Wibben v. North Dakota State Highway Com'r

• Decision Date: 29 September 1987
• Docket Number: No. 870018,870018
• Citation: 413 N.W.2d 329
• Parties: Vikki WIBBEN, Petitioner and Appellant, v. NORTH DAKOTA STATE HIGHWAY COMMISSIONER, Respondent and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 329

413 N.W.2d 329

Vikki WIBBEN, Petitioner and Appellant, v. NORTH DAKOTA STATE HIGHWAY COMMISSIONER, Respondent and Appellee.

Civ. No. 870018.

Supreme Court of North Dakota.

Sept. 29, 1987.

Hjellum, Weiss, Nerison, Jukkala, Wright & Paulson, Jamestown, for petitioner and appellant; argued by Thomas E. Merrick.

Myron E. Bothun, Asst. Atty. Gen., State Highway Dept., Bismarck, for respondent and appellee.

MESCHKE, Justice.

Vikki Wibben appeals from suspension of her driving privileges, claiming that the officer's "investigative stop" of her parked car was unreasonable. We affirm.

At 2:35 A.M. on October 12, 1986, a radio dispatch suggested that Officer Gerald Klosterman go to the parking lot at an apartment complex in Jamestown. The dispatcher relayed a call from an unidentified person who reported that a girl, seated there in a grey Pontiac with a Minnesota license and with the engine running, appeared to be sick or intoxicated. The caller did not say why the girl was thought to be in that condition.

At the parking lot, the officer found Wibben sitting in a car which fit the description, except the engine was not running. He was unable to tell whether she was sick or intoxicated; "she was just sitting behind the wheel."

The officer approached Wibben's car and tapped on the window with his flashlight. Wibben rolled down the window, and he asked her if she were okay. Wibben responded that she was okay and that she was waiting for a friend. The officer observed that the keys were in the ignition, that Wibben's eyes were red and bloodshot, and that her speech was slurred. He had Wibben step out of the car to perform some sobriety tests, which she failed. He arrested Wibben for actual physical control of a vehicle while intoxicated and took her to the police station. There, an Intoxilyzer test showed her blood-alcohol content was 0.15 percent.

At an administrative hearing on her license suspension under NDCC Sec. 39-20-05, Wibben argued that the officer did not have a reasonable basis to "stop" her and ask questions. The hearing examiner concluded that "Officer Klosterman had the grounds to believe Vikki Wibben violated section 39-08-01," and suspended her driving privileges for 91 days. Upon review under NDCC Sec. 39-20-06, the district court affirmed the hearing examiner's decision. Wibben appeals, challenging the propriety of the officer's intrusion upon her privacy.

I.

The parties disagree about the character of the officer's action. While the Highway Commissioner describes it as a "momentary intrusion ... inquiring as to Wibben's well being," Wibben insists it was an "investigatory stop" made without "a reasonable suspicion of unlawful conduct," thereby violating her Fourth Amendment protection against unreasonable search and seizure.

Whatever the officer's motive in tapping on Wibben's car window, a stop occurred. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (when police officer tapped on car window and asked occupant to open door and he responded by rolling down window, Supreme Court presumed "forcible stop" occurred, noting it was not claimed he "acted voluntarily in rolling down the window of his car"). An investigative stop is a seizure within the meaning of the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). Thus, we measure the officer's conduct with the Fourth Amendment's "general proscription against unreasonable searches and seizures." Id. In so doing, we determine whether the circumstances warranted interference with Wibben's Fourth Amendment rights and, if so, whether the extent of the intrusion was reasonably related to those circumstances. See United States v. Stevie, 578 F.2d 204, 207 (8th Cir.1977).

II.

A.

For a legal investigative stop of a vehicle, an officer must have an articulable and reasonable suspicion that a law has been or is being violated. ¹ State v. Lykken, 406 N.W.2d 664, 666 (N.D.1987); State v. VandeHoven, 388 N.W.2d 857, 858 (N.D.1986). The factual basis for the stop need not be the officer's personal observations alone, but may arise from information furnished by other persons. State v. Lykken, supra. See also Adams v. Williams, supra (information from person known to officer justified investigative stop). Even an anonymous informant may supply sufficient information for a reasonable suspicion justifying a stop. State v. Boushee, 284 N.W.2d 423, 430 (N.D.1979); United States v. McBride, 801 F.2d 1045 (8th Cir.1986). See also Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (Court upheld probable cause determination for a warrant, based in part on anonymous tip).

We have cautioned, however, that "[i]nformation supplied by an anonymous informant cannot alone establish probable cause for a warrant if the tip provides virtually nothing from which one might conclude that the informant is honest or that his information is reliable, or if the information 'gives absolutely no indication of the basis' " for identifying the criminal activities. State v. Thompson, 369 N.W.2d 363, 367 (N.D.1985) (citing Illinois v. Gates, supra ). Similarly, information from an anonymous informant used for an investigative stop must be sufficiently reliable to support a reasonable suspicion of unlawful conduct, though not the more exacting standard of probable cause necessary to make an arrest.

The Minnesota Supreme Court recently considered a comparable case. In Olson v. Com'r of Public Safety, 371 N.W.2d 552 (Minn.1985), an anonymous informant reported a possible drunken driver, describing the car and its location. The court held the stop invalid, saying:

"On this record, there is a complete lack of even the most minimal indicia of reliability for the anonymous tip. If police cannot stop a car on the highway on the basis of mere whim, neither can they stop on the basis, for all they know, of the mere whim of an anonymous caller.

"... It would have been a simple matter for the dispatcher to have elicited some minimal specific and articulable facts from the anonymous caller to support the caller's bare assertion of a possibly drunk driver on the road. This, however, was not done, or, if it was done, the state has failed to show that it was. The fourth amendment stands as a protection against unreasonable intrusions on an individual's privacy and personal security, and if this protection is to have any efficacy, it applies here." Id. at 556.

Compare State v. Newgard, 392 N.W.2d 27 (Minn.App.1986) (anonymous phone tip about a drunken man stumbling on or near highway, who had responded with obscenities when asked if he needed help, was sufficient to justify investigative stop).

Relying on Olson, Wibben contends that if the anonymous caller had reported that Wibben had been observed reeking of alcohol, with glassy eyes or slurred speech, or stumbling, the investigative stop might have been proper, but without such communicated detail, it was not. It may be doubtful whether this unidentified and unauthenticated tip, alone, would fulfill the requirement of reasonableness for the suspicion necessary to justify an investigative stop. But see People v. Willard, 183 Cal.App.3d Supp. 5, 228 Cal.Rptr. 895 (1986). And, see also Illinois v. Gates, supra, 462 U.S. at 237, 103 S.Ct. at 2332 ("Ordinary citizens, like ordinary witnesses ... generally do not provide extensive recitations of the basis of their everyday observations.").

But, in this case, we conclude that we do not need to decide whether bare information that a person appears "sick or drunk" carries enough indicia of reliability to investigate further. This officer personally verified most of the details of the tip by his own observations, including the fact that Wibben continued to be visibly seated in the car. The only unverified information was her actual condition--sick or intoxicated. Upon corroborating other details of the anonymous tip, we believe that this officer had sufficient information for a reasonable suspicion, particularly when we take into account inferences and deductions that an investigating officer would normally make. State v. Lykken, supra. Thus, this case is unlike Olson, supra, in that important aspect.

B.

In assessing whether the circumstances warranted an investigative stop, we also consider whether the state's interest in investigating the officer's reasonable suspicion outweighs the person's Fourth Amendment interests. See United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 679, 83 L.Ed.2d 604 (1985).

Here, the state did have a significant interest in the officer's determining Wibben's condition without delay. As one scholar has said about investigative stops:

"Because the very purpose of such stops is to clarify ambiguous situations, 'even if it was equally probable that the vehicle or its occupants were innocent of any wrongdoing, police must be permitted to act before their reasonable belief is verified by escape or fruition of the harm it was their duty to prevent.' " 1 LaFave, Criminal Procedure Sec. 3.8, at 303 (1984) (citing United States v. Holland, 510 F.2d 453 (9th Cir.1975) (emphasis in original).

In State v. Schuler, 243 N.W.2d 367 (N.D.1976), this Court explained the importance of the "actual physical control" offense:

" 'It is our opinion that the legislature, in making it a crime to be in "actual physical control of a motor vehicle while under the influence of intoxicating liquor," intended to enable the drunken driver to be apprehended before he strikes.'

"...

" 'We believe that an intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and welfare of the public. The danger is less than where an intoxicated person is actually driving a vehicle, but it does exist.' " Id. at 370 [quoting Hughes v. State, 535 P.2d 1023, 1024 (Okla.Crim.App.1975) ].

Comparatively, Wibben's privacy interest was minimal. It is not commonplace to be visibly seated...