People v. Wells

136 P.3d 810, 45 Cal. Rptr. 3d 8, 38 Cal. 4th 1078, 2006 Cal. Daily Op. Serv. 5529, 2006 Daily Journal DAR 8181, 2006 Cal. LEXIS 7815

• Court: California Supreme Court
• Decided: June 26, 2006
• Docket: S128640
• Status: Published

Opinions

Opinion

CHIN, J.

We granted this case to consider under what circumstances, if any, police officers may stop a vehicle and detain its driver based solely on an uncorroborated phoned-in tip that accurately describes the vehicle and its location and relates that a possibly intoxicated person is behind the wheel, “weaving all over the roadway.” As we explain, although the law appears somewhat unsettled, the better rule, firmly supported by many cases as well as by considerations of public safety and common sense, is that a limited traffic stop is permitted under such circumstances to confirm the officer’s reasonable suspicion of intoxicated driving before a serious traffic accident can occur.

FACTS

The following uncontradicted facts are taken from the Court of Appeal opinion in this case. On February 14, 2003, at 1:43 a.m., California Highway Patrol traffic officer Julian Irigoyen was engaged in traffic enforcement on Highway 99 in Kern County north of Bakersfield. He received a dispatch report of a possibly intoxicated driver “weaving all over the roadway.” (The record is silent as to the identity of the caller or circumstances leading to the call, but we may reasonably infer that the report was based on an anonymous phoned-in tip.) The subject vehicle was described as a 1980’s model blue van traveling northbound on Highway 99 at Airport Drive. Officer Irigoyen was headed southbound three to four miles north of that location, with only one entry/exit ramp between his position and the reported location of the van.

Upon receiving the dispatch, Officer Irigoyen positioned himself on the shoulder of northbound Highway 99 and watched for the described vehicle. Two or three minutes later, when he saw a blue van traveling approximately 50 miles per hour, he activated his patrol car lights and stopped the van to investigate whether the driver was impaired. The officer did not observe the van weaving, speeding, or otherwise violating any traffic laws, perhaps because he stopped the van so soon after spotting it.

Defendant was the driver of the van. While speaking with her at the scene, the officer noticed that she had constricted pupils and a dry mouth. The officer asked her to exit the vehicle, at which time she became visibly nervous. The officer suspected that she was under the influence of illegal drugs and began conducting field sobriety tests. At the conclusion of the tests, the officer placed her under arrest for driving under the influence. (Veh. Code, § 23152, subd. (a).) Later, her urine tested positive for THC, cocaine, and opiates. During an inventory search of the van, police found a black suitcase containing several syringes and some heroin.

Following the preliminary hearing, defendant was charged with possession of heroin (Health & Saf. Code, § 11350, subd. (a)), driving under the influence of a controlled substance (Veh. Code, § 23152, subd. (a)), being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), and possession of a device for injecting a controlled substance (Health & Saf. Code, § 11364). Defendant initially pleaded not guilty.

Defendant filed a motion to suppress evidence, asserting that the stop of her van was improper. (Pen. Code, § 1538.5.) The court found that the stop was proper, noting that the description of the vehicle was specific, and the vehicle itself (a 1980’s model blue van) was distinctive. Moreover, defendant’s van was traveling in the same direction and at the same location as the suspected van. Based on these factors, the trial court found that the stop was reasonable and denied defendant’s motion to suppress.

After the court denied the suppression motion, defendant withdrew her plea and pursuant to a plea agreement pleaded no contest to possession of heroin (Health & Saf. Code, § 11350, subd. (a)) and driving under the influence (Veh. Code, § 23152, subd. (a)). She was sentenced to 16 months in state prison on the possession count, and a concurrent six-month term on the driving under the influence count.

On appeal, defendant argued that the trial court erred in denying her suppression motion because she was detained without reasonable suspicion. The Court of Appeal rejected this contention, concluding that the anonymous tip, amply corroborated in its “innocent” details, afforded reasonable suspicion to stop and investigate. Defendant now seeks our review. We will affirm.

DISCUSSION

The issue can be easily stated, although somewhat less easily resolved: Does an anonymous and uncorroborated tip regarding a possibly intoxicated highway driver afford a police officer reasonable suspicion sufficient to justify a temporary detention to investigate further? The answer requires an examination of seemingly conflicting case law and a weighing of considerations of public safety with expectations of personal privacy. As will appear, we have concluded that, under the circumstances in this case, the grave risks posed by an intoxicated highway driver justified the minimal intrusion of a brief investigatory traffic stop.

Under the cases, an officer may stop and detain a motorist on reasonable suspicion that the driver has violated the law. (Ornelas v. United States (1996) 517 U.S. 690, 693 [134 L.Ed.2d 911, 116 S.Ct. 1657]; People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 200 [101 Cal.Rptr. 837, 496 P.2d 1205]; People v. Miranda (1993) 17 Cal.App.4th 917, 926 [21 Cal.Rptr.2d 785]; see also Terry v. Ohio (1968) 392 U.S. 1, 22 [20 L.Ed.2d 889, 88 S.Ct. 1868]; In re Tony C. (1978) 21 Cal.3d 888, 892-894 [148 Cal.Rptr. 366, 582 P.2d 957].) The guiding principle in determining the propriety of an investigatory detention is “the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.” (Terry v. Ohio, supra, 392 U.S. at p. 19; see In re Tony C., supra, 21 Cal.3d at p. 892.) In making our determination, we examine “the totality of the circumstances” in each case. (E.g., Alabama v. White (1990) 496 U.S. 325, 330 [110 L.Ed.2d 301, 110 S.Ct. 2412]; U. S. v. Wheat (8th Cir. 2001) 278 F.3d 722, 726 (Wheat).)

Reasonable suspicion is a lesser standard than probable cause, and can arise from less reliable information than required for probable cause, including an anonymous tip. (E.g., Alabama v. White, supra, 496 U.S. at p. 330.) But to be reasonable, the officer’s suspicion must be supported by some specific, articulable facts that are “reasonably ‘consistent with criminal activity.’ ” (In re Tony C., supra, 21 Cal.3d at p. 894.) The officer’s subjective suspicion must be objectively reasonable, and “an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. [Citation.]” (Id. at p. 893.) But where a reasonable suspicion of criminal activity exists, “the public rightfully expects a police officer to inquire into such circumstances ‘in the proper exercise of the officer’s duties.’ [Citation.]” (Id. at p. 894.)

In this case, Officer Irigoyen could reasonably believe that the blue van described in the dispatched tip was the same car he eventually stopped, as it matched the description, and was traveling in the same direction and at the same time and location as described. But, in the brief period while observing the van before stopping it, the officer saw nothing to indicate the driver was intoxicated. Is an anonymous citizen’s tip of a possibly intoxicated highway driver “weaving all over the roadway” sufficient to raise a reasonable suspicion that would justify an investigatory stop and detention under these circumstances? We believe so.

The California cases indicate that a citizen’s tip may itself create a reasonable suspicion sufficient to justify a temporary vehicle stop or detention, especially if the circumstances are deemed exigent by reason of possible reckless driving or similar threats to public safety. (Lowry v. Gutierrez (2005) 129 Cal.App.4th 926 [28 Cal.Rptr.3d 912] [phoned-in tip of erratic driving]; People v. Rios (1983) 140 Cal.App.3d 616 [189 Cal.Rptr. 634] [car illegally parked and traffic hazard]; People v. Superior Court (Meyer) (1981) 118 Cal.App.3d 579 [173 Cal.Rptr. 544] [reckless driving, driver pointing gun].)

Lowry v. Gutierrez, supra, 129 Cal.App.4th 926, is closely apposite, as it involved an anonymous cell phone tip that a specific vehicle was being driven the wrong way on a city street and had turned into oncoming traffic. Although the detaining officer himself observed no erratic driving, the Court of Appeal agreed that an immediate investigatory stop was appropriate under these exigent circumstances. (Id. at pp. 940-942.) The court, citing California Highway Patrol statistics, noted the grave public safety hazard posed by drunken drivers. (Id. at p. 940.) The court also stressed the unlikelihood of a false report, and the tipster’s detailed description of the car, its location, and the nature of the erratic driving, making it likely the caller was an eyewitness. (Id. at p. 941.)

Defendant relies on the United States Supreme Court’s decision in Florida v. J. L. (2000) 529 U.S. 266 [146 L.Ed.2d 254, 120 S.Ct. 1375] (J. L.), involving an anonymous phoned-in tip claiming a young African-American man in a plaid shirt standing at a particular bus stop was carrying a gun. The high court held the tip insufficient to justify a brief detention and patdown search, absent some independent corroboration of the reliability of the tip and tipster’s assertion of illegal conduct. (Id. at pp. 272-274.) As the court stated, “[a]ll the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J. L.” (Id. at p. 271.) The high court stressed that the tip contained no “predictive information” (such as predicting the suspect’s future behavior) that might demonstrate the tipster had inside information of concealed criminal activity. (Ibid.) Subsequent California cases involving reports of possessory offenses rather than possible intoxicated driving reach similar results. (See People v. Jordan (2004) 121 Cal.App.4th 544 [17 Cal.Rptr.3d 157]; People v. Butler (2003) 111 Cal.App.4th 150 [4 Cal.Rptr.3d 1]; People v. Saldana (2002) 101 Cal.App.4th 170, 175 [123 Cal.Rptr.2d 763].)

Significantly for our purposes, the J. L. court acknowledged the possibility that more exigent circumstances, such as a report of someone carrying a bomb, might justify a stop and search despite the inability to corroborate the informant’s reliability. (J. L., supra, 529 U.S. at pp. 273-274.) The court was reluctant, however, to adopt an “automatic firearm exception” to the reliability requirement, an exception that would allow persons to harass and embarrass another person by simply phoning in a false tip that he or she was carrying a weapon. (Id. at p. 272.)

Is J. L. controlling in this case? The Attorney General urges us to find J. L. is distinguishable from cases involving tips of reckless, possibly intoxicated, driving. Although a split of authority exists, this conclusion is supported by many out-of-state cases which have considered the question. Most of these cases are gathered in Wheat, an Eighth Circuit case also involving an anonymous tip of erratic driving in which the officer observed no unlawful activity. (Wheat, supra, 278 F.3d at pp. 727-731 [cases upholding search and cases invalidating search]; see generally York, Search and Seizure: Law Enforcement Officers’ Ability to Conduct Investigative Traffic Stops Based Upon an Anonymous Tip Alleging Dangerous Driving When the Officers Do Not Personally Observe Any Traffic Violations (2003) 34 U.Mem. L.Rev 173; Bryk, Anonymous Tips to Law Enforcement and the Fourth Amendment: Arguments for Adopting an Imminent Danger Exception and Retaining the Totality of the Circumstances Test (2003) 13 Geo. Mason U. Civ. Rts. L.J. 277.)

As Wheat explained (Wheat, supra, 278 F.3d at pp. 729-730), cases allowing the search stress the accuracy of the tipster’s description and location of the vehicle, the relatively greater urgency presented by drunken or erratic highway drivers, and the minimal intrusion involved in a simple vehicle stop. (See State v. Smith (Ind.Ct.App. 1994) 638 N.E.2d 1353; State v. Walshire (Iowa 2001) 634 N.W.2d 625, 627-630; State v. Slater (1999) 267 Kan. 694 [986 P.2d 1038, 1041-1046]; State v. Sampson (Me. 1996) 669 A.2d 1326; State v. Melanson (1995) 140 N.H. 199 [665 A.2d 338, 339-341]; People v. Rance (1996) 227 A.D.2d 936 [644 N.Y.S.2d 447]; Kaysville City v. Mulcahy (Utah Ct.App. 1997) 943 P.2d 231; State v. Boyea (2000) 171 Vt. 401 [765 A.2d 862, 867-868].)

Wheat observed (Wheat, supra, 278 F.3d at pp. 730-731), on the other hand, that cases invalidating the search rely on the generality of the tipster’s information, or the absence of corroborating evidence of illegal activity. (See Washington v. State (Ind.Ct.App. 2000) 740 N.E.2d 1241, 1243-1246; State v. Boyle (La.Ct.App. 2001) 793 So.2d 1281, 1284-1285; Commonwealth v. Lubiejewski (2000) 49 Mass.App.Ct. 212 [729 N.E.2d 288, 292]; State v. Lee (1997) 282 Mont. 391 [938 P.2d 637, 638-40]; State v. Miller (N.D. 1994) 510 N.W.2d 638, 640-645; Stewart v. State (Tex.Ct.App. 2000) 22 S.W.3d 646, 648-650; McChesney v. State (Wyo. 1999) 988 P.2d 1071, 1075-1078; see also State v. Villegas-Varela (1994) 132 Ore.App. 112 [887 P.2d 809, 810-813].)

Wheat discussed the high court’s decision in J. L., supra, 529 U.S. at pages 273-274, focusing on J. L.’s caveat about a possible public safety exception, as discussed above (ante, at p. 1084). Wheat took guidance from “those state courts that have already considered the issue. The Supreme Courts of Vermont, Iowa, and Wisconsin have held that J. L. does not prevent an anonymous tip concerning erratic driving from acquiring sufficient indicia of reliability to justify a Terry [Terry v. Ohio, supra, 392 U.S. 1] stop, even when the investigating officer is unable to corroborate that the driver is operating the vehicle recklessly and therefore unlawfully.” (Wheat, supra, 278 F.3d at p. 729.)

Wheat acknowledged that some lower appellate state courts believed that J. L. would invalidate investigative stops based on tips of uncorroborated erratic driving. (Wheat, supra, 278 F.3d at pp. 730-731.) After reviewing all the foregoing cases, however, Wheat concluded that tips of drunken or erratic driving may indeed provide reasonable suspicion justifying a traffic stop if the following factors are present: First, the tipster must furnish sufficient identifying information regarding the vehicle and its location, so the officer and reviewing courts may be reasonably sure the vehicle stopped is the one identified by the caller. (Id. at p. 731.) Second, the tip should indicate the caller had actually witnessed a contemporaneous traffic violation that compels an immediate stop, rather than merely speculating or surmising unlawful activity. (Id. at p. 732.) And third, at least the “innocent details” of the tip must be corroborated by the officers. (Id. at p. 735.)

Wheat believed that in the context of reckless and possibly intoxicated driving, the tip’s lack of “predictive information” (see J. L., supra, 529 U.S. at p. 269) was not critical to determining its reliability. Such an analysis is more appropriate in cases involving tips of concealed criminal behavior such as possession offenses. (Wheat, supra, 278 F.3d at p. 730.) We agree. An informant’s accurate description of a vehicle and its location provides the tip with greater reliability than in the situation of a concealed firearm, because the informant was presumably an eyewitness to illegal activity and his tip can be sufficiently corroborated by the officer spotting the described vehicle in the expected time and place.

In the words of the Vermont Supreme Court in State v. Boyea, supra, 765 A.2d at page 867, “[i]n contrast to the report of an individual in possession of a gun, an anonymous report of an erratic or drunk driver on the highway presents a qualitatively different level of danger, and concomitantly greater urgency for prompt action. In the case of a concealed gun, the possession itself might be legal, and the police could, in any event, surreptitiously observe the individual for a reasonable period of time without running the risk of death or injury with every passing moment. An officer in pursuit of a reportedly drunk driver on a freeway does not enjoy such a luxury. Indeed, a drunk driver is not at all unlike a ‘bomb,’ and a mobile one at that.” (Fn. omitted.)

Wheat also found it unlikely that malicious pranksters would use anonymous reports of erratic driving to harass other drivers, and in any event the risk of such misconduct was slight compared to the risks in failing to investigate a report of unsafe driving. (Wheat, supra, 278 F.3d at pp. 735-737.) Wheat concluded that under the totality of circumstances, including the tipster’s extensive description of the subject vehicle and the driver’s erratic driving, the officer’s corroboration of the “innocent details” of the tip, and the officer’s immediate action in effecting an investigatory stop, the officer had reasonable suspicion to stop the vehicle. (Id. at p. 737.)

We agree with Wheat, and many of the cases it cites, that /. L. presents a distinguishable situation. First, a report of a possibly intoxicated highway driver, “weaving all over the roadway,” poses a far more grave and immediate risk to the public than a report of mere passive gun possession. Police officers undoubtedly would be severely criticized for failing to stop and investigate a reported drunk driver if an accident subsequently occurred. As we stated in In re Tony C., where a reasonable suspicion of criminal activity exists, “the public rightfully expects a police officer to inquire into such circumstances . . . .” (In re Tony C., supra, 21 Cal.3d at p. 894.)

In this regard, we observe that the high court has upheld police roadblocks stopping all drivers to investigate possible drunk driving, despite a complete lack of articulable facts indicating an immediate risk of harm. (Michigan Dept. of State Police v. Sitz (1990) 496 U.S. 444, 455 [110 L.Ed.2d 412, 110 S.Ct. 2481].) The court determined that the state’s interest in preventing drunk driving outweighed the relatively minor inconvenience to individual motorists in being briefly stopped and detained. (Id. at pp. 451-453; see Wheat, supra, 278 F.3d at pp. 736-737; cf. People v. Thompson (2006) 38 Cal.4th 811, pp. 818-819 [43 Cal.Rptr.3d 750, 135 P.3d 3].)

Second, doubts regarding the tipster’s reliability and sincerity are significantly reduced in the setting of a phoned-in report regarding a contemporaneous event of reckless driving presumably viewed by the caller. Instances of harassment presumably would be quite rare. (See Lowry v. Gutierrez, supra, 129 Cal.App.4th at p. 941; Wheat, supra, 278 F.3d at pp. 735-736.)

Third, the level of intrusion of personal privacy and inconvenience involved in a brief vehicle stop is considerably less than the “embarrassing police search” on a public street condemned by J. L., supra, 529 U.S. at page 272. (See Wheat, supra, 278 F.3d at p. 737; see also Michigan Dept. of State Police v. Sitz, supra, 496 U.S. at pp. 451-452.) We have observed that “in light of the pervasive regulation of vehicles capable of traveling on the public highways, individuals generally have a reduced expectation of privacy while driving a vehicle on public thoroughfares.” (In re Arturo D. (2002) 27 Cal.4th 60, 68 [115 Cal.Rptr.2d 581, 38 P.3d 433].)

In J. L., the United States Supreme Court observed that in places where one has a reduced expectation of privacy, such as schools or airports, searches may be justified on the basis of information that would be insufficient to justify a search elsewhere. (J. L., supra, 529 U.S. at p. 274.) Furthermore, as held in Wheat, traffic stops are “less invasive, both physically and psychologically, than the frisk” at issue in J. L. (Wheat, supra, 278 F.3d at p. 737.) Defendant here was driving a vehicle on a public thoroughfare. We conclude there is a sound and logical distinction between the vehicle stop in the present case and the frisk found unconstitutional in J. L.

Fourth, the relatively precise and accurate description given by the tipster in the present case regarding the vehicle type, color, location, and direction of travel, all confirmed by the investigating officer within minutes of receiving the report, enhanced the reliability of the tip. (Wheat, supra, 278 F.3d at pp. 731-732.) The investigating officer’s inability to detect any erratic driving on defendant’s part is not significant. Motorists who see a patrol car may be able to exercise increased caution. Additionally, the officer in this case stopped defendant’s van immediately after spotting it.

Defendant observes that in many of the cases upholding searches based on erratic driving tips, the officers had gathered more details from which they might gauge the reliability of the tipster, such as his or her identity and eyewitness status, or whether the tip contained predictive information that might demonstrate the tipster was indeed reliable. (See J. L., supra, 529 U.S. at pp. 270-272.) Defendant also doubts that the tip was sufficiently detailed to indicate that indeed a crime was being committed.

It is true the record contains little information regarding the identity or status of the tipster, but like the Court of Appeal below we may reasonably infer that the tip came from a passing motorist. Where else would it have come from? As the Court of Appeal also stated, “We endorse efforts by law enforcement to gather more information to assess the reliability of 911 calls reporting criminal activity.” Although the absence of such information may be relevant in determining the totality of the circumstances in a given case, and officers in future incidents should attempt to gather additional information supporting the tip’s reliability, we agree with the Court of Appeal that the absence of such information in the present case was not fatal to the subsequent vehicle stop.

Viewing the totality of circumstances in the present case, we are convinced that the officer’s traffic stop was justified by reasonable suspicion of criminal activity. As the Court of Appeal held in this case, the tipster’s information regarding the van and its location was sufficiently precise, and its report of a motorist “weaving all over the roadway” demanded an immediate stop to protect both the driver and other motorists. The tip reported contemporaneous activity and its “innocent” details were fully corroborated within minutes of the report.

The judgment of the Court of Appeal is affirmed.

George, C. J., Corrigan, J., and Croskey, J.,

* concurred.

Associate Justice, Court of Appeal, Second Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.