those facts, I believe that his true exposure to suit would be de minimis.

Unknown Speaker: Well, that doesn't really answer my question.

Mr. Byrne: If the question is could he be sued, yes, sir, it could be.

Unknown Speaker: And a... and a court would find that he violated the Fourth Amendment?

Mr. Byrne: If the question is whether or not there was a Terry stop as opposed to a complete search, I think that would break a difference.

But I think, as the Chief Justice suggests, that what you would have is a violation of the Fourth Amendment seizure provision, and I think there is a technical violation.

Unknown Speaker: Mr. Byrne, a much more common situation is an anonymous tip that a drug transaction is taking place.

And in the present drug culture we have, many of these tips are and must be anonymous because the people that give the tip know that there own lives are in danger.

Are... are drug transactions one, do you think, in which we should find that there is a reasonable ground for suspicion merely because there's a tip that has not much more verification than the one we have in the present case?

Mr. Byrne: Your Honor, there is no question that... that drugs are a serious national concern.

I think, though, when we talk about Fourth Amendment restrictions, however, I think we've got to be cognizant of the crime but... but I think the core problem here is you've got the danger of anonymity without accountability.

Unknown Speaker: But with reference to somebody having a bomb or committing a murder, there's... there's usually not much reason for anonymity.

Within drug transactions there is all the time.

Mr. Byrne: Yes, sir.

I think... I think that the question there is, of course, they're... they're afraid that if they're... they are disclosed, they may be burned.

And I think that's the common parlance.

I think... I think, however, that what you're doing is we're trying to balance the right... the right of the citizen as opposed, in this case, to the informant.

Let me suggest that both, as an Assistant United States Attorney and as... and as a defense counsel, I've seen numerous requests for disclosure of informants.

And it has been my experience, respectfully, that courts and judges do not grant that.

And I, at least in my experience, limited though it may be, I have never seen a judge disclose a confidential informant.

But that is a very clear danger.

And it is any time when police rely upon informant activity.

Unknown Speaker: Of course, it's even rarer for them to disclose an anonymous informant, and if my life were at stake, I suppose I'd play the odds and want to remain anonymous.

Mr. Byrne: I think that is... I think that is clearly... clearly true.

But I think that this Court has in Adams v. Williams case at least expressed some concern about anonymity without accountability, because the Chief Justice in answering those questions points out in the four factors that he gives at least twice the fact that the informant was known, had provided information in the past and, most critically, would have been subject to criminal prosecution.

I do beg to differ from my co-counsel in that in this case, this informant would not have been subject to criminal prosecution because the officer said he did not know who that person was, and they had not heard from that individual subsequently.

And that the informant was not "known" to the Montgomery Police Department.

The linchpin of this case is whether or not the Court will approve a stop and a detention of a citizen based upon an information provided by an anonymous tipster who is not held to a standard of accountability and where the corroboration of the details is minimal.

In this case, as pointed out by Justice O'Connor, had they allowed the vehicle to get and even turn into the motel, if the officer had approached and said, my name is Patrolman David Byrne, may I see your license, please, ma'am, and that license turned out to be Vanessa White and she had made the turn into the Doby Motel at a minimum, I believe, given all of the facts under these circumstances, you would have had reasonably articulable suspicion.

I do not believe that we got to that level.

Unknown Speaker: But... but under your view, of course, they couldn't have made that stop.

Or could they?

Could they have made... are you suggesting they could have made the stop and asked her for her license?

Mr. Byrne: At this point, I think they clearly... they had a reason to under our code to have done it without regard to the reason they gave for the stop.

The officer--

Unknown Speaker: Because... because of the broken tail light?

Mr. Byrne: --Broken tail light.

In this case, though, the officer was very candid and when he said... when he identified himself, he simply said, we suspect that you are carrying drugs in the car.

And they also observed that she was... it was filled with clothes as if she were moving.

And at that point, Officer Reynolds, his partner, gets... begins to go through the car.

They find the brown briefcase.

They ask her for permission or consent to open the combination lock on it and inside they find a quantity of marijuana.

In this case the record does not disclose, but it was--

Unknown Speaker: I think that we... we judge this case as though the consent was valid.

Mr. Byrne: --Yes, sir.

I think at this point we have to.

The question is, was the stop a valid stop and was there reasonably articulable suspicion?

Unknown Speaker: And if it wasn't a valid stop, then the consent is a fruit?

Is that it?

Mr. Byrne: In my view, Justice White, this is more akin to an arrest than it was a stop.

I don't see any of the indicia of a Terry stop--

Unknown Speaker: Yeah, but what... what invalidates the consent?

What's the basis for excluding the evidence?

Mr. Byrne: --Given the--

Unknown Speaker: It's the fact that the stop is illegal.

Mr. Byrne: --Yes, sir.

Unknown Speaker: And that... and that the stop produced the consent.

Mr. Byrne: Yes, sir, and given... given the opinion of the Alabama Court of Criminal Appeals, they reached and attacked this question only as a stop case, not as an arrest situation.

Once we leave the determination of reasonable suspicion to a police officer guided by a concept as amorphous as the totality of the circumstances, we have a very difficult situation because the officer whose responsibility it is to ferret out crime and enforce the law is... is in an very difficult circumstance.

And the totality of the circumstance's test, where it's being determined by mutual and detached magistrate, is a far greater guarantor of Fourth Amendment protections than giving the anonymous... excuse me... the totality of the circumstances test to the police officer to determine for himself if his tipster--

Unknown Speaker: But... but you don't... you don't need a warrant for a... for a Terry stop.

Mr. Byrne: --No, sir.

Absolutely not.

Unknown Speaker: So, you're talking about going before a neutral and detached magistrate to get an arrest warrant in this case?

Mr. Byrne: No, sir.

If I gave... made that suggestion, I was in error, because I'm not.

Gates simply dealt with a warrant situation where the totality of the circumstances supplanted or replaced in part Aquilar and Spinelli's two-pronged test.

I would suggest that reading the opinions of the Gates' court, however, we did not completely abdicate or banish those considerations as factors among the totality of the circumstances.

Unknown Speaker: I suppose if they... if the... if the lady had stopped at a drug store on the way to this motel and the police parked behind her and as she got out of the car, she said... they said, excuse me, we think you're carrying drugs, can... may we search the... your car?

And she said, sure.

May we search this case... attache case?

Sure.

There wouldn't be anything wrong with that I don't suppose?

Because... I suppose any policeman can walk up to some person on the street and say, excuse me, somebody tells me you're carrying drugs in your pocketbook, may I look at it.

Mr. Byrne: Your Honor, I do not believe for... that to be my reading of Teller... Terry when I couple it with--

Unknown Speaker: I know, but anybody... anybody can say excuse me and if the person doesn't want to stop he can just go on.

But if a person stops and listens to you and says, sure, you can search my briefcase, is anything wrong with that?

Mr. Byrne: --Yes, sir, I believe so.

As I recall in Delaware v. Prowse, there--

Unknown Speaker: That's an automobile stop.

Mr. Byrne: --Yes, sir, and I... I understand now the distinction you're making.

In an automobile stop there, that was different in the sense that we... the... in the analogy your gave, the vehicle has coming to a stop, she's getting ready to go to the drug store.

But in Terry--

Unknown Speaker: xxx car and you say, excuse me.

Mr. Byrne: --Excuse me, but in this case, in Terry, the officer, who was a trained officer for many years of experience, observed suspicious activity independent of whatever she did.

And I think that makes a difference, sir, because there it looked as if they were casing the joint for some period of time before they approached Terry and his friends, asked for their names, and they mumbled something, reached for the pocket and the officer put his hand in there.

And at that point, of course, this Court upheld Terry.

But Terry was defined in the narrowest possible terms by the Chief Justice.

Is it always unreasonable?

And I would respectfully suggest that we have not moved beyond that narrow framework of Terry by reason of the... the time that has passed.

Thank you.

Unknown Speaker: Thank you, Mr. Byrne.

Mr. Marston, do you have a rebuttal?

You have four minutes remaining.

Rebuttal of Joseph G. L. Marston, III

Mr. Marston: Your Honor, I did not plan to have any, but I would be happy to answer any additional questions the Court might have.

Chief Justice Rehnquist: Apparently, there are none.

Thank you.

The case is submitted.

Mr. Marston: Thank you, Your Honor.

Unknown Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.