Opinion
No. 52208-6-I (consolidated with 52211-6-I)
Filed: November 15, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Whatcom County. Docket No: 01-1-01125-4. Judgment or order under review. Date filed: 04/02/2003. Judge signing: Hon. Michael F Moynihan.
Counsel for Appellant(s), Starck M. Follis, Attorney at Law, 412 N Commercial St., PO Box 5846, Bellingham, WA 98227-5846.
Jill S. Bernstein, Bernstein Bartek, 222 Grand Ave Ste F, Bellingham, WA 98225-4427.
Counsel for Respondent(s), Philip James Buri, Buri Funston PLLC, 1601 F Street, Bellingham, WA 98225-3011.
Rosemary Hawkins Kaholokula, Whatcom Cty Pros Atty Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
Hilary A. Thomas, Whatcom County Prosecutors Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
An investigatory stop by border agents may be based on an anonymous tip if there are adequate indicia of the tip's reliability, and the totality of the circumstances support a reasonable suspicion of criminal activity. Because the anonymous tip received by border agents in this case was supported by indicia of reliability, and because the tip was only one of several facts supporting the agents' suspicion of criminal activity, we affirm both the denial of appellants' motion to suppress the fruits of the detention and their convictions for possession with intent to deliver.
FACTS
On October 14, 2001, Border Patrol Agents Michael Marcinko and Daryl Schermerhorn stopped a vehicle occupied by Suzanne Tritch and David Peters near the Canadian border. The agents found 30 pounds of marijuana in a hockey bag in the trunk of the car. The State charged appellants with possession of marijuana with intent to deliver. Appellants then moved to suppress the physical evidence, arguing that it was the fruit of an unlawful investigatory detention. At the suppression hearing, agent Marcinko testified that on October 14, 2001, he and agent Schermerhorn were patrolling the Canadian border near Lynden, Washington. The agents were parked in the vicinity of Boundary Road and Zero Avenue an area known for narcotics smuggling and frequent illegal crossings when they received a dispatch report of a border crossing. The report indicated that a caller had `just witnessed a vehicle stop on Zero Avenue . . . and that a male subject had exited the vehicle and run south into the United States with a large duffle bag and then hid in a ditch.' The report did not identify the caller. Agent Marcinko testified that there were residents in the area and that the agents commonly received that type of call.
While en route to the area of the reported crossing, the agents received a second report. This time, the caller stated that a red car `had picked up the subject' on the United States side of the border and that the car was leaving the area. The caller said the car had a British Columbia license plate and identified the license number. As they approached the crossing area, the agents asked two youths if they had seen a car go by. The witnesses said a red car `had just gone by,' and indicated its direction. Two to four minutes after receiving the second dispatch report, Agent Schermerhorn radioed that he had located a red car.
Agent Schermerhorn testified that when he found the red car, it was in a location consistent with a car leaving the border at the time of the second dispatch report. Initially, he could not see a license plate because there were two vehicles, including a motor home, between his patrol car and the suspects' car. Schermerhorn turned on his overhead and wigwag lights in an attempt to get the motor home to pull over so he could pass. Although he did not intend to stop the red car, all three cars pulled to the shoulder. Schermerhorn observed two occupants in the red car. As he parked behind it, he confirmed that the license plate matched the number in the dispatch report. A search disclosed a hockey bag in the trunk containing 30 pounds of marijuana.
In denying the motion to suppress, the superior court concluded that the tips `were sufficiently corroborated in their details' and that, under the totality of the circumstances, the agents had a reasonable suspicion of criminal activity. Appellants were subsequently convicted as charged.
DECISION
The sole issue before us is whether the superior court erred in denying appellants' motion to suppress. Because this issue involves the conduct of border agents acting in their official capacity, we apply federal precedent. We review the denial of appellants' suppression motion de novo.
See State v. Bradley, 105 Wn.2d 898, 902-03, 719 P.2d 546 (1986) (holding that because federal agents enforce border laws, "[n]either state law nor the state constitution can control federal officers' conduct").
See United States v. VonWillie, 59 F.3d 922, 925 (9th Cir. 1995).
Appellants contend agents Marcinko and Schermerhorn lacked sufficient grounds to stop and detain them. In general, a stop by border agents does not violate the Fourth Amendment if the agents are aware of articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicle's occupants are engaged in criminal activity. When, as in this case, the stop is based in part on an anonymous tip, the lawfulness of the stop is governed by a trio of United States Supreme Court decisions.
United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975).
In the landmark case of Illinois v. Gates, the police received an anonymous letter stating that a husband and wife sold drugs. The letter stated that the wife would drive to Florida and load the car with drugs while her husband would fly down and drive the car back. After police independently confirmed most of the letter's predictions, they searched the suspects' vehicle and found 350 pounds of marijuana. In addressing whether the anonymous tip provided probable cause to arrest, the Supreme Court adopted a new test based on the "totality of the circumstances." Although the Court discarded the approach it had previously taken in Aguilar v. Texas and Spinelli v. United States, the critical factors in those cases the informant's veracity, reliability, and basis of knowledge remained "highly relevant" to the inquiry.
462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).
Id. at 233.
378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964).
393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969).
Gates, 462 U.S. at 230; Alabama v. White, 496 U.S. 325, 328, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990).
Applying the totality of the circumstances test to the facts before it, the Gates court observed that the letter gave no indication that the tipster was reliable, or that there was a basis for the tipster's knowledge. The Court held, however, that the tip was reliable under the totality of the circumstances since independent police observation confirmed almost all of the tip's details. Because the informant was "right about some things, he [was] more probably right about other facts' . . . including the claim regarding the [defendant's] illegal activity.'
Gates, 462 U.S. at 227.
Id. at 244.
Id. (citation omitted) (quoting Spinelli, 393 U.S. at 427 (White, J. concurring)).
In Alabama v. White, the Court applied the Gates test in the context of an investigatory detention. The police in White received an anonymous tip that Vanessa White would be leaving a particular apartment at a particular time in a brown Plymouth station wagon with a broken right taillight. The tipster said White would drive to Dobey's Motel and that she would have an ounce of cocaine inside a brown leather attach` case. The police then observed a woman leave the apartment and drive away in a brown Plymouth with a broken right taillight. When the car pulled onto the street where Dobey's Motel was located, the police stopped it and requested consent to search. White consented, and the police found cocaine in a brown attach` case.
White, 496 U.S. at 328-29 ("These factors are also relevant in the reasonable-suspicion context, although allowance must be made in applying them for the lesser showing required to meet that standard.").
Id. at 327.
Id.
Id.
The White court held that the tip alone was insufficient to establish a reasonable suspicion of criminal activity. Nevertheless, the Court concluded the tip was supported by sufficient indicia of reliability because the police corroborated most of its details, including predictions that the suspect would leave the building, get into her car, and drive to the motel. "What was important was the caller's ability to predict respondent's future behavior, because it demonstrated inside information a special familiarity with respondent's affairs."
Id. at 329.
Id. at 331-32.
Id. at 332 (emphasis omitted).
Ten years later, the Court decided Florida v. J.L. The anonymous caller in that case said a young black male was standing at a particular bus stop, wearing a plaid shirt, and carrying a gun. After the police confirmed that a man in a plaid shirt was standing at the bus stop, they detained him and found a gun in his pocket. Declaring the detention unlawful, the Court held that the tip did not have sufficient "indicia of reliability" to support a reasonable suspicion that the man had a gun. The tip revealed only that the caller could reliably identify the suspect, not that the caller had reliable information regarding concealed criminal conduct. Contrasting the case before it with the facts in White, the court noted that the tip contained no predictions of future activity by which the police could test the informant's reliability.
529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000).
Id. at 268.
Id. at 270.
Id. at 272.
Id. at 270-71.
Citing White and J.L., appellants contend the agents in this case lacked a reasonable suspicion of criminal activity because the anonymous tip `supplied no prediction of future activity' and, therefore, `no conclusions could be drawn as to the informant's knowledge of the suspect's personal affairs.' But police corroboration of predictions in an anonymous tip is not the only way to demonstrate a tip's reliability.
See, e.g., United States v. Perkins, 363 F.3d 317, 324-25 (4th Cir. 2004) (stating that `in neither White nor J.L. did the Court hold that confirmation of predictive information is the only way to assess the reliability of an anonymous tip' and holding that caller reporting that men were displaying and pointing rifles in a residential neighborhood `was clearly in a position to know about the reported activity'), petition for cert. filed August 9, 2004; United States v. Wheat, 278 F.3d 722, 734 (8th Cir. 2001) (noting that "White did not create a rule requiring that a tip predict future action, and neither did J.L.") (citation omitted) (emphasis omitted), cert. denied, 537 U.S. 850 (2002); United States v. Johnson, 64 F.3d 1120, 1125 (8th Cir. 1995) (noting that Alabama v. White "does not create a rule requiring that a tip predict future action," and pointing out that such a rule would be inconsistent with the totality-of-the-circumstances approach to determining reasonable suspicion), cert. denied, 516 U.S. 1139 (1996); United States v. Nelson, 284 F.3d 472, 483-84 (3d Cir.) (while "predictive information can demonstrate particularized knowledge [as required in White and J.L.], other aspects of the tip can reflect particularized knowledge as well."), cert. denied, 537 U.S. 940 (2002).
Courts have held that facts demonstrating that an informant is an eye witness support the informant's basis of knowledge and the tip's reliability. Here, the facts indicate that the tipster was an eye witness reporting events as they occurred. As noted above, there were two anonymous calls about the crossing. The record supports an inference that these calls were made by the same person, and the sequential nature of the reports supports an inference that the caller was witnessing and reporting events as they unfolded. These facts enhance the reliability of the tip. In addition, unlike the officers' independent observations in J.L., the agents' observations in this case added to the tip. In J.L., the location of the suspect was an innocuous fact, the corroboration of which said nothing about J.L.'s criminal activity. But in a border crossing case, the location of the suspects is central to the allegation of criminal activity. Here, the suspects' location at the time of the stop and the information the agents received from the child witnesses allowed them to trace the path of the red vehicle to a point very near the crossing area identified in the tip. While not evidencing criminal activity per se, these facts tended to corroborate the information in the tip and strengthened the agents' suspicion of criminal activity. The suspects' location was also significant because the area was known for illegal crossings and drug smuggling.
See, e.g., United States v. Barnard, 299 F.3d 90, 93 (1st Cir. 2002) (`The credibility of an informant is enhanced to the extent he has provided information that indicates first-hand knowledge.'); United States v. Taylor, 985 F.2d 3, 6 (1st Cir.) ("reliability of informant enhanced if detailed and derived from informant's personal observation, rather than hearsay")), cert. denied, 508 U.S. 944 (1993); Gates, 462 U.S. at 234 (stating that the informant's "explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles his tip to greater weight than might otherwise be the case"); Wheat, 278 F.3d at 729-37 (surveying and concurring with cases that find J.L. distinguishable from cases involving eyewitness tips); United States v. Perkins, supra; United States v. Bold, 19 F.3d 99, 103 (2d Cir. 1994).
The agents testified that the second tip stated that `the subject' had gotten into a red car. This strongly suggests that the second call was an update from the same caller. But even if the calls were from different people, the receipt of multiple reports tends to show reliability as well. See People v. Coulombe, 86 Cal. App. 4th 52, 57-58, 102 Cal. Rptr. 2d 798 (2000).
In cases involving stops by border agents, federal courts have held that the fact that the stop occurred in close proximity to the border tends to support an investigatory detention. Brignoni-Ponce, 422 U.S. at 884-85.
Id.
Id.; United States v. Zapata-Ibarra, 212 F.3d 877 (5th Cir.) (proximity to border and road's reputation as a smuggling route added to reasonable suspicion), cert. denied, 531 U.S. 972 (2000).
Finally, this was a fairly detailed tip that included an accurate reference to a ditch at a particular point on the border, a correct license number, and identification of an item commonly used by drug smugglers at this border a large duffel bag. When viewed in light of the agents' experience, these aspects of the tip tended to show the informant's personal knowledge and the reliability of the tip.
Both agents had approximately 10 years' experience.
State v. Marshall, 870 S.W.2d 532, 540 (Tenn.Crim.App. 1993), overruled on other grounds by State v. Carter, 988 S.W.2d 145 (Tenn. 1999) (officers' knowledge of the manner in which drugs were sold at that location and of the defendant's history of arrests in combination with their observations of the defendant's actions sufficiently corroborated the informant's tip); United States v. Ramirez-Sandoval, 872 F.2d 1392, 1395 (9th Cir. 1989) (founded suspicion based on reliable informant's tip that defendant was engaging in unlawful activity and officer's knowledge of the common mode of criminal operation).
In summary, we conclude that when viewed from the standpoint of experienced border agents, the totality of the circumstances in this case supported a reasonable suspicion of criminal activity. The trial court did not err in upholding appellants' investigatory detentions and denying their motions to suppress.
United States v. Magana, 797 F.2d 777, 780 (9th Cir. 1986) (In reviewing the agents' actions, the totality of the circumstances must be viewed from the perspective of someone trained in law enforcement.).
We note that even if we found no indicia of the tip's reliability, it would still be entitled to some weight and, when considered with other factors, might still support the investigatory detention. See United States v. Fernandez-Castillo, 324 F.3d 1114, 1117 (9th Cir.), cert. denied, 124 S. Ct. 418 (2003) (`Even if unreliable, the tip would still be entitled to some weight under the totality of the circumstances test.'); United States v. Villalobos, 161 F.3d 285, 291 (5th Circ. 1998) (`Moreover, even assuming that the tip alone was too unreliable to justify a stop, it contributes, along with the other Brignoni-Ponce factors, to the agents' particularized suspicion of the truck.').
Affirmed.
AGID, J., ELLINGTON, A.C.J. and APPELWICK, J., Concur.