State v. Urioste

2002 NMSC 023, 52 P.3d 964, 132 N.M. 592

• Court: New Mexico Supreme Court
• Decided: July 24, 2002
• Docket: 26,287
• Status: Published

Opinions

OPINION

MAES, Justice.

{1} Defendant Rudolfo Urioste entered into a conditional plea for possession of a controlled substance contrary to NMSA1978, § 30-31-23(D) (1990), reserving the right to appeal his conviction on the issue of suppression of evidence. Defendant argued that the cocaine should be suppressed because the information leading to his arrest was received by police through an anonymous tip and was not sufficiently corroborated to constitute reasonable suspicion to justify stopping Defendant on the highway. The district court entered findings of fact and conclusions of law and determined that the information and corroboration provided enough reasonable suspicion that the law was being violated. Defendant appealed his conviction. The Court of Appeals, in a memorandum opinion, affirmed the district court’s finding that the information came from a confidential informant. State v. Urioste, NMCA 20,257, slip op. At 5-6 (Mar. 23, 2000). The Court determined the information was sufficiently corroborated and held that the information provided the reasonable suspicion necessary for the investigative stop. Id. We affirm the Court of Appeals.

FACTS

{2} “The following facts are conclusive because they are based on the trial court’s findings of fact, which [Defendant does not challenge on appeal.” State v. Werner, 110 N.M. 389, 390, 796 P.2d 610, 611 (Ct.App.1990); accord, Rule 12-213 NMRA 2002 (“The argument must set forth a specific attack on any finding, or such finding shall be deemed conclusive.”). Defendant acknowledges that “all factual issues are uncontested.” At approximately 4:30 p.m. on November 20, 1997, the Tueumcari Police Department received information that cocaine was being transported from Albuquerque to Tueumcari. Officer Tony Alvidrez of the Tueumcari Police passed on the information to Deputy Greg Greenlee of the Quay County Sheriffs Department at approximately 10:00 p.m. The following details were included in the report received by Deputy Greenlee: (1) The individual transporting the cocaine would be an Hispanic male with a long black ponytail, (2) driving a green, older model Ford Econoline van, (3) heading from the direction of Albuquerque toward Tucumeari, (4) arriving in Tueumcari at about 10:30 p.m., and (5) the driver lived at 1115 South Fifth Street, Tueumcari.

{3} At a suppression hearing, Deputy Greenlee testified that he was familiar with the vehicle at the address described above, and drove to the location and observed that the vehicle was not there. He then went to Interstate 40, proceeding toward Albuquerque, when he saw a green older model Ford Econoline van going the opposite way. Greenlee turned around and pursued the van. He corroborated the time of the van’s appearance, it was 10:14 p.m., as well as the make, age and color of the van. He verified the apparent route of the van as consistent with a route going from Albuquerque to Tucumcari.

{4} Upon this information, Deputy Green-lee stopped the van. Suspecting one handling illegal drugs might be armed, he asked Defendant to get out of the van and submit to a frisk. He asked Defendant whether he had any guns or drugs in his possession, and Defendant said he did not. The situation then went out of control when Defendant bolted and ran away down the interstate. Deputy Greenlee yelled for him to stop, but he kept running, turning down a little driveway leading into a pasture. Deputy Green-lee finally caught up with Defendant, and, at gunpoint, placed him into custody. Defendant was arrested for evading and eluding an officer. Approximately four officers conducted a lengthy search of the area between midnight and 1:00 a.m. for cocaine Defendant might have thrown. Nothing was found at that time. Another search was conducted the next day, and the contraband was discovered.

{5} Defendant pleaded guilty to possession of cocaine, contrary to NMSA 1978, § 30-31-23(D) (1990), and reserved the right to appeal the district court’s denial of his motion to suppress the physical evidence of cocaine. Defendant appealed unsuccessfully to the New Mexico Court of Appeals on the theory that the Deputy Sheriffs stop of Defendant’s van, which resulted in the seizure of the evidence, was not based on reasonable suspicion as required by law. We granted eertioraii on May 24, 2000 (No. 26,287) and now consider Defendant’s claim.

STANDARD OF REVIEW

{6} Appellate review of a district court’s decision regarding a motion to suppress evidence involves mixed questions of fact and law. Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). As a reviewing court we do not sit as a trier of fact; the district court is in the best position to resolve questions of fact and to evaluate the credibility of witnesses. Id. at 699, 116 S.Ct. 1657. We view the facts in the manner most favorable to the prevailing party and defer to the district court’s findings of fact if substantial evidence exists to support those findings. State v. Boeglin, 100 N.M. 127, 132, 666 P.2d 1274, 1279 (Ct.App.1983). Determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal. Ornelas v. United States, 517 U.S. 690, 691, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). See also State v. Attaway, 117 N.M. 141, 145-46, 870 P.2d 103, 107-08 (1994) (concluding issues, such as search and seizure issues, lending themselves to the application of constitutional principles, abstract legal doctrines, and underlying policy, should be decided by an appellate court de novo). In making a determination about reasonable suspicion, a reviewing court must look at the totality of the circumstances. United States v. Arvizti, 534 U.S. 266,-, 122 S.Ct. 744, 750, 151 L.Ed.2d 740 (2002). Police officers possess reasonable suspicion when they are “aware of specific articulable facts” that, judged objectively, “would lead a reasonable person to believe criminal activity occurred or was occurring.” State v. Pallor, 1996-NMCA-083, ¶ 12, 122 N.M. 232, 923 P.2d 599 (internal quotations and citation omitted).

CONFIDENTIAL INFORMANT OR ANONYMOUS TIP?

{7} The parties argue extensively over whether the information that was supplied to the Deputy came from a “confidential informant” or was an “anonymous tip.” The distinction is important because “the veracity of persons supplying anonymous tips is ‘by hypothesis unknown and unknowable,’ ” Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) (quoting Illinois v. Gates, 462 U.S. 213, 237, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)), while the reliability of a tip can be better gauged if it comes from a known source. Defendant argues on the basis of Deputy Greenlee’s testimony at the hearing on the motion to suppress that he received the information from Tucumcari Police Officer Alvidrez, who had received the information from an unidentified third person. Officer Alvidrez did not testify at the suppression hearing, and the State presented no evidence that this informant had provided reliable information in the past. Deputy Greenlee testified that Officer Alvidrez had told him that the third person was a “confidential informant.” Defendant argues that the tip must have come from a reliable confidential informant or the details in the tip must be “reliable in [their] assertion of illegality, not just in [their] tendency to identify a determinate person,” citing Florida v. J.L., 529 U.S. 266, 272, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000).

{8} The State argues contrarily that “[t]here is no evidence in the record to suggest that the tip was anonymous,” seeming to suggest this Court should presume it was not, and invokes the “fellow officer rule,” whereby “probable cause is determined by the courts on the basis of the collective information of the police involved in the arrest, rather than exclusively on the extent of the knowledge of the particular officer who may actually make the arrest.” Karr v. Smith, 774 F.2d 1029, 1031-32 (10th Cir.1985); see also State v. Warren, 103 N.M. 472, 476, 709 P.2d 194, 198 (Ct.App.1985) (finding that the “police team qualification” rule applies when “the arresting officer relied upon information and observations made by other officers to establish the probable cause for his belief that [a misdemeanor] was being committed in his presence.”). However, the State never called Officer Alvidrez to testify concerning whether the information was from a known informant whose reputation could be assessed and who could be held responsible if the allegations turned out to be fabricated. Because, under the facts of this ease, a stronger showing than this would have to be made by the State to establish that the information came from a confidential informant, we analyze the source of the information as though it were an anonymous tip.

SUPPRESSION OF THE EVIDENCE

{9} Generally, in eases involving informants, “the central issue ... is whether the informant’s information is so reliable and complete that it makes past, present or pending criminal conduct sufficiently likely to justify a stopping of the designated person for investigation.” 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.4(h), at 213 (3d ed.1996). More specifically to this case, “[t]he central question ... is whether ‘verification of part of the informant’s story [made] it sufficiently likely that the crucial part of the informant’s story (i.e., allegations that criminal activity has occurred and that evidence pertaining thereto will be found in the location to be searched) [was] true.’ ” United States v. Link, 238 F.3d 106, 110 (1st Cir.2001) (quoting United States v. Khounsavanh, 113 F.3d 279, 284 (1st Cir.1997) (alteration in Link)). Thus we must decide whether, upon its verification by Deputy Greenlee, the tipster’s story made it sufficiently likely that Defendant was carrying cocaine.

{10} A police officer cannot forcibly stop an individual for purposes of investigation merely on the basis of an “inchoate and unparticularized suspicion or ‘hunch’ ” that criminal activity may be afoot. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); accord United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). Rather, the officer must look at the “totality of the circumstances-the whole picture.” United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); accord Sokolow, 490 U.S. at 8, 109 S.Ct. 1581. The officer must be able to form a “reasonable suspicion, based on objective facts,” Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); see also Sokolow, 490 U.S. at 7, 109 S.Ct. 1581; United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985), that the individual in question “is, or is about to be, engaged in criminal activity.” Cortez, 449 U.S. at 417, 101 S.Ct. 690; see also Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). The level of suspicion required for an investigatory stop “is considerably less than proof of wrongdoing by a preponderance of the evidence.” Sokolow, 490 U.S. at 7, 109 S.Ct. 1581. A reasonable suspicion of criminal activity can arise from “wholly lawful conduct.” Id. at 9, 109 S.Ct. 1581 (quoting Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980) (per curiam)). In determining whether reasonable suspicion exists in a particular case, “the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.” Sokolow, 490 U.S. at 10, 109 S.Ct. 1581 (quoting Gates, 462 U.S. at 243 n. 13, 103 S.Ct. 2317. See generally David S. Rudstein, White on White: Anonymous Tips, Reasonable Suspicion, and the Constitution, 79 Ky. L. J. 661, 663-64 (1990) (explaining the “reasonable suspicion” standard)).

{11} We begin our analysis by positing two United States Supreme Court cases which have come down on either side of the line dividing a legal stop from an illegal one. These are White and J.L. In White, an anonymous tip reported that a person named Vanessa White would leave No. 235 C Lynwood Terrace Apartments at a particular time in a brown Plymouth station wagon with a broken right taillight, to go to Dobey’s Motel with an ounce of cocaine inside a brown attache case. 496 U.S. at 327, 110 S.Ct. 2412. The Supreme Court in a “close case” found the tip corroborated. Id. at 325, 110 S.Ct. 2412. The White court said:

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 the individual’s illegal activities .... When significant aspects of the caller’s predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop.

White, 496 U.S. at 332, 110 S.Ct. 2412.

{12} Defendant relies on J.L. In that ease, an anonymous caller reported to police that a young African American male, standing at a particular bus stop and wearing a plaid shirt, was carrying a gun. 529 U.S. at 268, 120 S.Ct. 1375. Two officers responded. They arrived at the bus stop and saw three African American males “just hanging out [there].” Id. One of them, J.L., was wearing a plaid shirt. Id. They did not see a firearm, and J.L. made no threatening or unusual movements. Id. J.L. was frisked and a gun was seized from his pocket. Id. He was charged with carrying a concealed firearm while under the age of eighteen. Id. at 269, 120 S.Ct. 1375. The Supreme Court agreed with and affirmed the Florida Supreme Court below, which had stated that anonymous tips “are generally less reliable than tips from known informants and can form the basis for reasonable suspicion only if accompanied by specific indicia of reliability, for example the correct forecast of a subject’s ‘not easily predicted’ movements.” J.L., 529 U.S. at 269, 120 S.Ct. 1375 (quoting J.L. v. State, 727 So.2d 204, 207 (Fla.1998) (quoting White, 496 U.S. at 332, 110 S.Ct. 2412)). It was held in J.L. that police did not have reasonable suspicion to stop and frisk the subject. 529 U.S. at 271, 120 S.Ct. 1375.

An accurate description of a subject’s readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity.

Id. at 272, 120 S.Ct. 1375.

{13} The J.L. Court, in considering White, made what we discern as a distinction between a tip predicting a subject’s movements on the one hand, and on the other, a tip which merely describes a status quo, or the state of things at a given time, of which the subject is a part. With the passage of time comes the ability of the observer to ascribe secondary qualities, beyond an initial picture, to what is being observed. In the case where an anonymous tip is being corroborated on the scene by a law enforcement officer, and no overt criminal activity is observed, it is more reasonable to say that an adequate suspicion can be formed where the suspect is seen moving or acting in accordance with the tip. It is much more difficult to form a reasonable suspicion when only a status quo is reported to police and that is all they see. This is the import of the fact that the defendants in White and in the instant case were most apparently coming from and headed to certain points, and, at least here, seen moving past a certain point “on schedule.”

{14} Thus the most important factor is established in the determination of the reasonableness of Deputy Greenlee’s Suspicion-Defendant’s movements through time. If the tipster can be said to be in on an action that is taken by the suspect in the future, from the point of view of the time the tip is given, then as a matter of law, the asserted illegality can be associated with the prediction so as to increase the reliability of the tip. White.¹ The time element is eminently present in the instant case, where the informant correctly told police what time Defendant would be at a certain place and where his movements were likely taking him.

{15} Having established this, we will also make a fact-by-fact comparison between White and this case to determine whether enough facts were corroborated beyond the basic and important future movement factor. The exact point of origin of the suspect was not corroborated in either case. The exact destination of the suspect was not corroborated in either case. The description of the vehicle in question was corroborated in both cases. As to the added fact in each case, in White, the existence of the brown attache case was not corroborated; in this case, the fact that the vehicle was not at Defendant’s residence was corroborated. This simple review of the facts leads to the inevitable conclusion that the instant case is nearly identical in all relevant respects to White.

{16} The New Mexico Court of Appeals has adopted the time-oriented analysis of White. It was said in State v. Flores, 1996 NMCA 059, ¶ 8, 122 N.M. 84, 920 P.2d 1038:

An anonymous tip may justify an investigatory stop if the information is sufficiently corroborated by subsequent investigation to establish reliability ... Although the United States Supreme Court' described it as a close case in White, the court was persuaded because certain behavior predicted in the tip actually occurred in several particulars though not all the behavior was criminal in nature.

In fact, none of the behavior observed by officers in White was criminal in nature. White, 496 U.S. at 327, 110 S.Ct. 2412. Thus it is clear that if enough familiarity with a suspect’s affairs is shown by the predictions in an anonymous tip, no overtly criminal behavior need be observed. This point was made in Reid, 448 U.S. at 441, 100 S.Ct. 2752, in which the Court noted that even in the seminal stop and frisk case, Terry, reasonable suspicion arose from wholly lawful conduct. See Terry, 392 U.S. at 27-28, 88 S.Ct. 1868. The Court of Appeals has also said, in State v. Bedolla, 111 N.M. 448, 452, 806 P.2d 588, 592 (Ct.App.1991):

The [Supreme Court in WMie] distinguished between those tips so completely lacking in indicia of reliability that they would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized, and those tips that either contained indicia of reliability within them or are sufficiently corroborated. In White, there was nothing in the tip itself to indicate reliability. However, the independent corroboration by the police officer of “significant aspects of the informer’s predictions” imparted some degree of reliability.... The court placed special importance on the caller’s ability to predict future behavior.

(Internal citations omitted). A factual comparison between Bedolla and the instant case is useful. In Bedolla, police received an anonymous tip that two men, one with a purple Nissan pickup with California plates, were dealing cocaine out of a room at the Navajo Motel. Id. at 449, 806 P.2d at 589. The officers went to the motel and after about an hour a purple Nissan drove up; three men exited and went into the motel. Id. After some time, four people came out of the motel and got into two vehicles, the purple Nissan and a blue Nissan with California plates. Id. Both vehicles drove away. Police followed the purple Nissan and stopped it about a quarter-mile from the motel. It was not stopped for any traffic violation, and there were no signs of any criminal activity. Id. Defendant was questioned and admitted there were drugs in the motel room, which were found after a search. Id. The Court of Appeals held the evidence should be suppressed, finding that “[djespite the hour-long surveillance of room 125, and following defendant’s truck for approximately one-quarter mile, [police] investigative work ... corroborated nothing more of the tip than that the purple Nissan vehicle existed, that it had California tags, and that it was driven by an unidentified person.” Id. at 451, 806 P.2d at 591. There was significantly more corroboration in the instant case, including a description of the suspect, his vehicle, its destination, its direction of travel, and the time and day the suspect would be traveling on Interstate 40, to bring it out of the purview of Bedolla and under the rule of White. In this case, “the anonymous [tip] contained a range of details relating ... to future actions of third parties ordinarily not easily predicted.” White, 496 U.S. at 332, 110 S.Ct. 2412 (quoting Gates, 462 U.S. at 245, 103 S.Ct. 2317).

CONCLUSION

{17} The White Court also stated that “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 corroboration of the vehicle, the fact that the vehicle was not at Defendant’s residence, the direction Defendant was traveling, and the time Defendant was stopped add to the reliability of the tip in this case. We hold that the reliability coming from these corroborated details was sufficient to justify the stop. The Court of Appeals is therefore affirmed.

{18} IT IS SO ORDERED.

WE CONCUR: PATRICIO M. SERNA, Chief Justice, JOSEPH F. BACA, Justice, GENE E. FRANCHINI, Justice and PAMELA B. MINZNER, Justice (dissenting).

1 . Cf. Sanders v. United States, 751 A.2d 952, 954 (D.C.2000) ("Of course, accurate prediction of future events has no ‘talismanic quality’ and is only one indicium of reliability.”)