Wednesday, February 16, 2011

Private Citizens Empowered to Select Others for Warrantless Stops

A couple of weeks ago, the Court of Appeals published an opinion discussing what has become a common method of law enforcement – pulling drivers over based upon the anonymous tip of another driver or drivers observations of erratic driving. In this day of ubiquitous cell phone use, it is not uncommon for motorists to anonymously pick up their phone and dial 911 because they believe another driver, based upon their untrained eye, may be intoxicated.

In People v Barbarich, ____ Mich App ____; ____ NW2d _____ (Docket No. 290772, February 1, 2011), a state trooper was conducting what he called a “property inspection” at Malarkey’s Pub in Southgate on St. Patrick’s Day in 2008. The parking lot was full and the pub had erected a large “party tent” on the premises. Finding nothing amiss, he pulled out onto Dix Road and headed south. Immediately after he pulled out, a woman in a red pickup truck headed in the opposite direction made eye contact with him and mouthed the words, “Almost hit me,” as she pointed at the car in front of her on the road. She then left the area.

The trooper immediately made a u-turn and turned on his lights and siren. The defendant pulled into Malarkey’s parking lot and when the trooper approached, he discovered that Barbarich was intoxicated. The trooper admitted at the evidentiary hearing on the motion to suppress that he never saw the woman in the red pickup again and that he did not observe Barbarich drive in a manner that would have justified stopping him.  The district court denied the defendant's motion to suppress evidence and dismiss the case without any comment.  Judge James Calahan of the Wayne County Circuit Court reversed and dismissed the case.  The prosecutor appealed.

Judge Kirsten Frank Kelly authored the opinion and, joined by Judge Brian Zahra, concluded that the trooper’s actions in stopping the defendant were reasonable for Fourth Amendment purposes based upon the woman’s “action of pointing to the vehicle in front of her” which the court concluded was “sufficient to accurately identify defendant’s vehicle and provided precise and verifiable information to the officer, which also strongly suggests that the information was reliable.”  The court relied primarily on an 8th Circuit Court of Appeals case decided in 2001, United States v Wheat, 278 F 3d 722 (CA 8 2001), where a motorist called 911 and reported that a tan Nissan, with a license plate beginning in WOC was driving erratically in the northbound lane of the freeway. The 8th Circuit held the stop was justified without the officers witnessing any bad driving themselves, because of the quantity and specificity of the information provided by the anonymous tipster.

Judge Kelly’s opinion was not unanimous, however. Judge Elizabeth Gleicher wrote a lengthy dissent where she pointed out the significant factual differences between the specific information provided by the tipster in Wheat and the sparse information provided by the unknown woman in the red pickup here. Judge Gleicher also correctly referred to the US Supreme Court’s decision in Florida v JL, 529 US 266 (2000) which held that an anonymous tip that a young black man on a particular street corner wearing a plaid shirt was carrying a gun provided insufficient specificity and reliability to justify the officer’s approach and pat-down of the defendant which revealed a handgun. The majority did not even address the reasoning provided in the Florida v JL case.

I think that Judge Gleicher’s opening line really summed up the effect this opinion will have on the jurisprudence in the State of Michigan: “Today the majority empowers private citizens to select certain motorists for warrantless searches and seizures conducted by police officers lacking probable cause or any reasonable suspicion of criminal conduct.”