State v. Z. U. E.

• Court: Washington Supreme Court
• Decided: July 16, 2015
• Docket: 89894-4
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) ) No. 89894-4 Petitioner, ) ) v. ) EnBanc ) Z.U.E., ) ) Respondent. ) ) Filed JUL 1 6 2015

JOHNSON, J.---This case involves whether, under either Washington State

Constitution, article I, section 7 or the Fourth Amendment to the United States

Constitution, the information provided by multiple 911 callers was reliable and

sufficient to justify an investigatory Terryl stop of the car in which the defendant

was a passenger. In this case, the defendant, Z.U.E., moved to suppress evidence of

marijuana found on him following the stop, arguing that the officers lacked a

reasonable basis to detain the car and its occupants. The trial court denied Z.U.E. 's

motion, and trte Court of Appeals reversed. State v. Z. UE., 178 Wn. App. 769, 315

1 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868,20 L. Ed. 2d 889 (1968). State v. Z. UE., No. 89894-4

P.3d 1158 (2014). We accepted review and affirm the Court of Appeals. State v.

Z. U.E., 180 Wn.2d 1020 (2014).

FACTS

Late in the afternoon on October 2, 2011, Tacoma police dispatch received a

911 call reporting a man seen carrying a gun "in a ready position" through Oakland

Playfield in Tacoma. 1 Verbatim Report of Proceedings (RP) at 33. The caller

described the man as a shirtless, black male, between 18 and 19 years old, 5 feet 10

inches tall, 145 pounds, with short hair-so short that the man appeared bald. The

two officers who responded to the dispatch, Officers Clark and Rose, were familiar

with the park's reputation as a gang hangout site and a site of multiple gang-related

incidents that year.

En route, the officers received updates from the dispatch center. They were

advised that multiple other 911 callers reported seeing a shirtless man carrying a

gun, and that a number of those callers observed the man enter a two-door, white

(possibly gray) car with approximately eight other people. The car was seen

headed toward the intersection of Center and Union, a few blocks away. The

officers received a subsequent update that a 911 caller, who identified herself as

Dawn, witnessed :what she regarded as a 17-year-old female hand off a gun to the

shirtless man, who then carried the gun through the park. Dawn provided the

dispatch center with a detailed description of the girl's appearance and clothing,

2 State v. Z. U.E., No. 89894-4

but she did not reveal why she believed the girl to be 17 years old. Dawn was also

the only caller to report the female; the rest of the reports involved the shirtless

man with a gun, who was seen possibly entering a white/gray car.

At the time, the dispatch center knew little about the identity of these 911

callers, as only two of the callers provided their names and contact information.

The officers themselves had even less information: they did not know how many

911 calls the dispatch center had received or the caller's identities, nor did the

officers obtain more information about the callers.

The officers arrived at Oakland Playfield within six minutes of receiving the

initial dispatch. Upon arrival, the officers did not see anyone in the park, but they

did observe two females a block away, one of whom matched the description

provided by Dawn. Instead of stopping, however, the officers continued to search

the area for the shirtless man. The officers contacted another witness, in person,

who lived in an apartment complex overlooking the park. The witness explained

that she observed a large scale fight, with multiple subjects running around the

park,. and that the subjects left in three to four different cars.

Continuing .. their . search, . the officers drove toward the Center and Union '.

intersection. Upon arrival, the officers did not find the white/gray, two-door car,

:purportedly carrying the shirtless man and eight others, but they did observe the

same two females seen earlier entering the backseat of a four-door gray car, which

3 State v. Z. UE., No. 89894-4

was idling in a nearby parking lot. Two male passengers sat in the front seats. The

officers approached the car and noticed that neither passenger matched the

description of the bald, shirtless man, but they proceeded toward the car anyway.

Based oh the numerous 911 calls relayed to them by the dispatch center, the

officers believed they were .investigating a minor in possession of a firearm and a

gang-related assaultwith a deadly weapon. At trial, Officer Clark explained the

basis for their suspicion:

Q What information did you have to conclude that there had been an assault with a deadly weapon? A Well, because we have a guy running around with a gun with eight other subjects, that another person has said that there was a large fight, so -- Q And.what information did you have to conclude that that gun in any way was related to the fight that was described in the park? ·A · As I said, we had the w.itnesses who said that they had a large . group talking about putting up dukes in reference to fighting. In the ·call, in the CAD [coni.puter aided dispatch] call, the notes, it specifically says that the subject with the gun and no shirt is with a group of eight subjects. Q Where did it say that the eight subjects were involved in a fight? . A Like I said, we have to conduct the investigation in order to confirm that, and that's what we were doing.

2 RP at 151. ·

However, both officers testified that the primary reason for stopping this

particuJar car..was the fact. that one of the passengers matched . the description of the

female identified ?Y trte 911 caller Dawn. In fact, the other officer at the scene, Officer Rose, ela.b.orated that at that point, they would have stopped any car the girl State v. Z. U.E., No. 89894-4

entered) even if she had entered red pickup truck instead of a gray sedan. 2 RP at

216~

The two offlcers approached the vehicle with guns drawn, using a "felony

stop" technique, and directed the occupants to exit the car one at a time. 1 RP at

45·. Shortlyafter, two inore officers arrived at the scene, Officers Miller and

VviUiams. As partofthe. felony stop,' they detained the driver and the two females

in handcuffs, and were able to do so without incident. Z.U.E. was the last to exit

the car. Officer Miller, believing that Z.U.E. was deliberately ignoring his

instructions, becart:e concerned for his own safety and used a stun gun on and

handcuffed Z.U.E., arresting him for obstruction oflaw enforcement. The officers

searche0 Z.U.E. incident to his arrest and found marijuana on his person. The

ot:t1cers did not find any guns, nor did they find the bald, shirtless subject.

The Stat~ charged Z.U.E. in juvenile court with unlawful possession of a , ''·

controlled subs~ance and ob~tructing a law enforcement officer. Z.U.E. moved to

suppress all the evidence obtained during the stop as fruit of an unlawful seizure. ' I ·,,

' ' ~ . '

The trialpourt de~ied the motion and found Z.U.E. guilty of unlawful possession

but ·.. found him ·' . not guilty of obstruction. .

The Court of Appeals reversed, holding that the 911 calls lacked sufficient

"'indicia of reliability". to. justify . . . the stop because (1) the callers were essentially

unknown callers, (2) the officers did not know the factual basis supporting the

; ' '

5 State v. Z. UE., No. 89894-4

caller's assertion of criminal activity, (3) the officers did not corroborate the

assertion of criminal activity, and (4) the officers could not corroborate that the

information was obtained in a reliable manner. The Court of Appeals' analysis of

the tips' reliability tracks the two-pronged, Aguilar/Spinelli2 analysis, an analysis

Washington courts apply in determining whether an informant's tip is sufficiently

reliable to support a finding of probable cause to issue a search warrant. The Court

of Appeals also concluded that the potential threat to public safety at the time did

not justify the officers' reliance on the less than reliable information.

ANALYSIS

When presented with issues involving constitutional interpretation under

both the state and federal constitutions, our general rule provides that we analyze

the state constitutional argument first. State v. Hendrickson, 129 Wn.2d 61, 69-70,

917 P.2d 563 (1996). If we find the conduct protected by the state constitution, we

need not address the federal constitutional argument.

2 Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584,21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). This approach requires a separate two-pronged analysis of the infonnant's veracity and his or her basis of knowledge. The United States Supreme Court abandoned the approach when it overturned itself in Illinois v. Gates, 462 U.S. 213, 230-32, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). It has since replaced the Aguilar/Spinelli analysis with a more flexible "totality of the circumstances" inquiry whereby these prongs are treated as mere factors, rather than elements. Despite that ruling, the Washington State Supreme Court decided that the Aguilar/Spinelli approach better reflected article I, section 7's more stringent requirements, and we continue to apply that analysis in probable cause cases. State v. Jackson, 102 Wn.2d 432, 439, 688 P.2d 136 (1984). We have yet to address whether that standard applies to a reasonable suspicion analysis.

6 State v. Z. UE., No. 89894-4

In a challenge to the validity of a Terry stop, article I, section 7 generally

tracks the . Foptrth .Amendmept analysis. Warrantless . seizures are presumed

unreasonable, and the State bears the burden of establishing that the seizure falls . . within one of the carefully drawn exceptions to the warrant requirement. One such

exception is a brief investigatory detention of a person, known as a Terry stop.

State v. Acrey, 14-8 Wn.2d'7J8, 746, 64 P.3d 594 (2003). For a Terry stop to be

permissible, the State must show that the officer had a "reasonable suspicion" that

tpe detained person was, or was about to be, involved in a crime. Acrey, 148

Wn.2d at 747.

The reasonable suspicion standard,. under either constitutional analysis, . ' ;

requires thatthe si1spicion be grounded in "specific and articulable facts." Terry,

392 U.S. at 21; State v. Thompson, 93 Wn.2d 838, 841, 613 P.2d 525 (1980).

Hmvever, because article I, section 7 provides for broader privacy protections than

the Fourth Amendment, our stat~ constitution generally requires a stronger ·'·

showing by the State. S~e generally Acrey, 148 Wn.2d 746-47; Hendrickson, 129

Wn.2d at 69. The available facts must substantiate more than a mere generalized . . ~uspic.ion that the person detained is "up to no good"; the facts must connect the

particular . person to. the particular ., . ' crime that the officer •.' . seeks to investigate. State

v. Bliss, 153. Wn. App. ~ ' . '.. 197, 204, 222 P.3d 107 (2009) (citing State v. Martinez, . . ' ' .

135 \tVn. App. 174, 181-82, 143 P.3d 855 (2006)). In this case, the State argues that

7 State v. Z. U.E., No. 89894·-4

theofflcers reasonably suspected that at least one of the car's occupants was

involved in a potential gang-related assault or a minor in possession of a firearm,

~nd we focus our analysis on the reliability of the information that supported each . 3 suspect.e d. crur1e.

When an officer bases his or her suspicion on an informant's tip, the State

must show that the tip bears some "indicia of reliability" under the totality of the

circumstances. We require that there either be ( 1) circumstances establishing the

informant's reliability or (2) some corroborative observation, usually by the

officers, that shows either (a) the presence of criminal activity or (b) that the

informer's information was obtained in a reliable fashion. State v. Sieler, 95 Wn.2d

43,.47, 621 P.2d 1272 (1980); State . . v. Lesnick, 84 Wn.2d . . 940, 944, 530 P.2d 243

(1975): 1'hese corroborative observations do not need to be of particularly blatant

criminal activity, but they must corroborate more than just innocuous facts, such as

an individual's . appearance . or clothing. . . . See State . v. PVakeley, 29 Wn. App. 238,

241A3, 628 P.2d 835 (1981) .. •,

- - ·~--.----.:.-·--:-··--_,...,.-~-----:-~ 3 In its briefing, but ~ot during oral argument, the State raised an alternative argument that the officers could have reasonably suspected that the shirtless man committed an unlawful display of a weapon ahd that the girl could have been an accomplice to that crime. Because the State did not argue this point in detail, we address it here only in passing. For the reasons discussed ii1 this o'pit1ion, there is insufficient evidence to support a link between the shirtless man and this particular car. And because the 17-year-old girl's association with that man is established only by a single anonymous caller's observation, thy officers lacked reasonable grounds to suspect that she aided in the commission of that crime.

8 State v. Z. UE., No. 89894-4

In applying that analysis, the State argues that between the series of 911

calls and the fact that one of the passengers matched the description of the female

previously seen handing off a gun to the shirtless man, the officers had a sufficient

h:asis to support a suspicion that the occupants of the car were involved in either a

gang-related assanlt or a minor in possession of a firearm. We disagree.

· Circ·~~mstance::Festablishing the informant's reliability

We have addressed whether an informant's tip can provide the sole basis for

q, T~n~y stop in three cases. In Sieler, and its predecessor, Lesnick, we analyzed·

both the "veracity" of the informer and his or her "basis of knowledge" separately.

We explained:.

[R]eliability by itself generally does not justify an investigatory detention .... [T]he State generally should not be allowed to detain and question an individual based on a reliable informant's tip which is ·merely a bare conclusion unsupported by a sufficient factual basis which is d~sclosed to the police prior to the detention.

Sieler, 95 Wn.2d at ~·8; see Lesnick, 84 Wn.2d at 944.

Ir. Lesnick, we held that an anonymous tip alleging that the defendant was . ··.' .' '

attempting to sell illegal gambling "'punchboards "' out of his van did not justify • 0

stopping .. . the van because . the tipster "refus[ ed] to identify himself and [did] not

provid[e] ·. .' any .information as to the source of his knowledge." Lesnick, 84 Wn.2d at .

941. In that ca,se, the information lacked both veracity and factual basis. This court

noted that the officers also had no urgent cause to act on this tip alone because the

9 State v. Z. UE., No. 89894--4

SU$p~cted cr.ime posed no thr~at of physical. violence or harm to society or the

officers .

. . . .Similarly, .' Sieler. . involved a dispatch ' ' ' call advising the police officers that a

named but . . .otherwise . unknown informant reported a "drug sale" in a school . ' ·,. ' '

parking lot. Sieler,.95 Wn.2d at 44. Tbe informant gave a description ofthe car

involved in the sale but did not provide any factual basis for his belief that a sale

had occurred. Based on this tip alone, the officers pulled over a car located near the

school that matched the given description. Even though this informant provided his

name, we concluded that the informant's report lacked sufficient indicia of

reliability because neither its veracity nor its factual basis could be established.

In State v. Kennedy, 107 Wn.2d 1, 8, 726 P.2d 445 (1986), our third and

most recent decision on .this issue, we did not overturn Lesnick or Sieler, but we

glossed over the two--pronged distinction. In that case, we determined that the

"veracity" of the informant . was .. sufficient because the informant was well known

and the officer had received reliable tips from him for several months, at least one

· of which had previously led to the issuance of a warrant and subsequent arrest. 'I • ' •

Kennedy, 107 Wn.2d at 8. We did not assess the factual basis prong.

In light of those opinions, the Court of Appeals divisions have differed in

their analysis of this issue. Division Two requires that both veracity and basis of

knowledge ' ' . must '.be analyzed . as separate elements. See State v. 1-lopkins, 128 Wn.

10 State'v. Z. UE., No. 89894~4 .

.. . ' . App. 855, 862-63, 117 P.3d 337 (2005). Division One applies a "totality of the

circumstances" ·analysis, whereby vetacity and basis of knowledge are mere factors

for consideration. See State v. ·Marcum, 149 Wn. App. 894, 205 P.3d 969 (2009);

State v·. Lee, '147 \Vn. App. 918, 199 P.3d 445 (2008).

"ro resolve this apparent split, we acknowledge that both the "veracity" and "factual basis" prongs are helpful to the reliability inquiry but we decline to adopt

a rule whereby each prong is treated as a necessary element. Such a bright line rule

could potentially restrict officers in their ability to act in scenarios not yet

. contemplated. The appropriate constitutional analysis for a stop precipitated by an . '·

informant is a review of the reasonableness of the suspicion under the totality of

the circumstances. In so concluding, we do not intend to overturn Lesnick or Sieler.

In both cases, we found the circumstances were such that the officers were

unreasonable in relying solely on bare assertions of criminal activity from

essentially _anonymous informants. But we maintain that a more flexible approach

is needep and that each case requires an individualized review of the

circumstances.

The United States Supreme Court has applied a .similar "totality of the

circumstances" approach in deciding whether the tip fl·om an anonymous 911

?aller was sufficiently reliable to support a Terry stop. See Navarette v. California,

~-,_.u.s.· ______, 134 S. Ct. 1683, 188 L. Ed. 2d 680 (2014). In that case, the caller's

11 State v. Z. U:E., No. 89894-4

report that the defendant's pickup truck ran her off the road was sufficient to

support a stop of the suspected drunk truck driver. The Court decided that several

factors 'su.pported' the caller's 'reliability: the caller was an eyewitness, she made the

report coi1temporarieously to the ·incident, and she called the emergency 911 line,

making her accountable for the provided information; since police can trace those

calls. Navarette, 134 S. Ct. at 1689. The Court explained that the officer did not

<(1. need to corroborate the caller's allegations prior to pulling over the truck because,

as a matter of policy, officers should not be required to use less intrusive means to

investigate a possible drunk driver: "allowing a drunk driver a second chance for

dangerous conduc:t could have disastrous consequences." Navarette, 134 S. Ct. at

1691-92. 4

w.e use these cases to guide our analysis, beginning with each of the

officers' asserted suspicions. The State's first assertion--that the officers were

investigating a gang:-related assault in connection with the shirtless man-can be

disposed of without a detailed analysis. Even assuming that the 911 calls were

sufficiently' reliable, . ' only two' facts potentially linked the subject to the car: (1) the ', .

car was located near Center and Union, where a 911 caller indicated that the

4 In Navarette, both the majority and the dissent embrace a "totality of the circumstances" analysis but apply the facts to reach opposite results. Given our analysis of the facts presented in this case;. we need not resolve which application of the facts in Navarette is more consistent with our cases under article I, section 7. We do stress that although the Fourth Amendment framework guides our ana~ysis here, article I,. section 7 may require a stronger showing by the State to establish that the suspicion was reasonable under the circumstances.

12 State v. Z. U.E., No. 89894-4

shirtless man's car was headed, and (2) one of the car's female passengers

reportedly interacted with the shirtless man several minutes earlier. All ofthe

officers' other observations contradicted that suspicion: the car did not match the

description ofthe twb~door car reportedly carrying the shirtless man, it did not

contaill eight individuals, andnei:ther of the nlale passengers matched the

desci·iptimi of a shirtless, bald man. The State has not established sufficient facts to

support a reasonable suspicion that the bald, shirtless subject was in the car.

The State's second assertion-that the officers stopped the car to investigate

a minor in possession of a firearm-requires a more detailed analysis. The veracity

and basis of knowledge factors are particularly useful to our evaluation of the

il?J?rmant's credibility in this case. The officers had little reason to doubt the

veracHy of Dawn, the 911 caller who reported the minor in possession: the relayed ,' \ ' ·' . .

call was made by a citizeneyewitn~ss, it was made contemporaneous to the

qnfolding . '... of the. .events, ' . . it came through an emergency 911 line rather than the ' ..

police business line, and the caller provi.ded her name and contact information. All

these factorstend to bolster the reliability of the tip.

Similar to the facts in Sieler and Navarette, the officers' alleged suspicion

hinged on a named, but otherwise unknown, 911 caller's assertion that the subject

wa~ engaged in criminal activity. Specifically, the caller alleged that the female

was 17 years old, and therefore a minor, which is the only "fact" that potentially

13 State v. Z. U.E., No. 89894-A

makes the girl's possession of the gun unlawful for the articulated crime. However,

because the caller did not ofier any factual basis in support of that allegation, the

officers could not ascertain how the caller knew the girl was 17 rather than, say, 18

years old: The officers knew nothing about Dawn (aside from her contact

information), Dawn's relationship with the female, or why Dawn suspected that the

girl had committed a crime in the first place. Although we presume that Dawn

reported honestly, the officers had no basis on which to evaluate the accuracy of

her estimation. We follow our holding in Sieler and conclude that this 911 caller's

asserti~n cannot create a sustainable basis for a Terry stop.

Corroborative observations

Al)sent circumstances sufficiently establishing the reliability of the tip, the

off1cers must be ::~ble to independently corroborate "'either [2] the presence of :. ' . .,

criminaLactivity or [3]that the informer's information was obtained in a reliable

fashionY' Sieler, 95 Wn.2dat 47 (alterations in original) (quoting Lesnick, 84

Wn.2d '·. . . . ·, , at 944).. In tbis '· . case, the State can point to no observations supporting a

reasonable . . suspicion . .~ of criminal . activity. The officers . '. themselves did not observe

the female passenger with a gun, nor. could they reasonably confirm the female's

age prior to the stop. And because the officers never contacted any of the 911

witnesses, they were unable to establish whether the tips were obtained in a

reliable manner. At most, the officers were able to verify that a female of a

14 State v. Z. U.E., No. 89894-4

matching description was located in the general area. But corroboration of an

innocuous fact, such as appearance, is insufficient. Marcum, 149 Wn. App. at 903.

Exigency of the circumstances

The State alternatively asserts that the seriousness of the reported crime

justified the officers' quick and invasive response, even on potentially unreliable

information. We agree that under certain conditions, officers must be afforded

some leeway; when a tip involves a serious crime or potential danger, less

reliability may be required for a stop than is required in other circumstances.

Sieler, 95 Wn.2d at 50; Lesnick, 84 Wn.2d at 944-45. We read the United States

Supreme Court's decision in Navarette-that a single anonymous 911 call may

justify pulling over a reported drunk driver-as largely turning on this factor.

Drunk drivers pose a threat to everyone on the road, and officers must be able to

take action to prevent a potentially imminent accident. Navarette, 134 S. Ct. at

1691-92.

The circumstances in this case did not similarly warrant the police's

immediate and invasive action. First, the officers had no reason to suspect that the

female suspect posed any kind of threat to the public because, as the dispatch

center advised earlier, she reportedly disarmed herself by handing off the gun. We

also reject the State's argument that the female passenger's brief interaction with

the shirtless man implicated the entire car in ongoing serious criminal activity and

15 State v. Z. UE., No. 89894-4

violence. That inference is too tenuous to justify an immediate seizure of the

vehicle and its passengers. In such a case, lacking in any indication that the seized

car posed a threat to others, we conclude that the State has not established a

reasonable suspicion of criminal activity to support the Terry stop.

CONCLUSION

In determining whether the information provided by a series of 911 calls

provided the officers sufficient reliable information to justify stopping Z.U.E.'s

car, we decline to strictly apply the two-pronged Aguilar/Spinelli analysis but we

recognize the two factors' relevance and usefulness to the reliability analysis. In

any specific case, each factor may weigh differently. In the case before us, the

State has not established that the series of 911 calls provided the officers with any

articulable reason to suspect any of the passengers in this particular car were

engaged in criminal activity. We conclude that the officers' subsequent seizure of

Z.U.E. was therefore unlawful, and any evidence obtained as a result of that

seizure should have been suppressed at trial. 5

5 Because we conclude that the stop was unlawful, we do not reach the issue of whether the officers needed an individualized suspicion of Z.U.E. specifically to order him out of the car.

16 State v. Z. UE., No. 89894-4

We affirm the Court of Appeals and remand for further proceedings.

WE CONCUR:

17 State v. Z. UE., No. 89894-4 (Gordon McCloud, J., Concurrence)

No. 89894-4

GORDON McCLOUD, J. (concurring)-! agree with the majority that under

article I, section 7 of the Washington State Constitution, an informant's tip must bear

sufficient indicia of reliability under the totality of the circumstances to support a

stop. Majority at 8. I also agree with the majority that the single, uncorroborated,

essentially unidentified informant's tip about the female in this case lacked

reliability under this "totality of the circumstances" test. Majority at 14.

But I disagree with the majority's description of our "totality of the

circumstances" test. The majority here relies in part on Navarette v. California,

_U.S._, 134 S. Ct. 1683, 188 L. Ed. 2d 680 (2014) to describe that test. Majority

at 11-13. But in that 5-4 decision, the majority-applying the Fourth Amendment

to the United States Constitution-gave the "totality of the circumstances" test a

very broad reading. Id. The Washington State Constitution, and Washington cases,

however, compel a different conclusion. I believe that we should clarify that article

1 State v. Z. UE., No. 89894-4 (Gordon McCloud, J., Concurrence)

I, section 7 compels us to adopt a standard as protective as the one that the Navarette

dissent adopted. Navarette, 134 S. Ct. at 1692-97 (Scalia, J., dissenting).

I also disagree with the majority's assertion that a court applying the "totality

of circumstances" test can consider only the crimes that the arresting officer

subjectively suspected. The reason is that whether there is reasonable suspicion to

stop a suspect is an objective inquiry, not'a subjective one. The majority's erroneous

adoption of a subjective test ties the court's hands.

Applying the proper "totality of circumstances" test, though, with a proper

objective assessment of facts, I agree that the stop ofthe female in the car here was

unconstitutional. I therefore concur.

I. The Navarette Dissent Is More Consistent with Washington Law than the Navarette Majority

The majority in the instant case cites to the Navarette majority as supplying

the proper "totality of the circumstances" standard under Washington constitutional

law. Majority at 11 ("The United States Supreme Court has applied a similar

'totality of the circumstances' approach"). Navarette, however, did not consider the

fact that article I, section 7 and Washington case law are more protective of

individual rights than the Fourth Amendment. State v. Athan, 160 Wn.2d 354, 399,

158 P.3d 27 (2007) (Fairhurst, J., dissenting) (citing State v. Jackson, 150 Wn.2d

2 State v. Z. U.E., No. 89894-4 (Gordon McCloud, J., Concurrence)

251, 259, 76 P.3d 217 (2003)). In Navarette, the Supreme Court held that based on

the totality of the circumstances, an anonymous 911 caller's tip gave police

reasonable suspicion to support a Terryl stop of a vehicle. Navarette, 134 S. Ct. at

1688. The 911 caller there asserted that a truck had run her off the road and gave a

description of the truck and its license plate. Id. at 1686-87. Officers then stopped

a truck matching the description. I d. at 1687. But that single caller did not identify

herself, and there was no corroboration. Critically, after following the truck for

several miles based on the tip, the officers saw nothing improper about the driver or

the truck.

Nevertheless, the Navarette majority held that the call was sufficiently reliable

to support a stop under the totality of the circumstances for three reasons: (1) the

caller was an eyewitness, (2) the "timeline of events" indicated that the call was a

contemporaneous report, which evidence law deems relatively credible, and (3) the

call was made on the 911 system that discourages false reports by recording callers'

voices and geographic locations. Id. at 1688-89. The Court stopped short ofholding

that 911 calls are per se reliable. Id. at 1690. But it held that a "caller's use of the

911 emergency system" is relevant to reliability-and hence to the reasonable

1 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). 3 State v. Z. UE., No. 89894-4 (Gordon McCloud, J., Concurrence)

suspicion analysis-because "a reasonable officer could conclude that a false tipster

would think twice before using such a system." ld.

Notably, the Navarette Court was careful to limit its holding on the 911 call

to ongoing crimes. ld. at 1690 n.2 ("Because we conclude that the 911 call created

reasonable suspicion of an ongoing crime, we need not address under what

circumstances a stop is justified by the need to investigate completed criminal

activity.").

The Navarette dissent adopted a different approach. 2 The dissent applied a

"totality of the circumstances" test but described it as requiring more assurances of

veracity and reliability than those provided by a single, uncorroborated 911 call.

Regarding the caller's veracity, the dissent explained that the purported safeguards

in the 911 system did not assist the police in obtaining any identifying information

about the caller, who remained anonymous, or about the caller's geographical

location. Id. at 1692, 1694 (Scalia, J., dissenting). The dissent would have declined

to find reliability based almost exclusively on the caller's use of the 911 system

absent any corroborating calls or observations.

2The majority asserts that the Navarette majority and dissent adopt essentially the same legal test, but apply it differently. Majority at 12 n.4. I respectfully disagree. 4 State v. Z. UE., No. 89894-4 (Gordon McCloud, J., Concurrence)

This was not just a different view of the facts. The Navarette dissent's

description of the "totality of the circumstances" test is far more protective of the

right to be free of warrantless seizures and is also more consistent with our court's

decisions than theNavarette majority's description of that test. For example, in State

v. Sieler, we held that a named but otherwise unknown citizen informant is not

presumed to be reliable and a report from such an informant may not independently

justify a warrantless investigative stop. 95 Wn.2d 43, 48, 621 P.2d 1272 (1980)

("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."). Similarly, in State v. Cardenas-Muratalla, a 911 caller reported

that a man had a gun in a high crime area of downtown Seattle and the man had

shown the caller the gun but had not threatened the caller. 179 Wn. App. 307, 310,

319 P.3d 811 (2014). The Court of Appeals in Cardenas-Muratalla held that

"neither the informant nor the informant's tip was reliable. The officers knew

nothing about the 911 caller. The caller did not give his name, and the 911 operator

was unable to reach the caller on a call-back. Further, the tip was not the report of

5 State v. Z. U.E., No. 89894-4 (Gordon McCloud, J., Concurrence)

any criminal activity." 3 Id. at 316-17; see also State v. Lesnick, 84 Wn.2d 940, 944,

530 P.2d 243 (1975) ('"It is difficult to conceive of a tip more "completely lacking

in indicia of reliability" than one provided by a completely anonymous and

unidentifiable informer, containing no more than a conclusory assertion that a certain

individual is engaged in criminal activity. While the police may have a duty to

investigate tips which sound reasonable, absent circumstances suggesting the

informant's reliability, or some corroborative observation which suggests either the

presence of criminal activity or that the informer's information was obtained in a

reliable fashion, a forcible stop based solely upon such information is not

permissible."' (quoting State v. Lesnick, 10 Wn. App. 281, 285, 518 P.2d 199

(1973))).

The Navarette dissent is also consistent with Washington law in stating that

"generally available knowledge in no way makes it plausible that the tipster saw the

car run someone off the road." Navarette, 134 S. Ct. at 1693 (Scalia, J., dissenting).

In Washington, confirming a subject's description, location, or other innocuous facts

generally does not satisfy our corroboration requirement. Sieler, 95 Wn.2d at 49-50

3 Accord Matthews v. State, 431 S.W.3d 596, 604 n.29 (Tex. Crim. App. 2014) (tip not reliable in part because there was no evidence that caller knew about '"call sheet'" or that caller could actually be traced); State v. Saggers, 182 Wn. App. 832, 847, 332 P.3d 1034 (20 14) (distinguishing Navarette because 911 call placed from a gasoline station pay phone had no connection to caller). 6 State v. Z. UE., No. 89894-4 (Gordon McCloud, J., Concurrence)

("police observation of a vehicle which substantially conforms to the description

given by an unknown informant does not constitute sufficient corroboration to

indicate that the informant obtained his information in a reliable fashion"); Lesnick,

84 Wn.2d at 943 (the fact that an informant described the defendant's vehicle

accurately is not sufficient corroboration for a stop); Campbell v. Dep 't ofLicensing,

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).

Additionally, in Washington, although "[a] citizen-witness's credibility is

enhanced when he or she purports to be an eyewitness to the events described," this

fact alone cannot establish reliability. State v. Lee, 14 7 Wn. App. 912, 918, 199 P .3d

445 (2008) (citing State v. Vandover, 63 Wn. App. 754, 759, 822 P.2d 784 (1992));

see Sieler, 95 Wn.2d at 48-50. 4

It is true that our decisions in Sieler and Lesnick relied on Fourth Amendment

cases, rather than article I, section 7 cases. At that point, however, the protections

applicable to seizures based on informant tips seemed to be coextensive. That is not

4And, similar to the dissent's argument in Navarette, the record here provides no indication of whether the informant called while observing the female or whether she waited until a later period of time. Navarette, 134 S. Ct. at 1694 (Scalia, J., dissenting). Thus, the notion of a contemporaneous report might not even apply. 7 State v. Z. U.E., No. 89894-4 (Gordon McCloud, J., Concurrence)

so anymore. Navarette clearly takes a different path from our holdings in Lesnick

and Sieler and from the Court of Appeals holdings in Hopkins 5 and Campbell. We

should now clarify that our own state constitution, with its heightened privacy

protections, dictated our path. See State v. Fitzsimmons, 94 Wn.2d 858, 858-59, 620

P .2d 999 (1980) (per curiam) (clarifying that federal constitutional analysis was

"'persuasive,'" but that state court rule provided an adequate and independent state

ground for the court's decision).

Under a fair reading of the Navarette majority, the automobile stop in this case

was probably permissible. The citizen informant reported observing the female and

provided a description of her, called the emergency 911line, and provided her name

and contact information. Majority at 13-14.

But, under a fair reading of Washington law, as the majority acknowledges,

this stop was not permissible. !d. The single informant here was unknown to law

enforcement and provided a conclusory allegation that the subject engaged in

activity that might have been criminal. No factual basis supported the informant's

allegation that the female was a minor or that she engaged in any criminal activity

at all. Police officers could corroborate only innocuous facts.

5 State v. Hopkins, 128 Wn. App. 855, 862-63, 117 P.3d 337 (2005). 8 State v. Z. U.E., No. 89894-4 (Gordon McCloud, J., Concurrence)

In sum, because the dissent in Navarette more accurately reflects our state's

independent constitutional law than does the majority, I would adopt the Navarette

dissent's reasoning and reject the majority's. But because the majority here, in

practice, ultimately relies on our state case law in its analysis, I agree with its

decision to affirm.

II. The Officers' Articulated Crime Does Not Limit Our Reasonable Suspicion Inquiry

I also disagree with the majority that we must limit our reasonable suspicion

inquiry to the particular crimes for which the officers here articulated a reasonable

suspicion. Majority at 7-8 ("In this case, the State argues that the officers reasonably

suspected that at least one of the car's occupants was involved in a potential gang-

related assault or a minor in possession of a firearm, and we focus our analysis on

the reliability of the information that supported each suspected crime."). This

approach limits the court's analysis of the reasonableness of the stop to the officer's

subjective beliefs about what crimes were afoot.

But we apply an objective, rather than a subjective, standard to determine the

reasonableness of an investigatory stop. State v. Duncan, 146 Wn.2d 166, 172, 43

P.3d 513 (2002) (citing Terry, 392 U.S. at 21). For that reason, we can ask what

crimes were objectively supported by reasonable suspicion-not what crimes the

9 State v. Z. UE., No. 89894-4 (Gordon McCloud, J., Concurrence)

officer subjectively considered. As the Court of Appeals said in State v. Mitchell,

"[T]he existence of ... reasonable suspicion is determined based on an objective

view of the known facts, and is not dependent upon the officer's subjective belief or

upon the officer's ability to correctly articulate his or her suspicion in reference to a

particular crime." 80 Wn. App. 143, 147, 906 P.2d 1013 (1995).

Here, the State argues that the particular crimes the officers sought to

investigate were assault and a minor in possession of a firearm. Clerk's Papers at

91. And the majority is correct that no articulable facts supported a reasonable

suspicion that the female-as opposed to, for example, the shirtless male-

committed those crimes. But in this case, as in Mitchell, a court could also consider

whether there was reasonable suspicion that the female committed some other crime.

One possible crime that might be considered here is the same crime that the court

considered in Mitchell: unlawful display of a firearm. See Mitchell, 80 Wn. App. at

148. RCW 9.41.270(1) makes it unlawful to "carry" certain weapons "in a manner,

under circumstances, and at a time and place that either manifests an intent to

intimidate another or that warrants alarm for the safety of other persons." Given the

unreliability of the informant's tip-along with the fact that unlawful display of a

weapon is a gross misdemeanor-it does not provide the missing reasonable

suspicion, either. As the majority states, the answer might be different in different

10 State v. Z. UE., No. 89894-4 (Gordon McCloud, J., Concurrence)

circumstances, such as an ongoing emergency. Majority at 15; Sieler, 95 Wn.2d at

50; Lesnick, 84 Wn.2d at 944-45.

Nothing in the record provides reasonable suspicion to stop the female in the

car under the proper "totality of the circumstances" test. For that reason, I agree that

the stop of the car was unconstitutional.

11 State v. Z. UE., No. 89894-4 (Gordon McCloud, J., Concurrence)