People v. George ( 1996 )

Justice KIRSHBAUM

delivered the Opinion of the Court.

In this interlocutory appeal filed pursuant to C.A.R. 3 and 4.1, the People seek review of a ruling by the Douglas County District Court suppressing evidence seized by two Castle Rock, Colorado, police officers after they stopped a van driven by the defendant, Lisa Michelle George. The tidal court determined that, at the time they stopped the van, the officers did not possess sufficient specific and articulable facts to support a reasonable suspicion that criminal activity had occurred, was occurring, or was about to occur. We affirm the trial court’s ruling.

I

On December 17, 1994, at approximately 11:45 p.m., an anonymous person telephoned the Castle Rock Police Department to report a possible altercation “between two vehicles” in the parking lot of a Castle Rock tire store located one-half block from the police station. The caller stated that one of the vehicles had followed the other one into the parking lot and that one of the vehicles was a van. The caller did not report that any altercation had occurred or was occurring.

Officer Patricia Lisk, accompanied by Officer Clifford Archambo, drove a patrol car to the parking lot. When they arrived at the scene, approximately thirty seconds to one minute after the telephone call was received, they observed a van moving toward them. Officer Lisk testified that she thought the van was trying to leave the parking lot and that she saw “nothing suspicious about that.” She also stated that she had the impression that the other vehicle reportedly at the scene had departed.

When Officer Lisk blocked the exit and activated the patrol car’s overhead lights, the driver, George, stopped the van. Officer Ar-chambo initially spoke to George and told Officer Lisk that an odor of alcoholic beverage was noticeable on George’s breath. Officer Lisk then approached George, observed that George’s eyes were watery and bloodshot, and directed George to perform certain preliminary roadside tests. When George refused to take a requested preliminary breath test and became uncooperative, Officer Lisk arrested George for driving under the influence of alcohol, placed her in the patrol car, and returned to the van to obtain the vehicle registration.

As she approached the van, Officer Lisk was informed by another officer that a small envelope was located on a step just inside the driver’s side of the van. Officer Lisk opened the envelope and discovered a white powdery substance later determined to be methamphetamine. George was ultimately charged with the offenses of unlawful possession of a controlled substance pursuant to sections 18-18-204 and -405(l)(a), (2)(a)(I), 8B C.R.S. (1995 Supp.); driving under the influence of alcohol pursuant to section 42-4-1202(l)(a), 17 C.R.S. (1986);¹ and resisting arrest pursuant to section 18 — 8—103(l)(a), 8B C.R.S. (1986).

Prior to trial, George filed a motion to suppress all evidence obtained as a result of the stop of her van, arguing that the investigating officers did not have a reasonable and articulable basis in fact to believe that she was engaged in any criminal activity at the time she stopped the vehicle. The trial court agreed and granted the motion.

II

The People argue that the trial court erred in concluding that Officers Lisk and Archam-bo had no reasonable suspicion to justify their stop of George’s van. We disagree.

A police official may stop and question a driver of a motor vehicle if the official has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime; if the purpose of the detention is reasonable; and if the character and scope of the detention is reasonable when considered in light of its purpose. People v. Weston, 869 P.2d 1293, 1296 (Colo.1994); Stone v. People, 174 Colo. 504, 509, 485 P.2d 495, 497 (1971). A police official’s suspicion is “reasonable” when it has an “ ‘articulable and specific basis in fact.’ ” People v. Garcia, 789 P.2d 190, 192 (Colo.1990) (quoting People v. Savage, 698 P.2d 1330, 1334 (Colo.1985)). The relevant inquiry is whether the “specific and articulable facts known to the officer” as well as the “rational inferences from these facts” would support a reasonable suspicion of criminal activity so as “justify intrusion into the defendant’s personal security.” Garcia, 789 P.2d at 192.

The information known to Officers Lisk and Archambo when they stopped George’s van consisted entirely of information supplied by an anonymous telephone caller. Because information supplied by an anonymous source may often be unreliable, that information may warrant an investigatory stop only if it is verified by sufficient independent corroborating evidence of criminal activity. Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 2415, 110 L.Ed.2d 301 (1990); Garcia, 789 P.2d at 192. When a tipster’s information has been sufficiently corroborated, that information together with all other facts known to the investigating officer must be evaluated as a whole to determine whether sufficient reasonable suspicion existed to justify the investigatory stop. People v. Contreras, 780 P.2d 552, 555 (Colo.1989).

The trial court applied these standards in determining that at the time they stopped the van driven by George Officers Lisk and Archambo lacked the reasonable suspicion of past, present, or future criminal conduct required to justify an investigatory stop of a moving motor vehicle. The trial court found as matters of historical fact that when the officers initially entered the parking lot they knew only that a van and another vehicle had lawfully entered the lot and that the caller had expressed concern about a possible altercation “between [the] two vehicles.” They noticed nothing suspicious about the way the van was being driven, had no information regarding its color or license plate, and did not see any other occupied vehicle. The only fact they corroborated was the fact that a van had lawfully entered the parking lot. Thus at 11:46 p.m. on December 17, 1994, the officers knew no specific and articulable facts to support a suspicion that the occupants of the van had engaged in, were engaging in, or were about to engage in criminal conduct.

The trial court’s conclusion is supported by our decision in People v. Garcia, 789 P.2d 190 (Colo.1990), wherein we affirmed a trial court’s order suppressing seized evidence. In that case the anonymous informant told police officials the defendant’s name, that the defendant would be leaving an apartment located “in the 300 block of Chipeta” at approximately 1:00 p.m. that day, that the defendant would drive away from that location in a vehicle parked in a nearby alley, and that the vehicle was a brown Toyota or station wagon. The tipster also reported the license plate number of the vehicle and stated that approximately half an ounce of cocaine would be located under the hood of the car.

Police officials proceeded to the 300 block of Chipeta and observed a brown station wagon in a nearby alley displaying license plates matching the numbers provided by the informant. At approximately 1:10 p.m., the officers observed the defendant and a woman enter the vehicle and drive down the alley. The officers intercepted the defendant’s vehicle, questioned the defendant, requested and received permission to search the car, and found approximately one-half ounce of cocaine under the hood of the car.

We concluded, as had the trial court, that the officers lacked an articulable and specific basis in fact for suspecting criminal conduct. We first noted that the information provided by the informant was “not very specific or complete” because the informant did not provide an exact address, a description of the defendant, or the destination of the defendant. Garcia, 789 P.2d at 192-93. Additionally, we observed that the informant had not told police officials how long the cocaine had been in the vehicle or how he knew of its presence in the vehicle and that the “credibility of the informant and the basis of the informant’s knowledge were unknown.” Id. at 193. We noted that while the description of the car parked in an alley near the 300 block of Chipeta and the statement that a person would enter that car at approximately 1:00 p.m. were corroborated by the police officials’ observations, “[o]nly the corroboration of one instance of commonplace activity suggested that the tip was reliable.” Id. While we recognized that in some circumstances “verification of seemingly innocent details contained in a tip from an anonymous informant can be sufficient to supply the requisite corroboration,” we held that under the totality of the circumstances the officers “lacked an articulable and specific basis in fact for suspecting that criminal activity was afoot.” Id. at 192. As in Garcia, the only fact verified here was the commonplace fact that a van had entered the parking lot.

Our conclusion in this case that the officers lacked a specific and articulable basis in fact to reasonably suspect past, present, or future criminal conduct when they stopped the van driven by George is also supported by Alabama v. White, 496 U.S. 326, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). In White, the United States Supreme Court carefully reiterated the specificity of information that must be provided by an anonymous informant and the degree of corroboration of such information necessary to justify reliance upon an anonymous tip. In that case, a police official received a telephone call from an anonymous caller who stated that the defendant, Vanessa White, would depart from a particular apartment building at a particular time in a brown Plymouth station wagon with a broken taillight; that White would proceed to a certain motel; and that she would be transporting a brown briefcase containing approximately one ounce of cocaine. Id. at 327, 110 S.Ct. at 2415.

Two police officers were dispatched to the apartment building described by the informant. Upon their arrival, they observed a parked brown Plymouth station wagon with a broken taillight. They also observed White depart empty-handed from the building, enter the station wagon, and drive away. The officers followed the vehicle for nearly four miles along the most direct route to the motel, which route involved several turns. The officers stopped the vehicle just short of the motel and obtained White’s permission to search for cocaine. A search of the vehicle revealed a brown briefcase containing marijuana. Id.

Noting that the factual circumstances presented a “close case,” the Court determined that the anonymous tip, as corroborated by independent police work, exhibited sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.' Id. at 326-27, 110 S.Ct. at 2414-15. The court noted that the fact that the officers found a car precisely matching the tipster’s description was an easily obtainable fact of a condition presumably existing at the time of the call and in itself providing no guarantee of the reliability of the tipster’s information. Id. at 332,110 S.Ct. at 2417 (citing Illinois v. Gates, 462 U.S. 213, 245, 103 S.Ct. 2317, 2335, 76 L.Ed.2d 527 (1983)). The court emphasized that the tipster’s ability to predict White’s future behavior included details not readily ascertainable by the general public that indicated the tipster’s “special familiarity” with White’s affairs. Id. at 332, , 110 S.Ct. at 2417. The court stated that “[w]hen significant aspects of the caller’s predictions were verified, there was reason to believe not only that the caller was honest but also ... well informed, at least well enough to justify the stop.” Id.

As Garcia and White illustrate, the information supplied by an anonymous tipster must be sufficiently corroborated to supply the degree of reliability precisely absent in many circumstances of anonymous reporting of asserted criminal conduct. Both the content and the reliability of information known to police — the quality and the quantity of such information — must be considered in examining the totality of the circumstances to determine whether there was an articula-ble and specific basis in fact to support a reasonable suspicion of criminal conduct. White, 496 U.S. at 330, 110 S.Ct. at 2416.

In the instant case, the anonymous informant reported only that a van and another vehicle had entered a parking lot and that an altercation might possibly occur. No aspect of that report suggested that the informant had any personal information about the occupants of the vehicles. The informant supplied no facts to support the reported concern about what might subsequently occur. The corroborated fact of the lawful presence of a van in the parking lot is the corroboration of a fact presumably known or knowable by everyone — a corroboration that lacks the quality and quantity of detail sufficient to establish the reliability of the informant’s tip. White, 496 U.S. at 332, 110 S.Ct. at 2417; Garcia, 789 P.2d at 192.

Our conclusion in this case is consistent with our decision in People v. Melgosa, 753 P.2d 221 (Colo.1988). Initially, it must be observed that the dispositive issue in this case — the question of sufficient corroboration of an anonymous caller’s information — was not addressed in Melgosa. Furthermore, while the factual circumstances of that case supported the conclusion that the investigating officers had a reasonable suspicion to stop a moving vehicle, those factual circumstances differ markedly from the historic facts found by the trial court here. In Mel-gosa, a police dispatcher aired a report that a blue van was involved in an ongoing possible “burglary” of an automobile at a specific location. Id. at 223. There was no indication that the informant was anonymous. Within sixty seconds a police officer arrived at the scene and observed a blue automobile pulling away from the area where the alleged crime had reportedly been committed. The difference between the factual matrices of Melgosa and of the present case are stark. The police dispatch aired in Melgosa a particular color of a vehicle and indicated that the vehicle was at that moment possibly being used in furtherance of criminal conduct. In this case the dispatch simply indicated that a van was lawfully at a location and that the caller was concerned that an “altercation” might develop.

The trial court applied the standards we developed in Garcia to the historic facts it found and concluded that when they stopped George’s van the officers lacked an articula-ble and specific basis in fact to support a reasonable suspicion that criminal conduct involving the van had occurred, was occurring, or was about to occur. Under the totality of the circumstances, see People v. Bell, 698 P.2d 269, 272 (Colo.1985), we agree with the trial court’s conclusion.

Ill

For the foregoing reasons, we affirm the ruling of the trial court.

LOHR, J., concurs and specially concurs and ERICKSON, J., joins in the concurrence and the special concurrence. VOLLACK, C.J., dissents and MULLARKEY and KOURLIS, JJ., join in the dissent.

1 . This section has been relocated to § 42-4-1301(l)(a), 17 C.R.S. (1995 Supp.).