IN THE SUPREME COURT OF IOWA
No. 11–0738
Filed June 28, 2013
STATE OF IOWA,
Appellee,
vs.
LEON KOOIMA,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Sioux County, Robert J.
Dull, Judge.
A defendant seeks further review of a court of appeals decision
affirming the district court’s order overruling his motion to suppress.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS.
Randy L. Waagmeester of Waagmeester Law Office, PLC, Rock
Rapids, for appellant.
Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant
Attorney General, Coleman J. McAllister, County Attorney, and Jared R.
Weber, Assistant County Attorney, for appellee.
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WIGGINS, Justice.
The police received an anonymous tip reporting a drunk driver.
The officer stopped the vehicle and arrested the driver for operating a
motor vehicle while under the influence, second offense, in violation of
Iowa Code section 321J.2 (2009). The driver contended the stop was
illegal under the United States and Iowa Constitutions and moved to
suppress the evidence obtained from the stop. The district court denied
the motion, and the court found the driver guilty of the charge. The
driver appealed, and we transferred the case to the court of appeals. The
court of appeals affirmed the district court ruling on the motion to
suppress. We took the case on further review. On further review, we
find the stop was illegal under the Fourth Amendment of the United
States Constitution. Thus, we need not decide whether the stop violated
the Iowa Constitution. Accordingly, we suppress all evidence seized from
the illegal stop. Moreover, we vacate the decision of the court of appeals,
reverse the judgment of the district court, and remand for a new trial
consistent with this opinion.
I. Facts.
On our de novo review, we find the facts are as follows. On
Wednesday, June 16, 2010, Leon Kooima, along with five other men, left
Rock Valley to attend a charity golf event in Okoboji. All six men rode
together in a silver Chevrolet Suburban registered to Van Zee Enterprises
of Rock Valley. After completing the course, Kooima and the rest of the
group attended a dinner and program in conjunction with the charity
event.
Following the dinner, Kooima and the group left the golf course.
Kooima drove for the entirety of the return trip to Rock Valley. On the
way back, Kooima made several stops. They visited two group members’
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farms and one of their lake houses. Afterwards, a member of the group
suggested going to the Doon Steakhouse. The group stopped there
around 10:30 p.m. Another patron at the steakhouse was Craig Post.
After about an hour, Kooima and the rest of the group got into
their vehicle to leave the steakhouse. Post subsequently called 911 at
approximately 11:21 p.m. Post did not identify himself to the dispatcher.
A transcript of the call details the following exchange:
Dispatcher: 911 where is your emergency?
Caller: [H]i, not sure if this is a serious emergency, but I’m
not sure what other number to dial.
Dispatcher: [O]k, that’s fine.
Caller: Um, please check cars in Doon area.
Dispatcher: Cars in the Doon area?
Caller: Yeah.
Dispatcher: Ok.
Caller: BC229, BC229 silver suburban.
Dispatcher: Ok, what’s it doing?
Caller: Um, carload of Rock Valley merchants, huge money
guys.
Dispatcher: Ok.
Caller: And they are loaded, leaving Doon, and they are still
sitting on curbside, ready to leave to Rock Valley.
Dispatcher: Ok.
Caller: What bothers me is these guys get away with
everything, cuz they know everybody in Rock Valley and they
think they can do everything.
Dispatcher: You’re saying, you think they are drunk, you
mean?
Caller: I know they are.
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Dispatcher: Ok.
Caller: Everybody in the damn vehicle is.
Dispatcher: Ok and where are they at right now?
Caller: In Doon, on curbside, and
Dispatcher: Like downtown or what?
Caller: Yeah.
Dispatcher: Ok.
Caller: They are opening their doors to get the last
passengers in and then they are leaving.
Dispatcher: Ok.
Caller: This includes people that own Van Zee Enterprises
and they are on a golf outing and they think that they are
home free.
Dispatcher: Gotcha.
Caller: And it bothers me a lot.
Dispatcher: Ok, I can have somebody go check it out.
Caller: 10-4, get on that right away.
Dispatcher: Alright.
Caller: And this thing is full of drunks.
Dispatcher: Ok.
Caller: Thank you.
Dispatcher: You’re welcome, thank you.
Caller: BC229.
Dispatcher: Got it.
A review of the audio tape reveals Post spoke in a monotone voice
throughout the phone call.
The dispatcher then broadcast the following radio transmission:
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Attention Sioux County cars possible [intoxicated driver]
special attention Rock Valley, possible [intoxicated driver]
license number BC229, vehicle is just leaving Doon at the
moment, [reporting party] stated all occupants are
[intoxicated and in] . . . a silver 2009 Chevy Suburban
registered to a Rock Valley address 2015 North Main, end of
broadcast . . . .
As Kooima drove over the hill into Rock Valley, he passed a parked
police car operated by Officer Kyle Munneke. Approximately eight
minutes passed from the time of the dispatch to the time Munneke saw
the vehicle. Munneke followed Kooima all the way through town, staying
a block to a block-and-a-half behind. During Munneke’s observations of
the vehicle for approximately six blocks, the officer witnessed no traffic or
equipment violations that would have provided an independent basis for
the stop.
As Kooima turned west onto Highway 18, Officer Travis Ryan
followed the vehicle for a block. Ryan did not observe the vehicle make
any traffic or equipment violations. Based solely on the anonymous
phone tip, Ryan initiated a stop at approximately 11:38 p.m. After
Munneke approached the vehicle and Kooima asked the officer what was
wrong, Munneke said the only reason for the traffic stop was the
anonymous tip, which indicated there was a “carload of drunks on the
way to Rock Valley.”
Kooima cooperated with the officers. Ryan detected the smell of
alcohol on Kooima’s breath, so he conducted several field sobriety tests,
including the horizontal gaze nystagmus test, the walk-and-turn test,
and the one-legged-stand test. Because Kooima failed these tests and
based upon the anonymous tip, Ryan arrested Kooima for operating
while intoxicated and transported him to the Rock Valley Police
Department. There, Kooima consented to a breath specimen. A breath
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test conducted at 1:15 a.m. revealed Kooima’s blood alcohol level was
.088.
Other relevant facts are discussed below.
II. Prior Proceedings.
The State charged Kooima on July 1 with operating a motor vehicle
while under the influence, second offense, in violation of Iowa Code
section 321J.2. On July 22, Kooima moved to suppress all evidence
obtained from the stop. Kooima contended the stop violated his
constitutional rights guaranteed by the United States and Iowa
Constitutions because the police acted upon an anonymous tip. The
district court denied Kooima’s motion. Kooima then sought discretionary
review, which we denied.
The case proceeded to a bench trial. The district court found
Kooima guilty. Kooima appealed. We transferred the case to the court of
appeals. The court of appeals affirmed the district court. Kooima sought
further review, which we granted.
III. Issues.
The issue before the court is whether the investigatory stop of
Kooima by the Rock Valley police violated his rights against
unreasonable searches and seizures under the Fourth Amendment of the
United States Constitution or article I, section 8 of the Iowa Constitution.
IV. Standard of Review.
Kooima argues the district court should have granted his motion to
suppress on state and federal constitutional grounds because the State
deprived him of his right against unlawful searches and seizures. State
v. Ochoa, 792 N.W.2d 260, 264 (Iowa 2010) (recognizing a motion to
suppress based on the deprivation of the defendant’s constitutional right
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against unlawful searches and seizures). We review constitutional issues
de novo. State v. Kreps, 650 N.W.2d 636, 640 (Iowa 2002).
V. Analysis.
Kooima claims the State violated his rights under both the Fourth
Amendment of the United States Constitution and article I, section 8 of
the Iowa Constitution. We may construe the Iowa Constitution
differently than its federal counterpart, despite the provisions containing
nearly identical language and being structured generally with the same
scope, import, and purpose. See State v. Pals, 805 N.W.2d 767, 771–72,
781–83 (Iowa 2011) (noting our more stringent application of state
constitutional provisions than federal caselaw applying nearly identical
federal counterparts); Varnum v. Brien, 763 N.W.2d 862, 879 n.6 (Iowa
2009) (observing “we have jealously guarded our right to ‘employ a
different analytical framework’ under the state equal protection clause as
well as to independently apply federally formulated principles” (citations
omitted)). Further, even where a party has not advanced a different
standard for interpreting a state constitutional provision, we may apply
the standard more stringently than federal caselaw. State v. Bruegger,
773 N.W.2d 862, 883 (Iowa 2009); Racing Ass’n of Cent. Iowa v.
Fitzgerald, 675 N.W.2d 1, 4–7 (Iowa 2004). Because we can decide this
case under the Federal Constitution, we need not conduct an analysis
utilizing the Iowa Constitution. Ochoa, 792 N.W.2d at 267; cf. Racing
Ass’n of Cent. Iowa, 675 N.W.2d at 4 (deciding the case under the Iowa
Constitution after the United States Supreme Court overruled our
decision based on the United States Constitution).
The Fourth Amendment prevents governmental officials from
arbitrarily intruding into citizens’ privacy and security. Camara v. Mun.
Ct., 387 U.S. 523, 528, 87 S. Ct. 1727, 1730, 18 L. Ed. 2d 930, 935
8
(1967). Stopping an automobile and detaining its occupants constitutes
a seizure under the Fourth Amendment. Delaware v. Prouse, 440 U.S.
648, 653, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660, 667 (1979). A police
officer can stop and briefly detain a person for investigative purposes if
the officer has a reasonable suspicion supported by articulable facts that
criminal activity may be afoot. United States v. Sokolow, 490 U.S. 1, 7,
109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989).
The Supreme Court has discussed when an anonymous tip
provides a sufficient indicia of reliability to give rise to reasonable
suspicion for an investigatory stop of a vehicle. The first decision
typically referenced in this debate is Alabama v. White, 496 U.S. 325,
110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990). This case articulates the
reasonable suspicion standard for an investigatory stop.
Reasonable suspicion is a less demanding standard
than probable cause not only in the sense that reasonable
suspicion can be established with information that is
different in quantity or content than that required to
establish probable cause, but also in the sense that
reasonable suspicion can arise from information that is less
reliable than that required to show probable cause.
White, 496 U.S. at 330, 110 S. Ct. at 2416, 110 L. Ed. 2d at 309. In
White, the Court recognized that whether an anonymous tip provides
reasonable suspicion for an investigatory stop depends on the quantity
and quality, or degree of reliability, of that information, viewed under the
totality of the circumstances. Id. “[I]f 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.” Id.
In White, the anonymous tip stated:
Vanessa White would be leaving 235–C Lynwood Terrace
Apartments at a particular time in a brown Plymouth station
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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 attaché case.
Id. at 327, 110 S. Ct. at 2414, 110 L. Ed. 2d at 306–07. Acting upon this
tip, the officers were able to identify the vehicle as it left the apartments,
as well as confirm its route and destination to a specific motel. Id. at
327, 110 S. Ct. at 2414, 110 L. Ed. 2d at 307. Although the officers did
not observe any criminal activity afoot, they stopped the vehicle. Id. The
police found drugs in the driver’s possession and charged her
accordingly. Id. at 327, 110 S. Ct. at 2415, 110 L. Ed. 2d at 307.
The Supreme Court held the stop, based solely on the anonymous
tip, did not violate the Fourth Amendment. Id. at 331, 110 S. Ct. at
2416, 110 L. Ed. 2d at 309. The tip contained more information than
just the bare assertion the driver possessed drugs. Id. at 331–32, 110
S. Ct. at 2416–17, 110 L. Ed. 2d at 309–10. The tip contained specific
information about the broken taillight, the place where the trip started,
the driver’s route, and the driver’s destination to a specific motel that
turned out to be accurate. Id. The Court reasoned the tip had the
requisite indicia of reliability to justify an investigatory stop because the
general public would have had no way of predicting the defendant’s
anticipated movements; therefore, it would have been nearly impossible
for anyone except a person who was intimately involved with the
defendant to accurately predict that the defendant would be in her car at
the particular time and place described. Id. at 332, 110 S. Ct. at 2417,
110 L. Ed. 2d at 310. In reaching its decision, the Court characterized
the matter as “a close case.” Id.
In contrast to White, the second decision typically referenced in
this constitutional conversation is Florida v. J.L., 529 U.S. 266, 120
S. Ct. 1375, 146 L. Ed. 2d 254 (2000). J.L. involved an anonymous tip
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stating a young man, who was wearing a plaid shirt and waiting at a
particular bus stop, was carrying a concealed gun. Id. at 268, 120 S. Ct.
at 1377, 146 L. Ed. 2d at 258–59. The tip was the only information
available to the police. Id. The officers did not see a weapon or have any
reason to believe the young man had a weapon on his person. Id. at 268,
120 S. Ct. at 1377, 146 L. Ed. 2d at 259.
With nothing more than the tip, the officers stopped and frisked
the young man and found a gun in his possession. Id. The State
charged the young man with a weapons violation. Id. at 269, 120 S. Ct.
at 1377, 146 L. Ed. 2d at 259. The Supreme Court held the search
violated the Fourth Amendment because it lacked the requisite indicia of
reliability to justify an investigatory stop. Id. at 271, 120 S. Ct. at 1379,
146 L. Ed. 2d at 260. The Court acknowledged the tip was specific
enough to identify the alleged perpetrator. Id. at 272, 120 S. Ct. at 1379,
146 L. Ed. 2d at 261. However, nothing about the tip showed the tipster
had knowledge of concealed criminal activity. Id. For the tip to give rise
to reasonable suspicion, the Court held the tip must have some indicia of
reliability in its assertion of illegality and its tendency to identify a
determinate person. Id.
After these decisions, lower courts have had to apply this law to
situations where police officers receive anonymous tips regarding drunk
drivers. The seminal federal circuit court case comes from the Eighth
Circuit. United States v. Wheat, 278 F.3d 722 (8th Cir. 2001). There, an
anonymous motorist called 911 to report a vehicle was passing others
“on the wrong side of the road, cutting off other cars, and otherwise
being driven as if by a ‘complete maniac.’ ” Id. at 724. The caller
provided a general description of the vehicle, its location, and the first
three letters of the license plate. Id. Upon observing the vehicle, a
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patrolling officer stopped it immediately, without noticing any erratic
driving. Id. at 724–25. The court concluded an officer is not required to
corroborate an anonymous tip reporting drunk driving when the tip’s
innocent details—the description and location of the vehicle—were
accurate, there was an urgency presented by the drunken or erratic
highway driver, and there was minimal intrusion involved in stopping the
vehicle. Id. at 731–34. The court emphasized the tip need not contain
predictive aspects when the illegal conduct is public, and the tipster is
oftentimes observing the illegal conduct contemporaneously with making
the report. Id. at 734.
State courts have also dealt with this situation under the United
States Constitution. Our court did so in State v. Walshire, 634 N.W.2d
625 (Iowa 2001). In Walshire, police received an anonymous tip from a
motorist using a cell phone to report a driver was drunk. Id. at 626. The
tipster observed the driver operating his vehicle in the median. Id. Our
court upheld the stop, concluding that when a tipster relays details of
the crime personally observed, the anonymous tip contains the requisite
indicia of reliability. Id. at 628–29.
Courts around the country tend to agree with the holdings in
Wheat and Walshire, finding a tip has the requisite indicia of reliability
under the Fourth Amendment when the anonymous tipster relates that
he or she has personally observed erratic driving open to public view.
See, e.g., People v. Wells, 136 P.3d 810, 815–16 (Cal. 2006) (finding the
likelihood of harassment or an insincere or unreliable report of drunk
driving is “significantly reduced” by the fact a phoned-in report involves
an anonymous tipster providing “a contemporaneous event of reckless
driving presumably viewed by the caller” and a predictive “analysis is
more appropriate in cases involving tips of concealed criminal behavior
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such as possession offenses”—not in the DUI context where the illegal
activity is visible); State v. Prendergast, 83 P.3d 714, 724 (Haw. 2004)
(emphasizing the tip must be “firmly rooted in time and place and based
on firsthand observations of criminal activity,” as well as the totality of
circumstances and specific, articulable facts); Bloomingdale v. State, 842
A.2d 1212, 1213 (Del. 2004) (upholding a stop when the officer did not
observe any erratic driving but pulled over a driver based on an
anonymous tipster who stated there was a possible drunken motorist
“driving all over the roadway” between two streets; described the make,
model, color, and license plate of the vehicle; and relayed the driver’s
race and travel route); State v. Crawford, 67 P.3d 115, 119 (Kan. 2003)
(holding an anonymous tip had the requisite indicia of reliability when
the caller described his or her observations as “reckless driving”); State v.
Rutzinski, 623 N.W.2d 516, 519, 527–28 (Wis. 2001) (holding an
anonymous tip had the requisite indicia of reliability to justify a stop
when the caller told the police of the alleged erratic driving, automobile
location, and vehicle description).
Cases holding an anonymous tip had the sufficient indicia of
reliability to justify the stop contain three common elements. First, the
tipster gave an accurate description of the vehicle, including its location,
so the police could identify the vehicle. Next, the tipster based his or her
information on personal, eyewitness observations made
contemporaneously with a crime in progress that was carried out in
public, identifiable, and observable by anyone. When a tipster relates
personal observations consistent with drunk driving to the dispatcher,
the caller’s basis of knowledge is apparent. Finally, the caller described
specific examples of traffic violations, indicating the report was more
than a mere hunch. This lends to a greater likelihood the tip will give
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rise to reasonable suspicion. These three elements allow our courts and
the police to determine whether an anonymous tip contains sufficient
detail to permit a reasonable inference the tipster had the necessary
personal knowledge that a person was driving while intoxicated.
On the other hand, when the anonymous tip does not include
details pertaining to the tipster’s personal observation of erratic driving,
other facts that would lead to a reasonable inference the tipster
witnessed an intoxicated driver, or details not available to the general
public as to the defendant’s future actions, state supreme courts have
ruled the stop violated the Fourth Amendment. See State v. Lee, 938
P.2d 637, 640 (Mont. 1997); State v. Miller, 510 N.W.2d 638, 645 (N.D.
1994); Harris v. Commonwealth, 668 S.E.2d 141, 147 (Va. 2008).
In Harris, an anonymous informant called the police department to
report “there was a[n] intoxicated driver in the 3400 block of
Meadowbridge Road, [who] was named Joseph Harris, and he was driving
[a green] Altima, headed south, towards the city, possibly towards the
south side.” 668 S.E.2d at 144. The tipster did not detail any personal
observations about the manner in which the driver was operating the
vehicle. Id. However, the tipster provided a partial license plate number
for the vehicle and indicated the driver was wearing a striped shirt. Id.
The police report did not include the time period when the caller
observed the suspect driver. Id. The police officer observed the vehicle
driving within the posted speed limit and did not observe the car swerve,
but did see the car’s brake lights flash three times at various
intersections and red stoplights. Id. After proceeding through one of the
intersections, the driver navigated the car to the side of the road and
stopped. Id. The officer then initiated a stop. Id. The court found the
anonymous tip alone was insufficient to stop the driver, and the driver’s
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act of slowing at an intersection and stopping at the side of the road was
insufficient conduct “to corroborate the criminal activity alleged in the
anonymous tip.” Id. at 147.
The State of Virginia requested the Supreme Court grant certiorari
to review the court’s decision in Virginia v. Harris, which the Court
denied. Virginia v. Harris, 558 U.S. 978, 130 S. Ct. 10, 175 L. Ed. 2d
322 (2009). Two justices dissented from the denial of certiorari, arguing
“[t]he imminence of the danger posed by drunk drivers exceeds that at
issue in other types of cases.” Id. at _____, 130 S. Ct. at 11, 175 L. Ed.
2d at 323. The justices appear to rely upon the following language in
J.L.:
We do not say, for example, that a report of a person
carrying a bomb need bear the indicia of reliability we
demand for a report of a person carrying a firearm before the
police can constitutionally conduct a frisk.
J.L., 529 U.S. at 273–74, 120 S. Ct. at 1380, 146 L. Ed. 2d at 262.
As a court interpreting the Fourth Amendment, we cannot rely on
a dissent from a denial of a petition for writ of certiorari for guidance.
However, we do acknowledge that the Supreme Court left intact as good
law the Virginia Supreme Court’s interpretation of the Fourth
Amendment as it applied to an anonymous tip regarding drunk driving
that did not include a personal observation of erratic driving or other
facts to substantiate the driver was intoxicated.
As J.L. teaches us, without a means for the police to test an
anonymous tipster’s personal knowledge or credibility, the tip is nothing
more than a hunch. J.L., 529 U.S. at 271, 120 S. Ct. at 1379, 146 L. Ed.
2d at 260–61. Without such information, the tip has no indicia of
reliability in its assertion of illegality.
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In Lee, the anonymous tip consisted of the statement “that a
purple Chevrolet Camaro with a tan convertible top, driven by David Lee,
was heading toward Glasgow on the Fort Peck highway. The
complainant believed Mr. Lee was under the influence of alcohol, and
speeding.” 938 P.2d at 638. When the officer observed the vehicle, the
driver did not exhibit any signs he was driving under the influence or
speeding. Id. at 638–40. The Montana Supreme Court held:
[T]here was no objective data from which the officer could
reach any conclusion justifying the investigative stop.
Therefore, we conclude that under the totality of the
circumstances, as applied to the facts in this case,
information provided by the citizen informant alone, with no
other objective data, does not support a particularized
suspicion that Lee had been engaged in wrongdoing.
Id. at 640.
In Miller, the court analyzed the tip as an anonymous one. 510
N.W.2d at 644. There, the tip “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.’ ” Id. at 639. When the officer
found the vehicle, he followed it. Id. The officer did not observe anything
unusual about the driver’s operation of the pickup. Id. The North
Dakota Supreme Court found the quantity of information given by the
tipster did not lead to a reasonable inference the tipster personally
witnessed an intoxicated driver. Id. at 644.
Cases decided by us and other courts require a personal
observation of erratic driving, other facts to substantiate the allegation
the driver is intoxicated, or details not available to the general public as
to the defendant’s future actions in order to spawn a reasonable
inference the tipster had the necessary personal knowledge that a person
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was driving while intoxicated and the stop comports with the
requirements of the Fourth Amendment. To hold otherwise would cause
legitimate concern because such tips would let the police stop persons on
anonymous tips that might have been called in for vindictive or
harassment purposes or based solely on a hunch or rumor. These types
of tips do not have the requisite indicia of reliability in their assertion of
illegality because the information relayed to the police does not lead to a
reasonable inference the tipster had the necessary personal knowledge
that a person was driving while intoxicated.
The State cites State v. Christoffersen, 756 N.W.2d 230 (Iowa Ct.
App. 2008), as controlling precedent. It is easily distinguishable. There,
the suspect backed into the reporting police officer’s patrol car. Id. at
231. This constituted an obvious offense committed in the presence of a
police officer, which served as the basis for the stop and subsequent
arrest for operating while intoxicated. Consequently, we overrule
Christoffersen to the extent it stands for the proposition that a bare
assertion by an anonymous tipster reporting drunk driving provides
reasonable suspicion to stop a vehicle.
Accordingly, we hold a bare assertion by an anonymous tipster,
without relaying to the police a personal observation of erratic driving,
other facts to establish the driver is intoxicated, or details not available
to the general public as to the defendant’s future actions does not have
the requisite indicia of reliability to justify an investigatory stop. Such a
tip does not meet the requirements of the Fourth Amendment.
Applying these principles to the tip concerning Kooima, the
undisputed facts are the tipster did not relay a contemporaneous
observation of erratic driving or any facts that would indicate the persons
getting in the vehicle exhibited any signs of intoxication. We do
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acknowledge the tipster did tell the dispatcher the vehicle “was ready to
leave to Rock Valley.” However, this predictive behavior is of a type that
would be known to the general public in Sioux County. It was not
information that would likely be known only by those intimately involved
with Kooima and his associates.
We reach this conclusion for a number of reasons. The persons
getting in the vehicle did so in a public setting where anyone at the bar
could have observed their conduct. The tipster did not know for sure
where the vehicle was going. He first told the dispatcher to check the
Doon area. Later in the call, he said they were leaving for Rock Valley.
The occupants of the vehicle were well known in the area because they
were successful businessmen. Any person at the bar would be able to
surmise that at 11:20 p.m. on a Wednesday night, these four well-known
businessmen from Rock Valley would most likely be going home at that
time of night. Thus, the tipster was not basing the information he
relayed to the dispatcher on intimate involvement with Kooima by
predicting the defendant would be in his car at the particular time and
place described. The tipster used information available to the general
public in surmising where Kooima might be heading.
Our holding is consistent with the differences in information
provided by the tipsters in White and in J.L. In White, the defendant was
leaving from a private motel room to do a drug transaction at a certain
place at a certain time. White, 496 U.S. at 327, 110 S. Ct. at 2414, 110
L. Ed. 2d at 306–07. Only someone with intimate knowledge of what the
defendant was doing would be able to predict that behavior. In other
words, it was more likely than not the tipster was with the defendant or
talked to her shortly before she left the motel. The general public would
18
not know the details as to when the defendant would have left the motel
or where she was going.
In J.L., the observations relayed to the police were such that
anyone in the general public could observe. The observations relayed to
the police were that the defendant was a young man, wearing a plaid
shirt at a particular bus stop. J.L., 529 U.S. at 268, 120 S. Ct. at 1377,
146 L. Ed. 2d at 258–59. Just as in this case, the facts relayed by the
tipster in J.L. could be observed by the general public and did not
indicate the tipster was someone with intimate knowledge of what the
defendant was doing in order to be able to predict future behavior.
Therefore, we reverse the ruling of the district court on the motion
to suppress and find the stop of Kooima was illegal. In doing so, the
evidence seized from the illegal stop must also be suppressed under the
fruit of the poisonous tree doctrine. Wong Sun v. United States, 371 U.S.
471, 484–85, 83 S. Ct. 407, 415–16, 9 L. Ed. 2d 441, 453–54 (1963).
Before concluding, we stress this court does not condone drunk
driving. However, our oath requires us to uphold the Constitution of the
United States as interpreted by the Supreme Court. Additionally, we
commend the dispatcher who took the 911 call. The dispatcher asked
probing questions in an attempt to get more facts concerning the tipster’s
knowledge that the driver was intoxicated. The only responses the
dispatcher received to her inquiries was that “I know they are” or “And
this thing is full of drunks.” We hope that in the future, a dispatcher will
be able to get more than conclusory statements from the anonymous
caller, so the tip has the requisite indicia of reliability in its assertion of
illegality to justify a stop under the Fourth Amendment.
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VI. Summary and Disposition.
We do not decide this case under the Iowa Constitution because we
resolve this issue based upon the Fourth Amendment of the United
States Constitution. In doing so, we find the investigatory stop of
Kooima was illegal under the Fourth Amendment. Accordingly, we
suppress all evidence seized from the unconstitutional stop. Moreover,
we vacate the decision of the court of appeals, reverse the judgment of
the district court, and remand for a new trial consistent with this
opinion.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT REVERSED AND CASE REMANDED WITH
DIRECTIONS.
All justices concur except Mansfield, J., Cady, C.J., and
Waterman, J., who dissent.
20
#11–0738, State v. Kooima
MANSFIELD, Justice (dissenting).
I respectfully dissent. I believe the tip provided a sufficient basis
for the stop of the vehicle under the standards we set forth in State v.
Walshire and have reiterated here.
In Walshire, we upheld a stop based on an anonymous telephone
tip that the defendant was driving in the median. We stated:
We believe the following factors distinguish this case
from J.L.:
(1) In this case the informant revealed the basis for his
knowledge—he was observing a crime in progress, open to
public view; (2) in the present case, a serious public hazard
[drunk driving] allegedly existed that, in the view of the
Supreme Court, might call for a relaxed threshold of
reliability; and (3) the intrusion on privacy interests [with a
traffic stop] is slight, less than in a pat-down situation.
634 N.W.2d 625, 630 (Iowa 2001). I find the present case
constitutionally indistinguishable from Walshire.
At 11:21 p.m. on June 16, 2010, the 911 call came in. The caller
told the dispatcher that a “carload of Rock Valley merchants,” including
people “that own Van Zee Enterprises,” were “loaded,” “sitting on
curbside,” and getting ready to leave Doon for Rock Valley.1 In response
to questioning from the dispatcher, the caller confirmed they were drunk.
He described them as “opening their doors to get the last passengers in
and then they are leaving.” They were in a silver Suburban license plate
BC229. They had been on a golf outing and, according to the caller,
thought they were “home free.” The caller was not asked to provide
further details or to give his name.
1The majority says that the tipster “did not know for sure where the vehicle was
going.” I disagree. The transcript of the call is reproduced in full in the majority
opinion. The caller made it clear the individuals were “ready to leave to Rock Valley.”
21
A summary of this information was passed along to the Rock
Valley police. About ten minutes later, two Rock Valley police officers
saw the vehicle arrive in town from the direction of Doon. They verified
the license plate and description, and were told the vehicle was registered
to Van Zee Enterprises with a Rock Valley address. They saw multiple
people in the vehicle. Although no traffic violations were observed, a
decision was made to stop the vehicle. I believe that was a correct, not
an unconstitutional, decision.
Three points about the tip should be noted. First, although the
tipster did not say he had actually observed the group of intoxicated
individuals get into the car, this is a pretty obvious inference from the
call:
Dispatcher: Ok and where are they at right now?
Caller: In Doon, on curbside, and
Dispatcher: Like downtown or what?
Caller: Yeah.
Dispatcher: Ok.
Caller: They are opening their doors to get the last
passengers in and then they are leaving.
A 911 dispatcher listening to this narrative would reasonably assume it
was based on personal observation. See Kaysville City v. Mulcahy, 943
P.2d 231, 237 (Utah Ct. App. 1997) (“That Olsen reported a ‘drunk
individual’ without explaining why he thought the person was drunk
does not by itself nullify reasonable suspicion.”), abrogated on other
grounds by State v. Sadler, 104 P.3d 1265, 1272 (Utah 2004).
Given the further details provided elsewhere in the call and the late
hour (11:21 p.m.), it doesn’t require much in the way of inference to
conclude that the tipster had seen the group stop in downtown Doon for
22
drinks after their golf outing and was now watching them in their
intoxicated state preparing to head home to Rock Valley. If he had not
seen them close up, how would he know they had been on a golf outing
that day?
It is true that unlike the tipster in Walshire who claimed to have
seen erratic driving, the caller here described a group of drunk people
getting into a car to drive it home. But since the crime is actually drunk
driving, not erratic driving, I do not think that puts the Walshire stop on
firmer constitutional ground. It is noteworthy that in both cases, the
officers who stopped the vehicle did not actually see anything wrong with
how the vehicle was being driven. And in Walshire, but not here, the
tipster refused to give a name. 634 N.W.2d at 626.
Second, by the time of the stop in this case, the Rock Valley
officers had corroborated several predictive statements in the call. They
saw the silver Suburban arriving in Rock Valley with the identified
license plate from the direction of Doon, about ten minutes after the call.
(We can take judicial notice that Rock Valley is eight miles driving
distance from Doon.) Several people were in the car. The car was
registered to Van Zee Enterprises with a Rock Valley address. The
officers initiated a stop after confirming these details. See id. at 628
(stating that “ ‘[i]ndependent corroboration of the inculpatory details of a
defendant’s tip is not mandatory’ ” (quoting State v. Markus, 478 N.W.2d
405, 408 (Iowa Ct. App. 1991))).
I think the present case is comparable to one decided by the South
Dakota Supreme Court. See State v. Scholl, 684 N.W.2d 83 (S.D. 2004).
There, an anonymous informant called police to report the defendant
“leaving Scarlet O’Hara’s bar stumbling pretty badly and having
problems getting into [his] Toyota Tacoma pickup.” Id. at 84 (internal
23
quotation marks omitted) (alterations in original). The informant
provided a license plate number, vehicle description, and location. Id.
An officer found the truck where the informant said it would be, followed
it for about eleven blocks, and “stopped the vehicle solely on the basis of
the informant information.” Id. The officer had confirmed the “innocent
details” such as license number and vehicle description, but did not
witness any moving violations, erratic driving, or anything else
suggesting the driver was impaired. Id. at 84, 86.
The court concluded the stop was valid because (1) the informant
provided detailed information allowing the officer to confirm the identity
of the vehicle it stopped and (2) the informant’s tip included sufficient
details of possible criminal activity, namely, stumbling from a bar and
difficulty getting into an automobile. Id. at 88–89. The stop was valid
despite the informant’s lack of “specific examples of moving violations.”
Id. at 88. The court noted that “[i]t requires no leap of logic or common
sense to deduce that a person stumbling from a bar late in the evening
and exhibiting difficulty getting into his car may well be under the
influence of alcohol and incapable of safely operating his vehicle.” Id.
In another, more recent unnamed-informant case, the South
Dakota Supreme Court again upheld a traffic stop of a vehicle even
though the officer did not witness any evidence of impaired driving.
State v. Satter, 766 N.W.2d 153, 158 (S.D. 2009). There, an unnamed
tipster approached an officer in person and pointed out a vehicle whose
occupants he said possessed open containers and were drinking beer.
Id. at 154. In upholding the stop, the court defended the officer’s choice
to pursue the driver immediately, rather than stay and ascertain the
tipster’s identity. “[T]he officer faced a dilemma of either: 1) obtaining the
tipster’s identifying information, then attempting to track down the van,
24
driven by a potentially intoxicated driver, in city traffic; or 2) he could
follow the van immediately.” Id. at 157. The court also noted that the
tipster’s observation of the act of drinking and the possibility of further
consumption contained sufficient signs of intoxication to justify a traffic
stop. Id. at 158; see also Lamb v. State, 604 S.E.2d 207, 208 (Ga. Ct.
App. 2004) (upholding a traffic stop based on a tip from a bartender who
told authorities by phone “that a man who was too intoxicated to drive
was leaving the restaurant, and that he would not let her call him a
cab”); State v. Amelio, 962 A.2d 498, 502 (N.J. 2008) (upholding a stop
based on a tip containing a teenager’s bare assertion defendant was
“drunk” and observing that “ ‘drunk’ has a commonly understood
meaning and the signs of drunkenness are matters of common
knowledge and experience”); State v. Lamb, 720 A.2d 1101, 1102–06 (Vt.
1998) (holding that a traffic stop was “more than” justified where a 911
caller reported that the defendant was “very upset and intoxicated and
was leaving a residence” because of the “impossibility that such
information could have been supplied by anyone but a knowledgeable
insider”).
This is not a case like Florida v. J.L., 529 U.S. 266, 120 S. Ct.
1375, 146 L. Ed. 2d 254 (2000). In that case, a tipster provided only a
description of an individual and his location and the allegation that the
individual had a gun. Id. at 268, 120 S. Ct. at 1377, 146 L. Ed. 2d at
258–59. There was “no predictive information” and the tip involved
“concealed criminal activity.” Id. at 271–72, 120 S. Ct. at 1379, 146 L.
Ed. 2d at 260–61. Here, by contrast, the tip involved a description of
criminal activity taking place out in the open—i.e., intoxicated
individuals at curbside in downtown Doon getting into a vehicle—and the
25
tipster added predictive information, such as when the vehicle was
leaving and where it was going (Rock Valley).
As we have already pointed out, this case is functionally similar to
the erratic driving cases, which the majority agrees were correctly
decided. The only difference is that the criminal activity involved
intoxicated individuals getting into a car to drive away instead of erratic
driving.
What J.L. emphasizes is that when the criminal activity is
concealed, the tip must provide more than just a description of the
alleged criminal and his location. There must be further detail
demonstrating the tipster’s basis for knowledge of the criminal activity.
But when the criminal activity is out in the open, firsthand
contemporaneous observations are sufficient. The reality is that here we
have publicly observable criminal activity, plus additional verifiable
details provided by the caller that would indicate the caller likely had
been observing the situation for some time (i.e., in the bar) before it
moved onto the public curbside—which in fact was the case.2
By contrast, Harris v. Commonwealth, 668 S.E.2d 141 (Va. 2008),
cited by the majority, involved neither of these factors. The tip was
merely of an “intoxicated driver” and his name, vehicle, location, and
direction. Id. at 144. Unlike here, the caller did not relay firsthand,
contemporaneous observations, such as the description of a group of
2The majority says, “Any person at the bar would be able to surmise that at
11:20 p.m. on a Wednesday night, these four well-known businessmen from Rock
Valley would most likely be going home at that time of night.” I think this proves the
point I am making, that the details indicate the caller had been observing these
individuals inside “at the bar” and now was seeing them get into the car drunk. It is
possible, of course, that these persons had not been consuming a significant quantity of
alcoholic beverages (despite being in a bar until 11:21 p.m.) and the tipster was lying
about their intoxicated condition. But the law only requires reasonable suspicion.
26
“drunks” first “sitting on curbside” in downtown Doon and then “opening
their doors to get the last passengers in.” Further, the caller in Harris
provided no details that demonstrated intimate knowledge, whereas here
the caller advised the dispatcher where these people worked and lived,
where they planned to go after they got into the car, and what they had
been doing that day. Id.; see also Alabama v. White, 496 U.S. 325, 332,
110 S. Ct. 2412, 2417, 110 L. Ed. 2d 301, 310 (1990) (emphasizing that
the tipster had provided predictive information that demonstrated
intimate familiarity).
Third, the tip came in the form of a 911 call. The risk that a 911
call would be used purely to harass someone rather than to report a
potential crime seems to me a decreasing one. By statute and
administrative regulations, Iowa emergency call centers use “enhanced
911” which “[a]utomatically provides voice, displays the name, address or
location, and telephone number of an incoming 911 call and public
safety agency servicing the location.” Iowa Code § 34A.2(5)(b) (2009); see
also Iowa Admin. Code r. 605—10.7 (providing for implementation of
enhanced wireless 911 service). All of Iowa’s ninety-nine counties have
implemented enhanced wireless 911, according to the Iowa Homeland
Security and Emergency Management Division. See Iowa Homeland
Security & Emergency Management, Enhanced 9–1–1 (E–911),
http://www.iowahomelandsecurity.org/programs/E_911.html (last
visited Jun. 20, 2013). “[T]he State stands on firm constitutional ground
when it treats the anonymous 9–1–1 caller in the same fashion as it
would an identified citizen informant who alerts the police to an
emergent situation.” State v. Golotta, 837 A.2d 359, 367, 373 (N.J. 2003)
(upholding a DUI traffic stop based on a 911 call reporting erratic driving
and noting such calls are not truly anonymous). I think the average
27
citizen has developed an understanding from watching television that
911 calls are frequently traceable. In fact, the tipster was tracked down
here.
Not only are 911 tipsters generally identifiable, they are criminally
liable if they knowingly make false tips. See Iowa Code § 718.6(2) (“A
person who telephones an emergency 911 communications center
knowing that the person is not reporting an emergency or otherwise
needing emergency information or assistance commits a simple
misdemeanor.”); see also id. § 718.6(1) (providing that knowingly
reporting false information about a felony or serious or aggravated
misdemeanor is itself a serious misdemeanor). Calling 911 is no way to
make a false report and get away with it. In this sense, 911 callers have
the incentive to provide reliable information or else face criminal
consequences. See Golotta, 837 A.2d at 367 (noting that “it is hard to
conceive that a person would place himself or herself at risk of a criminal
charge by making” a phony 911 call (internal quotation marks omitted)).
The majority says, “[W]e commend the dispatcher who took the
911 call.” I don’t follow what the majority means by this statement. The
entire thrust of the majority opinion is that the dispatcher did not do an
adequate job, and should have kept the caller on the line longer and
asked additional questions. I disagree with imposing this burden on 911
operators and would uphold the stop.
For the foregoing reasons, I respectfully dissent.
Cady, C.J., and Waterman, J., join this dissent.