State v. Hopkins

• Decision Date: 09 August 2005
• Docket Number: No. 31299-9-II.,31299-9-II.
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Luis Gustavo HOPKINS, Appellant.

117 P.3d 377

128 Wn. App. 855

STATE of Washington, Respondent, v. Luis Gustavo HOPKINS, Appellant.

No. 31299-9-II.

Court of Appeals of Washington, Division Two.

August 9, 2005.

Stephanie C. Cunningham, Seattle, WA, for Appellant.

Kathleen Proctor, Pierce County Prosecuting Atty. Ofc., Tacoma, WA, for Respondent.

VAN DEREN, J.

¶ 1 Luis G. Hopkins challenges the trial court's denial of his suppression motion, arguing that an unreliable informant's tip did not justify the officers' investigatory stop. Holding that the officers did not have a reasonable suspicion to seize Hopkins, we reverse the trial court's denial of his suppression motion, vacate his convictions, and dismiss the charges with prejudice.

FACTS

A. Background

¶ 2 The police dispatch system informed two officers of a citizen informant's 911 call that reported a minor might be carrying a gun. The dispatch reported that the informant described the person as a "[l]ight-skinned black male, 17 [years of age], 5' 9", thin, Afro, goatee, dark shirt, tan pants, carrying a green backpack and a black backpack." Report of Proceedings (Nov. 18, 2003) (RP) at 10-11.¹ The informant reported that the person was "scratching his leg w/what looked like a gun." Plaintiff's Ex. 1. Approximately seven minutes later, the informant called again and asserted that the person was now at a pay phone at a certain address and that he thought the person put the gun in his pocket.

¶ 3 The police dispatch informed the officers that the caller was a citizen, but the dispatch did not provide the officers with a name. A computer inside the officers' patrol car displayed an incident report indicating the informant's name and cell phone number and a different phone number for the second call. But the officers testified that they did not know the informant, did not know anything about the informant, and did not know if the informant knew Hopkins. One officer testified that the informant requested no contact, so the officer did not think there was any reason to contact him. Consequently, the officers did not attempt to contact the informant.

¶ 4 The officers went to the public pay phone at the location the informant identified. The officers saw a black male who resembled the informant's description hanging up the phone. One officer testified the person had his back to them. Neither officer observed a gun or any illegal, dangerous, or suspicious activity.

¶ 5 Based on the informant's tip, the officers approached Hopkins at the pay phone and ordered him to put his hands up in the air and keep them in sight. They then asked him if he had a gun. Hopkins responded that he might have a gun in his pocket. After a frisk, the officers discovered a loaded revolver in Hopkins' front pants pocket. The officers handcuffed Hopkins, placed him in the patrol car, and read his Miranda² rights. The officers asked Hopkins for identification and he provided a false name. The officers asked again for identification and discovered that Hopkins had several outstanding warrants and a prior felony conviction. The officers then arrested him.

¶ 6 The officers transported Hopkins to jail. Before booking him, an officer performed a search and discovered a small baggie containing a white powdered substance that was later tested to be approximately two-tenths of a gram of methamphetamine.

B. Procedural History

¶ 7 The State charged Hopkins with one count of unlawful possession of a controlled substance with a firearm enhancement, one count of making a false or misleading statement to a public servant, and one count of first degree unlawful possession of a firearm.³

¶ 8 Hopkins moved to suppress the evidence and statements gathered by the officers.⁴ Hopkins argued that, "[t]he informant's tip in this case cannot form the basis for a reasonable suspicion [to justify an investigatory stop] because it lacked both (a) an indication that the informant was reliable and (b) an indication that the informant's information was reliable." Clerk's Papers (CP) at 7. Hopkins also argued that if the court granted his suppression motion, it must dismiss his charges under State v. Knapstad, 107 Wash.2d 346, 729 P.2d 48 (1986), "because without the illegally seized evidence, the State will be unable to make out a prima facie case." CP at 12 (emphasis in original).

¶ 9 At the CrR 3.6 suppression hearing, the officers testified that they did not contact the informant and that they knew nothing about him. One officer testified that she did not attempt to contact the informant because, "[t]he caller had requested no contact." RP at 20. The other officer testified that they did not know if the informant knew Hopkins. Both officers testified that they did not observe any criminal or suspicious behavior; rather, they saw a person who resembled the informant's description hang up the phone at a phone booth and they immediately contacted him. They approached Hopkins primarily out of officer safety because Hopkins was allegedly a minor with a gun. They did not see a bulge in Hopkins' pocket or other resemblance of a gun, nor did they see the gun until after the frisk.

¶ 10 The trial court denied Hopkins' suppression motion but stated that it was a "close case." RP at 49. The trial court questioned the reliability of the informant's tip that initiated the officers' investigatory stop. The trial court stated,

Anybody seeing an acquaintance or someone who wanted to get Mr. Hopkins in trouble with the police could call up and say what he's wearing, he's got a gun. So the fact that somebody calls and says somebody has a gun doesn't allow the officers to stop them. And I was a little concerned. It sounds like the officers were assuming this anonymous tip must be correct. I thought maybe they gave it a little bit more weight than they should have because who knows who this guy is.

RP at 49 (emphasis added).

¶ 11 The trial court also found that, "[t]he officers d[id] not see Mr. Hopkins really do anything illegal. All they saw him do was hang up the telephone. There's nothing wrong with being on the phone." RP at 50.

¶ 12 But the trial court ultimately denied Hopkins' suppression motion by concluding,

[T]here is more than just an anonymous tip . . . when they approach Mr. Hopkins, he was asked, and I think the officers had every right to ask him if he had a gun.

He said, I might have a gun in my pocket . . . That's a statement from Mr. Hopkins that I think reasonably justifies them doing a little bit more.

RP at 49-50.

¶ 13 The trial court prefaced its oral ruling by noting, "I think maybe they [the officers] just assumed everything this guy told them, the tipster told them, was true. I don't know [if] they should necessarily assume that, but I don't think they did anything unreasonable here." RP at 51.

¶ 14 Consequently, the trial court entered written findings of fact and conclusions of law that included, inter alia, the following two legal conclusions: "1. Law enforcement lawfully contacted and detained the defendant based on the information provided by a named 911 caller. 2. The defendant was properly patted down after he indicated to the officers that he might have a gun in his pocket." CP at 176.

¶ 15 A jury found Hopkins guilty on all three counts, including the firearm enhancement. The trial court sentenced Hopkins to 60 months confinement.

ANALYSIS

I. INFORMANT'S TIP

¶ 16 Hopkins argues that the trial court erred when it denied his suppression motion based on an unreliable informant's tip to justify the officers' investigatory stop. The State responds that citizen informants are generally presumed to be reliable and that an informant's tip alleging unlawful firearm possession requires immediate police response.

A. Standard of Review

¶ 17 We review factual findings in a motion to suppress for substantial evidence; we review de novo the suppression order's conclusions of law. State v. Duncan, 146 Wash.2d 166, 171, 43 P.3d 513 (2002); State v. Mendez, 137 Wash.2d 208, 214, 970 P.2d 722 (1999).

¶ 18 A warrantless, investigatory stop must be reasonable under the Fourth Amendment and article I, section 7 of the Washington State Constitution. Duncan, 146 Wash.2d at 171, 43 P.3d 513. The State must prove an investigatory stop's reasonableness. Duncan, 146 Wash.2d at 171, 43 P.3d 513. An investigatory stop is reasonable if the arresting officer can attest to specific and objective facts that provide a reasonable suspicion that the person stopped has committed or is about to commit a crime. State v. Armenta, 134 Wash.2d 1, 10, 948 P.2d 1280 (1997). An investigatory stop occurs at the moment when, given the incident's circumstances, a reasonable person would not feel free to leave. Armenta, 134 Wash.2d at 10, 948 P.2d 1280; State v. Williams, 102 Wash.2d 733, 739, 689 P.2d 1065 (1984).

¶ 19 An informant's tip can provide police a reasonable suspicion to make an investigatory stop. State v. Sieler, 95 Wash.2d 43, 47, 621 P.2d 1272 (1980). But the informant's tip must be reliable. Sieler, 95 Wash.2d at 47, 621 P.2d 1272. The State establishes a tip's reliability when "(1) the informant is reliable and (2) the informant's tip contains enough objective facts to justify the pursuit and detention of the suspect or the noninnocuous details of the tip have been corroborated by the police thus suggesting that the information was obtained in a reliable fashion." State v. Hart, 66 Wash.App. 1, 7, 830 P.2d 696 (1992) (relying on Sieler) (emphasis in original).

B. Informant's Reliability

¶ 20 Generally, we may presume the reliability of a tip from a citizen informant. State v. Wakeley, 29 Wash.App. 238, 241, 628 P.2d 835 (1981). Here, the record demonstrates that at the time of the dispatch, the officers knew only that the informant was a citizen. Although the informant's name and cell phone number appeared on the officers' computer in their patrol car, they did not know the informant or the call's circumstances.⁵ The officers...