State v. Gomez

6 P.3d 765, 198 Ariz. 61, 326 Ariz. Adv. Rep. 9, 2000 Ariz. App. LEXIS 107
CourtCourt of Appeals of Arizona
DecidedJuly 13, 2000
Docket1CA-CR 99-0152
StatusPublished
Cited by18 cases

This text of 6 P.3d 765 (State v. Gomez) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gomez, 6 P.3d 765, 198 Ariz. 61, 326 Ariz. Adv. Rep. 9, 2000 Ariz. App. LEXIS 107 (Ark. Ct. App. 2000).

Opinion

OPINION

FIDEL, Judge.

¶ 1 In assessing whether an anonymous citizen’s report of crime in progress provides reasonable suspicion for an investigative stop by the police, should greater reliability be attributed to a traceable 911 call from a private telephone than to an untraceable, entirely anonymous, report of crime? We answer that question affirmatively in this appeal.

History

¶ 2 Defendant was convicted of possession of narcotic drugs, dangerous drugs, and drug paraphernalia. He argues on appeal that the trial court erred by denying his motion to suppress the inculpatory fruits of an investigative vehicular stop that emanated from a 911 caU.

*62 ¶3 A Chandler police officer was dispatched to investigate a 911 caller’s report that a passenger had been pointing a gun out the window of a pickup and waving it in the air; the caller said that she observed this behavior while stopped behind the truck in the drive-through lane of a fast food restaurant. The caller identified the truck by col- or, make, license plate number, and direction; the officer, spotting it in the vicinity, initiated an investigative stop. The driver acknowledged that Defendant, a passenger, had been waving a handgun in sport; the driver said he had taken the gun from Defendant and put it away. When a records cheek revealed an outstanding warrant for Defendant, he was arrested; during the ensuing custodial inventory search, the police found drugs and drug paraphernalia in his sock.

¶4 Defendant asserts on 4th Amendment grounds that the police lacked any basis in reasonable suspicion to stop the truck in which he was a passenger. His argument to suppress the drugs and paraphernalia found upon his person hinges entirely upon the validity of the investigative stop.

Standing

¶ 5 We first consider the State’s argument that Defendant, as a passenger, lacks standing to assert a 4th Amendment search or seizure violation. This argument confuses standing to object to a search of the truck with standing to object to the stop. In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the leading authority on passenger standing, the passengers did not contest the validity of the stop, and the Supreme Court resolved their search objection by concluding that they had shown no “legitimate expectation of privacy in the glove compartment or area under the seat of the car in which they were merely passengers.” Id. at 148, 99 S.Ct. 421.

¶6 Here, in contrast, Defendant’s argument for suppression does not extend to evidence found in common areas of the truck. It extends only to items found upon his person, which were fruits of the challenged underlying stop. Most authorities since Rakas that have differentiated the stop question from the search question have concluded that a passenger, whose freedom of movement is interrupted no less than that of the driver, has standing to object that a stop amounts to an unreasonable seizure of his person. See, e.g., 5 Wayne R. LaFave, Search and Seizure 173-74 n. 231 (3rd ed.1996). As the Ohio Supreme Court stated in an opinion quoted by LaFave, “both passengers and the driver have standing regarding the legality of a stopping because when the vehicle is stopped, they are equally seized.” State v. Carter, 69 Ohio St.3d 57, 630 N.E.2d 355, 360 (1994).

¶ 7 Finding that Defendant has standing, we turn to the validity of the stop.

Reasonable Suspicion

¶8 Whether the police have reasonable suspicion to make an investigative stop is a mixed question of law and fact that we review de novo. See State v. Rogers, 186 Ariz. 508, 510, 924 P.2d 1027, 1029 (1996).

¶ 9 The trial court, upholding the stop, found that the call to the police provided reasonable suspicion that Defendant had engaged in criminal activity, specifically, the reckless display of a firearm in violation of A.R.S. § 13-2904(A)(6) (1994). Defendant, however, citing State v. Altieri, 191 Ariz. 1, 951 P.2d 866 (1997), argues that information provided by the caller, who did not leave her name, was insufficiently detailed to provide the reasonable suspicion that must underlie an investigative stop.

¶ 10 Under Altieri, to support a stop, “an anonymous tip ... must show sufficiently detailed circumstances to indicate that the informant came by his information in a reliable way.” Id. at 3, 951 P.2d at 868 (citing Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); State v. White, 122 Ariz. 42, 43, 592 P.2d 1308, 1309 (1979)). Defendant points out that the caller’s description of the car did not exceed “easily obtained facts and conditions existing at the time of the tip.” Id. (quoting Alabama v. White, 496 U.S. 325, 332, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)). More is generally required to demonstrate reliability under Altieri than current information that could be obtained by anyone who saw a defendant passing by. Id.

*63 ¶ 11 The State distinguished Attieri in the trial court by contrasting transportation of unlawful drugs — the crime reported there— with reckless display of a firearm — the crime reported here. The imminent potential danger associated with a firearm, the State argued, provides more latitude for reasonable investigation by the police. The Supreme Court has rejected a comparable argument, however, in Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), a decision issued since this matter came before this court.

¶ 12 In J.L., an anonymous caller reported to the police that a young male at a bus stop was carrying a gun. The caller accurately described the young man’s location and appearance but provided no further detail. This information was inadequate to support an investigative stop, the Court explained, because reasonable suspicion “requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” Id. at 1379. The Court explicitly rejected the argument that pre-search reliability testing standards should be eased in cases of tips concerning unlawful firearm possession. The Court explained, “Such an exception would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search ... simply by placing an anonymous call falsely reporting the target’s unlawful carriage of a gun.” Id.

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Cite This Page — Counsel Stack

Bluebook (online)
6 P.3d 765, 198 Ariz. 61, 326 Ariz. Adv. Rep. 9, 2000 Ariz. App. LEXIS 107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gomez-arizctapp-2000.