Kaysville City v. Mulcahy

• Decision Date: 10 July 1997
• Docket Number: No. 960468-CA,960468-CA
• Parties: 321 Utah Adv. Rep. 18 KAYSVILLE CITY, Plaintiff and Petitioner, v. Joseph MULCAHY, III, Defendant and Respondent.
• Court: Utah Court of Appeals

Page 231

943 P.2d 231

321 Utah Adv. Rep. 18

KAYSVILLE CITY, Plaintiff and Petitioner, v. Joseph MULCAHY, III, Defendant and Respondent.

No. 960468-CA.

Court of Appeals of Utah.

July 10, 1997.

Steven C. Earl, Kaysville, for Plaintiff and Petitioner.

Sharon S. Sipes, Ogden, for Defendant and Respondent.

Before WILKINS, GREENWOOD and JACKSON, JJ.

OPINION

JACKSON, Judge:

Kaysville City challenges the trial court's order granting Joseph Mulcahy III's motion to suppress evidence. We reverse.

FACTS

At about 5:58 a.m. on Sunday, April 7, 1996, DeWayne Olsen called police dispatch and reported that a "drunk individual" had been at his front door and had driven away in a white car--a "Toyota Celica, maybe." Olsen told the dispatcher that the car was heading out of his subdivision, "going east, towards the mountains ... on the main road that goes in front of Davis High School." Olsen further told the dispatcher that he believed the driver's name was "Joe" and gave the dispatcher what he thought was Joe's phone number. The dispatcher in turn radioed Kaysville City Police Officer Darin J. Heslop, telling him an "individual believed to be drunk" was leaving Olsen's address, "heading towards Davis High School in white Toyota."

Officer Heslop drove toward the location. As he neared the high school, he saw only one car moving on the road. When the car passed him, he could see it was a white car, as described in the dispatch. Before stopping the car, Officer Heslop observed no traffic violations or signs of driver intoxication. After stopping the car and contacting its driver, he smelled the odor of alcohol coming from the driver. The driver was identified as Joseph Mulcahy III. Following a field sobriety test, Mulcahy was arrested for driving under the influence. Shortly afterward, a breath test revealed he had a .15 blood alcohol level.

Mulcahy filed a motion requesting that the trial court suppress the evidence obtained as a result of the car stop. He argued Officer Heslop did not have reasonable suspicion to support the stop and investigative detention, thus violating Mulcahy's Fourth Amendment right to be free of unreasonable search and seizure. The trial court granted his motion, and Kaysville City appeals.

ISSUE AND STANDARD OF REVIEW

The sole issue before us is whether, under the facts of this case, reasonable suspicion existed to support the police in stopping and detaining Mulcahy. In State v. Pena, 869 P.2d 932 (Utah 1994), the Utah Supreme Court announced that "whether a specific set of facts gives rise to reasonable suspicion is a determination of law and is reviewable nondeferentially for correctness." Id. at 939. The court did, however, allow "a measure of discretion to the trial judge when applying th[e reasonable suspicion] standard to a given set of facts." Id. Noting that fact situations in this arena are "quite variable," the court stated that "[i]t would be impractical for an appellate court to review every reasonable-suspicion determination de novo and then pronounce whether each unique factual setting rises to the level of reasonable suspicion as a matter of law." Id. at 940.

Even so, although the court did not contemplate "a close, de novo review" in reasonable suspicion cases, it did caution that "a sufficiently careful review is necessary to assure that the purposes of the reasonable-suspicion requirement are served." Id. at 939. Further, the court did not preclude us from limiting the trial courts' discretion when "reviewing courts have enough experience with certain recurring fact patterns that the legal effect of those patterns can be settled with comfort." Id. at 940. This case presents such a fact pattern.

Reviewing courts across the country have repeatedly held under similar facts in reasonable suspicion cases that (1) an informant who tips police that a drunk driver is on the road need not give details as to why he or she believes the driver is drunk, and (2) before stopping the suspect vehicle, the police officer need not have seen traffic violations or signs of drunk driving. See infra p. 235. Any discretion exercised by trial courts in comparable cases should only be within those parameters, as adopted by this opinion. See State v. Smith, 638 N.E.2d 1353, 1355 (Ind.Ct.App.1994) (holding "as a matter of law" that stop was supported by reasonable suspicion when informant reported drunk driver and officer observed no violations before stop).

ANALYSIS

A car stop and investigatory detention by police of the car's occupants is a "seizure" under the Fourth and Fourteenth Amendments. See State v. Case, 884 P.2d 1274, 1276 (Utah.Ct.App.1994). To surmount the Fourth Amendment's proscription against unreasonable seizures, the stop and detention must satisfy a two-part test: "First, the officer's initial stop must be justified; second, subsequent actions must be within the scope of the circumstances justifying the stop." Id. (citing Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968)). This case concerns only the first part of the test. We therefore must determine whether Officer Heslop was justified in stopping Mulcahy's car.

A stop is justified if a police officer has reasonable suspicion that a person is engaging in criminal behavior. See id. " '[T]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant th[e] intrusion.' " State v. Menke, 787 P.2d 537, 541 (Utah.Ct.App.1990) (quoting Terry, 392 U.S. at 21, 88 S.Ct. at 1880). Although the necessary degree of suspicion is lower than that necessary for probable cause to arrest, "the same totality of facts and circumstances approach is used to determine if there are sufficient 'specific and articulable facts' to support reasonable suspicion." Case, 884 P.2d at 1276 (citation omitted). Also, the State bears the burden of establishing those sufficient articulable facts. See id.

The articulable facts supporting reasonable suspicion are usually grounded in an officer's personal perceptions and inferences, but in some cases the officer may rely upon external information--e.g., an informant's tip via police dispatch. See id. at 1276-77; see also State v. Pena, 869 P.2d 932, 940 (Utah 1994) ("Under certain circumstances, police officers can rely on a dispatched report in making an investigatory stop."). An officer receiving a dispatched message "may take it at face value and act on it forthwith." Case, 884 P.2d at 1277-78 n. 5. Nonetheless, should the investigation end in arrest and the stop's legality be attacked, the State must--"albeit after the fact"--establish that adequate articulable suspicion initially spurred the dispatch. Id. Thus, our core inquiry is whether the State presented sufficient evidence in this case to show that the dispatch relaying the informant's tip was based on reasonable suspicion.

To decide this, we must probe the reliability of the informant's tip. See State v. Grovier, 808 P.2d 133, 135 (Utah.Ct.App.1991) ("A reasonable suspicion may be based upon an informant's tip so long as it is sufficiently reliable."). Although Utah courts have not addressed whether reasonable suspicion may be based on an informant's report of a drunk driver, absent corroboration by a police officer of traffic violations or intoxication, ^{1 1} we have gleaned from Utah cases three factors to consider in determining the reliability and sufficiency of the informant's report in this case. However, we supplement and clarify our analysis with pertinent principles from the numerous other states addressing facts more on point with those of this case--the overwhelming majority of which have upheld the stops involved in those cases as supported by reasonable suspicion. See, e.g., Goodlataw v. State, 847 P.2d 589, 590-91 (Alaska.Ct.App.1993); State v. Robles, 171 Ariz. 441, 831 P.2d 440, 441-43 (Ct.App.1992); People v. Willard, 183 Cal.App.3d Supp. 5, 228 Cal.Rptr. 895, 896-97 (Super.Ct.1986); Peterson v. Tipton, 833 P.2d 830, 831-32 (Colo.Ct.App.1992); State v. Evans, 692 So.2d 216, 218-19 (Fla.Dist.Ct.App.1997); State v. Butler, 224 Ga.App. 397, 480 S.E.2d 387, 388-89 (1997); State v. Smith, 638 N.E.2d 1353, 1355-56 (Ind.Ct.App.1994); State v. Markus, 478 N.W.2d 405, 408-09 (Iowa.Ct.App.1991); State v. Tucker, 19 Kan.App.2d 920, 878 P.2d 855, 862-64 (1994); State v. Sampson, 669 A.2d 1326, 1328 (Me.1996); Playle v. Commissioner of Pub. Safety, 439 N.W.2d 747, 748-49 (Minn.Ct.App.1989); State v. Melanson, 140 N.H. 199, 665 A.2d 338, 340-41 (1995); State ex rel. Taxation & Revenue Dep't v. Van Ruiten, 107 N.M. 536, 760 P.2d 1302, 1304-05 (Ct.App.1988); People v. Rance, 227 A.D.2d 936, 644 N.Y.S.2d 447, 447 (1996); State v. Bryl, 477 N.W.2d 814, 817 (N.D.1991); Rittman v. State, 875 P.2d 439, 441 (Okla.Ct.App.1994); State v. Perrin, 143 Or.App. 123, 923 P.2d 1249, 1251 (1996); State v. Lownes, 499 N.W.2d 896, 900 (S.D.1993); State v. Sailo, 910 S.W.2d 184, 188-89 (Tex.App.1995). But see Campbell v. State, 31 Wash.App. 833, 644 P.2d 1219, 1220-21 (1982).

As our first factor, we focus on the type of tip or informant involved. See State v. Roth, 827 P.2d 255, 257 (Utah.Ct.App.1992). After all, "[n]ot all tips are of equal value in establishing reasonable suspicion." Evans, 692 So.2d at 218. For instance, "[b]ecause an anonymous caller's basis of knowledge and veracity are typically unknown," anonymous tips are toward "the low-end of the reliability scale." Id.

In contrast, an identified "citizen-informant" is high on the reliability scale. See id. at 219; accord Dionne v. State, 766 P.2d 1181, 1183 (Alaska.Ct.App.1989); Van Ruiten, 760 P.2d at 1305. The ordinary citizen-informant needs no "independent proof of reliability or veracity." State v. Brown, 798 P.2d 284, 286 (Utah.Ct.App.1990) (sufficiency-of-affidavit-for-probable-cause context); see also Willard, 228 Cal.Rptr. at 897-98 (holding reasonable suspicion supported...