State v. White
| Decision Date | 22 February 1979 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 592 P.2d 1308,122 Ariz. 42 |
| Parties | STATE of Arizona, Appellee, v. John Thomas WHITE, Appellant. 3451. |
| Court | Arizona Court of Appeals |
The dispositive issue in this case is whether circumstances surrounding an informant's tip received by police officers provided probable cause to stop the vehicle in which appellant was riding and to search the occupants. We hold that there was not sufficient cause to justify the stop and therefore reverse.
On February 20, 1978, Yuma police officers received a tip from an informant, whom, they testified, had given reliable information in the past. The sum and substance of the tip was that the appellant and one Sheila Lane were "riding around Yuma" in Lane's car selling "dime " bags of heroin. The informant described the model and color of the vehicle and its license number. The informant did not indicate their destination or where the alleged sales had taken place. Nor did the informant indicate that he or anyone else had actually observed the sales or the heroin.
Prompted solely by this tip, the officers began patrolling the streets of Yuma looking for the automobile, and eventually found it. After following it for a short distance they stopped the car with weapons drawn and conducted pat down searches. While following the vehicle, the police officers observed nothing suspicious which would justify the stop and search. See State v. Hocker, 113 Ariz. 450, 556 P.2d 784 (1976). One officer testified that after the pat down searches the appellant asked nervously about his cigarettes. The officer looked into the cigarette package and found several packages of heroin. Appellant was then arrested. He was subsequently convicted and sentenced to a term of five years to five years and one day for the crime of transporting heroin.
Although appellant has raised several issues in this appeal, we consider only his argument that the police lacked sufficient cause to stop the vehicle and the State's responding argument that probable cause was provided by the tip and corroborating circumstances.
In evaluating the adequacy of an informant's tip, we must be guided by the pronouncements of the United States Supreme Court requiring a firm showing of the reliability of the informant's information. The informant himself must be reliable, Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and, the tip must show sufficiently detailed circumstances to indicate that the informant came by his information in a reliable way. Spinelli v. United States, 393 U.S 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). If the tip itself fails to reflect sufficient underlying circumstances indicating reliability of the information, such reliability may in an appropriate case be supplied by independent observations of the police corroborating the information in the tip. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). See also United States v. Myers, 176 U.S.App.D.C. 76, 538 F.2d 424 (1976), Cert. denied 430 U.S. 908, 97 S.Ct. 1179, 51 L.Ed.2d 584 (1977). The concern of the Court in these cases has been to avoid searches based upon "a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation." Spinelli v. United States, 393 U.S. at 416, 89 S.Ct. at 589, 21 L.Ed.2d at 644.
We consider first whether the informant's tip itself was sufficient. The tip identified the individuals and described the car, but with respect to criminal activity, consisted of no more than conclusory allegations. No details in the tip substantiated the informant's conclusion that the appellant was selling heroin.
We turn then to the State's principal contention that the tip was supported by adequate independent corroboration to provide probable cause for the stop. We observe initially that one of the corroborating factors enumerated by the State was the appellant's nervous behavior regarding the cigarette package. This behavior, however, occurred after the initial stop and search, and cannot be corroborative of any circumstances justifying the stop in the...
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