Could police stop someone based on an anonymous text-a-tip message?

Plain-English summary

The Kentucky Attorney General concluded in 2015 that an anonymous text tip could justify a temporary police stop only when the tip was sufficiently reliable to create reasonable and articulable suspicion of criminal activity. The message’s format did not change the Fourth Amendment analysis: the AG said text-a-tip messages should be treated like anonymous phone tips to dispatch.

The opinion emphasized that anonymous allegations alone rarely show enough reliability. Corroborated predictive details, among other circumstances, could support a stop, while a bare claim without signs that the sender knew about concealed criminal activity could not. The AG evaluated the whole set of circumstances rather than treating every text as automatically reliable.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did every anonymous text justify an investigatory stop?

No. The AG required sufficient indicia of reliability and reasonable, articulable suspicion of criminal activity.

Could police corroborate a text tip before a stop?

Yes. The opinion identified independent verification, including predictive details, as a way an anonymous tip could gain reliability.

Were text tips subject to a different rule than anonymous calls?

The AG said no. It treated both as anonymous tips and applied the same reliability inquiry.

Background and statutory framework

A prosecutor asked about text-a-tip programs. The AG applied U.S. Const. amend. IV and discussed Commonwealth v. Brown, 250 S.W.3d 631, 634 (Ky. 2008), for corroboration and Florida v. J.L., 529 U.S. 266, 270 (2000), for the weakness of an uncorroborated anonymous claim.

Citations and references

Constitutional provision: U.S. Const. amend. IV.

Cases: Commonwealth v. Brown, 250 S.W.3d 631, 634 (Ky. 2008); Florida v. J.L., 529 U.S. 266, 270 (2000).

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Pages/Opinions.aspx
• Original Word document: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG15-016.doc

Original opinion text

OAG 15-016

October 12, 2015

Subject: Whether the use of anonymous tips received through a text-a-tip program by law enforcement agencies violates the Fourth Amendment to the United States Constitution.

Requested by: Zachary M. Becker, Assistant Commonwealth’s Attorney

48th Judicial Circuit

Written by: S. Travis Mayo

Syllabus: A law enforcement agency may use information contained in an anonymous tip provided via a text-a-tip program if it bears sufficient indicia of reliability. If a reliable anonymous tip provides a law enforcement office with a reasonable and articulable suspicion that criminal activity is occurring, the officer may perform a temporary investigatory stop, without violating the Fourth Amendment. Information received from an anonymous tip made via a text-a-tip program should be treated similarly to an anonymous tip made to a dispatch center.

Statute construed: U.S. Const. amend. IV

Opinion of the Attorney General

Zachary M. Becker, Assistant Commonwealth’s Attorney for the 48th Judicial Circuit of the Commonwealth of Kentucky, has requested an opinion of this office regarding the legality of the use of anonymous tips received through text-a-tip programs by law enforcement agencies. Specifically, Mr. Becker has requested an opinion as it relates to two questions:

(1) Whether the use of information obtained by a law enforcement agency from an anonymous tip provided via text-a-tip program (i.e., anonymous tips that are sent via SMS text message from an anony- mous citizen to a law enforcement cell phone is legal; and

(2) Whether such information is to be treated similarly to information provided via an anonymous phone call made to a dispatch center.

With respect to the first question, we advise that a law enforcement agency may use an anonymous tip received through a text-a-tip program without violating the Fourth Amendment to the United States Constitution if it bears sufficient reliability to provide a reasonable and articulable suspicion for a law enforcement officer to make a temporary investigatory stop. As to the second question, information received from an anonymous citizen via a text message, through a text-a-tip program or otherwise, should be treated like an anonymous tip made to a dispatch center. Like an anonymous tip received by telephone, an anonymous tip received by text message must bear sufficient indicia of reliability to provide reasonable and articulable suspicion to make an investigatory stop.

I. A Reliable Anonymous Tip May Justify an Investigatory Stop by a Law

Enforcement Officer if it Creates the Requisite Reasonable Suspicion.

An anonymous tip received by and suitably corroborated by law enforcement officials may be sufficiently reliable to justify an investigatory stop. Under the Fourth Amendment, a law enforcement officer must have a reasonable and articulable suspicion that criminal activity may be afoot before making a temporary investigatory stop, such as a traffic stop or a stop on foot. Commonwealth v. Brown, 250 S.W.3d 631, 634 (Ky. 2008) (citing Terry v. Ohio, 392 U.S. 1 (1968)); Hampton v. Commonwealth, 231 S.W.3d 740, 744 (Ky. 2007); Henson v. Commonwealth, 245 S.W.3d 745, 748 (Ky. 2008); Navarette v. California, 134 S.Ct. 1683, 1687 (U.S. 2014). Whether the information an officer has is sufficient to give rise to a “reasonable and articulable suspicion” is evaluated under the totality of the circumstances. Brown, 250 S.W.3d at 634 (citing Terry, 392 U.S. 1); Hampton, 231 S.W.3d at 744 (citing Illinois v. Gates, 462 U.S. 213. 241-42 (1983)); see also Navarette, 134 S.Ct. at 1687 (citing United States v. Cortez, 449 U.S. 411, 417-18 (1981)).

While a mere “hunch” is not sufficient for such suspicion, the level of suspicion the standard requires is “considerably less than proof of wrongdoing by a preponderance of the evidence,” and “obviously less than is necessary for probable cause.” Navarette, 134 S.Ct. at 1687 (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). An anonymous tip, by itself, will rarely show sufficient indicia of reliability to provide reasonable suspicion, because it seldom exhibits the tipster’s basis of knowledge or veracity, unlike a tip from a known informant whose reputation can be assessed and who can be held responsible for fabrications. Brown, 250 S.W.3d at 634 (citing Florida v. J.L., 529 U.S. 266, 270 (2000)). An anonymous tip must have some increased indicia of reliability, such as independent verification or corroboration, before police may rely on it to make an investigatory stop. Brown, 250 S.W.3d at 634; Hampton, 231 S.W.3d at 745; see also Henson, 245 S.W.3d at 745; Navarette, 134 S.Ct. at 188; Alabama v. White, 496 U.S. 325 (1990); J.L., 529 U.S. 266.

In White, the Court held that the officers’ corroboration of certain details in an anonymous tip made the tip sufficiently reliable to create reasonable suspicion of criminal activity. 496 U.S. at 332. The tipster told the police that a woman would drive from a particular apartment building to a particular motel in a brown Plymouth station wagon with a broken right tail light at a particular time, and that the woman would be transporting an ounce of cocaine in a brown attaché case. Id. at 327. Police confirmed the details, stopped the vehicle as it neared the motel, and found marijuana inside of the brown attaché case and cocaine inside the suspect’s purse. Id. The Court found that the officers had sufficiently corroborated the anonymous tip to provide reasonable suspicion to stop the vehicle. Id. at 331. Further, the tipster accurately predicted future behavior, which showed a special familiarity with the suspect’s affairs and implied that the tipster had access to reliable information regarding the suspect’s illegal activities. Id. at 332.

In Florida v. J.L., a bare-bones tip lacking indicia of reliability did not sufficiently give rise to the reasonable suspicion required for an investigatory stop and frisk. 529 U.S. 266, 274. The tipster advised that a young black male in a plaid shirt standing at a bus stop was carrying a gun. Id. at 268. He neither said how he knew about the gun nor showed that he had any special familiarity with the young man’s affairs. Id. at 271. Thus, police officers had no basis for believing the tipster knew of concealed criminal activity, and because the tip was absent of predictions of future behavior that the officers could corroborate to assess the tipster’s credibility, the tip was not sufficiently reliable to justify a stop and frisk. Id. at 271-272.

Considering White and J.L., the Court in Navarette held that under the totality of the circumstances, a tip received via telephone provided sufficient indicia of reliability to give rise to reasonable suspicion to justify a stop. 134 S.Ct. at 1693. Along with finding that the anonymous caller gave support to the reliability of the tip by providing specific information and eyewitness observation, which were close in proximity in time, the Court reasoned that the caller’s use of the 911 emergency system also supported the caller’s veracity. Id. at 1689. The Court noted the system’s ability to identify and trace callers, and record calls, and pointed out that it could subject a person to criminal prosecution for false reports or reports with the intent to annoy or harass. Id. Law enforcement can verify callers’ information, and the Federal Communications Commission requires cellular carriers to relay callers’ phone numbers to 911 dispatchers and provide specifics about callers’ locations. Id. (internal citations omitted).

Also discussing White and J.L., the Supreme Court of Kentucky held in Commonwealth v. Brown that officers sufficiently corroborated an anonymous tip to provide the requisite reasonable suspicion to justify a stop. 250 S.W.3d 631, 636. A detective received information about Brown from the same anonymous tipster for six (6) months. Id. at 632. The tipster said Brown was a cocaine dealer, that he lived at a certain residence drove a black car that his wife owned, and that his drug activities occurred during the early evening hours in three (3) particular areas. Id. The detective corroborated the information concerning Brown’s residence, the vehicle, and determined that Brown had a criminal record. Id. On the day of Brown’s arrest, the tipster told the detective that Brown was “leaving at that moment” in the black car, with a quantity of cocaine that he was going to deliver in a specific area. Id. An officer observed the vehicle in a parking lot behind a Huddle House restaurant, and saw an apparent employee of the restaurant approach and stand by the vehicle. Id. Believing a drug transaction was happening, officers conducted an investigatory stop, observed Brown put something into his mouth and later exhibit signs of cocaine ingestion, and subsequently arrested Brown. Id. at 632-33. The Court found that the officers’ corroboration of the predictive information in the anonymous tip lent an indicia of reliability to the tip. Id. at 635. The Court agreed with the trial court’s determination that the officers had a reasonable and articulable suspicion that criminal activity was occurring, justifying the stop. Id. at 636.

II. Anonymous Tips Sent Via Text Message Should be Treated Similarly to Anonymous Tips Made to a Dispatch Center.

Just as with an anonymous tip by telephone, law enforcement officers may make an investigatory stop on the basis of a sufficiently reliable anonymous tip received by text message, if that tip gives rise to a reasonable and articulable suspicion that criminal activity is afoot. See Hampton, 231 S.W.3d at 744; Henson, 245 S.W.3d at 748; Navarette, 134 S.Ct. at 1687. This Office cannot conjure any reason or authority to distinguish an anonymous tip received by telephone from one received by text message, through a Text-a-Tip program or otherwise. An anonymous tip is an anonymous tip, regardless of the means by which it is transmitted. See, e.g., Helphenstine v. Commonwealth, 423 S.W.3d 708, 715, n. 22 (Ky. 2014) (involving an anonymous tip sent by letter). Law enforcement agencies and communities in Kentucky and across the nation have implemented text-a-tip programs.

Further, the factors lending credibility to anonymous phone calls to 911 emergency systems discussed in Navarette, 134 S.Ct. at 1689, may also exist with anonymous text messages to law enforcement officials. Therefore, anonymous tips sent via text message to law enforcement officials should be treated similarly to anonymous tips made by telephone to a dispatch center or to law enforcement officers. If an anonymous tip sent by text message has sufficient indicia of reliability, such as through predictive information that officers may corroborate, that gives rise to a reasonable and articulable suspicion that criminal activity is occurring, an officer may conduct an investigatory stop.

III. Conclusion

In summary, a law enforcement agency may use an anonymous tip received through a text-a-tip program if it bears sufficient indicia of reliability to provide law enforcement officers with a reasonable and articulable suspicion that criminal activity is afoot. Such an anonymous tip may have sufficient indicia of reliability if law enforcement officers suitably corroborate it. Under the Fourth Amendment, if an officer has a reasonable and articulable suspicion that criminal activity is occurring, he may make a temporary investigatory stop. Furthermore, an anonymous tip made through a text-a-tip program should be treated like an anonymous tip made to a dispatch center. Thus, such a tip must bear sufficient indicia of reliability and create a reasonable and articulable suspicion that criminal activity is occurring to justify an investigatory stop.

JACK CONWAY

ATTORNEY GENERAL

S. Travis Mayo

Assistant Attorney General