Appeal from Superior Court of: Okanogan County. Docket No: 94-2-00210-6. Date filed: 10/18/94. Judge signing: Hon. John G. Burchard Jr.
Petition for Review Denied October 7, 1997,
Authored by Dennis J. Sweeney. Concurring: John A. Schultheis. Dissenting: Frank L. Kurtz
The opinion of the court was delivered by: Sweeney
SWEENEY, C.J. Even absent the Fourth Amendment requirement of probable cause, police may briefly detain and question a citizen. See generally Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). They must have, however, "a well founded suspicion based on objective facts that he [[or she__ is connected to actual or potential criminal activity." State v. Sieler, 95 Wash. 2d 43, 46, 621 P.2d 1272 (1980); see State v. Glover, 116 Wash. 2d 509, 513-14, 806 P.2d 760 (1991). "An informant's tip cannot constitutionally provide police with such a suspicion unless it possesses sufficient 'indicia of reliability.'" Sieler, 95 Wash. 2d at 47.
Officer Clark Kraemer stopped Lynda Jones based on hand signals from a passing truck driver. He did not know the truck driver. A company name was printed, however, on the side of the truck. The question here is whether a company name on the side of a truck satisfies the "indicia of reliability" required of a citizen informant. Id. at 47-48. It does not. And we reverse.
On October 19, 1993, Officer Kraemer was parked on the side of a road. A driver of a passing truck indicated with hand signals that the car in front of him was weaving on the road. Officer Kraemer immediately pulled in behind the car and followed. The car did not weave or move erratically. Officer Kraemer stopped it anyway because it was approaching an intersection with pedestrian traffic. The driver of the car, Ms. Jones, agreed to perform field sobriety tests. She failed those tests. Officer Kraemer arrested Ms. Jones.
The State charged Ms. Jones with driving while intoxicated. Ms. Jones moved to dismiss the charge because the stop was improper. The district court denied her motion and convicted her of driving while intoxicated. The superior court affirmed. A commissioner of this court denied a motion for discretionary review. We granted Ms. Jones's motion to modify the commissioner's ruling. RAP 17.7.
"Indicia of reliability" requires: (1) knowledge that the source of the information is reliable, and (2) a sufficient factual basis for the informant's tip or corroboration by independent police observation. Sieler, 95 Wash. 2d at 47-49; Campbell v. Department of Licensing, 31 Wash. App. 833, 835, 644 P.2d 1219 (1982). While the requirement of establishing the reliability of a "citizen" informer has been relaxed, "some such showing is nonetheless necessary." State v. Chatmon, 9 Wash. App. 741, 746, 515 P.2d 530 (1973); State v. Riley, 34 Wash. App. 529, 533, 663 P.2d 145 (1983).
In Sieler, an unknown, but named, informant called a police dispatcher and said that he watched a possible drug transaction take place in a car in a high school parking lot. Sieler, 95 Wash. 2d at 44. The police did not corroborate the informant's tip, but conducted an investigatory stop anyway. The court held that the information was unreliable. "The reliability of an anonymous telephone informant is not significantly different from the reliability of a named but unknown telephone informant." Id. at 48.
The only basis for establishing the reliability of the informant here was a company name on the side of the truck. A name written on the side of a truck, without more, is not qualitatively different from an anonymous but named telephone caller. To establish the reliability of the source, more information is required. See generally State v. Garcia, 125 Wash. 2d 239, 241-43, 883 P.2d 1369 (1994) (finding reliability of informant because the citizen was known by officers and had previously given information resulting in an arrest); State v. Wakeley, 29 Wash. App. 238, 241, 628 P.2d 835 (finding reliability of informant because informant provided name, address, telephone number and other background information), review denied, 95 Wash. 2d 1032 (1981); Riley, 34 Wash. App. at 534 (reliability of named informant not established without additional information).
The State relies on State v. Anderson, 51 Wash. App. 775, 755 P.2d 191 (1988). Its reliance is misplaced. There the defendant did not challenge the reliability of the source. She challenged instead the factual basis for the tip. Id. at 777. This court, in Anderson, acknowledged that the tip came from a juvenile probation and parole officer known to the arresting trooper: "the report came from an identified citizen informant, [[and__ Trooper Lothrop properly concluded the source of his information was reliable." Id. at 778. In contrast, the informant here was not known to the arresting officer nor was the tip corroborated. Sieler, 95 Wash. 2d at 48-49.
The Dissent relies on two Washington cases; neither are applicable here. In State v. Lesnick, 84 Wash. 2d 940, 530 P.2d 243 (1975), the State appealed a Court of Appeals decision reversing the trial court's refusal to suppress evidence of gambling devices. The Supreme Court affirmed the ...