Florida v. J. L. - Oral Argument

Argument of Michael J. Neimand

Chief Justice Rehnquist: We'll hear argument next in Number 98-1993, Florida v. J.L....

Spectators are admonished, do not talk until you leave the courtroom.

The Court remains in session.

Mr. Neimand.

Is it Neimand, or Neimand?

Mr. Neimand: Neimand, Your Honor.

Chief Justice Rehnquist: Neimand.

Mr. Neimand.

Mr. Neimand: Mr. Chief Justice, and may it please the Court:

The issue before the Court today is whether an anonymous tip that provides a specific location and a specific description of individuals, and one of the individuals is carrying a gun, provides a reasonable suspicion to make a Terry stop and frisk when only the innocent details, that is, the location and the identity of the individuals, are immediately verified.

The Florida supreme court held that under such facts that would never provide reasonable suspicion to allow for the stop.

The Florida supreme court requires further verification of either future predictive behavior or observation of criminal activity in order for the stop to be effectuated.

Justice O'Connor: What's the closest case in this Court, in your view, that you think supports your position?

Mr. Neimand: Well, the closest case that we have is Alabama v. White, where on facts similar to this the Court held that it was a close call, but in fact there was a reasonable suspicion.

In that case, it was a drug case, the police officers acted upon a little more than we had here.

Some of the predictive activity did not occur, and a small amount of the predictive activity did occur, but that predictive activity was innocent.

Justice O'Connor: Well, I thought the court there said that standing alone the tip in the Alabama case would not warrant someone of reasonable caution in the belief that a stop was appropriate, but in this case, there is more than the tip, and it went on to articulate other factors.

Mr. Neimand: Yes, Your Honor, that is the closest case, but also, if you... when we read Alabama v. White, this Court said that that question of the anonymous tip, in and of itself, was left open and would be left to be decided another day.

Justice O'Connor: Well, it may have said that elsewhere, but it also said what I read to you, that standing alone, it wouldn't be enough, so to accept your view we would have to move a step beyond Alabama.

Mr. Neimand: I believe so, Your Honor, and I believe under the facts and circumstances in this case, where we're dealing with a dangerous weapon, a firearm, the public/ officer safety concerns come into effect.

Justice O'Connor: Are you arguing, then, for a firearm exception on the anonymous tip doctrine?

Mr. Neimand: No, not at all, Your Honor.

A firearm exception would basically say any time a tip says a firearm, that's all that's needed.

What the State is arguing here is that when there is a firearm involved, then that is one of the circumstances that we look at under the totality of the circumstances to determine whether the anonymous tip is valid.

Justice O'Connor: Is it even illegal in Florida to carry a concealed firearm, or can people...

Mr. Neimand: It is a...

Justice O'Connor: legally have one?

Mr. Neimand: It's a regulated privilege, not a right in the State of Florida, and that allows for a...

Justice O'Connor: But one does not assume in Florida that in every instance possession of a firearm concealed is unlawful?

Mr. Neimand: No.

Chief Justice Rehnquist: Well, but it's unlawful for a minor, isn't it?

Mr. Neimand: Correct.

Chief Justice Rehnquist: And this person was a minor?

Mr. Neimand: Correct, 10 days shy of his 16th birth date.

Justice Stevens: The red brief says that you in effect are arguing for a gun exception to the anonymous tip rule, and it seems to me that the red brief is in essence fair when it characterizes your argument that way, because I think what you're telling us that the nature of the tip, i.e., that there is a gun, somehow makes the tip more reliable.

Mr. Neimand: It... that would depend...

Justice Kennedy: And I... that doesn't seem to me logical.

Mr. Neimand: That would depend...

Justice Kennedy: It seems to me there may be good arguments for your position, but it's not because it makes the tip somehow more reliable.

Mr. Neimand: Your Honor, that would depend upon the circumstances.

We...

Justice Breyer: It doesn't make it any more reliable here, does it?

I thought... I mean, does it make it more reliable?

It certainly doesn't.

Mr. Neimand: Well, it's a fact that we're looking at reliability that someone who had seen what was going on made a phone call to the police, that they described the individuals, and that information contained a description, a location, and the fact that one of the individuals was carrying a firearm.

Chief Justice Rehnquist: But that could be true of a tip that the person was carrying drugs.

Your argument here is that it's much more dangerous to society if this person is not picked up, he could do more harm with a gun than he could with a cache of drugs, isn't it?

Mr. Neimand: Correct, Your Honor.

Justice Scalia: And therefore you don't need as much reliability.

Isn't that your argument?

Mr. Neimand: Correct.

Justice Scalia: Your argument is not that the tip is more reliable.

It's that you don't... we will not insist upon the same degree of reliability when the argument is that the guy has a gun.

Maybe even less for an atomic bomb?

Unidentified Justice: [Laughter]

Justice Scalia: Now, my question is, why do we apply this principle just to stop and frisk?

If the principle is a valid one, shouldn't it apply to search and seizure as well, so that we shouldn't really insist upon the same degree of probable cause if it is said that someone has an arsenal in his basement.

Mr. Neimand: Well, I...

Justice Scalia: Because I mean, the degree of public harm is enormous, or, you know, is making bombs... now, we don't do that for search and seizures.

I don't see why there's any more justification for doing it for stop and frisk than there is for doing it for search and seizure.

Mr. Neimand: Well, in the search and seizure area the State has cited numerous cases where we do look at officer safety in extending searches and frisks.

We look at the New York v. Belton, where we have an ability to search the car for weapons after the individual is already in the police car.

Justice Scalia: Well, that's fine, but not to conduct a search on the basis of less probable cause than would normally be necessary.

We don't say, if there's a really serious threat to the public involved you don't need the same degree of probable cause.

We haven't said that.

Mr. Neimand: Well, the intrusions between probable cause and a reasonable-suspicion Terry frisk are a little bit different.

Justice Scalia: Oh, I understand that.

Mr. Neimand: And that...

Justice Scalia: But if the principle is valid I don't know why it wouldn't apply to one as to the other.

Mr. Neimand: Well, because the intrusions are different, and you would need more for a full-scale arrest and search when there's probable cause, because you have to establish probable cause, and probable cause I don't believe is as fluid a situation as reasonable suspicion, because in a reasonable suspicion situation we are in fact looking at a totality of the circumstances.

Justice Scalia: But in all events...

You're getting back on the notion that I thought we put that to rest and don't have to go over the same ground again.

You acknowledge that it has nothing to do with whether the suspicion is reasonable or not.

Mr. Neimand: No, I don't acknowledge that.

Justice Scalia: Well we've...

Mr. Neimand: If I did, I misspoke, Your Honor.

I think that the fact of the matter is that when there is that firearm in that situation, and in a particularly described situation, not in a situation where you would, say, get a tip that there is 100 people on the corner all wearing plaid shirts, and one of those individuals has a firearm.

That would be the firearm exception, if the officer then could go and search each and every one of the individuals.

Justice O'Connor: Well, if in this very same case the tip were, there is a man in a plaid shirt who's in possession of a marijuana cigarette standing on the corner.

Mr. Neimand: I do not believe at that point in time the public safety, or the officer's safety would be affected, and therefore we would have to wait to see whether or not there was...

Justice O'Connor: Well, the tip here is, there's a weapon, and the officer is nowhere near it, but you say that that's enough to assume that the officer's safety is in jeopardy?

Mr. Neimand: Well, the...

Justice O'Connor: He's taking his car to drive over to check it out.

Mr. Neimand: Well...

Justice O'Connor: He's not there.

Mr. Neimand: Correct, but once he goes there, what is the officer supposed to do at that point in time, and that's where the...

Justice O'Connor: Well, one would have thought nothing, unless we extend the anonymous tip doctrine to cover it.

I mean, I would have though that... our cases would suggest the anonymous tip, with nothing more than somebody in a plaid shirt on a street corner has a concealed weapon, I wouldn't have though that was enough, unless we somehow extend the doctrine.

Mr. Neimand: Well, in that situation what would be proper police... it might not be what is under the case law, but what would be proper police investigation in that situation, and you would have to give the officer's experience, and the... based upon the neighborhood, the area...

Justice Ginsburg: Counsel, the officer's experience is that guns are often mixed up with drugs, so the anonymous tip is, three guys standing on a street corner, and one of them in a plaid-like shirt has crack, and the police officer knows from his experience that people who engage in selling crack often have guns, so does it follow, from what you say, the police having an anonymous tip about crack can therefore frisk for a weapon?

Mr. Neimand: No.

In that situation, once again the tip is the knowledge that there are drugs, or the idea that there might be drugs present, and I believe that the requirement there is to wait until there is actual sale or use of the drugs, and then you have the probable cause...

Justice Ginsburg: But he's not... the officer's concern, in this case she, her concern is not the drugs but the gun.

She knows from her experience that those two very often go together, so why, on the same safety rationale for the police officer, once she gets there, couldn't she say, well, the tip was about drugs, but I know from experience that he's probably carrying a gun, so I'm going to, for my safety, frisk him?

Mr. Neimand: Well, the first thing is that the tip would have come in, and an officer getting a tip of that nature would have surmised that the person had seen the individuals, where they were located, described them, and had seen the gun, and therefore, without the drugs being involved... and the tip would have said the gun, and that's the difference.

In the other situation Your Honor gives us, we don't know that there are drugs.

We're using the basic surmise of the officer that there could be a gun, but the information that was gotten was the drugs, and that is part of the totality of the circumstances...

Chief Justice Rehnquist: Well, in your public safety argument, as I understand it you're not arguing just for the safety of the policeman, but that more damage can result to some member of the public in a confrontation with somebody with a gun than a confrontation with somebody who has a cache of drugs, isn't that correct?

Mr. Neimand: Correct, Your Honor.

In that situation, that's why we say the officer/ public safety, because if the officer does not act, then the individual...

Justice Stevens: But there's one thing I don't understand.

At the very beginning I think you said that it's perfectly all right in Florida, unless you're a juvenile... and I don't know how this officer knew this young person was a juvenile based on the tip, but except for juveniles, is it not lawful for persons in Florida to carry concealed weapons?

Mr. Neimand: There is a privilege that if they go through the permitting...

Justice Stevens: But the mere fact that you suspect someone of having a gun doesn't mean he doesn't have that privilege, he doesn't have a permit.

Mr. Neimand: No, but we can...

Justice Stevens: I would think that it's more jeopardy if you say they're a drug dealer, because that's definitely illegal, but if you just say he's got a gun, well, you presume that the person obeys the law.

Mr. Neimand: It's a presumption that they legally got the gun, but not a presumption that they will legally use the gun.

Chief Justice Rehnquist: Well, we reached a different result in Adams v. Williams, did we not?

Mr. Neimand: Yes.

Chief Justice Rehnquist: Where they said, Connecticut you could carry with a permit...

Mr. Neimand: Right.

Chief Justice Rehnquist: and we said that a frisk was nonetheless justified.

Mr. Neimand: Uh-huh.

Justice Scalia: Mr. Neimand, I thought a frisk in stop and frisk, a frisk is incidental to the stop.

What we said is, when you see somebody behaving suspiciously, what the policeman is authorized to do is to stop the person and make inquiry... Why are you hanging around on this street corner?

Where do you come from?

Why are you here?

What's your name?

make inquiries like that.

Now, in this case, by contrast... and incidental to those inquiries he has to protect himself, so he can pat the person down before making the inquiry.

That's how it developed.

In this case, by contrast, the whole reason for the policeman going up to this person is to frisk him.

What possible question was he going to ask the fellow that would satisfy him that in fact he is not the suspicious character that he had reason to believe?

What's he going to ask him?

Do you have a gun in your pocket?

Is that going to be very helpful?

Mr. Neimand: Well, that's what the Florida supreme court said would be helpful, and you put the officer...

Justice Scalia: It wouldn't be helpful at all.

The whole purpose of his going up is to frisk.

Mr. Neimand: Correct.

Justice Scalia: And that's quite different from the rationale behind our stop-and-frisk jurisprudence.

Mr. Neimand: Terry normally... Terry holds exactly that.

You have to have evidence of criminal activity, and then during that stop, if you are afraid of safety...

Justice Scalia: During the stop in order...

Mr. Neimand: Yes.

Justice Scalia: to interrogate the person.

Mr. Neimand: Exactly.

Justice Scalia: And I don't see what possible benefit interrogation would have had in this case.

Mr. Neimand: Well, that's what makes it a different situation in terms of the totality of the circumstances.

The officer is going to investigate this alleged crime of carrying a concealed firearm, and he goes up and speaks to the individual.

There is a distinct possibility that when he says, do you have a gun, the gun will be exhibited and used, and therefore this is different.

Therefore, there is a concomitant need to both stop and frisk immediately.

It is an unusual circumstance.

It is not the rule.

Justice Ginsburg: Mr. Neimand, do you concede... there were three people standing at that street corner, and the officer frisked them all.

As to the other two... the anonymous tip related only to the one with the plaid-like shirt.

As to the other two, was that wrongful conduct on the part of the police to frisk the other two?

Mr. Neimand: The record was not... if I'm... I'm not sure how clear the record is on the sequence of events.

I would say that if those frisks occurred first, they probably were not proper, because they were not the ones who were said to have the gun.

I think once they found the gun, I believe it was proper.

Justice Ginsburg: Guilt by association.

Mr. Neimand: Well, public safety exception, Your Honor.

I...

Justice Scalia: It seems to me that's absolutely the wrong answer, that if, indeed... if, indeed he was frisking for the proper purpose, that is, to protect himself, he had just as much reason to frisk the two that were next to this fellow while he was conducting the interrogation, just as when the police stop a car on reasonable suspicion they can frisk not just the driver, but other people in the car, to be sure that they are not endangered.

I don't see any reason why he shouldn't frisk all three, unless I believed, as you apparently do, that really what he went there for was not to interrogate, but to frisk.

Mr. Neimand: Well, no...

Justice Scalia: And he only had a reason to frisk the person against whom the anonymous tip was made.

Mr. Neimand: I believe that the reason was to interrogate, but because of the evidence of the criminality, was he carrying a concealed firearm, we are put in a different situation, that to interrogate before you ascertain whether a crime has been committed puts the police officer in harm's way at that time, and if you fail to do the interrogation you place the public safety in harm's way, because you do not know when that individual might take out the gun and start using it.

I would like to save the remainder of my time.

Argument of Irving J. Gornstein

Chief Justice Rehnquist: Very well, Mr. Neimand.

Mr. Gornstein, we'll hear from you.

Mr. Gornstein: Mr. Chief Justice, and may it please the Court:

An officer may conduct a stop and frisk when, under the totality of the circumstances, there is reasonable suspicion that a crime is occurring and that the suspect is armed and dangerous.

Justice O'Connor: Well, you don't say that was met here, do you, reasonable suspicion?

Mr. Gornstein: Yes.

Reasonable suspicion is, under the totality of the circumstances, met in this case.

Justice O'Connor: What facts were there, other than the anonymous tip, and someone who, in fact, was on a street corner in a plaid shirt?

Mr. Gornstein: The totality of the circumstances consists of the following four things: the tip, the confirmation of the verifiable details of the tip, the absence of any observations that led the officer to conclude that there was... that his suspicions should not be aroused when he got to the scene, and the fact that this tip concerned a gun that was unlawful for a child to possess, and therefore the level of suspicion that you need in

Justice O'Connor: Was it readily apparent that it was a juvenile?

Mr. Gornstein: Well, the...

Justice O'Connor: Would somebody know whether the person were 18 or 17 on appearance?

Mr. Gornstein: This... the law of Florida is that anyone under 21 cannot carry a gun, and this person was under 16 years of age, so any officer who came to the scene and observed that person would have had reasonable suspicion that that was a child there.

Justice Stevens: Can you tell me about the tips for a moment?

Do you have any information that we can consult as to whether or not the great majority of tips in gun cases are correct or incorrect?

Our jurisprudence is such that we fear tips because of pranks and people who have vendettas, and the assumption is, is that they are usually unreliable.

Can you tell us anything to bear on this?

Are tips about guns generally reliable, or not?

Mr. Gornstein: We don't have any empirical evidence on this, and when you're presented with a tip like this, I think what you resort to is a common sense judgment that if there's nothing on the face of the tip that is unreliable, the officer is going to go out to the scene.

Once he's at the scene, and he confirms the observable details, and nothing decreases his suspicion, then the alternatives to a stop-and-frisk pose an unreasonable risk of danger to the police and the public.

Justice Stevens: If the police have the name of the... the capacity to check the number from which the call originated, does that make the tip perhaps more reliable?

Mr. Gornstein: It does... it does...

Justice Stevens: Because it's a crime to violate... to have a false report under 911, so...

Mr. Gornstein: It would.

It would make the tip more reliable, and that would be a factor in the totality of the circumstances if it could be shown that it was a 911 call that you could record, that you knew where the call came from.

Justice O'Connor: What do we know here?

Did the tip say it was a youngster?

Mr. Gornstein: It said, I believe... the testimony is at A-41, and this is the only thing on it, and the officer says, I believe they stated they were young, referring to the tipster.

Justice Scalia: Can I go back to your earlier answer?

Why is it... the fact that you have caller ID makes the tip more reliable?

Mr. Gornstein: It's because...

Justice Scalia: Even though the caller doesn't know that you have caller ID?

Mr. Gornstein: Well, it would have to be combined with general knowledge that...

Justice Scalia: Oh.

Mr. Gornstein: Of... Justice Scalia, of the public, that they could potentially...

Justice Scalia: And combined with a very stupid caller who tries to be anonymous when he knows that he can't be anonymous...

Mr. Gornstein: Well...

Justice Scalia: because he's calling from his own phone and you have caller ID.

It seems to me that the very mere fact that he remains anonymous and doesn't tell you his name indicates that he believes he can be unknown and doesn't want to be known.

Mr. Gornstein: Justice Scalia, there are varying degrees of anonymity, but I would accept your basic point that unless the person... it's generally known that caller ID is out there, that it doesn't weigh into the calculus that much.

Justice Breyer: Keep everything else the same, and only vary the gun and change it to a book that's copyrighted unlawfully, or drugs, marijuana, or some other thing.

Then I take it you'd say there wasn't reasonable suspicion.

Mr. Gornstein: That's correct, because Alabama...

Justice Breyer: All right.

Now, how do we get the fact, since it's supposed to be reasonable suspicion, that criminal activity is afoot?

How do we say that that changes?

That doesn't change.

What changes is the degree of reasonable suspicion that will justify the stop, or this frisk.

Mr. Gornstein: I would say that it would be the degree of suspicion that we call reasonable under the circumstances.

Justice Breyer: I thought maybe you could say that, then... but the way the term has been used in the cases, it hasn't been said suspicion that is sufficiently reasonable to justify the search.

Rather, it said, reasonable suspicion that criminal activity is afoot.

Mr. Gornstein: Well, I would agree with you that the cases haven't specifically addressed this particular factor, but that's because the issue hasn't been put to the Court.

This is the first time the case is... the issue is being put to the Court that the degree of danger weighs into whether it constitutes reasonable suspicion under the circumstances.

Justice Scalia: What about probable cause?

Would you adopt a similar sliding scale for probable cause, and if not, why not?

Mr. Gornstein: Justice Scalia, no, and the reason is that probable cause is constitutional text that has a meaning that must be drawn from its history and from its early application, and that kind of sliding scale approach does not apply in a probable cause, but what we are...

Justice Scalia: And since we made up reasonable suspicion it's totally...

Mr. Gornstein: Justice Scalia...

Justice Scalia: unconnected to the Constitution, right?

Mr. Gornstein: No.

What it is interpreting is the general reasonableness requirement, and the way the Court formulated that reasonableness requirement in Terry is that you look at what a reasonable and prudent person would consider appropriate under the totality of the circumstances, and a reasonable and prudent person would necessarily take into account the fact that the tip concerns something that poses an immediate danger of violence.

If the tip is about somebody at a courthouse with a bomb, or somebody at a school with an automatic weapon, a reasonable and prudent person is going to operate on somewhat less suspicion than otherwise in deciding whether to make a stop and frisk.

Justice O'Connor: How about not an automatic weapon, just a weapon at school, anonymous tip?

Mr. Gornstein: Well, it depends on whether the carrying of the weapon is... you would have reasonable suspicion that it was illegal to carry the weapon, and in Florida, if somebody is...

Justice O'Connor: Well, sure.

The school has policy.

Mr. Gornstein: Yes.

Justice O'Connor: No weapons in school.

Mr. Gornstein: That's correct.

Justice O'Connor: Anonymous tip, weapon.

Mr. Gornstein: Then if you...

Justice O'Connor: Is that enough?

Mr. Gornstein: If you identify the person with sufficient specificity so that when the officer comes to the scene and confirms the observable details of the tip, and there's nothing else in his observations that decreases his level of suspicion, then the reasonable and prudent course is to stop and frisk, because the alternatives to the stop and frisk are... create real danger to the police and the public.

If the police approaches the person, he runs a risk of getting shot.

If he waits and see if the gun is pulled out, that person might shoot somebody, and it's that real risk of danger...

Justice Stevens: But is it therefore critical to your position that they realize this was a young person?

Mr. Gornstein: It is... well, I would say that it is critical in this case that there be reasonable suspicion that the person does not have a license, and that's furnished in this case by the fact that there's reasonable suspicion that he's under 21 years of age.

Justice Ginsburg: Not in the...

Justice Stevens: If he had not been under 21, you would agree that the stop would have been impermissible?

Mr. Gornstein: You would need reasonable suspicion...

Justice Stevens: Well, no, on the facts of this... say precisely the same facts, except he called him and said, my cousin who is 22 is over there.

Mr. Gornstein: The...

Justice Stevens: Could he have made the stop?

Mr. Gornstein: My only hesitation in saying no, he couldn't Justice Stevens, is there are places like New York City and the District of...

Justice Stevens: No, we've got... we've got a place in this particular case, a bus stop, three young... three men, 22 years old, one of them wearing a plaid shirt.

Mr. Gornstein: I would say no, except... and if I could just finish the answer, the difference is that there are some places where there are many guns and very few licenses, and if Florida was such a place, or this particular area were such a place, like the District of Columbia or New York City, where there are an extraordinary number of guns and an extremely limited number of licenses... only, say, private detectives really have them... then there would still be reasonable suspicion.

Justice Stevens: Right.

Mr. Gornstein: Otherwise, no.

Justice Stevens: But I'm still asking about Florida, and you would agree, in Florida he could not have...

Mr. Gornstein: I don't have... I don't know enough about the facts in Florida.

Justice Scalia: Mr. Gornstein, isn't the reasonable implication of the tip that he is carrying a gun illegally?

Do you call up the cops to tell them that somebody is carrying a gun legally?

Surely...

Unidentified Justice: [Laughter]

Justice Scalia: Surely, the reasonable implication of the tip is that this person is behaving against the law.

Mr. Gornstein: Justice Scalia, that is a possible inference to draw, but...

Justice Scalia: Possible.

I can't imagine...

Mr. Gornstein: Well, because in places where guns are widely carried and legally so, some people may not know about that, and so the tip may just be that the person observed a gun and it was frightening to them, but I take your point that that is one possible reasonable inference that an officer could draw, and based on... if the officer's experience was that this was so, then that would figure into the totally of the circumstances.

Justice Ginsburg: Mr. Gornstein, there was nothing in this tip to convey that.

The officer reported she was told that there were several black males standing at a bus stop, a description given of each one.

The male with the gun had a plaid-looking shirt and was a black male.

That's... I don't recall other information.

Mr. Gornstein: On A-41, in the middle, I believe they stated they were young, and so the tip alerted the officer to the possibility that this was somebody under 21 years of age, and when the officer got to the scene and saw somebody shy of 16 years old, they certainly had reasonable suspicion that the person was carrying a concealed weapon in violation of Florida law.

Argument of Harvey J. Sepler

Chief Justice Rehnquist: Thank you, Mr. Gornstein.

Mr. Sepler, we'll hear from you.

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

I think the... one of the first questions that was asked is the most critical.

This is Alabama v. White, but without the predictive features.

The State conceded it, the Solicitor General conceded it.

The only justification that I can see in the State's argument for upholding the stop and frisk is that an anonymous tipster alleged the presence of a firearm, but that, of course, doesn't make the tip any more reliable, and it doesn't lower the reasonable suspicion standard.

In Terry v. Ohio, this Court said that where there is a reasonable suspicion that the individual is engaged in criminality, the officers can stop, and that where there is a reasonable belief that the individual is armed and presently dangerous... and presently dangerous... then the officer can conduct a frisk.

There were three... as I understand it, there were three components to the Terry holding that I think are very, very relevant to this case: first of all, that a pat-down is not a minimal intrusion

Second of all, that the limitation placed on Terry is, where there's a reasonable belief that the threat is of an individual that is armed and presently dangerous.

This is to an actual and immediate threat, not a possible or a potential one.

And the third is... and this I think is very, very important.

I'm not sure it's been touched on adequately to this point... is that before the officer may begin the pat-down, the officer must give the individual an opportunity to dispel any safety concerns.

In this case, of course, there was no opportunity given.

The officer came up and didn't ask any questions, didn't conduct any type of investigation, just went right to the frisk.

Chief Justice Rehnquist: If the petitioner's position is correct, that would follow, would it not, that with a gun in the guy's pocket, as they believed, to ask a bunch of questions is not going to obviate any public safety concern.

Mr. Sepler: It is correct, Your... Mr. Chief Justice, that if the State's proposal were adopted, yes, at that point the officers would be entitled to move directly to the frisk, and they wouldn't have to do anything else, but of course, that proposal depends, number 1, on the tip being a reliable tip, which, of course, there is no showing here, that also...

Justice O'Connor: Does it matter if the tipster said, these are young people, and under Florida law someone under 21 may not have a weapon?

Does that alter the equation here?

Mr. Sepler: I don't believe it does, Your Honor, and...

Chief Justice Rehnquist: Why not?

Mr. Sepler: And this is why.

If the statute were to say...

Justice O'Connor: It is an additional factor.

Mr. Sepler: If the statute, Your Honor, were to say that young people couldn't possess guns, then I think it would make all the difference in the world.

Justice O'Connor: Well, does Florida law prohibit people under age 21 from carrying concealed weapons?

Mr. Sepler: No.

Under Florida law, individuals may possess weapons for a limited purpose, but in terms of having a license to carry a concealed firearm, 21 is the limit.

However, in this case, of course, there was no tip that said...

Justice O'Connor: Just a minute, so I'm clear.

It is... is it lawful or not in Florida for someone under 21 to have a concealed weapon?

Mr. Sepler: No, not...

Justice O'Connor: It is not?

Mr. Sepler: It is not lawful.

In order to have a...

Justice O'Connor: Now... then if the tipster says it is a young person who has a concealed weapon, he's standing on a street corner in a plaid shirt, the officer goes there and says, hmm, plaid shirt, street corner, yep, looks young, that's an additional factor, isn't it?

Mr. Sepler: Your Honor, if I may answer you this way.

If the officer were to have gone to the street corner, with a tip that said young, and said... and testified to this, and I must tell you, as you have no doubt noticed, that the transcript in this case is very, very small.

If the officer would have gone and said, I have a tip of a young individual on a corner, and went there, and the officer had testified, I looked at this individual and he looked less than 21, he looked younger than 21, our position might be different.

But of course, that didn't happen.

Young is a variable term.

I think Webster's Third World Dictionary defines young as more... as... well... I'm sorry, I was...

Justice Stevens: You don't need to belabor that point to this bench.

Mr. Sepler: Okay.

[Laughter]

Justice Scalia: Excuse me.

Can I ask you an obvious...

May I say that I don't understand why it would make any difference in the world?

All it would show is that if he had a gun it would be unlawful.

It would make no difference whatever to the reliability of the tip that he had a gun.

It would just go to whether, if he did have it, he had it unlawfully.

I don't see how it affects it.

Mr. Sepler: Well...

Justice Scalia: The basis of your case is that the tip was not reliable enough, isn't it?

Mr. Sepler: I think that's correct.

Justice Scalia: And this doesn't go at all to the reliability of the tip.

Mr. Sepler: It may go, if I may, to... as I understood the Court's question, it may go to whether there was a reasonable suspicion, independent of the tip, and the tip may have provided a... arguably may have provided a context for what the officer sees at the scene.

Justice Breyer: There's no doubt that, I think, in the cases reasonable suspicion has been used to date to refer to reasonable suspicion that crime is afoot, and they have a number of circumstances here that give that suspicion, but they concede that on the ordinary standard I think it wouldn't meet it, as so far.

But suppose that it was a bomb at a school.

I mean, I'm testing the proposition of whether that word reasonableness varies, at least sometimes, in light just not of the suspicion about whether the person has the bomb, but the very fact that it's a bomb.

Mr. Sepler: I understand you.

Justice Breyer: Yeah.

I mean, that's the obvious question, and of course, that's something that disturbs me the most.

I just can't believe that if somebody called up, described the person in detail, said he has a bag, and moreover he has thousands of pounds of bomb material in that bag outside the courthouse or the school, I can't believe that the police shouldn't go and find out.

But I mean, maybe I'm wrong.

Mr. Sepler: Well, I agree with Your Honor.

One could envision situations that are increasingly more difficult to analyze.

Justice Breyer: All right.

Well, once you say that, then the question becomes whether a gun is or is not enough like a bomb to warrant the variance.

Mr. Sepler: Let me see if I can clarify it, Your Honor.

In no sense did I concede that a bomb is different.

Justice Breyer: Well, what do you think about the bomb?

I mean, I put it as dramatically as I could...

Mr. Sepler: Well...

Justice Breyer: because I wanted you to see the point of the question.

If it's a bomb about... and they call up, you know, big bomb, in a bag, same amount of... in fact, less belief, really, because people don't normally carry bombs in bags, but they say that... you see the point.

Clear description of the person.

Clear description of the bag.

Within 5 minutes they go to the place, and there somebody who meets a detailed description is standing there with precisely the bag.

Can the police open the bag?

Mr. Sepler: No.

The answer's a difficult question, Your Honor, and I would say that in general terms the answer is no, and what I'm suggesting... of course, I understand that these are difficult questions, and...

Justice O'Connor: Well, what if it's in a school, and the school is very nervous about danger to the students, and they get the tip about someone in the school, either with a weapon or a bomb?

Mr. Sepler: Let me suggest both questions... I understand that one can conceive of very difficult questions that...

Justice Breyer: What is your answer?

Mr. Sepler: Well, my answer, Your Honor...

Chief Justice Rehnquist: the answer as well as the question.

Mr. Sepler: Yes, thank you, Your Honor.

My answer is is that in very limited circumstances, where there is an actual and immediate danger, and where the danger is so extreme that it constitutes an extreme public emergency, in those situations I would suggest that in those situations reasonable suspicion might bend, but those are in a very, very limited and narrow set of circumstances.

Justice Scalia: And the same for probable cause.

I mean, suppose they say the bomb is... it's a big bomb, and it's in his locker, it's not on his person, so even if you did a stop-and-frisk you wouldn't discover it, but they say, this guy has an enormous bomb.

It's in the school building in his locker.

Now, could you go... a stop-and-frisk won't disclose it.

Do you have probable cause, on the basis of this anonymous tip, to go and conduct a search and seizure of a locker?

Mr. Sepler: I believe you do not, and here is why.

Here is the analysis at least that seems to be at least most comfortable to me, and I would... in preparing for the bomb question, because it is a very obvious question one might answer.

I might say that first of all, if the tip were based... I'm sorry, if the belief of a bomb is based on a tip, my first... the first thing that an officer needs to do is, is this a reliable tip?

Does it meet all the other requirements?

Justice O'Connor: Our assumption is, it's anonymous.

Mr. Sepler: All right.

Justice O'Connor: If it's...

We don't know if it's reliable.

It came out of the blue.

It's a phone call.

That's the tip.

Mr. Sepler: Yes, Your Honor.

Justice O'Connor: You don't know anything else.

Mr. Sepler: Yes, Your Honor.

If it is a reliable... if it is not... if it's an anonymous tip, then the next thing that I believe a police officer ought to do is, is there any kind of independent police work that I can do to either corroborate what I've heard in this tip, or find something other than that that's suspicious?

If there's not any other corroborating information that I can... I need to make an on-the-spot determination whether this is an actual and immediate threat.

There are a lot of bomb tips that come into police stations.

Police have... they do need to make distinctions, discriminations as to which tips present an actual and immediate one, versus where is there a potential...

Justice Souter: Well, I think we can follow this...

Justice O'Connor: How can you know?

How can you possibly make that assessment as a police officer when you're in a place like a school or a public building with many people, potentially in great danger?

How do you make that assessment?

Mr. Sepler: I think under a totality of circumstances approach.

It's what's in the tip.

If the tip were that there's a bomb here and it's going to go off at some time before 12:00, well, then there's an opportunity to make this investigation.

Our case, of course, asks whether there's...

Justice Breyer: All right, but...

I think what you're doing is, you're saying that a gun is not as serious as a bomb.

Mr. Sepler: What I'm suggesting to the Court is that the nature of the offense in general terms ought not to reduce the reasonable suspicion standard.

Justice Souter: Okay.

Then let's assume that with all the efforts the police may make in the bomb case, or with no efforts because there is no time, the police have nothing more than they have in this case, except instead of a gun, the tip talks about a bomb.

Is it lawful for the police to go into the school locker in Justice O'Connor's example?

Mr. Sepler: In general terms, I would say no, unless the officers make an on-the-spot determination that based on their experience there is an actual and immediate threat.

Justice Souter: No, but they don't know that.

All they know is the tip.

Mr. Sepler: Then if there's not... if they cannot make a determination that there's an actual and immediate threat there, then I would answer your question no.

Justice Souter: Do you think it would be a proper answer to say, there are times when the police ought to commit trespass and just go in anyway, Fourth Amendment or no Fourth Amendment?

Mr. Sepler: Again, I think that the answer to that is generally no.

If the police have... believe that there's an actual and immediate threat, they may be entitled to do that.

That's not the situation here, of course.

Here, what we have is, we have individuals who were doing absolutely nothing.

Absolutely nothing.

The officer testified at the suppression hearing that the... in so many words that the only reason that she stopped these boys were because they were standing next to a bus stop.

For all we know, they could have been waiting for a bus.

And the argument that's made by the State is not limited to juveniles, and I don't think it would make a difference even if it was limited to juveniles, because we don't have enough here to even suggest that a reasonable officer would have believed these were juveniles.

Chief Justice Rehnquist: But if you accept the proposition that there was suspicion that this juvenile was carrying the gun illegally because juveniles aren't allowed to carry concealed weapons in Florida, there is a difference, then, between this case and someone who was, say, 35 years old.

Mr. Sepler: The only... Mr. Chief Justice, the only difference would be if the officer were to have testified, I looked at this individual, I could tell that this individual was a juvenile, and I could tell that this individual...

Chief Justice Rehnquist: Well...

Mr. Sepler: didn't fit within one of the exceptions for a juvenile.

Chief Justice Rehnquist: Okay.

You say the transcript is very sparse, and I agree with you, but here the individual turns out to be under 16, and I think it's a fair inference that a person, a police officer looking at someone under 16, without knowing it, can say this person is under 21.

Mr. Sepler: With all respect, I would not be as readily to make that inference.

We don't know what this respondent looked like.

Again, the officer could have easily testified to that, and she didn't, and I don't know... I don't believe that we can fairly read into the record that by looking at this individual she could tell that he was a juvenile.

I think we are bound by what we are given, and what we are given is Alabama v. White, with no predictive elements.

Chief Justice Rehnquist: Well, it was your suppression hearing, too.

I mean, in a sense, you had the burden of proof to show that the evidence should be suppressed, and if you want to cross-examine her and say, did you really think this... make any determination about this person's age, you could have done so.

Mr. Sepler: Our responsibility, as I understand it, under a motion to suppress is to bring forth the arguments that this was not a lawful stop and frisk.

The State at that point had every opportunity to show that it was a lawful one.

This is not a mere matter of semantics.

I believe that this is a very important case, because...

Justice Breyer: All right.

Now, yes, but I'm still disturbed about the bomb and the reason is, you vacillated a little, or... I think between... one, I could saying, well, there's an across-the-board public safety exception from probable cause and the other things.

Of course if there's an atomic bomb they're going to look, and they should, so there's an exception, rarely invoked, for public safety of extreme sorts.

All right.

You take that tack, then you've got to at least say, well, what about guns in schools.

If you don't take that tack, and just say you can vary the reasonable suspicion for bombs, then you've got to explain why at least guns in schools is somehow different from a bomb in a school.

I mean, and it seems to me you have to do one or the other, or you have to take the absolute position, no, no even a bomb, not even the atomic bomb, et cetera.

I don't see how you can avoid taking one of those three positions.

Mr. Sepler: And Your Honor, that's why I preface this with, there are hypotheticals that one could come up which make...

Justice Breyer: It's not purely hypothetical.

What's disturbing me about the case is, I don't know exactly what to analogize guns to.

Should I try to distinguish between guns at a bus stop and guns at a school?

Should I try to start distinguishing between guns and bombs in the latter case?

How do I deal with it?

That's a real problem I'm having, not some hypothetical one.

Mr. Sepler: And I believe the answer was in Terry.

The answer is, whether there is an actual and immediate threat.

Where there's an actual and immediate threat, this Court under Terry and the cases that have relied upon Terry have said that at that point, the officers are authorized to do what they need to do.

Justice O'Connor: Well, that may not be enough.

We're in a time after we've seen tragedies like at the Columbine High School in Colorado, and if I'm correct, a number of high schools around the country are now putting out guidelines and asking fellow students to please alert the school authorities any time the student thinks there might be someone in the school with a gun, and so I think we're going to see lots of anonymous tips coming along in the setting of public schools and in the aftermath of some real tragedies.

Now, what's our analysis supposed to be?

Does it bend a little, or does it not?

Mr. Sepler: No, I do not believe that your analysis changes at all from where it is now.

Justice O'Connor: On that same question, we have any number of countless cases of Terry stops where there was a furtive movement, it was a high crime neighborhood and so forth.

Justice Kennedy: In a sense, it seems to me a tip from an outside source made to a police dispatcher has somewhat more authenticity than perhaps our earlier cases have indicated.

Mr. Sepler: I would suggest, Justice Kennedy, that it has even less, and the reason I say that is this.

This Court has said in Adams that where there's a tip from a known informant who is subject to State laws for filing false complaints, it adds a degree, a special degree of reliability.

This Court has also held that where there is sufficient meaningful corroboration to the tip, that also adds a special... lends a special degree of familiarity.

Here, we have none of that.

This is an anonymous tipster.

There is no way for an individual to trace the tipster, or no way for the police to trace the tipster.

There's nothing about the details that were in this tip, other than a bald allegation of the presence of a gun, that would in any way allow for the police officer, or a court reviewing this, to make a determination of a meaningful corroboration.

Justice Breyer: Well, that's true, but what do you do about, say, students have guns in schools, you know, and it's quite possible some other kid knows that the gun, and can describe everything in utmost detail, but just doesn't want to get involved, so he phones up, describes it in absolute detail, but doesn't give his name, and then it checks out immediately, but for the name.

So I mean, it isn't just an absurd tip.

It isn't great reliability, but it isn't terrible.

Mr. Sepler: In general, Your Honor, I believe that the analysis has been established if the tip is not inherently reliable, it must give enough information to allow for a meaningful corroboration.

Now, I would suggest also that...

Justice Kennedy: Is that based on the assumption that most anonymous tips are unfounded?

Mr. Sepler: Certainly that is one of the concerns.

We...

Justice Kennedy: There's no evidence of that either way.

Mr. Sepler: We have cited in our brief one estimate that shows that 90 percent of the tips are unreliable, anonymous tips.

Let me suggest to the Court, whether the figure is 90 percent or 80 percent, or 70...

Justice Kennedy: That was anecdotal and quite...

Mr. Sepler: I understand that, Your Honor.

Justice Kennedy: On the other hand, I agree with you.

I see nothing on the other side.

Mr. Sepler: There is nothing on the other... and this is... this is a, I believe, Your Honors, is a very fundamental case, because it's going... it goes to the heart of the relationship between police and citizens in a free society.

Justice Ginsburg: Mr. Sepler, may I ask you in the school setting, I just... this just occurred to me, so tell me if I'm wrong in thinking this way, that there's a custodial kind of relationship between the school and the student, so if there's a tip about a student gun, maybe the principal has some authority which the principal can give to the police that doesn't exist when you have an anonymous tip about somebody standing at a bus stop.

Mr. Sepler: I believe that's absolutely correct, Your Honor, and that's why I answered Judge... Justice Breyer's question in general.

I think that that's absolutely correct.

One could envision that if the State's proposal were adopted you're going to have situations, or we are all going to have situations where in a child custody case an embittered spouse seeks to seek an advantage over the other spouse and calls in a tip.

Employees who have a grudge against employers are going to call in a tip.

You're going to have even... you're going to even have lawyers who get an adverse ruling call in a tip.

There is nothing about this tip that distinguishes not only these individuals, but distinguishes the tipster to show that the tipster bears a particular familiarity with the individuals.

Generally, as this Court knows, the law is that the tipster has to know something.

He's got to know something about the suspect, or about the crime, that would allow the police officer to believe, well, he knows something more.

But here what you have is, you have an individual, we don't know... the individual could have been another child.

There's nothing to say who this person is, and to adopt a rule that says the bald assertion that somebody's got a gun is going to allow police, unhampered, to stop and frisk anybody, anywhere, at any time, is just too much.

We need to hold tipsters accountable.

You need to hold police accountable.

This is a very important case, Your Honor.

Justice Scalia: Indeed, we distrust policemen enough that we have the exclusionary rule in order to deter them from conducting unreasonable searches and seizures, but I guess it would be pretty neat for the tipster to be another policeman.

All you have to do is allege that the person has a gun, and it will permit a search...

Mr. Sepler: That's...

Justice Scalia: a body search, which may not uncover a gun, but may well uncover marijuana, cocaine, or some other unlawful contraband.

Mr. Sepler: That's certainly one of the more troubling implications.

Justice Breyer: Why would that be?

I mean, they haven't said that.

Mr. Sepler: I'm not...

Justice Breyer: This is an instance where the tipster calls up, gives... we could imagine... I don't know how much detail you have to have, but they say there's a description.

The description we can imagine is in detail.

Imagine that it is, you know.

The issue is the anonymity, not just calling up and saying somebody has a gun.

He has to describe the person in some detail.

It has to check out.

It's not that there are no checks.

It's just, there isn't enough of a check.

It is true that in White this Court held that the same type of details absent a tip would not have been sufficient.

Mr. Sepler: I think it's absolutely true, I mean, there are certainly problems, and we're not relying on this, but it is an implication of the case.

Certainly we've cited to instances in Los Angeles, New York, Detroit, Philadelphia, where police fabrication has now been called into serious question.

I'm not suggesting that this is going to happen, but it is also true from a common sense perspective that if this proposal were adopted, tips that now come into police stations and you want immediate action, all you've got to say is, he's got a gun, and the police are going to be right there, and they're going to be authorized to make a stop and make a frisk, on the same basis.

And it's rather ironic, Your Honors, that if the same information, if the police officer had have been on the street corner, and seen the respondent looking exactly the way the tipster said he was going to look, and saw him and said, based on my 30 years experience, that person looks like he's up to no good.

He looks like he's going to commit a crime, and he looks like he's armed and dangerous, that under this Court's law that officer would not be entitled to move in on that hunch.

Chief Justice Rehnquist: But that's the Alabama v. White...

Mr. Sepler: That's...

Chief Justice Rehnquist: that says the other circumstances, other than the anonymous tip were not enough, but coupled with the anonymous tip, it was.

Mr. Sepler: In Alabama v. White, as I understand it, the critical factor in making the determination was that there was corroboration of predictive features of the tip, and that absent those predictive features, and absent the corroboration of those predictive features, the tip in Alabama v. White would not have been sufficient.

But again, if the officer had a hunch, based on his or her 30 years experience, and seen the very same things that were in... that were named in the tip, the officer would not be entitled to make that stop and frisk.

Chief Justice Rehnquist: Yes, but perhaps you missed my point with respect to Alabama.

That was exactly the analysis of the Court in Alabama v. White, that without the tip, what the officer did and saw would not be sufficient.

With the tip, it was, so the fact that an officer standing on the street corner here could have seen, without the tip, and still couldn't have done anything, really is not any inconsistency at all.

It's quite consistent with our doctrine.

Mr. Sepler: Your Honor, again, as I... and I hope I'm answering your question directly... as I understand White, it was yes, that there was a tip, but it was the corroboration of the predictive features in the tip that made all the difference.

If the tip didn't have any predictive features, then even though there was a tip, and even though there was corroboration of details of identification, this Court in White found that to be insufficient.

That...

Justice Scalia: I don't under... do you really understand this predictive features fillip on the doctrine?

I mean, suppose the tipsters here had said, there's a fellow in a plaid shirt standing on the corner, and he's going to continue to stand on the corner for 2 more hours, would that be enough?

I don't really see...

Mr. Sepler: I don't believe...

Justice Scalia: how the predictive feature, unless it's, there's something suspicious in the predictive feature...

Mr. Sepler: I agree, Your Honor...

Justice Scalia: I've never understood that about the case.

Mr. Sepler: As I understand the predictive features, you predict conduct.

As... well, of course, Wardlow didn't have conduct, but if... but it's the conduct that is the most critical.

If the person said he's going to... on the street corner and he's going to catch the number 4 bus, well, that would be all the difference.

If he's standing there and he's not doing anything, you have no predictive features of anything to corroborate, and absent those predictive features, I think what you have in all seriousness is, you do have a situation where anybody, anywhere, could be stopped for nothing more than casual observation.

This Court said in White that in order to allow for meaningful corroboration, there has to be that something more.

The tip has to be as to facts or events of things that are not occurring at the time that the tip was made, as to things that are not available by casual observation or rumor or reputation.

And then, of course, the Court went on to the meaningful corroboration, and it used the predictive elements to provide that meaningful corroboration.

In this sense, everything that was in that tip were things that were occurring at the time that the tip was made, everything in that tip were things that were available by casual observation, by somebody who just saw these guys and didn't like them, just didn't like them.

I don't want these gentlemen in my neighborhood so I'm going to call in a tip.

There's nothing in the record to show or even suggest that this was a high crime area.

There's absolutely nothing to show that these gentlemen made any furtive movements, that they ran from police.

The typical situation again is that the police come up and they confront somebody, and if they sweat, if they gave evasive answers, if they make furtive movements, if they run, that's the typical situation where a tip which has only details of identification might be sufficient.

In this case, there wasn't any of that, and the State's not even suggesting that there ought to be.

What the State is saying is that if there is a bald tip with a naked assertion, that's enough, and we would suggest to the Court that under White and under Adams v. Williams, Illinois v. Gates, the answer to that is no.

There has to be a meaningful corroboration.

Thank you, Your Honors.

Rebuttal of Michael J. Neimand

Chief Justice Rehnquist: Thank you, Mr. Sepler.

Mr. Neimand, you have 4 minutes remaining.

Mr. Neimand: Thank you.

The questions concerning the bomb really underscore the duality of the issues in front of the Court.

The first issue is that the Florida supreme court said an anonymous tip could never be enough, and clearly, with the bomb situation it would have to be enough.

There's too much public safety involved.

The second question then becomes, under the facts of this case, were the facts sufficient to allow the stop and frisk under the situation?

In this situation, because it was a juvenile... there is a problem in Florida with juveniles and hand guns... the tip was immediately corroborated, these individuals were at the exact location, dressed accordingly, within 6 minutes.

Then what were the officers supposed to do under those circumstances?

The officer could have waited and put the public safety in jeopardy, or could have gone to investigate.

If he investigated he would have put his life in jeopardy by not immediately frisking the individual, and that is why in this case, on the factual situation the State submits that the Florida supreme court was wrong, if, in fact, on the law they were wrong as well.

As to the question of the 22-year-old in Florida, because an individual has only a privilege to carry a concealed firearm, there really is no problem with an officer if there is a tip that an individual is carrying a concealed firearm who is 22, or even older, to come up to that individual and ask for the permit.

But before you ask for the permit, if you ask somebody for a gun, just because they're legally carrying the gun, that doesn't mean they're going to legally use the gun and therefore, again, even in that situation the public safety, the officer's safety in ascertaining whether or not the individual has a permit to carry that gun would allow the immediate frisk upon the stop, and then the interrogation occurs.

And upon the interrogation, do you have a permit, yes, I do, here it is, thank you very much, here's your gun, and the stop as a Terry stop should be as limited because the criminal activity, suspicion of criminal activity was dispelled, and that's the dispelling point of it in this type of situation.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Neimand.

The case is submitted.