Opinion
Docket No. 24551
Filed August 5, 1999 Reversed. See State v. Hankey, 134 Idaho 844, September 08, 2000.
Appeal from the District Court of the First Judicial District, State of Idaho, Boundary County. Hon. James R. Michaud, District Judge.
Order denying motion to suppress evidence, reversed.
Roger L. Williams, Sandpoint, for appellant.
Hon. Alan G. Lance, Attorney General; Rebekah A. Cude, Deputy Attorney General, Boise, for respondent.
Paul Albert Hankey appeals from his judgment of conviction for felony driving under the influence of alcohol (DUI), Idaho Code § 18-8005(7). Hankey contends that the police obtained the evidence against him through an improper investigatory stop. Upon the district court's denial of Hankey's motion to suppress this evidence, Hankey pleaded guilty but preserved the right to appeal the denial of the suppression motion. We conclude that the State did not meet its burden of establishing that the investigatory stop was based upon a reasonable articulable suspicion of criminal activity. Therefore, we reverse.
BACKGROUND
Idaho State Police Patrolman Zimmerman was patrolling Highway 95 in Boundary County on a July evening. As he went by the highway's intersection with Camp Nine Road he observed a blue Mazda pickup on Camp Nine Road. There was a male driver and a child passenger in the pickup, which was slowly following a woman and a child who were walking along the roadside. Officer Zimmerman thought this was "odd" but did not stop to investigate. Very shortly after Zimmerman observed the pickup and the pedestrians, he received a message from the Boundary County Sheriff's dispatcher stating that there was "a domestic" involving a blue Mazda pickup at the intersection of Highway 95 and Camp Nine Road. In reaction to the dispatch, Officer Zimmerman reversed direction. When he saw the pickup again it was parked on the side of the road with the woman who had previously been walking now in the driver's seat and the male who had previously been driving now in the passenger's seat. Zimmerman made a U-turn and, as he started to pull in behind the pickup, the pickup moved out onto the highway. Zimmerman then used his flashing lights to effectuate a stop of the pickup and made contact with its occupants. He noticed that the man, later identified as Hankey, had red eyes and a strong odor of alcohol on his breath. Hankey admitted he had been drinking and submitted to a breath alcohol test, which revealed an alcohol concentration of .16. Hankey was charged with felony DUI.
Hankey filed a motion to suppress evidence derived from the stop of his vehicle. At the hearing on this motion, the State called only one witness, Officer Zimmerman, who testified to the foregoing facts. With respect to the dispatch that prompted him to stop Hankey's vehicle, the only testimony was as follows:
A: Just — just about the time the Camp Nine Road got out of sight in my rearview mirror, I received a call from the county that there was a domestic involving —
[Objection made and overruled.]
Q: What was that information?
A: The people involved in the domestic had a blue Mazda pickup and were at the intersection of 95 and Camp Nine Road.
No evidence was presented regarding the source of the dispatcher's information.
In denying Hankey's suppression motion, the district court held that the dispatch message, together with Officer Zimmerman's observations of the peculiar operation of the vehicle moments earlier, was sufficient to create a reasonable, articulable suspicion of criminal activity that justified the investigatory stop.
On appeal, Hankey argues that because the State presented no evidence of the source or content of the information that prompted the dispatch, it did not meet its burden of proving reasonable suspicion.
ANALYSIS
Our standard of review in evaluating a suppression motion is one of deference to factual findings of the trial court unless they are clearly erroneous, while giving free review to the trial court's determination as to whether constitutional requirements have been satisfied in light of those facts. State v. Morris, 131 Idaho 562, 565, 961 P.2d 653, 656 (Ct.App. 1998); State v. Pick, 124 Idaho 601, 603, 861 P.2d 1266, 1268 (Ct.App. 1993); State v. Heinen, 114 Idaho 656, 658, 759 P.2d 947, 949 (Ct.App. 1988). In this case, the facts are uncontroverted, and we therefore are presented with purely an issue of law as to whether the evidence presented by the State sufficed to show that the stop met constitutional standards.
The Fourth Amendment to the United States Constitution prohibits unreasonable seizures of persons or property. The "seizure" of a person occurs "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968). See also California v. Hodari D., 499 U.S. 621 (1991); State v. Agundis, 127 Idaho 587, 590-92, 903 P.2d 752, 755-57 (Ct.App. 1995). Stopping an automobile and detaining its occupants is a "seizure" within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 654 (1979); State v. Sevy, 129 Idaho 613, 614-15, 930 P.2d 1358, 1359-60 (Ct.App. 1997); State v. Luna, 126 Idaho 235, 237, 880 P.2d 265, 267 (Ct. App. 1994). When the validity of such a detention is challenged by a defendant, the burden is cast upon the State to prove a proper justification for the stop. United States v. Jeffers, 342 U.S. 48, 51 (1951); State v. Haworth, 106 Idaho 405, 406, 679 P.2d 1123, 1124 (1984). To pass constitutional muster, an investigative stop must be justified by a reasonable suspicion, derived from specific articulable facts, that the person to be stopped has committed or is about to commit a crime. Florida v. Royer, 460 U.S. 491, 498 (1983); Sevy, supra. The reasonableness of a stop is evaluated upon the totality of the circumstances at the time of the stop. United States v. Cortez, 449 U.S. 411, 417 (1981); State v. Osborne, 121 Idaho 520, 526, 826 P.2d 481, 487 (Ct.App. 1991). "Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." Cortez, 449 U.S. at 417-18 (1981).
This does not mean that the officer effectuating the stop must have knowledge of all of the facts that justify the action. In United States v. Hensley, 469 U.S. 221 (1985), the United States Supreme Court held that an officer who makes an investigatory stop in reliance upon a report or bulletin from another law enforcement officer or agency need not have personal knowledge of the facts that underlay the report so long as the person who generated the report possessed the requisite reasonable suspicion. Id. at 231-233. The Court explained that the admissibility of evidence derived from the stop turns not upon whether the officer who acted in reliance upon a report or bulletin possessed reasonable suspicion, but on whether the officer who issued the report or bulletin had knowledge of articulable facts supporting a reasonable suspicion that the person to be stopped is or has been involved in criminal activity. "If the flyer has been issued in the absence of reasonable suspicion, then a stop in the objective reliance upon it violates the Fourth Amendment." Id. at 232.
At issue in Hensley was the stop of a person by a police officer in reliance on a "wanted" flyer issued by another police department.
The Supreme Court also pointed out that if justification for the flyer was lacking, officers making the stop in reasonable reliance upon the flyer "may have a good-faith defense to any civil suit." Hensley, 469 U.S. at 232.
Thus, while officers at the scene may properly act on directions or information from another officer and "cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information," id. at 231 (quoting United States v. Robinson, 536 F.2d 1298, 1299 (9th Cir. 1976)), if the defendant seeks suppression of derivative evidence, it is incumbent upon the State to prove that the directive or report was justified by reasonable suspicion. Mere evidence that the officer effectuating a stop acted in reasonable reliance on a radio dispatch does not discharge this burden. See, e.g., State v. Bailey, 452 N.W.2d 181, 183 (Iowa 1990) (testimony by stopping officer that he received radio dispatch insufficient to establish reasonable suspicion); State v. Norfolk, 966 S.W.2d 364, 367 (Mo. 1998) (officer's reliance on "hot sheet" for suspicion that vehicle was stolen insufficient to establish reasonable suspicion); State v. Black, 721 P.2d 842, 844 (Or.App. 1986) (assumption by stopping officer that dispatch was based upon reliable source insufficient to establish reasonable suspicion). A contrary holding would render the Fourth Amendment requirement of reasonable suspicion meaningless, for "police could simply filter a `hunch' through a radio or cellular phone and have it come out reliable on the other end." State v. Miller, 894 S.W.2d 649, 653 (Mo. 1995).
A dispatcher's report may be based upon a variety of sources, ranging from another officer to a completely anonymous telephone tip. Whether reasonable suspicion is supplied in an informant's tip depends upon the content and reliability of the information presented by the tipster, including whether the tipster reveals his or her identity and basis of knowledge. See Alabama v. White, 496 U.S. 325 (1990); Illinois v. Gates, 462 U.S. 213, 230 (1983). Even if the tip, standing alone, is insufficient, it may contribute to the necessary reasonable suspicion when coupled with an the officer's own corroboration of significant details of the tip. White, supra.
Whatever the source, if the State relies upon a dispatcher's message or other police communication to justify an investigative stop, the State must present evidence of the information that formed the basis for the communication. Hensley, supra. This may be accomplished, for example, through testimony of the dispatcher, through testimony of the person who witnessed the events that were reported to the dispatcher, or through a recording or transcript of an informant's call to the dispatcher. Only with such evidence can the trial court determine whether the information prompting the dispatch, standing alone, created reasonable suspicion, or alternatively, whether the collective knowledge of the dispatcher and the stopping officer amounted to reasonable suspicion. By way of illustration, in Sevy, supra, we held that the stop of the defendant for investigation of theft in reliance upon a dispatch report was unlawful because the information received by the dispatcher through a citizen's report did not amount to reasonable suspicion that the defendant had engaged in theft or other criminal activity.
Given the foregoing principles, we are constrained to hold that the State did not meet its burden to establish reasonable suspicion for Officer Zimmerman's stop of Hankey. The State presented no evidence of any facts justifying the dispatch report of a "domestic" involving people in a blue Mazda pickup. There was no evidence of the source of the dispatcher's information, whether it was another law enforcement officer, an identified citizen informant or an anonymous informant, nor was there any evidence of what this source reportedly observed or heard. Absent such evidence, there is nothing from which a court could determine that the reported information was reliable or was sufficiently indicative of domestic violence to create reasonable suspicion. Consequently, the dispatch cannot be relied upon as supplying reasonable suspicion for Hankey's detention.
Because the State did not prove reasonable suspicion through evidence related to the dispatch report, we have examined Officer Zimmerman's own observations of Hankey's vehicle to determine whether those observations provided reasonable suspicion for the stop. He saw the vehicle being driven slowly along a rural road behind a woman and a child who were walking along the roadside. He did not see evidence of any violence or argument, and did not observe that any of the individuals appeared to be in distress. Officer Zimmerman did not indicate in his testimony that the manner in which the vehicle was being driven constituted a traffic hazard or violated any traffic laws. Accordingly, we hold that Officer Zimmerman's observations, standing alone, do not supply the requisite reasonable suspicion for an investigative stop.
This does not end our inquiry, for we must consider another possible justification, apart from investigation of criminal activity, for Officer Zimmerman's stop of the Hankey vehicle. Police may, without offending the Fourth Amendment, carry out brief detentions as part of their community caretaking function. Cady v. Drombowski, 413 U.S. 433, 441-42 (1973); State v. Clayton, 113 Idaho 817, 818, 748 P.2d 401, 402 (1988). This function derives from police officers' duty to promote public safety and help citizens in need of assistance. Cady, supra; State v. Wixom, 130 Idaho 752, 754, 947 P.2d 1000, 1002 (1997); Clayton, supra. Thus, if an officer perceives a medical emergency or some other immediate need for police assistance, the officer may take reasonable steps to investigate the situation further. Id.
In this case, there is no evidence that Officer Zimmerman perceived that the occupants of the Hankey vehicle were in need of assistance at the time he stopped the pickup. The evidence does not suggest that, to Officer Zimmerman's observation, any of the individuals appeared upset or in distress. None of the vehicle occupants signaled for the officer to stop when he initially drove by. Officer Zimmerman testified that when he saw the woman and child walking in front of the pickup, he merely though it "odd," not a cause for concern. When he returned and pulled in behind the pickup, the pickup was simultaneously moving away from the shoulder of the road, indicating that it was not disabled. We see nothing in this evidence that would warrant an officer's conducting a detention for a community caretaking purpose.
We pause here for a further comment regarding police/citizen encounters. Not all police contacts with citizens implicate Fourth Amendment rights or require justification. Police are free to approach people in public places and ask them questions, so long as the encounter remains consensual. As we explained in State v. Osborne, 121 Idaho 520, 523-24, 826 P.2d 481, 484-85 (Ct.App. 1991):
A seizure does not occur simply because a police officer approaches an individual on the street or other public place, by asking him if he is willing to answer some questions, or by putting questions to him if he is willing to listen. Florida v. Bostick, ___ U.S. ___, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Unless and until there is a detention, there is no seizure within the meaning of the fourth amendment and no constitutional rights have been infringed. Royer, 460 U.S. at 498, 103 S.Ct. at 1324. . . . Thus, where an officer merely approaches a person who is standing on the street, or seated in a non-moving vehicle located in a public place, and poses a few questions, no seizure has occurred. See United States v. Castellanos, 731 F.2d 979 (D.C. Cir. 1984); United States v. Woods, 720 F.2d 1022 (9th Cir. 1983). This is so because the person approached need not answer any question put to him and may decline to listen to the questions at all and go about his business. See Royer, 460 U.S. at 497-98, 103 S.Ct. at 1324. Thus, in determining whether an individual is `seized' within the meaning of the fourth amendment, the critical inquiry is whether, taking into account all of the circumstances surrounding the encounter, `the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.' Bostick, ___ U.S. at ___, 111 S.Ct. at 2387, quoting Michigan v. Chesternut, 486 U.S. 567, 569, 108 S.Ct. 1975, 1977, 100 L.Ed.2d 565 (1988).
Accordingly, if Hankey's vehicle had been parked beside the road, Officer Zimmerman could have stopped and inquired whether assistance was needed without infringing Fourth Amendment rights. The constitutional intrusion occurred here because Officer Zimmerman forced a stop of Hankey's moving vehicle by activating his patrol car's emergency lights. Because of its nonconsensual nature, the encounter here constituted a seizure for Fourth Amendment purposes.
Had the driver of Hankey's vehicle failed to stop, she would have been guilty of a 3 misdemeanor. I.C. § 49-1404(1).
CONCLUSION
At the suppression hearing the State presented no proof of the factual basis of the dispatcher's report, which could demonstrate reasonable suspicion for Hankey's detention. Nor did the independent personal observations of the stopping officer supply the requisite justification for the stop. Accordingly, we reverse the district court's denial of Hankey's suppression motion. The judgment of conviction is vacated, and the case is remanded to the district court.
Chief Judge PERRY CONCURS.
I respectfully dissent, although admittedly, this is a close case. I am in general accord with the constitutional analysis articulated in the majority opinion in the area of Fourth Amendment investigatory traffic stops, but would reach a different conclusion under the totality of the circumstances.
I agree that, standing alone, neither the dispatch of a "domestic" nor the officer's observations would justify the stop that took place. But taken together, I would uphold this mildly intrusive investigative stop under a combination of "reasonable suspicion" and/or "community caretaking function."
While the State should have offered the dispatch into evidence, in its absence I would still be willing to give some evidentiary credence to its existence, albeit at the lowest level. In other words, I would be willing to assume that such a telephone dispatch was actually received and transmitted to the officer, and that it came from some anonymous citizen concerned over a domestic situation, i.e. dispute. This anonymous and conclusionary information was, however, immediately corroborated in terms of time, place, make/model of pickup, and the compelling oddity of the pickup following a woman and child along the roadside. I think this is enough to justify an investigatory stop, especially after the stopped vehicle pulled away when the officer made his U-turn. See Alabama v. White, 496 U.S. 325, 329-332 (1990) (anonymous tip sufficiently corroborated to furnish reasonable suspicion to justify Terry stop; reasonable suspicion less demanding standard than probable cause, both in terms of quantity and content of information, as well as in reliability thereof).
Here, in my opinion, the officer had sufficient corroborative information at his disposal to justify further action to inquire into the well-being of the woman and children. Accordingly, I would uphold the constitutional validity of the stop and the denial of Hankey's motion to suppress.