Lambert v. State , 34 Ark. App. 227 ( 1991 )

John E. Jennings, Judge.

On July 27, 1989, Arkansas State Trooper Kelly Watkins was told by his captain, George Riggs, that the state police had received an anonymous tip from someone in Little Rock that a man named “Jerry” would be leaving the Hot Springs area at approximately 3:00 p.m. The informant said that “Jerry” would be driving a black truck with “Woodline Motor Freight” in orange letters on it and hauling a shortbed trailer. The informant said that the driver would have approximately ten pounds of marijuana with him.

Trooper Watkins set up surveillance on Highway 70 East between Little Rock and Hot Springs, and at about 3:50 p.m. saw a Woodline freight truck heading toward Little Rock. He immediately stopped the truck. At Watkins’ request the driver presented his driver’s license and identified himself as Jerry Lambert. Trooper Watkins immediately advised Lambert of his Miranda rights. He then asked Lambert if there was any marijuana in the truck. Lambert said there was, went to the truck and got it, and gave it to the trooper.

Lambert filed a motion to suppress which the trial court denied after a hearing. Appellant then entered a plea of guilty pursuant to Ark. Code Ann. § 5-64-401 (1987) and was sentenced to six years imprisonment. On appeal the sole contention is that the trial court erred in denying the motion to suppress. We hold that the disposition in this case is governed by the decision of the United States Supreme Court in Alabama v. White, — U.S. —, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), and that decision requires reversal here.

“Reasonable suspicion,” which is something less than probable cause, is required to constitutionally justify an investigative stop. See Alabama v. White, supra; see also Kaiser v. State, 296 Ark. 125, 752 S.W.2d 271 (1988); Ark. R. Crim. P. 3.1. An anonymous tip, standing alone, will not ordinarily give rise to the reasonable suspicion necessary to justify an investigatory stop. See Alabama v. White, supra; see also Willett v. State, 298 Ark. 588, 769 S.W.2d 744 (1989); Nottingham v. State, 29 Ark. App. 95, 778 S.W.2d 629 (1989).

The Court in Alabama v. White discussed the concept of reasonable suspicion at length:

Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. . . .Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors — quantity and quality — are considered in the ‘totality of the circumstances — the whole picture,’ that must be taken into account when evaluating whether there is reasonable suspicion. Thus, 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 Gates Court applied its totality of the circumstances approach in this manner, taking into account the facts known to the officers from personal observation, and giving the anonymous tip the weight it deserved in light of its indicia of reliability as established through independent police work. The same approach applies in the reasonable suspicion context, the only difference being the level of suspicion that must be established.

— U.S. at —, 110 S.Ct. at 2416, 110 L.Ed.2d at 309 (citations omitted).

In White the police officer received a telephone call from an anonymous person, stating that Vanessa White would be leaving 235-C Lynwood Terrace Apartments at a particular time in a brown Plymouth station wagon with the right taillight lens broken, that she would be going to Dobey’s Motel, and that she would be in possession of about an ounce of cocaine inside a brown attache case. The officers went to Lynwood Terrace Apartments and saw a brown Plymouth station wagon with a broken right taillight in the parking lot in front of the 235 building. The officers saw the defendant leave the 235 building and get into the station wagon. They then followed the defendant as she drove “the most direct route to Dobey’s Motel.” Just before the defendant reached the motel, she was stopped by the officers who, after obtaining her consent to search, found cocaine in the car.

In upholding the conviction the Court said:

Although it is a close case, we conclude that under the totality of the circumstances the anonymous tip, as corroborated, exhibited sufficient indicia of reliability to justify the investigatory stop of respondent’s car.

If Alabama v. White was a “close case,” we cannot hold that the facts corroborating the tip in the case at bar are sufficient in quality or quantity, under the totality of the circumstances test, to give rise to reasonable suspicion. The only information that the trooper had at the time of the stop which matched with the anonymous telephone call was that he saw a Woodline Motor Freight truck on the highway between Hot Springs and Little Rock at about the time the caller said the truck should be there. In contrast to White, there was no confirmation of the departure point and the officers did not follow the truck to see whether it was, indeed, going to Little Rock as the caller predicted. The description of the vehicle here was also less precise.

Indeed, the facts in the case at bar do not compare favorably with those in Kaiser v. State, 296 Ark. 125, 752 S.W.2d 271 (1988). There, Randolph County officers had received information from Missouri officers that Kaiser would be traveling through Randolph County in a gray or silver Lincoln, bearing the license number KLN 436, and carrying fifty pounds of marijuana. At trial the Randolph County Sheriff testified that the Missouri officers had told him that their information came from a confidential (rather than anonymous) informant whom they believed to be very reliable. See Kaiser v. State, 24 Ark. App. 19, 746 S.W.2d 559 (Cooper, J., dissenting). We upheld the circuit court’s decision based on arguments similar to those made by the state in the case at bar. We said:

The question of the reasonableness of a stop based on information received from an informant was reached in Adams v. Williams, 407 U.S. 143 (1972). In that case, police officers stopped a suspected drug dealer on the basis of an informant’s tip and the stop was proper in part because the information given by the informant was verifiable by the officer’s observations. In the instant case, the stop of appellant was based on information gained from an informant. Appellant’s vehicle appeared in the area within the predicted period of time, matched the description given, and bore the predicted license plates. Those details were sufficient indicia of the informant’s reliability to create a reasonable suspicion, permitting an investigatory stop of appellant’s vehicle.

In a unanimous decision, the Arkansas Supreme Court reversed. The court held that if the Missouri officers had not developed a reasonable suspicion of Kaiser based on the reliability of the informant, the seizures resulting from the stop could not stand.

Our conclusion is that under either the Arkansas Supreme Court’s decision in Kaiser or the United States Supreme Court’s decision in White, the facts in the case at bar are insufficient to constitute the reasonable suspicion necessary to justify an investigatory stop.

Reversed and Remanded.

Danielson and Mayfield, JJ., dissent.