State v. Walshire

• Decision Date: 10 October 2001
• Docket Number: No. 00-1298.,00-1298.
• Citation: 634 N.W.2d 625
• Parties: STATE of Iowa, Appellee, v. Jeremiah Lynn WALSHIRE, Appellant.
• Court: Iowa Supreme Court

634 N.W.2d 625

STATE of Iowa, Appellee, v. Jeremiah Lynn WALSHIRE, Appellant.

No. 00-1298.

Supreme Court of Iowa.

October 10, 2001.

Linda Del Gallo, State Appellate Defender, and Robert P. Ranschau, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, Denver D. Dillard, County Attorney, and William Croghan, Assistant County Attorney, for appellee.

LARSON, Justice.

Jeremiah Walshire was convicted of driving under suspension, and he appealed, claiming error in the court's denial of his motion to suppress evidence. We affirm.

I. Facts and Prior Proceedings.

The Marion Police Department received an anonymous telephone call about a vehicle with a suspected drunk driver. The call was apparently made on a cellular phone because the caller was following the subject car. The arresting officer testified at the hearing on the defendant's motion to suppress, outlining the sparse facts surrounding his stop of Walshire's vehicle:

Q. Okay. What about Mr. Walshire first brought him to your attention? A. We had—dispatch reported to me over the radio that a cell phone caller was behind a vehicle on Highway 13 they thought was drunk.

Q. And did they—were you told by dispatch any particulars about the vehicle? A. License plate, make and model of the vehicle.

....

Q. Okay. Were you told why this vehicle was suspected of driving drunk? A. I believe it was the caller stated they were driving in the median.

The officer testified that dispatch reported the caller would not give a name.

The arresting officer located the car and stopped it, solely on the basis of the call; he did not personally observe any behavior that would generate reasonable suspicion for a traffic stop. The defendant was not arrested for drunk driving, but he was charged with driving under suspension in violation of Iowa Code section 321J.21 (1999).

The defendant moved to suppress all evidence obtained as a result of the traffic stop on the ground the officer did not have a reasonable, articulable suspicion to make an investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), because the information provided by the anonymous caller was not sufficiently reliable and was not corroborated by independent observations of the officer. The district court overruled Walshire's motion to suppress, relying on State v. Markus, 478 N.W.2d 405 (Iowa Ct.App. 1991). On a stipulated record, the court found the defendant guilty of driving under suspension.

II. Standard of Review.

Appellate review of claimed violations of constitutional rights under the Fourth Amendment is de novo in light of the totality of the circumstances. See, e.g., State v. Ortiz, 618 N.W.2d 556, 558-59 (Iowa 2000)

.

III. The Merits.

To justify a Terry stop, an officer must have specific and articulable cause to reasonably believe criminal activity may be afoot. State v. Heminover, 619 N.W.2d 353, 357-58 (Iowa 2000). This quantum of evidence necessary to justify a Terry stop is often referred to as "reasonable suspicion." On appeal the defendant occasionally discusses principles of "probable cause" rather than "reasonable suspicion," as involved in this case. There is, of course, a substantial difference.

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.

Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301, 309 (1990).

In State v. Markus, the case relied on by the district court, the police received an anonymous tip from a motorist using a cellular phone to report he was following a pickup that "was all over the roadway." 478 N.W.2d at 407. The caller, as in the present case, reported the description of the vehicle, its license number, location, and direction of travel. The officers found the vehicle but made no independent observations as to how it was being operated. They stopped the vehicle and, believing the driver was intoxicated, arrested him for operating while intoxicated. The district court suppressed the evidence from the stop on the ground the officers had made no observations as to the manner of the vehicle's operation, and the anonymous call alone was insufficient to create reasonable suspicion. Id. The court of appeals reversed, holding the totality of the circumstances provided reasonable suspicion for the stop, relying on Alabama v. White. Markus, 478 N.W.2d at 408.

In White an anonymous caller said Vanessa White would leave a certain apartment at a certain time in a brown Plymouth station wagon with a broken right taillight, that she would go to a certain motel, and that she would be possessing cocaine. Officers were able to corroborate all of the information, aside from the cocaine possession, through personal observation. The Supreme Court held this was sufficient to create reasonable suspicion, based largely on the fact that the anonymous caller's information proved to be an accurate prediction of what the defendant would do, thus suggesting the caller had inside information and bolstering the caller's credibility. White, 496 U.S. at 332, 110 S.Ct. at 2417, 110 L.Ed.2d at 310.

The defendant in the present case appears to argue, although it is not clear, that White is distinguishable from this case because here predictive information such as in White is lacking. He implies that Markus, which relied on White, was decided in error. According to him, the recent Supreme Court case of Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), controls this case and overrules Markus because J.L. held that an anonymous call, absent other indicia of reliability, cannot provide reasonable suspicion for a Terry stop. J.L., 529 U.S. at 270-71, 120 S.Ct. at 1378-79, 146 L.Ed.2d at 260.

In the present case, if there had been some indication of reliability based on the caller's prediction of the defendant's actions, as in White, or if the officers had confirmed for themselves that the driver was driving erratically, there would be a stronger case for reasonable suspicion. Nevertheless, we do not agree that reasonable suspicion necessarily requires an accurate prediction of future events or independent observations by the officer of inculpatory conduct.

In J.L. the Supreme Court held that, absent other indicia of reliability, an anonymous telephone call reporting that a young black male, wearing a plaid shirt and standing at a particular bus stop, was carrying a gun did not constitute the reasonable suspicion necessary to justify a Terry stop. The Court noted that the reputation of an anonymous informant cannot be assessed under those circumstances, and such an informant cannot be held responsible if the allegations turn out to be false. J.L., 529 U.S. at 270, 120 S.Ct. at 1378, 146 L.Ed.2d at 260. The Court noted "an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity," and in particular, such a tip would often not show "that the tipster has knowledge of concealed criminal activity." Id. at 270, 272, 120 S.Ct. at 1378, 1379, 146 L.Ed.2d at 260, 261 (emphasis added). It said, "The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person." Id. at 272, 120 S.Ct. at 1379, 146 L.Ed.2d at 261.

This case is different from J.L. in several respects, one of which is particularly important: the information provided here did not concern concealed criminal activity, but rather illegality open to public observation. The tip here demonstrated the tipster's basis of knowledge: the caller observed the defendant driving in an erratic manner. In fact, in a very similar case of an anonymous cell phone report of a drunken driver, decided after and in light of J.L., it was noted:

The offense alleged here did not involve a concealed crime—a possessory offense. What was described in the police dispatch to the arresting officer was a crime in progress, carried out in public, identifiable and observable by anyone in sight of its commission. Unlike the tip alleged in White—that White was carrying narcotics—or in [Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)]—that the defendant was carrying narcotics and a gun—here a total stranger could have observed defendant's driving abilities. No intimate or confidential relationship was required to support the accuracy of the observation. The caller simply reported a contemporaneous observation of criminal activity taking place in his line of sight.

State v. Boyea, 765 A.2d 862, 875 (Vt.2000) (Skoglund, J., concurring), cert. denied, ___ U.S. ___, 121 S.Ct. 2524, 150 L.Ed.2d 696 (2001). Likewise, in Markus our court of appeals stated "[i]ndependent corroboration of the inculpatory details of a defendant's tip is not mandatory." 478 N.W.2d at 408. When the officers found the informant to be accurate concerning the vehicle's description and location, they had reason to believe the informant was also accurate as to the alleged criminal activity. Id. "`Because an informant is shown to be right about some things, he is probably also right about other facts that he has alleged, including the claim that the object of the tip is engaged in criminal activity.'" Id. (quoting Illinois v. Gates, 462 U.S. 213, 244, 103 S.Ct. 2317, 2335, 76 L.Ed.2d 527, 552 (1983)); see also State v. Melanson, 140 N.H. 199, 665 A.2d 338, 340 (1995)

(although anonymous caller provided "innocent" details, they were sufficient to support a conclusion the caller had personally observed the vehicle and helped demonstrate the caller's reliability) (citing State v. Tucker, 19...