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Filed 11/16/07 Jackson v. Valverde CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
GREGORY L. JACKSON,
Plaintiff and Appellant,
GEORGE VALVERDE, as Director, etc.,
Defendant and Respondent.
(Super. Ct. No. S-1500-CV-258090)
APPEAL from a judgment of the Superior Court of Kern County. Arthur E. Wallace, Judge.
Advocate Legal Services, Law Offices of Ronald A. Jackson, and Ronald A. Jackson for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Jacob A. Appelsmith, Assistant Attorney General, Celine M. Cooper and Ivan H. Torres, Deputy Attorneys General, for Defendant and Respondent.
Appellant Gregory Jackson was arrested for driving under the influence after the Bakersfield Police Department received an anonymous call that he was intoxicated and about to drive away from a restaurant. As he pulled out of the restaurant’s parking lot, an officer conducted a traffic stop, appellant emerged from the car, he displayed obvious signs of intoxication, and he was arrested. The Breathalyzer tests subsequently revealed blood-alcohol levels of .16 and .18 percent. He had prior convictions for driving under the influence and the Department of Motor Vehicles (DMV) had previously suspended his license. Appellant requested an administrative hearing and argued the arresting officer lacked reasonable suspicion to conduct the traffic stop which led to his arrest because it was based on an anonymous telephone call, and the officer’s observations and the Breathalyzer results should be suppressed. The hearing officer rejected appellant’s arguments and affirmed the suspension. Appellant filed a petition for writ of mandate in the Superior Court of Kern County, and challenged all aspects of the incident which led to his arrest, particularly the arresting officer’s reliance on the anonymous tip. The court denied his petition. Thereafter, appellant filed the instant appeal and again argues the arresting officer improperly conducted the traffic stop and his petition should have been granted. We will affirm.
FACTUAL AND PROCEDURAL HISTORY
The following facts of the incident are taken from the testimony and exhibits introduced at the administrative hearing.
At 3:11 p.m. on November 25, 2005, the Bakersfield Police Department’s Communications Center received a telephone call from a man who did not identify himself, but who described a situation at the Pizzaville Restaurant on Oak Street. According to the tape-recording of the call, the caller stated his friend was at the restaurant, and “he’s already got three DUI’s again and he’s getting ready to drive again.” The caller said his friend was driving a silver Mercedes Benz with dealer plates, the vehicle was parked in the handicapped parking space at the restaurant, and “he’s getting ready to leave in about 10, 10 minutes.” The caller identified his friend as appellant Gregory Jackson, a White male about 39 or 40 years old, who was an attorney. The caller said appellant was inside the restaurant, he was drinking, and he was going to leave in about 10 minutes. The caller gave the license plate number of the silver Mercedes. “[H]e’s trying to drive me and that’s why I don’t want him to drive at all.” The dispatcher said someone would be sent out.
At approximately 3:13 p.m., a dispatch went out about the call at the Pizzaville Restaurant. At 3:18 p.m., Officer Eric Schimon, who was on motorcycle patrol, responded to the restaurant.
Officer Schimon testified he was dispatched to the restaurant “regarding a subject who was possibly driving under the influence and currently passed out behind the wheel of a grey Mercedes Benz parked in front of the business.” Officer Schimon arrived at the restaurant and saw a grey Mercedes Benz parked in a handicapped space. Schimon parked his police motorcycle “behind and beside” the Mercedes. Schimon immediately examined the vehicle and determined no one was in the car.
Officer Schimon testified that as he looked at the Mercedes, an individual contacted him in the parking lot. This individual said he was the person who called the police department, and “he knew the driver of the vehicle who had driven the vehicle to that location.” This person identified appellant by name as the driver. This person said appellant was drinking alcohol in the restaurant, but Schimon could not remember whether the person identified the precise type of alcohol appellant was drinking.
In his report about the incident, Officer Schimon wrote that when he arrived at the restaurant, he was contacted by “subjects who did not wish to be identified for report purposes,” who stated “they were present when the vehicle arrived” at the restaurant. “They further stated they knew the person driving the vehicle as Gregory Jackson and they observed him enter the business and believed he was driving under the influence.”
At the hearing, Officer Schimon testified that while this person admitted calling the police department, this person did not want to be identified or contacted as a witness, and asked Schimon not to include any identifying information about him in the police report. Schimon did not identify this person in either his report or his hearing testimony. Schimon testified he asked this person where he had seen someone passed out behind the steering wheel, but this exchange was not included in his report about the incident, because “he didn’t want to be identified and if I was to reflect that information that would identify him.” Schimon did not include any identifying information about this person in his report because the person “asked not to.”
Officer Schimon testified he was in the restaurant’s parking lot for about three or four minutes, examining the Mercedes and speaking with the anonymous subject, and he did not attempt to enter the restaurant to contact appellant. Instead, he decided to move his police motorcycle to another area since appellant was not outside, and his motorcycle was blocking parking stalls. As he was moving his motorcycle, appellant and another person apparently walked out of the restaurant. Schimon testified he did not see appellant actually walk out of the restaurant because he was moving his motorcycle and was about 150 feet away, but he saw appellant get into the driver’s side of the Mercedes. Schimon testified the Mercedes backed out of the parking stall, and the vehicle shifted into drive and began to pull forward.
Officer Schimon testified he did not observe appellant display any unusual conduct when he got in the Mercedes, and the driver did not violate any traffic rules as he backed out of the parking space and headed out of the parking lot. Nevertheless, Schimon immediately activated the siren and signal lights on his police motorcycle and conducted a traffic stop of the Mercedes while it was still in the restaurant’s parking lot. Schimon testified he conducted the traffic stop as a “welfare check” based on the information he already had that the driver of the Mercedes was intoxicated, because he wanted to make sure the driver “did not make it onto the roadway.” “Based upon what the witness had told me as well as the dispatch call I felt that I must check his sobriety, confirm that he’s safely traveling on the roadway.”
Officer Schimon testified that when he conducted the traffic stop, appellant immediately got out of the driver’s side of the Mercedes and began walking back towards Schimon’s motorcycle. Schimon testified appellant was “staggering and using the Mercedes Benz as kind of a brace as he walked back. A[s] he got closer to me I could see that he had bloodshot and watery eyes and slow—his speech was very slow and slurred. As I even got closer into contact with him I could smell the odor of alcohol emitting from his breath.”
Officer Schimon testified he asked appellant if he could perform field sobriety tests. Appellant refused and said he was not required to. Schimon spoke to appellant for several moments and determined he would not perform any field sobriety tests. Schimon advised appellant that he had to take the field sobriety screening test, and appellant again refused.
Officer Schimon testified that he believed appellant was driving under the influence based on appellant’s slurred speech, bloodshot and watery eyes, his unstable walk, and the odor of alcohol from him. Schimon arrested appellant for driving under the influence, in violation of Vehicle Code section 23152, subdivision (a), and advised appellant of the reason he was being arrested. Appellant said he had one drink. Schimon impounded appellant’s car and requested a backup squad car to transport appellant to the police department. Schimon testified he observed appellant for about 15 minutes at the scene until he was transported by the backup unit.
Officer Schimon testified it took about five minutes to travel from the restaurant to the police department. Schimon met appellant at the department, completed some paperwork, and then asked appellant to perform a breath test on the Breathalyzer machine. Schimon testified he observed appellant for about 10 to 15 minutes before he conducted the Breathalyzer test. Schimon testified the blood-alcohol readings were .16 percent, .18 percent, and .16 percent. Schimon explained that when the machine records a difference of .02 or more between two tests, a third sample is required to confirm the blood-alcohol level.
Officer Schimon advised appellant of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436, and appellant refused to waive his rights. Appellant was charged with driving under the influence of alcohol (§ 23152, subd. (a)) and driving with a blood/alcohol level of .08 percent or greater (§ 23152, subd. (b)). Appellant’s driver’s license was suspended, and he was issued a temporary driver’s license.
The Administrative Hearing
The instant record is silent as to the resolution of the criminal charges. However, appellant requested an administrative hearing before the DMV as to the suspension of his driver’s license. On December 30, 2005, DMV stayed suspension of appellant’s driver’s license pending the administrative hearing.
On March 22, 2006, the DMV administrative hearing was held before Jesse Salazar, the hearing officer. Officer Schimon testified as set forth ante. Appellant was represented by counsel but did not personally appear or offer his own evidence. Appellant argued Officer Schimon conducted an illegal traffic stop because he improperly relied on an anonymous tip that the person connected with the Mercedes Benz was driving while intoxicated, the statements were from an individual who refused to be identified, and the anonymous source was not reliable and could not support a reasonable suspicion of criminal activity to justify a traffic stop.
On April 10, 2006, the DMV’s hearing officer issued the ruling and found Officer Schimon had reasonable cause to conduct the traffic stop and appellant was lawfully arrested. The hearing officer addressed appellant’s attack upon the reliability of the anonymous individual who called the police department and later spoke to Officer Schimon at the restaurant.
“ … Based on the evidence, I found that there was sufficient probable cause for the Officer to investigate [appellant] for possible DUI and that a lawful arrest did occur. The Officer testified that he was on the look out for the driver in question and saw [appellant] driving. The Officer also stated that he stopped [appellant] for safety. Subsequently, during his investigation, he found [appellant] to be under the influence of alcohol and the arrest was lawful. The Breath Test result supports [appellant’s] intoxication.
“The Officer had reasonable cause to believe that [appellant] was driving while under the influence of alcohol based on the information he received from the informant. Regardless that the informant did not wish to be identified; based on the audio tape, he knew [appellant] and was concerned for his safety and that of other motorists enough to call the police. The Officer conducted a legitimate welfare check and the arrest was lawful under 40300.5 VC, even though the Officer did not specifically articulate this. However, he stopped [appellant] for ‘traffic safety.’ I find that the Officer would have been derelict in his duty and liable if he would not have stopped [appellant] and he later caused a traffic accident….”
The hearing officer found the charges against appellant were supported by a preponderance of the evidence, that Schimon had reasonable cause to believe appellant was driving while under the influence, he was placed under lawful arrest, and he was driving while he had .08 percent or more by weight of alcohol in his blood. The hearing officer lifted the stay and reimposed the suspension of appellant’s driver’s license, with the suspension effective April 19, 2006, and to remain in effect through April 18, 2007.
On May 8, 2006, appellant filed a petition for writ of administrative mandamus in the Superior Court of Kern County pursuant to Code of Civil Procedure section 1094.5. Appellant challenged the reliability of the anonymous individual who called the police department, and Officer Schimon’s claim that he received a dispatch about an individual passed out behind the wheel of a car. Appellant noted the tape-recording of the anonymous call did not contain any such information, and Schimon lacked any basis to conduct the traffic stop because he did not observe any traffic violations as the Mercedes Benz headed out of the parking lot.
On May 9, 2006, the court issued an alternative writ of mandate and order to show cause, and stayed the suspension of appellant’s license pending a hearing on his writ petition.
On July 24, 2006, respondent, the Director of the DMV, filed opposition to appellant’s petition, and argued the hearing evidence supported the suspension of appellant’s driving privileges, and Officer Schimon properly relied upon the anonymous person’s information that the driver of the Mercedes was intoxicated. Respondent noted the individual was not truly anonymous because he contacted Schimon at the scene and identified himself as the person who called the police department. Moreover, that person gave details about appellant’s condition, that he apparently arrived and passed out over the steering wheel, he was intoxicated, he was drinking alcohol inside the restaurant, and he intended to drive away in his car. Respondent argued these details rendered the informant reliable, and Schimon properly relied upon this person’s information when he conducted the traffic stop of the grey Mercedes.
On August 21, 2006, appellant filed a reply to the opposition, and again asserted the anonymous caller’s information was not reliable, and the officer lacked reasonable suspicion to conduct the traffic stop because he did not observe any conduct to lead him to believe appellant was intoxicated. Appellant also argued Officer Schimon did not offer truthful testimony because of discrepancies between his hearing testimony and his report about the incident. Appellant asserted there was no reason for the police department to dispatch any officer to the restaurant because the anonymous caller failed to provide any useful information that any criminal activity had or was about to occur.
The Court’s Hearing
On August 23, 2006, the court conducted the hearing on appellant’s petition for administrative mandamus. Appellant conceded the matter was controlled by People v. Wells (2006) 38 Cal.4th 1078 (Wells), which had just been decided in June 2006, and addressed the reasonableness of an officer’s reliance upon an anonymous tip to conduct a traffic stop. Appellant argued Wells was distinguishable from the instant case because Officer Schimon gave conflicting testimony as to the exact information he received in the dispatch—whether the driver was passed out in the Mercedes Benz, or simply that someone at the restaurant might have been drinking—both of which differed from the information provided by the anonymous caller to the police department. Appellant argued that the information provided by the anonymous informant at the scene—that someone was drinking inside the restaurant—was insufficient to support a traffic stop under Wells because it was not specific and Officer Schimon did not observe any inappropriate conduct as appellant left the restaurant, entered the car, and backed out of the parking space.
Respondent replied Officer Schimon’s hearing testimony was not inconsistent, and he explained the omissions from his report were because such information would have disclosed the identity of the individual at the restaurant, and that person requested to remain anonymous. Respondent argued that individual’s statements in the restaurant’s parking lot provided reasonable suspicion that appellant was intoxicated, and appellant entered his vehicle and attempted to drive away. Moreover, the source in this case was not an anonymous tipster because the individual contacted Officer Schimon in the restaurant’s parking lot, confirmed he called the police, and described appellant’s condition. The information in the original dispatch was also confirmed because Schimon found a grey Mercedes Benz parked in the handicapped space in front of the restaurant.
The Court’s Ruling
On August 28, 2006, the court denied appellant’s petition for writ of mandate. The court acknowledged that Officer Schimon might have performed a less intrusive means of checking on appellant’s welfare by directly contacting him to determine if he was intoxicated but he did not have the chance.
“… Unfortunately, there was no opportunity to take this course of action. Officer S[c]himon testified he was in the process of parking his motorcycle approximately a hundred and fifty feet away from the silver Mercedes when he observed [appellant] and an unidentified person getting into the silver Mercedes preparing to leave the area. The only reasonable course of action at that point was to remount his motorcycle, which he did, and intercept and stop [appellant’s] vehicle before he entered the public roadway.”
The court relied on Wells and found “a high degree of reliability of the tipster’s information.”
“… The vehicle type, color, location, and license plate number were all confirmed by the officer on his arrival at the location. The in-person contact with the tipster and reconfirmation of the information from the tipster regarding [appellant’s] consumption of alcohol adds to that reliability.
“Finally, the level of intrusion of the personal privacy and inconvenience to [appellant] in the traffic stop is further minimized by the fact that [appellant] immediately got out of the vehicle and voluntarily approached the officer when the stop was initiated.
“Thus, and considering all the circumstances of this case and the risk to [appellant] and the public which potentially could result from allowing him to proceed on his way clearly justified the minimal intrusion of a brief investigatory traffic stop that was initiated by Officer Simon [sic].”
On October 16, 2006, the judgment was filed. On October 27, 2006, the notice of entry of judgment was filed. On December 7, 2006, appellant filed a timely notice of appeal of the court’s denial of his petition for writ of administrative mandamus.
THE STANDARD OF REVIEW
We begin with the well-settled standard of review in this case. “Under administrative per se laws, ‘when a person is arrested for driving under the influence and is determined to have a prohibited blood-alcohol level, the arresting officer or the DMV serves the person with a “notice of the order of suspension.” [Citations.] The notice informs the person that his or her driver’s license will be suspended  days from the date of service, states the reason and statutory grounds for the suspension, and explains the person’s right to seek an administrative hearing. [Citations.] If the arresting officer serves the notice, the officer also confiscates the person’s driver’s license and issues a [30-day] temporary license. [Citations.]’ [Citation.]” (Lake v. Reed (1997) 16 Cal.4th 448, 455, fns. omitted (Lake).)
“After either the arresting officer or the DMV serves a person with a ‘notice of an order of suspension or revocation of the person’s [driver’s license],’ the DMV automatically reviews the merits of the suspension or revocation. [Citation.] The standard of review is preponderance of the evidence [citation], and the department bears the burden of proof [citations]. For drivers 21 years of age and older, the sole issues are whether: ‘(A) ... the peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of Section ... 23152 or 23153. [¶] (B) ... the person was placed under arrest .... [and] [¶] (C) ... the person was driving ... [¶] [w]hen the person had 0.08 percent or more, by weight, of alcohol in his or her blood.’ [Citation.]” (Lake, supra, 16 Cal.4th at pp. 455-456, fn. omitted.)
“The DMV is required to make its determination prior to ‘the effective date of the suspension or revocation’ [citation], although the department may dispense with such automatic review if the driver requests a hearing [citation]. The determination of facts by the DMV in its automatic internal administrative review has no collateral estoppel effect in a subsequent criminal proceeding. [Citations.]” (Lake, supra, 16 Cal.4th at p. 456.)
“A driver served with a DMV suspension notice is entitled to a hearing on request. [Citations.] The administrative hearing is held before either the director of the DMV, a hearing board or, more usually, a department hearing officer [citation]. ‘The only issues at the hearing on an order of suspension pursuant to Section 13353.2 shall be those facts listed in paragraph (2) of subdivision (b) of Section 13557’ [citation], that is, whether the arresting officer had reasonable cause to believe the person was driving, the driver was arrested, and the person was driving with .08 percent BAC or higher.” (Lake, supra, 16 Cal.4th at p. 456.)
“If the hearing officer finds the evidence proves these three statutory prerequisites by a preponderance of the evidence, the driver’s license to operate a motor vehicle will, with exceptions not relevant here, be suspended for four months if the driver had a clean driving record [citation]. For persons with a prior drunk driving conviction (or a conviction for driving with a prohibited BAC) within the previous seven years, ‘the person’s privilege to operate a motor vehicle shall be suspended for one year.’ [Citation.]” (Lake, supra, 16 Cal.4th at p. 456.)
“In ruling on an application for a writ of mandate following an order of suspension or revocation, a trial court is required to determine, based on its independent judgment, ‘“whether the weight of the evidence supported the administrative decision.”’ [Citations.] Here . . . the trial court denied the writ. On appeal, we ‘need only review the record to determine whether the trial court’s findings are supported by substantial evidence.’ [Citation.] ‘“We must resolve all evidentiary conflicts and draw all legitimate and reasonable inferences in favor of the trial court’s decision. [Citations.] Where the evidence supports more than one inference, we may not substitute our deductions for the trial court’s. [Citation.] We may overturn the trial court’s factual findings only if the evidence before the trial court is insufficient as a matter of law to sustain those findings. [Citation.]”’ [Citations.]” (Lake, supra, 16 Cal.4th at pp. 456-457.)
REASONABLE SUSPICION AND ANONYMOUS TIPS
As in his administrative appeal and writ petition, appellant again contends Officer Schimon lacked reasonable cause to conduct the traffic stop of the Mercedes Benz because he only had information from an anonymous informant, that information was not specific, he did not observe appellant engage in any activity indicating he was intoxicated or driving unsafely prior to conducting the traffic stop, and thus the traffic stop was unlawful.
“[A]n officer may stop and detain a motorist on reasonable suspicion that the driver has violated the law. [Citations.] The guiding principle in determining the propriety of an investigatory detention is ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ [Citations.] In making our determination, we examine ‘the totality of the circumstances’ in each case. [Citations.]” (Wells, supra, 38 Cal.4th at pp. 1082-1083.)
“Reasonable suspicion is a lesser standard than probable cause, and can arise from less reliable information than required for probable cause, including an anonymous tip. [Citation.] But to be reasonable, the officer’s suspicion must be supported by some specific, articulable facts that are ‘reasonably “consistent with criminal activity.”’ [Citation.] The officer’s subjective suspicion must be objectively reasonable, and ‘an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. [Citation.]’ [Citation.] But where a reasonable suspicion of criminal activity exists, ‘the public rightfully expects a police officer to inquire into such circumstances “in the proper exercise of the officer’s duties.” [Citation.]’ [Citation.]” (Wells, supra, 38 Cal.4th at p. 1083.)
A series of cases have addressed whether information from an anonymous source establishes reasonable suspicion. In Alabama v. White (1990) 496 U.S. 325 (White), the police received an anonymous tip that a woman was carrying cocaine in an attaché case and would be leaving an apartment building at a specific time, get into a car matching a specific description, and drive to a specific motel. Acting on the tip, the police conducted surveillance and observed the woman proceed as predicted. She was then stopped, searched and cocaine was found in an attaché case in her vehicle. (Id. at p. 327.) White held the tip alone did not justify the stop, but the tip coupled with observations of the defendant’s movements in accordance with the tipster’s predictions made it reasonable to think the tipster had inside information about the suspect and therefore credit his assertion about illegal activity. (Id. at pp. 330-332.)
“We think it also important that . . . ‘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.’ [Citation.] 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 itinerary, 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. [Citation.] 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. [¶] Although it is a close case, we conclude that under the totality of the circumstances the anonymous tip, as corroborated, exhibited sufficient indicia of reliability to justify the investigatory stop of respondent’s car.” (White, supra, 496 U.S. at p. 332.)
In Florida v. J.L. (2000) 529 U.S. 266 (J.L.), an anonymous caller reported that a young black male standing at a bus stop and wearing a plaid shirt was carrying a gun. Sometime thereafter, officers arrived at the bus stop and observed three black males “‘just hanging out [there].’” (Id. at p. 268.) One of the three, the defendant, was wearing a plaid shirt. The officers did not see a firearm and the defendant made no threatening or otherwise unusual movements. One of the officers approached the defendant, frisked him, and discovered a gun. (Ibid.)
J.L. held the information received by the police was insufficient to justify the stop and frisk. According to the court, “[t]he tip in the instant case lacked the moderate indicia of reliability present in White and essential to the Court’s decision in that case. The anonymous call concerning [the defendant] provided no predictive information and therefore left the police without means to test the informant’s knowledge or credibility.” (J.L., supra, 529 U.S. at p. 271.) The court rejected the state’s argument that reliability could be based on the tipster’s description of the physical characteristics of the defendant, i.e., a black male wearing a plaid shirt at a bus stop. The court explained: “An accurate description of a subject’s readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. 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. [Citation.]” (J.L., supra, 529 U.S. at p. 272.) Finally, the court rejected adoption of a firearm exception based on the danger presented. Such an exception, the court explained, “would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target’s unlawful carriage of a gun.” (Ibid.)
In People v. Jordan (2004) 121 Cal.App.4th 544 (Jordan), the police received an anonymous telephone tip about a man in a park carrying a concealed handgun and threatening to shoot people. The man was described as Black, light-skinned, with a bald head, wearing a black jacket, white shirt, and red boots. The caller indicated the man was carrying the gun in his right jacket pocket. A police officer arrived at the park and observed the defendant, who matched the description, sitting on a park bench. The officer could not see a gun bulge in the defendant’s clothing and the defendant did not appear to be engaging in any illegal activity. After observing the defendant for a while, the officer directed him over and conducted a search. He discovered a handgun in the defendant’s jacket pocket. (Id. at pp. 548-551.)
Jordan held there was only one factor that distinguished this matter from J.L.--the fact that the anonymous tip was recorded. This factor detracted from any possibility that the call was an after-the-fact police fabrication. (Jordan, supra, 121 Cal.App.4th at p. 562.) However, the court concluded this factual distinction was insufficient to warrant a different result. (Ibid.) At the time of the stop, the police had received no information predicting the defendant’s activities, as in White, and no information, other than the informant’s bare assertion, that the defendant was engaged in criminal activity. (Id. at p. 559.)
In reaching its decision, Jordan did not consider the fact that the informant had told the 911 operator the defendant was threatening people with the gun. This information had not been relayed to the police who conducted the stop, and the People did not argue that such information should be imputed to the officers. (Jordan, supra, 121 Cal.App.4th at pp. 549-550, 560, fn. 8.) The court also did not consider whether the result would be different if the anonymous call could be traced if, for example, it had been made from a home phone. No information about the possibility of tracing had been presented at the suppression hearing. (Id. at pp. 561-562.)
In Lowry v. Gutierrez (2005) 129 Cal.App.4th 926 (Lowry), the police received an anonymous cell phone tip that a specific vehicle was being driven the wrong way on a city street and turned into oncoming traffic. An officer was dispatched to the area, located a vehicle which matched the caller’s description, did not observe any erratic driving, but conducted a traffic stop. The officer contacted the driver and smelled alcohol on his breath and clothes, his eyes were red and watery, and his speech was slow and deliberate. The driver admitted he had consumed two beers, failed a field sobriety test, and his blood-alcohol level was .10 percent. The driver was arrested, his license was suspended, and he challenged the suspension at an administrative hearing. The driver argued the officer lacked reasonable suspicion based upon an anonymous tip. The DMV upheld the suspension, but the trial court granted the driver’s petition for writ of mandate and found the officer lacked reasonable cause. (Id. at pp. 929-932.)
Lowry reversed the trial court’s order and held that an immediate investigatory story was appropriate under the exigent circumstances of the case. The court cited statistics from the California Highway Patrol which demonstrated the grave public safety hazard posed by drunken drivers. (Lowry, supra, 129 Cal.App.4th at pp. 940-942.) Lowry found the tip was reliable “because the caller gave the dispatcher the driver’s gender, a description of the vehicle, its license number and approximate location. This information was sufficient to allow the officer who spotted the vehicle five minutes later to make sure he was stopping the right vehicle.” (Id. at p. 941, fn. omitted.) Moreover, “the caller gave precise descriptions of the driver’s actions--wrong-way driving and making a left turn in front of oncoming traffic. The caller also named the streets on which these traffic violations occurred. This information demonstrated the caller had been an eyewitness to the accused’s reckless and dangerous driving.” (Ibid.)
In Wells, an anonymous caller reported a 1980’s-model blue van traveling northbound on Highway 99 north of Bakersfield and weaving all over the roadway. Two or three minutes after receiving the dispatch report, a California Highway Patrol officer spotted a blue van traveling northbound on Highway 99, activated his patrol car lights, and stopped the van to investigate whether the driver was impaired. The officer had seen nothing to indicate the motorist was intoxicated but, after conducting an investigation at the scene, arrested the motorist for driving under the influence. (Wells, supra, 38 Cal.4th at pp. 1081, 1083.)
Wells found the detention was lawful and observed that “a citizen’s tip may itself create a reasonable suspicion sufficient to justify a temporary vehicle stop or detention, especially if the circumstances are deemed exigent by reason of possible reckless driving or similar threats to public safety.” (Wells, supra, 38 Cal.4th at p. 1083.) Wells distinguished the situation from the facts in J.L., and noted that J.L. acknowledged the possibility that exigent circumstances, such as a report of someone carrying a bomb, “despite the inability to corroborate the informant’s reliability.” (Id. at p. 1084.) After balancing the public interest in safety and the individual’s right to personal security free from arbitrary interference by law enforcement officers, Wells determined the relative urgency presented by drunk or erratic drivers could justify an investigatory detention based on an anonymous tip despite the absence of corroborating evidence of illegal activity. A tip’s reliability need not depend exclusively on its ability to predict the suspect’s future behavior, as in White, or the officer’s ability to corroborate present illegal activity. Instead, the tip’s reliability depends upon an assessment of “the totality of the circumstances in a given case.” (Wells, supra, 38 Cal.4th at p. 1088; accord, U.S. v. Perkins (4th Cir. 2004) 363 F.3d 317, 325 [“A rigid rule demanding the presence of predictive information is thus unjustified by White and J. L., and it would be wholly inconsistent with the flexible nature of reasonable suspicion analysis”].)
Accordingly, Wells relied on the totality of the circumstances in distinguishing J.L. “[A] report of a possibly intoxicated highway driver, ‘weaving all over the roadway,’ poses a far more grave and immediate risk to the public than a report of mere passive gun possession. Police officers undoubtedly would be severely criticized for failing to stop and investigate a reported drunk driver if an accident subsequently occurred. ... [W]here a reasonable suspicion of criminal activity exists, ‘the public rightfully expects a police officer to inquire into such circumstances ....’ [Citation.]” (Wells, supra, 38 Cal.4th at p. 1087.)
Wells next found that “doubts regarding the tipster’s reliability and sincerity are significantly reduced in the setting of a phoned-in report regarding a contemporaneous event of reckless driving presumably viewed by the caller. Instances of harassment presumably would be quite rare.” (Wells, supra, 38 Cal.4th at p. 1087.) Indeed, “the relatively precise and accurate description given by the tipster in the present case regarding the vehicle type, color, location, and direction of travel, all confirmed by the investigating officer within minutes of receiving the report, enhanced the reliability of the tip.” (Id. at p. 1088.) “The investigating officer’s inability to detect any erratic driving on defendant’s part is not significant. Motorists who see a patrol car may be able to exercise increased caution. Additionally, the officer in this case stopped defendant’s van immediately after spotting it.” (Ibid.) Based on that level of detail and the officer’s ability to corroborate it, the court inferred that the observation of reckless driving must have come from a passing motorist. (Ibid.) “Where else would it have come from?” (Ibid.) In light of the tip’s detailed and contemporaneous description, the officer’s ability promptly to corroborate its innocent details, and the danger posed by a motorist under the influence, Wells was “convinced that the officer’s traffic stop was justified by reasonable suspicion of criminal activity.” (Ibid.)
In People v. Dolly (2007) 40 Cal.4th 458 (Dolly), the police received an anonymous telephone call that a light-skinned African-American male had “‘just pulled a gun’” on the caller and mentioned a gang name. The caller said the man had a bandage over his left hand as if the hand had been broken and was sitting in the driver’s seat of a gray Nissan Maxima parked at a particular location near a recycling center. The tipster called again two minutes later and said he had just driven by the Nissan and determined it was black rather than gray. (Id. at p. 462.) At about the time of the second call, officers received a dispatch about a light-skinned, African-American male with a cast on his arm in a gray Nissan Maxima, in the location indicated by the informant, who had threatened a 911 caller with a gun. The officers arrived on the scene and saw a black Maxima with three people inside. The defendant was sitting in the driver’s seat, matched the description, and had a cast on his arm. The officers ordered the defendant out of the car and conducted a search. They found a loaded .38-caliber revolver under the car’s front passenger seat. (Dolly, supra, 40 Cal.4th at p. 462.)
Dolly held that, under the totality of the circumstances, the detention stop did not violate the defendant’s Fourth Amendment rights. Among those circumstances was the “grave and immediate risk” posed to the caller and anyone nearby, by the act of pointing a revolver at the caller. (Dolly, supra, 40 Cal.4th at p. 465.) “‘[A]llegations of the threatening use of a weapon, made by [a] person claiming to be an eyewitness to the threats, required immediate police action’ and ‘is materially distinguishable from the anonymous tip at issue in Florida v. J.L.,’ which involved only an allegation of a concealed weapon.” (Ibid.)
Dolly was also persuaded by the fact the anonymous tip involved a contemporaneous threat rather than past activity. (Dolly, supra, 40 Cal.4th at p. 467.) According to the court, “[t]he police ‘may ascribe greater reliability to a tip, even an anonymous one, where an informant “was reporting what he had observed moments ago,” not stale or second-hand information.’” (Id. at p. 468, quoting from U.S. v. Terry-Crespo (9th Cir. 2004) 356 F.3d 1170, 1177.) The tipster also provided an accurate and detailed description of the perpetrator and his location, which was confirmed minutes later by the police. (Dolly, supra, 40 Cal.4th at p. 468.)
“‘[T]here are situations in which an anonymous tip, suitably corroborated, exhibits “sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.”’ [Citation.] As the high court has explained, however, the tip must be ‘reliable in its assertion of illegality, not just in its tendency to identify a determinate person.’ [Citation.] In this case, the 911 call was a firsthand report of violent criminal conduct requiring an immediate response to protect public safety. The call was recorded, eliminating the possibility of after-the-fact police fabrication and allowing after-the-fact review (albeit limited) of the caller’s sincerity. The report was fresh, detailed, and accurate, and its description of defendant and his location was corroborated by the police within minutes. Under the totality of the circumstances, we find there was sufficient indicia that the 911 caller was able to see the criminal conduct he was reporting, that he was reporting it truthfully and accurately, and thus that the tip was sufficiently reliable to justify the limited intervention of an investigatory detention, which led to discovery of the loaded revolver.” (Dolly, supra, 40 Cal.4th at pp. 470-471.)
Finally, Dolly noted the caller supplied a plausible explanation for wanting to remain anonymous because the defendant had uttered a gang name, he was worried that “‘I don’t have anyone to defend me from all this gang shit,’” and explained that “‘if they find out I’m snitching, they’re going to kill me around here.’” (Dolly, supra, 40 Cal.4th at p. 469.) “That the tipster ‘may be understandably reticent to give identifying information for fear of retaliation or danger’ reduces the significance of his anonymity in analyzing the reliability of his report. [Citation.]” (Ibid.; see also People v. Rivera (2007) 41 Cal.4th 304, 308 [police not required to corroborate anonymous tip before seeking consent to enter and search a residence; “[e]ven if acting on an anonymous, uncorroborated tip, police may knock on the door of a residence, speak with the occupant, and request permission to enter and search”].)
As an initial matter, appellant complains that all of Officer Schimon’s information was provided by an individual who insisted on remaining anonymous, and argues that reasonable cause for an investigatory detention cannot be provided by anonymous informants. As explained in Wells, Dolly, and Lowry, however, it is not unreasonable for law enforcement officers to rely on anonymous tips depending on the nature and circumstances of the case. Wells held the relative urgency presented by drunk or erratic drivers could justify an investigatory detention, based on a contemporaneous anonymous tip, despite the absence of corroborating evidence of illegal activity. A tip’s reliability need not depend exclusively on its ability to predict the suspect’s future behavior, as in White, or the officer’s ability to corroborate present illegal activity. Instead, the tip’s reliability depends upon an assessment of “the totality of the circumstances in a given case.” (Wells, supra, 38 Cal.4th at p. 1088.)
In the instant case, the officer conducted a lawful traffic stop based on Dolly and Wells. First, the anonymous caller to the communications center provided specific details that appellant was drunk and about to drive away from the Pizzaville Restaurant. The caller identified appellant by name and gave the description, license plate, and parking location of appellant’s Mercedes Benz. The call was made at 3:11 p.m.; Officer Schimon responded to the dispatch at 3:18 p.m. Upon arriving at the restaurant, Officer Schimon found that exact vehicle parked in the exact location described by the caller. Officer Schimon was immediately contacted by an individual who identified himself as the anonymous caller, who again identified the driver by name, and provided further details about appellant—he was drinking alcohol in the restaurant, he was intoxicated, and he was about to drive away. Officer Schimon testified that as he paused to move his patrol motorcycle out of the parking stalls, appellant and another person emerged from the restaurant, appellant entered the driver’s side of the Mercedes, backed out of the parking space, and started to drive away. Schimon did not observe any traffic violations but immediately conducted the traffic stop based upon the information he already received—that appellant had been drinking alcohol, he was drunk, and he was determined to drive. Officer Schimon’s decision to conduct the traffic stop to check on the driver’s welfare was lawful under the exigent circumstances of this case
In contrast to Wells, we need not infer that the anonymous call was made by an eyewitness with personal knowledge, since that individual approached Officer Schimon, identified himself as the caller, and provided additional details about appellant’s alcohol consumption and intent to drive away. Moreover, the anonymous nature of the reporting individual in this case does not undermine the legality of the traffic stop. As in Dolly, the anonymous call to the police department was tape-recorded, “eliminating the possibility of after-the-fact police fabrication and allowing after-the-fact review (albeit limited) of the caller’s sincerity.” (Dolly, supra, 40 Cal.4th at p. 471.) Also as in Dolly, “[t]he report was fresh, detailed, and accurate, and its description of [the suspect] and his location was corroborated by the police within minutes.” (Ibid.) “The police ‘may ascribe greater reliability to a tip, even an anonymous one, where an informant “was reporting what he had observed moments ago,” not stale or second-hand information.’” (Id. at p. 468.) Again as in Dolly, the tipster provided an accurate and detailed description of the driver and his location, which was confirmed minutes later by the police. (Ibid.)
As in Wells, the “relative urgency” of the situation presented by a drunk driver justified the traffic stop. (Wells, supra, 38 Cal.4th at p. 1088.) The anonymous caller was describing a contemporaneous threat of an intoxicated person about to drive away, rather than past activities. (Dolly, supra, 40 Cal.4th at p. 467.) Officer Schimon had already confirmed the information the anonymous caller gave the dispatcher about the car’s description and location. This individual appeared at the scene and gave Officer Schimon additional information—that appellant was still drinking alcohol and intent on driving. Since Schimon had already confirmed the initial information, it was reasonable for him to rely on this person’s additional information to assess the situation and determine whether totality of the circumstances justified an investigative detention.
Appellant notes a contradiction between Officer Schimon’s account of the dispatch and the actual tape-recording. In the transcript of the call to the police communications center, the anonymous caller stated that appellant was drinking in the restaurant, he had three prior DUIs, he was getting ready to drive, and the caller did not want him to drive at all. Officer Schimon testified he was dispatched “regarding a subject who was possibly driving under the influence and currently passed out behind the wheel of a grey Mercedes Benz parked in front of the business.” Appellant points to the disparities between the tape-recording of the call to the police, and Schimon’s description of the dispatch he received, and argues Schimon’s testimony was not credible. The entirety of the record, however, explains the reason for this inconsistency in Schimon’s testimony. Schimon testified he asked the individual in the parking lot where he had seen someone passed out behind the steering wheel, and this individual gave him a response. Schimon testified he did not include this exchange in his report because that individual “didn’t want to be identified and if I was to reflect that information that would identify him.”
Appellant makes much of the argument that Officer Schimon could have entered the restaurant and contacted him to check on his welfare and prevent him from getting into the car, instead of waiting for him to get in the car and actually drive it. As noted by the trial court, the circumstances necessarily ruled out the possibility of checking on appellant while he was still in the restaurant. Schimon testified that when he arrived at the restaurant, he parked his patrol motorcycle by the Mercedes but was blocking some parking stalls. As Schimon was moving his motorcycle, appellant and another person walked out of the restaurant, appellant got into the driver’s side, backed out of the parking space, and started to pull out of the parking lot. Given the exigencies, Schimon’s actions were reasonable under the circumstances.
As in Wells, based on the anonymous tip’s detailed and contemporaneous description, the officer’s ability promptly to corroborate its innocent details, and the danger posed by a motorist under the influence, we are convinced “that the officer’s traffic stop was justified by reasonable suspicion of criminal activity.” (Wells, supra, 38 Cal.4th at p. 1088.)
The judgment is affirmed.
HARRIS, Acting P.J.
California DUI criminal defense lawyers continue to contest these issues on a case-by-case basis.