ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Steve Carter
Public Defender of Indiana Attorney General of Indiana
L. Michael Sauer Cynthia L. Ploughe
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 62S05-0501-CR-15
HENRY LUKE KELLEMS, JR.,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
_________________________________
Appeal from the Perry Circuit Court, Nos. 62C01-0203-FD-236, 62C01-9911-DF-585
The Honorable James A. McEntarfer, Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 62A05-0401-CR-38
_________________________________
February 16, 2006
Sullivan, Justice.
The State of Indiana challenges the Court of Appeals’ determination that an identified
informant’s tip did not establish sufficient reasonable suspicion to validate a traffic stop of Henry
Luke Kellems under the Fourth Amendment to the United States Constitution. Because a tip
from an identified informant or concerned citizen coupled with some corroborative police inves-
tigation is sufficient to create reasonable suspicion for an investigative stop, we affirm the trial
court’s denial of Kellems’s motion to suppress the evidence and his conviction as a habitual traf-
fic offender.
Background
On March 20, 2002, the Tell City Police Department received a telephone call from a
woman identifying herself as Dodie McDonald. McDonald reported seeing a man she identified
as Luke Kellems driving from Troy to Tell City. According to her report, Kellems was driving
without a license or insurance, intoxicated, and with children in the vehicle. Additionally,
McDonald provided the police with a description of Kellems’s vehicle, a white pickup truck, and
his license plate number.
Tell City Police Sergeant Lynn Wooldridge responded to the dispatch of McDonald’s tip.
After spotting Kellems in a white pickup truck, he followed it to confirm whether the license
plate number matched that given to dispatch by McDonald. Having matched the plates, Sergeant
Wooldridge pulled Kellems’s vehicle over without observing any traffic violation.
Upon pulling Kellems over, Sergeant McDonald approached the truck with Kellems sit-
ting in the driver’s seat and his wife and child in the passenger seats. Sergeant Wooldridge re-
quested Kellems’s driver’s license and received an identification card instead. The identification
card was checked through the Bureau of Motor Vehicles and indicated that Kellems had a sus-
pended driver’s license and was a habitual traffic offender. A portable breathalyzer test was ad-
ministered to Kellems, which came up negative. Kellems was then arrested and charged with
operating a vehicle while a habitual traffic offender. 1
Before his trial Kellems filed a motion to suppress the evidence gathered during his traf-
fic stop. This motion was denied at a pre-trial hearing and again at his October, 2003, bench
trial. The trial court found Kellems guilty of being a habitual traffic offender and in violation of
1
Ind. Code § 9-30-10-16 (2004).
2
his probation. 2 Kellems was sentenced to three years in the Indiana Department of Correction on
the underlying offense and had his driving privileges revoked for life. In addition, the trial court
revoked Kellems’s probation and ordered him to serve two years in prison for his previous of-
fenses.
The Court of Appeals reversed the trial court’s decision to deny Kellems’s motion to
suppress. Kellems v. State, 816 N.E.2d 421 (Ind. Ct. App. 2004). As such, it held there was in-
sufficient evidence to support his habitual traffic offender conviction and reversed the trial
court’s conviction for that underlying offense and its revocation of Kellems’s probation. We
granted transfer and now affirm the judgment of the trial court for the reasons that follow.
Discussion
At issue in this appeal is whether the tip provided to the Tell City Police Department by
Dodie McDonald was sufficient to provide police with reasonable suspicion to perform an inves-
tigatory stop of Kellems’s vehicle. As such, this case provides a neat companion to another case
we decide today, Sellmer v. State, -- N.E.2d --, No. 29S04-0602-CR-58 (Ind. 2006), where the
question of whether a telephone tip to the police provided the reasonably articulable suspicion of
criminal activity necessary to justify an investigatory stop was also at issue.
In Sellmer, we followed the directive of the Supreme Court that reasonable suspicion de-
terminations are to be made “by looking at the ‘totality of the circumstances’ of each case to see
whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal
wrongdoing.” U.S. v. Arvizu, 534 U.S. 266, 273 (2002). We do the same here.
The telephone tip in Sellmer came from an anonymous caller and that fact was largely
determinative of our conclusion that the tip did not provide the reasonable suspicion necessary to
justify an investigatory stop. Here, as already noted, the tipster identified herself. Nevertheless,
Kellems contends that there was not sufficient reasonable suspicion to perform an investigatory
stop. The United States Supreme Court, however, has indicated that while a tip from an identi-
2
At the time of his October, 2003, trial Kellems was on probation for Operating a Vehicle as an Habitual Traffic
Offender, a Class D felony, and Resisting Law Enforcement, also a Class D felony. Kellems had pled guilty to these
offenses on September 5, 2000, and received a sentence of four years in prison, with three and one-half years sus-
pended. In accordance with his probation, Kellems was to not be arrested or charged with any crime.
3
fied or known informant may not be sufficient to support a probable cause finding, such tips are
sufficiently reliable to justify an investigatory Terry stop. See Alabama v. White, 496 U.S. 325,
330 (1990) (reiterating its approach established in Adams v. Williams, which held that an unveri-
fied tip from a known informant was sufficiently reliable to justify a Terry stop, although it
might not have been reliable enough to establish probable cause); Adams v. Williams, 407 U.S.
143, 146-47 (1972) (holding that a tip from a known informant can be the basis of reasonable
cause for police officer’s investigatory stop).
The Supreme Court has taken this approach for two principal reasons. The first is the
nature and purpose of Terry stops. In Adams, the Court noted that Terry stops are limited in
scope and purpose. Their purpose “is not to discover evidence of crime, but to allow the officer
to pursue his investigation without fear of violence. . . .” Adams, 407 U.S. at 146. This limited
purpose has led the Court to conclude that “a brief stop of a suspicious individual, in order to de-
termine his identity or to maintain the status quo momentarily while obtaining more information,
may be most reasonable in light of the facts known to the officer at the time.” Id. Thus, since
reasonable suspicion is all that is necessary to support a Terry stop and it “is a less demanding
standard than probable cause . . . [t]he Fourth Amendment requires [only] ‘some minimal level
of objective justification’ for making the stop.” White, 496 U.S. at 330 (quoting INS v. Delgado,
466 U.S. 210, 217 (1984)).
Additionally, the Supreme Court has concluded that tips from identified informants are
sufficient to constitute reasonable suspicion to support an investigatory stop because a known or
identified informant’s “reputation can be assessed and . . . [they may] be held responsible if
[their] allegations turn out to be fabricated. . . .” Florida v. J.L., 529 U.S. 266, 270 (2000). See
also Illinois v. Gates, 462 U.S. 213, 233-34 (holding that where a “citizen comes forward with a
report of criminal activity—which if fabricated would subject him to criminal liability—we have
found that rigorous scrutiny of the basis of his knowledge unnecessary”); Adams, 407 U.S. at
146-47 (noting that a tip provided by an identified informant who subjected themselves to crimi-
nal prosecution for making a false report carried enough indicia of reliability to justify an inves-
tigatory stop).
4
While we agree with the logic that the prospect of prosecution for making a false report
heightens the likelihood of the report’s reliability, we think the State pushes the envelope too far
to say that the prospect of prosecution for making a false report, standing alone, will in all cases
constitute reasonable suspicion. The crime of false reporting in our state requires that the person
giving the false report “know that the report or information [is] false.” Ind. Code § 35-44-2-
2(d)(1) (2004) (emphasis added). The very nature of tips is such that often neither the police nor
tipsters themselves have that degree of certainty in their accuracy.
But the test, to repeat, is one of the totality of the circumstances and certainly susceptibil-
ity to prosecution for false reporting is a circumstance bearing on the reasonableness of suspi-
cion.
We have also noted on past occasions “that there are two major types of informants, pro-
fessional informants and cooperative [or concerned] citizens, and that the test for determining the
reliability of each is different.” Clifford v. State, 474 N.E.2d 963, 969 (Ind. 1985). See also
Pawlowski v. State, 380 N.E.2d 1230, 1232 (Ind. 1978) (same); Richard v. State, 820 N.E.2d
749, 753 (Ind. Ct. App. 2005) (same). With respect to cooperative or concerned citizens we have
observed and concluded that:
This group includes the victims of crime or persons who personally
witness a crime. These individuals generally come forward with
information out of the spirit of good citizenship and the desire to
assist law enforcement officials in solving crime. They are usually
one-time informants and no basis exists from prior dealings to de-
termine their reliability. Further, information of this type usually
goes to past completed crimes rather than future or continuing
crimes. Some jurisdictions have therefore held that informants of
this type are to be considered reliable for the purpose of determin-
ing probable cause unless incriminating circumstances exist which
cast suspicion upon the informant’s reliability.
Pawlowski, 380 N.E.2d at 1232-33. We noted in Pawlowski, however, “that the requirement for
corroboration is not totally eliminated. The amount of evidence necessary to satisfy the probable
cause test is largely determined on a case-by-case basis.” Id. at 1233.
5
Upon reflection, this goes a bit too far. We continue to believe that there may well be
greater indicia of reliability in the report of the “concerned citizen” as distinguished from the
“professional informant”—though again the totality of the circumstances controls—but this goes
only to reasonable suspicion, not, as the prior cases suggest, probable cause.
Another circumstance, particularly relevant in this case, is the immediacy of the threat to
public safety. In Sellmer, it is slight. In this case, it is much higher: a report of an intoxicated
driver operating a vehicle occupied by a family on a highway.
We find that the tip provided by Dodie McDonald was sufficient to provide the Tell City
Police with reasonable suspicion to conduct an investigatory stop of Kellems’s car. McDonald
identified herself to police when she made her call. She gave her date of birth to the police dis-
patcher. Tell City Police Sergeant Wooldridge knew McDonald, where she lived, and with
whom she lived. Under these circumstances, had McDonald given the police a knowingly false
report, she was sufficiently identified to be held criminally responsible for false reporting.
Additionally, McDonald offered the police sufficient information to allow them to cor-
roborate her assertions independently. She provided the police with a vehicle description, li-
cense plate number, the name of the driver, and the direction in which the driver was heading,
along with her claims that Kellems drove while intoxicated and without a license or insurance.
She also related the fact that there were children in the vehicle. Sergeant Wooldridge, before
pulling Kellems over to conduct an investigatory stop, first identified and then confirmed that the
license plate of the white pickup truck he spotted matched the plate given by McDonald.
Thus, under the totality of the circumstances, we conclude that there was reasonable sus-
picion to support an investigatory stop where the informant identified herself, provided the police
with the level of specific information noted above, which was then subsequently verified by po-
lice. 3
3
We reach this conclusion recognizing that Sergeant Wooldridge did not observe Kellems driving in an erratic
manner, nor did Kellems subsequently test positive for alcohol. However, on balance and when viewed under the
totality of the circumstances, we give great weight to the fact that the informant in this case identified herself and
that police were able to verify all of McDonald’s remaining claims.
6
We also find her tip sufficiently satisfied the requirements for classifying her a concerned
or cooperative citizen. The record in this case does not suggest that McDonald had any intention
other than her desire to assist police in their law enforcement duties. There is also no suggestion
in the record that there were incriminating circumstances that would call McDonald’s motives in
reporting into question.
Finally, we remain cognizant of law enforcement’s need to respond immediately to
criminal reports of this nature in the interest of public safety.
We conclude, therefore, that McDonald acted as a concerned or cooperative citizen in
making her report of criminal activity to the police and that her tip was sufficient to support an
investigative stop under either the theories of identified informant or concerned or cooperative
citizen.
Conclusion
Having previously granted transfer, we affirm the trial court’s denial of Kellems’s motion
to suppress and his conviction as a habitual traffic offender.
Shepard, C.J., and Dickson, and Boehm, JJ., concur. Rucker, J., dissents with separate opinion.
7
Rucker, J., dissenting.
A tip given to police by a purported “concerned or cooperative citizen” standing alone is
not sufficient in my view to justify an investigatory stop. According to the majority, a tip from
this category of persons carries sufficient indicia of reliability because “[t]hese individuals
generally come forward with information out of the spirit of good citizenship and the desire to
assist law enforcement officials in solving crime.” Slip op. at 5 (quoting Pawloski v. State, 269
Ind. 350, 380 N.E.2d 1230, 1232 (1978)). Whatever validity this assertion may have as a general
proposition, there is simply nothing in this record to support the notion that the caller here was so
motivated. Indeed the caller provided information to the police that was patently false: that
Kellems was operating a vehicle while intoxicated. It takes little imagination to conclude that
officers of the Tell City Police Department likely would not have expended resources pursuing
Kellems solely on a claim that he was driving without a license and automobile insurance. The
caller may very well have concluded likewise and decided to embellish the accusations in order
to get the attention of law enforcement. In short, to suppose the caller was motivated out of civic
goodwill is simply a bit of a stretch.
The person calling dispatch identified herself as “Dodie McDonald” and provided her
date of birth. Based on this information the caller theoretically could have been held legally
responsible if she made a false police report. But Officer Wooldridge testified at the suppression
hearing that he did not know the caller personally, although he knew “of her on different calls”
and knew she lived with a man named Richard. Tr. at 94. There was no evidence that the caller
was honest or had provided reliable information in the past; there was no evidence revealing the
basis of the caller’s knowledge; and there was no evidence that the officer or dispatch ever
verified the caller’s identity prior to the stop. As the Court of Appeals points out, “when the
officers stopped Kellems’ vehicle, they did not know whether the caller was actually McDonald,
a prankster, or an imposter.” Kellems v. State, 816 N.E.2d 421, 426 (Ind. Ct. App. 2004). “The
fact that a named caller with an untested reputation called the police does not in itself establish
reasonable suspicion.” State v. Glass, 769 N.E.2d 639, 643 (Ind. Ct. App. 2002), trans. denied.
8
In this case the totality of the circumstances points in a direction opposite that reached by
the majority. The Court of Appeals got it right, “the tip did not contain the requisite indicia of
reliability.” Kellems, 816 N.E.2d at 427. I therefore respectfully dissent and would reverse the
trial court’s denial of Kellems’ motion to suppress.
9