Lowry v. Gutierrez, B177605.

CourtCalifornia Court of Appeals
Citation129 Cal.App.4th 926,28 Cal.Rptr.3d 912
Decision Date26 May 2005
Docket NumberNo. B177605.,B177605.
PartiesJason LOWRY, Petitioner and Respondent, v. Chon GUTIERREZ, as Director of the Department of Motor Vehicles et al., Respondent and Appellant.

Bill Lockyer, Attorney General, Jacob A. Applesmith, Senior Assistant Attorney General, Silvia M. Diaz and Laura Lee Gold, Deputy Attorneys General, for Respondent and Appellant.

T. Douglas Allen, Claremont, for Petitioner and Respondent.

JOHNSON, J.

The Department of Motor Vehicles and its director Chon Gutierrez (collectively referred to as "the DMV") appeal from an order setting aside the administrative suspension of Jason Lowry's driver's license for drunk driving. The issues are whether the contents of a call to police from an anonymous cell phone user gave a patrol officer reasonable cause to briefly stop a motorist's vehicle for purposes of investigating the reported erratic driving and, if not, whether evidence obtained as the result of an unlawful traffic stop must be excluded at an administrative hearing to suspend the motorist's license.

In what we concede is a close call we conclude the officer had reasonable cause to stop Lowry and therefore the evidence resulting from the stop was admissible at Lowry's administrative hearing. Accordingly we do not reach the question whether the exclusionary rule applicable to criminal cases applies to DMV administrative hearings.

FACTS AND PROCEEDINGS BELOW

The facts are not in dispute.

The Upland Police Department received a report about a reckless driver from an anonymous cell phone caller. According to the caller, the driver of the vehicle drove the wrong way on Benson Avenue and then turned left onto Baseline Road in front of oncoming traffic. The caller described the vehicle, gave its license number, and stated the driver was a male. The Upland police forwarded the report to the police department of the neighboring city of Claremont. From the license plate number the dispatcher at the Claremont Police Department determined the registered owner lived in Claremont. The dispatcher broadcast the information received from the Upland police and the vehicle owner's address to officers in the field.

Officer Hall received the dispatch. Four to five minutes later he spotted a vehicle matching the cell phone caller's description. It took Hall approximately 30 to 40 seconds to catch up to the vehicle and stop it. During this time the vehicle was traveling at a safe speed and Hall observed no traffic violations.

The driver identified himself as Jason Lowry and told Hall he was on his way home from work. During their conversation Hall smelled alcohol on Lowry's breath and clothes, saw his eyes were red and watery and noticed his speech was slow and deliberate. Lowry admitted drinking two 24-ounce beers after work.

Hall commenced a field sobriety test. After a few unsuccessful attempts to perform the test activities, Lowry gave up and said, "You got me, I can't do these tests, let's just get this over with." A preliminary check for blood-alcohol content showed Lowry at 0.10 percent.

Based on Lowry's objective symptoms of intoxication, his inability to compete the field sobriety test and his blood-alcohol level, Hall formed the opinion Lowry had been driving under the influence and arrested him.

Following Lowry's arrest the DMV suspended his driver's license and this suspension was upheld at an administrative hearing. The hearing officer determined Hall had reasonable cause to stop and detain Lowry on suspicion of drunk driving based on the report by the anonymous cell phone caller and probable cause to arrest based on the objective symptoms of intoxication Hall observed after making the stop.

Lowry filed a petition for writ of mandate in the superior court, challenging the DMV's order suspending his license. He contended the officer did not have reasonable cause to make the traffic stop and therefore any resulting evidence of drunk driving should have been excluded at the administrative hearing. The trial court agreed and issued a writ of mandate ordering the DMV to set aside its order suspending Lowry's license.

We reverse.

DISCUSSION

We note at the outset Lowry does not contend Officer Hall lacked probable cause to arrest him for drunk driving based on the officer's observations after he pulled Lowry over. Rather, the issue is whether the traffic stop itself was lawful when it was based solely on an allegation of reckless or erratic driving reported by an anonymous caller on a cellular telephone.1

It is undisputed an officer may stop and detain a person based on a reasonable suspicion criminal activity "has taken place, is occurring, or is about to occur and ... the person to be detained is involved in that activity."2

In Florida v. J.L.3 the United States Supreme Court addressed the question whether the reasonable suspicion necessary to stop and detain a person for investigation can be based on an anonymous tip. There an anonymous caller told police a young Black male wearing a plaid shirt and standing at a particular bus stop was carrying a gun. Three Black males were at the bus stop when officers arrived. Aside from the anonymous tip the officers had no reason to suspect any of the three men of illegal conduct. The officers did not see a firearm and none of the men made any threatening or unusual movements. An officer approached J.L., the only one wearing a plaid shirt, told him to place his hands on the bus stop and frisked him. The officer found a gun in J.L.'s pocket and he was charged with carrying a concealed weapon without a license. The Florida Supreme Court held the search violated the Fourth Amendment, and the United States Supreme Court granted certiorari.4

In a unanimous opinion the Supreme Court held an anonymous tip a person is carrying a gun is not sufficient to justify stopping and frisking that person. The problem with relying on anonymous tips, the court explained, is that "[u]nlike 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 ... `an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity.'"5 Thus, to justify even a brief stop and detention the tipster must provide some indication the report of criminal activity is reliable. Providing innocent and readily observable facts such as a description of the person or the person's location is insufficient.6

The court distinguished the case before it from Alabama v. White.7 In White an anonymous informant called police and stated White would leave a specific location at a particular time in a brown station wagon with a broken right taillight. She would be carrying an attaché case containing an ounce of cocaine and would drive to a particular motel. Officers saw White leave the specified location at the forecasted time, get into a station wagon with a broken right taillight and drive by the most direct route toward the particular motel. White was not carrying an attaché case. The officers stopped White just before she arrived at the motel. A search of the car yielded a brown attaché case carrying marijuana.8 The court upheld the search because it concluded the anonymous caller's ability "to predict [White's] future behavior ... demonstrated inside information" — a special familiarity with White's criminal affairs.9 The court cited its previous decision in Adams v. Williams10 for the proposition that while an unverified tip may be insufficient to support an arrest or search warrant it is sufficient to justify a stop and detention if it carries "sufficient `indicia of reliability.'"11 While Adams involved a known, reliable informant, not an anonymous caller, Adams and White shared common "indicia of reliability" — verifiable predictions of what the police would find upon investigating the tip and details of the accused's criminal conduct which would not be generally known.12

The difference between J.L. and White, the court explained, was that in J.L. the tipster merely described the accused's location and appearance while in White the tipster not only described White and her location but accurately predicted her movements thereby showing "the tipster [had] knowledge of concealed criminal activity."13 A showing of "reliability as to the likelihood of criminal activity," the court held, "is central in anonymous-tip cases."14

The court explicitly limited its holding to anonymous tips concerning gun possession. "The facts of this case," the court stated, "do not require us to speculate about the circumstances under which the danger alleged in an anonymous tip might be so great as to justify a search even without a showing of reliability. 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."15

Since the decision in J.L. a number of courts have addressed the question whether a police officer may conduct an investigative stop based on an anonymous tip alleging reckless or erratic driving.16

There are no reported California decisions directly on point.17

The DMV has cited us to one California decision, People v. Superior Court (Meyer)18 but in Meyer the tipster was not truly anonymous, as the opinion notes. The person providing the tip pulled alongside a parked highway patrol car and told the officer he had observed a blue Chevrolet pickup truck with a white camper shell driving northbound on the freeway in a reckless manner and that the driver was pointing a gun at other cars. The person making the report gave the license number of the truck and identified himself as a "`captain of a fire department.'" The officer wrote down this information but did not obtain the tipster's name, address, vehicle license number or any other identification. A short time...

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9 cases
  • People v. Wells
    • United States
    • United States State Supreme Court (California)
    • June 26, 2006
    ...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, 28 Cal.Rptr.3d 912 [phoned-in tip of erratic driving]; People v. Rios (1983) 140 Cal.App.3d 616, 189 Cal.Rptr. 634 [car illegally park......
  • People v. Rodgers
    • United States
    • California Court of Appeals
    • August 18, 2005
    ...and "demonstrates the informant's basis of knowledge or veracity" (id. at p. 270, 120 S.Ct. 1375; see also Lowry v. Gutierrez (2005) 129 Cal.App.4th 926, 941, 28 Cal.Rptr.3d 912 [the caller's information demonstrated that he had been an eye witness to the accused's unlawful activity].) More......
  • People v. Williams, B211447 (Cal. App. 1/21/2010)
    • United States
    • California Court of Appeals
    • January 21, 2010
    ...anonymous informant was neither a victim of the purported robbery nor had witnessed the offense first-hand. (See also Lowry v. Gutierrez (2005) 129 Cal.App.4th 926, 941 [precise descriptions given by caller demonstrated caller had been an eyewitness to the defendant's reckless and dangerous......
  • People v. Navarette
    • United States
    • California Court of Appeals
    • October 12, 2012
    ...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......
  • Request a trial to view additional results
3 books & journal articles
  • Search and seizure
    • United States
    • James Publishing Practical Law Books California Drunk Driving Law - Volume 1-2 Volume 1
    • March 30, 2022
    ...the circumstances even though the tip was treated as anonymous. While approving a lower court ruling in Lowry v. Gutierrez (2005) 129 Cal.App.4th 926, and following a non-binding federal opinion in United States v. Wheat (8th Cir. 2001), 278 F.3d 722, the court declared that “there is a sou......
  • Table of cases
    • United States
    • James Publishing Practical Law Books California Drunk Driving Law - Volume 1-2 Appendices
    • March 30, 2022
    ...(1995) 37 Cal.App.4th 562, §2:44.1 Lowe v. Civil Service Commission (1985) 164 Cal.App.3d 667, §7:52 Lowry v. Gutierrez (2005) 129 Cal.App.4th 926, §7:20.1 Luce v. United States (1984) 469 U.S. 43, §9:28.9 Lucero v. Municipal Court of Long Beach (People) (1993) 15 Cal.App.4th 784, §3:35 Luc......
  • Appendix 2
    • United States
    • James Publishing Practical Law Books Attacking and Defending Drunk Driving Tests
    • May 5, 2021
    ...7, 8 Lowry v. Gutierrez (2005) 129 Cal.App.4th 926...................................................................................................................... 6 People v. Glaser (1995) 11 Cal. 4th 354, 362 .................................................................................

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