Reasonable and Articulable Suspicion

Can anonymous sources serve as a basis for investigory stops based on reasonable suspicion?

Should courts be more or less willing to uphold findings based on anonymous sources when judging the lesser hurdle of reasonable suspicion? Consider the following case.

Rodney Miller appeals from a judgment of conviction of driving or being in actual physical control of a motor vehicle [while intoxicated]. Miller questions whether the investigating officer had a reasonable and articulable suspicion to stop his vehicle. We hold that the officer did not and reverse.

Shortly before midnight on June 22, 1992, the Bismarck Police Department dispatcher notified Officer James Chase that a caller had reported a possible drunk driver in the Wendy's drive-up lane. ... The dispatcher described the vehicle as a red pickup and gave its license plate number and location as second in line in the drive-up lane. The dispatcher also relayed the informant's statement that the driver "could barely hold his head up." Chase was about a mile away from Wendy's and arrived there in a matter of minutes. Chase saw an orange pickup coming out of the drive-up lane. The pickup pulled out of the Wendy's parking lot and drove east on Capitol. Chase followed the pickup as it drove north on the frontage road in front of Wendy's at about five to seven miles per hour, and then turned into the Wendy's parking lot and parked. Chase verified that the pickup's license number matched the number reported by the dispatcher, but did not notice anything unusual about the pickup's driving. Chase pulled in behind the pickup and turned on his warning flashers. He then conducted field sobriety tests on Miller and arrested him.

Miller was charged with driving or being in actual physical control of a motor vehicle [while intoxicated]. Miller moved to suppress the evidence gained as a result of the stop on the ground that Chase did not have a reasonable and articulable suspicion of a violation at the time of the stop. ... The trial court denied the motion, finding that the information available to Chase at the time of the stop was sufficient to support a reasonable and articulable suspicion. ... Miller pleaded guilty to the charge, reserving his right to appeal from the trial court's order denying his motion to suppress. The trial court sentenced Miller to a one-year term of imprisonment, which it suspended in part, and ordered him to pay a fine. Miller now appeals.

The dispositive issue on appeal is whether the trial court erred in finding that the facts were sufficient to support a reasonable and articulable suspicion. We resolve the issue by applying the analytical framework within to determine whether the tip is reliable enough to raise a reasonable suspicion without corroboration by the officer of suspicious behavior. ...

To make a legal investigative stop of a vehicle, an officer must have a reasonable and articulable suspicion that the motorist has violated or is violating the law. Information from a tip may provide the factual basis for a stop. In evaluating the factual basis for a stop, we consider the totality of the circumstances. This includes the quantity, or content, and quality, or degree of reliability, of the information available to the officer. Although the totality-of-the-circumstances approach makes categorization difficult, our cases involving reasonable suspicion arising from an informant's tip demonstrate the inverse relationship between quantity and quality, and may be analyzed generally according to the type of tip and, hence, its reliability. As a general rule, the lesser the quality or reliability of the tip, the greater the quantity of information required to raise a reasonable suspicion.

... The most reliable tip is the one relayed personally to the officer. ... At the low end of the reliability scale are tips from anonymous callers. In Wibben [413 N.W.2d 329 (N.D. 1987)] an anonymous caller reported an apparently sick or intoxicated person seated in a car with the engine running in an apartment complex parking lot. The investigating officer found a car in the parking lot matching the tip's description, except that its engine was not running. The officer saw that the driver "was just sitting behind the wheel" and made the stop. We held that the tip, combined with the officer's corroboration, "including the fact that Wibben continued to be visibly seated in the car," was sufficient to raise a reasonable suspicion. In State v. Thordarson (N.D. 1989), an anonymous caller reported that "down by Cenex there had been some motorcycles going back and forth and tearing around there." The officer drove to the Cenex station within a matter of seconds and saw two motorcycles speeding past the station. We concluded that the officer had a reasonable and articulable suspicion to stop Thordarson, one of the motorcyclists: "Although this officer started with a tip from an anonymous caller, the officer used his own senses to observe Thordarson violating the law by speeding." In Guthmiller [(N.D. 1993)] an anonymous caller reported "a DUI driver." The caller gave the general type, color, direction, and license number of the vehicle, but did not describe any erratic driving or suspicious behavior. The investigating officer saw the vehicle stop for an unusually long time at a stop sign, and the officer confirmed the information given in the tip before making the stop. We held that the combination of the tip and "Guthmiller's 'hesitation' at the stop sign," which we noted was a possible violation of [North Dakota law], was sufficient to raise a reasonable and articulable suspicion. In City of Minot v. Nelson (N.D. 1990), we held that an anonymous tip about a "suspicious" vehicle, without any indication of possible illegal activity from the informant or the officer's observations, was insufficient to raise a reasonable and articulable suspicion.

The Supreme Court addressed anonymous telephone tips in the reasonable-suspicion context in Alabama v. White, [(1990)]. In that case, an anonymous caller told police that "Vanessa White would be leaving 235-C Lynwood Terrace Apartments at a particular time in a brown Plymouth station wagon with the right taillight lens broken, that she would be going to Dobey's Motel, and that she would be in possession of about an ounce of cocaine inside a brown attache case." The officers stopped White after following her most of the way to Dobey's Motel. The Court evaluated the tip according to the quality-quantity analysis:

"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,' that must be taken into account when evaluating whether there is reasonable suspicion. Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable. The [Illinois v. Gates] Court applied its totality of the circumstances approach in this manner, taking into account the facts known to the officers from personal observation and giving the anonymous tip the weight it deserved in light of its indicia of reliability as established through independent police work. The same approach applies in the reasonable suspicion context, the only difference being the level of suspicion that must be established."

"We think it also important that, as in Gates, 'the anonymous [tip] contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted.' The fact that the officers found a car precisely matching the caller's description in front of the 235 building is an example of the former. Anyone could have 'predicted' that fact because it was a condition presumably existing at the time of the call. What was important was the caller's ability to predict respondent's future behavior, because it demonstrated inside information -- a special familiarity with respondent's affairs. The general public would have had no way of knowing that respondent would shortly leave the building, get in the described car, and drive the most direct route to Dobey's Motel. Because only a small number of people are generally privy to an individual's intinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual's illegal activities. When significant aspects of the caller's predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop."

Here, looking at the quality of the tip, an informant told the police about a possible drunk driver in a pickup, misdescribed the pickup's color, gave its location and license number and described the behavior of the driver. The quality of the tip determines the quantity of information, from the tip and the officer's corroboration, needed to raise a reasonable suspicion. The informant's single, inferential statement that the driver "could barely hold his head up" ... is akin to [a tip] that gave only some indication of possible criminal activity. [Such a tip] require[s] corroboration of suspicious conduct to meet the requirements of reasonable suspicion. Although Chase confirmed the location and license number of the pickup before making the stop, he did not notice any traffic violations, erratic driving, or anything that he thought was "real unusual." Chase's observations of innocent facts do not meet the requirement ... that there be corroboration of suspicious conduct when an anonymous tip, short on reliability, is also short on specifics. We believe that the combination of the anonymous tip and Chase's observations of innocent facts is insufficient to raise a reasonable and articulable suspicion. Accordingly, we find that the trial court's order denying Miller's motion to suppress is not supported by sufficient competent evidence.

Reversed.

MESCHKE, J., dissenting.

I respectfully dissent. In denying suppression, the trial court reasoned: At the suppression hearing testimony was received indicating that the police department had been called by a person at Wendy's after someone in the drive-up portion of the restaurant observed the defendant operating a pickup and appearing to be intoxicated. This information along with a description of the vehicle including license number was communicated to the dispatcher, who alerted Officer Chase. He, within a matter of minutes, approached the Wendy's location and observed what he believed to be the vehicle in question coming out of the drive-thru portion of the restaurant. He observed the vehicle exit Wendy's parking lot onto the service road and then turn into the driveway once again, where he approached the defendant and observed circumstances which led to the decision to make the arrest. The officer had observed no improper operation of the vehicle after he reached the area of Wendy's restaurant. The only information that he had regarding the likelihood that an offense had been committed was the information of an apparently alcohol impaired driver and a description of the vehicle as the same had been transmitted [from an anonymous caller].

The defense has a two-pronged approach in attacking the basis for the stop. First, it contends under cases decided by the Supreme Court the information available to the arresting officer was insufficient to allow him to have a reasonable, articulable suspicion of an offense.

... I agree with the Municipal Judge and conclude that, although sketchy, the composite of information that the officer had gave him reasonable cause to believe that he had the correct vehicle when he began watching the defendant's pickup, and further, that based on information radioed to him, could conclude that the vehicle contained an impaired driver. Although the truck had been identified as "red," it was in fact orange, a point the defense emphasized at the suppression hearing. The license plate number, however, had been communicated, and the I.D. of the vehicle was assisted as a result of that information. ...

QUESTIONS

1. When is suspicion reasonable? Are police barred from stopping any car when the only source of information is an anonymous report of erratic driving? What kinds of anonymous reports would be sufficient under Miller? Why not allow any identifying information to be a basis for a brief investigatory stop based on reasonable suspicion?
2. Adequate corrobation. Why is not the confirmation of a license plate and car description sufficient corroboration to justify a stop? What if the information was even more detailed including, for example, the clothes worn by the driver?
3. Reconsidering the right to drive. Does this case make you want to reconsider the law barring random stops of cars? Why should the state's agreement to license a person to drive not include the obligation of a driver to pull over when asked and answer a few questions? Would the case for a car stop, based on an anonymous report of erratic driving along with a description of a car's license plate, be stronger if the prosecutor showed a 30% annual increase in drunk driving deaths in the state? On the street where the sighting occured?