Graf v. State, Department of Commerce & Regulation

WUEST, Justice (on reassignment)

Dale William Graf (Graf) appeals from a judgment revoking his driver’s license for one year. We reverse.

FACTS

At 7:00 p.m. on January 17, 1992, Sioux Falls Police Officer Gregory Schmit (Officer Schmit) received a radio dispatch that an anonymous citizen reported a possible drunk driver in a large brown car with license “1E3312” travelling west on 10th Street. The dispatch advised Officer Schmit that a computer check indicated that Graf, who resided at 1608 West 39th Street, was the registered owner of the vehicle.

Officer Schmit proceeded to the area of Grafs residence. After waiting at the corner of 39th Street and Lake for thirty-four minutes, Officer Schmit saw Graf turn in front of him. He followed Grafs vehicle to the Graf residence a half a block away. He did not observe any traffic violations or erratic driving by Graf. Officer Schmit parked his car in a position which blocked Grafs automobile in the driveway. Following sobriety testing Graf was arrested for driving under the influence of alcohol.

The Department of Commerce and Regulation revoked Grafs driver’s license because of his refusal to submit to a chemical analysis. SDCL 32-23-11. Following a trial de novo the circuit court concluded:

Officer Schmit had a reasonable suspicion to stop the vehicle driven by Dale W. Graf because he had received a call from dispatch that the driver may be under the influence, and the stop was not the product of mere whim or idle curiosity, but was the product of specific and articulable facts *2which, when taken together with rational inferences from those facts reasonably warranted the intrusion, State v. Kissner, 390 N.W.2d 58 (S.D.1986).

ISSUE

WHETHER THE INFORMATION PROVIDED BY AN ANONYMOUS CITIZEN WAS SUFFICIENT TO CREATE A REASONABLE SUSPICION TO JUSTIFY THE STOP?

The reasonable suspicion standard was extended to automobile stops in South Dakota in State v. Anderson, 331 N.W.2d 568 (S.D.1983). A police officer must have a specific and articulable suspicion of a violation before a stop will be justified. Id. The factual basis required to support the stop is:

[T]hat the stop be not the product of mere whim, caprice, or idle curiosity It is enough if the stop is based upon “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion[.]”

Anderson, 331 N.W.2d at 570, (quoting People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39, 44 (1975)).

The United States Supreme Court has ruled that reasonable cause for a stop need not be based upon an officer’s personal observations; the factual basis for the stop may be supplied by information acquired from another person. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). See also United States v. Aldridge, 719 F.2d 368 (11th Cir.1983), and Marben v. State, Dept. of Public Safety, 294 N.W.2d 697 (Minn.1980). In addition, this court has stated that a stop may be justified even though the officer did not witness any violations. See Anderson, supra; State v. Johnson, 320 N.W.2d 142 (S.D. 1982).

State v. Kissner, 390 N.W.2d 58, 60 (S.D. 1986).

Information provided by an anonymous telephone tip may be sufficiently reliable to justify a vehicle stop. State v. Lownes, 499 N.W.2d 896, 899 (S.D.1993). The United States Supreme Court has cautioned, however:

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. Adams v. Williams, supra, demonstrates as much. We there assumed that the unverified tip from the known informant might not have been reliable enough to establish probable cause, but nevertheless found it sufficiently reliable to justify a Terry stop. 407 U.S. at 147, 32 L.Ed.2d 612, 92 S.Ct. at 1923-24. Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors — quantity and quality■— are considered in the ‘‘totality of the circumstances — the whole picture,” United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981), that must be taken into account when evaluating whether there is reasonable suspicion. Thus, if a tip has a relatively low degree of reliability, more information will be 'required to establish the requisite quantum of suspicion than ivould be required if the tip were more reliable.

Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301, 309 (1990) (emphasis added).

We have examined the question of whether information provided to police by an anonymous private citizen has a sufficient degree of reliability to create a reasonable suspicion of a violation and justify a vehicle stop in Kissner, 390 N.W.2d at 58, State v. Czmowski, 393 N.W.2d 72 (S.D.1986), and Lownes, 499 N.W.2d at 896.

In Kissner, a private citizen reported that the driver of a Chevrolet station wagon with Arizona license plates appeared to be driving in an intoxicated manner. The citizen also reported that the vehicle contained two males and was at a specific gas station in Pierre. A police officer observed the vehicle at the station, watched it drive away, and stopped it *3within three blocks even though the officer did not observe any traffic violations. We held:

In the present case, the officer received specific information from a private citizen about a suspected violation of the law, including a description of the vehicle, its license plates, the number of occupants, and the vehicle’s location. The officer was able to verify this information when he arrived at the location. Under such circumstances, a report from a private citizen is clearly sufficient to create a reasonable suspicion of a violation; it was not neces-r sary for the officer to observe erratic driving or a traffic violation.

Kissner, 390 N.W.2d at 60.

In Czmowski an anonymous caller reported that he followed a possible drunk driver who weaved all over interstate highway 1-90. The caller described the vehicle, gave its license plate number, and reported that the car had just gone past Sturgis. A highway patrolman radioed this information to the port-of-entry officer outside of Sturgis. This officer did not notice anything unusual about the defendant’s driving, but detained the defendant until the patrolman arrived. We held:

Viewed collectively, the anonymous first hand report that a possible drunk driver was “weaving all over the road” was corroborated by the location of the vehicle a very short time after it had been reported in Sturgis; additional corroboration was provided by the vehicle’s description, including its license plate number. These' details were similar to the corroborative details reported in Aldridge, supra. Although Dodd [port-of-entry operator] did not have personal knowledge of defendant’s driving, when all the facts were viewed together, they provided a specific and articulable suspicion upon which Dodd could detain defendant and Hindman [highway patrolman] could further investigate defendant’s ability to operate his vehicle.

Czmoivski 393 N.W.2d at 74.

In Lownes, there existed adequate reasonable suspicion to justify a stop where:

Trooper Welch received specific information relayed from a concerned citizen about a suspected violation of the law. The information included a description of a distinct motorcycle, the name of the driver, the location the motorcycle left from, a direction and highway route for the motorcycle, the particular exit the bike would use to exit the highway and a specific street destination. When the officer looked for a motorcycle matching the given description, driven by a man, proceeding down the indicated highway in the direction predicted — he found it. After Trooper Welch verified significant aspects of the information, there existed adequate reasonable suspicion to justify a Terry stop.

499 N.W.2d at 900.

In Grafs case, there was little content to the anonymous tip that served as the basis for the stop. The anonymous caller gave the license number of the car and said that the driver was “possibly” intoxicated. The caller also told police that the vehicle was being driven westbound on 10th Street in Sioux Falls. The caller described no erratic driving. No attempt was made to verify the information by locating the car on 10th Street; Officer Schmit simply went to the vicinity of Grafs home after running a check on the plates. After waiting for over one-half hour, the officer observed Grafs vehicle heading home, pulled out behind Graf, and turned on his red lights. Officer Schmit did not observe any erratic driving on Grafs part. The only facts corroborated by the police were that Graf owned a brown automobile with the given license plate number.

While the anonymous report of a private citizen may be sufficient to create reasonable suspicion for a stop, the facts of this case are in sharp contrast to the Kissner, Czmowski, and Lownes cases where anonymous telephone callers described specific facts concerning driving conduct and gave detailed information which substantiated the tip and gave it greater reliability. Alabama v. White. Here, the only facts supplied were a license number, general location of the vehicle, and a statement that the driver might “possibly” be drunk. No attempt was made *4to verify the location of the vehicle. The requirement of specific and articulable facts was simply not met.

The judgment is reversed.

HENDERSON, J., concurs with writing. AMUNDSON, J., concurs. MILLER, C.J., and SABERS, J., dissent.