DocketNumber： 11–0738
Citation Numbers： 833 N.W.2d 202
Judges： Wiggins, Mansfield, Cady, Waterman
Filed Date： 6/28/2013
Status： Precedential
Modified Date： 10/19/2024
The police received an anonymous tip reporting a drunk driver. The officer stopped the vehicle and arrested the driver for operating a motor vehicle while under the influence, second offense, in violation of Iowa Code section 321J.2 (2009). The driver contended the stop was illegal under the United States and Iowa Constitutions and moved to suppress the evidence obtained from the stop. The district court denied the motion, and the court found the driver guilty of the charge. The driver appealed, and we transferred the case to the court of appeals. The court of appeals affirmed the district court ruling on the motion to suppress. We took the case on further review. On further review, we find the stop was illegal under the Fourth Amendment of the United States Constitution. Thus, we need not decide whether the stop violated the Iowa Constitution. Accordingly, we suppress all evidence seized from the illegal stop. Moreover, we vacate the decision of the court of appeals, reverse the judgment of the district court, and remand for a new trial consistent with this opinion.
I. Facts.
On our de novo review, we find the facts are as follows. On Wednesday, June 16, 2010, Leon Kooima, along with five other men, left Rock Valley to attend a charity golf event in Okoboji. All six men rode together in a silver Chevrolet Suburban registered to Van Zee Enterprises of Rock Valley. After completing the course, Kooi-ma and the rest of the group attended a dinner and program in conjunction with the charity event.
Following the dinner, Kooima and the group left the golf course. Kooima drove
After about an hour, Kooima and the rest of the group got into their vehicle to leave the steakhouse. Post subsequently called 911 at approximately 11:21 p.m. Post did not identify himself to the dispatcher. A transcript of the call details the following exchange:
Dispatcher: 911 where is your emergency?
Caller: [H]i, not sure if this is a serious emergency, but Pm not sure what other number to dial.
Dispatcher: [0]k, that’s fíne.
Caller: Um, please check cars in Doon area.
Dispatcher: Cars in the Doon area? Caller: Yeah.
Dispatcher: Ok.
Caller: BC229, BC229 silver suburban. Dispatcher: Ok, what’s it doing?
Caller: Um, carload of Rock Valley merchants, huge money guys.
Dispatcher: Ok.
Caller: And they are loaded, leaving Doon, and they are still sitting on curbside, ready to leave to Rock Valley. Dispatcher: Ok.
Caller: What bothers me is these guys get away with everything, cuz they know everybody in Rock Valley and they think they can do everything.
Dispatcher: You’re saying, you think they are drunk, you mean?
Caller: I know they are.
Dispatcher: Ok.
Caller: Everybody in the damn vehicle is..
Dispatcher: Ok and where are they at right now?
Caller: In Doon, on curbside, and Dispatcher: Like downtown or what? Caller: Yeah.
Dispatcher: Ok.
Caller: They are opening their doors to get the last passengers in and then they are leaving.
Dispatcher: Ok.
Caller: This includes people that own Van Zee Enterprises and they are on a golf outing and they think that they are home free.
Dispatcher: Gotcha.
Caller: And it bothers me a lot. Dispatcher: Ok, I can have somebody go check it out.
Caller: 10-4, get on that right away. Dispatcher: Alright.
Caller: And this thing is full of drunks. Dispatcher: Ok.
Caller: Thank you.
Dispatcher: You’re welcome, thank you. Caller: BC229.
Dispatcher: Got it.
A review of the audio tape reveals Post spoke in a monotone voice throughout the phone call.
The dispatcher then broadcast the following radio transmission:
Attention Sioux County cars possible [intoxicated driver] special attention Rock Valley, possible [intoxicated driver] license number BC229, vehicle is just leaving Doon at the moment, [reporting party] stated all occupants are [intoxicated and in] ... a silver 2009 Chevy Suburban registered to a Rock Valley address 2015 North Main, end of broad-cast....
As Kooima turned west onto Highway 18, Officer Travis Ryan followed the vehicle for a block. Ryan did not observe the vehicle make any traffic or equipment violations. Based solely on the anonymous phone tip, Ryan initiated a stop at approximately 11:38 p.m. After Munneke approached the vehicle and Kooima asked the officer what was wrong, Munneke said the only reason for the traffic stop was the anonymous tip, which indicated there was a “carload of drunks on the way to Rock Valley.”
Kooima cooperated with the officers. Ryan detected the smell of alcohol on Kooima’s breath, so he conducted several field sobriety tests, including the horizontal gaze nystagmus test, the walk-and-turn test, and the one-legged-stand test. Because Kooima failed these tests and based upon the anonymous tip, Ryan arrested Kooima for operating while intoxicated and transported him to the Rock Valley Police Department. There, Kooima consented to a breath specimen. A breath test conducted at 1:15 a.m. revealed Kooima’s blood alcohol level was .088.
Other relevant facts are discussed below.
II.Prior Proceedings.
The State charged Kooima on July 1 with operating a motor vehicle while under the influence, second offense, in violation of Iowa Code section 321J.2. On July 22, Kooima moved to suppress all evidence obtained from the stop. Kooima contended the stop violated his constitutional rights guaranteed by the United States and Iowa Constitutions because the police acted upon an anonymous tip. The district court denied Kooima’s motion. Kooima then sought discretionary review, which we denied.
The case proceeded to a bench trial. The district court found Kooima guilty. Kooima appealed. We transferred the cáse to the court of appeals. The court of appeals affirmed the district court. Kooi-ma sought further review, which we granted.
III. Issues.
The issue before the court is whether the investigatory stop of Kooima by the Rock Valley police violated his rights against unreasonable searches and seizures under the Fourth Amendment of the United States Constitution or article I, section 8 of the Iowa Constitution.
IV. Standard of Review.
Kooima argues the district court should have granted his motion to suppress on state and federal constitutional grounds because the State deprived him of his right against unlawful searches and seizures. State v. Ochoa, 792 N.W.2d 260, 264 (Iowa 2010) (recognizing a motion to suppress based on the deprivation of the defendant’s constitutional right against unlawful searches and seizures). We review constitutional issues de novo. State v. Kreps, 650 N.W.2d 636, 640 (Iowa 2002).
V. Analysis.
Kooima claims the State violated his rights under both the Fourth Amend
The Fourth Amendment prevents governmental officials from arbitrarily intruding into citizens’ privacy and security. Camara v. Mun. Ct., 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930, 935 (1967). Stopping an automobile and detaining its occupants constitutes a seizure under the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660, 667 (1979). A police officer can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1, 10 (1989).
The Supreme Court has discussed when an anonymous tip provides a sufficient indicia of reliability to give rise to reasonable suspicion for an investigatory stop of a vehicle. The first decision typically referenced in this debate is Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). This case articulates the reasonable suspicion standard for an investigatory stop.
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.
White, 496 U.S. at 330, 110 S.Ct. at 2416, 110 L.Ed.2d at 309. In White, the Court recognized that whether an anonymous tip provides reasonable suspicion for an investigatory stop depends on the quantity and quality, or degree of reliability, of that information, viewed under the totality of the circumstances. Id. “[I]f 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.” Id.
In White, the anonymous tip stated:
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*207 Motel, and that she would be in possession of about an ounce of cocaine inside a brown attaché case.
Id. at 327, 110 S.Ct. at 2414, 110 L.Ed.2d at 306-07. Acting upon this tip, the officers were able to identify the vehicle as it left the apartments, as well as confirm its route and destination to a specific motel. Id. at 327, 110 S.Ct. at 2414, 110 L.Ed.2d at 307. Although the officers did not observe any criminal activity afoot, they stopped the vehicle. Id. The police found drugs in the driver’s possession and charged her accordingly. Id. at 327, 110 S.Ct. at 2415, 110 L.Ed.2d at 307.
The Supreme Court held the stop, based solely on the anonymous tip, did not violate the Fourth Amendment. Id. at 331, 110 S.Ct. at 2416, 110 L.Ed.2d at 309. The tip contained more information than just the bare assertion the driver possessed drugs. Id. at 331-32, 110 S.Ct. at 2416-17, 110 L.Ed.2d at 309-10. The tip contained specific information about the broken taillight, the place where the trip started, the driver’s route, and the driver’s destination to a specific motel that turned out to be accurate. Id. The Court reasoned the tip had the requisite indicia of reliability to justify an investigatory stop because the general public would have had no way of predicting the defendant’s anticipated movements; therefore, it would have been nearly impossible for anyone except a person who was intimately involved with the defendant to accurately predict that the defendant would be in her car at the particular time and place described. Id. at 332, 110 S.Ct. at 2417, 110 L.Ed.2d at 310. In reaching its decision, the Court characterized the matter as “a close case.” Id.
In contrast to White, the second decision typically referenced in this constitutional conversation is Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). J.L. involved an anonymous tip stating a young man, who was wearing a plaid shirt and waiting at a particular bus stop, was carrying a concealed gun. Id. at 268, 120 S.Ct. at 1377, 146 L.Ed.2d at 258-59. The tip was the only information available to the police. Id. The officers did not see a weapon or have any reason to believe the young man had a weapon on his person. Id. at 268, 120 S.Ct. at 1377, 146 L.Ed.2d at 259.
With nothing more than the tip, the officers stopped and frisked the young man and found a gun in his possession. Id. The State charged the young man with a weapons violation. Id. at 269, 120 S.Ct. at 1377, 146 L.Ed.2d at 259. The Supreme Court held the search violated the Fourth Amendment because it lacked the requisite indicia of reliability to justify an investigatory stop. Id. at 271, 120 S.Ct. at 1379, 146 L.Ed.2d at 260. The Court acknowledged the tip was specific enough to identify the alleged perpetrator. Id. at 272, 120 S.Ct. at 1379, 146 L.Ed.2d at 261. However, nothing about the tip showed the tipster had knowledge of concealed criminal activity. Id. For the tip to give rise to reasonable suspicion, the Court held the tip must have some indicia of reliability in its assertion of illegality and its tendency to identify a determinate person. Id.
After these decisions, lower courts have had to apply this law to situations where police officers receive anonymous tips regarding drunk drivers. The seminal federal circuit court case comes from the Eighth Circuit. United States v. Wheat, 278 F.3d 722 (8th Cir.2001). There, an anonymous motorist called 911 to report a vehicle was passing others “on the wrong side of the road, cutting off other cars, and otherwise being driven as if by a ‘complete maniac.’ ” Id. at 724. The caller provided a general description of the vehicle, its location, and the first three letters of the license plate. Id. Upon observing the ve-
State courts have also dealt with this situation under the United States Constitution. Our court did so in State v. Walshire, 634 N.W.2d 625 (Iowa 2001). In Walshire, police received an anonymous tip from a motorist using a cell phone to report a driver was drunk. Id. at 626. The tipster observed the driver operating his vehicle in the median. Id. Our court upheld the stop, concluding that when a tipster relays details of the crime personally observed, the anonymous tip contains the requisite indicia of reliability. Id. at 628-29.
Courts around the country tend to agree with the holdings in Wheat and Walshire, finding a tip has the requisite indicia of reliability under the Fourth Amendment when the anonymous tipster relates that he or she has personally observed erratic driving open to public view. See, e.g., People v. Wells, 38 Cal.4th 1078, 45 Cal.Rptr.3d 8, 136 P.3d 810, 815-16 (2006) (finding the likelihood of harassment or an insincere or unreliable report of drunk driving is “significantly reduced” by the fact a phoned-in report involves an anonymous tipster providing “a contemporaneous event of reckless driving presumably viewed by the caller” and a predictive “analysis is more appropriate in cases involving tips of concealed criminal behavior such as possession offenses” — not in the DUI context where the illegal activity is visible); State v. Prendergast, 103 Hawai'i 451, 83 P.3d 714, 724 (2004) (emphasizing the tip must be “firmly rooted in time and place and based on firsthand observations of criminal activity,” as well as the totality of circumstances and specific, articulable facts); Bloomingdale v. State, 842 A.2d 1212, 1213 (Del.2004) (upholding a stop when the officer did not observe any erratic driving but pulled over a driver based on an anonymous tipster who stated there was a possible drunken motorist “driving all over the roadway” between two streets; described the make, model, color, and license plate of the vehicle; and relayed the driver’s race and travel route); State v. Crawford, 275 Kan. 492, 67 P.3d 115, 119 (2003) (holding an anonymous tip had the requisite indicia of reliability when the caller described his or her observations as “reckless driving”); State v. Rutzinski, 241 Wis.2d 729, 623 N.W.2d 516, 519, 527-28 (2001) (holding an anonymous tip had the requisite indicia of reliability to justify a stop when the caller told the police of the alleged erratic driving, automobile location, and vehicle description).
Cases holding an anonymous tip had the sufficient indicia of reliability to justify the stop contain three common elements. First, the tipster gave an accurate description of the vehicle, including its location, so the police could identify the vehicle. Next, the tipster based his or her information on personal, eyewitness observations made contemporaneously with a crime in progress that was carried out in public, identifiable, and observable by anyone. When a tipster relates personal observations consistent with drunk driving to the dispatcher, the caller’s basis of knowl
On the other hand, when the anonymous tip does not include details pertaining to the tipster’s personal observation of erratic driving, other facts that would lead to a reasonable inference the tipster witnessed an intoxicated driver, or details not available to the general public as to the defendant’s future actions, state supreme courts have ruled the stop violated the Fourth Amendment. See State v. Lee, 282 Mont. 391, 938 P.2d 637, 640 (1997); State v. Miller, 510 N.W.2d 638, 645 (N.D.1994); Harris v. Commonwealth, 276 Va. 689, 668 S.E.2d 141, 147 (2008).
In Harris, an anonymous informant called the police department to report “there was a[n] intoxicated driver in the 3400 block of Meadowbridge Road, [who] was named Joseph Harris, and he was driving [a green] Altima, headed south, towards the city, possibly towards the south side.” 668 S.E.2d at 144. The tipster did not detail any personal observations about the manner in which the driver was operating the vehicle. Id. However, the tipster provided a partial license plate number for the vehicle and indicated the driver was wearing a striped shirt. Id. The police report did not include the time period when the caller observed the suspect driver. Id. The police officer observed the vehicle driving within the posted speed limit and did not observe the car swerve, but did see the car’s brake lights flash three times at various intersections and red stoplights. Id. After proceeding through one of the intersections, the driver navigated the car to the side of the road and stopped. Id. The officer then initiated a stop. Id. The court found the anonymous tip alone was insufficient to stop the driver, and the driver’s act of slowing at an intersection and stopping at the side of the road was insufficient conduct “to corroborate the criminal activity alleged in the anonymous tip.” Id. at 147.
The State of Virginia requested the Supreme Court grant certiorari to review the court’s decision in Virginia v. Harris, which the Court denied. Virginia v. Harris, 558 U.S. 978, 130 S.Ct. 10, 175 L.Ed.2d 322 (2009). Two justices dissented from the denial of certiorari, arguing “[t]he imminence of the danger posed by drunk drivers exceeds that at issue in other types of cases.” Id. at-, 130 S.Ct. at 11, 175 L.Ed.2d at 323. The justices appear to rely upon the following language in J.L.:
We do not say, for example, that a report of a person carrying a bomb need bear the indicia of reliability we demand for a report of a person carrying a firearm before the police can constitutionally conduct a frisk.
J.L., 529 U.S. at 273-74, 120 S.Ct. at 1380, 146 L.Ed.2d at 262.
As a court interpreting the Fourth Amendment, we cannot rely on a dissent from a denial of a petition for writ of certiorari for guidance. However, we do acknowledge that the Supreme Court left intact as good law the Virginia Supreme Court’s interpretation of the Fourth Amendment as it applied to an anonymous tip regarding drunk driving that did not include a personal observation of erratic driving or other facts to substantiate the driver was intoxicated.
As J.L. teaches us, without a means for the police to test an anonymous tipster’s
In Lee, the anonymous tip consisted of the statement “that a purple Chevrolet Camaro with a tan convertible top, driven by David Lee, was heading toward Glasgow on the Fort Peck highway. The complainant believed Mr. Lee was under the influence of alcohol, and speeding.” 938 P.2d at 638. When the officer observed the vehicle, the driver did not exhibit any signs he was driving under the influence or speeding. Id. at 638-40. The Montana Supreme Court held:
[T]here was no objective data from which the officer could reach any conclusion justifying the investigative stop. Therefore, we conclude that under the totality of the circumstances, as applied to the facts in this case, information provided by the citizen informant alone, with no other objective data, does not support a particularized suspicion that Lee had been engaged in wrongdoing.
Id. at 640.
In Miller, the court analyzed the tip as an anonymous one. 510 N.W.2d at 644. There, the tip “described the vehicle as a red pickup and gave its license plate number and location as second in line in the drive-up lane. The dispatcher also relayed the informant’s statement that the driver ‘could barely hold his head up.’ ” Id. at 639. When the officer found the vehicle, he followed it. Id. The officer did not observe anything unusual about the driver’s operation of the pickup. Id. The North Dakota Supreme Court found the quantity of information given by the tipster did not lead to a reasonable inference the tipster personally witnessed an intoxicated driver. Id. at 644.
Cases decided by us and other courts require a personal observation of erratic driving, other facts to substantiate the allegation the driver is intoxicated, or details not available to the general public as to the defendant’s future actions in order to spawn a reasonable inference the tipster had the necessary personal knowledge that a person was driving while intoxicated and the stop comports with the requirements of the Fourth Amendment. To hold otherwise would cause legitimate concern because such tips would let the police stop persons on anonymous tips that might have been called in for vindictive or harassment purposes or based solely on a hunch or rumor. These types of tips do not have the requisite indicia of reliability in their assertion of illegality because the information relayed to the police does not lead to a reasonable inference the tipster had the necessary personal knowledge that a person was driving while intoxicated.
The State cites State v. Christoffersen, 756 N.W.2d 230 (Iowa Ct.App.2008), as controlling precedent. It is easily distinguishable. There, the suspect backed into the reporting police officer’s patrol ear. Id. at 231. This constituted an obvious offense committed in the presence of a police officer, which served as the basis for the stop and subsequent arrest for operating while intoxicated. Consequently, we overrule Christoffersen to the extent it stands for the proposition that a bare assertion by an anonymous tipster reporting drunk driving provides reasonable suspicion to stop a vehicle.
Accordingly, we hold a bare assertion by an anonymous tipster, without relaying to the police a personal observation of erratic driving, other facts to establish the driver is intoxicated, or details not available to the general public as to the defendant’s future actions does not have
Applying these principles to the tip concerning Kooima, the undisputed facts are the tipster did not relay a contemporaneous observation of erratic driving or any facts that would indicate the persons getting in the vehicle exhibited any signs of intoxication. We do acknowledge the tipster did tell the dispatcher the vehicle “was ready to leave to Rock Valley.” However, this predictive behavior is of a type that would be known to the general public in Sioux County. It was not information that would likely be known only by those intimately involved with Kooima and his associates.
We reach this conclusion for a number of reasons. The persons getting in the vehicle did so in a public setting where anyone at the bar could have observed their conduct. The tipster did not know for sure where the vehicle was going. He first told the dispatcher to check the Doon area. Later in the call, he said they were leaving for Rock Valley. The occupants of the vehicle were well known in the area because they were successful businessmen. Any person at the bar would be able to surmise that at 11:20 p.m. on a Wednesday night, these four well-known businessmen from Rock Valley would most likely be going home at that time of night. Thus, the tipster was not basing the information he relayed to the dispatcher on intimate involvement with Kooima by predicting the defendant would be in his car at the particular time and place described. The tipster used information available to the general public in surmising where Kooima might be heading.
Our holding is consistent with the differences in information provided by the tipsters in White and in J.L. In White, the defendant was leaving from a private motel room to do a drug transaction at a certain place at a certain time. White, 496 U.S. at 327, 110 S.Ct. at 2414, 110 L.Ed.2d at 306-07. Only someone with intimate knowledge of what the defendant was doing would be able to predict that behavior. In other words, it was more likely than not the tipster was with the defendant or talked to her shortly before she left the motel. The general public would not know the details as to when the defendant would have left the motel or where she was going.
In J.L., the observations relayed to the police were such that anyone in the general public could observe. The observations relayed to the police were that the defendant was a young man, wearing a plaid shirt at a particular bus stop. J.L., 529 U.S. at 268, 120 S.Ct. at 1377, 146 L.Ed.2d at 258-59. Just as in this case, the facts relayed by the tipster in J.L. could be observed by the general public and did not indicate the tipster was someone with intimate knowledge of what the defendant was doing in order to be able to predict future behavior.
Therefore, we reverse the ruling of the district court on the motion to suppress and find the stop of Kooima was illegal. In doing so, the evidence seized from the illegal stop must also be suppressed under the fruit of the poisonous tree doctrine. Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S.Ct. 407, 415-16, 9 L.Ed.2d 441, 453-54 (1963).
Before concluding, we stress this court does not condone drunk driving. However, our oath requires us to uphold the Constitution of the United States as interpreted by the Supreme Court. Additionally, we commend the dispatcher who took the 911 call. The dispatcher asked probing questions in an attempt to get more facts concerning the tipster’s knowledge
VI. Summary and Disposition.
We do not decide this case under the Iowa Constitution because we resolve this issue based upon the Fourth Amendment of the United States Constitution. In doing so, we find the investigatory stop of Kooima was illegal under the Fourth Amendment. Accordingly, we suppress all evidence seized from the unconstitutional stop. Moreover, we vacate the decision of the court of appeals, reverse the judgment of the district court, and remand for a new trial consistent with this opinion.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS.