State v. Slater

• Decision Date: 09 July 1999
• Docket Number: No. 81,374.,81,374.
• Citation: 986 P.2d 1038,267 Kan. 694
• Parties: STATE OF KANSAS, Appellant, v. WALTER MATTHEW SLATER, Appellee.
• Court: Kansas Supreme Court

267 Kan. 694

986 P.2d 1038

STATE OF KANSAS, Appellant, v. WALTER MATTHEW SLATER, Appellee.

No. 81,374.

Supreme Court of Kansas.

Opinion filed July 9, 1999.

Glenn R. Braun, special prosecutor, argued the cause, and Carla J. Stovall, attorney general, was with him on the brief for appellant.

Michael S. Holland, of Holland and Holland, of Russell, argued the cause, and Michael S. Holland II, of the same firm, was with him on the brief for appellee.

The opinion of the court was delivered by

DAVIS, J.:

Walter Matthew Slater was charged with driving under the influence of alcohol. The trial court suppressed all evidence obtained by the arresting officer after the stop of the defendant's vehicle and dismissed the charge. The State appeals, claiming that information obtained from an anonymous caller and conveyed to the arresting officer through a police dispatcher created reasonable suspicion that a crime had been committed and, thus, justified the stop. We agree and, therefore, reverse and remand.

The facts are not in dispute. Police officer Matthew McNemee was on routine patrol in Hays on February 15, 1997. At 12:29 a.m., he received a dispatch from the Hays Police Department dispatcher regarding a possible drunk driver. The dispatcher advised all officers in the local area that a possible drunk driver was leaving Burger King. The dispatcher advised that the vehicle was a black pickup bearing license tag HEK 477. The dispatcher also advised that the tag was registered to Walter Slater at 2212 Downing.

Within minutes, Officer McNemee went to Burger King, did not see the black pickup, and proceeded to the defendant's home address, a short distance from Burger King. Approximately a block prior to reaching the address of the defendant, Officer McNemee observed the black pickup with a license tag of HEK 477. He activated his lights, followed the truck for a block while observing no signs of poor driving, and stopped the vehicle. As the driver got out, a beer can fell out of the pickup and the driver stumbled and staggered. The sole reason Officer McNemee stopped the defendant was to ascertain or check out the information he received from the dispatcher.

The question raised by this appeal is whether the anonymous tip of a "possible drunk driver" at a specific location, together with a specific description of the vehicle, license tag number, and address of the registered owner is alone sufficient to provide an articulable and reasonable suspicion that a crime is being committed. The trial court found that it was not and ordered the results of the ensuing blood alcohol test suppressed.

Analysis

The traffic stop of a vehicle by a law enforcement officer is a seizure under the Fourth Amendment to the United State Constitution. State v. Hopper, 260 Kan. 66, 69, 917 P.2d 872 (1996). A law enforcement officer may stop any person in a public place based upon specific and articulable facts raising a reasonable suspicion that such person has committed or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed.2d 889, 88 S. Ct. 1868 (1968). K.S.A 22-2402(1), the Kansas stop and frisk statute, is a codification of the Fourth Amendment search and seizure principles expressed in Terry.

The United States Supreme Court and this court have provided the standard for determining whether reasonable suspicion exists by contrasting it with the familiar standard of probable cause which is required for an arrest:

"Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.... Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors—quantity and quality—are considered in the `totality of the circumstances—the whole picture' [citation omitted] that must be taken into account when evaluating whether there is reasonable suspicion." Alabama v. White, 496 U.S. 325, 330, 110 L. Ed.2d 301, 110 S. Ct. 2412 (1990).

See State v. DeMarco. 263 Kan. 727, Syl. ¶ 4, 952 P.2d 1276 (1998).

We, therefore, must examine both the content of information possessed by the police officer in this case and its degree of reliability in our determination of whether based upon the totality of the circumstances—the whole picture—there existed reasonable suspicion to stop the defendant's vehicle. We concern ourselves with both the quantity and quality of the information possessed by the officer.

Before beginning our examination we note that in 1994 the Kansas Court of Appeals addressed a very similar question to the one we now consider. In State v. Tucker, 19 Kan. App.2d 920, 878 P.2d 855, rev. denied 255 Kan. 1007 (1994), the defendant was stopped based on an anonymous tip and eventually convicted of driving while intoxicated. He appealed, claiming that the police stop violated his Fourth Amendment rights.

Prior to the stop of Tucker, a report had been received by the dispatcher from an anonymous caller who was not identified until after the arrest was made. The caller advised that he had observed a white male driving a red 1960's model Ford pickup southbound on K-61 Highway from Inman. The caller further reported that the driver appeared to be drunk and was running other vehicles off of the roadway. The officer headed north on K-61, observed a red 1960's model Ford pickup, followed the pickup, did not observe any erratic driving, but stopped the vehicle to investigate the anonymous tip. 19 Kan. App.2d at 922.

In a well-reasoned opinion authored by Judge Robert J. Lewis, Jr., the Court of Appeals concluded that under the totality of circumstances, the stop was justified. In posing the question of whether the stop was based upon specific and articulable facts in the case of an anonymous caller, the court emphasized that the case involved the ever-changing equation used to balance the rights of movement and right to privacy with the right of the public to be protected from unreasonable danger. The court recognized that in the case of the stop and search of "a mobile automobile, the requirements to justify a stop or search or arrest are lessened." 19 Kan. App.2d at 923. After an extensive discussion of the Kansas and United States Supreme Court cases involving the Fourth Amendment and automobiles, the court concluded:

"It is clear from the decisions reviewed that the Fourth Amendment is applied somewhat differently where the automobile in its mobile state is involved. It is also clear that the balancing test must consider the risk to the public of not making an immediate stop against the right of an individual to be free from such stops. We believe that, where the danger to the public is clear, urgent, and immediate, the equation must be weighted in favor of protecting the public and removing the danger." 19 Kan. App.2d at 927.

As in Tucker, we approach the question of whether the officer acted upon reasonable suspicion with an appreciation of the risk of harm involved. As the Utah Court of Appeals recently stated in the case of Kaysville City v. Mulcahy, 943 P.2d 231, 236 (Utah App. 1997):

"Before proceeding further, we think it vital to emphasize that the tip in this case reported a drunk driver who was at that time on the road. We therefore must consider

`the ever-changing equation used to balance the rights of an individual to be free from unwarranted intrusions of his or her freedom of movement and right to privacy with the right of the public to be protected from unreasonable danger. This equation and the balance change with the facts presented.'

[Citation omitted.] As the Kansas Court of Appeals noted in State v. Tucker, `A motor vehicle in the hands of a drunken driver is an instrument of death. It is deadly, it threatens the safety of the public, and that threat must be eliminated as quickly as possible.' Id. at 861. Under those circumstances, `[a]n investigatory... stop of a suspected drunken driver is a [comparatively] minimal intrusion upon that driver's freedom of movement and privacy.' Id. We agree with the Tucker court `that the greater and more immediate the risk to the public revealed by the tip, the less importance we will accord to the process of corroboration or verification of the tip.' Id. at 862. Thus, the following application of the law to the facts of this case is colored by our belief that `[t]he "totality" of circumstances tips the balance in favor of public safety and lessens the ... requirements of reliability and corroboration.' Id. at 864."

Thus, our determination of whether reasonable suspicion existed under the totality of circumstances is affected by the threat a possible drunk driver poses to public safety.

Quantity and Quality of the Information

"Informant's 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." Adams v. Williams, 407 U.S. 143, 147, 32 L. Ed.2d 612, 92 S. Ct. 1921 (1972).

In Alabama v. White, the United States Supreme Court noted that an anonymous tip alone will seldom demonstrate the informant's basis of knowledge or veracity and, thus, is seldom sufficient, standing alone to provide a...