State v. Hopkins

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*858¶ 1 Luis G. Hopkins challenges the trial court’s denial of his suppression motion, arguing that an unreliable informant’s tip did not justify the officers’ investigatory stop. Holding that the officers did not have a reasonable suspicion to seize Hopkins, we reverse the trial court’s denial of his suppression motion, vacate his convictions, and dismiss the charges with prejudice.

Van Deren, J.

FACTS

A. Background

¶2 The police dispatch system informed two officers of a citizen informant’s 911 call that reported a minor might be carrying a gun. The dispatch reported that the informant described the person as a “[l]ight-skinned black male, 17 [years of age], 5’ 9”, thin, Afro, goatee, dark shirt, tan pants, carrying a green backpack and a black backpack.” Report of Proceedings (Nov. 18, 2003) (RP) at 10-11.1 The informant reported that the person was “scratching his leg w/what looked like a gun.” Pl.’s Ex. 1. Approximately seven minutes later, the informant called again and asserted that the person was now at a pay phone at a certain address and that he thought the person put the gun in his pocket.

¶3 The police dispatch informed the officers that the caller was a citizen, but the dispatch did not provide the officers with a name. A computer inside the officers’ patrol car displayed an incident report indicating the informant’s name and cell phone number and a different phone number for the second call. But the officers testified that they did not know the informant, did not know anything about the informant, and did not know if the informant knew Hopkins. One officer testified that the informant requested *859no contact, so the officer did not think there was any reason to contact him. Consequently, the officers did not attempt to contact the informant.

¶4 The officers went to the public pay phone at the location the informant identified. The officers saw a black male who resembled the informant’s description hanging up the phone. One officer testified the person had his back to them. Neither officer observed a gun or any illegal, dangerous, or suspicious activity.

¶5 Based on the informant’s tip, the officers approached Hopkins at the pay phone and ordered him to put his hands up in the air and keep them in sight. They then asked him if he had a gun. Hopkins responded that he might have a gun in his pocket. After a frisk, the officers discovered a loaded revolver in Hopkins’ front pants pocket. The officers handcuffed Hopkins, placed him in the patrol car, and read his Miranda2 rights. The officers asked Hopkins for identification and he provided a false name. The officers asked again for identification and discovered that Hopkins had several outstanding warrants and a prior felony conviction. The officers then arrested him.

¶6 The officers transported Hopkins to jail. Before booking him, an officer performed a search and discovered a small baggie containing a white powdered substance that was later tested to be approximately two-tenths of a gram of methamphetamine.

B. Procedural History

¶7 The State charged Hopkins with one count of unlawful possession of a controlled substance with a firearm enhancement, one count of making a false or misleading statement to a public servant, and one count of first degree unlawful possession of a firearm.3

*86018 Hopkins moved to suppress the evidence and statements gathered by the officers.4 Hopkins argued that, “[t]he informant’s tip in this case cannot form the basis for a reasonable suspicion [to justify an investigatory stop] because it lacked both (a) an indication that the informant was reliable and (b) an indication that the informant’s information was reliable.” Clerk’s Papers (CP) at 7. Hopkins also argued that if the court granted his suppression motion, it must dismiss his charges under State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986), “because without the illegally seized evidence, the State will be unable to make out a prima facie case.” CP at 12.

¶9 At the CrR 3.6 suppression hearing, the officers testified that they did not contact the informant and that they knew nothing about him. One officer testified that she did not attempt to contact the informant because, “[t]he caller had requested no contact.” RP at 20. The other officer testified that they did not know if the informant knew Hopkins. Both officers testified that they did not observe any criminal or suspicious behavior; rather, they saw a person who resembled the informant’s description hang up the phone at a phone booth and they immediately contacted him. They approached Hopkins primarily out of officer safety because Hopkins was allegedly a minor with a gun. They did not see a bulge in Hopkins’ pocket or other resemblance of a gun, nor did they see the gun until after the frisk.

¶10 The trial court denied Hopkins’ suppression motion but stated that it was a “close case.” RP at 49. The trial court questioned the reliability of the informant’s tip that initiated the officers’ investigatory stop. The trial court stated,

Anybody seeing an acquaintance or someone who wanted to get Mr. Hopkins in trouble with the police could call up and say what he’s wearing, he’s got a gun. So the fact that somebody *861calls and says somebody has a gun doesn’t allow the officers to stop them. And I was a little concerned. It sounds like the officers were assuming this anonymous tip must be correct. I thought maybe they gave it a little bit more weight than they should have because who knows who this guy is.

RP at 49 (emphasis added).

¶11 The trial court also found that, “[t]he officers d[id] not see Mr. Hopkins really do anything illegal. All they saw him do was hang up the telephone. There’s nothing wrong with being on the phone.” RP at 50.

¶12 But the trial court ultimately denied Hopkins’ suppression motion by concluding,

[T]here is more than just an anonymous tip... when they approach Mr. Hopkins, he was asked, and I think the officers had every right to ask him if he had a gun. He said, I might have a gun in my pocket.... That’s a statement from Mr. Hopkins that I think reasonably justifies them doing a little bit more.

RP at 49-50.

¶13 The trial court prefaced its oral ruling by noting, “I think maybe they [the officers] just assumed everything this guy told them, the tipster told them, was true. I don’t know [if] they should necessarily assume that, but I don’t think they did anything unreasonable here.” RP at 51.

¶14 Consequently, the trial court entered written findings of fact and conclusions of law that included, inter alia, the following two legal conclusions: “1. Law enforcement lawfully contacted and detained the defendant based on the information provided by a named 911 caller. 2. The defendant was properly patted down after he indicated to the officers that he might have a gun in his pocket.” CP at 176.

¶15 A jury found Hopkins guilty on all three counts, including the firearm enhancement. The trial court sentenced Hopkins to 60 months’ confinement.

*862ANALYSIS

Informant’s Tip

116 Hopkins argues that the trial court erred when it denied his suppression motion based on an unreliable informant’s tip to justify the officers’ investigatory stop. The State responds that citizen informants are generally presumed to be reliable and that an informant’s tip alleging unlawful firearm possession requires immediate police response.

A. Standard of Review

¶17 We review factual findings in a motion to suppress for substantial evidence; we review de novo the suppression order’s conclusions of law. State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002); State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999).

¶18 A warrantless, investigatory stop must be reasonable under the Fourth Amendment and article I, section 7 of the Washington State Constitution. Duncan, 146 Wn.2d at 171. The State must prove an investigatory stop’s reasonableness. Duncan, 146 Wn.2d at 171. An investigatory stop is reasonable if the arresting officer can attest to specific and objective facts that provide a reasonable suspicion that the person stopped has committed or is about to commit a crime. State v. Armenta, 134 Wn.2d 1,10, 948 P.2d 1280 (1997). An investigatory stop occurs at the moment when, given the incident’s circumstances, a reasonable person would not feel free to leave. Armenta, 134 Wn.2d at 10; State v. Williams, 102 Wn.2d 733, 739, 689 P.2d 1065 (1984).

¶19 An informant’s tip can provide police a reasonable suspicion to make an investigatory stop. State v. Sieler, 95 Wn.2d 43, 47, 621 P.2d 1272 (1980). But the informant’s tip must be reliable. Sieler, 95 Wn.2d at 47. The State establishes a tip’s reliability when “(1) the informant is reliable and (2) the informant’s tip contains enough objec*863tive facts to justify the pursuit and detention of the suspect or the noninnocuous details of the tip have been corroborated by the police thus suggesting that the information was obtained in a reliable fashion.” State v. Hart, 66 Wn. App. 1, 7, 830 P.2d 696 (1992) (relying on Sieler).

B. Informant’s Reliability

¶20 Generally, we may presume the reliability of a tip from a citizen informant. State v. Wakeley, 29 Wn. App. 238, 241, 628 P.2d 835 (1981). Here, the record demonstrates that at the time of the dispatch, the officers knew only that the informant was a citizen. Although the informant’s name and cell phone number appeared on the officers’ computer in their patrol car, they did not know the informant or the call’s circumstances.5 The officers did not attempt to call the informant back on his cell phone or the other number to obtain more information about his suspicions. Indeed, one officer believed she should not contact the informant because “[t]he caller had requested no contact.” RP at 20. We agree with the trial court that the officers “just assumed everything this guy told them, the tipster told them, was true.” RP at 51; see also Sieler, 95 Wn.2d at 47.

¶21 The State emphasizes that a citizen informant is generally presumed reliable and that the informant called back a second time regarding the person’s location. But as discussed above, the informant’s name was meaningless to the officers and the mere fact that the informant called again to update the person’s location is unpersuasive. It may mean that the informant is watching the person, but it tells the officers nothing more about the informant’s reliability. Further, a named and unknown telephone informant is unreliable because “[s]uch an informant could easily fabricate an alias, and thereby remain, like an *864anonymous informant, unidentifiable.” Sieler, 95 Wn.2d at 48.

¶22 We hold that the State failed to establish the informant’s reliability, thus it was reversible error to deny Hopkins’ suppression motion. Hart, 66 Wn. App. at 7-8. But we also review whether the informant’s tip included objective facts justifying the officers’ investigative stop of Hopkins.

C. Reliability of Informant’s Tip

¶23 The informant’s tip contained inaccurate information about Hopkins’ height, weight, and age, but the tip reasonably identified Hopkins’ clothing, other physical features, and location. The informant’s only allegation of criminal activity was that a minor was “scratching his leg” with “what appeared to be a gun,” and that he “thinks” the gun is in Hopkins’ right pocket. CP at 175; Pl.’s Ex. 1.6 But these facts alone fail to reliably provide an officer with reasonable suspicion of criminal behavior. It is undisputed that Hopkins was not a minor and that neither officer observed a gun. The officers did not observe any criminal or suspicious behavior because they saw Hopkins merely standing at a pay phone. And the Supreme Court has held that an anonymous tip asserting a person is carrying a gun is, without more, insufficient to justify an investigatory stop. See Florida v. J.L., 529 U.S. 266, 272, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000) (“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.”).

¶24 Citing Wakeley, the State emphasizes that the informant’s tip involves the potentially dangerous situation of unlawful firearm possession. 29 Wn. App. at 241. But in J.L., the Supreme Court rejected a similar argument, deciding that an automatic firearm exception to justify a *865stop “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.” 529 U.S. at 272. Further, Wakeley is distinguishable. Wakeley involved three citizen reports of gunfire in a residential area and the informants provided more personal information than here. 29 Wn. App. at 239, 241. And, unlike here, the initial responding officer observed the suspect acting suspiciously before the investigatory stop. Wakeley, 29 Wn. App. at 242.

¶25 The trial court emphasized that it narrowly denied Hopkins’ suppression motion. The trial court seriously questioned the reliability of the informant’s tip and found that the officers did not observe illegal or suspicious behavior; however, it ultimately denied Hopkins’ suppression motion based on his statement to police after the investigatory stop.

¶26 But the trial court erred in considering Hopkins’ statement to police as justification of the investigatory stop because his statement occurred after the officers seized him. Before approaching Hopkins, the officers’ suspicion was based solely on the informant’s tip that described Hopkins’ appearance and age inaccurately, but accurately described his location, clothing, and backpacks only. They relied on the informant’s incorrect and vague assertion that Hopkins unlawfully possessed a gun as a minor and they did not observe any suspicious behavior. See, e.g., J.L, 529 U.S. at 271 (“The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search. All the police had to go on in this case was the bare report of an unknown, unaccountable informant.”) (emphasis added). And immediately upon contact with the officers, Hopkins was not free to leave because the officers required Hopkins to put his hands in the air.

¶27 Under these circumstances, we hold that the informant’s tip alone failed to provide the officers a reasonable *866suspicion to justify an investigatory stop of Hopkins. We agree with Hopkins that “Essentially, the trial court found that, even though the officers probably should not have presumed that the caller was reliable, and even though the information did not provide sufficient basis to stop Hopkins, they were justified in detaining and questioning Hopkins anyway.” Br. of Appellant at 10.

¶28 Thus, we reverse the trial court’s denial of Hopkins’ suppression motion. Because the State’s case rested exclusively on the improperly seized evidence and his statements after the illegal stop, we vacate Hopkins’ convictions and dismiss the charges with prejudice.

Morgan, J., concurs.

Hopkins is 21 years old, six feet three inches tall, and weighs 200 pounds.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The State’s unlawful firearm possession charge was under ROW 9.41.040(1)(a) because of Hopkins’ prior convictions of a “serious offense.”

Hopkins does not challenge the trial court’s admissibility of his statements under CrR 3.5. The trial court’s decision under CrR 3.6 preceded the CrR 3.5 proceeding.

We note that the officers’ testimony at the suppression hearing indicates that, before the investigatory stop, they did not meaningfully review the incident report on the patrol car’s computer. Instead it appears the officers relied primarily on the information from the dispatcher that reported the defendant’s description and did not state the informant’s name.

One officer testified that the second call asserted the gun was in the right pocket, but the dispatch report provides that the caller thinks the gun is in the right pocket.