McChesney v. State

988 P.2d 1071, 1999 Wyo. LEXIS 159, 1999 WL 918786

• Court: Wyoming Supreme Court
• Decided: October 20, 1999
• Docket: 97-63
• Status: Published

Opinions

LEHMAN, Chief Justice.

Benjamin McChesney entered a conditional plea of guilty to a charge of possession of marijuana with intent to deliver, reserving the right to appeal the denial of his motion to suppress evidence. McChesney argues that the police officer who stopped his ear in response to an anonymous tip of erratic driving did not have a reasonable suspicion necessary to support an investigatory stop. We agree and now reverse.

ISSUES

McChesney presents one issue for our review:

Whether the district court erred by denying appellant’s motion to suppress all evidence obtained after his arrest because there was no reasonable articulable suspicion to justify an investigatory stop.

The State of Wyoming, as appellee, states the issue in this manner:

The district court properly denied appellant’s motion to suppress based on the information provided by the citizen-witness caller and based on the officer’s independent corroboration of the call and his observations of the vehicle’s occupants[.]

FACTS

Because the arresting officer, Gillette Police Officer Eric Will, was the only witness to testify at the suppression hearing, the events leading to the stop of MeChesney’s vehicle are essentially undisputed. Around 10:20 a.m. on July 12, 1996, Officer Will heard a dispatch broadcast over mutual aid radio. A highway patrol dispatcher was relaying an anonymous REDDI (Report Every Drunk Driver Immediately) report of erratic driving. The dispatch indicated that a red Mercury with temporary plates was weaving between lanes, passing cars, and slowing down in order to pass them again. The red Mercury, later determined to be driven by McChesney, was traveling east on Interstate 90 twenty-five miles west of Gillette. Will positioned himself to intercept the vehicle as it approached Gillette; he parked his vehicle in the 1-90 median and waited. When asked why he waited for the vehicle, Officer Will testified:

Q. [BY PROSECUTOR] Okay. And why were you waiting for the vehicle to come by?

A. So that I could observe its driving and verify the information that I’d received over the radio.

Q. And what were you going to do if you saw this car, as far as verifying?

A. I was going to make sure — I was going to make sure that the vehicle did, in fact, match what — what I had heard over the radio and then follow the vehicle to see if any violations did, in fact, occur, and to possibly speak with the driver.

Q. Based on the broadcast, what kind of violations were you looking for, Officer?

A. Reckless driving, such as weaving. Increase, decrease in speed.

Officer Will waited seven to ten minutes before McChesney approached. As the McChesney vehicle passed by, all three of its occupants turned their heads in Officer Will’s direction. The officer followed as McChes-ney exited 1-90, turned left on Skyline Drive, and drove north to the Highway 14/16 intersection. During this time, Officer Will noticed the passengers looking in his direction. He also noticed the driver looking into his side and rearview mirrors. At the intersection of Highway 14/16, McChesney turned left and traveled north on Highway 14/16. As McChesney made a left turn into a convenience store parking lot, Officer Will, who was one car length behind McChesney, activated his red and blue overhead lights in order to effectuate a stop. During the time that he followed McChesney, Officer Will did not observe any erratic driving or any violations of the law.

MeChesney parked his vehicle at the front door of the convenience store, and Officer Will parked his vehicle directly behind McChesney’s. When Officer Will approached MeChesney, he noticed a green leafy material on his shirt and smelled the odor of marijuana. At the same time, Officer Will requested McChesney’s driver’s license, registration, and proof of insurance. Officer Will asked MeChesney if he had been smoking, and MeChesney admitted that he had smoked one joint earlier that day. Upon further questioning, MeChesney handed Officer Will a baggy of marijuana from the back seat of the vehicle. He was then placed under arrest. Later, additional marijuana was found in a backpack taken from the vehicle.

MeChesney was charged with possession of a controlled substance with intent to deliver in violation of Wyo. Stat. Ann. § 35-7-1031(a)(ii) (Miehie 1997). After the district court denied McChesney’s motion to suppress, MeChesney entered a conditional guilty plea, reserving the right to appeal the suppression ruling. This timely appeal follows.

STANDARD OF REVIEW

Findings on factual issues made by the district court considering a motion to suppress are not disturbed on appeal unless they are clearly erroneous. Wilson v. State, 874 P.2d 215, 218 (Wyo.1994). Since the district court conducts the hearing on the motion to suppress and has the opportunity to assess the credibility of the witnesses, weigh the evidence, and make the necessary inferences, deductions, and conclusions, evidence is viewed in the light most favorable to the district court’s determination. Id. The issue of law, whether an unreasonable search or seizure has occurred in violation of constitutional rights, is reviewed de novo. Id.; Brown v. State, 944 P.2d 1168, 1170-71 (Wyo.1997).

DISCUSSION

In determining whether encounters between police and citizens are constitutionally valid, we have classified these encounters into three categories or tiers.

[1] The most intrusive encounter, an arrest, requires justification by probable cause to believe that a person has committed or is committing a crime. [2] The investigatory stop represents a seizure which invokes Fourth Amendment safeguards, but, by its less intrusive character, requires only the presence of specific and articulable facts and rational inferences which give rise to a reasonable suspicion that a person has committed or may be committing a crime. [3] The least intrusive police-citizen contact, a consensual encounter, involves no restraint of liberty and elicits the citizen’s voluntary cooperation with non-coercive questioning.

Wilson v. State, 874 P.2d at 220 (citations omitted); see also Collins v. State, 854 P.2d 688, 691-92 (Wyo.1993); Brown v. State, 944 P.2d at 1171.

Although the district court treated the encounter between Officer Will and MeChesney as an investigatory stop, our de novo review requires that we first determine whether MeChesney was “seized” for purposes of the Fourth Amendment.¹ Perhaps recognizing the infirmity of the anonymous tip, the State contends that the encounter between MeChesney and Officer Will was a consensual encounter, and the Fourth Amendment is not implicated. See Collins v. State, 854 P.2d at 695. We disagree.

A person has been seized within the meaning of the Fourth Amendment if, “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Wilson v. State, 874 P.2d at 220 (quoting U.S. v. Mendenhall, 446 U.S. 544, 554-55, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980)). This test “is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person.” California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 1551, 113 L.Ed.2d 690 (1991). In the vehicle context, there is no question that the stopping of a vehicle and the detention of its occupants is a seizure. Whren v. United States, 517 U.S. 806, 809, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996); Colorado v. Bannister, 449 U.S. 1, 4 n. 3, 101 S.Ct 42, 43-44 n. 3, 66 L.Ed.2d 1 (1980); Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). The question thus becomes whether, under the circumstances presented here, a reasonable person in McChesney’s position would have believed that he was not free to leave.

Here, as McChesney turned into the convenience store parking lot, Officer Will, who was following one ear length behind, activated his red and blue overhead lights and followed McChesney into the parking lot. At this point, had McChesney attempted to drive off or otherwise flee the scene, he could have been charged with a misdemeanor for attempting to elude a police vehicle after being “given visual or audible signal to bring the vehicle to a stop.” Wyo. Stat. Ann. § 31-5-225(a) (Lexis 1999). Certainly, if McChesney could have been charged with a misdemeanor at this point, he was not free to leave in the eyes of the law. In similar situations, numerous courts have found that when an officer activates a police vehicle’s emergency lights he has initiated a stop. Garza v. State, 771 S.W.2d 549, 557-58 (Tex.Crim.App.1989); State v. Walp, 65 Or.App. 781, 672 P.2d 374, 375 n. 1 (1983); State v. Stroud, 30 Wash.App. 392, 634 P.2d 316, 318-19 (1981); Hammons v. State, 327 Ark. 520, 940 S.W.2d 424, 428 (1997); State v. Burgess, 163 Vt. 259, 657 A.2d 202, 203 (1995); State v. Pulley, 863 S.W.2d 29, 30 (Tenn.1993); see 4 Wayne R. LaFave, Search and Seizure § 9.3(a), at 108-110, n. 99-100 (3d ed.1996).

However, there is even more in this case. Officer Will parked his vehicle directly behind McChesney’s, which was parked at the convenience store’s front doors. McChes-ney’s vehicle was thus blocked in, and he could not have driven away had he wanted to. Such action has also been found sufficient to constitute a seizure. See 4 Wayne R. LaFave, Search and Seizure § 9.3(a), at 108, n. 96. Therefore, under the totality of these circumstances, we conclude that Officer Will’s actions constituted a show of authority sufficient to convey to any reasonable person that “voluntary departure from the scene was not a realistic alternative.” State v. Stroud, 634 P.2d at 319. The propriety of our decision is underscored by Officer Will’s testimony that he turned on his overhead lights in order to stop McChesney. McChesney had been “seized” within the meaning of the Fourth Amendment.

Because McChesney was “seized” for purposes of the Fourth Amendment, the next question is whether the stop complies with that amendment’s protections from “unreasonable searches and seizures.” We hold that it does not. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and its progeny establish that law enforcement officers may stop and temporarily detain citizens short of arrest if the officer has a reasonable suspicion that a person has committed or may be committing a crime. Wilson v. State, 874 P.2d at 220. In order to establish the reasonable suspicion necessary to justify a second tier Terry or investigatory stop, “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences [drawn] from those facts, reasonably warrant that intrusion.” Olson v. State, 698 P.2d 107, 109 (Wyo.1985) (quoting Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. at 1880); Wilson v. State, 874 P.2d at 220.

Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors — quantity and quality — are considered in the “totality of the circumstances — the whole picture,” United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981), that must be taken into account when evaluating whether there is reasonable suspicion. Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable. The [Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ] Court applied its totality of the circumstances approach in this manner, taking into account the facts known to the officers from personal observation, and giving the anonymous tip the weight it deserved in light of its indicia of reliability as established through independent police work. The same approach applies in the reasonable suspicion context, the only difference being the level of suspicion that must be established.

Alabama v. White, 496 U.S. 325, 330-31, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990).

An anonymous informant’s tip, if it carries enough indicia of reliability, may provide reasonable suspicion for an investigatory stop. See Goettl v. State, 842 P.2d 549, 555 (Wyo.1992). The leading case in this area is Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301. There, an anonymous caller informed the police that “Vanessa White would be leaving 235-C Lynwood Terrace Apartments at a particular time in a brown Plymouth station wagon with the right taillight lens broken, that she would be going to Dobey’s Motel, and that she would be in possession of about an ounce of cocaine inside a brown attaché case.” 496 U.S. at 327, 110 S.Ct. at 2414. Police officers followed Ms. White and stopped her just short of Dobey’s Motel. Id. In holding that the police officers had reasonable suspicion to stop Ms. White, the Court placed special emphasis on the tipster’s prediction of future behavior:

We think it also important that, as in Gates, “the anonymous [tip] contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted.” [Illinois v. Gates, 462 U.S.] at 245, 103 S.Ct., at 2335-36. The fact that the officers found a car precisely matching the caller’s description in front of the 235 building is an example of the former. Anyone could have “predicted” that fact because it was a condition presumably existing at the time of the call. 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. The general public would have had no way of knowing that respondent would shortly leave the building, get in the described car, and drive the most direct route to Dobey’s Motel. Because only a small number of people are generally privy to an individual’s itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual’s illegal activities.

496 U.S. at 332, 110 S.Ct. at 2417.

Here, we have the classic anonymous tip — an unidentified voice on the telephone. Because an anonymous tipster’s ba.sis of knowledge and veracity are typically unknown, anonymous tips are considered less reliable. Kaysville City v. Mulcahy, 943 P.2d 231, 235-36 (Utah App.1997). The tip of an anonymous informant is unlike that of an identified citizen-informant. The latter tips are higher on the reliability scale because an identified informant exposes himself to possible criminal and civil prosecution if the report is false. Id.; see Borgwardt v. State, 946 P.2d 805, 807 (Wyo.1997) (citizen informants are presumptively reliable sources of information). Because the anonymous tip in this case is on the low end of the reliability scale, more information is required to raise a reasonable suspicion. Alabama v. White, 496 U.S. at 330-31, 110 S.Ct. at 2416.

The REDDI tip in the instant case merely recited the color, make, and direction of travel of the McChesney vehicle. These are facts that were available to anyone traveling on 1-90 west of Gillette that July morning. Corroboration of this type of information does not increase the reliability of the tip.² State v. Miller, 510 N.W.2d 638, 642 (N.D.1994); Pinkney v. State, 666 So.2d 590, 592 (Fla.App.1996); Commonwealth v. Lyons, 409 Mass. 16, 664 N.E.2d 390, 393 (1990); Campbell v. State of Wash. Dept. of Licensing, 31 Wash.App. 833, 644 P.2d 1219, 1221 (1982); see 4 Wayne R. LaFave, Search and Seizure § 9.4(h), at 222, n. 391-99. Where, as here, the informant makes no prediction of future behavior indicating “inside information,” the investigating officer is required to corroborate the tip in some other fashion, usually by observing either a traffic violation or driving indicative of impairment. Pinkney v. State, 666 So.2d at 592.

This enhanced corroboration requirement stems from a number of legitimate concerns. An anonymous tip, without more, may be no more than a citizen’s hunch or merely an assertion based on rumor. In addition, the potential for citizen abuse is readily apparent. Anybody with enough knowledge about a given person to make that person the target of a prank, or to harbor a grudge against that person, will certainly be able to formulate a REDDI tip. See Alabama v. White, 496 U.S. at 333, 110 S.Ct. at 2418 (Stevens, J. dissenting). In the law enforcement context, there is the danger that “an officer prompted not by a tip at all, but only by a hunch, could relay a description and license number through the dispatcher and thereby effectuate a lawful stop.” Mix v. State, 893 P.2d 1270, 1272-73 (Alaska App.1995).

In the instant case, any traveler on the highway that morning could have “predicted” the facts contained in the REDDI tip. The tip did not provide a description of the driver, the passengers, or any of their future activities. As such, the tip did not provide any “inside information” that would indicate that the tip was rehable. Even Alabama v. White was referred to as a “close ease” on its facts. 496 U.S. at 332, 110 S.Ct. at 2417. The facts of this case are far less compelling. Under these circumstances, we hold that the anonymous REDDI report was not sufficient to create a reasonable suspicion to justify an investigatory stop.

Officer Will properly investigated the REDDI report when he followed McChesney as he exited the interstate, made several turns, and traveled a substantial- distance. Officer Will did not observe any erratic or illegal driving. He merely observed the passengers looking back at him and the driver looking into his mirrors. Although we have adopted the doctrine that “even conduct which is wholly lawful and seemingly innocent may form the basis for a reasonable suspicion that criminal activity is afoot,” State v. Welch, 873 P.2d 601, 604 (Wyo.1994), we conclude that this conduct did not provide a reasonable suspicion in this case. First, we dismiss the driver’s glances in his mirrors as inconsequential; such action is undeniably the sign of a safe driver. Likewise, the glances of the passengers are not sufficient to provide a reasonable suspicion. The district court did not find these glances particularly significant, nor do we. See State v. Kupihea, 59 Haw. 386, 581 P.2d 765, 766 (1978) (two passengers in vehicle looked back in direction of police and crouched down, not grounds for stop); Thomas v. State, 297 So.2d 850, 852 (Fla.App.1974); Parker v. State, 363 So.2d 383, 386 (Fla.App.1978); Rodriguez v. State, 578 S.W.2d 419 (Tex.Crim.App.1979). Under these circumstances, we hold that the officer’s observations did not provide a reasonable suspicion for an investigatory stop.

Finally, our decision to require independent police corroboration of an anonymous REDDI report appears to be consistent with the practice of law enforcement in this state, which will not make a stop unless police observation confirms either the reported or some other illegal or suspicious activity. On this point, the district court made the following observations in rendering its decision:

[APPELLANT’S COUNSEL:] The next consideration that the courts need to make is given that the basis for this investigation was an anonymous tip or anonymous information, is that an adequate basis for the officer to make the inquiry?

THE COURT: Apparently the highway patrol doesn’t think so, because all of their information on REDDI stops is that nobody has to identify themselves and that the police will establish probable cause based upon their own observations not relying on the REDDI test, is what the highway patrol and other law enforcement officers advertise about the REDDI stops.

(Emphasis supplied.) The district court’s observation is confirmed by Officer Will’s testimony that he intended to verify the anonymous tip by “follow[ing] the vehicle to see if any violations did, in fact, occur.”³

CONCLUSION

As Wyoming . law enforcement has recognized, anonymous REDDI tips, such as this one, by themselves, are not sufficiently reliable to warrant an investigatory stop. Without independent observation of suspicious or illegal activity, Officer Will did not have a reasonable suspicion to stop McChesney. The seizure of McChesney was illegal. This illegal seizure “barfs] from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion.” Wilson v. State, 874 P.2d at 225 (quoting Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963)). The decision of the district court to deny suppression is reversed. Upon remand, McChesney “shall be allowed to withdraw” his plea of guilty. W.R.Cr.P. 11(a)(2).

1 . In his brief, MeChesney makes reference to Wyo. Const. art. 1 § 4, the Wyoming counterpart to the Fourth Amendment to the Constitution of the United States. Because MeChesney has failed to offer any argument to support an independent state constitutional claim, we will limit our discussion to federal constitutional principles. See Wilson v. State, 874 P.2d at 218-19.

2 . We recognize that several courts have found that corroboration of this type of information is sufficient to establish reliability. See State v. Robles, 171 Ariz. 441, 831 P.2d 440, 441-43 (App.1992); State v. Melanson, 140 N.H. 199, 665 A.2d 338, 340-41 (1995); State v. Smith, 638 N.E.2d 1353, 1355-56 (Ind.App.1994); State v. Markus, 478 N.W.2d 405, 408-9 (Iowa App.1991). We decline to follow these cases because we find them inconsistent with Alabama v. White.

3 . In a recent issue of Destinations, the official publication of the Wyoming Department of Transportation, it was written: "As soon as a REDDI report is made, the law officer in the best position to respond does. Officers in the vicinity are radioed with an advisory that includes a description of the vehicle and driver. If and when the vehicle is located, the officer involved observes long enough to decide if there is probable cause to believe the driver is 'driving under the influence.’ If there is, a stop is made.” REDDI still ridding roads of drunk drivers, Destinations, Vol. 5, Issue No. 1, Summer 1998, at 9.