Opinion
No. 31188-7-II.
Filed: June 8, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Pacific County. Docket No: 03-8-00075-6. Judgment or order under review. Date filed: 11/26/2003. Judge signing: Hon. Joel Penoyar.
Counsel for Appellant(s), Daniel Herbert Bigelow, Attorney at Law, PO Box 153, Cathlamet, WA 98612-0153.
Counsel for Respondent(s), Nathaniel Lauren Needham, Attorney at Law, PO Box 45, South Bend, WA 98586-0045.
Bradyn K. Hilts appeals his juvenile court adjudication of being a minor in a public place exhibiting the effects of having consumed liquor, a violation of RCW 66.44.270(2)(b), arguing that the trial court erred when it denied his motion to suppress. Specifically, he asserts that the initial vehicle stop was invalid because it was based on information provided by an inadequately identified caller and lacked sufficient indicia of reliability. We agree and reverse.
Although the trial court's judgment and order states that the information alleged Hilts had committed the offense of `Minor in possession of alcohol,' a violation of RCW 66.44.270(2)(a), this appears to be a scrivener's error. Clerk's Papers (CP) at 27.
Facts
On April 5, 2003, at approximately 11:00 p.m., a dispatcher notified Pacific County Sheriff Deputy Skip Allison that a caller had reported noise coming from a neighbor's garage; the caller believed there might be a burglary in progress. The caller also reported that a blue SUV had just left the neighbor's house.
Deputy Allison and Deputy Mike Robins responded immediately and approached the house within minutes. Approximately a half a block from the house, a blue SUV passed the deputies; it was the only blue vehicle on the road. As Deputy Allison proceeded to the house, Deputy Robins stopped the SUV. Deputy Allison joined Deputy Robins at the SUV after he had determined that the noise the neighbor heard was likely from a party and that no burglary had occurred.
When Deputy Robins initially contacted the SUV's driver, he noticed the odor of alcohol and observed that the three people inside the SUV appeared to be under age. Hilts, who was under 21 at the time, was one of the passengers. Deputy Robins believed Hilts had been drinking because his breath smelled of alcohol and his `face was flushed and his eyes were kind of glossy.' Report of Proceedings (RP) (Oct. 13, 2003) at 19-20.
The State charged Hilts for being a minor in a public place exhibiting the effects of having consumed liquor. During his adjudication, Hilts challenged the initial vehicle stop, arguing inter alia that the stop was not justified because it was based solely on information provided by an unidentified caller.
Finding that the deputies were justified in relying on the caller's information, the trial court denied the suppression motion. The trial court also found Hilts guilty as charged. Hilts appeals, challenging the trial court's denial of his suppression motion.
Discussion
Relying on State v. Lesnick, 84 Wn.2d 940, 530 P.2d 243, cert. denied, 423 U.S. 891 (1975), State v. Sieler, 95 Wn.2d 43, 621 P.2d 1272 (1980), and State v. Jones, 85 Wn. App. 797, 934 P.2d 1224, review denied, 133 Wn.2d 1012 (1997), Hilts challenges the trial court's conclusion that the deputies were entitled to rely on the caller's information and that the stop was, therefore, not justified. We agree.
Hilts also argues that even assuming the deputies were entitled to rely on the caller's information, the facts did not create a reasonable suspicion of criminal activity. Because we determine that the information provided by the caller lacked the required indicia of reliability, we need not reach this argument.
Although an investigatory stop is less intrusive than an arrest, it is still a seizure and must be reasonable under the Fourth Amendment and article I, section 7 of the Washington Constitution. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Kennedy, 107 Wn.2d 1, 4, 726 P.2d 445 (1986). In Terry, the United States Supreme Court determined that an officer could detain a suspect for an investigative stop even if the officer did not have probable cause as long as the officer was able to point to `specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.' Terry, 392 U.S. at 21. An investigative stop is justified if there is `a substantial possibility that criminal conduct has occurred or is about to occur.' Kennedy, 107 Wn.2d at 6. When evaluating the reasonableness of a Terry stop, we consider the totality of the circumstances known to the investigating officer at the time of the search. State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991) (Utter, J., dissenting) (citing United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)).
Reasonable suspicion may be based on an informant's tip if there are facts establishing the reliability of both the informant and the information provided. Sieler, 95 Wn.2d at 47; State v. Hart, 66 Wn. App. 1, 6-8, 830 P.2d 696 (1992). Although the reliability showing may be relaxed in situations involving citizen rather than professional informants and may be further relaxed when the informant is an eyewitness or victim and `the exigencies are such (as in the case of violent crime and the imminent possibility of escape) that ascertainment of the identity and background of the informants would be unreasonable,' some indicia of reliability are still required. State v. Chatmon, 9 Wn. App. 741, 748 n. 4, 515 P.2d 530 (1973); see also Kennedy, 107 Wn.2d at 8.
In Lesnick, our Supreme Court found that the indicia of reliability were not sufficient to justify reliance on a telephone tip where (1) the tip came from an anonymous caller who refused to provide any identifying information; and (2) the caller's information amounted to a conclusory assertion that an individual in an identified vehicle was engaged in gambling activity. Lesnick, 84 Wn.2d at 944. The court also considered the type of alleged criminal activity, possession of gambling devices (a gross misdemeanor that was often openly tolerated), and emphasized that the level of indicia of reliability would differ in situations involving physical violence or the risk of harm to society. Lesnick, 84 Wn.2d at 944-45.
In Seiler, after applying the reliability rule developed in Lesnick, the court found that the indicia of reliability were not adequate when (1) the information was provided by a named but not known individual; (2) the informant believed he had observed people in an identified vehicle dealing drugs in a school parking lot, but provided no facts supporting his conclusion that drug transactions were occurring; (3) the officers did not observe any corroborating circumstances when they arrived; and (4) a school vice-principal informed the officers that he had contacted the people in the vehicle and had not observed anything unusual or suspicious. Seiler, 95 Wn.2d at 44-45, 47-48.
And in Jones, Division Three of this court concluded that the indicia of reliability were not sufficient when (1) an officer stopped a vehicle to investigate a possible drunk driver after a passing truck driver had signaled to the officer that the vehicle had been weaving; (2) the only thing identifying the truck driver was a company name printed on the side of the truck; and (3) the officer did not personally observe the vehicle weaving or driving erratically as he followed it. Jones, 85 Wn. App. at 799. The court concluded that the identifying factor was `not qualitatively different from an anonymous but named telephone caller,' such as in Seiler. Jones, 85 Wn. App. at 800.
Here, at the time of the stop, Deputy Robins knew that (1) a caller had reported hearing noise coming from a neighbor's garage; (2) the caller suspected that there was a burglary in progress; (3) the caller reported a blue SUV leaving the neighbor's house; and (4) the SUV Deputy Robins pulled over matched the caller's description and was the only such vehicle in the area within minutes of the call. Unlike the situation in Lesnick, the caller here provided some identifying information. Further, although the deputies knew only that the caller purported to be a neighbor, this fact was corroborated to some extent when the deputies observed a vehicle similar to the one the caller described in the immediate area within minutes of the call. But, as in Seiler and Jones, merely having some identifying information is not, alone, sufficient to justify the deputy's reliance on the caller's information, and we conclude that the limited corroborating factors here do not overcome this deficiency.
Additionally, although the deputies could reasonably assume that the caller had first hand knowledge of the noise coming from the neighbor's garage, the dispatcher did not relay any additional facts from which they could have concluded that the noise suggested that a burglary was in progress such as whether the noise was unusual, the type of the noise, or whether the homeowners were absent at the time. This suggests that the caller's conclusion that a burglary was in progress was speculative. Further, as they approached the SUV the deputies did not observe any additional circumstances suggesting criminal activity such as an apparent attempt to flee, erratic behavior, or furtive movements.
Based on these facts, the caller's information was not sufficiently reliable to create a reasonable suspicion that a crime had been committed and, under these circumstances, the deputies were not justified in pulling over the SUV. Thus, the trial court erred in denying Hilts's motion to suppress, and we reverse.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
MORGAN, P.J. and VAN DEREN, JJ., concur.