State v. Altieri

• Decision Date: 23 December 1997
• Docket Number: No. CR-96-0668-PR,CR-96-0668-PR
• Citation: 191 Ariz. 1,951 P.2d 866
• Parties: , 259 Ariz. Adv. Rep. 3 STATE of Arizona, Appellee, v. Dominic Joseph ALTIERI, Jr., aka James Lee Miller, aka Jerry R. Eskin, Appellant.
• Court: Arizona Supreme Court

Page 866

951 P.2d 866

191 Ariz. 1, 259 Ariz. Adv. Rep. 3

STATE of Arizona, Appellee, v. Dominic Joseph ALTIERI, Jr., aka James Lee Miller, aka Jerry R. Eskin, Appellant.

No. CR-96-0668-PR.

Supreme Court of Arizona En Banc.

Dec. 23, 1997.

Grant Woods, Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, Phoenix, Christopher E. Avery, Assistant Attorney General, Tucson, for Appellee.

Polis & Hartshorne, P.C. by Bertram Polis, Tucson, for Appellant.

OPINION

MOELLER, Justice.

FACTS AND PROCEDURAL HISTORY

¶1 Defendant Dominic Joseph Altieri ("defendant") was tried in absentia and found guilty by a jury of transportation of marijuana for sale and possession of marijuana for sale, both class two felonies. He was sentenced to concurrent, presumptive five-year prison terms. The facts leading to his convictions follow.

¶2 On October 2, 1994, the Arizona Department of Public Safety received an anonymous telephone call stating that a man named Dominic, approximately 42 years old, was driving a four-door, gray 1991 Buick Century, westbound on I-10 near Marana Road in Tucson. The caller stated that the car had Idaho license plate number 2/C 96113 and that the driver had in his possession $1,000 in cash and 150 pounds of marijuana.

¶3 Shortly after the tip, a Marana police officer to whom it had been relayed followed a car matching the caller's description which defendant was driving westbound on I-10. The officer followed the car for eight miles. She observed no traffic violations before she turned on her lights and pulled defendant's car over. She approached the car with her gun drawn, but held at her side, and told defendant to keep his hands on the steering wheel. She asked defendant if his name was Dominic, and he responded "yes." He supplied the officer with an expired Arizona driver's license. After backup officers arrived, defendant told the officers that he did not own the vehicle and that they could search it. Officers found more than 150 pounds of marijuana in the car. Defendant had more than $400 in cash.

¶4 Defendant moved to suppress evidence seized from him and the car, relying on federal constitutional principles. ¹ Following a suppression hearing, the trial court concluded that the officers had reasonable suspicion to stop defendant's vehicle, and that the stop and questioning were appropriate. The court also held that defendant had voluntarily consented to the opening of the trunk, and that when he claimed the packages were not his, the disclaimer amounted to an abandonment of the packages. Accordingly, defendant's motion to suppress was denied and, after trial, defendant was convicted.

¶5 The court of appeals affirmed defendant's convictions, holding that the anonymous tip supplied reasonable suspicion for the stop. The appellate court also rejected defendant's additional claim that he had been arrested without probable cause when the officer stopped him, ordered him to keep his hands on the steering wheel, and approached him with her gun drawn.

¶6 We reverse defendant's convictions because we hold the anonymous tip was insufficient to supply reasonable suspicion for the officer to stop defendant. Thus, the trial court should have granted the motion to suppress. Because of our disposition on this point, it is unnecessary to determine whether the unauthorized stop rose to the level of an illegal arrest.

DISCUSSION

¶7 We review a trial court's factual findings concerning a motion to suppress under an abuse of discretion standard. State v. Peters, 189 Ariz. 216, 218, 941 P.2d 228, 230 (1997). However, the trial court's ultimate legal determination concerning whether police had a reasonable suspicion of criminal activity which "justified conducting an investigatory stop is a mixed question of law and fact which we review de novo." State v. Rogers, 186 Ariz. 508, 510, 924 P.2d 1027, 1029 (1996) (citing Ornelas v. United States, 517 U.S. 690, ----, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911, 919 (1986)).

¶8 A law enforcement officer may stop a vehicle when there are objective facts available raising a suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968); State v. Richcreek, 187 Ariz. 501, 503, 930 P.2d 1304, 1306 (1997), citing Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979).

¶9 Although an anonymous tip may, in some circumstances, be sufficient to support a stop, the tip must show sufficiently detailed circumstances to indicate that the informant came by his information in a reliable way. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); State v. White, 122 Ariz. 42, 43, 592 P.2d 1308, 1309 (App.1979). If the tip itself fails to provide sufficient underlying circumstances demonstrating the reliability of the information, the reliability may be supplied by independent observations of the police corroborating the information in the tip. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); White, 122 Ariz. at 43, 592 P.2d at 1310. Nevertheless, the tip must contain "a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted." Alabama v. White, 496 U.S. 325, 332, 110 S.Ct. 2412, 2417, 110 L.Ed.2d 301, 310 (1990) (quoting Illinois v. Gates, 462 U.S. 213, 245, 103 S.Ct. 2317, 2335-36, 76 L.Ed.2d 527, 552 (1983)).

¶10 The tip in this case provided the following information: a white male named Dominic, approximately 42 years old, was driving alone in a 1991 gray Buick Century, four-door vehicle bearing Idaho license plate number 2/C 96113, westbound on I-10 from Ina Road, and the vehicle allegedly contained 150 pounds of marijuana and $1,000 in cash. The court of appeals found the Supreme Court Draper case controlling. While Draper is instructive, we do not believe it controls here. The tip at issue in Draper was not anonymous. There, the informant was a "special employee" of the Bureau of Narcotics and the officers knew his identity and had always found his information to be "accurate and reliable." 358 U.S. at 313, 79 S.Ct. at 333, 3 L.Ed.2d at 331. Moreover, the tip provided details of future events, not merely details which could be observed at the time of the tip. In Draper, the tipster informed the police that Draper would be arriving in Denver by train from Chicago in the morning on either the next day or the following day, and also described the clothing which Draper would be wearing. In this case, officers did not know the caller's identity, veracity or basis of knowledge. Moreover, the tip merely provided current information which could have been obtained by anyone who observed the defendant and knew or heard his first name. Nothing confirmed the bare allegation that defendant was carrying contraband. Such corroboration of the tip as was observed by the officers was unrelated to any criminal activity.

¶11 In Gates, 462 U.S. at 225-27, 103 S.Ct. at 2325-26, 76 L.Ed.2d at 540-41, police received an anonymous letter which alleged that Mr. and Mrs. Gates, who lived in Illinois, were engaged in selling drugs and that on May 3, Mrs. Gates would drive her car to Florida to be loaded with drugs and, a few days later, Mr. Gates would fly to Florida, pick up the car, and return to Illinois. Police conducted surveillance and, on May 5, observed Mr. Gates fly to Florida, pick up a car there with Illinois plates registered in his name, and drive back to Illinois. The Gates court noted that the anonymous tip contained "a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted."...