During a mere encounter, police do not need any type of reasonable suspicion because they are simply speaking to a possible criminal suspect and there is no obligation for that person to remain in the conversation.

Alfonso Gambone
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Alfonso Gambone is a Philadelphia criminal defense attorney dedicated to protecting your rights.

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I’ve written previous blog posts on the importance of understanding the difference between the types of police interactions, which range from a mere encounter to an arrest. The level of an interaction will dictate the constitutional protection that is afforded a criminal suspect during it.

Mere Encounter – No Constitutional Protection

Understanding a person’s constitutional rights during an encounter with police is important to any defense in Pennsylvania, New Jersey, or any state, especially in a case involving criminal offenses for illegal drugs, narcotics, guns, firearms, and even drunk driving (DUI/DWI). A mere encounter doesn’t afford a defendant (suspect) any type of constitutional protection because a court will not consider it a “seizure”. During a mere encounter, police do not need any type of reasonable suspicion because they, in theory, are simply speaking to a possible criminal suspect and there is no obligation for that suspect to remain in the conversation. Basically, a person can simply walk away at this point!

Investigative Stop – Reasonable Suspicion

An investigative stop or detention requires reasonable suspicion and does amount to a “seizure” under the law, even though a person isn’t under arrest at this point. A court will distinguish a mere encounter from an investigative stop or detention through an evaluation of all the circumstances surrounding the encounter to determine if a reasonable person would of felt free to leave and terminate the interaction. An arrest, unlike a stop, affords a person the highest level of constitutional protection and requires police to have probable cause that a crime has occurred or is occurring.

 

What makes an anonymous tip valuable?

Police sometimes stop a suspect based on anonymous tips from a member of the community. In these situations, police may have reasonable suspicion for the stop, but it is important not to ignore the other factors police must have to effectuate a stop based on this tip. The tip itself isn’t enough, and to determine if the tip provides a source for reasonable suspicion a court must determine, under a totality of the circumstances analysis, whether the tip established suspicion that criminal activity was occurring. A court will consider the informant’s veracity, reliability, and the basis for his or her knowledge.

 

An investigative stop, based on an anonymous tip, is only constitutionally permissible where that tip is corroborated by independent police work. For example, an anonymous tip simply giving a suspects physical description (black, white, Asian, etc.) with no other detail regarding criminal activity can, for the most part, describe anyone who is standing at a particular location at any given time. Police still need to observe and possibly even conduct their own investigation, separate and apart from the original tip, to justify a stop. An independent observation and investigation may not be necessary if the police are familiar with the informant.

 

The admissibility of illegally obtained evidence

Keep in mind that any illegal item (contraband—drugs, guns, alcohol) that is seized as the result of an illegal search will be suppressed regardless of the illegality of the item (illegal narcotic—cocaine, crack, PCP, heroin). An anonymous tip must contain specific and articulable facts that will lead police to believe that criminal activity is occurring for police to initiate a stop (i.e. hand-to-hand transactions, taking items out of a building after normal business hours).

Keep in mind that Pennsylvania’s Constitution on Article 1 Section 8 provides a higher level of protection than the US Constitution against unreasonable searches and seizures. The test is whether a reasonable person (not a police officer) would have believed that he or she was free to leave the interaction. Even if a suspect runs and throws the contraband away as police chase, a court will still suppress that evidence if the stop itself was illegal.

 

Conclusion – Trial and Pre-Trial Motions

If you are charged with a gun, drug, or even a DUI offense in Pennsylvania, New Jersey, or any state, based on an anonymous tip, it’s important that your criminal defense lawyer question the reliability of that tip and what police did to corroborate that evidence. The evidentiary standard for a conviction at trial is guilt beyond a reasonable doubt but the standard at a pre-trial motion to suppress is by the preponderance of the evidence, which is much lower. Even though the evidentiary burden of proof is less at pre-trial motions stage, this defense tool is often the best way to defeat these types of criminal charges.

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