State v. Villegas-Varela, VILLEGAS-VAREL

• Decision Date: 21 December 1994
• Docket Number: D-102500,A,92D-102503,92D-102502,VILLEGAS-VAREL
• Citation: 132 Or.App. 112,887 P.2d 809
• Parties: STATE of Oregon, Respondent, v. Margaritoppellant. 92; CA A80526 (Control), CA A80527, CA A80528.
• Court: Oregon Court of Appeals

Page 809

887 P.2d 809

132 Or.App. 112

STATE of Oregon, Respondent, v. Margarito VILLEGAS-VARELA, Appellant.

92D-102500, 92D-102502, 92D-102503; CA A80526 (Control), CA

A80527, CA A80528.

Court of Appeals of Oregon.

Argued and Submitted Aug. 26, 1994.

Decided Dec. 21, 1994.

James N. Varner, Deputy Public Defender, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender.

Timothy A. Sylwester, Asst. Atty. Gen., argued the cause for respondent. On the brief were Theodore R. Kulongoski, Atty. Gen., Virginia L. Linder, Sol. Gen., and Youlee Yim You, Asst. Atty. Gen.

Before ROSSMAN, P.J., and De MUNIZ and LEESON, JJ.

LEESON, Judge.

Defendant appeals his convictions for driving under the influence of intoxicants (DUII), giving false information to a police officer and driving while suspended. ORS 813.010; ORS 807.620; ORS 811.182. He assigns error to the trial court's denial of his motion to suppress evidence. We review for errors of law, ORS 138.220, and reverse.

The facts are not in dispute. Salem police officer Leeder, the sole witness at the suppression hearing, testified that, at approximately 11:19 p.m. on April 21, 1992, he received a dispatch that a caller had reported an "intoxicated driver operating a small red vehicle with four subjects in it. The vehicle was driving erratically all over the road." The caller also gave the car's license plate number. However, the caller did not give his or her location, the location of the car, the direction it was traveling or a description of any of the occupants. The caller also did not disclose his or her name or telephone number, stating only that the caller is a member of "Salem REACT." More than an hour later, at approximately 12:40 a.m. on April 22, Leeder saw a small red vehicle with four occupants driving south on Portland Road. He followed it and, after about four or five blocks, the car pulled into a motel parking lot. Leeder did not observe any traffic infractions. He followed the car into the parking lot, saw defendant getting out, and at that time noticed that the license plate number of the car matched the one he had received from the dispatcher. He turned on his emergency lights, approached defendant and asked him for his driver's license. Leeder testified that he stopped defendant solely because of the tip the dispatcher had received from the unnamed caller. He arrested defendant for driving under the influence of intoxicants, giving false information to a police officer and driving with a suspended license.

Before trial, defendant filed a motion to suppress evidence. The trial court denied the motion, and defendant was convicted following a stipulated facts trial.

On appeal, defendant argues that the trial court erred in denying his motion to suppress. He contends that Leeder lacked reasonable suspicion to justify the stop, because the informant was anonymous and not sufficiently reliable. ORS 131.615(1) provides:

"A peace officer who reasonably suspects that a person has committed a crime may stop the person and, after informing the person that the peace officer is a peace officer, make a reasonable inquiry."

Reasonable suspicion requires a belief "that is reasonable under the totality of the circumstances existing at the time and place the peace officer acts." ORS 131.605(4).

When reasonable suspicion is based solely on a citizen informant's report, that report must contain some indicia of reliability. State v. Shumway, 124 Or.App. 131, 133, 861 P.2d 384 (1993), rev. den. 318 Or. 459, 871 P.2d 122 (1994). In State v. Black, 80 Or.App. 12, 721 P.2d 842 (1986), we identified three factors that are important in determining the reliability of a citizen informant's report. One is whether the informant is exposed to possible criminal and civil prosecution if the report is false. That factor is satisfied if the informant gives his or her name to law enforcement authorities or if the informant delivers the information to the officer in person. State v. Bybee, 131 Or.App 492, 884 P.2d 906 (1994); State v. Koester, 117 Or.App. 139, 843 P.2d 968 (1992), rev. den. 315 Or. 644, 849 P.2d 524 (1993). The second factor is whether the report is based on the personal observations of the informant. An officer may infer that the information is based on the informant's personal observations if the information contains sufficient detail that

"it is apparent that the informant had not been fabricating [the] report out of whole cloth * * * [and] the report [is] of the sort which in common experience may be recognized as having been obtained in a reliable way * * *." Spinelli v. United States, 393 U.S. 410, 417-18, 89 S.Ct. 584, 589-90, 21 L.Ed.2d 637 (1969).

See also State v. Shumway, supra, 124 Or.App. at 136, 861 P.2d 384. The final factor is whether the officer's own observations corroborated the informant's information. The officer may corroborate the tip either by observing the illegal activity or by finding the person, the vehicle and the location substantially as described by the informant. State v. Vanness, 99 Or.App. 120, 124, 781 P.2d 391 (1989).

The facts in this case are similar to those in State v. Black, supra. In Black, the Oregon State Police received an anonymous telephone call from a woman in Selma, stating that a brown Ford Escort, traveling north on Highway 199, was speeding and weaving. About 11 minutes later, a state trooper spotted a brown Ford Escort driving north on Highway 199, approximately eight miles from Selma. He did not notice any erratic driving but stopped the car based on the anonymous tip. He arrested the defendant for DUII. We said that a tip must have some indicia of reliability and identified the three factors described above for the court to consider in determining if the officer had reasonable suspicion to make a stop. We concluded that, because the caller did not identify herself, she did not expose herself to possible criminal and civil prosecution if her report was false. We also noted that we could not infer "from the meager record that she personally observed what she reported." 80 Or.App. at 19, 721 P.2d 842. Finally, we said that the officer's personal observations did not corroborate the tip, because he did not see any erratic driving or speeding. We determined that a "reasonable officer under the totality of the circumstances could not reasonably have concluded that defendant had committed or was committing a crime" and held that the stop was illegal. 80 Or.App. at 20, 721 P.2d 842.

In this case, the caller did not give the police dispatcher his or her name or telephone number. ¹ The caller indicated only that he or she was a member of "Salem REACT." The state argues that this identification is sufficient to subject the caller to possible civil and criminal liability for making a false report, because the call could be traced back to the caller. However, the state fails to explain how that could occur. ² Leeder stated that he believes that "Salem REACT" is a local citizens band radio club, a "kind of citizens watchdog group" that is concerned with problems in the community and whose members call the police if they see something, but he does not know what the letters "REACT" stand for. He stated that he had not had any personal contact with "Salem REACT," but that he had handled about 10 calls said to have originated from it and that each call had led to an arrest. The record contains no other information about "Salem REACT," its members, or how a call made by one of its members could be traced back to the caller.

Nonetheless, argues the state, we have "not found that it is necessary for informants to leave their names in order for their reports to be reliable." It cites State v. Shumway, supra, 124 Or.App. at 135, 861 P.2d 384, and State v. Koester, supra, 117 Or.App. at 143, 843 P.2d 968, to support that contention.

In State v. Shumway, an unnamed citizen informant and a woman approached a police officer in a park and reported that a man driving a green truck was very drunk, had driven erratically, had angrily confronted other people in the park and had left the park to get more beer. The officer saw the defendant driving back into the park and stopped him. Although the officer did not observe any erratic driving, he arrested the defendant for DUII. The defendant argued that the officer did not have reasonable suspicion to justify a stop, because the informant was not sufficiently reliable. In holding that the officer did have reasonable suspicion, we said that, although the informant did not give his name to the officer, by speaking to the officer in person he potentially exposed himself to civil and criminal liability if the information was false. ³ 124 Or.App. at 135, 861 P.2d 384.

In State v. Koester, two state police officers were involved in a traffic stop on Interstate 5, south of Salem. Another motorist stopped and reported to them that a person driving a silver-grey Honda had pointed a pistol at him just north of Salem. He described the driver, gave the officers the license plate number and estimated that the car was then about three miles further south. He told the officers he would follow them and stop to identify the driver if they found the car. The motorist did not identify himself, and the officers did not note the license plate number of his car. The officers relayed the motorist's information to their dispatcher and learned that the registered owner lived in Corvallis. Approximately 34 minutes later, a Benton County deputy sheriff stopped the defendant's car as he was driving away from his Corvallis residence. The officer arrested the defendant for unlawful possession of a firearm.

We agreed with the trial court's finding that, although the informant did not identify himself, he nonetheless "knowingly subjected himself to being identified." 117 Or.App. at 143, 843 P.2d 968. We concluded that the informant's report was based on his personal...