Johnson v. State

John B. Robbins, Judge.

By opinion filed March 2, 1994, we reversed the conviction of Billy Ray Johnson for the crime of possession of methamphetamine with intent to deliver. This decision resulted from our determination that appellant’s motion to suppress evidence seized in his arrest and search should have been granted. The state has now petitioned for rehearing, which we deny.

This case does not involve a challenge to the reliability of a known informant. At issue is the credibility of an anonymous tipster.

At the suppression hearing, Officer Terry Grizzle of the Ft. Smith Police Department testified that a secretary at the police station received an anonymous telephone call. The caller said that “Billy Ray [appellant] and Angela” were selling crank out of room 56 at the Stonewall Jackson Inn and that a blue van was being used in the drug sales. The police set up surveillance at the motel and recognized Angela Highsmith and appellant as they entered a blue van in the motel parking area. They did not see the room from which they came. The police stopped the van and a quantity of methamphetamine was found.

In Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), an officer of the Montgomery, Alabama police department received an anonymous telephone call. The caller stated that the accused would be leaving a certain apartment within an apartment complex at a particular time in a brown Plymouth station wagon with the right taillight lens broken, that she would be going to a certain motel, and that she would be in possession of about an ounce of cocaine inside a brown attache case. The police officer and his partner traveled to the apartment complex and saw a brown Plymouth station wagon with a broken right taillight in the parking lot in front of the building which contained the apartment identified by the caller. The officers observed the accused leave the building and enter the station wagon. The officers followed the vehicle as it drove for a distance of four miles, including several turns, along the most direct route to the motel which the caller had identified. After one of the officers requested a patrol unit to stop the vehicle, the vehicle was stopped just short of the motel. The United States Supreme Court held that independent corroboration by the police of significant aspects of the informant’s predictions imparted some degree of reliability to the other allegations made by the caller. The significance of the court’s reference to “predictions” was explained as follows:

We think it also important that, as in Gates, “the anonymous [tip] contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted.” Id., at 245, 76 L.Ed.2d 527, 103 S.Ct. 2317. The fact that the officers found a car precisely matching the caller’s description in front of the 235 building is an example of the former. Anyone could have “predicted” that fact because it was a condition presumably existing at the time of the call. What was important was the caller’s ability to predict respondent’s future behavior, because it demonstrated inside information — a special familiarity with respondent’s affair. The general public would have had no way of knowing that respondent would shortly leave the building, get in the described car, and drive the most direct route to Dobey’s Motel. Because only a small number of people are generally privy to an individual’s itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual’s illegal activities. See id., at 245, 76 L.Ed.2d 527, 103 S.Ct. 2317. When significant aspects of the caller’s predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop.

496 U.S. at 332.

We addressed a similar factual situation in Kaiser v. State, 24 Ark. App. 19, 746 S.W.2d 559 (1988). Randolph County officers had received information from Missouri officers that an informant had given them a tip that Kaiser would be traveling through Randolph County in a gray or silver 1979 Lincoln, license number KLN436, and would be carrying a pistol and either $25,000 cash or 50 pounds of marijuana. Acting on this information the vehicle was stopped by Randolph County officers. The propriety of the stop arose in the context of a forfeiture proceeding. We held that because the vehicle appeared within the predicted area and period of time, matched the description given and bore the predicted license plates, those details were sufficient indicia of the informant’s reliability to permit an investigatory stop of the vehicle. The supreme court reversed because the record did not otherwise show that the informant was reliable. Kaiser v. State, 296 Ark. 125, 752 S.W.2d 271 (1988).

After being reversed in Kaiser, we retreated somewhat when confronted with a closely analogous factual situation. Lambert v. State, 34 Ark. App. 227, 808 S.W.2d 788 (1991). In Lambert the state police received an anonymous tip that a man named “Jerry” would be leaving the Hot Springs area at approximately 3:00 p.m. driving to Little Rock in a black truck with “Woodline Motor Freight” in orange letters on it, hauling a shortbed trailer, and that Jerry would have approximately 10 pounds of marijuana with him. The police set up surveillance between Hot Springs and Little Rock and at about 3:50 p.m. stopped a vehicle traveling toward Little Rock which met this description. We held that the facts corroborating the tip were insufficient in quality and quantity to give rise to a sufficiently reasonable suspicion to make the stop.

The facts corroborating the details disclosed by the anonymous informant in the case at bar were less in quality and quantity than those in Lambert v. State, supra, and less in quality than those in Alabama v. White, supra. Here, the only facts corroborated by the police before making an investigatory stop were the presence of appellant and Ms. Angela Highsmith on the premises of the Stonewall Jackson Inn and their possession of a blue van. Significantly missing was corroboration of any prediction of future behavior as existed in Alabama v. White, supra, or other such details as would demonstrate a special familiarity with appellant’s affairs.

Unless we overrule Lambert v. State, supra, it stands as a controlling precedent and requires a reversal of appellant’s conviction.

Jennings, C.J., Cooper and Mayfield, JJ., would grant rehearing.