NAPO Press Release
| FOR IMMEDIATE RELEASE | CONTACT: (202) 842-3560 |
| January 19, 2000 | JODY HEDEMAN COUSER |
NAPO SUBMITS AMICUS CURIAE BRIEF
TO U.S. SUPREME COURT
Brief Supports the Rights of Officer’s to Detain Individuals and Remove Weapons
State of Florida v. J.L., a juvenile
Washington, DC — Recently, the National Association of Police Organizations, Inc. (NAPO) submitted to the United States Supreme Court an amicus curiae (friend-of-the-court) brief in support of the State of Florida. NAPO seeks to reverse the decision of the Supreme Court of Florida, which rejected the admissibility into evidence of a concealed handgun seized by a police officer at a Miami bus stop from the Respondent, a 16-year-old juvenile ("J.L.") at the time of the incident. NAPO represents 4,000 law enforcement organizations, with 250,000 sworn law enforcement officers nationwide.
Background Information on Law Enforcement’s Interest in this Case
NAPO’s members have a significant interest in the important Fourth Amendment issues of law before this Court, as the Court’s decision will affect the safety of law enforcement officers and directly impact their ability to carry out their responsibility to protect the public. This is because the stopping of an individual, whom an officer reasonably believes is armed and dangerous, constitutes the least predictable and the most dangerous duty of a law enforcement officer. Consequently, the outcome of this case will determine whether officers are allowed to adequately protect themselves by conducting a brief frisk or pat-down for weapons in such situations, an authority severely restricted now in Florida (and also Pennsylvania). Therefore, NAPO’s brief seeks to provide insight to the Supreme Court into the reasonableness of the policy of allowing police officers to seize and disarm those individuals presenting a serious risk of injury or death to the officer and the public.
NAPO’s Executive Director Robert T. Scully said, "We urge the Supreme Court not to sacrifice public safety and the safety of law enforcement officers for minimal gains in search and seizure protection. For example, during the 10-year period from 1988 through 1997, 92 percent of the 688 police officers who were killed in the line of duty were killed with firearms. In addition, in 1998, the rate of officers killed with firearms rose even higher, to 95 percent, with all but three of the 61 slain officers dying from gunshot wounds. Most of these slain officers were shot at close range, in the front of the head or upper torso, within 10 feet of their assailants, and many officers were shot while investigating suspicious circumstances."
Scully continued, "In this case, the Florida Supreme Court ruled that an anonymous informant’s detailed description of an armed suspect’s clothing and location, even if verified by the police, is not enough to establish reasonable suspicion of criminal activity, including a concealed weapon. Incredibly, that court even suggested that police officers take the risk of engaging armed suspects in conversation before searching them, and risk injury or death, even if officers have information indicating that the individuals are armed. The danger to law enforcement officers and the general public will significantly increase and more officers will be injured or killed if the Supreme Court adopts Florida’s restrictive standard. Clearly, more officers, juveniles, and others will be murdered and assaulted if the Florida Supreme Court’s decision in this case is not reversed," continued Scully.
Summary of the Facts and the Case
At the time of the incident in 1995, Respondent, J.L., was a 16- year old male. Based on the Respondent’s possession of the gun, a petition for delinquency was filed, charging the Respondent with unlawfully carrying a concealed firearm and unlawful possession of a firearm by an individual under 18 years of age.
During an evidentiary hearing on a motion to suppress the admissibility of the gun into evidence, Officer Carmen Anderson testified that on October 13, 1995, while on patrol in Miami, she was dispatched to the area of 183rd Street and 24th Avenue in response to information received from an anonymous source. The source indicated that there were three young black (African-American) males standing at a bus stop near that intersection in front of a pawn shop, one of whom was carrying a concealed firearm. The anonymous informant also described each individual and said that the person carrying the firearm was the black male wearing a plaid shirt.
Officer Anderson and another police unit arrived at the bus stop approximately six minutes after receiving the dispatch. As Officer Anderson and the other officer approached the bus stop, Officer Anderson saw three black males, one of whom was wearing a plaid shirt. The three males were found at the precise location where the anonymous informant said they would be. Officer Anderson immediately approached the Respondent, the male wearing the plaid shirt, because he fit the description of the individual who was allegedly carrying a concealed firearm. Officer Anderson asked the Respondent to place his hands on the bus stop sign; the officer then began to frisk him, and upon doing so saw the butt of a gun coming out of the Respondent’s left pants’ pocket. Officer Anderson removed the gun and arrested the Respondent.
The trial court found that the information provided by the anonymous source was insufficient to support a reasonable suspicion of criminal activity, and suppressed the gun as the product of an unreasonable search and seizure. The intermediate appellate court in Florida reversed the trial court’s suppression of the handgun, concluding that there was reasonable suspicion that the Respondent was committing the crime of carrying a concealed firearm, and thus the officer was justified in stopping and frisking him. That appeals court ruled that the police officers found themselves, based on the extent of verification of the anonymous tip, in a situation where they had a reasonable suspicion that the Respondent was carrying a concealed weapon. Consequently, the court felt that the officers had to take some action, but in doing so they also had to secure their own safety first.
The Florida Supreme Court reversed the decision of the intermediate appellate court and excluded the handgun as evidence. The court ruled that the information provided by the anonymous source did not give rise to the "reasonable suspicion" required by the Fourth Amendment. Specifically, the Florida court held that an anonymous informant’s detailed description of an armed suspect’s clothing and location, even if verified by the police, is not enough to establish reasonable suspicion to detain an individual and search for a concealed weapon. The dissenting justices vehemently disagreed with the majority’s conclusion as overly restrictive and unfounded under current constitutional standards. The dissenting opinion concluded that, when confronted with this type of situation, police officers may not be able to verify more than the innocent details of the tip without substantially risking their safety or the safety of the general public.
Based upon past court precedents, NAPO urged the Supreme Court to adopt the following standard as the appropriate one: Whenever an anonymous source alleges the presence of an individual armed with a concealed weapon, the verification by a law enforcement officer of the description of the suspect and the suspect’s location is sufficient to establish reasonable suspicion to conduct a seizure of the individual and a quick search for weapons. A law enforcement officer should not be required to wait and endanger his or her life, either by questioning the suspect first or waiting for the suspect to initiate a suspicious act. The need to act is immediate in view of the high risk of injury and death. The danger to law enforcement officers and the general public will significantly increase if the U.S. Supreme Court does not reverse the Florida ruling.
Summary of Main Points in NAPO’s Amicus Brief
The Fourth Amendment to the U.S. Constitution prohibits "unreasonable searches and seizures". The reasonableness of a search and seizure, including the brief detention and frisk of a suspect for a weapon, depends on a balancing between the suspect’s right of privacy and the public interest in effective law enforcement, including officer safety. As the Supreme Court reaffirmed in 1998 in Knowles v. Iowa, officer safety in terms of disarming a suspect is "both legitimate and weighty".
Crucial to that balancing test is the specific information possessed by law enforcement officers concerning the allegedly armed individual. If an officer holds a reasonable belief that his or her safety or that of others is in danger, based on the circumstances and facts known to the officer, he or she may conduct a search based on "reasonable suspicion", under the Supreme Court’s 1968 decision in Terry v. Ohio. Terry authorizes investigatory detentions and searches for weapons whenever there is an articulable suspicion that a suspect is armed and dangerous. In 1972, in Adams v. Williams, infra, the Supreme Court reaffirmed Terry and emphasized that the purpose of a protective search, if an officer has reason to believe that a suspect is armed and dangerous, is "to allow the officer to pursue his investigation without fear of violence, ... irrespective of whether carrying a concealed weapon violated any applicable state law." In fact, as the Terry decision stated, it would be "clearly unreasonable to deny" an officer the power to take measures necessary to determine whether a suspect is in fact carrying a weapon and to "neutralize" that threat. Justice Harlan’s concurring opinion in Terry stated that an officer should not have to ask one question when confronting a suspect and "take the risk that the answer might be a bullet".
Statistical and other data disclose that concealed firearms and firearm crimes do pose a significant threat to officer and public safety. The data on officers killed or assaulted with firearms, as well as juvenile possession and use of firearms, including juvenile victims of crime, is devastating. For example, in 1995 alone, the year of the incident in this case, there were just over 500,000 murders, robberies, and aggravated assaults in which firearms were used, affecting 192 out of every 100,000 people in the United States. Indeed, firearms are used in approximately one-quarter of the incidents of violent crime committed in the United States, and are the type of weapon most frequently used in the slaying of police officers.
In this case, Officer Anderson could have been one of these statistics, if she had not conducted the frisk of the Respondent and removed his weapon. Her well-founded suspicions and her risk of death or injury from the weapon she seized should not be ignored, as they were by the Florida Supreme Court.
The brief presented data on increasing possession and use of firearms by and against juveniles. We urged the Supreme Court to consider the important policy interests in protecting the public’s safety, in view of the large number of juveniles carrying and killed by firearms each year. Indeed, there has been a startling increase in the number of crimes, especially murders, committed by juveniles using a firearm, during the last 10 years, notwithstanding an overall reduction in the rates of some violent crimes.
Societal expectations are a factor in determining whether an objective expectation of privacy should be recognized under the Fourth Amendment. The governmental interest in this case is much greater than that of routine crime detection. This is because the governmental interest in crime prevention is intensified when an armed and potentially dangerous individual threatens public safety. Therefore, as the governmental interest is greater, the level of corroborated information from an anonymous source necessary to constitute "reasonable suspicion" must be qualitatively different than in other types of cases. Otherwise, the balance between privacy and the governmental and societal interest will severely tilt in the wrong direction, as happened in the Florida Supreme Court.
The Florida court’s majority opinion did not take into account that the great risk of harm to the public and the police in situations such as this case substantially outweighs the limited intrusion of the suspect’s privacy. As the D.C. Circuit stated in a 1981 case, United States v. McClinnhan, "[The] element of danger distinguishes a gun tip from one involving possession of drugs. If there is any doubt about the reliability of an anonymous tip in the latter case, the police can limit their response to surveillance or engage in ‘controlled buys.’ Where guns are involved, however, there is the risk that an attempt to ‘wait out’ the suspect might have fatal consequences."
In summary, NAPO’s brief urged that the Supreme Court reverse the Florida court’s decision (also followed in Pennsylvania) and apply the policy of officer and public safety established in the Terry decision.
For a copy of the brief, please call Jody Couser at the NAPO office, 202-842-3560.
The National Association of Police Organizations (NAPO) is a coalition of police
unions and associations from across the United States that serves in Washington, DC to
advance the interests of America’s law enforcement officers through legislative and
legal advocacy, political action and education. Founded in 1978, NAPO now represents
more than 4,000 police unions and associations, 250,000 sworn law enforcement officers,
more than 11,000 retired officers, and more than 100,000 citizens who share a common
dedication to fair and effective crime control and law enforcement.