State Of Washington v. Z.E. ( 2014 )


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  •                                                                                                FILED
    GOUP, OF APPEALS
    T
    DIVISMI 11
    20 I4 JA -     7'          22
    S                  SH 1° GTO
    BY
    DER
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION II
    STATE OF WASHINGTON,
    Respondent,        I                 No. 43289 -7 -II
    V.
    Z.U.E.,                                                          PUBLISHED OPINION
    Appellant.
    MAXA, J. — ZUE appeals his juvenile adjudication for possession of a controlled
    substance ( marijuana).   He asserts that the trial court erred by denying his motion to suppress the
    marijuana, which was obtained during a search after an investigative stop of ZUE and three other
    vehicle occupants.    Specifically, he argues that officers lacked the well- founded suspicion that
    ZUE or the other occupants were connected to actual or potential criminal activity necessary to
    conduct a lawful investigative stop of his vehicle. Because the citizen informants' tips that led to
    the investigative stop did not have sufficient indicia of reliability and the police officers'
    observations were unable to corroborate the presence of criminal activity, we hold that under the
    totality of the circumstances the stop was an unlawful seizure. Therefore, we reverse the trial
    court' s denial of ZUE' s suppression motion, vacate his conviction, and dismiss the charge with
    prejudice.
    No. 43289 -7 -II
    FACTS
    On the afternoon of October 2, 2011, Tacoma police received a 911 call reporting that an
    individual was running with a gun in the area of Oakland Park. The caller stated that ( 1) the man
    was a shirtless black male, 18 to 19 years old, 5 feet 10 inches tall, 145 pounds, and appeared
    almost bald with short dark hair; and ( 2) he was holding a gun down by his side, ducking in and
    out of houses and cars, and at one point he was seen holding the gun in a ready position. At least
    three officers responded to Oakland Park, which was a known gang hangout and the site of
    multiple gang- related incidents in the previous year.
    As the officers were responding, dispatch advised that multiple callers had reported that
    more   individuals   were   involved   and   that approximately   eight of   those individuals —including   the
    shirtless man with a gun —     were in a two -door white car. Dispatch subsequently advised that a
    caller had reported that the car was gray, not white, the shirtless man with a gun had gotten into
    the car, and the car was headed toward Union on Center Street. These callers were not
    identified.
    Dispatch updated the officers again, stating that another caller had observed a black
    female handing a gun to the shirtless male. The caller described her as 17 years old, medium
    height, slim, and wearing a black jacket, blue jeans and black shoes with blue trim.
    Tacoma police had limited information on the 911 callers. The record reflects that the
    first caller gave his name, telephone number, and address to dispatch. Another caller provided
    her first name, cell phone number, and location. One caller was uncooperative and merely
    reported a fight and a man with a gun. The officers knew the name of one of the callers, but did
    not know how many 911 callers there were or the callers' identities. The officers also did not
    0)
    No. 43289 -7 -II
    attempt to contact or obtain more information from any of the callers before conducting the
    investigative stop.
    When the officers arrived in the area they did not see anyone in the park. As they
    checked the area they observed two females walking about one -half block away, and one of the
    females appeared to match the caller' s description of the woman who handed off the gun.
    However, they continued to search for the man with the gun rather than make contact with the
    female subject.
    The officers then contacted an unnamed woman at an apartment building overlooking the
    park. The woman stated that there had been a large brawl in the park, several of the participants
    had their shirts off, and the participants left in four separate vehicles. But she could not provide
    any information about the subjects or their vehicles. She did not say anything about a male or a
    female with a gun.
    As they continued their area check the officers again saw the two females, who now were
    in a parking lot in front of a flower shop at the intersection of Center and Union. This location
    was near the area where dispatch had reported the gray car carrying the shirtless man with a gun
    was headed. The women approached a small gray car, and officers noticed that one of the
    women exactly matched the description of the woman who handed off the gun except she was
    not wearing a black jacket. One of the officers testified that the female' s age, race, build, attire,
    as well as time and proximity led him to believe that she may have been involved in the park
    incident. The woman got into the back seat of the gray car, which appeared to have two men in
    the front seat. The two men were wearing shirts and both had hair, so they did not match the
    description   of   the bald,   shirtless man.
    No. 43289 -7 -II
    Based on the available information, the officers believed they were investigating a minor
    in possession of a firearm and a gang -related assault with a deadly weapon. The officers
    approached   the   vehicle on   foot   with   their firearms drawn, using       a " ``   felony   stop' " technique.
    Clerk' s Papers ( CP) at 92. The officers instructed the occupants of the vehicle to put their hands
    up, which they did. The officers waited a few minutes for other officers to arrive and then
    directed the vehicle occupants to exit the vehicle one at a time. The driver and two female
    passengers exited the vehicle and were detained in handcuffs without incident.
    ZUE, another passenger, was the last person to exit the vehicle. One of the officers
    believed ZUE was not responding to instructions and became concerned that he was reaching for
    a concealed weapon.      As   a result,   the   officer " touch[ ed]"   his electronic control tool to ZUE,
    handcuffed ZUE,      and arrested      him for   obstruction.    Report   of   Proceedings       at   55. Officers
    searched ZUE incident to arrest and found marijuana on his person. Officers did not locate any
    guns.
    The State charged ZUE with unlawful possession of a controlled substance ( marijuana)
    and obstructing a law enforcement officer. ZUE moved to suppress any evidence obtained
    during the stop as the fruit of an unlawful seizure. The trial court conducted a combination CrR
    3. 6 hearing and bench trial. The trial court denied ZUE' s suppression motion, ruling that the
    stop was supported by reasonable suspicion of criminal activity and that the scope of the stop
    was reasonable. The trial court entered detailed findings of fact and conclusions of law. The
    trial court then adjudicated ZUE not guilty of obstructing a law enforcement officer and guilty of
    unlawful possession of a controlled substance ( marijuana).               ZUE appeals.
    11
    No. 43289 -7 -II
    ANALYSIS
    A.       STANDARD OF REVIEW
    When reviewing the trial court' s denial of a CrR 3. 6 suppression motion, we determine
    whether substantial evidence supports the challenged findings of fact and whether the findings of
    fact support the conclusions of law. State v. Garvin, 
    166 Wash. 2d 242
    , 249, 
    207 P.3d 1266
    ( 2009).
    Evidence is substantial when it is enough ``to persuade a fair -
    minded person of the truth of the
    stated premise.' "     
    Garvin, 166 Wash. 2d at 249
    ( quoting State v. Reid, 
    98 Wash. App. 152
    , 156, 
    988 P.2d 1038
    ( 1999)).     Unchallenged findings of fact are considered verities on appeal. State v.
    Lohr, 164 Wn.      App.   414, 418, 
    263 P.3d 1287
    ( 2011).   We review de novo the trial court' s
    conclusions of law pertaining to the suppression of evidence. 
    Garvin, 166 Wash. 2d at 249
    .
    B.       JUSTIFICATION FOR INVESTIGATIVE STOP
    ZUE challenges the trial court' s denial of his motion to suppress evidence discovered in
    the   course of   the investigative stop.'   Following the suppression hearing, the trial court entered a
    finding that ( 1) the officers " reasonably believed" that one or more of the suspect car' s occupants
    were related to a possible assault with a deadly weapon and /or unlawful possession of a firearm
    and were armed or dangerous and ( 2) a reasonably prudent person with the information available
    to the officers at the time of the contact would believe that one or more of the occupants were
    ZUE also challenges two specific findings of fact with regard to the suppression hearing. We
    need not address these findings because they have no bearing on our analysis of the court' s legal
    conclusion that the investigatory stop was lawful. In addition, ZUE challenges two findings of
    fact entered after the bench trial. Because we reverse we need not address these findings.
    5
    No. 43289 -7 -II
    2
    related      to the 911   reports and were armed and        dangerous.              CP   at   101.    On this basis the trial
    court concluded that the officers' detention of the car was lawful. We disagree.
    Standards for Warrantless Stop
    Under the Fourth Amendment to the United States Constitution and-article I, section 7 of
    the Washington State Constitution, a police officer generally cannot seize a person without a
    warrant supported by probable cause. 
    Garvin, 166 Wash. 2d at 249
    ; State v. Acrey, 
    148 Wash. 2d 738
    ,
    745 -46, 
    64 P.3d 594
    ( 2003) ( addressing only Fourth Amendment). A warrantless seizure is
    considered per se unconstitutional unless it falls within an exception to the warrant requirement.
    State   v.    Rankin, 
    151 Wash. 2d 689
    , 695, 
    92 P.3d 202
    ( 2004);                    
    Acrey, 148 Wash. 2d at 746
    . One
    established exception is a brief investigatory detention of a person, commonly called a Terry
    stop. 
    Acrey, 148 Wash. 2d at 746
    . A police officer may conduct a warrantless investigative stop
    based upon less evidence than is needed to establish probable cause to make an arrest. 
    Acrey, 148 Wash. 2d at 746
    -4.7. But the officer must have " a reasonable suspicion, grounded in specific
    and articulable facts, that the person stopped has been or is about to be involved in a crime."
    
    Acrey, 148 Wash. 2d at 747
    . " A reasonable, articulable suspicion means that there `` is a substantial
    possibility that     criminal conduct       has   occurred or     is   about   to   occur.' "        State v. Snapp, 
    174 Wash. 2d 177
    , 197 -98, 
    275 P.3d 289
    ( 2012) ( quoting             State v. Kennedy, 
    107 Wash. 2d 1
    , 6, 
    726 P.2d 445
    1986)).    The officer' s suspicion must relate to a particular crime rather than a generalized
    2
    This   finding   was   in   a section entitled "   Findings     as   to Disputed Facts," but the ultimate issue of
    whether a       stop was justified is a conclusion of law. CP at 101 ( capitalization omitted); State v.
    Bailey,       
    154 Wash. App. 295
    , 299, 
    224 P.3d 852
    ( 2010). Where a conclusion of law is erroneously
    labeled as a finding of fact, we review it de novo as a conclusion of law. Casterline v. Roberts,
    
    168 Wash. App. 376
    , 383, 
    284 P.3d 743
    ( 2012).
    3
    Terry v. Ohio, 
    392 U.S. 1
    , 
    88 S. Ct. 1868
    , 
    20 L. Ed. 2d 889
    ( 1968).
    6
    No. 43289 -7 -II
    suspicion       that the   person   detained is " up to       no good."     State v. Bliss, 
    153 Wash. App. 197
    , 204, 
    222 P.3d 107
    ( 2009).
    We determine the propriety            of an      investigative stop —the reasonableness of the officer' s
    suspicion —based on          the "   totality   of   the   circumstances."
    
    Snapp, 174 Wash. 2d at 198
    . The focus is
    on what     the   officer   knew     at   the time   of   the stop.    State v. Lee, 
    147 Wash. App. 912
    , 917, 
    199 P.3d 445
    ( 2008).       No subsequent events or circumstances can retroactively justify a stop. State v.
    Mendez, 
    137 Wash. 2d 208
    , 224, 
    970 P.2d 722
    ( 1999),                        abrogated on other grounds by Brendlin v.
    California, 
    551 U.S. 249
    , 255, 259              n. 5,     
    127 S. Ct. 2400
    , 
    168 L. Ed. 2d 132
    ( 2007). A court must
    base its   evaluation of reasonable suspicion on " ``                  commonsense judgments and inferences about
    human behavior.' "           
    Lee, 147 Wash. App. at 917
    ( quoting Illinois v. Wardlow, 
    528 U.S. 119
    , 125,
    
    120 S. Ct. 673
    , 
    145 L. Ed. 2d 570
    ( 2000)).
    Whether a warrantless investigative stop was justified or represents a constitutional
    violation is a question of law that we review de novo. State v. Bailey, 
    154 Wash. App. 295
    , 299,
    
    224 P.3d 852
    ( 2010).         The State bears the burden of showing the propriety of an investigative
    stop. 
    Acrey, 148 Wash. 2d at 746
    . If the initial stop was unlawful, the evidence discovered during
    that stop are not admissible because they are fruits of the poisonous tree. 
    Kennedy, 107 Wash. 2d at L
    2.      Suspicion Based on Citizen Informant
    Here, reports from citizen informants provided the sole basis for the police officers'
    suspicions that the young woman entering the gray car had committed the crime of a minor in
    possession of a firearm and that one of the men in the car had been running with a gun. ZUE
    argues that such informant information cannot support an investigative stop under the
    circumstances of this case.
    VA
    No. 43289 -7 -II
    Our Supreme Court first addressed this issue in State v. Lesnick, 
    84 Wash. 2d 940
    , 943, 
    530 P.2d 243
    ( 1975) and confirmed that information supplied by another person may authorize an
    investigative stop. However, the court emphasized that the informer' s tip must demonstrate
    some " ``   indicia   of   reliability.' "   
    Lesnick, 84 Wash. 2d at 943
    ( quoting Adams v. Williams, 
    407 U.S. 143
    , 147, 
    92 S. Ct. 1921
    , 
    32 L. Ed. 2d 612
    ( 1972)).             The court held that this reliability can be
    established if ( the informant was reliable or ( 2) the officer' s corroborative observation
    1)
    suggests either the presence of criminal activity or that the information was obtained in a reliable
    fashion. 
    Lesnick, 84 Wash. 2d at 944
    .
    The Supreme Court in State v. Sieler, 
    95 Wash. 2d 43
    , 48, 
    621 P.2d 1272
    ( 1980),
    subsequently clarified that " reliability by itself generally does not justify an investigatory
    detention."    Instead, a reliable informant' s tip also must be supported by a " sufficient factual
    basis" or " underlying factual justification" so officers can assess the probable accuracy of the
    informant' s conclusion. 
    Sieler, 95 Wash. 2d at 48
    . The court emphasized that it made no sense to
    require evidence of the informant' s reliability but nothing concerning the source of the
    information. 
    Sieler, 95 Wash. 2d at 48
    . This additional requirement of a sufficient factual basis for
    the informant' s report allows officers to evaluate whether a reliable informant has " misconstrued
    innocent    conduct."       
    Sieler, 95 Wash. 2d at 48
    . Including this requirement creates an analysis
    4
    similar    to the Aguilar—Spinelli test       for issuance of   a warrant   based   on an   informant'   s   tip.
    4
    Washington courts follow the Aguilar—Spinelli test under article I, section 7 of the state
    constitution to determine whether issuance of a warrant was supported by probable cause. State
    v.   011ivier, _   Wn.2d _,        
    312 P.3d 1
    , 22 ( 2013). Aguilar v. Texas, 
    378 U.S. 108
    , 
    84 S. Ct. 1509
    ,
    
    12 L. Ed. 2d 723
    ( 1964) and Spinelli v. United States, 
    393 U.S. 410
    , 
    89 S. Ct. 584
    , 
    21 L. Ed. 2d 637
    ( 1983) were overruled by Illinois v. Gates, 
    462 U.S. 213
    , 238, 
    103 S. Ct. 2317
    , 
    76 L. Ed. 527
    ( 1983), in which a totality of the circumstances analysis was adopted for purposes of the
    Fourth Amendment.
    No. 43289 -7 -II
    Subsequently, our Supreme Court in Kennedy, stated the indicia of reliability test without
    including     the   additional     basis   of   knowledge       requirement stated   in 
    Sieler. 107 Wash. 2d at 7
    .
    Division One of this court noted that Kennedy and the totality of the circumstances standard
    compels    the   conclusion        that the " ``   basis   of   knowledge' " concept grounded in the Aguilar—
    Spinelli test ( used to evaluate whether a warrant is supported by probable cause) does not extend
    to the indicia of reliability of informant tips for investigatory stops. State v. Marcum, 149 Wn.
    App.   894, 904 -05, 
    205 P.3d 969
    ( 2009) ( quoting                State v. Jackson, 
    102 Wash. 2d 432
    , 436, 
    688 P.2d 136
    ( 1984)).       In Marcum, the court indicated that the informant' s basis of knowledge was
    relevant   but   not essential      to the   analysis of an       investigatory   
    stop. 149 Wash. App. at 904
    .
    Under Sieler and Lesnick, we hold that an informant' s report can provide reasonable
    justification for      an officer' s    investigative stop in two        situations: (    1) when the information
    available to the officer showed that the informant was reliable or ( 2) when the officer' s
    observations corroborate either the presence of criminal activity or that the informant' s report
    was obtained in a reliable 
    fashion. 95 Wash. 2d at 47
    -48; 84 Wash. 2d at 944
    . We need not decide
    whether the informant' s basis of knowledge is a requirement or merely a factor to be considered.
    in the totality of the circumstances analysis because, under either approach, the circumstances
    here did not warrant an investigatory stop.
    3.      Reliable Informant / actual Basis
    F
    a. "        Unknown" Informant
    Known citizen informants ( as distinguished from anonymous or " professional"
    informants) generally are presumed to be reliable. State v. Gaddy, 
    152 Wash. 2d 64
    , 72 -73, 
    93 P.3d 872
    ( 2004); State         v.   Wakeley, 29     Wn.   App.     238, 241, 
    628 P.2d 835
    ( 1981).     For investigative
    stops, the same degree of reliability need not be shown for a " citizen" as opposed to a
    E
    No. 43289 -7 -II
    professional"         informant. 
    Kennedy, 107 Wash. 2d at 8
    .    However, our Supreme Court has not
    adopted a presumption of reliability for anonymous citizen informants in evaluating investigative
    stops. In Lesnick, the court held that an anonymous caller reporting that the driver of a van with
    a certain license plate number was attempting to sell gambling devices was insufficient to
    establish the well- founded suspicion needed to support an investigative stop of the 
    van. 84 Wash. 2d at 941
    , 944. The    court stated, " ``    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 conclusionary assertion that a certain individual is engaged
    in   criminal       activity.' "   
    Lesnick, 84 Wash. 2d at 944
    ( internal       quotation marks omitted) ( quoting
    State    v.   Lesnick, 10 Wn.       App.     281, 285, 
    518 P.2d 199
    ( 1973),            aff'd, 
    84 Wash. 2d 940
    ).
    Even a named, but otherwise unknown, citizen informant is not presumed to be reliable
    and a report         from   such an   informant may        not   justify      an   investigative stop. In Sieler, a father
    waiting to pick up his son at high school telephoned the school secretary to report that he
    witnessed a drug sale in another car in the parking lot. 
    Sieler, 95 Wash. 2d at 44
    -45. He provided
    his name and telephone number. 
    Sieler, 95 Wash. 2d at 45
    . The secretary relayed this information
    to the    police.      
    Sieler, 95 Wash. 2d at 45
    . The court held that the informant' s name and telephone
    number were not enough                to   establish   his reliability, stating, " 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."      
    Sieler, 95 Wash. 2d at 48
    .
    We relied on Sieler in State v. Hopkins, 
    128 Wash. App. 855
    , 858 -59, 
    117 P.3d 377
    ( 2005),
    where an unknown 911 caller reported that a minor might be carrying a gun and accurately
    described the minor' s location and provided a partially accurate description. The informant gave
    10
    No. 43289 -7 -II
    his name and cell phone number and a second call provided police with another phone number.
    Hopkins, 128 Wn.      App.   at   858. We held that despite the general presumption that a citizen
    informant is reliable, providing the name and cell phone number of an informant unknown to
    officers is insufficient to establish reliability and cannot by itself justify an investigative stop.
    
    Hopkins, 128 Wash. App. at 863
    -64.
    Here, two 911 callers provided basic information: one provided his name, telephone
    number, and address and another provided her first name, cell phone number and location.
    However, the officers did not know the callers and knew nothing else about them. And the
    officers did not contact the callers to obtain more information about their reliability. The
    absence of any information regarding the informants beyond basic identification precludes a
    finding of reliability.
    The State argues that the fact that multiple callers provided similar information shows
    reliability here. See generally       
    Kennedy, 107 Wash. 2d at 8
    ( " The two independent sources of
    information    each provide support      for the   other' s   veracity. ").   The number of callers may be a
    factor to be considered in the broader totality of the circumstances analysis, but the State cites no
    authority addressing the     potential   cross corroboration of          multiple   911   calls.   On the existing
    briefing and under the facts here, there is no showing that one unknown caller bolstered the
    credibility of another unknown caller. The State also argues that informants are more reliable
    when they call 911 as opposed to a nonemergency number. Although the dissent in Hopkins
    made   the   same argument,       the majority   did   not adopt   
    it. 128 Wash. App. at 869
    -70 ( Quinn -
    Brintnall, C. J.   dissenting). We disagree that calling 911, without more, can establish an
    unknown informant' s reliability to purposes ofjustifying an investigative stop.
    11
    No. 43289 -7 -II
    We hold under Sieler and Hopkins that obtaining the unknown informants' names and
    contact information is not enough to establish their reliability. We also hold under Lesnick that
    here the State has not sustained its burden of proving that the officers had enough information to
    establish that the anonymous callers and the unnamed woman the. officers personally contacted
    were reliable.
    b.   Factual Basis
    Even if an informant is reliable, the court in Sieler held that an informant' s " bare
    conclusion" that criminal conduct had occurred " unsupported by any factual foundation" was
    insufficient to justify an investigative 
    stop. 95 Wash. 2d at 49
    . Whether the informant' s factual
    basis is a strict requirement or only one factor, an officer' s information regarding the factual
    basis for the informant' s conclusion that criminal activity has occurred is relevant to the totality
    of the circumstances analysis. 
    Sieler, 95 Wash. 2d at 48
    -49.
    In Hopkins we generally stated this requirement as whether the informant' s tip " contains
    enough objective        facts" to     justify   the   detention. 128 Wn.           App.   at   862 -63. However, we also
    made it clear that these " objective facts" must involve criminal activity, not merely innocuous
    information such as an accurate description of the subject or his or her location. Hopkins, 128
    Wn.   App.   at   862 -64. " ``    The reasonable suspicion here at issue requires that a tip be reliable in its
    assertion of      illegality,   not   just in its   tendency   to   identify   a   determinate     person.' "   
    Hopkins, 128 Wash. App. at 864
    ( quoting Florida v. J.L., 
    529 U.S. 266
    , 272, 
    120 S. Ct. 1375
    , 
    146 L. Ed. 2d 254
    2000)).
    Here, the record does not reflect that the first caller expressly stated the basis for his
    knowledge that a man was running with a gun. The detailed information provided suggests that
    he was an eyewitness, and an informant' s credibility is enhanced when he or she is an
    12
    No. 43289 -7 -II
    eyewitness.    Lee, 147 Wn.    App.   at   918.   But we have suggested that officers may not presume
    that informants' tips are eyewitness accounts. State v. Vandover, 
    63 Wash. App. 754
    , 755 -56, 759-
    60, 
    822 P.2d 784
    ( 1992) ( tip   that a man in a gold colored Maverick was brandishing a sawed -off
    shotgun in front of a downtown restaurant did not justify investigative stop of man leaving that
    location in   a green   Maverick).   As a result, the factual basis of the first caller' s tip was unclear.
    On the other hand, the record does establish that a caller " observed" the young woman hand a
    gun to a man. CP at 90. An eyewitness' s observation of events may provide a sufficient factual
    basis for a tip. See 
    Lee, 147 Wash. App. at 918
    -19.
    However, a key portion of the informant' s report concerning the young woman was that
    she was approximately 17 years old. Her age was significant because the officers stated that they
    suspected her of committing the crime of being a minor in possession of a firearm. If the woman
    was not a minor, there was no basis for suspecting that her possession of a firearm was unlawful
    because carrying a gun is not automatically a crime. But the caller did not explain the factual
    basis for the estimate of the young woman' s age. The estimate was a " bare conclusion
    unsupported    by    any factual foundation." 
    Sieler, 95 Wash. 2d at 49
    . As a result, we hold that the
    factual basis requirement was not satisfied for the officers' suspicion that the woman was
    involved in criminal activity.
    4.     Police Corroboration
    a.      Corroboration of Criminal Activity
    Even if an informant is unreliable and /or the tip lacks sufficient factual basis, an officer' s
    corroboration can justify an investigative stop. The informant' s tip may support an investigative
    stop if an officer observes some illegal, dangerous, or suspicious activity. 
    Lesnick, 84 Wash. 2d at 944
    . The activity need not be particularly blatant. See 
    Wakeley, 29 Wash. App. at 239
    , 241 -43
    13
    No. 43289 -7 -II
    stop justified when an informant identified the subject as leaving in an orange colored Pinto
    after gunshots were heard and the officer passing an orange Pinto observed the driver attempting
    to hide something in his jacket).              And a police officer may rely on his or her experience to
    identify seemingly innocuous facts as suspicious. State v. Moreno, 
    173 Wash. App. 479
    , 492 -93,
    
    294 P.3d 812
    ,       review   denied, 
    177 Wash. 2d 1021
    ( 2013). Facts that appear innocuous to an average
    person may appear suspicious to a police officer in light of past experience. Moreno, 173 Wn.
    App. at 493 ( an officer with considerable experience with local gangs responding to multiple
    reports of gunfire in a gang neighborhood, who saw a car hurriedly leaving an alley driven by a
    man wearing a shirt of a color associated with a rival gang had a reasonable suspicion that the
    driver was involved in the shooting).
    On the other hand, as with the factual basis requirement, confirming a subject' s
    description or location or other innocuous facts does not satisfy the corroboration requirement.
    See 
    Lesnick, 84 Wash. 2d at 943
    ( the fact that informant accurately described the defendant' s
    vehicle     is   not sufficient corroboration       for   a   stop).    In Hopkins, an informant reported that a young
    man   had    a gun,    described the   man, and provided               his location. 128 Wn.   App.   at   858.   Officers
    observed a man who resembled the informant' s description at the described location, but did not
    observe a gun or any illegal, dangerous, or suspicious activity. 
    Hopkins, 128 Wash. App. at 859
    .
    Based on these facts, we held that an investigatory stop was not justified. Hopkins, 128 Wn.
    App.   at   865 -66;   see also   State   v.   Hart, 66 Wn.       App.    1, 9, 
    830 P.2d 696
    ( 1992) (    officer' s
    observation of defendant confirming informant' s description and defendant' s location did not
    satisfy the       corroboration requirement);        Campbell v. Dep' t ofLicensing, 
    31 Wash. App. 833
    , 834-
    35, 
    644 P.2d 1219
    ( 1982) (        anonymous motorist' s tip that a drunk driver was travelling in the
    14
    No. 43289 -7 -II
    opposite direction and description of the car did not justify investigative stop of car matching the
    motorist' s description).
    Here, the informant stated that a young woman had handed a gun to a male subject in
    Oakland Park. The officers located a woman matching the description walking with another
    woman near the park, but they did not see anyone else in the park or nearby. The officers
    observed no illegal or suspicious behavior from the woman or her companion at that time.
    Officers observed the woman again in a flower shop parking lot getting into a car, but again she
    was engaged in no suspicious behavior. And nothing about the woman' s innocuous behavior
    would signal a suspicion in an experienced officer. In other words, the officers did not make any
    corroborative observations suggesting that the young woman had engaged in actual or potential
    criminal activity.
    With regard to the young man running with the gun, the officers never located anyone
    matching the informants' description of a shirtless, almost bald man. The State argues that the
    officers had reasonable suspicion that one of the men in the front seat of the gray car was that
    man because a caller reported that he was in a gray vehicle. However the record does not
    support this argument. A gray car hardly is unique, and merely confirming a vehicle description
    does   not   satisfy the   corroboration requirement.   
    Lesnick, 84 Wash. 2d at 943
    . And there was no
    testimony that ZUE or the other male occupant even slightly resembled the description of the
    shirtless bald man from the park. Conversely, the record reflects that the males in the front seat
    were wearing shirts and had hair.
    The State also argues that the officers corroborated the details of the 911 calls by
    contacting a witness who confirmed that a large brawl had occurred and that the subjects left in
    four different vehicles. However, this witness said nothing about a young woman or a man with
    15
    No. 43289 -7 -II
    a gun, or about their possible connection to the brawl. And the officers saw no indication that
    any brawl had in fact occurred. Further, the witness did not give her name and the record does
    not show that the officers knew her. We hold that information obtained from an anonymous,
    unknown informant that the officers themselves could not confirm is not sufficient to corroborate
    the report of another unknown informant.
    Finally, the State emphasizes that the reported activities took place in a high crime area.
    However, the presence of the subjects in such an area cannot by itself give rise to a reasonable
    suspicion that they were engaged in criminal activity. 
    Sieler, 95 Wash. 2d at 49
    .
    We hold that the officers did not corroborate the presence of actual or potential criminal
    activity. All they corroborated was the young woman' s description and what she was wearing,
    and the presence of a gray car. These observations of innocuous facts were insufficient to
    support an investigatory stop.
    b.    Corroboration that Information Obtained in a Reliable Fashion
    The court in Lesnick stated that an investigative stop could be justified if an officer' s
    corroborative observations indicate that the informant' s information was obtained in a reliable
    
    fashion. 84 Wash. 2d at 944
    . For instance, in Lee the officer actually observed the informant
    interacting with the subject of the search and was able to corroborate how the informant obtained
    her 
    information. 147 Wash. App. at 914
    -15, 922. A patrol officer witnessed a car pull up to a
    female pedestrian in a high -crime area and the occupants briefly speaking with her. 
    Lee, 147 Wash. App. at 914
    -15. Then she walked quickly away, appearing frightened. 
    Lee, 147 Wash. App. at 915
    . The officer contacted the pedestrian and asked if she was all right. 
    Lee, 147 Wash. App. at 915
    .     The pedestrian reported that two individuals in a specific car pulled over and told her to get
    in the   vehicle   to   smoke crack cocaine while   showing her that they   possessed   both   crack and a
    No. 43289 -7 -II
    crack pipe.      Lee, 147 Wn.           App.   at   915. The officer followed the vehicle and conducted an
    investigatory stop. 
    Lee, 147 Wash. App. at 915
    . Division One of this court held that the
    anonymous informant' s statements justified the stop because the circumstances were
    corroborated by the officer' s own observations. 
    Lee, 147 Wash. App. at 922
    .
    Here, the officers had no personal knowledge regarding how the informants gathered
    their information. The information simply was relayed to them by the dispatcher. We hold that
    the officers had no corroborative observations that the callers obtained their information in a
    reliable fashion.
    5.     Seriousness of Criminal Activity
    Although our Supreme Court has adopted specific rules for anonymous and unknown
    informants, those rules must be applied in the context of the totality of circumstances approach.
    See   
    Snapp, 174 Wash. 2d at 198
    . The     court stated   in Lesnick, "[ N] o single rule can be fashioned to
    meet   every     conceivable confrontation             between the       police and citizen[ s].
    Evaluating the
    reasonableness of the police action and the extent of the intrusion, each case must be considered
    in light   of   the   particular circumstances
    facing the    law   enforcement 
    officer." 84 Wash. 2d at 944
    .
    The   court emphasized         that      a significant   fact in that    case —
    in which the stop was found
    unjustified —was         that the suspected crime " posed no threat of physical violence or harm to
    society    or   the   officers."    
    Lesnick, 84 Wash. 2d at 944
    . Conversely, the court indicated that tips
    involving " murder or threatened school bombings" would be judged in light of their particular
    facts. 
    Lesnick, 84 Wash. 2d at 945
    .
    The Supreme Court repeated this theme in Sieler, stating that the criteria for evaluating
    information       obtained    by informants          could not   be   analyzed    in 
    isolation. 95 Wash. 2d at 50
    . "[ T] he
    seriousness of the criminal activity reported by an informant can affect the reasonableness
    17
    No. 43289 -7 -II
    calculus which      determines      whether an       investigatory detention is permissible."           
    Sieler, 95 Wash. 2d at 50
    ; cf.State   v.   Franklin, 41 Wn.         App.   409, 412, 
    704 P.2d 666
    ( 1985) ( "       The anonymity of an
    informant does not necessarily make an investigatory stop improper, especially when the
    5
    informant'   s   information indicates that          a violent crime        may   occur. ,).
    Sieler and Lesnick recognize that we may apply a less stringent standard to assess the
    reasonableness of an investigative stop when police officers are called upon to swiftly respond to
    a significant threat to public 
    safety. 95 Wash. 2d at 50
    ; 84 Wn.2d at 944 -45; see also State v.
    Randall, 73 Wn.          App.   225, 230, 
    868 P.2d 207
    ( 1994) ( " An            officer acting on a tip involving the
    threat of violence and rapidly developing events does not have the opportunity to undertake a
    methodical, measured            inquiry   into   whether    the   tip is   reliable. ").   But see 
    Vandover, 63 Wash. App. at 760
    ( danger to the public is a " factor which may make an investigatory stop reasonable under
    the circumstances where there are already indications that the informant' s tip was reliable ")
    The parties have not briefed the standards for investigatory stops in emergent situations
    presenting a serious risk to public safety or analyzed the application of these facts to such
    standards. In addition, it is clear that more than mere possession of a firearm is necessary to
    support an    investigatory              L.,
    stop. 
    J. 529 U.S. at 272
    -74; see also 
    Vandover, 63 Wash. App. at 755
    ,
    760 ( finding a traffic stop unreasonable when based on an anonymous call that the subject had
    brandished       a sawed -off shotgun).          Here, there does not appear to be any basis to believe that the
    young woman had possession of the gun at the time of the stop. And any brawl that had
    occurred at the park was over by the time the officers arrived. On the existing briefing and
    argument, it does not appear that a risk to public safety warranted the investigatory stop.
    5 The United States Supreme Court, while refusing to speculate, has suggested the possibility that
    the danger alleged in an anonymous tip might be so great as to justify a search even without a
    showing     of   reliability." J.
    
    L., 529 U.S. at 273
    -74.
    18
    No. 43289 -7 -II
    6.   Summary
    Police officers conducted an investigative stop of ZUE based solely on information
    provided by 911 callers even though police officers did not know the reliability of the callers, did
    not know the factual basis of the caller' s assertion of criminal activity, did not observe
    circumstances corroborating the reports of criminal activity, and could not corroborate that the
    information was obtained in a reliable fashion. Further, although a report of a possession of a
    gun in public can raise public safety concerns that could allow for a less stringent reliability
    analysis, here there was no indication of an immediate threat to public safety at the time of the
    stop.
    Under the totality of these circumstances, we hold that the trial court erred in concluding
    6
    that the circumstances supported     an   investigative stop   of   ZUE'   s vehicle,       Accordingly, we
    reverse the trial court' s denial of ZUE' s motion to suppress evidence obtained in an unlawful
    investigative stop. Because that evidence was the only basis for ZUE' s conviction for possession
    6
    ZUE also challenges the trial court' s legal conclusion that the scope of the investigative stop
    was permissible. He argues that the officers' use of firearms and handcuffs was not reasonable
    under the circumstances and converted the stop into an arrest, which would require the officers to
    have probable cause. Because we hold that the stop was unlawful from its outset, we do not
    reach this issue.
    19
    No. 43289 -7 -II
    of a controlled substance, we further vacate ZUE' s conviction and dismiss the charge with
    prejudice.
    K , J,
    Maxa, J.
    We concur:
    P.     kR, P. J.
    VERELLEN, J.
    20