by Sam Rutherford

The Supreme Court of Rhode Island held that a police officer lacked reasonable suspicion to conduct an investigative search where the initial detention was based on an unsubstantiated, anonymous tip from a citizen informant that was communicated by dispatch. The fact that the defendant matched the tipster’s description perfectly, was in a high-crime area at night, and made furtive movements when confronted by the officer did not rehabilitate an otherwise unconstitutional encounter. The Court emphasized, however, that the primary problem in this case was the State’s failure to present evidence concerning the anonymous tip at the suppression hearing.

Background

On July 9, 2016, at approximately 1:00 a.m., Pawtucket Police Department Patrol Officer James Leach was dispatched to an intersection in response to a call from a citizen, later identified as “Artie,” that a light-skinned Black male, wearing a striped shirt and dark pants, was walking around with a gun in his hand. Leach observed the defendant, later identified as Napoleao Pires, walking just north of the intersection. Pires matched the description of Leach had received to a “T.” However, Leach did not observe Pires carrying a gun or engaging in any other criminal activity.

Leach decided to detain and question Pires anyway. He exited his police cruiser and ordered Pires to raise his hands. Pires complied. Leach then instructed Pires to face away from him and walk backward toward the sound of his voice with his hands raised. Pires instead began walking toward Leach, facing forward, with his hands outstretched. Leach repeated his command, but Pires continued forward. Leach was unsure whether Pires was refusing his commands or simply did not understand them.

When Pires was within about 12 to 15 feet of Leach, he pivoted and reached for his waistband. Fearing he was reaching for a gun, Leach rushed Pires and subdued him with a “full nelson” hold. Pires began speaking in a foreign language but did not otherwise resist. Two other officers arrived as backup, and Leach instructed one of them to search Pires. That officer located an unloaded pistol in Pires’ waistband and cocaine in his pocket. No ammunition was found. Pires was handcuffed and arrested.

After Pires was booked into jail, Leach went to Artie’s house to complete a written statement. Artie refused to provide any information beyond her first name and would not give a statement. No additional information concerning Artie’s identity or her report to police was obtained.

Pires was charged with possessing a firearm without a license and unlawful possession of cocaine. He moved to suppress the seized evidence, arguing that Leach’s initial detention of him was unreasonable because it was based on nothing more than an unsubstantiated, anonymous tip. The trial court denied the motion, reasoning that Leach’s 30 years of experience coupled with the fact that Pires matched the description provided by the tipster, his presence in a high-crime area at night near the reported incident, and his furtive gesture of reaching for his waistband supplied the reasonable suspicion necessary for Leach’s detention and subsequent search.

Pires was convicted following a bench trial and sentenced to five years in custody, with four years suspended, followed by five years of probation. He timely appealed to the Rhode Island Supreme Court—the state’s only appellate court.

Analysis

The Rhode Island Supreme Court reviews a trial court’s factual findings underlying a suppression order for clear error, while its legal conclusions are reviewed de novo. State v. Patino, 93 A.3d 40 (R.I. 2014). Whether historical facts provide reasonable suspicion necessary for an investigative detention “should be reviewed de novo on appeal.” Ornelas v. United States, 517 U.S. 690 (1996).

Both the Fourth Amendment to the U.S. Constitution and article 1, section 6 of the Rhode Island Constitution, protect persons against unreasonable searches and seizures. Patino. “A police officer may conduct an investigatory stop, provided the officer has a reasonable suspicion based on specific and articulable facts that the person detained is engaged in criminal activity.” State v. Abdullah, 730 A.2d 1074 (R.I. 1999). Whether an officer possessed such suspicion is determined based on the totality of the circumstances. State v. Keohane, 814 A.2d 327 (R.I. 2003) (citing United States v. Cortez, 449 U.S. 411 (1981). This type of brief, investigative detention is commonly referred to as a “Terry stop” after the U.S. Supreme Court case that first authorized them. Terry v. Ohio, 392 U.S. 1 (1968).

In Florida v. J.L., 529 U.S. 266 (2000), the U.S. Supreme Court held that a Terry stop based on an unsubstantiated, anonymous tip was unconstitutional because it “provided no predictive information and therefore left the police without means to test the informant’s knowledge or credibility.” Pires contended that Leach’s initial detention of him was unreasonable under J.L. because it was based on nothing more than an anonymous tip. The State, however, argued that the trial judge correctly determined that Leach had reasonable suspicion based on the reasons discussed above.

The Seizure

To resolve this dispute, the Court first had to determine the “moment” Pires was seized for Fourth Amendment purposes by Leach. See State v. Foster, 842 A.2d 1047 (R.I. 2004); Terry. This is so, the Court said, because the “timing of the stop sets the bounds for our reasonable-suspicion analysis because reasonable suspicion must exist at the inception of the stop; therefore, only those factors present prior to and leading up to the moment of seizure may be considered.” State v. Casas, 900 A.2d 1120 (R.I. 2006); Terry.

In this case, the trial court did not specifically identify when it deemed Pires was seized by Leach, but the fact that it considered Pires’ failure to follow Leach’s commands to turn around and walk backwards toward him and Pires reaching for his waistband, suggested the court thought a seizure occurred once Leach placed Pires in a full nelson hold and forced him to the ground, the Court stated. The State argued both in the trial court and on appeal that this is when Pires was seized.

But under Fourth Amendment jurisprudence, a seizure occurs when a person submits to a show of authority by law enforcement, and there is no requirement that physical force be used to constitute a seizure. See Brendlin v. California, 551 U.S. 249 (2007); see also Thompson v. Whitman, 85 U.S. 457 (1873) (“A seizure is a single act, and not a continuous fact.”). The Court stated that a “police officer has ‘seized’ a person, within the meaning of the Fourth Amendment, when he restrains that person’s freedom to walk away.” State v. Foster, 842 A.2d 1047 (R.I. 2004). The test for whether a reasonable person feels free to leave is objective and turns on what a reasonable person would think under the circumstances. See State ex rel. Town of Little Compton v. Simmons, 87 A.3d 412 (R.I. 2014).

In the present case, the Court determined it was “objectively reasonable that, having been caught in the headlights of a police cruiser and ordered by a uniformed officer to raise his hands, [Pires] would not have felt free to leave.” Thus, the Court ruled that Pires was “seized once he complied with Officer Leach’s order to raise his hands because, in that moment, his liberty was sufficiently curtailed to implicate his Fourth Amendment rights.”

Reasonable Suspicion

The next question was whether Leach had reasonable suspicion of criminal activity based on the facts and circumstances known to him at the moment he ordered Pires to raise his hands. It is the State, not the defendant, “that must establish reasonable suspicion by a preponderance of the evidence.” See State v. Tavarez, 572 A.2d 276 (R.I. 1990); see also Illinois v. Wardlow, 528 U.S. 119 (2000). Under Terry, an investigatory stop is permissible only when the officer has “specific and articulable facts that the person detained is engaged in criminal activity.” Abdullah.

Courts have long recognized that police officers “may conduct an investigatory stop in reliance on information issued through police channels, such as a wanted flyer or bulletin or a radio dispatch, if the information is based on ‘articulable facts supporting a reasonable suspicion that the wanted person has committed an offense.’ … But if the information ‘has been issued in the absence of a reasonable suspicion, then a stop in the objective reliance upon it [nevertheless] violates the Fourth Amendment.’” United States v. Alvarez, 40 F.4th 339 (5th Cir. 2022) (quoting United States v. Hensley, 469 U.S. 221 (1985)).

The dispute in this case centered on whether Leach had sufficient reasonable suspicion to detain Pires based on the dispatch he received relaying Artie’s anonymous tip, or in other words, whether “her information was sufficiently reliable to buoy the quantum of evidence for reasonable suspicion,” as the Court phrased it. The problem for the State was it failed to produce any evidence about the dispatch at the suppression hearing. As the trial court recognized, “There is nothing in this record about an anonymous tip. Nothing. Nobody testified to an anonymous tip.”

The record supported the trial court’s conclusion. As the Court noted, the State “did not present the individual who issued the dispatch as a witness at the hearing on the motion to suppress, and the record contains no information as to that individual’s identity.” The record also did not establish “how this person came to acquire the information furnished by the individual identified as Artie.” Moreover, the State “failed to submit any further evidence of Artie’s identity beyond her first name, establish whether she had a relationship or connection to defendant, demonstrate how and when the police came to know her identity and address, or specify the manner she used to contact the police—specifically, whether she used the 911 system.”

Courts typically find information supplied by “a citizen-informant … who discloses his or her identity and basis of knowledge to the police is both reliable and credible.” United States v. Kehoe, 893 F.3d 232 (4th Cir. 2018). But the same cannot be said when information about the tipster is missing. As the Court explained, if the State “intended to hang its hat on Artie’s eyewitness account of defendant’s activities, it should have substantiated that her phone call was a proper ‘tip’ and accompanied that submission with appropriate supporting evidence, such as a recording of the call, the method used to place the call, any prior relationship between Artie and defendant, or the dispatcher as a testifying witness.”

Absent such information, the Court stated that the trial court erred by concluding that Artie’s tip supplied reasonable suspicion to support Leach’s seizure and subsequent search of Pires. The mere fact that Pires matched the description of the person described in the tip was simply not enough because the description alone does not establish criminal activity. As the U.S. Supreme Court has explained, “reasonable suspicion … requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” J.L.; see also State v. Burgess, 138 A.3d 195 (R.I. 2016).

Apart from the tip, the trial court also found reasonable suspicion based on Leach’s experience, the time of night, Pires’s presence in a high-crime area, his failure to follow Leach’s commands, and his furtive reaching for his waistband. While recognizing that these were all “permissible factors” for the trial court to consider, they were nonetheless “problematic” under the “specific facts of this case,” according to the Court.

First, the Court explained that Pires’s failure to obey Leach’s command to walk backwards and his reaching for his waistband occurred after Leach seized Pires by ordering him to raise his hands, so those facts were irrelevant to the reasonable suspicion analysis. See Casa. Second, Leach’s experience and Pires’s presence in a high-crime area at night were also irrelevant because Leach’s testimony at the suppression hearing showed that his “sole justification” for the Terry stop was the dispatch, the Court stated. But, as the Court noted, the information Leach received from the dispatch “was not buttressed by sufficient evidence to carry any significant weight” and therefore did not amount to reasonable suspicion.

Thus, while the “evidentiary bar may not be high,” it must nevertheless “rise to the level of reasonable suspicion.” The Court explained that Leach lacked such suspicion in this case because he “had no independent reason to suspect that [Pires] was engaged, or had been engaged, in any illegal activity other than his reliance on the dispatch. The dispatch, however, lacked sufficient evidence of reliability” to establish “a reasonable suspicion that criminal activity was afoot.” And where, as here, an officer lacks reasonable suspicion at the initiation of a warrantless search and seizure, then any evidence obtained therefrom must be suppressed. State v. Ditren, 126 A.3d 414 (R.I. 2015). Thus, the Court held that Pires’ suppression motion should have been granted in this case because the State “failed to submit adequate evidence to show that reasonable suspicion existed at the inception of his encounter with Officer Leach.”

Conclusion

Accordingly, the Court reversed the trial court’s order denying Pires’ suppression motion, vacated his conviction and sentence, and remanded the case for further proceedings consistent with its opinion. See: State v. Pires, 316 A.3d 701 (R.I. 2024).

Writer’s note: While this case may seem like a resounding victory for Fourth Amendment rights, the decision is actually quite narrow. The Court’s holding is not so much about whether Officer Leach had reasonable suspicion to detain Pires based on the dispatch he received, as it is about the prosecuting attorney’s failure to produce any evidence about the dispatch and the citizen informant to establish reasonable suspicion at the suppression hearing. Had the prosecutor put the police department employee on the witness stand to describe the circumstances surrounding his or her receipt of Artie’s tip and its subsequent transmission to Officer Leach, it is likely that the Court would have upheld the Terry stop in this case. Viewed through this lens, then, Pires is more about the State failing to carry its burden of proof at the suppression hearing than it is about the vindication of a detainee’s Fourth Amendment rights. Nonetheless, it is a positive outcome for Pires.

Editor’s note: Anyone interested in Fourth Amendment seizure analysis is encouraged to read the Court’s full opinion, which provides a systematic analysis of how to determine whether a Fourth Amendment seizure is lawful.  

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