Vol. 78, No. 6, June
Cell phone tips of crime and 'reasonable suspicion'
With the proliferation of cell phone use comes an increase in the
number of criminal investigations arising from cell phone reports of
ongoing or just completed criminal activity. Read how traditional
"reasonable suspicion" analysis has evolved in response to the use of
this new technology.
by Rex R. Anderegg
ew technological innovations have had greater
impact on the reporting of crime than the cell phone. According to the
Cellular Telephone Industry Association, there are currently more than
175 million cell phone subscribers in the United States, and a recent
study revealed more than 54 percent of drivers carry wireless phones in
their vehicles.1 This article examines how
traditional "reasonable suspicion" analysis has evolved to respond to
the use of this new technology in reporting crimes.
A strong correlation exists between the great proliferation of
wireless technology and the frequency with which police investigations
now begin with a cell phone call from the scene of a crime. Every year
more than 73 million calls are placed to 9-1-1 hotlines from cell
phones.2 While many of these calls are
placed for emergency medical assistance, an increasing percentage of
such calls are to report crime. The primary significance of this
development to the criminal justice system is that crimes, particularly
driving offenses, are now routinely reported while still in progress,
thereby giving rise to an urgent desire by law enforcement to act
quickly. Acting quickly, however, oftentimes means acting with limited
information. Investigative detentions based on limited information, in
turn, frequently beget suppression motions challenging whether there was
reasonable suspicion to stop the defendant.
Rex R. Anderegg, U.W. 1989, is a
partner in Anderegg & Mutschler LLP and manages the firm's
Milwaukee office. The firm's emphasis is in criminal and traffic
defense, as well as appellate practice and procedure. He was appellate
counsel on the Larson case.
The author thanks legal assistant Julie Guvernator, whose significant
contributions to this article made its publication possible.
The courts have responded to such reasonable suspicion challenges by
posing, evaluating, and answering several questions. Is the tipster
truly anonymous or does she identify herself? Is it possible to trace
the call back and identify the caller if the tip is fabricated? What is
the basis of the caller's knowledge about the alleged criminal behavior?
How serious is the alleged crime? How immediate of a threat does the
alleged criminal behavior pose to the public? Is the caller reporting a
crime in progress or a crime that has already occurred? Many of these
inquiries have historically been important to courts when examining the
question of reasonable suspicion. However, as explained in this article,
what is of particular significance to reasonable suspicion analysis is
the elevated status, within the reasonable suspicion paradigm, being
granted to those specific inquiries that focus on exigency.
The U.S. Supreme Court on Anonymous Tips
At the turn of the millennium, the U.S. Supreme Court took a fresh
look at the implications of cell phone tips on the Fourth Amendment. The
backdrop presented in Florida v. J.L.3 was a report from an anonymous tipster that a
young African-American male at a bus stop was carrying a gun. Applying
its rulings in Adams v. Williams4
and Alabama v. White5 regarding
informants' tips to its reasonable suspicion analysis from Terry v.
Ohio,6 the Supreme Court held that an
anonymous tip that a readily identifiable teenager at a particular bus
stop possessed a gun was not, without more, sufficient to justify a
Terry stop of the youth.7 The
decision hinged largely on the fact that the Supreme Court did not view
the tip as particularly reliable in its assertion that illegal behavior
had occurred. The J.L. court noted that a tip's reliability is
a function of the informant's credibility and the basis of his or her
knowledge. The Supreme Court reasoned that it is not enough that an
informant provides readily observable details about a suspect if the
informant cannot also demonstrate "inside knowledge" about the suspect's
criminal behavior. Because the bus stop tip came from an anonymous
caller and lacked any predictive information other than the subject's
easily observable location and description, police were left with no
means to test the informant's credibility or basis of knowledge.8
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Florida, however, citing the danger posed by firearms, urged the
Supreme Court to modify its standard Terry analysis to allow
for a "firearm exception" to the reasonable suspicion requirement. The
Supreme Court flatly rejected the request on the ground that creating
such an exception would lead to a slippery slope of additional
exceptions, "thus allowing the exception[s] to swallow the rule."9 Although possession of a weapon by anyone under
age 21 was illegal in Florida, and notwithstanding the obvious danger
posed by a youngster allegedly packing heat in public, the Supreme Court
did not consider the danger to be so imminent as to support a stop and
frisk. The pre-9/11 Supreme Court refused to speculate about the
circumstances under which the danger alleged in an anonymous tip might
be so great (for example, a report of a person carrying a bomb)
as to justify a stop and search even absent any showing of
reliability.10 Nevertheless, the Supreme
Court did observe that "extraordinary dangers sometimes justify unusual
precautions," and thus the seeds of an exigency analysis - seeds that
would later bear fruit in Wisconsin - were sown.
Of particular interest was a concurring opinion by Justice Kennedy,
who observed that to the extent an informant remains completely
anonymous and does not place her identity at risk, such an informant is
free to lie with impunity. Since a court would be powerless to judge the
credibility of such an individual, the risk of fabrication, in Justice
Kennedy's view, would be unacceptable.11
Justice Kennedy went on to suggest, however, that if an informant were
to reveal her identity and thereby expose herself to criminal penalties
for making a false report, such a factor would be fair game for a
judicial assessment of the tip's reliability. Those facts were not
before the J.L. court, however, and a discussion of such a
scenario was therefore left for another day. In Wisconsin, that day
dawned roughly one year later.
The Importance of Identifying the Tipster
In July 2001, the Wisconsin Court of Appeals was presented with
circumstances similar to those in J.L. The Wisconsin court,
however, reached a different conclusion solely because the 9-1-1 caller
provided the name "Sedrick Forbes" to the dispatcher, who identified the
call as coming from a payphone.12 Like the
tipster in J.L., Forbes reported seeing two men with guns
entering a building and described their race and clothing. On the basis
of the tip, police located two men matching the suspects' descriptions
sitting in a car a half-block from the building in question. After
briefly questioning the suspects, the police asked one of them, Sisk, to
exit the vehicle and then frisked him and found a gun in his pants
pocket. Sisk was charged with being a felon in possession of a
Relying on J.L., the trial court reasoned that a 9-1-1 call
from a payphone, even with the caller's name, imbued the tip with no
greater reliability than would an anonymous report, because there was
nothing to link the call back to the caller if the report was false. The
trial court further observed that the tip gave no predictive information
about the alleged criminal activity and provided only a readily
observable description of the alleged gun-toters. Although the trial
court's rationale seemed faithful to J.L., the appellate court
viewed the matter differently and reversed the order that had suppressed
evidence of the firearm. The appellate court reasoned that it was error
to characterize the tip as anonymous since the 9-1-1 caller had put his
identity at risk by providing "what he said was his name."13 Sisk therefore breathed life into
Justice Kennedy's concurrence, albeit on facts less compelling than
Justice Kennedy might have contemplated. In so doing, Sisk
observed it would be dangerous to require police to take time to verify
the caller's identification rather than respond to a crime in
The Immediate Public Danger Suggested by the Tip
The same year Sisk was published, the Wisconsin Supreme
Court addressed whether a cell phone caller's anonymous tip about the
driving of a vehicle the caller was following was ipso facto sufficient
to warrant a traffic stop. The tipster reported that the vehicle was
tailgating, weaving within its lane, and varying in speed from too fast
to too slow. In State v. Rutzinski,15 the Wisconsin Supreme Court, drawing on factual
distinctions alluded to by J.L., observed that although the
cell phone caller did not provide his name, he did tell the responding
officer (via dispatch) the location of his car vis-a-vis the suspect's
car. The court reasoned that by doing so, he exposed himself to
identification (through the tracing of his license plates) if he was
fabricating the tip. In addition, he had provided to the dispatcher
contemporaneous information about Rutzinski's driving as he was
following the vehicle.16
The Wisconsin Supreme Court began its analysis by acknowledging that
before an officer may detain an individual solely on an informant's tip,
the officer must first consider both the veracity of the informant and
the content of the tip as it relates to the informant's basis of
knowledge of the alleged illegal activity.17 If the tipster's credibility and basis of
knowledge are weak, additional investigation is needed before reasonable
suspicion will support a Terry stop. Because the test, however,
requires consideration of the totality of the circumstances, the court
noted that a deficiency in one consideration may be compensated by a
strong showing as to the other.18
The most interesting aspect of the Rutzinski decision,
however, was its introduction of exigency into the analysis. Recalling
J.L.'s admonition that "extraordinary dangers sometimes justify
unusual precautions," the Wisconsin Supreme Court ruled that in some
circumstances, an exigency can supplement the reliability of an
informant's tip and justify what would otherwise be an improper
investigative stop.19 Cognizant that its
decision would be subject to scrutiny under the holding in
J.L., the Rutzinski court identified three factors
that distinguished the facts before it from the anonymous report about
an armed youth at a bus stop: 1) by giving the location of his vehicle,
the informant exposed himself to identification by police; 2) the
informant provided police with verifiable information indicating his
basis of knowledge; and 3) the tip suggested Rutzinski posed an imminent
threat to public safety.20 The court
believed the first two of these factors increased the reliability of the
tip while the third factor tipped the scales in favor of an immediate
stop. Thus, leaning heavily on the danger posed by potential drunk
drivers, Rutzinski held that the immediate threat posed by the
reported erratic driving overcame any lack of reliability demonstrated
by the anonymous tip and, therefore, that the traffic stop was
A Blanket Rule for OWI Cases?
While Rutzinksi explicitly stopped short of creating a
blanket rule to except tips alleging drunk driving from a reliability
requirement, that nevertheless may be the practical import of the
decision. As Justice Kennedy suggested, there may be cases in which
identification of the tipster and exposure to penalties for submitting a
false police report would enhance the reliability of an otherwise
"anonymous" tip. While this premise rings true when a tipster alleges
that the subject, for example, is carrying a concealed weapon or
possesses illegal drugs, either of which can be "immediately verified at
the scene," the underlying logic is less compelling when the tipster
alleges bad driving.
When an officer relies on such an allegation to stop a vehicle
without independently observing any bad driving - an act largely
sanctioned by Rutzinski - it is difficult to discredit the
allegation that prompted the stop. In such a scenario, the putative
exposure to criminal penalties for making a false report appears to be
largely a fiction. Indeed, it does not even appear necessary for a
tipster to specifically allege "drunk" driving (which arguably could be
verified at the scene of a stop) to create an imminent threat to public
safety. A report of any bad driving, in turn characterized by a
dispatcher as "erratic" driving, has been interpreted by courts as
indicative of "drunk" driving and grounds for an immediate investigation
of the driver.22 Consequently,
notwithstanding the Rutzinski court's pledge, there does appear
to be something of a blanket rule allowing immediate detentions of
drivers reported to be driving erratically, at least when the informant
provides - ala Sisk - a name. This may be due, in part, to the
fact that the presumption of unreasonableness that attends a warrantless
seizure in a home is not present during traffic stops.23
When Does an Exigency Dissipate?
One question the Wisconsin Supreme Court has not addressed is when
the exigency posed by erratic driving dissipates such that an
uncorroborated stop or detention of a driver is no longer lawful. By
examining both published and unpublished opinions of the court of
appeals, however, one can piece together a rough answer to this
question. In an unpublished opinion, the court of appeals was not
persuaded that the urgency of a public threat evaporated simply because
the driver was within a block of his home.24 Nor was the appellate court, in another
unpublished opinion, convinced the threat had sufficiently passed even
though the driver had just pulled into her driveway.25 The latter unpublished decision held that
although the suspected drunk driver had reached what the officer knew to
be her driveway, and had exited her car before the officer was able to
reach her, a tip suggesting that she had been driving while intoxicated
with two minor children in her vehicle strongly weighed in favor of
immediate police investigation.26
State v. Larson, a published opinion, however, strongly
suggests the exigency may evaporate once the suspect crosses his or her
doorstep.27 In Larson the court of
appeals addressed whether a warrantless entry into a suspected drunk
driver's home, based on two tips, one from a gas station clerk and both
from individuals who identified themselves, was reasonable under the
Fourth Amendment.28 On the basis of the
tips, the dispatcher provided a patrol deputy with the vehicle's license
plate and the registered owner's address. The deputy drove to that
address, observed the vehicle in an apartment complex parking lot, and
knocked on the registered owner's door. When the defendant opened the
door, the deputy immediately stepped across the threshold to prevent the
defendant from closing the door. During a short conversation in which
the defendant admitted drinking and stated he was going to bed, the
deputy detected an odor of intoxicants and slurred speech and therefore
moved further into the apartment to arrest the defendant for operating
The defendant argued that the deputy lacked probable cause and
exigent circumstances to overcome the presumption that the warrantless
home entry was unreasonable. The court of appeals agreed. The court
first confirmed that the step across the threshold was an entry under
the Fourth Amendment.29 It then observed
that the deputy lacked probable cause because at that time, he knew only
that two tipsters had alleged the driver of the truck found parked
outside the apartment was driving while intoxicated. At that precise
moment, the deputy could neither have detected the odor of intoxicants
on Larson's breath or his slurred speech nor known whether Larson was
the driver of the truck. Most interesting to the question of exigency,
however, was the appellate court's remark that even if the deputy could
have established probable cause to enter Larson's home, no exigent
circumstances justified the entry.30
Indeed, any court contemplating an extension of the concept of exigency
to include a driver who is safely at home will have to contend with
Welsh v. Wisconsin,31 in which the
court long ago held that in cases involving minor traffic offenses, a
warrantless home arrest cannot be upheld simply because blood alcohol
will dissipate while police obtain a warrant.32 Moreover, while the prosecution attempted to
characterize the deputy's investigation as a "hot pursuit" of Larson,
the appellate court dismissed that argument because there was no
immediate or continuous pursuit of the defendant.
Establishing What Information was Known to the Investigating
As noted at the outset of this article, cell phone reports prompt
police to act with limited information. Defense attorneys should be
aware that the amount of information available at the time of a
suppression hearing, however, is oftentimes more plentiful than when the
police first acted. Police reports, dispatch audiotapes, and written
statements from the informant will materialize to put meat on the bare
bones information the officer on the street originally possessed.
Prosecutors will capitalize on this development by arguing that an
officer's belief may be partially predicated on hearsay information and
that the officer may rely on the collective knowledge of the officer's
entire department.33 On the surface, the
point is well taken.
A more profound examination of the applicable case law, however,
suggests that defense attorneys should not let this position go
unchallenged. While information generally in the possession of a law
enforcement agency may be imputed to a particular officer, the
proposition holds true only if the officer, when he or she acts,
actually has the benefit of that information via communication with
others in the agency.34 Thus, to the extent
prosecutors wish to rely on information possessed by an investigating
officer's colleagues, prosecutors should be prepared to demonstrate
timely communication of the information to the officer. Conversely,
defense attorneys should endeavor to establish what information actually
was conveyed to the investigating officer and limit the court's analysis
As wireless technology continues to improve and proliferate, so too
will the number of criminal investigations hastily commenced by reports
of ongoing or just completed criminal activity. Prosecutors and defense
attorneys alike should be prepared to analyze the lawfulness of the
Terry stops that will flow from such investigations. The
analysis must center on what information is available to the officer who
makes the stop. In particular, both sides should focus on whether the
tipster identifies herself and what basis she has to make the particular
In light of Rutzinski, counsel also should examine the tip
in terms of what immediate danger it suggests is facing the public at
large, keeping in mind the trend toward viewing exigency as the
touchstone of reasonable suspicion analysis. The societal benefits of
wireless technology in terms of public safety and crime-solving have
been immense. As is so often the case with technological advances,
however, there is a corresponding threat to the individual's interest in
freedom from unreasonable police detention. In the case of cell phones,
the danger stems from the ease with which a police investigation can be
set in motion based on what appears to be suspicious, but may ultimately
turn out to be innocuous, activity. Attorneys must be prepared to assist
the courts in striking a reasonable balance between these competing
Transportation Safety Administration.
2AAA Newsroom, Help with Auto
Repairs is as Convenient as your Cellular Phone, Oct. 28, 2004.
3Florida v. J.L., 529 U.S.
4Adams v. Williams, 407
U.S. 143 (1972).
5Alabama v. White, 496
U.S. 325 (1990).
6Terry v. Ohio, 392 U.S. 1
7J.L., 529 U.S. at
8Id. at 271.
9Id. at 273.
10Id. at 273-74.
11Id. at 274-75.
12State v. Sisk, 2001 WI
App 182, 247 Wis. 2d 443, 634 N.W.2d 877.
13Id. ¶ 8.
14Id. ¶ 9.
15State v. Rutzinski,
2001 WI 22, 241 Wis. 2d 729, 623 N.W.2d 516.
17Id. ¶ 18.
Illinois v. Gates, 426 U.S. 213, 233 (1983)).
19Id. ¶ 26.
22See id. ¶ 34
(citing State v. Swanson, 164 Wis. 2d 437, 453 n.6, 475 N.W.2d
23State v. Pallone, 236
Wis. 2d 162, 190, 613 N.W.2d 568 (2000).
24State v. Christopher,
No. 01-2524-CR, 2002 WL 31074663 (Wis. Ct. App. Sept. 18, 2002)
25State v. Baer, No.
01-0423-CR, 2001 WL 864284 (Wis. Ct. App. Aug. 1, 2001)
26Id. ¶ 11.
27State v. Larson, 2003
WI App 150, ¶ 9, 266 Wis. 2d 236, 668 N.W.2d 338.
28Id. ¶ 9.
29Id. ¶ 11.
30Id. ¶ 17.
31Welsh v. Wisconsin,
466 U.S. 740 (1984).
32Id. at 754.
33State v. Cheers, 102
Wis. 2d 367, 386, 38889, 306 N.W.2d 676 (1981).
34See State v.
Orta, 2000 WI 4, ¶ 23, 231 Wis. 2d 782, 604 N.W.2d 543 (citing
State v. Friday, 147 Wis. 2d 359, 434 N.W.2d 8 (overruled on