IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S128640
v.
) Ct.App.
5
F043125
SUSAN WELLS,
Kern
County
Defendant and Appellant.
Super. Ct. No. BF101553A
We granted this case to consider under what circumstances, if any, police
officers may stop a vehicle and detain its driver based solely on an uncorroborated
phoned-in tip that accurately describes the vehicle and its location and relates that
a possibly intoxicated person is behind the wheel, “weaving all over the roadway.”
As we explain, although the law appears somewhat unsettled, the better rule,
firmly supported by many cases as well as by considerations of public safety and
common sense, is that a limited traffic stop is permitted under such circumstances
to confirm the officer’s reasonable suspicion of intoxicated driving before a
serious traffic accident can occur.
FACTS
The following uncontradicted facts are taken from the Court of Appeal
opinion in this case. On February 14, 2003, at 1:43 a.m., California Highway
Patrol traffic officer Julian Irigoyen was engaged in traffic enforcement on
Highway 99 in Kern County north of Bakersfield. He received a dispatch report
of a possibly intoxicated driver “weaving all over the roadway.” (The record is
1
silent as to the identity of the caller or circumstances leading to the call, but we
may reasonably infer that the report was based on an anonymous phoned-in tip.)
The subject vehicle was described as an ‘80’s model blue van traveling
northbound on Highway 99 at Airport Drive. Officer Irigoyen was headed
southbound three to four miles north of that location, with only one entry/exit
ramp between his position and the reported location of the van.
Upon receiving the dispatch, Officer Irigoyen positioned himself on the
shoulder of northbound Highway 99 and watched for the described vehicle. Two
or three minutes later, when he saw a blue van traveling approximately 50 miles
per hour, he activated his patrol car lights and stopped the van to investigate
whether the driver was impaired. The officer did not observe the van weaving,
speeding, or otherwise violating any traffic laws, perhaps because he stopped the
van so soon after spotting it.
Defendant was the driver of the van. While speaking with her at the scene,
the officer noticed that she had constricted pupils and a dry mouth. The officer
asked her to exit the vehicle, at which time she became visibly nervous. The
officer suspected that she was under the influence of illegal drugs and began
conducting field sobriety tests. At the conclusion of the tests, the officer placed
her under arrest for driving under the influence. (Veh. Code, § 23152, subd. (a).)
Later, her urine tested positive for THC, cocaine, and opiates. During an
inventory search of the van, police found a black suitcase containing several
syringes and some heroin.
Following the preliminary hearing, defendant was charged with possession of
heroin (Health & Saf. Code, § 11350, subd. (a)), driving under the influence of a
controlled substance (Veh. Code, § 23152, subd. (a)), being under the influence of
a controlled substance (Health & Saf. Code, § 11550, subd. (a)), and possession of
2
a device for injecting a controlled substance (Health & Saf. Code, § 11364).
Defendant initially pleaded not guilty.
Defendant filed a motion to suppress evidence, asserting that the stop of her
van was improper. (Pen. Code, § 1538.5.) The court found that the stop was
proper, noting that the description of the vehicle was specific, and the vehicle
itself (an ‘80’s model blue van) was distinctive. Moreover, defendant’s van was
traveling in the same direction and at the same location as the suspected van.
Based on these factors, the trial court found that the stop was reasonable and
denied defendant’s motion to suppress.
After the court denied the suppression motion, defendant withdrew her plea
and pursuant to a plea agreement pleaded no contest to possession of heroin
(Health & Saf. Code, § 11350, subd. (a)) and driving under the influence (Veh.
Code, § 23152, subd. (a)). She was sentenced to 16 months in state prison on the
possession count, and a concurrent six-month term on the driving under the
influence count.
On appeal, defendant argued that the trial court erred in denying her
suppression motion because she was detained without reasonable suspicion. The
Court of Appeal rejected this contention, concluding that the anonymous tip,
amply corroborated in its “innocent” details, afforded reasonable suspicion to stop
and investigate. Defendant now seeks our review. We will affirm.
DISCUSSION
The issue can be easily stated, although somewhat less easily resolved: Does
an anonymous and uncorroborated tip regarding a possibly intoxicated highway
driver afford a police officer reasonable suspicion sufficient to justify a temporary
detention to investigate further? The answer requires an examination of seemingly
conflicting case law and a weighing of considerations of public safety with
expectations of personal privacy. As will appear, we have concluded that, under
3
the circumstances in this case, the grave risks posed by an intoxicated highway
driver justified the minimal intrusion of a brief investigatory traffic stop.
Under the cases, an officer may stop and detain a motorist on reasonable
suspicion that the driver has violated the law. (Ornelas v. United States (1996)
517 U.S. 690, 693; People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 200;
People v. Miranda (1993) 17 Cal.App.4th 917, 926; see also Terry v. Ohio (1968)
392 U.S. 1, 22; In re Tony C. (1978) 21 Cal.3d 888, 892-894.) The guiding
principle in determining the propriety of an investigatory detention is “the
reasonableness in all the circumstances of the particular governmental invasion of
a citizen’s personal security.” (Terry v. Ohio, supra, 392 U.S. at p. 19; see In re
Tony C., supra, 21 Cal.3d at p. 892.) In making our determination, we examine
“the totality of the circumstances” in each case. (E.g., Alabama v. White (1990)
496 U.S. 325, 330; United States v. Wheat (8th Cir. 2001) 278 F.3d 722, 726
(Wheat).)
Reasonable suspicion is a lesser standard than probable cause, and can arise
from less reliable information than required for probable cause, including an
anonymous tip. (E.g., Alabama v. White, supra, 496 U.S. at p. 330.) But to be
reasonable, the officer’s suspicion must be supported by some specific, articulable
facts that are “reasonably ‘consistent with criminal activity.’ ” (In re Tony C.,
supra, 21 Cal.3d at p. 894.) The officer’s subjective suspicion must be objectively
reasonable, and “an investigative stop or detention predicated on mere curiosity,
rumor, or hunch is unlawful, even though the officer may be acting in complete
good faith. [Citation.]” (Id. at p. 893.) But where a reasonable suspicion of
criminal activity exists, “the public rightfully expects a police officer to inquire
into such circumstances ‘in the proper exercise of the officer’s duties.’ [Citation.]”
(Id. at p. 894.)
4
In this case, Officer Irigoyen could reasonably believe that the blue van
described in the dispatched tip was the same car he eventually stopped, as it
matched the description, and was traveling in the same direction and at the same
time and location as described. But, in the brief period while observing the van
before stopping it, the officer saw nothing to indicate the driver was intoxicated.
Is an anonymous citizen’s tip of a possibly intoxicated highway driver “weaving
all over the roadway” sufficient to raise a reasonable suspicion that would justify
an investigatory stop and detention under these circumstances? We believe so.
The California cases indicate that a citizen’s tip may itself create a reasonable
suspicion sufficient to justify a temporary vehicle stop or detention, especially if
the circumstances are deemed exigent by reason of possible reckless driving or
similar threats to public safety. (Lowry v. Gutierrez (2005) 129 Cal.App.4th 926
[phoned-in tip of erratic driving]; People v. Rios (1983) 140 Cal.App.3d 616 [car
illegally parked and traffic hazard]; People v. Superior Court (Meyer) (1981) 118
Cal.App.3d 579 [reckless driving, driver pointing gun].)
Lowry v. Gutierrez, supra, 129 Cal.App.4th 926, is closely apposite, as it
involved an anonymous cell phone tip that a specific vehicle was being driven the
wrong way on a city street and had turned into oncoming traffic. Although the
detaining officer himself observed no erratic driving, the Court of Appeal agreed
that an immediate investigatory stop was appropriate under these exigent
circumstances. (Id. at pp. 940-942.) The court, citing California Highway Patrol
statistics, noted the grave public safety hazard posed by drunken drivers. (Id. at p.
940.) The court also stressed the unlikelihood of a false report, and the tipster’s
detailed description of the car, its location, and the nature of the erratic driving,
making it likely the caller was an eyewitness. (Id. at p. 941.)
Defendant relies on the United States Supreme Court’s decision in Florida v.
J. L. (2000) 529 U.S. 266 (J. L.), involving an anonymous phoned-in tip claiming
5
a young African-American man in a plaid shirt standing at a particular bus stop
was carrying a gun. The high court held the tip insufficient to justify a brief
detention and patdown search, absent some independent corroboration of the
reliability of the tip and tipster’s assertion of illegal conduct. (Id. at pp. 272-274.)
As the court stated, “[a]ll the police had to go on in this case was the bare report of
an unknown, unaccountable informant who neither explained how he knew about
the gun nor supplied any basis for believing he had inside information about J. L.”
(Id. at p. 271.) The high court stressed that the tip contained no “predictive
information” (such as predicting the suspect’s future behavior) that might
demonstrate the tipster had inside information of concealed criminal activity.
(Ibid.) Subsequent California cases involving reports of possessory offenses
rather than possible intoxicated driving reach similar results. (See People v.
Jordan (2004) 121 Cal.App.4th 544; People v. Butler (2003) 111 Cal.App.4th
150; People v. Saldana (2002) 101 Cal.App.4th 170, 175.)
Significantly for our purposes, the J. L. court acknowledged the possibility
that more exigent circumstances, such as a report of someone carrying a bomb,
might justify a stop and search despite the inability to corroborate the informant’s
reliability. (J.L., supra, at p. 273-274.) The court was reluctant, however, to
adopt an “automatic firearm exception” to the reliability requirement, an exception
that would allow persons to harass and embarrass another person by simply
phoning in a false tip that he or she was carrying a weapon. (Id. at p. 272.)
Is J. L. controlling in this case? The Attorney General urges us to find J. L. is
distinguishable from cases involving tips of reckless, possibly intoxicated, driving.
Although a split of authority exists, this conclusion is supported by many out-of-
state cases which have considered the question. Most of these cases are gathered
in Wheat, an Eighth Circuit case also involving an anonymous tip of erratic
driving in which the officer observed no unlawful activity. (Wheat, supra, 278
6
F.3d at pp. 727-731 [cases upholding search and cases invalidating search]; see
generally, York, Search and Seizure: Law Enforcement Officers’ Ability to
Conduct Investigative Traffic Stops Based Upon an Anonymous Tip Alleging
Dangerous Driving When the Officers Do not Personally Observe Any Traffic
Violations (2003) 34 U.Mem. L.Rev 173; Bryk, Anonymous Tips to Law
Enforcement and the Fourth Amendment: Arguments for Adopting an Imminent
Danger Exception and Retaining the Totality of the Circumstances Test (2003) 13
Geo. Mason U. Civ. Rts. L.J. 277.)
As Wheat explained (Wheat, supra, 278 F.3d at pp. 729-730), cases
allowing the search stress the accuracy of the tipster’s description and location of
the vehicle, the relatively greater urgency presented by drunken or erratic highway
drivers, and the minimal intrusion involved in a simple vehicle stop. (See State v.
Smith (Ind.Ct.App. 1994) 638 N.E.2d 1353; State v. Walshire (Iowa 2001) 634
N.W.2d 625, 627-630); State v. Slater (Kan. 1999) 986 P.2d 1038, 1041-1046;
State v. Sampson (Me. 1996) 669 A.2d 1326; State v. Melanson (N.H. 1995) 665
A.2d 338, 339-341; People v. Rance (App.Div. 1996) 644 N.Y.S.2d 447;
Kaysville City v. Mulcahy (Utah Ct.App. 1997) 943 P.2d 231; State v. Boyea (Vt.
2000) 765 A.2d 862, 867-868.)
Wheat observed (Wheat, supra, 278 F.3d at pp. 730-731), on the other
hand, that cases invalidating the search rely on the generality of the tipster’s
information, or the absence of corroborating evidence of illegal activity. (See
Washington v. State (Ind. Ct.App. 2000) 740 N.E.2d 1241, 1243-1246; State v.
Boyle (La.Ct.App. 2001) 793 So.2d 1281, 1284-1285; Commonwealth v.
Lubiejewski (Mass.Ct.App. 2000) 729 N.E.2d 288, 292; State v. Lee (Mont. 1997)
938 P.2d 637, 638-40; State v. Miller (N.D. 1994) 510 N.W.2d 638, 640-645;
Stewart v. State (Tex. Ct.App. 2000) 22 S.W.3d 646, 648-650; McChesney v. State
7
(Wyo. 1999) 988 P.2d 1071, 1075-1078; see also State v. Villegas-Varela (Or.
Ct.App. 1994) 887 P.2d 809, 810-813.)
Wheat discussed the high court’s decision in J. L., supra, 529 U.S. at pages
273-274, focusing on J. L.’s caveat about a possible public safety exception, as
discussed above (ante, p. 6). Wheat took guidance from “those state courts that
have already considered the issue. The Supreme Courts of Vermont, Iowa, and
Wisconsin have held that J. L. does not prevent an anonymous tip concerning
erratic driving from acquiring sufficient indicia of reliability to justify a Terry
[Terry v. Ohio, supra, 392 U.S. 1] stop, even when the investigating officer is
unable to corroborate that the driver is operating the vehicle recklessly and
therefore unlawfully.” (Wheat, supra, 278 F.3d at p. 729.)
Wheat acknowledged that some lower appellate state courts believed that J.
L. would invalidate investigative stops based on tips of uncorroborated erratic
driving. (Wheat, supra, 278 F.3d at pp. 730-731.) After reviewing all the
foregoing cases, however, Wheat concluded that tips of drunken or erratic driving
may indeed provide reasonable suspicion justifying a traffic stop if the following
factors are present: First, the tipster must furnish sufficient identifying
information regarding the vehicle and its location, so the officer and reviewing
courts may be reasonably sure the vehicle stopped is the one identified by the
caller. (Id. at p. 731.) Second, the tip should indicate the caller had actually
witnessed a contemporaneous traffic violation that compels an immediate stop,
rather than merely speculating or surmising unlawful activity. (Id. at p. 732.) And
third, at least the “innocent details” of the tip must be corroborated by the officers.
(Id. at p. 735.)
Wheat believed that in the context of reckless and possibly intoxicated
driving, the tip’s lack of “predictive information” (see J. L., supra, 529 U.S. at p.
269) was not critical to determining its reliability. Such an analysis is more
8
appropriate in cases involving tips of concealed criminal behavior such as
possession offenses. (Wheat, supra, 278 F.3d at p. 730.) We agree. An
informant’s accurate description of a vehicle and its location provides the tip with
greater reliability than in the situation of a concealed firearm, because the
informant was presumably an eyewitness to illegal activity and his tip can be
sufficiently corroborated by the officer spotting the described vehicle in the
expected time and place.
In the words of the Vermont Supreme Court in State v. Boyea, supra, 765
A.2d at pages 867-868, “[i]n contrast to the report of an individual in possession
of a gun, an anonymous report of an erratic or drunk driver on the highway
presents a qualitatively different level of danger, and concomitantly greater
urgency for prompt action. In the case of a concealed gun, the possession itself
might be legal, and the police could, in any event, surreptitiously observe the
individual for a reasonable period of time without running the risk of death or
injury with every passing moment. An officer in pursuit of a reportedly drunk
driver on a freeway does not enjoy such a luxury. Indeed, a drunk driver is not at
all unlike a ‘bomb,’ and a mobile one at that.” (Fn. omitted.)
Wheat also found it unlikely that malicious pranksters would use
anonymous reports of erratic driving to harass other drivers, and in any event the
risk of such misconduct was slight compared to the risks in failing to investigate a
report of unsafe driving. (Wheat, supra, 278 F.3d at pp. 735-737.) Wheat
concluded that under the totality of circumstances, including the tipster’s extensive
description of the subject vehicle and the driver’s erratic driving, the officer’s
corroboration of the “innocent details” of the tip, and the officer’s immediate
action in effecting an investigatory stop, the officer had reasonable suspicion to
stop the vehicle. (Id. at p. 737.)
9
We agree with Wheat, and many of the cases it cites, that J. L. presents a
distinguishable situation. First, a report of a possibly intoxicated highway driver,
“weaving all over the roadway,” poses a far more grave and immediate risk to the
public than a report of mere passive gun possession. Police officers undoubtedly
would be severely criticized for failing to stop and investigate a reported drunk
driver if an accident subsequently occurred. As we stated in In re Tony C., where
a reasonable suspicion of criminal activity exists, “the public rightfully expects a
police officer to inquire into such circumstances . . . .” (In re Tony C., supra, 21
Cal.3d at p. 894.)
In this regard, we observe that the high court has upheld police roadblocks
stopping all drivers to investigate possible drunk driving, despite a complete lack
of articulable facts indicating an immediate risk of harm. (Michigan Department
of State Police v. Sitz (1990) 496 U.S. 444, 455.) The court determined that the
state’s interest in preventing drunk driving outweighed the relatively minor
inconvenience to individual motorists in being briefly stopped and detained. (Id.
at pp. 451-453; see Wheat, supra, 278 F.3d at pp. 736-737; cf. People v.
Thompson (June 1, 2006, S130174) __ Cal.4th __ [pp. 10-11].)
Second, doubts regarding the tipster’s reliability and sincerity are
significantly reduced in the setting of a phoned-in report regarding a
contemporaneous event of reckless driving presumably viewed by the caller.
Instances of harassment presumably would be quite rare. (See Lowry v. Gutierrez,
supra, 129 Cal.App.4th at p. 941; Wheat, supra, 278 F.3d at pp. 735-736.)
Third, the level of intrusion of personal privacy and inconvenience involved
in a brief vehicle stop is considerably less than the “embarrassing police search”
on a public street condemned by J. L., supra, 529 U.S. at page 272. (Wheat,
supra, 278 F.3d at p. 737; see Michigan Department of State Police v. Sitz, supra,
496 U.S. at pp. 451-452.) We have observed that “in light of the pervasive
10
regulation of vehicles capable of traveling on the public highways, individuals
generally have a reduced expectation of privacy while driving a vehicle on public
thoroughfares.” (In re Arturo D. (2002) 27 Cal.4th 60, 68.)
In J.L., the United States Supreme Court observed that in places where one
has a reduced expectation of privacy, such as schools or airports, searches may be
justified on the basis of information that would be insufficient to justify a search
elsewhere. (J.L., supra, 529 U.S. at p. 274.) Furthermore, as held in Wheat,
traffic stops are “less invasive, both physically and psychologically, than the frisk”
at issue in J.L. (Wheat, supra, 278 F.3d at p. 737.) Defendant here was driving a
vehicle on a public thoroughfare. We conclude there is a sound and logical
distinction between the vehicle stop in the present case and the frisk found
unconstitutional in J.L.
Fourth, the relatively precise and accurate description given by the tipster in
the present case regarding the vehicle type, color, location, and direction of travel,
all confirmed by the investigating officer within minutes of receiving the report,
enhanced the reliability of the tip. (Wheat, supra, 278 F.3d at pp. 731-732.) The
investigating officer’s inability to detect any erratic driving on defendant’s part is
not significant. Motorists who see a patrol car may be able to exercise increased
caution. Additionally, the officer in this case stopped defendant’s van
immediately after spotting it.
Defendant observes that in many of the cases upholding searches based on
erratic driving tips, the officers had gathered more details from which they might
gauge the reliability of the tipster, such as his or her identity and eyewitness status,
or whether the tip contained predictive information that might demonstrate the
tipster was indeed reliable. (See J. L., supra, 529 U.S. at pp. 270-272.) Defendant
also doubts that the tip was sufficiently detailed to indicate that indeed a crime was
being committed.
11
It is true the record contains little information regarding the identity or
status of the tipster, but like the Court of Appeal below we may reasonably infer
that the tip came from a passing motorist. Where else would it have come from?
As the Court of Appeal also stated, “[w]e endorse efforts by law enforcement to
gather more information to assess the reliability of 911 calls reporting criminal
activity.” Although the absence of such information may be relevant in
determining the totality of the circumstances in a given case, and officers in future
incidents should attempt to gather additional information supporting the tip’s
reliability, we agree with the Court of Appeal that the absence of such information
in the present case was not fatal to the subsequent vehicle stop.
Viewing the totality of circumstances in the present case, we are convinced
that the officer’s traffic stop was justified by reasonable suspicion of criminal
activity. As the Court of Appeal held in this case, the tipster’s information
regarding the van and its location was sufficiently precise, and its report of a
motorist “weaving all over the roadway” demanded an immediate stop to protect
both the driver and other motorists. The tip reported contemporaneous activity
and its “innocent” details were fully corroborated within minutes of the report.
The judgment of the Court of Appeal is affirmed.
CHIN,
J.
WE CONCUR:
GEORGE, C.J.
CORRIGAN, J.
CROSKEY, J.∗
____________________
∗
Associate Justice, Court of Appeal, Second Appellate District, Division
Three, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
12
DISSENTING OPINION BY WERDEGAR, J.
One of the hallmarks of the liberty guaranteed to persons in this country is
that agents of the government cannot arrest, seize or detain them without a good
reason. (U.S. Const., 4th Amend. [“The right of the people to be secure in their
persons, houses, papers and effects, against unreasonable searches and seizures,
shall not be violated”]; Cal. Const., art. I, § 13 [same].) As this constitutional
guarantee has been interpreted, a full-fledged arrest must be supported by a
warrant issued by a neutral magistrate or by probable cause to believe the person
arrested has committed a crime. (People v. Bennett (1998) 17 Cal.4th 373, 386-
387.) Short of outright arrest, police may temporarily detain a person on a lesser
showing of cause, but the detention—essentially a temporary seizure of the
person—must be supported by reasonable cause to believe the person is guilty of
some wrongdoing. (Ibid.) These rules apply to traffic stops: “Temporary
detention of individuals during the stop of an automobile by the police, even if
only for a brief period and for a limited purpose, constitutes a ‘seizure’ of
‘persons’ within the meaning of [the Fourth Amendment].” (Whren v. United
States (1996) 517 U.S. 806, 809-810.) “[P]ersons in automobiles on public
roadways may not for that reason alone have their travel and privacy interfered
with at the unbridled discretion of police officers.” (Delaware v. Prouse (1979)
440 U.S. 648, 663.) When police stop a car traveling on the highway due to an
alleged traffic violation—that is, when police activate their lights and siren and
1
force the driver of the car to stop—police effect a detention that must be supported
by reasonable cause.
We address in this case the effect of an anonymous tip, received by police,
that a certain type of vehicle, driving in a certain direction, was driving illegally.
The majority today concludes a tip of this nature provides reasonable cause to
detain the driver of such a vehicle, even though police fail to confirm any alleged
illegality. Because this conclusion is contrary to the United States Supreme
Court’s admonition in Florida v. J. L. (2000) 529 U.S. 266, that confirmation of
the innocent details of an anonymous tip is insufficient to provide police with
reasonable cause to detain, I dissent.
I
Officer Irigoyen, a traffic officer for the California Highway Patrol,
testified he received a broadcast of “a possible DUI driver, weaving all over the
roadway.” (As most people by now know, “DUI” stands for driving under the
influence.) The broadcast described the vehicle as a 1980’s-era blue van driving
northbound on State Route 99 at Airport Drive, near Bakersfield. No information
was broadcast, and no evidence was presented at either the preliminary hearing or
the suppression hearing, indicating from where or whom this information came.
Being three or four miles from the van’s last reported location, Officer Irigoyen
waited for the van. About three minutes later, a 1980’s blue van went by. The
van was not weaving and was traveling within the speed limit and otherwise
obeying all traffic laws. Officer Irigoyen effected a traffic stop and determined the
driver, defendant Susan Wells, was under the influence of drugs.
II
As the majority recognizes, Florida v. J. L., supra, 529 U.S. 266 (J.L.),
posed a similar situation. In that case, police received an anonymous tip that “a
young black male standing at a particular bus stop and wearing a plaid shirt was
2
carrying a gun.” (Id. at p. 268.) The identity of the tipster was unknown: “So far
as the record reveals, there is no audio recording of the tip, and nothing is known
about the informant.” (Ibid.) Police went to the bus stop, recognized the person
from the description, but observed no illegality. “The officers [in J.L.] did not see
a firearm, and [the defendant] made no threatening or otherwise unusual
movements.” (Ibid.) Thus, in both the instant case and in J.L., police responded
to an anonymous tip of a crime, confirmed the innocent aspects of the tip, but did
not confirm the tip’s report of illegal activity.
The J.L. court unanimously reversed the defendant’s conviction. At the
threshold, the high court distinguished anonymous tips from those of known
informants. “Unlike a tip from a known informant whose reputation can be
assessed and who can be held responsible if her allegations turn out to be
fabricated [citation], ‘an anonymous tip alone seldom demonstrates the
informant’s basis of knowledge or veracity.’ ” (J.L., supra, 529 U.S. at p. 270,
quoting Alabama v. White (1990) 496 U.S. 325, 329.)
Next, the court dismissed the state’s argument that confirmation of the
innocent aspects of an anonymous tip supplied the necessary reasonable cause.
“An accurate description of a subject’s readily observable location and appearance
is of course reliable in this limited sense: It will help the police correctly identify
the person whom the tipster means to accuse. Such a tip, however, does not show
that the tipster has knowledge of concealed criminal activity. 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.” (J.L., supra, 529 U.S. at
p. 272, italics added.)
Applying the rule of J.L. to the facts of this case (People v. Camacho
(2000) 23 Cal.4th 824, 830 [federal constitutional law governs state exclusionary
rule for search and seizure violations]) would entitle defendant to relief. Officer
3
Irigoyen stopped defendant’s car after confirming the innocent details of an
anonymous tip (a 1980’s-era blue van, driving northbound on State Route 99), but
did not confirm the tip’s report of any illegality (“weaving all over the roadway”).
Officer Irigoyen testified the van was not weaving, was complying with the speed
limit and was otherwise following all traffic laws. According to J.L., then, the
officer did not have reasonable cause to stop defendant.
In finding J.L. inapplicable, the majority unpersuasively attempts to fit this
case into a possible exception mentioned by the J.L. court. As a possible
exception to its rule, the high court observed that a threat to public safety might be
“so great” that an anonymous tip of such a catastrophic threat would supply
reasonable cause to detain even in the absence of any confirmation of the
illegality. (J.L., supra, 529 U.S. at pp. 273-274.) The high court suggested “a
report of a person carrying a bomb” might qualify for this exception. (Ibid.) The
majority opines that an anonymous tip of a drunk driver similarly qualifies as a
threat to public safety so catastrophic that compliance with J.L.’s rule requiring
confirmation of the illegality is excused. Thus, the majority asserts that “a report
of a possibly intoxicated highway driver, ‘weaving all over the roadway,’ poses a
far more grave and immediate risk to the public than a report of mere passive gun
possession [as in J.L.].” (Maj. opn., ante, at p. 10.)
The majority misreads J.L. That the high court in J.L. left open the
possibility that a catastrophic threat might justify a somewhat relaxed standard of
reasonable cause to detain does not suggest we are now to rank all crimes along a
sliding scale, permitting investigatory detentions on lesser showings when the
detainees are suspected of more serious crimes. Certainly merely by mentioning
the possibility of a threat “so great” that some lesser degree of suspicion could
justify a detention, the high court did not suggest such a regime. Moreover, while
I do not dispute the seriousness of drunk drivers on our roadways (see In re
4
Jennings (2004) 34 Cal.4th 254, 260-261 [“No citation to authority is necessary to
establish that automobile accidents by underage drinkers lead to the injuries and
deaths of thousands of people in this country every year”]), I am not convinced
this fairly common crime poses the type of threat contemplated by the high court,
the type of threat “so great” that an exception to the general rule is warranted. In
particular, I am not convinced the danger posed by drunk drivers is so much
greater than the danger posed by young men carrying concealed firearms (as in
J.L.) that a different standard should apply under the Fourth Amendment. Indeed,
the fact Officer Irigoyen failed to verify that the blue van was weaving, and his
testimony that no other cars were on the road at that time of night (1:43 a.m.),
diminishes significantly the potential danger posed by this alleged drunk driver.
The majority relies heavily on U.S. v. Wheat (8th Cir. 2001) 278 F.3d 722,
a lower federal court case. Of course, such cases are not binding on this court.
(People v. Williams (1997) 16 Cal.4th 153, 190.) Nevertheless, that the majority
places such reliance on Wheat is telling, for that case explained that “integral to a
determination of whether an anonymous tip of erratic driving may justify an
investigatory stop” (Wheat, at p. 731) is that “[t]he tip . . . contain a sufficient
quantity of information to support an inference that the tipster has witnessed an
actual traffic violation that compels an immediate stop” (id. at p. 732). The
majority recognizes this point (maj. opn., ante, at p. 8) and thereafter asserts the
tipster in this case “was presumably an eyewitness to illegal activity” (id. at p. 9,
italics added), later suggesting that defendant’s alleged reckless driving was
“presumably viewed by the caller” (id. at p. 10, italics added).
That the majority relies so heavily on its assumption the tip came from
another driver with personal knowledge defendant was “weaving all over the
roadway” substantially undercuts its analysis, for the record contains no such
evidence. That the tip was from another driver or any other eyewitness is no more
5
than conjecture; nothing is known of the identity of the tipster or the basis of the
tipster’s knowledge. The information may have come from a vindictive ex-
boyfriend sitting in his home or teenagers making a prank call. Although the
majority attempts to gloss over this analytical lacuna by concluding we should
“reasonably infer that the tip came from a passing motorist” (for “[w]here else
would it have come from?”) (maj. opn., ante, at p. 12), it is significant that this
alleged motorist neither gave his or her name, nor reported the circumstances in
which he or she came to see defendant allegedly “weaving all over the roadway,”
nor left a cell phone number, nor provided any other information allowing
assessment of the tipster’s veracity. Had police obtained the name and telephone
number of the tipster, this would be a different case.
The high court in J.L. could similarly have inferred that the tip the
defendant in that case had a gun concealed on his person came from someone with
personal knowledge (for “where else would it have come from?”). But it is just
this type of logical fallacy the high court rejected. According to J.L., because the
tip was an anonymous one, the tipster’s reputation for veracity could not be
assessed and he or she could not be held accountable if the tip was fabricated.
(J.L., supra, 529 U.S. at p. 270.) Accordingly, J.L. teaches that police must
confirm more than merely the innocent details of an anonymous tip before
effecting a seizure of the person.
The majority’s subsidiary arguments fare no better. That some leeway is
permitted in Fourth Amendment cases when cars are involved, due to their mobile
nature and the state’s heavy regulation of automobiles, is true. (Maj. opn., ante, at
pp. 10-11.) Once a car is legally stopped on the highway, for example, the
driver’s failure to produce his or her car registration will permit police to search
the car for evidence of such registration. (In re Arturo D. (2002) 27 Cal.4th 60.)
And an arrest of the driver permits police to search the entire car. (New York v.
6
Belton (1981) 453 U.S. 454.) But neither of the concerns expressed (mobility of
cars and pervasive state regulation of cars) means police need less cause to effect a
traffic stop than required to make other detentions.
I find questionable the majority’s attempt to distinguish J.L., supra, 529
U.S. 266, on the ground the “level of intrusion” of a traffic stop is “considerably
less” than the stop-and-frisk at issue in J.L. (maj. opn., ante, at p. 10). The
defendant in J.L. was frisked in view of other people at the bus stop, whereas
defendant here, a woman alone in her car, was stopped by police on a deserted
highway at nearly 2:00 o’clock in the morning. That the “level of intrusion” in
this case was “considerably less” than in J.L. does not seem evident to me. In any
event, irrespective of one’s view of the comparative intrusiveness of the two
encounters, the high court has held unequivocally that an automobile stop is a
seizure under the Fourth Amendment that must be justified by “at least articulable
and reasonable suspicion that a motorist is unlicensed or that an automobile is not
registered, or that either the vehicle or an occupant is otherwise subject to seizure
for violation of law.” (Delaware v. Prouse, supra, 440 U.S. at p. 663, italics
added.)
The majority’s reliance on Michigan State Police v. Sitz (1990) 496 U.S.
444 is misguided. (Maj. opn., ante, at p. 10.) In that case, the high court rejected
a constitutional challenge to a state’s sobriety checkpoint program, at one point
noting the low “ ‘level of intrusion on an individual’s privacy caused by the
checkpoints,’ ” as balanced against the state’s strong interest in apprehending
drunk drivers. (Sitz, at p. 449.) A significant factor in permitting such
checkpoints was that they snare everyone for minor detentions. The high court
explained that it was addressing only the checkpoint situation in which all
motorists must stop for a few seconds and that “[d]etention of particular motorists
for more extensive field sobriety testing may require satisfaction of an
7
individualized suspicion standard.” (Id. at p. 451, italics added.) In other words,
if police were to focus on one particular person, then individualized suspicion—
that is, reasonable cause—would be required to detain that person, irrespective of
the “level of intrusion.” Sitz, then, involved a variation of the special needs cases
such as those concerning border searches (United States v. Ramsey (1977) 431
U.S. 606) and school searches (New Jersey v. T.L.O. (1985) 469 U.S. 325), where,
for reasons other than normal enforcement of the criminal laws, police may
dispense with individualized suspicion before effecting a detention or search. (See
also People v. Hyde (1974) 12 Cal.3d 158 [warrantless airport searches justified as
administrative regulatory search].) Nothing in Sitz suggests that when police
focus on a single driver due to suspicions of drunk driving and are not conducting
a sobriety checkpoint stopping all drivers, police can detain that driver on less than
reasonable cause.
Finally, the majority attempts to justify its holding by claiming that
“[p]olice officers undoubtedly would be severely criticized for failing to stop and
investigate a reported drunk driver if an accident subsequently occurred.” (Maj.
opn., ante, at p. 10.) This irrelevant though emotional concern misleadingly
suggests that an invasion of personal privacy is justifiable under the Fourth
Amendment if such invasion might unmask a criminal or prevent a crime. This
view ignores the balance the Fourth Amendment strikes between a person’s
reasonable expectation of privacy and “the often competitive enterprise of
ferreting out crime.” (Johnson v. United States (1948) 333 U.S. 10, 14.) No
doubt the police in J.L. would also have been criticized if that defendant
subsequently shot someone with the gun he was secreting at the bus stop, but the
possibility of such criticism did not convince the high court in that case to
dispense with requiring confirmation of the illegal aspects of the anonymous tip.
8
III
It is said that the police have a difficult job, and I do not disagree. In this
case, however, the burden on the investigating officer was slight: he need only
have followed defendant’s blue van a short distance to determine whether she was
weaving or otherwise violating the traffic laws. The observation of even a small
deviation, such as weaving slightly within a lane, may, when coupled with the
anonymous tip, have been sufficient to justify a traffic stop. Instead, without
confirming any illegal or even suspicious conduct at all, the officer simply pulled
her over. I am not persuaded by the majority that this case reasonably can be
distinguished from J.L., supra, 529 U.S. 266, where the high court held that, when
faced with an anonymous tip, police must confirm not only its innocent details but
also some aspect of the illegality before detaining a person. The requirement is
small, but important. As the high court explained in a different context long ago:
“It may be that it is the obnoxious thing in its mildest and least repulsive form; but
illegitimate and unconstitutional practices get their first footing in that way,
namely, by silent approaches and slight deviations from legal modes of procedure.
This can only be obviated by adhering to the rule that constitutional provisions for
the security of person and property should be liberally construed. A close and
literal construction deprives them of half their efficacy, and leads to gradual
depreciation of the right, as if it consisted more in sound than in substance. It is
the duty of courts to be watchful for the constitutional rights of the citizen, and
against any stealthy encroachments thereon.” (Boyd v. United States (1886) 116
U.S. 616, 635.)
Because police failed sufficiently to confirm the anonymous tip before
effecting an investigatory detention, I conclude defendant is correct that her
detention and the subsequent discovery of evidence of her intoxication violated
9
her rights under the Fourth Amendment to the United States Constitution.
Because the majority concludes otherwise, I dissent.
WERDEGAR, J.
WE CONCUR:
KENNARD, J.
MORENO, J.
10
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Wells __________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 122 Cal.App.4th 155
Rehearing Granted
__________________________________________________________________________________
Opinion No. S128640
Date Filed: June 26, 2006
__________________________________________________________________________________
Court: Superior
County: Kern
Judge: John L. Fielder and Stephen P. Gildner
__________________________________________________________________________________
Attorneys for Appellant:
Elizabeth Campbell, under appointment by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves,
Assistant Attorney General, Janet E. Neeley, Doris Calandra, Kathleen A. McKenna, Robert P. Whitlock
and Connie A. Proctor, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Elizabeth Campbell
Central California Appellate Program
2407 J Street, Suite 301
Sacramento, CA 95816
(916) 441-3792
Connie A. Proctor
Deputy Attorney General
2550 Mariposa Mall, Room 5090
Fresno, CA 93721
(559) 477-1676
Does an anonymous and uncorroborated tip regarding a possibly intoxicated highway driver afford a police officer reasonable suspicion sufficient, by itself, to justify a temporary detention to investigate further?
| Date: | Citation: | Docket Number: |
| Mon, 06/26/2006 | 38 Cal. 4th 1078, 136 P.3d 810, 45 Cal. Rptr. 3d 8 | S128640 |
| 1 | Wells, Susan (Defendant and Appellant) Valley State Prison for Women Represented by Elizabeth M. Campbell Central California Appellate Project 2407 "J" Street, Suite 301 Sacramento, CA |
| 2 | The People (Plaintiff and Respondent) Represented by Connie Alison Broussard Office of the Attorney General 2550 Mariposa Mall, Suite 5090 Fresno, CA |
| Opinion Authors | |
| Opinion | Justice Ming W. Chin |
| Dissent | Justice Kathryn M. Werdegar |
| Disposition | |
| Jun 26 2006 | Opinion: Affirmed |
| Dockets | |
| Oct 20 2004 | Petition for review filed In Sacramento by counsel for appellant {Susan Wells}. |
| Oct 22 2004 | Record requested |
| Oct 25 2004 | Received Court of Appeal record one doghouse |
| Dec 15 2004 | Petition for review granted (criminal case) Baxter, J., was recused and did not participate. Votes: George, C.J., Kennard, Werdegar, Chin, Brown, and Moreno, JJ. |
| Dec 16 2004 | Note: Records sent to Cal-Coord. Off.: Master Index, RT=4, CT=1, 2, 3, 7, manila folder, Confid, Envelop. |
| Jan 24 2005 | Counsel appointment order filed Upon request of appellant for appointment of counsel, Central California Appellate Program, is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order. |
| Feb 22 2005 | Request for extension of time filed counsel for aplt. (Wells) requests extension of time to March 25, 2005, to file the opening brief on merits. |
| Mar 3 2005 | Extension of time granted appellant's time to serve and file the opening brief is extended to and including March 25, 2005. |
| Mar 24 2005 | Request for extension of time filed Counsel for appellant requests extension of time to April 25, 2005, to file the opening brief on the merits. |
| Mar 28 2005 | Extension of time granted Appellant's time to serve and file the opening brief on the merits is extended to and including April 25, 2005. No further extensions of time are contemplated |
| Apr 25 2005 | Opening brief on the merits filed by counsel for aplt. (S. Wells) |
| May 4 2005 | Filed: by counsel for resp. (People) Notice of Re-assignment (counsel) |
| May 19 2005 | Request for extension of time filed counsel for respondent (People) requests extension of time to June 24, 2005, to fille the answer brief on the merits. |
| May 23 2005 | Extension of time granted Respondent's time to serve and file the answer brief on the merits is extended to and including June 24, 2005. |
| Jun 23 2005 | Request for extension of time filed counsel for respondent requests a 14-day extension of time to July 5, 2005, to file the answer brief on the merits. |
| Jun 28 2005 | Extension of time granted Respondent's time to serve and file the answer brief on the merits is extended to and including July 5, 2005. |
| Jul 6 2005 | Answer brief on the merits filed by counsel for Respondent (People); CRC 40.1B |
| Jul 25 2005 | Request for extension of time filed Counsel for appellant for appellant requesting to August 15, 2005, to file reply brief on the merits [to court for permission] |
| Aug 1 2005 | Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file the reply brief on the mertis is extended to and including August 15, 2005. |
| Aug 15 2005 | Request for extension of time filed Counsel for appellant requests extension of time to September 2, 2005, to file the reply brief on the merits. |
| Aug 16 2005 | Extension of time granted Appellant's time to serve and file the reply brief on the merits is extended to and including September 2, 2005. |
| Aug 17 2005 | Compensation awarded counsel Atty Campbell - Central California Appellate Program |
| Sep 6 2005 | Reply brief filed (case fully briefed) By counsel for appellant (rule 40.1) |
| Mar 8 2006 | Case ordered on calendar Tuesday, April 4, 2006, at 9:00 a.m., in Los Angeles |
| Mar 21 2006 | Request for Extended Media coverage Filed John Hancock of The California Channel Statewide Cable TV Network. |
| Mar 22 2006 | Request for Extended Media coverage Granted |
| Mar 27 2006 | Filed letter from: deputy attorney general Connie Proctor, on behalf of respondent The People Supplemental Additional Authorities |
| Apr 4 2006 | Cause argued and submitted |
| Jun 26 2006 | Opinion filed: Judgment affirmed in full OPINION BY: Chin, J --- joined by: George, C.J., Corrigan, Croskey, JJ. DISSENTING OPINION BY: Werdegar, J. --- joined by: Kennard, Moreno, JJ. |
| Jul 11 2006 | Rehearing petition filed counsel for aplt. (Susan Wells) |
| Jul 12 2006 | Time extended to consider modification or rehearing to and including September 22, 2006, or the date upon which review is either granted or denied, whichever occurs first. |
| Sep 13 2006 | Rehearing denied Baxter, J., was recused and did not participate. Kennard, Werdegar, and Moreno, JJ., are of the opinion the petition should be granted. |
| Sep 13 2006 | Remittitur issued (criminal case) |
| Sep 20 2006 | Received: receipt for remittitur from CA/5. |
| Aug 22 2007 | Compensation awarded counsel Atty Campbell - Central California Appellate Program |
| Briefs | |
| Apr 25 2005 | Opening brief on the merits filed |
| Jul 6 2005 | Answer brief on the merits filed |
| Sep 6 2005 | Reply brief filed (case fully briefed) |
| Brief Downloads | |
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| |
| |
| May 30, 2011 Annotated by patrick flynn | -Facts- While the officer was speaking to the driver, he noticed she had constricted pupils and a dry mouth. Officer Irigoyen conducted field sobriety tests at the conclusion of which he placed the defendant under arrest for driving under the influence (Veh. Code § 23152(a)). Later, urine tests were positive for THC, cocaine and opiates. During a search of the van, police found a black suitcase containing several syringes and heroin. Defendant was charged with possession of heroin (Health & Saf. Code § 11350(a)), driving under the influence (Veh. Code § 23152(a)), being under the influence of a controlled substance (Health & Saf. Code § 11550(a)) and possession of a device for injecting a controlled substance (Health & Saf. Code § 11364). -Procedural history- On appeal, the defendant argued that the trial court erred in dying her motion to suppress. The Court of Appeal rejected this contention and affirmed the trial court’s denial, concluding that the tip was amply corroborated in its “innocent details,” affording the officers reasonable suspicion. The California Supreme Court then granted review. -Issues- -Holding- -Analysis- Lower courts in California have previously held that a citizen’s tip may itself create reasonable suspicion to justify a vehicle stop, especially if the circumstances are deemed exigent by reason of possible reckless driving or similar. Lowry v. Gutierrez, 129 Cal.App.4th 926 (2005) (phoned-in tip of erratic driving); People v. Rios, 140 Cal.App.3d 616 (1983) (car illegally parked in traffic); People v. Superior Court (Meyer), 118 Cal.App.3d 579 (1981) (reckless driving, driver waiving gun). Lowry is a very similar situation to this case and the California Court of Appeal held that the stop was appropriate under the circumstances due to the grave public safety hazard posed by drunk drivers, the unlikelihood of a false report, and the detailed description of the car, its location and the nature of the erratic driving. In 2000, the United States Supreme Court weighed in on the subject in Florida v. J.L.. 529 U.S. 266 (2000). In J.L., the Court held an anonymous tip about a young African-American male with a gun insufficient to justify a brief detention and pat-down, absent some independent corroboration of the reliability of the tip. The Court stressed the tip contained no “predictive information” that might have demonstrated insider information. The J.L. Court did acknowledge the possibility that more exigent circumstances, such as a tip of someone with a bomb, might justify a stop despite an inability to corroborate the tip. The J.L. Court also seemed concerned with allowing anonymous tipsters to harass and embarrass other people by phone in false reports. While there is a split of authority on whether J.L. controls, at least one Circuit Court of Appeal has weighed in on this issue. In United States v. Wheat, the Eighth Circuit held that tips of drunken or erratic driving may indeed provide reasonable suspicion if the following factors were present: sufficient identifying information regarding the vehicle and its location, indication that the caller had actually witnesses a contemporaneous traffic violation that compels an immediate stop and corroboration of at least the “innocent details” of the tip by the officer. 278 F.3d 722 (8th Cir. 2001). The main divide between the majority and dissent in this case revolves around whether J.L. is controlling. As the Eight Circuit did in Wheat, the majority distinguished J.L. in a few ways. First, the court noted that J.L. involved a possessory offense that was not likely to be observable by other people without inside information, thus the focus in J.L. about “predictive information.” In the case of reckless driving, the conduct is plainly observable by other motorists and thus the tipster is likely to be an eyewitness. This also reduced concerns about reliability and the possibility for harassment. Second, the court felt that a drunk or reckless driver was a far more grave risk to the public and to the officer than mere gun possession, and thus qualified under J.L.’s exigent circumstances exception. The court notes that gun possession, by itself, can be legal and that investigating officers can investigate the tip without risking safety to themselves or to the public. On the other hand, when officers investigate a drunk driver, they risk injury to themselves or the public if they delay the detention. Third, the court felt a traffic stop was a less invasive detention than a full-body pat down in full view of the public. Indeed the court had previously held that individuals generally have a reduced expectation of privacy while driving a vehicle on public thoroughfares. Lastly, the court felt the relatively precise and accurate description given by the tipster regarding the vehicle type, color, location and directions, which were all confirmed by the officer, enhanced the reliability of the tip. After distinguishing J.L., the court then held that viewing the totality of the circumstances, the officer’s traffic stop was justified. The dissent in this case disagreed with the majority on whether J.L. could be distinguished. The dissent felt that J.L. was a very similar situation to the present situation with an anonymous tip that, while detailed in the specifics of the offender, did not offer any independent indications of reliability. Absent such reliability, the dissent felt that officer should have observed the motorist and only stopped the vehicle after personally witnessing some violation. The dissent felt that while drunk driving is terrible, it did not rise to the level of exigent circumstances the Supreme Court described, especially on a empty highway at 1:43 in the morning. -Related Cases- -Tags- by Patrick Flynn |
