City of Wenatchee v. Stearns

568 P.3d 658

• Court: Washington Supreme Court
• Decided: May 15, 2025
• Docket: 102,680-3
• Status: Published

Opinion

FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON MAY 15, 2025

IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON SARAH R. PENDLETON MAY 15, 2025 SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

CITY OF WENATCHEE, No. 102680-3 Petitioner, EN BANC v.

FRANK EDWARD STEARNS, File: May 15, 2025 Respondent.

STEPHENS, C.J.—Every day across Washington, people call 911 to report

suspected criminal activity and police are dispatched to follow up. Courts recognize

that the reliability of such calls or “tips” cannot be taken for granted. False reports,

whether intentionally made or resulting from human bias or misperception, can lead

to privacy violations and threaten public safety. We therefore require that police

establish the reliability of a tip before using it as basis for reasonable suspicion or

probable cause justifying a search or seizure. This case provides an opportunity to

clarify our analysis, in particular the distinction between the tipster’s basis of

knowledge and the tip’s factual basis. Wenatchee v. Stearns, No. 102680-3

Police stopped Frank Edward Stearns on suspicion of driving under the

influence (DUI) after a 911 caller reported that he seemed drunk and was “staggering

all around the place” in a parking lot. Clerk’s Papers (CP) at 17. The trial court

found the stop to be justified but the reviewing courts reversed.

We hold that this stop was lawful. The tip received in the 911 call was reliable

because the caller was a bystander giving a contemporaneous eyewitness report of

DUI to the emergency line, and the officer’s observations of Stearns’s driving

corroborated the caller’s report. Additionally, the caller’s description of Stearns

staggering all around the place both before and after driving, combined with the

officer’s observations of erratic driving, provided a sufficient factual basis for

reasonable suspicion of DUI. Accordingly, we reverse the Court of Appeals and

reinstate Stearns’s convictions.

FACTS

On July 12, 2019, the Wenatchee Police Department received a 911 call about

an incident in the parking lot of Cascade Motorsports on Worthen Street. 1 The caller,

David Gilliver, reported that a man “seemed very drunk” and was “staggering all

1 The record does not contain a transcript of the call or dispatch notes, so details of the call are taken from Officer BrinJones’s police report and her testimony at the suppression hearing. Officer BrinJones does not specifically describe this as a 911 call in her testimony or report, but both parties and all courts have referred to it as a 911 call at all levels of appeal. See, e.g., Pet. for Rev. at 10; Answer to Pet. for Rev. at 2; City of Wenatchee v. Stearns, No. 38981-2-III, slip op. at 2 (Wash. Ct. App. Nov. 28, 2023) (unpublished), https://www.courts.wa.gov/opinions/pdf/389812_unp.pdf. 2 Wenatchee v. Stearns, No. 102680-3

around the place.” CP at 17. Gilliver said that the man got inside his black crew cab

truck and drove it in the parking lot, got out of the truck and staggered again, and

got in his truck once more. He described this man as white and 35 years old, wearing

a gray hat, blue shirt, and jeans.

Officer Natalie BrinJones was dispatched to respond to the 911 call around

6:39 PM, and she reached the scene within a minute or two. She approached Gilliver,

who was standing next to his own black crew cab truck. As she got out of her car to

contact Gilliver, he pointed to the other black truck, which was about to pull out of

the parking lot, and said something to the effect of “‘That’s him! He’s wasted!’” CP

at 17.

Officer BrinJones could see through the open driver’s side window of the

truck pulling out of the parking lot that its driver fit the description in the 911 call.

She promptly started to follow the truck but, due to heavy traffic, ended up about

four cars behind the truck on Worthen Street. She could still see the truck and saw

it weave toward the center line, but she was too far behind to see whether it actually

crossed the center line. She also noticed the truck continued to gain distance from

her while she was traveling near the speed limit, leading her to believe the driver

was speeding. Her patrol vehicle was not equipped with radar, and she did not pace

the truck or otherwise directly measure its speed.

3 Wenatchee v. Stearns, No. 102680-3

In order to pass the cars between her and the truck, Officer BrinJones activated

her emergency lights, but she deactivated the lights before she was directly behind

the truck.2 She continued to follow the truck through a roundabout, the design of

which requires drivers to curve to the left while proceeding around the roundabout

and then curve to the right when exiting the roundabout onto a street. She observed

the truck almost hit the curb while exiting the roundabout but jerk at the last second

to correct its angle. She did not observe the truck’s tires actually hit the curb or cross

the center line.

Shortly after exiting the roundabout onto Riverside Drive, the truck appeared

to Officer BrinJones to begin pulling over. While the truck was stopping, Officer

BrinJones observed that the top brake light of the truck did not illuminate. She

activated her emergency lights in order to effect a traffic stop. The truck then began

driving forward on Riverside Drive again, continued for roughly 50 feet, and pulled

into a parking lot. As it did so, Officer BrinJones observed both of the truck’s driver

side tires roll over the curb. Now joined by Officer Graves in a car behind her, she

followed the truck and watched as it drove into two parking spots and pulled forward

so much that its front end was on the curb, blocking the sidewalk.

2 Stearns concedes that this use of emergency lights did not constitute a seizure because Officer BrinJones was far enough behind his truck when she deactivated the lights that he would not have reasonably believed he was being pulled over. Verbatim Rep. of Proc. (Sept. 19, 2019) at 42. 4 Wenatchee v. Stearns, No. 102680-3

The driver of the truck, Stearns, exited and began walking toward the officers.

Officer BrinJones commanded Stearns to show her his hands, and he “looked

confused at first.” CP at 18. He stumbled as he walked toward her and then put his

hands in the air. Officer Graves approached Stearns and handcuffed him, and Officer

BrinJones informed Stearns that he was under arrest for failure to obey a police

officer. She immediately noticed “an overwhelming odor of intoxicants”;

“bloodshot, watery, and droopy” eyes; and speech “so slurred [she] could barely

understand him.” Id. at 18-19. A search of Stearns’s name revealed that he had a

suspended license and was required to drive with an ignition interlock device;

officers did not find such a device in his truck. Stearns was taken to jail, and roughly

1 hour and 40 minutes after the 911 call, he provided breath samples that measured

his blood alcohol content at over three times the legal limit for DUI.

PROCEDURAL HISTORY

Stearns was charged with DUI, failure to obey a police officer, operating a

motor vehicle without a required interlock device, and driving with a suspended

license in the third degree. He moved to suppress evidence from the traffic stop,

arguing that the stop was not supported by reasonable suspicion of DUI. At the

evidentiary hearing, the city noted the faulty brake light as part of the totality of

circumstances providing reasonable suspicion to stop Stearns. The district court

denied the motion, acknowledging that it was a “close one.” Verbatim Rep. of Proc.

5 Wenatchee v. Stearns, No. 102680-3

(Oct. 8, 2019) at 97. It held that the stop was supported by reasonable suspicion of

DUI and that the faulty brake light alone would have provided independent

reasonable suspicion for a stop. Following a bench trial on stipulated facts, Stearns

was convicted of all charges except driving with a suspended license.

Stearns appealed, arguing that the district court erred in denying the

suppression motion, and the superior court reversed his convictions. While the court

found sufficient evidence supported the district court’s findings, it concluded the

traffic stop was unlawful for lack of reasonable suspicion. The court held that the

circumstances did not establish the reliability of the 911 caller’s tip, Officer

BrinJones did not sufficiently corroborate the tip, and the faulty brake light was not

an independent basis for the stop.

The city moved for discretionary review in the Court of Appeals. The Court

of Appeals granted review as to reasonable suspicion of DUI, but denied review as

to the determination that the faulty brake light was not an independent basis for the

stop. In a split, unpublished opinion, the Court of Appeals affirmed. City of

Wenatchee v. Stearns, No. 38981-2-III, slip op. at 1 (Wash. Ct. App. Nov. 28, 2023)

(unpublished), https://www.courts.wa.gov/opinions/pdf/389812_unp.pdf.

The city petitioned for review, arguing that the Court of Appeals analysis of

the reliability of the 911 call conflicts with our decision in State v. Z.U.E., 183 Wn.2d

610, 352 P.3d 796 (2015), which involved a 911 caller who reported a 17-year-old

6 Wenatchee v. Stearns, No. 102680-3

in possession of a firearm. We granted review and accepted amicus briefing from

the Washington Association of Criminal Defense Lawyers (WACDL) and the

Washington State Patrol.

ANALYSIS

“Warrantless seizures are presumed unreasonable” under both article I,

section 7 of the Washington State Constitution and the Fourth Amendment to the

United States Constitution, “and the State bears the burden of establishing that the

seizure falls within one of the carefully drawn exceptions to the warrant

requirement.” Z.U.E., 183 Wn.2d at 617. One exception is for brief investigative

stops, also known as “stop and frisk” or “Terry 3 stops.” State v. Acrey, 148 Wn.2d

738, 746, 64 P.3d 594 (2003). This type of stop “is permissible whenever the police

officer has a reasonable suspicion, grounded in specific and articulable facts, that the

person stopped has been or is about to be involved in a crime.” Id. at 747. “[C]ourts

consider the totality of the circumstances” to determine whether a stop is supported

by reasonable suspicion. Id. We review conclusions of law relating to the

suppression of evidence de novo. Id. at 745.

When reasonable suspicion is based on an informant’s tip, “the State must

show that the tip bears some ‘indicia of reliability’ under the totality of the

circumstances.” Z.U.E., 183 Wn.2d at 618. These indicia or reliability take the form

3 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). 7 Wenatchee v. Stearns, No. 102680-3

of either “(1) circumstances establishing the informant’s reliability” or “(2) some

corroborative observation, usually by the officers, that shows either (a) the presence

of criminal activity or (b) that the informer’s information was obtained in a reliable

fashion.” Id. (citing State v. Sieler, 95 Wn.2d 43, 47, 621 P.2d 1272 (1980); State v.

Lesnick, 84 Wn.2d 940, 944, 530 P.2d 243 (1975)). The informant’s veracity and

their basis of knowledge are not strictly necessary elements of proof, but we have

acknowledged these considerations “are helpful to the reliability inquiry.” Id. at 620.

Although our analysis of reliability follows the same framework as Fourth

Amendment law, “our state constitution generally requires a stronger showing by

the State.” Id. at 618. At the same time, we have recognized that “when a tip

involves a serious crime or potential danger, less reliability may be required for a

stop than is required in other circumstances.” Id. at 623.

We have long expressed caution in allowing intrusions into private affairs

based on tips, even those from reliable informants. No matter how reliable it is, the

State generally may not base a search or seizure on a “tip which is merely a bare

conclusion unsupported by a sufficient factual basis.” Sieler, 95 Wn.2d at 48. This

requirement helps prevent privacy violations resulting from a tip from “an honest

informant who misconstrued innocent conduct.” Id. Still, a “conclusory allegation”

in a tip may be sufficient if “it is corroborated” under the second or third criterion of

the reliability analysis. Id. at 48 n.1. This is likely because the corroborating

8 Wenatchee v. Stearns, No. 102680-3

observations independently supply the articulable facts for reasonable suspicion, not

because having a factual basis for the conclusion of criminal activity ceases to be an

important safeguard of private affairs.

As our analysis has developed in the case law, we have, at times, used the

phrase “factual basis” in a way that appears interchangeable with “basis of

knowledge.” For example, in Z.U.E., we resolved a split in the Court of Appeals by

holding that a tipster’s veracity and basis of knowledge are helpful but not necessary

elements to find that a tip is reliable. 183 Wn.2d at 620. In doing so, we noted that

the tip in Lesnick “lacked both veracity and factual basis” when the tipster refused

to identify himself and did not provide any information about the source of his

knowledge. Id. at 619. Our holding that the stop was unlawful did not turn on

reliability, though. We ultimately concluded that even if the 911 call was reliable,

the tip contained no factual basis for believing the defendant was 17 as opposed to

18 years old—the key fact making the alleged activity criminal. Id. at 622-23.

Uncertainty as to the difference between “basis of knowledge” and “factual

basis” is understandable because in many cases the informant’s tip lacks both a basis

of knowledge and a factual basis for the same reason. However, imprecise use of

these terms has caused litigants and courts to often conflate them. See, e.g., Pet. for

Rev. at 5-6 (arguing that the Court of Appeals erred in making “factual basis” a

necessary element); State v. Smith, No. 49998-3-II, slip op. at 11-12 (Wash. Ct. App.

9 Wenatchee v. Stearns, No. 102680-3

Oct. 2, 2018) (unpublished) (Maxa, J., dissenting) (criticizing majority for finding

tipster had reliable basis of knowledge but ignoring tipster’s lack of factual basis for

thinking defendant was engaged in criminal activity),

https://www.courts.wa.gov/opinions/pdf/D2%2049998-3-

II%20Unpublished%20Opinion.pdf.

We take this opportunity to clarify the definition of both terms and how they

fit into our analysis of reasonable suspicion. “Factual basis” refers to the

requirement for all Terry stops that “the police officer must be able to point to

specific and articulable facts which, taken together with rational inferences from

those facts, reasonably warrant that intrusion.” 392 U.S. at 21. Factual basis is

always necessary to establish reasonable suspicion arising from a tip, whether the

facts come from details in the tip itself, corroborating observations, or some

combination thereof. “Basis of knowledge” refers to how the tipster gathered their

facts, such as through their own senses (e.g., sight, sound, smell) or through a

particular means or intermediary (e.g., eavesdropping, looking through binoculars

or at the reflection in a mirror, hearing from a friend). As we reaffirmed in Z.U.E.,

basis of knowledge need not be shown in order to establish reasonable suspicion so

long as the totality of the circumstances indicate the tip’s reliability.

10 Wenatchee v. Stearns, No. 102680-3

Applying that analysis here, we consider whether Gilliver’s tip was reliable,

and then turn to whether Officer BrinJones had a sufficient factual basis for

reasonable suspicion of DUI.

I. The tip was reliable because Gilliver was a bystander reporting to 911 his personal observations of an active DUI as it happened, and Officer BrinJones’s observations corroborated his report

The circumstances surrounding a tip and the way it is communicated can

indicate its reliability. Z.U.E., 183 Wn.2d at 622. Many of the factors present here

were found in Z.U.E. to “bolster the reliability of the tip”: “the relayed call was made

by a citizen eyewitness, it was made contemporaneous to the unfolding of the events,

[and] it came through an emergency 911 line rather than the police business line.”

Id.; see also Navarette v. California, 572 U.S. 393, 134 S. Ct. 1683, 188 L. Ed. 2d

680 (2014) (holding that same factors supported reliability of anonymous tip).

Citizen informants4 “are deemed presumptively reliable.” State v. Gaddy, 152

Wn.2d 64, 73, 93 P.3d 872 (2004) (citing State v. Wakeley, 29 Wn. App. 238, 241,

628 P.2d 835, review denied, 95 Wn.2d 1032 (1981)). On the other hand, we have

said that anonymous informants are typically unreliable. See Lesnick, 84 Wn.2d at

944. In Sieler, we held that “the reliability of an anonymous telephone informant is

4 We use the term “citizen informant” to mean a bystander who appears uninvolved in the crime they are describing, as opposed to someone connected with the events, such as a confidential informant. We do not intend to make any distinction based on status as a United States citizen, nor do we read any prior cases using this term to have done so. 11 Wenatchee v. Stearns, No. 102680-3

not significantly different from the reliability of a named but unknown telephone

informant.” 95 Wn.2d at 48. These statements in Lesnick and Sieler should be

considered in historical context. They predate the technological advancements of

modern 911 systems, which allow law enforcement to identify caller location and

identity, for example based on cellular data. Considering these systems, recent

decisions have repeatedly held that 911 calls are more reliable precisely because

callers risk losing their anonymity and can be held accountable for false reports. See,

e.g., Z.U.E., 183 Wn.2d at 621; Navarette, 572 U.S. at 399; State v. Howerton, 187

Wn. App. 357, 371-72, 348 P.3d 781 (2015); United States v. Terry-Crespo, 356

F.3d 1170, 1176 (9th Cir. 2004); accord State v. Hopkins, 128 Wn. App. 855, 869

n.9, 117 P.3d 377 (2005) (Quinn-Brintnall, C.J., dissenting) (citing cases across five

states and two federal circuits holding that 911 calls have heightened reliability).

This does not mean that courts treat all 911 calls as presumptively or per se reliable

without further scrutiny. See, e.g., State v. Saggers, 182 Wn. App. 832, 844, 332

P.3d 1034 (2014) (distinguishing Navarette and holding tip unreliable because 911

call was made on a pay phone and “officers were distinctly aware of the possibility”

that defendant’s disgruntled acquaintance was the actual caller).

Stearns in his supplemental briefing and WACDL in their amicus briefing

urge us to explicitly hold that the dissent in Navarette is more consistent with

Washington law than the majority. See also Z.U.E., 183 Wn.2d at 626-30 (Gordon

12 Wenatchee v. Stearns, No. 102680-3

McCloud, J., concurring) (“[A]rticle 1, section 7 compels us to adopt a standard as

protective as the one that the Navarette dissent adopted.”). They argue that the fact

a call is made to the emergency line has no bearing on its reliability because callers

are unaware of the technological advancements behind modern 911 systems. They

also argue that even if modern 911 calls are more reliable because callers know that

technology can identify them and that they can be held accountable for false

statements, this reliability is undermined by the possibility that a caller will borrow

or steal another person’s device to make the 911 call. These arguments highlight

important questions about how much the average person knows about 911

technology or how often people use other’s phones to report crimes. Without a

factual record that implicates these questions and full briefing on both sides, we

decline to address whether the Navarette majority or dissent approach is more

consistent with Washington law. It is sufficient to observe that the officers here were

not aware of any circumstances suggesting Gilliver gave a fake name, used another

person’s cell phone, or had any motive to make a malicious and fraudulent 911 call

against Stearns.

A citizen informant’s reliability is further enhanced when they are an

eyewitness and when they report their tip contemporaneously or immediately after

the events they describe. See State v. Lee, 147 Wn. App. 912, 918, 199 P.3d 445

(2008); Howerton, 187 Wn. App. at 370; Navarette, 572 U.S. at 400-01. Police may

13 Wenatchee v. Stearns, No. 102680-3

not simply assume that an informant is an eyewitness or that their report is

contemporaneous, though this may often be inferred from the circumstances. See

Howerton, 187 Wn. App. at 369 (citing State v. Vandover, 63 Wn. App. 754, 759-

60, 822 P.2d 784 (1992)). Here, Gilliver’s call contained visual descriptions of

Stearns’s appearance and described Stearns’s actions as they unfolded. When

Officer BrinJones arrived only a few minutes after the call, Stearns was just pulling

out of the parking lot and Gilliver pointed to Stearns’s truck, exclaiming something

to the effect of “‘That’s him! He’s wasted!’” CP at 17. This further suggests that

Gilliver had been describing his personal observations of Stearns’s recent actions

inside the parking lot as they occurred, a fact that weighs in favor of his tip’s

reliability.

The reliability factors mentioned in Z.U.E. and Navarette should also be

considered in the context of our evolving understanding of human behavior, which

necessarily informs the reasonable inferences to be drawn. These factors generally

parallel the hearsay exceptions in evidence law, which are also aimed at establishing

the reliability of a statement from the circumstances in which it was made and reflect

long held assumptions about witness credibility. See, e.g., Navarette, 572 U.S. at

400 (analogizing to present sense impression and excited utterance hearsay

exceptions); State v. Morrell, 16 Wn. App. 2d 695, 703, 482 P.3d 295 (2021) (“A

statement against interest can help establish a criminal informant’s credibility . . .

14 Wenatchee v. Stearns, No. 102680-3

.”); see also Andrew B. Kartchner, J.L.’s Time Bomb Still Ticking: How Navarette’s

Narrow Holding Failed to Address Important Issues Regarding Anonymous Tips, 44

U. BALT. L. REV. 1, 5 (referring to this concept as “observational reliability” and

citing cases discussing it as such). Our past descriptions of informants build on these

assumptions and describe the contrast between professional informants on the one

hand, who are motivated by the concessions offered to them by law enforcement,

and citizen informants, who are motivated solely by their desire to report events to

authorities, justifying an inference of reliability. Z.U.E. and Navarette built further

on this contrast by recognizing that 911 callers are often, but not always, citizen

informants rather than professional informants. Neither case considered the

possibility of a citizen informant whose motivation and perceptions are colored by

unconscious bias.

Our awareness of unconscious biases has developed in the years since Z.U.E.

and Navarette. See Letter from Wash. State Sup. Ct. to Members of Judiciary &

Legal Cmty. at 2 (June 4, 2020) (urging members of the judiciary and legal

profession to “develop a greater awareness of our own conscious and unconscious

biases in order to make just decisions in individual cases”),

https://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20News/Ju

diciary%20Legal%20Community%20SIGNED%20060420.pdf

[https://perma.cc/QNT4-H5P7]. Even when a 911 caller is not motivated by malice

15 Wenatchee v. Stearns, No. 102680-3

and reports a crime that they genuinely believe to be occurring, courts must consider

the possibility that implicit bias caused them to misconstrue the behavior they

observed as criminal. Cf., e.g., State v. Jefferson, 192 Wn.2d 225, 249-50, 429 P.3d

467 (2018) (requiring courts to ask whether objective observer aware of implicit bias

could view race as a factor in the use of peremptory challenge); State v. Zamora, 199

Wn.2d 698, 718-19, 512 P.3d 512 (2022) (applying same test to claims that

prosecutor appealed to juror bias). In particular, courts must be aware of the

prevalence of 911 calls urging police to investigate Black people for “all kinds of

daily, mundane, noncriminal activities” that the caller alleges constitute a crime or a

threat to their safety. See Brandon Griggs, Living While Black, CNN (Dec. 28, 2018,

8:37 AM), https://www.cnn.com/2018/12/20/us/living-while-black-police-calls-

trnd/index.html [https://perma.cc/S94A-KK3V]; see also Sarah Maslin Nir, White

Woman Is Fired After Calling Police on Black Man in Central Park, N.Y. TIMES

(Feb. 16, 2021), https://www.nytimes.com/2020/05/26/nyregion/amy-cooper-dog-

central-park.html. Courts can better safeguard private affairs not by removing from

consideration the fact that a tip came from a citizen informant making a 911 call but,

rather, by adding consideration of unconscious bias to the totality of circumstances.

Recognizing the need to carefully consider the impact of implicit bias in every

case, there is no suggestion here that it impacted the reliability of Gilliver’s tip,

which made no overt or implicit reference to Stearns’s race aside from a simple

16 Wenatchee v. Stearns, No. 102680-3

visual description and did not express any personal fear or describe any behavior

perceived as threatening to Gilliver. Without more, the circumstances here do not

indicate that conscious or unconscious bias lessened the reliability of Gilliver’s tip.

The city points to additional reliability factors based on Gilliver’s statements

and demeanor when Officer BrinJones arrived, though these occurred after he had

already made his 911 call and are largely irrelevant to its reliability. The city does

not appear to argue that Gilliver’s brief exclamations constituted a second tip, and

our reliability analysis properly focuses on the circumstances of Gilliver’s 911 call

at the time it was made.

Police may also confirm the reliability of a tip through corroboration, either

by independently observing the reported criminal activity or by observing that the

informant obtained the information in their tip in a reliable fashion. Z.U.E., 183

Wn.2d at 618. Corroboration of merely innocuous facts, such as a suspect’s

appearance, is insufficient. Id. at 623. The city points to three independent

observations that Officer BrinJones made of Stearns’s driving that corroborate the

alleged crime of DUI: Stearns nearly crossing the center line, Stearns nearly hitting

a curb and then jerking his truck to the right as he exited the roundabout, and

Stearns’s speeding and speed fluctuation. Under the totality of the circumstances

test, we must consider these observations in the aggregate, rather than take a “divide-

and-conquer” approach. See Howerton, 187 Wn. App. at 374.

17 Wenatchee v. Stearns, No. 102680-3

Observations of driving behavior are certainly relevant, and “erratic

behaviors” such as crossing the center line and weaving side to side can be probative

of DUI. Navarette, 572 U.S. at 402; see also, e.g., State v. Anderson, 51 Wn. App.

775, 776, 755 P.2d 191 (1988). Speeding alone is not typically probative of DUI,

particularly if the driver is only slightly over the speed limit. See Navarette, 572

U.S. at 402. However, speeding and speed fluctuation can be considered as part of

the totality of the circumstances providing reasonable suspicion of DUI. See id.

(citing NAT’L HIGHWAY TRAFFIC SAFETY ADMIN., U.S. DEP’T OF TRANSP., THE

VISUAL DETECTION OF DWI MOTORISTS 4-5 (Mar. 2010),

http://nhtsa.gov/staticfiles/nti/pdf/808677.pdf). We conclude that Officer

BrinJones’s three observations of Stearns’s erratic driving, taken together, provided

some corroboration of Gilliver’s report of DUI.

The city also argues that Officer BrinJones was able to confirm, through her

contact with Gilliver in the parking lot, that Gilliver gathered his information in a

reliable fashion. Based on the extremely short time it took for Officer BrinJones to

arrive after the 911 call and Gilliver’s almost immediate exclamation when he

pointed to Stearns driving away, it was reasonable for her to conclude that Gilliver

was the caller. See State v. Bell, No. 76511-6-I, slip op. at 11 (Wash. Ct. App. Dec.

3, 2018) (unpublished) (finding law enforcement reasonable in assuming that toll

booth employee who gestured toward defendant on the scene was the same person

18 Wenatchee v. Stearns, No. 102680-3

who placed 911 call), https://www.courts.wa.gov/opinions/pdf/765116.pdf. The

fact that Stearns was just beginning to pull out of the parking lot as BrinJones arrived

also made it reasonable for her to infer that Gilliver had just observed his behavior

from that vantage point. Of course, she was not on the scene when Gilliver made

the 911 call and therefore had no way of observing details such as how close Gilliver

was to Stearns or whether his view was unobstructed, which could have strengthened

this type of corroboration.

Lastly, as we consider the totality of the circumstances, it is important to

include the potential immediate danger of the reported crime. “[T]he seriousness of

the criminal activity reported by an informant can affect the reasonableness calculus

which determines whether an investigatory detention is permissible.” Sieler, 95

Wn.2d at 50 (citing Lesnick, 84 Wn.2d at 944-45). In Z.U.E., we reaffirmed this

principle, although we phrased it as lowering the requirement of reliability for the

tip, rather than affecting the overall reasonableness of the stop. 183 Wn.2d at 623.

We also noted that Navarette “largely turn[ed] on this factor. Drunk drivers pose a

threat to everyone on the road, and officers must be able to take action to prevent a

potentially imminent accident.” Id. at 624. Still, potential immediate danger to the

public is not a “substitute for a reliable informant.” Vandover, 63 Wn. App. at 760

(holding stop unlawful despite seriousness of person brandishing shotgun due to no

indicia of reliability in tip); see also Campbell v. Dep't of Licensing, 31 Wn. App.

19 Wenatchee v. Stearns, No. 102680-3

833, 837, 644 P.2d 1219 (1982) (holding stop unlawful despite seriousness of DUI

due to insufficient factual basis of tip).

We hold that the totality of the circumstances indicate that Gilliver’s tip was

reliable. Gilliver was a citizen informant who used the 911 system to give an

eyewitness account contemporaneous with events indicating an active DUI. The

circumstances do not indicate that Gilliver’s call was malicious and fraudulent, nor

that conscious or unconscious bias played a role in his perception of Stearns’s

behavior or his decision to call 911. We need not decide today whether the Navarette

majority or dissent approach is more consistent with Washington law; here, the

totality of the circumstances indicate reliability under either approach. Taken

together, Officer BrinJones’s three observations of Stearns’s driving also

corroborated Gilliver’s allegation that Stearns was intoxicated. The nature of the

offense, DUI, posing a serious risk to the public and requiring a swift response, also

supports allowing law enforcement to act on the reliability of the tip.

II. Gilliver’s observations of Stearns “staggering all around the place” and driving his truck in the parking lot, combined with Officer BrinJones’s observations of Stearns’s driving, provided a sufficient factual basis for reasonable suspicion of DUI Even when a reliable tip alleges a crime posing an imminent danger to the

public, police must also have a sufficient factual basis to form reasonable suspicion

of that crime. When a tip is reliable, that means only that the officer can treat the

facts communicated in the tip as true, as if the officer observed the facts personally.

20 Wenatchee v. Stearns, No. 102680-3

Those facts, combined with any of the officer’s own observations, must still give

rise to a reasonable suspicion that criminal activity is occurring in order to justify

the officer’s decision to execute a Terry stop.

Reasonable suspicion does not require an officer to be completely certain of

criminal activity before making an investigative stop. “Terry accepts the risk that

officers may stop innocent people.” Illinois v. Wardlow, 528 U.S. 119, 126, 120 S.

Ct. 673, 145 L. Ed. 2d 570 (2000); see also Stearns, No. 38981-2-III, slip op. at 15

(“Officer BrinJones was not required to rule out all innocent explanations for Mr.

Stearns’s conduct.” (citing Anderson, 51 Wn. App. at 780)). While the State bears

the ultimate burden of proving that a warrantless seizure is lawful, a Terry stop

requires only reasonable suspicion, which is less than the probable cause needed for

an arrest or warrant and significantly less than the burden of proof at trial. We have

described reasonable suspicion as “a substantial possibility that criminal conduct has

occurred or is about to occur.” State v. Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445

(1986).

Most cases analyzing reasonable suspicion of DUI involve observations of the

defendant’s driving. See, e.g., Anderson, 51 Wn. App. 775 (finding weaving side to

side gave reasonable suspicion of DUI). Courts have analyzed fewer cases involving

direct observations of the defendant’s demeanor and bodily movements immediately

before and after driving, which are also relevant. For example, in State v. Mecham,

21 Wenatchee v. Stearns, No. 102680-3

we held that an officer had reasonable suspicion of DUI when he “smelled

intoxicants on Mecham’s breath and noticed that Mecham’s movements were

sluggish and that his speech was slurred and repetitive.” 186 Wn.2d 128, 138-39,

380 P.3d 414 (2016) (plurality opinion).

While it is not necessary to rule out all innocent causes of behavior, courts

should keep in mind other circumstances that could cause a person to stagger, appear

sluggish, or slur their speech besides the influence of drugs or alcohol. For example,

a person observed staggering could be experiencing some temporary loss in balance

or could have a medical condition or disability affecting their motor control and gait.

Courts must be conscious of the history of police brutality against people with

disabilities, often due to misconstruing elements of their disability as aggression,

defiance, or resisting arrest. See, e.g., Interacting with Police If You Have a

Disability, POLICE BRUTALITY CTR. (Mar. 3, 2025),

https://policebrutalitycenter.org/interacting-with-police-if-you-have-a-disability/.

Courts must also recognize that because Black, Indigenous, and other People of

Color are subjected to investigative stops at disproportionately higher rates than

white people, they are most at risk of having their innocent actions misconstrued for

crimes and having a brief stop escalate to a violent altercation. See State v. Sum, 199

Wn.2d 627, 644, 511 P.3d 92 (2022). This risk is naturally compounded at the

intersection of race and disability. See Abigail Abrams, Black, Disabled and at Risk:

22 Wenatchee v. Stearns, No. 102680-3

The Overlooked Problem of Police Violence Against Americans with Disabilities,

TIME (June 25, 2020, 8:56 AM), https://time.com/5857438/police-violence-black-

disabled/ [https://perma.cc/J7LG-362P]. Even if a quick breath sample or field

sobriety test could exonerate an innocent driver pulled over for DUI, courts should

not downplay the fear, harm, and risk of escalation that comes with any seizure by

police, no matter how brief. Courts must carefully examine the full arc of facts in

each case—from the moment the tip is communicated to the moment the

investigative stop is initiated—in the context of these systemic biases.

Stearns relies heavily on Z.U.E., but the alleged crime at issue and the

observed facts here distinguish this case from Z.U.E. Gilliver called 911 to report a

highly intoxicated person about to drive out of a parking lot. Discerning whether a

person is intoxicated is unlike determining whether a person seen in possession of a

firearm is 17 versus 18 years old, as in Z.U.E. The average adult in the United States

is generally aware of the effects of alcohol, and staggering while attempting to walk

is one of the clearer signs of significant impairment. A report that a person is

“staggering all around the place” suggests more than poor balance, and given the

accessibility of alcohol to adults, this behavior raised a substantial possibility that

Stearns was intoxicated.

Gilliver described two discrete instances of Stearns’s apparently intoxicated

behavior, both before and after driving his truck within the parking lot. Officer

23 Wenatchee v. Stearns, No. 102680-3

BrinJones also observed three discrete instances of erratic driving, more than the

single incident that was sufficient for reasonable suspicion of DUI in Navarette. The

facts offer far more here than in Z.U.E. After carefully examining the totality of the

circumstances, we conclude that Gilliver’s tip, corroborated by Officer BrinJones’s

observations, provided a sufficient factual basis to stop Stearns on reasonable

suspicion of DUI.

CONCLUSION

Law enforcement officers may effectuate a Terry stop based on a 911 caller’s

tip when the tip is reliable and contains a factual basis for reasonable suspicion of a

crime. Both parts of the test are met here, because Gilliver’s report of an active DUI

was made under circumstances indicating reliability, Officer BrinJones’s

observations of erratic driving corroborated the allegations, and those observations

combined with the facts communicated in the tip provided a sufficient factual basis

for reasonable suspicion of DUI. Because the stop of Stearns’s vehicle was lawful,

we reverse the Court of Appeals and reinstate Stearns’s convictions.

24 Wenatchee v. Stearns, No. 102680-3

____________________________

WE CONCUR:

____________________________ ____________________________

____________________________ ____________________________ Toynbee, J.P.T.

25 City of Wenatchee v. Frank Edward Stearns, No. 102680-3 Whitener, J., concurring

No. 102680-3

WHITENER, J. (concurring)— I join the majority in its result as to the

specific facts of this case. I write separately to highlight the missed opportunity

presented here to address the limitations of our reliance on an outdated and

unrealistic view of analyzing the indicia of reliability of a “citizen informant’s” 911

tip. Our state has a long history as a leader in protecting the privacy rights of its

citizens. The protections guaranteed by article I, section 7 of our state constitution

are “qualitatively different from those provided by the Fourth Amendment to the

United States Constitution.” State v. McKinney, 148 Wn.2d 20, 26, 60 P.3d 46

(2002). Our state constitution provides greater protection. Id. The legal

underpinning regarding how we analyze the reliability of “citizen informants” for

all of Washington’s citizens is squarely before us. Unfortunately, the majority

continues to see the use of 911 calls as premised on a desire of a citizen informant

to be helpful or to help improve public safety. Today, 911 calls are routinely misused

in furtherance of illegitimate purposes that are often grounded in racial and ethnic

animus or even revenge. Unlike the majority, I believe citizen informants can no

longer be deemed “‘presumptively reliable’” just because they call 911. Majority at

11 (quoting State v. Gaddy, 152 Wn.2d 64, 73, 93 P.3d 872 (2004)).

1 City of Wenatchee v. Frank Edward Stearns, No. 102680-3 Whitener, J., concurring

There are numerous instances, far too many, where the use of 911 calls

are weaponized on Black, Indigenous, and People of Color (BIPOC), “where police

are functioning as personal racism concierges.”1 Specifically, it is seen where citizen

informants determine that BIPOC do not belong in certain spaces and these citizen

informants use 911 calls to summon the police to inconvenience, harass, or imperil

BIPOC for simply living their lives. 2 A review of these incidents makes clear that

these 911 citizen informants are unconcerned about any repercussions for spreading

nefarious falsehoods about persons perceived to be different. Traditional indicia of

reliability referenced in the majority opinion are no longer applicable. Today, 911

callers generally use their own phones to call into the 911 emergency system

(exhibiting no fear that police can readily trace the calls), enthusiastically and

truthfully identify themselves, purportedly as eyewitnesses or victims, remain on the

scene, and contemporaneously report falsely about the encounter.

1 Janell Ross, Segregation Now: #LivingWhileBlack Experiences Are the New Version of ‘Whites Only’ Signs, NBC NEWS (May 31, 2019, 7:56 AM), https://www.nbcnews.com/news/nbcblk/segregation-now-livingwhileblack- experiences-are-new-version-whites-only-signs-n1012226 [https://perma.cc/HMK5-4T2E]. 2 Supra note 1; see also John Blake, How 911 Calls on Blacks Are a New Twist on Something Old: White Flight, CNN (Aug, 10, 2018), https://edition.cnn.com/2018/08/10/us/white-flight-911-calls/index.html [https://perma.cc/A3VL- B45U]; Brandon Griggs, Living While Black, CNN (Dec. 28, 2018, 8:37 AM), https://www.cnn.com/2018/12/20/us/living-while-black-police-calls-trnd/index.html [https://perma.cc/S94A- KK3V]; Elijah Anderson, Black Americans Are Asserting Their Rights in “White Spaces.” That’s When Whites Call 911, VOX (Aug. 10, 2018, 6:00 AM), https://www.vox.com/the-big-idea/2018/8/10/17672412/911-police-black- white-racism-sociology [https://perma.cc/E5RR-QCLR]; Rachael Herron, I Used To Be a 911 Dispatcher. I Had To Respond to Racist Calls Every Day, VOX (Oct. 31, 2018, 9:08 AM), https://www.vox.com/first- person/2018/5/30/17406092/racial-profiling-911-bbq-becky-living-while-black-babysitting-while-black [https://perma.cc/9RP2-TSG8].

2 City of Wenatchee v. Frank Edward Stearns, No. 102680-3 Whitener, J., concurring

• Playing golf too slow 3 • Two students on college tour4 • Security officer eating tortilla chips and a burrito in the park 5 • Yale student napping in a dorm6 • Invited to swim7 • Inspecting a house to purchase8 • Sitting at Starbucks waiting for a friend9 • 12-year-old kid mowed the wrong lawn 10 • Shopping at Nordstrom Rack 11 • Firefighter performing routine inspections12

3 Tony Marco & Lauren DelValle, A Group of Black Women Say a Golf Course Called the Cops on Them for Playing Too Slow, CNN (April 25, 2018, 5:21 PM), https://www.cnn.com/2018/04/25/us/black-women-golfers-pennsylvania- trnd/index.html [https://perma.cc/E2NY-X8PJ]. 4 Dakin Andone & Hollie Silverman, A Mom on a College Tour Called the Cops on Two Native American Teens Because They Made Her ‘Nervous’, CNN (May 5, 2018, 3:13 PM), https://www.cnn.com/2018/05/04/us/colorado- state-university-racial-profiling-trnd/index.html [https://perma.cc/K7TU-QB5Z]. 5 Rebecca Solnit, Death by Gentrification: The Killing That Shamed San Francisco, GUARDIAN (Mar 21, 2016, 1:38 PM), https://www.theguardian.com/us-news/2016/mar/21/death-by-gentrification-the-killing-that-shamed-san- francisco [https://perma.cc/8JNT-9U44]. 6 Holly Yan, Yale Student Accused of ‘Napping While Black’ Wants Fellow Student Disciplined, CNN (May 14, 2018, 1:27 PM), https://www.cnn.com/2018/05/14/us/yale-black-grad-student-interview/index.html [https://perma.cc/7NAV-368U]. 7 Maya Eliahou & Christina Zdanowicz, A White Woman Allegedly Hit a Black Teen, Used Racial Slurs and Told Him To Leave a Pool. Then She Bit a Cop, CNN (June 29, 2018, 7:08 PM), https://www.cnn.com/2018/06/29/us/pool- patrol-paula-south-carolina-trnd/index.html [https://perma.cc/7N8Z-PSHY]. 8 Doug Criss, A White Woman Sees a Black Man Inspecting a House and Calls the Cops. But There’s a Twist to This Incident, CNN (May 16, 2018, 12:56 PM), https://www.cnn.com/2018/05/16/us/investor-memphis-police- trnd/index.html. 9 Alex Horton, Starbucks CEO Apologizes After Employee Calls Police on Black Men Waiting at a Table, WASH. POST (Apr. 15, 2018), https://www.washingtonpost.com/news/business/wp/2018/04/14/starbucks-apologizes-after- employee-calls-police-on-black-men-waiting-at-a-table/. 10 David Williams, Neighbor Calls Police on a 12-year-old Boy for Mowing the Wrong Lawn, CNN, (July 1, 2018, 5:05 PM), https://www.cnn.com/2018/07/01/us/police-called-lawn-mowing-boy-trnd/index.html [https://perma.cc/PB26-HA69]. 11 Bill Hutchinson, Nordstrom Rack President Apologizes to 3 Black Youths Wrongly Accused of Shoplifting, ABC NEWS (May 8, 2018, 4:01 PM), https://abcnews.go.com/US/nordstrom-rack-president-apologizes-black-youths- wrongly-accused/story?id=55011518 [https://perma.cc/25HW-KHLA]. 12 Dan Simon, Oakland Resident Reports Black Firefighter to Police During Routine Inspection, CNN (June 28, 2018, 9:04 AM), https://www.cnn.com/2018/06/27/us/oakland-firefighter-racial-profiling/index.html [https://perma.cc/XZH4-3UYM].

3 City of Wenatchee v. Frank Edward Stearns, No. 102680-3 Whitener, J., concurring

• Trying to cash his paycheck 13 • Trying to open his own store14 • Hotel guest takes a phone call in the hotel lobby 15 • 9-year-old boy’s backpack touched her 16 • College student eating lunch 17 • Campaigning for political office18 • Helping a homeless man 19 • They did not wave or smile 20 • Babysitting21 • Shopping while 34-weeks pregnant22

13 Andrea Diaz & Amanda Watts, Staff at a Bank in Ohio Called Police on a Black Man Trying To Cash His Paycheck, CNN (Dec. 20, 2018, 7:40 AM), https://www.cnn.com/2018/12/19/us/cleveland-man-alleges-racial-profiling-at- huntington-bank-trnd/index.html [https://perma.cc/SX4F-WFPE]. 14 Dan Simon & Susannah Cullinane, Police Called on Black Man Opening His Own Business, CNN (July 23, 2018, 8:09 PM), https://www.cnn.com/2018/07/23/us/san-francisco-lemonade-gourmonade/index.html [https://perma.cc/CS62-DZQB]. 15 Keith Allen, Hotel Employees Who Asked Black Guest To Leave Fired, CNN (Dec. 29, 2018, 4:54 PM), https://www.cnn.com/2018/12/28/us/portland-hotel-police-black-guest-trnd/index.html [https://perma.cc/ND5S- FV5Q]. 16 Khristina Narizhnaya, ‘Cornerstore Caroline’ Oughta Be Mortified Right About Now, N.Y. POST (Oct. 12, 2018, 4:46 PM), https://nypost.com/2018/10/12/the-moment-a-kids-backpack-got-him-accused-of-sexual-assault/ [https://perma.cc/UT3E-LF2X]. 17 Nicole Chavez & Sophia Lipp, Smith College Student Who Was Racially Profiled While Eating Says the Incident Left Her So Shaken She Can’t Sleep, CNN (Aug. 3, 2018, 2:33 PM), https://www.cnn.com/2018/08/03/us/smith- college-student-police-trnd/index.html [https://perma.cc/NJF4-S4EX]. 18 David Williams, Someone Called Police on an African-American Politician While She Campaigned in Her Wisconsin District, CNN (Sept. 21, 2018, 9:22 AM), https://www.cnn.com/2018/09/20/us/wisconsin-candidate- police-trnd/index.html [https://perma.cc/4HGU-FWNN]. 19 David Williams, Woman Says Supermarket Called Police on Her While She Was Helping a Homeless Man, CNN (Aug. 2, 2018, 1:42 PM), https://www.cnn.com/2018/08/01/us/police-called-on-good-samaritan-trnd/index.html [https://perma.cc/G47W-YVCW]. 20 Dakin Andone, Woman Says She Called Police When Black Airbnb Guests Didn’t Wave at Her, CNN (May 11, 2018, 2:32 AM), https://www.cnn.com/2018/05/10/us/airbnb-black-rialto-california-trnd/index.html [https://perma.cc/8985-JY86]. 21 Chris Harris, Black Man Caring for 2 White Children Stopped by Cops After Woman’s Call: ‘Babysitting While Black’, PEOPLE (Oct. 9, 2018, 4:15 PM), https://people.com/crime/babysitting-while-black-woman-calls-police-man- babysitting-white-kids/ [https://perma.cc/P2BU-8BPB]. 22 Natalie O’Neill, Cop Humiliates Pregnant Woman, Accuses Her of Shoplifting, N.Y. POST (Aug. 13, 2018, 3:48 PM), https://nypost.com/2018/08/13/cop-humiliates-pregnant-woman-accuses-her-of-shoplifting/ [https://perma.cc/5G4A-8AE5].

4 City of Wenatchee v. Frank Edward Stearns, No. 102680-3 Whitener, J., concurring

• Wearing socks in community pool 23 • Installing their backyard patio 24 • Moving into his own apartment 25 • Barbecuing at the lake 26 • Opening business accounts at a bank 27 • Withdrawing money from his bank account 28 • They were happy and she was sad 29 • 11-year-old boy with a paper route30 • Asked for return of their charger 31 • Birdwatching in the park32

23 N’dea Yancey-Bragg, Woman Fired After Calling the Police on a Black Man for Wearing Socks in Community Pool, USA TODAY (July 17, 2018, 5:55 PM), https://www.usatoday.com/story/news/nation-now/2018/07/08/woman- fired-called-cops-black-man-socks-pool/766467002/ [https://perma.cc/6S5W-537W]. 24 Kemberly Richardson, Black Couple from New Jersey Speaks Out After Neighbor Calls Police on Them, ABC7 CHICAGO (July 2, 2020), https://abc7chicago.com/montclair-monclair-dispute-neighbor-confrontation-white- confronts-couple/6292198/ [https://perma.cc/AB2K-UYMW]. 25 Holly Yan, This Is Why Everyday Racial Profiling Is So Dangerous, CNN (May 11, 2018, 11:54 AM), https://www.cnn.com/2018/05/11/us/everyday-racial-profiling-consequences-trnd/index.html [https://perma.cc/9DWY-NMTQ]. 26 Christina Zhao, ‘BBQ Becky,’ White Woman Who Called Cops on Black BBQ, 911 Audio Released: ‘I’m Really Scared! Come Quick!’, NEWSWEEK (Oct. 12, 2018, 3:11 PM), https://www.newsweek.com/bbq-becky-white-woman- who-called-cops-black-bbq-911-audio-released-im-really-1103057 [https://perma.cc/PUM5-RBY4]. 27 Carlos Miller, ‘No. You Cannot!’: White Employee Calls Police on Black Man After Denying His Request To Open Business Accounts at Commerce Bank, Lawsuit Says, ATLANTA BLACK STAR (Dec. 10, 2024), https://atlantablackstar.com/2024/12/10/black-man-sues-commerce-bank-for-calling-police-when-he-tried-opening- business-account/ [https://perma.cc/QQQ8-YWQV]. 28 Niko Mann, It Happened Again: Bank Calls Police on Black Man Requesting a Withdrawal from His Own Account: 'I Was Treated as a Criminal', ATLANTA BLACK STAR (Jan. 13, 2023), https://atlantablackstar.com/2023/01/13/black-man-files-lawsuit-against-u-s-bank-for-racial-discrimination-in- minnesota/ [https://perma.cc/E7C3-37N2]. 29 Michael Harriot, Depressed Debbie Calls Police on Black Neighbors Because They Were Happy and She Was Sad, ROOT (June 6, 2018), https://www.theroot.com/depressed-debbie-calls-police-on-black-neighbors-becaus- 1826602734 [https://perma.cc/265L-AW9F]. 30 Joe Setyon, Neighbor Calls Cops on 11-Year-Old Black Boy with a Paper Route, REASON (July 11, 2018, 11:00 AM), https://reason.com/2018/07/11/police-summoned-to-deal-with-11-year-old/ [https://perma.cc/C32W-VH57]. 31 Biba Adams, White Woman Calls 911, Falsely Accuses Black TikTokers of ‘Beating’ Her, GRIO (May 12, 2021) https://thegrio.com/2021/05/12/white-woman-black-tiktokers-false-911-call/ [https://perma.cc/SQ5Q-RY3L] 32 Janelle Griffith, NYC Officials Call for Police Probe of White Woman’s 911 Call on Black Man in Central Park, NBC NEWS (May 28, 2020, 1:03 PM), https://www.nbcnews.com/news/us-news/nyc-officials-call-police-probe- white-woman-s-911-call-n1216451 [https://perma.cc/4K69-PNZS]; see also Tim Fitzsimons, White Woman Who

5 City of Wenatchee v. Frank Edward Stearns, No. 102680-3 Whitener, J., concurring

• Using their gym membership 33 • At his son’s soccer game 34 • Waiting in his car for yoga class to start35 • Trying to deposit his settlement check 36 • Stenciling a sign on his home 37 • Trying to use a coupon at CVS 38 • Watering flowers39 • Ordering food40 • Walking his baby41

Called 911 on Black Birdwatcher Made 2nd Call Saying He Tried To Assault Her, NBC NEWS (Oct. 14, 2020 10:37 AM), https://www.nbcnews.com/news/us-news/white-woman-who-called-911-black-birdwatcher-made-2nd-call- n1243331 [https://perma.cc/HF3X-B25F]. 33 Darran Simon, LA Fitness Apologizes After Racial Profiling Allegations at Club, CNN (April 20, 2018, 11:57 AM), https://www.cnn.com/2018/04/20/us/la-fitness-apology/index.html [https://perma.cc/3G2E-CYWB]. 34 Char Adams, White Woman Dubbed ‘Golf Cart Gail’ Calls Cops on Black Father at His Son’s Soccer Game, PEOPLE (Oct. 17, 2018, 4:30 PM), https://people.com/human-interest/golf-cart-gail-woman-black-father-soccer- cops-florida/ [https://perma.cc/C47F-RNKD]. 35 Latifah Muhammad, White California Woman Calls Cops on Black Man Sitting in His Car Waiting for Yoga Class To Start, VIBE (July 13, 2018, 10:47 PM), https://www.vibe.com/news/national/white-california-woman-calls-911- black-man-sitting-in-car-596473/ [https://perma.cc/DXH5-UJZL]. 36 Khaleda Rahman, Bank Calls Cops on Black Man Attempting To Deposit Racial Discrimination Settlement Check from Employer, NEWSWEEK (Jan. 24, 2020, 6:24 AM), https://www.newsweek.com/bank-calls-cops-black-man- depositing-racial-discrimination-settlement-check-1483681 [https://perma.cc/S9PR-FXTU]. 37 Claire Wang, Filipino American Confronted for BLM Message Sheds Light on Form of Genteel Racism, Experts Say, NBC NEWS (June 18, 2020, 10:42 AM), https://www.nbcnews.com/news/asian-america/filipino-american- confronted-blm-message-sheds-light-form-genteel-racism-n1231409 [https://perma.cc/N52J-S55N]. 38 Rachel Siegel, CVS Employees Call 911 on Black Woman Trying To Use a Coupon, LA TIMES (July 17, 2018, 8:00 AM), https://www.latimes.com/nation/nationnow/la-na-cvs-coupon-chicago-20180717-story.html [https://perma.cc/F9TY-UCMP]. 39 Natasha Zouves & J.J. Bullock, Alabama Pastor Calls Arrest While Watering Flowers Racial Profiling, WHNT NEWS 19 (Aug. 29, 2022, 4:43 PM), https://whnt.com/news/alabama-news/alabama-pastor-calls-arrest-while- watering-flowers-racial-profiling/ [https://perma.cc/9MQ8-53NH]. 40 Cordell Wright, Escorted Out of a Sioux Falls Denny’s: “We just wanted to order some food’, DAKOTA NEWS NOW (Sep. 4, 2023, 7:21 PM), https://www.dakotanewsnow.com/2023/09/05/escorted-out-sioux-falls-dennys-we-just- wanted-order-some-food/ [https://perma.cc/V527-6SEY]. 41 Angela Helm, White Woman Calls Security on ‘Suspicious Man with a Baby’ at Park in Washington, DC, ROOT (May 16, 2018), https://www.theroot.com/black-father-stopped-by-security-after-white-woman-call-1826082634 [https://perma.cc/JHD6-FXBZ].

6 City of Wenatchee v. Frank Edward Stearns, No. 102680-3 Whitener, J., concurring

There is a lack of accountability to these documented instances of misuse of the 911

system by these 911 “citizen informant” encounters; there is limited, if any, legal

repercussions for their actions.42

These types of incidents are not new, and, unlike the majority, I do not believe

they can be addressed by adding consideration of unconscious bias to the totality of

the circumstances. The majority fails to understand that these incidents are

manifestations of unconscious bias and therefore are examples of explicit bias. A

broader holding is required. We use technology in every part of our daily lives, and

we know more about the misuses of the 911 system by “citizen informants” because

they are now reported in real time with the use of technology that is now in our

hands. The phones of yesterday have given way to the “minicomputers” in our hands

today called cell phones. We are aware of this misuse of the 911 systems because of

the popularity of social media platforms, the expansive reach of the Internet and the

increased prevalence of “citizen journalists.”43 These widely publicized incidents

42 W. Stan Crowder & Brent E. Turvey, False 9-1-1 Calls, in FALSE ALLEGATIONS - INVESTIGATIVE AND FORENSIC ISSUES IN FRAUDULENT REPORTS OF CRIME 65, 67-68 (Brent E. Turvey et al. ed., 2018) (discussing that despite false reports to 911 being so prevalent and being a crime that is punishable by law, “[n]ot all law enforcement agencies understand this, and not all treat false reporters in this fashion, though they are required to”); see, e.g., Becca Longmire, Woman Called 911 Nearly 400 Times for ‘Nonexistent Emergencies,’ Once Resulting in Man’s Death: ‘Serial Abuse’, PEOPLE (July 18, 2024, 4:30 PM) (highlighting that Kesha S. Kennedy placed 400 false 911 calls between 2020 and 2024 before any legal consequences), https://people.com/woman-called-911-hundreds-times-nonexistent- emergencies-pleads-guilty-8679951 [https://perma.cc/XQ62-6J6Q]. 43 Dave Roos, What Is Citizen Journalism?, HOWSTUFFWORKS, https://people.howstuffworks.com/citizen- journalism.htm [https://perma.cc/JM96-XHLE].

7 City of Wenatchee v. Frank Edward Stearns, No. 102680-3 Whitener, J., concurring

refute the notion that the “citizen informant” is a person who is only focused on

reporting actual criminal behavior for the good of the community.

The majority states that the statements in State v. Lesnick, 84 Wn.2d 940, 530

P.2d 243 (1975), and State v. Sieler, 95 Wn.2d 43, 621 P.2d 1272 (1980), should be

considered in historical context. Majority at 11. I agree. The historical context of

the 911 system should include why it came into being. It was to “assist government

authorities in planning their response to civil disorder.”44 This effort came in the

wake of the civil rights protests and was largely driven by the Kerner Report’s

Supplement on Control of Disorder. 45

The factors used in our precedent supported a 911 citizen informant who no

longer exists for many people. Today, a broad approach is needed to include these

experiences. Therefore, to establish reasonable suspicion under a totality of the

circumstances test, the informant tip must have both a factual basis and a basis of

knowledge requirement. The majority believes only the former is required and that

the latter “need not be shown.” Majority at 10. This distinction the majority makes

between “factual basis” and the “basis of knowledge” in establishing reasonable

suspicion is not broad enough to protect BIPOC from the realities of the present use

44 NAT’L ADVISORY COMM’N ON CIV. DISORDERS, REPORT OF THE NATIONAL ADVISORY COMMISSION ON CIVIL DISORDERS 9, https://www.hud.gov/sites/dfiles/FHEO/documents/kerner_commission_full_report.pdf. 45 Id. at 268-69.

8 City of Wenatchee v. Frank Edward Stearns, No. 102680-3 Whitener, J., concurring

of the 911 system by an increasing number of “citizen informants.” Id. at 9-10.

Under a totality of the circumstances test, however, how the tipster gathered their

facts is extremely relevant. To protect our privacy interest, article I, section 7 of the

Washington State Constitution requires that the informant’s tip bears sufficient

indicia of reliability under the totality of the circumstances to support a stop. State

v. Z.U.E., 183 Wn.2d 610, 617-19, 352 P.3d 796 (2015). It requires a stronger

showing by the State as to what constitutes reasonable suspicion. Id.

Washington’s constitution provides that “[n]o person shall be disturbed in his

private affairs, or his home invaded, without authority of law.” WASH. CONST. art.

I, § 7. “Private affairs” means that in Washington, a person’s right to privacy is

extensive, and the circumstances under which those privacy rights can be disturbed

is not built on a bedrock of reasonableness but is instead allowed only under the

authority of law. State v. Snapp, 174 Wn.2d 177, 194, 275 P.3d 289 (2012). Thus,

a police officer responding to an informant tip regarding a possible crime in progress

and interacting with or interrogating the “suspect” could constitute authority of law,

provided that the informant’s tip has some “indicia of reliability.” State v. Saggers,

182 Wn. App. 832, 840, 332 P.3d 1034 (2014). The reliability, veracity, and basis

of knowledge of an informant are highly relevant considerations in the totality of the

circumstances analysis. Illinois v. Gates, 462 U.S. 213, 230-33, 103 S. Ct. 2317, 76

9 City of Wenatchee v. Frank Edward Stearns, No. 102680-3 Whitener, J., concurring

L. Ed. 2d 527 (1983). In assessing reliability, courts require evidence of either “(1)

circumstances establishing the informant’s reliability or (2) some corroborative

observation, usually by the officers, that shows either (a) the presence of criminal

activity or (b) that the informer’s information was obtained in a reliable fashion.”

Z.U.E., 183 Wn.2d at 618 (emphasis added).

Here, Frank Stearns sustained a Terry 46 stop on the basis of a 911 tip given by

a citizen informant who identified himself as David Gilliver. According to the

majority, the facts that support indicia of reliability are Gilliver provided his name

during the 911 call, so he was an identified caller. Majority at 13. “Known citizen

informants are generally presumed to be reliable.” Saggers, 182 Wn. App. at 840.

Officer Natalie BrinJones responded to the parking lot of Cascade Motorsports

within minutes of the call. Gilliver’s call was the “sort of contemporaneous report

[that] has long been treated as especially reliable.” Navarette v. California, 572 U.S.

393, 399-400, 134 S. Ct. 1683, 188 L. Ed. 2d 680 (2014); majority at 13. However,

even assuming that those are solid and reasonable indicators of a 911 caller’s

veracity, Navarette’s remaining logic, cited approvingly by this court in Z.U.E, that

a caller’s use of the 911 system is itself an indicator of reliability, has not held up

46 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

10 City of Wenatchee v. Frank Edward Stearns, No. 102680-3 Whitener, J., concurring

under the weight of recent history and should be disavowed. Z.U.E., 183 Wn.2d at

621-23.

In Navarette, the United States Supreme Court noted that while technological

and regulatory developments around the 911 system do not make 911 calls per se

reliable, those developments are still relevant to the extent that a police officer

concludes that the person calling in a tip would not use the system fraudulently. 572

U.S. at 401. This logic is flawed at best, dangerous at worst. First, as shown by the

few instances I have identified, it is a mistake to make any assertion or draw any

conclusion regarding the reliability of a citizen informant merely because of their

use of the 911 system. Second, to protect an individual’s privacy interest in these

circumstances, the presumption that law enforcement can reliably assess the totality

of the circumstances upon receiving information from a citizen informant requires

the officer know “how the tipster gathered their facts, such as through their own

senses (e.g. sight, sound, smell) or through a particular means or intermediary (e.g.

eavesdropping, looking through binoculars or at the reflection in a mirror, hearing

from a friend).” Majority at 10. Third, the advancement of the use of technology is

broader than stated by the majority, or by Stearns and the Washington Association

of Criminal Defense Lawyers (WACDL) in their amicus briefing. The issue is not

as limited as Stearns and WACDL argue. It is not just that a call “made to the

11 City of Wenatchee v. Frank Edward Stearns, No. 102680-3 Whitener, J., concurring

emergency line has no bearing on its reliability because callers are unaware of the

technological advancements behind modern 911 systems,” that the 911 call is more

reliable “because callers know that technology can identify them and that they can

be held accountable for false statements,” or that “this reliability is undermined by

the possibility that a caller will borrow or steal another person’s device to make the

911 call.” Majority at 12. Nor is it, as the majority states, that their arguments

“highlight important questions about how much the average person knows about 911

technology or how often people use other’s phones to report crimes.” Id. at 13.

Advancements in technology are so far evolved that anyone can misuse the 911 call

system to spoof or fake 911 calls. In fact, as early as 2008, six years prior to

Navarette, the FBI warned us about the misuse of technology to make fraudulent

911 calls and that fake callers “have no trouble convincing 9-1-1 operators they are

telling the truth.” 47

Stearns’ case is not about fraudulent calls; but with what we know today, this

case raises the validity of the analytical rubric we use in assessing the reliability of

a citizen informant tip made using the 911 system. The indicia of reliability the 911

47 The Crime of ‘Swatting’: Fake 9-1-1 Calls Have Real Consequences, FBI (Sep. 3, 2013), https://www.fbi.gov/news/stories/the-crime-of-swatting-fake-9-1-1-calls-have-real-consequences1; Don’t Make the Call: The New Phenomenon of ‘Swatting’ FBI (Feb. 4, 2008), https://archives.fbi.gov/archives/news/stories/2008/february/swatting020408; see also CROWDER & TURVEY, supra, at 81-83.

12 City of Wenatchee v. Frank Edward Stearns, No. 102680-3 Whitener, J., concurring

system once had is no longer valid. The 911 system is weaponized to place calls on

noncriminal behavior specifically of Black, Indigenous and Brown people. The

majority’s dismissive approach to the explicit bias faced by BIPOC people misses

an opportunity to provide greater protections as envisioned in our state constitution

for all of Washington’s citizens. In fact, without a broad approach, the existing

standards necessary for reasonable suspicion have been lessened to such a degree

for BIPOCs where a 911 caller can say virtually anything and with no factual basis

shown, police can invade some Washington citizen’s privacy. It is truly about “our

evolving understanding of human behavior, which necessarily informs the

reasonable inference to be drawn.” Majority at 14. What we know today, is the use

of the 911 system should not be relied on as an indicator or inference of a citizen

informant’s reliability.

The law accepts the risk that police may stop innocent people. See Terry, 392

U.S. at 22. However, for some in our society, these encounters can be life or death.

The dynamics of race/ethnicity, crime, and policing are complex, and interactions

between BIPOC and the police are embedded in a lengthy problematic history that

13 City of Wenatchee v. Frank Edward Stearns, No. 102680-3 Whitener, J., concurring

continues even after the person has been deemed innocent of the conduct attributed

to them by the 911 caller. 48

It is true, Stearns is not a BIPOC, and as the facts here show, Gilliver’s 911

call was not grounded in anything but a desire to do the right thing. Also, it appears

that the observations of Stearns’ driving by Officer BrinJones could provide a

sufficient factual basis for this DUI. However, that is a “twenty- twenty hindsight”

review of the facts on this very important issue. This case provides us with an

opportunity to reevaluate how we analyze the reliability of a 911 call by a citizen

informant, where that call could quickly escalate from a minor privacy intrusion to

one that results in the loss of a person’s freedom or their life.

“Our laws are not frozen into immutable form, they are constantly in the

process of revision in response to the needs of a changing society." Richardson v.

Ramirez, 418 U.S. 24, 82, 94 S. Ct. 2655, 41 L. Ed. 2d 551 (1974) (Marshall, J.,

48 See, e.g., Kevin J. Strom & Sean Wire, The Impact of Police Violence on Communities: Unpacking How Fatal Use of Force Influences Resident Calls to 911 and Police Activity, 9, RTI INTERNATIONAL (2024), https://www.rti.org/rti- press-publication/impact-police-violence-communities-unpacking-fatal-use-force-influences-resident-calls-911- police-ac; Laura Conaway, Harvard Prof Arrested; Gates Tried to Get Into Own House, NPR (July 20, 2009, 5:37 PM) (Professor Gates was arrested after providing proof to the police that he was in his own home and not breaking and entering. His expression of outrage led to a disorderly conduct charge that was later dismissed), https://www.npr.org/sections/thetwo-way/2009/07/black_harvard_prof_arrested_ga.html [https://perma.cc/FZJ3- 6TW7]; Donald E. Wilkes Jr., The Arrest of Henry Louis Gates, Jr., POPULAR MEDIA 82 (2010), https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1083&context=fac_pm; Editors, The Gates Case and Racial Profiling, N.Y. TIMES (July 22, 2009, 7:48 PM), https://archive.nytimes.com/roomfordebate.blogs.nytimes.com/2009/07/22/the-gates-case-and-racial-profiling/ [https://perma.cc/L4GN-JMZL].

14 City of Wenatchee v. Frank Edward Stearns, No. 102680-3 Whitener, J., concurring

dissenting). Technology has advanced by leaps and bounds, but human nature has

not. Racism and prejudice should have no place in a civilized society, but still their

hold lingers. We should therefore acknowledge the fact that numerous citizen

informants are using today’s technology, specifically the 911 system, to cause harm.

This means that to protect all members of our state, under our constitution we must

reassess the indicia used to assess the reliability of a 911 informant. We should

require both a factual basis and a basis of knowledge by police officers before there

are intrusions into a person’s privacy. Accordingly, I respectfully concur in the

result.