State of Tennessee v. June Anne Wascher ( 2016 )


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  •         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT KNOXVILLE
    January 20, 2016 Session
    STATE OF TENNESSEE v. JUNE ANN WASCHER
    Appeal from the Circuit Court for Sevier County
    No. AP-11-006-II    Richard R. Vance, Judge
    No. E2015-00961-CCA-R3-CD – Filed June 6, 2016
    The Defendant-Appellant, June Ann Wascher, entered a guilty plea to driving under the
    influence (DUI) in exchange for an eleven-month and twenty-nine day probationary
    sentence, after service of forty-eight hours in jail. As a condition of her plea, Wascher
    reserved a certified question of law challenging the denial of her motion to suppress,
    which was based upon an alleged unconstitutional seizure. Following our review, we
    reverse and vacate the judgment of the trial court and dismiss the case.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed,
    Vacated and Dismissed
    CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which NORMA MCGEE
    OGLE and ROBERT W. WEDEMEYER, JJ., joined.
    Bryan E. Delius and Bryce W. McKenzie, Sevierville, Tennessee, for the Defendant-
    Appellant, June Ann Wascher.
    Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant
    Attorney General; Charme P. Allen, District Attorney General; and Ron C. Newcomb
    and Greg Eshbaugh, Assistant District Attorneys General, for the Appellee, State of
    Tennessee.
    OPINION
    On October 19, 2010, Officer Brad Lowe of the Pigeon Forge Police Department
    was alerted by his dispatcher to “be on the lookout” (BOLO) for an “impaired driver” in
    a black Chevrolet truck, bearing license plate number 014XXD and traveling from
    Gatlinburg towards Pigeon Forge. Minutes later, Officer Lowe identified a truck
    matching that description in a gas station parking lot. Officer Lowe pulled in behind the
    truck, but he did not activate his blue lights. As he approached, he observed a man, later
    determined to be the owner of the truck, standing next to the driver-side door of the truck
    and a woman, Wascher, sitting in the driver‟s seat.
    In the police recording of the encounter, which was played at the suppression
    hearing, Officer Lowe approached the truck, and the man confirmed that he was the
    owner. Officer Lowe asked “who‟s driving,” to which the man responded, “she is,”
    referring to Wascher. Officer Lowe then inquired, “who was [driving],” to which the
    owner responded, “she is [sic], since we got here.” When Officer Lowe asked the owner
    if he had driven the truck from Gatlinburg, he responded that he had not. He then asked
    Wascher if she had driven “the whole way” from Gatlinburg, and she confirmed that she
    had. Officer Lowe informed the owner and Wascher that he had received “a report of an
    impaired driver behind the wheel” and indicated he believed the owner to be that driver.
    The owner again denied that he had been driving, and Wascher repeated that she had
    been driving “since Gatlinburg.” At this point, Officer Lowe obtained both individuals‟
    driver‟s licenses and went inside the gas station to determine if there was a witness or
    video recording that could verify who had been driving the truck. Approximately one
    minute had elapsed between the time Officer Lowe approached the truck to when he
    received Wascher‟s license. After Officer Lowe returned from inside the gas station, he
    questioned Wascher further, and she agreed to perform field sobriety tests. Officer Lowe
    determined from the tests that Wascher was impaired, and he placed her under arrest for
    DUI.
    Officer Lowe admitted that at the time he took Wascher‟s license, he “had done
    nothing to determine that [Wascher] was under the influence,” and “had no suspicion . . .
    that [Wascher] was driving under the influence.” Officer Lowe did not suspect Wascher
    of driving under the influence, “until [he] came back [from inside the gas station.]” “The
    only thing [he] could tell about [Wascher] was [that] her eyes were watery[.]” Finally,
    Officer Lowe admitted that the purpose of taking Wascher‟s driver‟s license was to
    prevent her from leaving. Based on this testimony, defense counsel moved to suppress
    all the evidence arising after Officer Lowe confiscated Wascher‟s driving license, arguing
    that the taking of her license constituted a seizure of her person pursuant to State v.
    Daniel, 
    12 S.W.3d 420
    (Tenn. 2000), which at a minimum requires a reasonable
    suspicion that the seized individual has committed or is about to commit a crime.
    In denying the motion, the trial court reasoned as follows:
    I think under the facts of this case, given all the other circumstances, it‟s a
    stretch to say that [] taking and holding her license for a temporary period
    of time to run her record, coupled with all the other information, was a
    violation of her rights. Again, I think the circumstances taken together
    gave this Officer reasonable grounds to temporarily intervene to conduct
    -2-
    his investigation. No attempts were made to leave. He used no physical
    force. He didn‟t tell anybody not to leave. He didn‟t tell anybody they
    were under arrest. So under that set of facts I deny the motion to suppress.
    Wascher entered a guilty plea and reserved the following certified question of law:
    Whether the trial court erred in denying the Defendant‟s motion to
    suppress when, at the time a law enforcement Officer seized the Defendant
    by confiscating her drivers‟ license, no exception to the warrant
    requirement existed in that there was no probable cause or reasonable
    suspicion of criminal activity, and no consensual encounter as required by
    Article I, Section 7 of the Tennessee Constitution and the Fourth and
    Fourteenth Amendments to the Constitution of the United States.
    ANALYSIS
    On appeal, Wascher claims that the trial court erred in denying her motion to
    suppress any evidence gained as a result of her unlawful seizure. Specifically, she claims
    that the information contained in the BOLO regarding a possibly intoxicated driver did
    not give the officer reasonable suspicion to detain her and that none of the information
    the officer gained during the consensual portion of his interaction with Wascher was
    supported by reasonable suspicion to detain her. The State responds that “the pre-seizure
    evidence that the defendant had been driving under the influence, alone, established
    reasonable suspicion.” For the reasons that follow, we agree with Wascher.
    I. Rule 37. Rule 37(b)(2) of the Tennessee Rules of Criminal Procedure allows
    an appeal from a guilty plea in certain cases under very narrow circumstances. An appeal
    lies from a guilty plea, pursuant to Rule 37(b)(2)(A), if the final order or judgment
    contains a statement of the dispositive certified question of law reserved by the
    defendant, wherein the question is so clearly stated as to identify the scope and the limit
    of the legal issues reserved. State v. Preston, 
    759 S.W.2d 647
    , 650 (Tenn. 1988). The
    order must reflect that the certified question was reserved as part of the plea agreement,
    that the State and the trial judge consented to the reservation and that they are of the
    opinion that the question is dispositive of the case. 
    Id. An issue
    is dispositive when this
    court must either affirm the judgment or reverse and dismiss. State v. Wilkes, 
    684 S.W.2d 663
    , 667 (Tenn. Crim. App. 1984). If these circumstances are not met, this court
    is without jurisdiction to hear the appeal. State v. Pendergrass, 
    937 S.W.2d 834
    , 837
    (Tenn. 1996). The certified question presented is dispositive, and all the prerequisites to
    Rule 37 have been met. Accordingly, we examine the merits of Wascher‟s question as
    certified.
    -3-
    II. Motion to Suppress. “A trial court‟s findings of fact in a suppression hearing
    will be upheld unless the evidence preponderates otherwise.” State v. Williams, 
    185 S.W.3d 311
    , 314 (Tenn. 2006) (citing State v. Odom, 
    928 S.W.2d 18
    , 23 (Tenn. 1996)).
    However, this court‟s review of a trial court‟s application of the law to the facts is de
    novo. State v. Day, 
    263 S.W.3d 891
    , 900 (Tenn. 2008) (citing 
    Williams, 185 S.W.3d at 315
    ; State v. Yeargan, 
    958 S.W.2d 626
    , 629 (Tenn. 1997)). Because the pertinent facts in
    this case are not in dispute, our review is de novo—one of application of the law to the
    facts. State v. Williamson, 
    368 S.W.3d 468
    , 473 (Tenn. 2012).
    Both the Fourth Amendment to the United States Constitution and article I, section
    7 of the Tennessee Constitution protect citizens from unreasonable searches and seizures.
    See U.S. Const. amend. IV; Tenn. Const. art. 1, § 7. The purpose of these constitutional
    protections is to “„safeguard the privacy and security of individuals against arbitrary
    invasions of government officials.‟” State v. Keith, 
    978 S.W.2d 861
    , 865 (Tenn. 1989)
    (quoting Camara v. Mun. Court, 
    387 U.S. 523
    , 528 (1967)). “The touchstone of the
    Fourth Amendment is reasonableness.” Florida v. Jimeno, 
    500 U.S. 248
    , 250 (1991)
    (citing Katz v. United States, 
    389 U.S. 347
    , 360 (1967)). “[A] warrantless search or
    seizure is presumed unreasonable, and evidence discovered as a result thereof is subject
    to suppression unless the State demonstrates that the search or seizure was conducted
    pursuant to one of the narrowly defined exceptions to the warrant requirement.”
    
    Yeargan, 958 S.W.2d at 629
    (citing Coolidge v. New Hampshire, 
    403 U.S. 403
    , 454-55
    (1971)). Accordingly, the State bears the burden of establishing by a preponderance of
    the evidence that a warrantless search or seizure is constitutional. See, e.g., State v.
    Simpson, 
    968 S.W.2d 776
    , 780 (Tenn. 1998).
    Not all police-citizen encounters implicate constitutional protections. See, e.g.,
    State v. Nicholson, 
    188 S.W.3d 649
    , 656 (Tenn. 2006). The Tennessee Supreme Court
    has recognized three tiers of interactions between law enforcement and private citizens:
    “(1) a full scale arrest which must be supported by probable cause; (2) a brief
    investigatory detention which must be supported by reasonable suspicion; and (3) brief
    police-citizen encounters which require no objective justification.” 
    Daniel, 12 S.W.3d at 424
    (citations omitted). Of these categories, “only the first two rise to the level of a
    „seizure‟ for constitutional analysis purposes.” 
    Day, 263 S.W.3d at 901
    . “[W]hat begins
    as a consensual police-citizen encounter may mature into a seizure of the person.”
    
    Daniel, 12 S.W.3d at 427
    . A seizure occurs “„when the Officer, by means of physical
    force or show of authority, has in some way restrained the liberty of a citizen.‟” 
    Day, 263 S.W.3d at 901
    -02 (quoting Terry v. Ohio, 
    392 U.S. 1
    , 19 n.16 (1968)). The relevant
    inquiry is “whether, „in view of all of the circumstances surrounding the incident, a
    reasonable person would have believed he or she was not free to leave.‟” State v.
    Randolph, 
    74 S.W.3d 330
    , 336 (Tenn. 2002) (quoting 
    Daniel, 12 S.W.3d at 425
    ).
    -4-
    The Tennessee Supreme Court has held that a consensual encounter may evolve
    into a seizure when the Officer retains the citizen‟s driver‟s license because a reasonable
    person would not leave without his or her identification. 
    Daniel, 12 S.W.3d at 427
    . The
    police must have either probable cause or reasonable suspicion at the time the individual
    is seized. See, e.g., 
    Randolph, 74 S.W.3d at 338
    . Whether reasonable suspicion existed
    in a particular case is a fact-intensive and objective analysis. State v. Garcia, 
    123 S.W.3d 335
    , 344 (Tenn. 2003). There is no dispute in this case that Wascher was seized when
    Officer Lowe confiscated her driver‟s license. The basic question is whether the seizure
    was supported by reasonable suspicion of ongoing criminal activity.
    One well-established exception to the warrant requirement allows for a brief
    investigatory stop or detention where the officer has “a reasonable suspicion, supported
    by specific and articulable facts, that a criminal offense has been or is about to be
    committed.” State v. Bridges, 
    963 S.W.2d 487
    , 492 (Tenn. 1997) (citing 
    Terry, 392 U.S. at 21
    ). However, the facts forming the basis of the officer‟s suspicion do not have to be
    based on the officer‟s personal observations and can come from information by another
    law enforcement officer or a citizen. 
    Simpson, 968 S.W.2d at 783
    . The Tennessee
    Supreme Court recently restated the law regarding reasonable suspicion as follows:
    Reasonable suspicion must be supported by more than the officer‟s
    “inchoate and unparticularized suspicion or „hunch,‟” 
    Terry, 392 U.S. at 27
    ;
    however, “„reasonable suspicion can be established with information that is
    different in quantity or content than that required to establish probable
    cause . . . [and] can arise from information that is less reliable than that
    required to show probable cause.‟” State v. Pulley, 
    863 S.W.2d 29
    , 32
    (Tenn. 1993) (quoting Alabama v. White, 
    496 U.S. 325
    , 330 (1990)).
    Trial courts must examine the totality of the circumstances when evaluating
    whether an officer has established the requisite level of suspicion to justify
    a Terry stop. State v. Binette, 
    33 S.W.3d 215
    , 218 (Tenn. 2000). These
    circumstances include an officer‟s observations, information from other law
    enforcement personnel or agencies, information from citizens, known
    patterns of criminal offenders, or deductions based upon experience. State
    v. Watkins, 
    827 S.W.2d 293
    , 294 (Tenn. 1992). When evaluating the
    reasonableness of the police officer‟s suspicion, the nature of the crime
    suspected may be a factor. See State v. Winn, 
    974 S.W.2d 700
    , 703 (Tenn.
    Crim. App. 1998) (“A frisk has been upheld as reasonable when the
    suspected crime might typically involve the use of a weapon . . . [such that]
    an officer may reasonably infer that a weapon might be in the possession of
    the suspect.”).
    -5-
    State v. Moats, 
    403 S.W.3d 170
    , 178-79 (Tenn. 2013), overruled on other grounds by
    State v. McCormick, -- S.W.3d -- , No. M2013-02189-SC-R11-CD, 
    2016 WL 2742841
    ,
    at *7-8 (Tenn. May 10, 2016).
    An anonymous tip can serve as a basis for an officer to detain a driver if the tip
    satisfies the Aguilar-Spinelli test, which requires a showing of (1) the basis of the
    informant‟s knowledge and (2) the informant‟s credibility. State v. Hanning, 
    296 S.W.3d 44
    , 49 (Tenn. 2009) (citing 
    Day, 263 S.W.3d at 903
    ). However, “[a]n anonymous tip
    alone seldom demonstrates sufficient reliability []” to support an officer‟s detention based
    on reasonable suspicion of ongoing illegal activity. Navarette v. California, 
    134 S. Ct. 1683
    , 1685 (2014) (citing 
    White, 496 U.S. at 330
    ). To be valid, the tip must be, “reliable
    in its assertion of illegality, not just in its tendency to identify a determinate person.”
    
    Williamson, 368 S.W.3d at 477
    (citing and quoting Florida v. J.L., 
    529 U.S. 266
    , 270
    (2000)). Any deficiencies as to these requirements can be cured by an officer‟s
    independent investigation. 
    Id. (citing State
    v. Wilhoit, 
    962 S.W.2d 482
    , 487 (Tenn. Crim.
    App. 1997)).
    In State v. Hanning, 
    296 S.W.3d 44
    (Tenn. 2009), an anonymous caller reported
    that a black “18-wheeler” was being driven “recklessly” on the interstate and had taken
    the “Highway 72 exit.” 
    Hanning, 296 S.W.3d at 50
    . A BOLO was issued with that
    information, and shortly thereafter, an officer discovered a truck matching the description
    given by the caller parked in the emergency lane of the Highway 72 exit ramp. 
    Id. Our supreme
    court determined that the tip itself demonstrated the informant‟s basis of
    knowledge because the officer found a truck matching the description in the tip “[w]ithin
    mere minutes of receiving the dispatch.” This was sufficient to establish the caller‟s
    basis of knowledge because the temporal proximity of the BOLO to the discovery of the
    truck suggested that the tipster was reporting the reckless driving as it occurred. 
    Id. Additionally, the
    tipster‟s accurate description of the truck as to its type, color, location,
    and direction of travel was sufficient to establish the tipster‟s reliability. 
    Id. The truck
    was also “parked in the emergency lane of the exit ramp” and while not illegal, the
    location of the truck was “sufficiently unusual” and more than an “inchoate, and
    unparticularized suspicion or hunch” that the driver had been operating his vehicle
    recklessly or drunkenly, had been seen, and stopped at the soonest opportunity in an
    attempt to avoid detection. See 
    id. at 49-50.
    Finally, the court emphasized that “the
    content of the tip is of critical significance.” 
    Id. at 54;
    see also 
    Pulley, 863 S.W.2d at 32
    (recognizing that, in assessing the reasonableness of a stop, “[t]he content of the tip is
    also a crucial factor and, in particular, the level of danger that the tip reveals”). It
    cautioned that “the degree of corroboration that was sufficient to establish reliability in
    this case may not be sufficient where the nature of the activity reported and any
    associated imminent danger cannot be reasonably inferred from the information conveyed
    by the informant.” 
    Hanning, 296 S.W.3d at 54
    .
    -6-
    In a 5-4 split-decision issued after Hanning, the United States Supreme Court filed
    another opinion involving the Fourth Amendment and anonymous tips, Navarette v.
    California, 
    134 S. Ct. 1683
    , 1685 (2014) (Scalia, J., dissenting; Ginsburg, Sotomayor,
    and Kagan, JJ., join). Relying primarily upon Alabama v. White, 
    496 U.S. 325
    (1990),
    and Florida v. J. L., 
    529 U.S. 266
    (2000), the majority in Navarette, concluded that under
    the totality of the circumstances in that case, an anonymous tip regarding reckless driving
    gave police reasonable suspicion that justified a traffic stop. In Navarette, after a 911
    caller reported that a vehicle had run her off the road, a police officer located the vehicle
    she identified during the call and executed a traffic stop. 
    Id. at 1687.
    A subsequent
    search of the truck bed revealed thirty pounds of marijuana. The defendant was arrested
    and later moved to suppress the evidence, arguing that the traffic stop violated the Fourth
    Amendment because the officer lacked reasonable suspicion of criminal activity. 
    Id. The majority
    in Navarette began by determining “whether the 911 call was
    sufficiently reliable to credit the allegation that petitioners‟ truck „ran the [caller] off the
    roadway.‟” 
    Id. at 1688.
    It then engaged in a weighing analysis of several factors in
    concluding that the anonymous call bore adequate indicia of reliability. These factors
    included: (1) eyewitness knowledge, i.e., the caller necessarily claimed to have
    personally observed the alleged dangerous driving; (2) contemporaneous reporting, i.e.,
    the caller reported the incident soon after it occurred; and (3) the caller‟s use of the 911
    emergency dispatch system, which allows for identifying and tracing callers, thus
    providing some safeguard against false reports. Id.; see also State v. Rodriguez, 
    852 N.W.2d 705
    , 712-15 (Neb. 2014). After determining that the anonymous tip was a
    reliable report of having been run off the road, the Court stated that “[e]ven a reliable tip
    will justify an investigative stop only if it creates reasonable suspicion that „criminal
    activity may be afoot.‟” 
    Navarette, 134 S. Ct. at 1690
    . It then proceeded to analyze
    whether the anonymous caller‟s tip created a “reasonable suspicion of an ongoing crime
    such as drunk driving as opposed to an isolated episode of past recklessness.” 
    Id. Although the
    majority and the dissent disagreed on whether the reported reckless driving
    was proof of the ongoing crime of drunk driving, they agreed that proof of an ongoing
    crime, in and of itself, was necessary to support reasonable suspicion. 
    Id. at 1690,
    1695.
    The Court ultimately concluded that the reported behavior of the defendant driver,
    viewed from an objective standpoint, amounted to a reasonable suspicion of drunk
    driving. 
    Id. We now
    apply the above authority to the facts and circumstances of this case. In
    order to determine whether Officer Lowe had reasonable suspicion to detain Wascher, we
    must first resolve whether the anonymous tip was sufficiently reliable to credit the
    caller‟s allegation that Wascher‟s truck was being driven by an “impaired driver.”
    Although the officer confirmed details provided by the caller including the type, color,
    area of travel, and license plate number, these are factors that tend to identify a
    -7-
    determinate person, not illegal activity. In other words, the information provided by the
    caller and corroborated by Officer Lowe was merely a description of the truck and its
    general location. We recognize that generally “an anonymous 911 call reporting an
    ongoing emergency is entitled to a higher degree of reliability and requires a lesser
    showing of corroboration than a tip that alleges general criminality.” United States v.
    Simmons, 
    560 F.3d 98
    , 105 (2d Cir. 2009); see also State v. Luke, 
    995 S.W.2d 630
    , 636
    (Tenn. Crim. App. 1998). However, the record in this case is silent as to how the
    information from the caller was conveyed to the dispatcher. We do not know whether the
    information was in fact provided by an anonymous tip or by the emergency 911 system.
    
    Navarette, 134 S. Ct. at 1689
    (noting that use of the 911 emergency system is a factor to
    be weighed in favor of the caller‟s veracity). Indeed, the dispatch communication to
    Officer Lowe provided no details showing how the caller knew that the driver was
    impaired. Officer Lowe was told only to “be on the look out” for a possible “1049
    driver,” the numeric code used for impaired drivers. Defense counsel objected to the
    characterization by the dispatcher but was overruled by the trial court. We decline to
    presume the basis of the dispatcher‟s description of the driver as “impaired.” We do not
    know whether the caller observed Wascher engaged in reckless driving or whether the
    caller observed Wascher get into her truck and drive after consuming alcoholic drinks at a
    local tavern. The content of the tip also does not include a specific allegation that the
    truck was weaving, crossing the center line, or driving in the median: behavior which is
    “paradigmatic manifestations of drunk driving.” 
    Navarette, 134 S. Ct. at 1691
    ; 
    Hanning, 296 S.W.3d at 54
    .
    In addition, Officer Lowe observed the truck parked at a gas station, a nondescript
    location which does not add anything to the reliability of the tip in its assertion of
    illegality. The tip was also not specific with regard to where the criminal activity
    occurred. The caller claimed that the truck was traveling from Gatlinburg to Pigeon
    Forge, a distance of approximately 7.5 miles. See State ex rel. Leach v. Avery, 
    387 S.W.2d 346
    , 347 (Tenn. 1964) (stating that a court may take judicial notice of the
    distances between cities). Because we do not have any details showing how the caller
    was aware of the “impaired” status of the driver, we are unable to reasonably infer
    whether there was any imminent danger involved. 
    Hanning, 296 S.W.3d at 54
    . We are
    likewise unable to determine whether the tipster had firsthand knowledge of ongoing
    criminal activity. Navarette, 
    134 S. Ct. 1683
    , 1689 (noting that eyewitness knowledge of
    the alleged dangerous driving weighs in favor of the tip‟s reliability). In our view, the
    anonymous tip in this case bore far weaker indicia of reliability than in Hanning or
    Navarette, both of which were “close cases.” As such, we conclude that the tip provided
    in the BOLO to Officer Lowe was a bare-bones, conclusory allegation of illegality.
    Accordingly, it did not bear sufficient indicia of reliability for the officer to credit the
    caller‟s account of ongoing criminal activity, which is necessary to support a finding of
    reasonable suspicion.
    -8-
    Because the tip, standing alone, did not provide sufficient indicia of illegality to
    warrant an investigatory stop, we must now determine whether the tip‟s deficiencies were
    cured by the officer‟s independent observations prior to the seizure. Upon review, we
    conclude that the information gleaned from the officer‟s pre-seizure observations of
    Wascher did not cure the defects of the anonymous tip.
    Approximately one minute elapsed between Officer Lowe‟s arrival on the scene
    and his detention of Wascher by seizing her driver‟s license. The State claims that during
    this pre-seizure interaction, Officer Lowe established a reasonable suspicion that
    Wascher had been driving under the influence because she accompanied “the owner of
    the truck [who] was standing inside the open driver‟s side door and was visibly
    intoxicated.” We are unpersuaded by the State‟s argument. The presence of another,
    clearly intoxicated individual in the company of Wascher has no probative value to an
    officer‟s determination of whether Wascher, herself, was impaired. To hold otherwise
    would subject every designated driver in Tennessee to an investigatory detention.
    Wascher was in the driver‟s seat of the truck when Officer Lowe initiated the stop. At
    every request, Wascher and the owner of the truck admitted that Wascher had been
    driving.1 The only observation Officer Lowe made prior to detaining Wascher was that
    she had “watery eyes.” Significantly, Officer Lowe candidly admitted at the suppression
    hearing that he did not suspect Wascher of being impaired when he took her license.
    Under these facts and circumstances, Officer Lowe was entitled to continue his
    investigation in a consensual manner. He did not, however, have a lawful basis upon
    which to seize Wascher by taking her driver‟s license. We therefore hold that Officer
    Lowe did not have reasonable suspicion sufficient to justify the detention in this case
    because the tip was not reliable in its assertion of illegality, 
    J.L., 529 U.S. at 272
    , and his
    one-minute interaction with Wascher prior to seizing her did not remedy this defect.
    Accordingly, we reverse the decision of the trial court and dismiss the charges.
    CONCLUSION
    Upon review, we reverse and vacate the judgment of the trial court and dismiss the
    case.
    _________________________________
    CAMILLE R. McMULLEN, JUDGE
    1
    The State characterizes Wascher as evasive in answering the officer‟s question as to who was
    driving the vehicle. After multiple viewings of the recording of this interaction, we simply disagree with
    the State‟s characterization.
    -9-