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Reasonable Suspicion – Stop – Basis – Unidentified Cell Phone Caller

Paul Rutzinski, 2001 WI 22, affirming unpublished opinion of court of appeals
For Rutzinski: Craig A. Mastantuono, Maureen Fitzgerald

Issue: Whether an unidentified motorist’s cell phone report of suspicious driving justified a stop.

Holding:

¶38 In sum, we hold that the tip in this case provided sufficient justification for an investigative stop of Rutzinski. First, the tip contained sufficient indicia of the informant’s reliability: the information in the tip exposed the informant to possible identification and, therefore, to possible arrest if the tip proved false; the tip reported contemporaneous and verifiable observations regarding Rutzinski’s alleged erratic driving, location, and vehicle’s description; and Officer Sardina verified many of the details in the informant’s tip. Second, the allegations in the tip could suggest to a reasonable police officer that Rutzinski was operating his vehicle while intoxicated. This exigency strongly weighs in favor of immediate police investigation. For these reasons, we conclude that the stop did not violate the Fourth Amendment or Article I, Section 11, and we affirm the decision of the court of appeals.

Contrast, U.S. v. Reaves, 4th Cir No. 06-5073, 1/8/08 (distinguishing Rutzinski: “Here, the caller studiously avoided providing information that would have allowed her identity to be traced, and the fact that she conversed with the 911 operator for a few blocks of travel time did not provide the police with sufficient means to test the credibility of her allegation of illegal activity.”).

Distinct split of authority has developed over whether Rutzinski correctly grants greater latitude to act on anonymous complaint re: dangerous driving than other types of conduct (or, for that matter, crime). Principal case: U.S. v. Wheat, 278 F.3d 722 (8th Cir. 2001). See also People v. Wells, CalSCt No. S128640, 6/26/06, adopting Wheat and also approving result in Lowry v. Gutierrez, 129 Cal. App. 4th 926 (2005) (greater latitude permissible because of inherent danger presented and also impossibility of predicting further recklessness; court nonetheless noting: “In the reckless driving context the information should include the vehicle’s make and model, color, license number, location and direction of travel although slight variances would not necessarily be fatal.” Lowry also stresses “the limited nature of our holding,” namely that the case simply didn’t involve “ordering the driver to exit the vehicle, or in frisking the driver or searching the vehicle. … Rather, this was as close to a voluntary encounter and discussion with a suspect as is possible when that person is in a moving vehicle.” Taking an implicitly different opinion: State v. Powell, Ind. App. No. 55A01-0502-CR-55, 2/6/06 (anonymous tip re: drunk driver providing only description of car and license plate number not enough for stop).

As suggested, courts are split nationally with regard to Rutzinski-type analysis. (Wells cites various articles on the point.) For a case citing Rutzinski with approval, along with a useful canvass of similar cases from other jurisdictions, see State v. Golotta, N.J. S. Ct. No. A-78-02, 12/16/03. Note, too, Golotta‘s stress, similar to Lowry‘s, “that situations involving erratic driving present the public with dangers not found in other situations, such as when a tipster identifies a person suspected of carrying a concealed weapon,” citing State v. Rodriguez, 172 N.J. 117, 732 n. 8, 796 A.2d 857 (2002) to the effect that, “The rationale for allowing less rigorous corroboration of tips alleging erratic driving is that the imminent danger present in this context is substantially greater (and more difficult to thwart by less intrusive means) than the danger posed by a person handgun.” (An admonition repeated by the Golotta court to underscore its significance: “Perhaps most important, here the officer was confronted with a risk of imminent danger to defendant and to the public, a circumstance that allowed the officer less corroboration time than if the tip had alleged that an individual standing passively on a street corner was carrying a concealed weapon.”) This formulation succinctly expresses a view that is certainly consistent with the analysis advanced by Rutzinski, albeit in somewhat different terms:

¶26 We are mindful, however, that the Adams and White analyses do not create a per se rule by which to judge the objective reasonableness of an investigative stop based on an informant’s tip. As stated above, when assessing whether a stop is constitutionally reasonable, a reviewing court must balance the interests of the individual being stopped against the interests of the State to effectively root out crime. Hensley, 469 U.S. at 228; McGill, 2000 WI 38, at ¶18; Waldner, 206 Wis. 2d at 56. In light of this balancing test, we recognize that there may be circumstances where an informant’s tip does not exhibit indicia of reliability that neatly fit within the bounds of the Adams-White spectrum, but where the allegations in the tip suggest an imminent threat to the public safety or other exigency that warrants immediate police investigation. In such circumstances, the Fourth Amendment and Article I, Section 11 do not require the police to idly stand by in hopes that their observations reveal suspicious behavior before the imminent threat comes to its fruition. Rather, it may be reasonable for an officer in such a situation to conclude that the potential for danger caused by a delay in immediate action justifies stopping the suspect without any further observation. Thus, exigency can in some circumstances supplement the reliability of an informant’s tip in order to form the basis for an investigative stop. Cf. City of Indianapolis v. Edmond, 121 S. Ct. 447, 455 (2000) (noting that exigencies of some scenarios likely would outweigh the individual’s right to be free from an investigative traffic stop).

See also State v. Prendergrast, Haw. SCt No. 24793, 2/2/04 (also canvassing decisions re: anonymous tip of erratic driving, and concluding that present tip satisfied fourth amendment, stressing reliability of tip [informant provided detailed, “firsthand observations of criminal activity”]; and “the imminence of the harm” posed by the reckless driving). But see Washington v. State, 740 N.E.2d 1241 (Ind. App. 2000), anonymous call re: possible drunk driving insufficient under circumstances to support stop:

We accordingly hold that an anonymous telephone tip, absent any independent indicia of reliability or any officer-observed confirmation of the caller’s prediction of the defendant’s future behavior, is not enough to permit police to detain a citizen and subject him or her to a Terry stop and the attendant interruption of liberty required to accomplish it.

And, State v. Sousa, NH SCt No. 2003-552, 8/26/04 (canvassing post-J.L. cases):

In light of these cases, we hold the following factors, viewed in light of the totality of the circumstances, are important when evaluating whether an anonymous tip gives rise to reasonable suspicion. First, whether there is a “sufficient quantity of information” such as the vehicle’s make, model, license plate number, location and bearing, and “similar innocent details” so that the officer may be certain that the vehicle stopped is the one the tipster identified. Wheat, 278 F.3d at 731. Second, the time interval between the police receiving the tip and the police locating the suspect vehicle. Id. Third, whether the tip is based upon contemporaneous eyewitness observations. Id. at 734; see Blake, 146 N.H. at 4. Fourth, whether the tip is sufficiently detailed to permit the reasonable inference that the tipster has actually witnessed an ongoing motor vehicle offense. See Golotta, 837 A.2d at 369….

These are admittedly close cases – the issue of whether reasonable suspicion supports a particular stop is fact driven and depends upon the totality of the circumstances in each case. Although we hold that the police may act on an anonymous tip of reckless or drunk driving, it is only under limited circumstances.

And, Collins v. Commonwealth, KY No. 2002-SC-0926-DG, 8/26/04 (call to 911 from gas station, reporting that driver of one vehicle “was seen throwing liquid from a bottle toward another vehicle”):

Therefore, we conclude that the tip here lacked the moderate indicia of reliability required by J .L . and White. Though accurate in its substance, the tip consisted entirely of information available to any casual observer on the street, giving the police no method of verifying that the tipster could be relied upon. The tip neither recounted nor predicted any specific illegal conduct . Moreover, the investigating officer did not independently observe any illegal activity or suspicious behavior. We do not believe that reasonable suspicion can be predicated upon an unidentified person’s accurate description of another vehicle and driver, coupled with the bare assertion that the driver had engaged in what might be considered offensive – though not criminal – conduct.

Nation-wide split, on question of whether imminent threat from drunk driving reduces need for reliability of anonymous tip, cataloged in People v. Castro, CA App No. F046915, 4/11/06 (that court going on to hold that “higher order of danger,” namely threat to kill specified individual, indeed reduced need for reliability in tip).

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