State v. Miller

• Decision Date: 18 January 1994
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Rodney MILLER, Defendant and Appellant. o. 930206.
• Court: North Dakota Supreme Court

Page 638

510 N.W.2d 638

STATE of North Dakota, Plaintiff and Appellee, v. Rodney MILLER, Defendant and Appellant.

Cr. No. 930206.

Supreme Court of North Dakota.

Jan. 18, 1994.

Ralph A. Vinje of Vinje Law Firm, Bismarck, for defendant and appellant.

Bruce B. Haskell, Asst. State's Atty., Bismarck, for plaintiff and appellee.

LEVINE, Justice.

Rodney Miller appeals from a judgment of conviction of driving or being in actual physical control of a motor vehicle under NDCC Sec. 39-08-01(1)(a) and (b). Miller questions whether the investigating officer had a reasonable and articulable suspicion to stop his vehicle. We hold that the officer did not and reverse.

Shortly before midnight on June 22, 1992, the Bismarck Police Department dispatcher notified Officer James Chase that a caller had reported a possible drunk driver in the Wendy's drive-up lane. The caller identified himself to the dispatcher as "Jody with Wendy's," but the dispatcher did not tell Chase the caller was identified, either by name or his employment. The dispatcher described the vehicle as a red pickup and gave its license plate number and location as second in line in the drive-up lane. The dispatcher also relayed the informant's statement that the driver "could barely hold his head up." Chase was about a mile away from Wendy's and arrived there in a matter of minutes. Chase saw an orange pickup coming out of the drive-up lane. The pickup pulled out of the Wendy's parking lot and drove east on Capitol. Chase followed the pickup as it drove north on the frontage road in front of Wendy's at about five to seven miles per hour, and then turned into the Wendy's parking lot and parked. Chase verified that the pickup's license number matched the number reported by the dispatcher, but did not notice anything unusual about the pickup's driving. Chase pulled in behind the pickup and turned on his warning flashers. He then conducted field sobriety tests on Miller and arrested him.

Miller was charged with driving or being in actual physical control of a motor vehicle under NDCC Sec. 39-08-01(1)(a) and (b). Miller moved to suppress the evidence gained as a result of the stop on the ground that Chase did not have a reasonable and articulable suspicion of a violation at the time of the stop. He also argued that NDCC Sec. 29-29-21 implicitly requires probable cause to stop a driver suspected of impaired driving. The trial court denied the motion, finding that the information available to Chase at the time of the stop was sufficient to support a reasonable and articulable suspicion. It also determined that NDCC Sec. 29-29-21 does not apply to stops for alcohol-related offenses. Miller pleaded guilty to the charge, reserving his right to appeal from the trial court's order denying his motion to suppress. The trial court sentenced Miller to a one-year term of imprisonment, which it suspended in part, and ordered him to pay a fine. Miller now appeals.

The dispositive issue on appeal is whether the trial court erred in finding that the facts were sufficient to support a reasonable and articulable suspicion. We resolve the issue by applying the analytical framework within to determine whether the tip is reliable enough to raise a reasonable suspicion without corroboration by the officer of suspicious behavior.

We will affirm a trial court's decision on a suppression motion if, after resolving conflicts in the evidence in favor of affirming, we find sufficient competent evidence for the trial court's decision. State v. Guthmiller, 499 N.W.2d 590 (N.D.1993); State v. Bryl, 477 N.W.2d 814 (N.D.1991). Under this standard of review, we defer to the trial court's superior opportunity to weigh the evidence and to judge the credibility of the witnesses. Guthmiller, supra; Bryl, supra.

To make a legal investigative stop of a vehicle, an officer must have a reasonable and articulable suspicion that the motorist has violated or is violating the law. E.g., Wibben v. North Dakota State Highway Comm'r, 413 N.W.2d 329 (N.D.1987). Information from a tip may provide the factual basis for a stop. State v. Neis, 469 N.W.2d 568 (N.D.1991). In evaluating the factual basis for a stop, we consider the totality of the circumstances. E.g., Geiger v. Backes, 444 N.W.2d 692 (N.D.1989). This includes the quantity, or content, and quality, or degree of reliability, of the information available to the officer. Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). Although the totality-of-the-circumstances approach makes categorization difficult, our cases involving reasonable suspicion arising from an informant's tip demonstrate the inverse relationship between quantity and quality, and may be analyzed generally according to the type of tip and, hence, its reliability. As a general rule, the lesser the quality or reliability of the tip, the greater the quantity of information required to raise a reasonable suspicion. Id. at 330, 110 S.Ct. at 2416.

1. Face-to-face Informants

The most reliable tip is the one relayed personally to the officer. In State v. Lykken, 406 N.W.2d 664 (N.D.1987), in a face-to-face conversation between the officer and an informant known to the officer, the informant gave the officer a description and the license number of the vehicle, and told the officer that he thought the driver might be impaired because he had seen the vehicle driving the wrong way on the highway. We held that the information provided by the tip itself was sufficient to raise a reasonable and articulable suspicion. We based our decision in part on Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), in which the Supreme Court reached a similar holding. In Adams, an informant known to the officer approached the officer and told him that Williams, seated in a nearby car, was carrying narcotics and a gun. Based on the tip, the officer conducted a stop and frisk of Williams. Williams argued that the reasonable suspicion standard required some corroboration of the tip. The Court, relying on the facts that the officer knew the informant and the informant had come forward personally, disagreed. It stated,

"In reaching this conclusion, we reject respondent's argument that reasonable cause for a stop and frisk can only be based on the officer's personal observation, rather than on information supplied by another person. Informants' tips, like all other clues and evidence coming to a policeman on the scene, may vary greatly in their value and reliability. One simple rule will not cover every situation. Some tips, completely lacking in indicia of reliability would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized. But in some situations--for example, when the victim of a street crime seeks immediate police aid and gives a description of his assailant, or when a credible informant warns of a specific impending crime--the subtleties of the hearsay rule should not thwart an appropriate police response." Id. at 147, 92 S.Ct. at 1924.

These cases illustrate the high end of the reliability scale: the quality of the information, provided in person by an informant known to the officer, was enough so that the quantity of the information provided by the tip alone, that the defendant was engaged in criminal activity, was sufficient to raise a reasonable suspicion.

2. Anonymous Informants

At the low end of the reliability scale are tips from anonymous callers. In Wibben, supra, an anonymous caller reported an apparently sick or intoxicated person seated in a car with the engine running in an apartment complex parking lot. The investigating officer found a car in the parking lot matching the tip's description, except that its engine was not running. The officer saw that the driver "was just sitting behind the wheel" and made the stop. Id. at 330. We held that the tip, combined with the officer's corroboration, "including the fact that Wibben continued to be visibly seated in the car," was sufficient to raise a reasonable suspicion. Id. at 332; see also id. at 333 (Levine, J., concurring) ["Only because there was corroboration by the police officer that the car was parked with the driver inside over some duration of time, did the officer have the requisite basis for an investigative stop."]. In State v. Thordarson, 440 N.W.2d 510 (N.D.1989), an anonymous caller reported that "down by Cenex there had been some motorcycles going back and forth and tearing around there." Id. at 511. The officer drove to the Cenex station within a matter of seconds and saw two motorcycles speeding past the station. We concluded that the officer had a reasonable and articulable suspicion to stop Thordarson, one of the motorcyclists: "Although this officer started with a tip from an anonymous caller, the officer used his own senses to observe Thordarson violating the law by speeding." Id. at 512. In Guthmiller, supra, an anonymous caller reported "a DUI driver." The caller gave the general type, color, direction, and license number of the vehicle, but did not describe any erratic driving or suspicious behavior. The investigating officer saw the vehicle stop for an unusually long time at a stop sign, and the officer confirmed the information given in the tip before making the stop. We held that the combination of the tip and "Guthmiller's 'hesitation' at the stop sign," which we noted was a possible violation of NDCC Sec. 39-10-47(1), was sufficient to raise a reasonable and articulable suspicion. Id. at 592. In City of Minot v. Nelson, 462 N.W.2d 460 (N.D.1990), we held that an anonymous tip about a "suspicious" vehicle, without any indication of possible illegal activity from the informant or the officer's observations, was insufficient to raise a reasonable and articulable suspicion.

The Supreme Court addressed anonymous telephone tips in the reasonable-suspicion context in Alabama v. White, supra. In that case, an...