20IU AUG II aH 9: 3'4
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
STATE OF WASHINGTON, No. 69852-4-
Respondent,
v.
ANDREW SAGGERS, PUBLISHED OPINION
Appellant. FILED: August 11, 2014
Verellen, A.C.J. — Consistent with the recent decision of the United States
Supreme Court in Navarette v. California,1 a 911 phone call from an unknown caller
who gives a contemporaneous eyewitness account of a serious offense presenting
an exigent threat to public safety may provide a valid basis for an investigatory
(Terry2) stop. But here, police officers had good reasons to question the reliability of
the 911 call, and any suspicion of an exigent circumstance had dissipated by the time
police officers inquired whether Andrew Saggers had a shotgun in his house.
Saggers' admission that he had a shotgun in his home and his consent to police to
retrieve the shotgun were beyond the scope of a valid Terry stop. Therefore, his
conviction for unlawful possession of a firearm must be reversed.
U.S. 134 S. Ct. 1683, 188 L. Ed. 2d 680 (2014). 2 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). No. 69852-4-1/2
FACTS
At approximately 2:45 a.m., Officer Shane Walter responded to Kyle
Thompkins' call for civil standby at Saggers' residence. In the phone conversation,
Thompkins told Officer Walter that he was outside of Saggers' house and wanted to
retrieve some items from Saggers' garage. Officer Walter told Thompkins that he
should call back at a more reasonable hour. Thompkins became agitated and "made
some comments about people having guns with domestic violence stuff."3 But
Thompkins did not directly tell Officer Walter that there was a firearm in the
residence. The call ended around 3:00 a.m.
At 3:13 a.m., a priority call came over the police radio. In a 911 call, a man
who identified himself as Abraham Anderson reported that, five minutes earlier while
walking his dog, he witnessed a man having an argument with a woman over a drug
transaction at the street address of Saggers' residence. The caller reported that the
man hit the woman, went inside, got a shotgun, came back outside and threatened
the woman. He said that the woman drove away in a green Toyota and that there
was a red and grey Suburban truck parked outside of the residence. The caller
stated that he was calling from a gas station approximately a mile away from where
the altercation occurred.
Police immediately responded to the call, and Officer Walter arrived at the
residence at 3:18 a.m. Officers noted that the address given in the 911 call was the
same as the address for the civil standby call, but were not sure how or if the calls
3 Report of Proceedings (RP) (Dec. 18, 2012) at 11. No. 69852-4-1/3
were related. Because the call involved a firearm, they treated it with "the utmost
seriousness."4
When police arrived at the residence, there was no one outside of the house,
all the indoor lights were off, and there was no movement inside. There was a
Suburban parked in the driveway, blocked in by another vehicle.
At 3:19 a.m., dispatch advised officers over the radio that while Anderson was
at the gas station, he saw the Suburban drive past him and turn around in a
restaurant parking lot.
At 3:21 a.m., information came over the radio that an officer tried to contact
Anderson at the gas station, but no one was present and the pay phone receiver was
hanging by its cord.
The officers discussed whether the same person made the civil standby and
911 calls. Officer Walter thought it was "a distinct possibility" that Thompkins was the
911 caller.5 Because the caller reported an individual had been injured and a person
possessed a shotgun, the officers decided to pursue the investigation.
Police did not want to approach the house by foot and knock on the door
since a firearm was potentially involved. When they were unable to contact anyone
in the residence by telephone, police decided to activate a patrol car's lights and use
the loudspeaker to try to get someone to come to the door.
At 3:44 a.m., after several announcements, Saggers opened the door and
complied with all police commands. He exited the house and walked down the
driveway. Officer Mills handcuffed him, performed a quick weapons check, and
4 Id at 20. 5 Id. at 67. No. 69852-4-1/4
placed him in a patrol car. Officer Mills told Saggers that he was not under arrest and
did read him his Miranda6 rights. Then Officer Mills left Saggers in the car for a
couple of minutes and returned to the house in order to detain anyone else that came
out.
Around the same time, other officers entered the house and contacted
Saggers' roommate, Eddie, who was asleep. Eddie told police that Thompkins had
been by the house earlier asking for Saggers and wanting to retrieve his belongings.
Eddie confirmed that no one else had been in the house and that no females had
been there. After this conversation, police believed the 911 call was a prank
because nothing about Eddie's or Saggers' demeanor supported the original call.
While Officer Mills was away from Saggers, he learned that police "had done a
security sweep [ofthe house] and there was no female inside."7 He also knew that
officers inside the home had contacted Eddie but did not know the content of the
conversation with Eddie. Finally, he knew that "[njobody associated with the house
was waving a gun around .. . [o]r was in physical control of a gun"8
Officer Mills then returned to the car and questioned Saggers. Saggers told
Officer Mills that he believed Thompkins made the 911 call because Thompkins was
at the house earlier in the evening demanding to get some of his property out of the
garage. Officer Mills also asked specific questions about the alleged altercation:
I asked [Saggers] if he was in a fight with a woman. He said no. A woman had not been there all night. There's no woman in the house. He said that he never waved a shotgun at anybody.
6 Miranda v. Arizona. 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 7RP(Dec. 20, 2012) at 144. 8 Id. at 146. No. 69852-4-1/5
I asked him if he owned a shotgun. He said yes, there is one in his bedroom locked in a case.[9]
After speaking with Saggers, Officer Mills concluded that Saggers was not involved in
the altercation reported to 911 and took offthe handcuffs. Shortly thereafter, while
Saggers was still sitting in the patrol car, Officer Mills learned that Saggers was
ineligible to possess a firearm. Officer Mills then asked Saggers for consent to go
into the house and retrieve the shotgun. Saggers agreed.
The State charged Saggers with one count of unlawful possession of a firearm
in the second degree. Saggers moved to suppress both his statement that he
possessed a firearm and the firearm retrieved as a result of the search. At the CrR
3.6 hearing, Saggers argued that reasonable suspicion did not justify his seizure.
The trial court found that, based on the total circumstances, there was reasonable
suspicion to lawfully detain Saggers and denied his motion to suppress. The trial
court then found Saggers guilty in a bench trial on stipulated facts.
Saggers appeals.
DISCUSSION
Saggers argues that at the time he was interrogated, police did not have
reasonable suspicion that a crime had occurred or was about to occur. We agree.
Under the Fourth Amendment to the United States Constitution and article I,
section 7 of the Washington State Constitution, a warrantless seizure is considered
per se unconstitutional.10 But an officer may conduct a warrantless Terry stop if he or
she has "a reasonable suspicion, grounded in specific and articulable facts, that the
9 Id, at 123. 10 State v. Rankin, 151 Wn.2d 689, 695, 92 P.3d 202 (2004). No. 69852-4-1/6
person stopped has been or is about to be involved in a crime."11 "A reasonable,
articulable suspicion means that there 'is a substantial possibility that criminal
conduct has occurred or is about to occur.'"12
We review de novo whether the State met its burden to justify an investigatory
stop.13 If the initial stop was unlawful or if the police exceed the scope of a valid stop,
the evidence discovered during the unlawful portion of that stop is not admissible.14
We apply the "total circumstances" test to determine whether an officer had
reasonable suspicion warranting an investigatory stop.15 "[T]he determination of
reasonable suspicion must be based on commonsense judgments and inferences
about human behavior."16
Information supplied by another person may authorize an investigative stop if
the informer's tip demonstrates some "'indicia of reliability.'"17 When deciding
whether this indicia of reliability exists, the courts will generally consider several
factors, primarily (1) whether the informant is reliable, (2) whether the information
11 State v. Acrev. 148 Wn.2d 738, 747, 64 P.3d 594 (2003). 12 State v. Snapp. 174 Wn.2d 177, 197-98, 275 P.3d 289 (2012) (quoting State v. Kennedy, 107Wn.2d 1, 6, 726 P.2d 445 (1986)). 13 State v. Bailey, 154 Wn. App. 295, 299, 224 P.3d 852 (2010). 14 Kennedy, 107 Wn.2d at 4; State v. Williams. 102 Wn.2d 733, 739, 689 P.2d 1065 (1984) (Terry stop must be "reasonably related in scope to the circumstances which justified the interference in the first place." (emphasis omitted)). 15 State v. Lee. 147 Wn. App. 912, 916, 199 P.3d 445 (2008). 16 Illinois v. Wardlow. 528 U.S. 119, 125, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000). 17 State v. Lesnick. 84 Wn.2d 940, 943, 530 P.2d 243 (1975) (quoting Adams v. Williams, 407 U.S. 143, 147, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972)). No. 69852-4-1/7
was obtained in a reliable fashion, and (3) whether the officers can corroborate any
details of the informant's tip.18
While known citizen informants are generally presumed to be reliable, the
same presumption is not available to anonymous informants.19 There is also
authority that a named but otherwise unknown citizen informant is not presumed to
be reliable, and a report from such an informant may not justify an investigative
stop.20
Even if an informant is unreliable, an officer's corroborating observation of
illegal, dangerous or suspicious activity can justify an investigative stop.21 A police
officer may rely on his or her experience to identify seemingly innocent facts as
18 Id. at 944 (quoting State v. Lesnick. 10 Wn. App. 281, 285, 518 P.2d 199 (1973)); Kennedy. 107 Wn.2d at 7; State v. Sieler. 95 Wn.2d 43, 47, 621 P.2d 1272 (1980). The existing standard does not require all three factors to establish indicia of reliability. State v Marcum. 149 Wn. App. 894, 904-05, 205 P.3d 969 (2009) (noting that requiring both a showing that the informant is reliable and that the tip includes sufficient objective facts to justify detention is a direct paraphrasing of the Aquillar/Spinelli standard that does not apply under the total circumstances test for investigatory stops (citing Aquilar v. Texas. 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United States. 393 U.S. 410, 89 S. Ct. 584, 21 L Ed. 2d 637(1969))). 19 State v. Gaddv. 152 Wn.2d 64, 72-73, 93 P.3d 872 (2004); State v. Wakelev. 29 Wn. App. 238, 241, 628 P.2d 835 (1981). 20 Sieler. 95 Wn.2d at 48 ("The reliability of an anonymous telephone informant is not significantly different from the reliability of a named but unknown telephone informant. Such an informant could easily fabricate an alias, and thereby remain, like an anonymous informant, unidentifiable."); see also State v. Hopkins, 128 Wn. App. 855, 858-59, 117 P.3d 377 (2005) (despite the general presumption that a citizen informant is reliable, providing the name and cell phone number of an informant unknown to officers is insufficient to establish reliability and cannot by itself justify an investigative stop). 21 Lesnick. 84 Wn.2d at 944. No. 69852-4-1/8
suspicious.22 But confirming a subject's description, location, or other innocuous
facts generally does not satisfy the corroboration requirement.23 The goal of
corroboration is to reduce the chance of acting on a malicious prank initiated at the
defendant's expense.24
Under the total circumstances test, we consider "the particular circumstances
facing the law enforcement officer," including the seriousness of the offense and any
threat to public safety.25 Officers investigating reports of emergent risks of imminent
violence do not have the opportunity to make detailed inquiries to establish the
22 State v. Moreno. 173 Wn. App. 479, 492-93, 294 P.3d 812, review denied. 177Wn.2d 1021, 304 P.3d 115(2013). 23 See Lesnick. 84 Wn.2d at 943 (the fact that informant accurately described the defendant's vehicle is not sufficient corroboration for a stop); Hopkins. 128 Wn. App. at 858 (investigatory stop not justified where police observed a man who resembled the informant's description at the described location but did not observe a gun or any illegal, dangerous, or suspicious activity); State v. Hart. 66 Wn. App. 1, 9, 830 P.2d 696 (1992) (officer's observation of defendant confirming informant's description and defendant's location did not satisfy the corroboration requirement); Campbell v. Dep't of Licensing. 31 Wn. App. 833, 834-35, 644 P.2d 1219 (1982) (anonymous motorist's tip that a drunk driver was travelling in the opposite direction and description of the car did not justify investigative stop of car matching the motorist's description). 24 See Florida v.J.L. 529 U.S. 266, 270, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000) (an unknown informant is less reliable because her reputation cannot be assessed and she cannot be held responsible if her allegations turn out to be fabricated); Hopkins. 128 Wn. App. at 864-65 (acknowledging that JJ_. held that an anonymous tip indicating possession of a weapon alone did not justify an investigatory stop because such a rule would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search). 25 Lesnick. 84 Wn.2d at 944 ("[N]o single rule can be fashioned to meet every conceivable confrontation between the police and [a] citizen.. . . [E]ach case must be considered in light of the particular circumstances facing the law enforcement officer. In this case, the suspected crime . . . posed no threat of physical violence or harm to society or the officers."); State v. Franklin. 41 Wn. App. 409, 412-13, 704 P.2d 666 (1985) ("courts have recognized the need for an immediate investigatory stop when an anonymous informant of undetermined reliability states that he or she observed a suspect carrying or displaying a gun in a public place.").
8 No. 69852-4-1/9
veracity or vantage point of individuals reporting suspicious activity.26 Accordingly,
where police are called upon to swiftly respond to a significant threat to public safety,
a court must apply a less stringent standard to assess the reasonableness of the
officers' actions than in cases involving no such threat.27 This rule is soundly based
on "the very clear, basic premise" that investigative detentions "will necessarily be
judged in light of their particular facts,"28 and reflects that "the seriousness of the
criminal activity reported by an informant can affect the reasonableness calculus
which determines whether an investigatory detention is permissible."29 An
anonymous tip as to the presence of a firearm in public alone, without corroboration,
is insufficient for an investigatory stop,30 but a report of actual or threatened use of a
firearm can present a significant risk to public safety supporting an investigatory stop
without further indicia of reliability.31
The United States Supreme Court's recent decision in Navarette illustrates the
application of these principles to a 911 call. There, an anonymous 911 caller
reported that a pickup truck ran the southbound caller off of a highway at mile marker
26 State v. Randall. 73 Wn. App. 225, 230, 868 P.2d 207 (1994) ("An officer acting on a tip involving the threat of violence and rapidly developing events does not have the opportunity to undertake a methodical, measured inquiry into whether the tip is reliable."). 27 See Lesnick. 84 Wn.2d at 944-45; Randall. 73 Wn. App. at 230. 28 Lesnick. 84 Wn.2d at 945. 29 Sieler. 95 Wn.2d at 50 (citing id at 944-45). 30 J.L. 529 U.S. at 272-73. 31 State v. Cardenas-Muratalla, 179 Wn. App. 307, 313, 319 P.3d 811 (2014); see also 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.5(i) n.543 at 811-12 (5th ed. 2012) (summarizing lower court cases that have distinguished JLL in dealing with anonymous tips regarding the actual or threatened use of firearms and other ongoing emergencies or exigent circumstances). No. 69852-4-1/10
88.32 The caller identified the make, model, and license plate number of the truck.33
At 3:47 p.m., the information was broadcast to police officers.34 At 4:00 p.m., an
officer heading northbound passed the truck near mile marker 69.35 At about 4:05
p.m., after making a U-turn, he pulled the truck over.36 A second officer, who had
separately responded to the broadcast, also arrived on the scene.37 As the two
officers approached the truck, they smelled marijuana.38 A search of the truck bed
revealed 30 pounds of marijuana.39 The officers arrested the driver and the
passenger.40
The defendants argued that the traffic stop violated the Fourth Amendment
because the officer lacked reasonable suspicion of criminal activity.41 The Supreme
Court disagreed, holding that although it was a "close case," under the totality of the
circumstances, the indicia of reliability in the case were sufficient to provide
reasonable suspicion to support the traffic stop.42 Although the tip was anonymous,
the Court held that it was sufficiently reliable because the caller claimed
contemporaneous, eyewitness knowledge of the alleged dangerous driving and used
32 Navarette, 134 S. Ct. at 1686. 33 jd 34 Id at 1687. 35 Id 36]dL 37 jd 38 ]d 39 ]d 40 Id 41 ]d 42 Id. at 1692.
10 No. 69852-4-1/11
the 911 emergency system, which records calls and can be used to later identify
tipsters.43 In addition, the Court held that the behavior identified by the caller was a
significant indicator of drunk driving, giving the police immediate reasonable
suspicion to pull the driver over "because allowing a drunk driver a second chance for
dangerous conduct could have disastrous consequences."44 Although the Court
determined that police did not have to personally observe suspicious conduct during
the five minute period they followed the vehicle, it acknowledged that "[e]xtended
observation of an allegedly drunk driver might eventually dispel a reasonable
suspicion of intoxication."45
Here, we consider the totality of the circumstances standard as applied in
Navarette, but we conclude that the police did not have adequate indicia of reliability
to continue to question Saggers once the exigent circumstances had dissipated.
Unlike Navarette, several facts undercut the reliability of the 911 call from
"Anderson." The 911 call was early in the morning and just 13 minutes after
Thompkins' civil standby call regarding the same address. The police officers were
distinctly aware of the possibility that Thompkins was the actual 911 caller. Although
the 911 caller provided the name "Abraham Anderson" and a birth date, police did
not know who he was.46 The 911 call was made on a pay phone, and when an
43 Id at 1689. 44 id at 1691-92. 45 Id. at 1691. 46 Although Navarette analyzes the 911 call as anonymous, the Court recognized that the caller gave her name. Id. at 1688 & 1687 n.1. Because neither the caller nor the 911 dispatcher testified at the suppression hearing, the prosecution did not introduce the recording into evidence and treated the tip as anonymous. Id at1687n.1.
11 No. 69852-4-1/12
officer arrived at the gas station, just eight minutes after the 911 call was placed,
there was no one present and the phone was dangling by its cord.
Despite the questions of Anderson's reliability, the Terry stop may still have
been reasonable based upon an emergent risk of imminent violence. Anderson
claimed that he saw a man hit a woman and then threaten the woman with a shotgun
on the front porch. It is understandable that police pursued the investigation of such
a potentially significant threat to public safety even though the officers had no way to
make any further inquiries into Anderson's identity or reliability.47 But by the time
Officer Mills questioned Saggers, he knew that Saggers was unarmed, no weapons
were apparent, and there were no victims in or around the house.48 Any initial
reasonable suspicion based upon exigent circumstances dissipated before he asked
Saggers if he had a shotgun.49
47 See Randall, 73 Wn. App. at 230 ("officer acting on a tip involving the threat of violence and rapidly developing events does not have the opportunity to undertake a methodical, measured inquiry into whether the tip is reliable"). 48 The 911 caller indicated that the victim had driven away. The caller later relayed that he saw the Suburban driving past the gas station. It appears that this information was provided about the same time that the officers arrived at the house and saw the Suburban in the driveway blocked in by another car. Although the timeline was confused, officers considered the possibility that there had been a delay in relaying the update. If the officers were concerned that the woman may have returned to the residence or that any other victim was at risk, that concern was dispelled after the officers searched the residence and surrounding area and found no victim.
49 This is consistent with holdings in other situations where the dissipation of exigent circumstances required police to obtain a search warrant. See Com, v. Kaupp, 453 Mass. 102, 107, 899 N.E.2d 809 (2009) ("The exigency [that evidence would be destroyed] necessitating [a computer's] seizure dissipated once the computer had been secured, requiring the police to seek a search warrant to conduct a forensic analysis of [its] contents."); State ex rel. Adkins v. Dingus. 232 W. Va. 677, 753 S.E.2d 634, 644 (2013) ("When the exigent circumstances allowing police to search and seize a person's property without a warrant dissipate, so does the right of the police to continue its search and seizure."), cert, denied. 134 S. Ct. 2827 (2014);
12 No. 69852-4-1/13
Contrary to the State's assertion, Anderson is not a presumptively reliable
citizen informant. He was completely unknown to the police, called from a pay phone
that was not traceable to him personally, and he disappeared after making the call.
Under all these circumstances, he could have easily fabricated the information in his
911 call. He was not presumptively reliable.50
The State also argues that Anderson was reliable because he claimed to be
an eyewitness to criminal activity and police were able to corroborate that a
Suburban was parked at the residence.51 But although the 911 caller claimed to be
an eyewitness to the altercation, officers were not able to corroborate the presence of
criminal activity once they arrived at Saggers' residence five minutes after the 911
call. There was no one outside, the lights were off, and no movement could be seen
inside of the residence. As recognized in Navarette, eyewitness observations and
corroboration of details can be important indicia of reliability.52 But under the total
United States v. Murphy, 516 F.3d 1117, 1121 (9th Cir. 2008) (in a warrantless search such as a protective sweep, "once the exigencies of the initial entry have dissipated, the police must obtain a warrant for any further search of the premises"), abrogated on other grounds by Fernandez v. California, 134 S. Ct. 1126, 134 S. Ct. 1126, 188 L Ed. 2d 25 (2014). 50 The State argues that Anderson was a presumptively reliable citizen informant and not an anonymous informant subject to a reliability analysis but does not address the case law indicating that an unknown citizen informant may pose the same risks as an anonymous informant because he or she could easily fabricate an alias and remain unidentifiable. See Sieler, 95 Wn.2d at 48; Hopkins, 128 Wn. App. at 858-59.
51 The State's list of corroborating evidence also includes that someone at the residence owned a shotgun and had a prior history with domestic violence. But this information was based on comments by Thompkins to Officer Walter during the civil standby call about "people having guns with domestic violence stuff." RP (Dec. 18, 2012) at 11. Thompkins did not directly state that there was a firearm in the residence or elaborate on the domestic violence accusation. 52 Navarette, 134 S. Ct. at 1689.
13 No. 69852-4-1/14
circumstances here, the eyewitness nature of the 911 call and the presence of the
Suburban did not establish reasonable suspicion independent of any exigent
circumstances.
Finally, similar to the Supreme Court's discussion in Navarette. the State
argues that informants are more reliable when they call 911 because there is a
chance those calls are recorded and the caller could be later identified by voice. In
Navarette. the Supreme Court acknowledged that 911 calls are not "per se
reliable."53 Its discussion of reliability includes the observation that the Federal
Communications Commission requires cellular phone carriers to report a caller's
phone number and geographic location to 911 dispatch, making the caller more
readily identifiable.54 Unlike Navarette, Anderson called from a pay phone at a gas
station that was in no way connected to him, and he disappeared before police could
contact him in person. But even accepting Navarette's apparent increased
presumption of reliability from the use of a 911 system, that factor does not tip the
total circumstances scales to justify continuing the investigative stop after any
exigency had dissipated.
In light of our decision on the issue of reasonable suspicion, it is unnecessary
to address Saggers' alternative arguments for reversal.
CONCLUSION
Under the total circumstances test, a 911 phone call from an unknown caller
who gives a contemporaneous eyewitness account of a serious offense presenting
an exigent threat to public safety may provide a valid basis for a Terry stop. It is also
53 Id at 1690. 54 Id.
14 No. 69852-4-1/15
understandable that officers faced with such a reportwould pursue an investigation.
But here, police officers had good reason to question the reliability of the 911 call,
and any suspicion of an exigent circumstance dissipated before an officer inquired
whether Saggers had a shotgun in his house. The State does not establish that
Saggers' admission that he had a shotgun in his home and his consent to police to
retrieve the shotgun were within the scope of a valid Terry stop.
We reverse the conviction of unlawful possession of a firearm.
WE CONCUR: