Opinion
No. 27479-9-III.
December 24, 2009.
Appeal from a judgment of the Superior Court for Spokane County, No. 07-1-02606-2, Maryann C. Moreno, J., entered September 5, 2008.
Affirmed by unpublished opinion per Sweeney, J., concurred in by Kulik, A.C.J., and Brown, J.
The State must justify an investigative stop of a citizen by showing reasonable and articulable suspicion based on the totality of the circumstances. Here, an officer received a tip from an anonymous informant that the defendant had offered to sell him illegal drugs. The question before us is whether that is sufficient to support the necessary reasonable and articulable suspicion for an investigative stop. We conclude that it is not and affirm the trial judge's decision to suppress the drug evidence.
FACTS
Spokane Police Officer Aaron Ames stopped one evening at a gas station and convenience store in north Spokane to buy a drink. On his way into the convenience store, Officer Ames noticed a man filling up his white Ford Mustang. The car had Arkansas license plates. Officer Ames returned to his patrol car and drove to a nearby parking lot to catch up on paperwork. The driver of the white Mustang soon pulled his car up next to the officer's car and rolled down his window. Officer Ames noticed a Fairchild Air Force Base sticker on the car's windshield. The officer rolled down his window, and the Mustang driver asked the officer whether he saw a white Jeep parked at the gas pumps. The Mustang driver went on to tell Officer Ames that the driver of the Jeep, a tall black man with a beard, asked him whether he wanted to buy Ecstasy. The officer recalled that he had seen the Mustang parked in the stall across from where the Jeep was now parked. The Mustang driver also identified himself as a member of the Air Force. He told the driver of the Jeep that he could not use or buy drugs because of his work in the Air Force. The Mustang driver was young, white, had short-cropped hair, and used the word "sir."
Officer Ames then noted that the Jeep was leaving the gas station in a hurry. Officer Ames did not ask the Mustang driver for his name before he left the parking lot to follow the Jeep. The officer caught up with and pulled over the Jeep. The driver matched the physical description given by the driver of the Mustang — a black man with a beard. The officer asked the driver, Derrick Gray, for a driver's license. Mr. Gray responded that he did not have one with him. Officer Ames related what the Mustang driver had said. Mr. Gray denied wrongdoing. The officer asked for Mr. Gray's consent to "briefly search [him] and the vehicle" to make sure that Mr. Gray was telling the truth. Report of Proceedings at 18. Mr. Gray refused to allow the search. Police dispatch then informed the officers that Mr. Gray had no driver's license. Officer Ames and a backup officer arrested Mr. Gray for first degree no valid operator's license and searched him incident to the arrest. They found 10 small baggies, each containing a blue pill and a red pill, in Mr. Gray's pocket. They also found $172 in cash. The officers informed Mr. Gray that he was under arrest for possession of Ecstasy with intent to deliver.
That same night Officer Ames contacted the front gate personnel at Fairchild Air Force Base. He gave the description of the Mustang, and asked the guards to stop the driver if he entered the base. The next morning, Officer Ames learned the man's name was Derek Terrill.
The State charged Mr. Gray with one count of possession of a controlled substance (methylenedioxymethamphetamine, or "Ecstasy") with intent to deliver. After receiving the lab results, the State later filed an amended information to charge one count of possession of a controlled substance (methylenedioxymethamphetamine, or "Ecstasy") with intent to distribute within 1,000 feet of a school bus route stop and one count of possession of a controlled substance (methamphetamine) with intent to distribute within 1,000 feet of a school bus route stop.
Mr. Gray moved to suppress the evidence collected following his arrest. The trial court granted his suppression motion and issued findings of fact and conclusions of law to support that decision. The trial court then dismissed the charges against Mr. Gray without prejudice. The State appeals the trial court's suppression order.
DISCUSSION
The State contends that the trial judge erred by applying Aguilar/ Spinelli criteria to the facts here. The State argues that the proper criteria for this investigative stop is the "totality of the circumstances" and, specifically, whether in light of the totality of the circumstances the officer had a reasonable and articulable suspicion that Mr. Gray was involved in criminal activity.
Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), abrogated by Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).
Mr. Gray agrees that the applicable standard is the totality of the circumstances. But he urges that the trial judge was correct when she concluded that a tip by an anonymous informant, without more, is not sufficient to justify an investigative stop under the totality of the circumstances standard.
We review a trial court's conclusions of law at a suppression hearing de novo. State v. Carter, 151 Wn.2d 118, 125, 85 P.3d 887 (2004). The State assigns no error to the trial court's findings of fact; they are then verities on appeal. State v. Gaines, 154 Wn.2d 711, 716, 116 P.3d 993 (2005).
The "totality of the circumstances" here consists of an uncorroborated tip by an anonymous informant. So, simply put, the question is whether the uncorroborated tip of an anonymous informant is sufficient to support the reasonable and articulable suspicion necessary to justify the stop here. We agree with the trial judge. It is not.
The State challenges the trial court's Conclusions of Law 1, 2, and 3. Conclusion 1 states:
In order to constitutionally stop and detain Mr. Gray for alleged criminal activity based on the tip of the unidentified informant driving the older white Mustang, Officer Ames is required to have had reasonable suspicion, based on objective facts, that Mr. Gray was involved in the criminal activity alleged by the informant. When acting on the tip of an informant, unidentified at the time, this means there has to be some indicia that the informant is a credible or reliable source, and there is a sufficient factual basis supporting the reliability of the informant's tip.
Clerk's Papers (CP) at 63-64. The court concluded in Conclusion of Law 2 that there was "insufficient evidence that the informant was a credible or reliable source at the time of the stop of Mr. Gray's vehicle, and his subsequent detention." CP at 64. And the court in Conclusion of Law 3 suppressed the evidence gathered during the stop and Mr. Gray's arrest. CP at 64.
Warrantless searches and seizures are as a general rule unreasonable. State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999). "[A] stop, although less intrusive than an arrest, is nevertheless a seizure and therefore must be reasonable under the Fourth Amendment and article 1, section 7 of the Washington Constitution." State v. Kennedy, 107 Wn.2d 1, 4, 726 P.2d 445 (1986). And "[i]f the initial stop was unlawful, the subsequent search and fruits of that search are inadmissible." Id. (citing Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)). A police officer may legally conduct a brief Terry investigatory stop if the officer has "a reasonable and articulable suspicion that the individual [stopped] is involved in criminal activity." State v. Walker, 66 Wn. App. 622, 626, 834 P.2d 41 (1992). A reasonable suspicion is the "substantial possibility that criminal conduct has occurred or is about to occur." Kennedy, 107 Wn.2d at 6.
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
An informant's report may provide the necessary reasonable suspicion for police to conduct an investigatory stop. State v. Sieler, 95 Wn.2d 43, 47, 621 P.2d 1272 (1980). The Aguilar/Spinelli test for reliability of an informant's tip, in the context of determining whether the police acted with probable cause, requires two showings: (1) that the informant had a sufficient basis of knowledge, and (2) the informant's veracity. State v. Duncan, 81 Wn. App. 70, 76, 912 P.2d 1090 (1996). But this standard does not apply to investigative stops; the "totality of the circumstances" standard applies. Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). And that means that, "[t]he reasonableness of the officer's suspicion is determined by the totality of the circumstances known to the officer at the inception of the stop." State v. Rowe, 63 Wn. App. 750, 753, 822 P.2d 290 (1991); see also State v. Lee, 147 Wn. App. 912, 917, 199 P.3d 445 (2008).
To decide whether an informant's tip provides the reasonable suspicion necessary to justify an investigatory stop, we ask whether the tip has sufficient "indicia of reliability." State v. Marcum, 149 Wn. App. 894, 903-04, 205 P.3d 969 (2009). Those indicia include: "`[1] . . . circumstances suggesting the informant's reliability, or some corroborative observation which suggests either [2] the presence of criminal activity or [3] that the informer's information was obtained in a reliable fashion.'" Sieler, 95 Wn.2d at 47 (quoting State v. Lesnick, 84 Wn.2d 940, 944, 530 P.2d 243 (1975)). None of these is present here.
Officer Ames did not see Mr. Gray speaking with Mr. Terrill. The State offers as corroborating observations (1) that Mr. Gray was parked at a gas pump near the gas pump where Officer Ames had seen the white Mustang and (2) that Officer Ames saw Mr. Gray accelerate rapidly away from the gas station. These do not sufficiently suggest the presence of criminal activity and do not then independently support the anonymous informant's tip. Sieler, 95 Wn.2d at 47.
The showing here is substantially less corroboration than in cases where courts have found an informant's tip adequate.
For example in Lee, a case relied on by the State, the officer himself witnessed a vehicle pull up to a woman, and he witnessed the woman speaking briefly with the occupants. 147 Wn. App. at 914-15. The woman became an informant when the officer approached her to inquire if she was all right, given that she appeared upset after the interaction with the car's occupants. Id. at 915. In another recent case, Marcum, the police considered the confidential informant's tip reliable based on the informant's past tips. 149 Wn. App. at 905-06. And in Kennedy, the informant had worked with the police for several months and was known to have provided information that led to a warrant and conviction. 107 Wn.2d at 8.
The court applied the correct legal standard, the "totality of the circumstances," appropriately. CP at 63 (concluding that insufficient indicia of reliability were present in the circumstances here); Sieler, 95 Wn.2d at 47. We, therefore, affirm the order suppressing the drug evidence and the dismissal of the charges against Mr. Gray.
A majority of the panel has determined that this opinion will not be printed in the
Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KULIK, A.C.J. and BROWN, J., concur.