Were You Lawfully Stopped?

Board Certified San Francisco Lawyer Explains Legal DUI Stops

If you were red lighted by the police while driving you may have a legitimate basis to challenge the constitutionality of the enforcement stop. The police may contend you were speeding or weaving, or that committed some other violation of the California Vehicle Code. In these circumstances, we will request a copy of any video tape evidence that may exist from the officer’s body worn camera or Mobile Video Audio Recording System (MVARS).

Sometimes police pull motorists over based solely on the telephone report of a drunk driver. In evaluating the constitutionality of a detention based on a tip to the police, note the distinction between “anonymous tipsters” (folks who telephone the police about a crime, but do not identify themselves and are not known to the police), “government agents” (informants working for the constable) and “citizen informants” (chance witnesses or crime victims who expose their identity). With regard to “anonymous tipsters” and “government agents,” there is no presumption of reliability attached to their tips. However, Navarette v. California ___ U.S. ___ (Docket No. 12-9490) (2014) held that “under appropriate circumstances, an anonymous tip can demonstrate ‘sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop’” [quoting Alabama v. White 496 U.S. 325, 327 (1990)]. Navarette involved a dispatcher’s radio communication of a 911 report [treated by SCOTUS as anonymous] of a specifically described vehicle and license plate number that had run the caller off the road approximately five minutes ago. About 13 minutes later a CHP officer spotted the vehicle and followed it for about five minutes without observing any vehicle code violation. Employing the “totality of circumstances” test, the court found the report “bore adequate indicia of reliability” to support an enforcement stop based on the following factors:

• The caller necessarily claimed eyewitness knowledge of the alleged dangerous driving (cf. Florida v. J.L., 529 U.S. 266 (2000), where tipster did not explain the basis of his knowledge that a young black man had a gun);

• In spotting the truck 19 miles from the reported mile marker just 18 minutes after the call, the report was contemporaneous with theincident;

After finding the tip to be sufficiently reliable, the Navarette Court then held the enforcement stop was constitutional even though the officer did not see a vehicle code violation during the five-minute observation. “Extended observation of an allegedly drunk driver might eventually dispel a reasonable suspicion of intoxication, but the five-minute period in this case hardly sufficed in that regard.” Id. Furthermore, the court rejected any contention that an officer is required to observe the manner of driving before acting on a reliable tip.

While declaring that “not all [reported] traffic infractions imply intoxication [thus allowing an enforcement stop],” it cited the following descriptions as examples of what is sufficient to reasonably suspect impairment and stop a motorist:

• Weaving all over the roadway;

• Crossing over the center line;

• Almost causing several head-on collisions

• Driving all over the road;

• Weaving back and forth;

• Driving in the median. The court concluded:

“The 911 caller in this case reported more than a minor traffic infraction and more than a conclusory allegation of drunk or reckless driving. Instead, she alleged a specific and dangerous result of the driver’s conduct: running another car off the highway ... As a result, we cannot say that the officer acted unreason- ably under these circumstances in stopping a driver whose alleged conduct was a significant indicator of drunk driving.”

Navaratte, supra.

Navarette followed the California Supreme Court’s decision in People v. Wells (2006) 38 Cal.App.4th 1078. In Wells, the dispatcher broadcasted “a possibly intoxicated driver ‘weaving all over the roadway,’” and described the vehicle as an “80s model blue van traveling northbound on Highway 99 at Airport Drive.” The officer, who was heading southbound 3 to 4 miles away from that location when he got the call, positioned himself on the shoulder of northbound Highway 99. “Two or three minutes” later he saw a blue van traveling approximately 50 miles per hour. He made an enforcement stop without independently observing any unusual, suspicious, or illegal driving. Citing “the grave risks posed by an intoxicated highway driver,” Wells held that a brief, investigatory stop was justified under the circumstances even though the tip was treated as anonymous. While approving a lower court ruling in Lowry v. Gutierrez (2005) 129 Cal.App.4th 926, and following a non-binding federal opinion in United States v. Wheat (8th Cir. 2001), 278 F.3d 722, the court declared that “there is a sound and logical distinction between the vehicle stop in the present case and the frisk found unconstitutional in [Florida v. J.L. (2000) 529 U.S. 266 (anonymous tip reporting a young, African American man in a plaid shirt, standing at a particular bus stop and carrying a gun)]. Seizing on J.L.’s statement that there may be “circumstances under which the danger alleged in an anonymous tip might be so great as to justify a search even without a showing of reliability...[such as a report] of a person carrying a bomb...,” J.L., at 273- 274, the Wells Court found that a “drunk driver is not at all unlike a bomb, and a mobile one at that [citing the Vermont Supreme Court in State v. Boyea (2000) 765 A.2d 862, 867-868].” As in Wheat, the court further found that the tip’s lack of “predictive information” was not critical to determining its reliability. It also cited Michigan Department of State Police v. Sitz (1990) 496 U.S. 444, 455, for the proposition that the high court has sanctioned the “stopping of all drivers to investigate possible drunk driving despite any articulable facts indicating an immediate risk of harm.”

The Wells Court set forth three requirements that must be met for an anonymous tip to provide reasonable suspicion to justify a DUI traffic stop, and they closely parallel the factors found sufficient in Navarette:

1. First, the tipster must furnish sufficient identifying information regarding the vehicle and its location, so the officer and reviewing courts may be reasonably sure the vehicle stopped is the one identified by the caller.

2. Second, the tip should indicate the caller had actually witnessed a contemporaneous traf- fic violation that compels an immediate stop, rather than merely speculating or surmising unlawful activity.

3. Third, at least the “innocent details” of the tip must be corroborated by the officers. Wells, at 1085-1086.

People v. Livingston (2010) (Superior Court Sonoma County Appellate Dept.) (reproduced in Appendix E) held that an anonymous tip that the caller was following a DUI driver at a specified location was insufficient to satisfy the second element from People v. Wells (2006) 38 Cal. App.4th 1078, which requires that the tip should indicate that the caller had actually seen a “contemporaneous traffic violation that compels an immediate stop, rather than merely speculating or surmising unlawful activity.” Yet People v. Smith (2015) (UNPUBLISHED - First Dist. COA, Div. 5 – Docket No. A138815) found a traffic enforcement stop constitutional where the officer observed no traffic violation and based his stop on an anonymous 911 caller reporting “a possible drunk driver” with the “odor of alcohol,” but reported nothing deficient about his manner of driving. Thus, element two of the Wells/Navarette test was completely missing. The Smith Court said, “While [the officer] did not himself observe erratic driving, he was not required to allow the driver to first engage in demonstrably dangerous behavior in his presence before investigating.” (emphasis added). The problem was that the caller didn’t assert any observation of erratic driving either! The Court apparently concluded that heavy facts on elements one and three are sufficient to make up for a complete void on element two.

Prior to Wells and Navarette, the lawfulness of a detention based on a tipster’s report of a drunk driver had splintered the appellate courts in California since the

U.S. Supreme Court’s seminal decision in J.L., which rejected the argument that the mere prompt verification of the description of a particular person, at a particular location, renders a tip sufficiently reliable, holding that the reasonable suspicion standard “requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” Id., at 272.

J.L. distinguished its ruling from Alabama v. White, supra, where the court upheld a detention based on an anonymous tipster’s report that a woman carrying cocaine would be leaving an apartment building at a specified time, get into a particularly described vehicle, and drive to a named motel. The White ruling, in what the high court said was a “close call,” turned on the trial court’s finding that police observation after the tip showed that the informant had accurately predicted the woman’s movements, whereas the tipster in J.L. only reported that the suspect was hanging around a certain bus stop (i.e., it provided no predictive information, leaving the police without any means to test the informant’s knowledge or credibility).

Until Wells, J.L. seemed to abolish California’s “Willard rule”—that a drunk driving detention is legal where a tipster simply uses the magic words, “he’s drunk,” and points out a motorist to the police. People v. Willard (1986) 183 Cal.App.3d Supp. 5. Wells arguably resurrected the Willard rule, but Navarette suggests otherwise with its notation that the tip in that case was not merely “a conclusory allegation of drunk or reckless driving.” Id.

People v. Dolly (2007) 40 Cal.4th 458, held that an anonymous 911 tip contemporaneously reporting an assault with a firearm and accurately describing the perpetrator, his vehicle, and its location is sufficient to justify an investigatory detention. The Dolly Court distinguished its holding from J.L., on the basis that a violent crime was reported as having just taken place. The tipster also gave reasonable explanation (his fear of perpetrator) for not identifying himself. See also People v. Lindsey, 148 Cal.App.4th 1390 (2007) (anonymous tipster reported that defendant fired gun—detention upheld); Lowry v. Gutierrez, 129 Cal.App.4th 926 (2005) (anonymous tip deemed legally sufficient basis to detain a motorist, though court said it was a close call and noted that a precise description of the driver’s actions (wrong way driving and left turn into oncoming traffic) had been described by the caller).

Dolly and Navarette overrule People v. Jordan,121 Cal.App.4th 544 (2004) (even a 911 call with extensive detail about a man with a gun was held to be an insufficient basis for a warrantless pat-down where the caller was not known to the officer).

People v. Rodgers, 131 Cal.App.4th 1560 (2005), cert. denied 552 U.S. 1146 (2008), involved an anonymous tipster reporting a man with a gun in a car threatening to kill his female passenger. Following Lowry, supra, the court held that a moving vehicle creates an exigency not present in J.L., supra. Likewise, People v. Castro (2006) 138 Cal.App.4th 486 held that an anonymous tipster’s report of a driver, threatening to kill his wife, amounted to an exigent circumstance justifying a traffic stop.

People v. Saldana, 101 Cal.App.4th 170 (2002), held that an anonymous tipster calling from a payphone did not justify a stop, detention and search. The anonymous telephone tip did not include predictive information and the observed corroboration that a vehicle fitting the description was indeed present at the described location did not corroborate the criminal element of the tip. This drug case does not involve, however, the report of a suspected drunk driver (though it does involve a man with a gun and a kilo of cocaine!).

If the officer making an enforcement stop does not know whether the tipster exposed his identity, then the source of the information must be treated as an “anonymous tip.” This is because the constitutionality of the detention turns on what the officer knew prior to the enforcement stop, People v. Ramey 16 Cal.3d 263, 268 (1976), and “a police officer can legally stop a motorist only if the facts and circumstances known to the officer support at least a reasonable suspicion that the driver has violated the Vehicle Code or some other law.” People v. Miranda 17 Cal.App.4th 917, 926 (1993).

With “citizen informants,” there is a presumption of reliability where they identify themselves, but even this presumption does not “dispense with the requirement that the informant—whether citizen or otherwise— furnish underlying facts sufficiently detailed to cause a reasonable person to believe that a crime had been committed....” People v. Ramey 16 Cal3d. 263, at 269 (1976).

In dealing with a tipster issue, the following are some important things we ask trial courts and DMV hearing officer’s to consider:

• Was the report made by an anonymous tipster, government agent, or citizen informant?

• Was the call made to a general police line or with the 911 system? If the tipster refused to identify himself, then that would tend to refute the assumption in Navarette that he knew the 911 system could trace a false report back to him. If the prosecution fails to establish that the caller used the 911 system, then the trial court should not assume so (be ready to object to any conclusory testimony or argument in this regard).

• Did it sound like the caller was speaking under the stress of excitement?

• To what extent did the caller identify the motorist and vehicle?

• Did the caller describe the basis for his conclusion that the suspect was drunk or impaired, and if so, to what extent was the reported conduct consistent with DUI or just a minor traffic violation?

• Did the caller give predictive information about the driver’s future movements?

• What facts, if any, heightened the need for immediate action (e.g., driving through a carnival or out on some country road)?

• Did the officer independently observe anything about the motorist or vehicle that gave him independent grounds to make an enforcement stop? If the tip is sufficiently reliable then no independent observation is necessary, but if the driving observation is for more than five minutes without an observed violation, then any reasonable suspicion was arguably dispelled.

The prosecution bears the burden of proof when it comes to a warrantless detention, and the constitutionality of a detention is determined by what the officer knew at the time he made the stop.