State v. Roybal

NEHRING, Justice,

dissenting:

¶ 26 I respectfully dissent because I believe that under the totality of the circumstances, Sergeant Ledford did not have reasonable suspicion to stop Mr. Roybal.

¶ 27 In order to make a lawful traffic stop, an officer must have reasonable articulable suspicion that the subject of the stop is involved in criminal activity. See State v. Kohl, 2000 UT 35, ¶ 11, 999 P.2d 7. The majority correctly notes that while the articulable facts supporting reasonable suspicion are “most frequently based on an investigating officer’s own observations and inferences,” in some circumstances, an officer may rely on other sources of information to make a stop, including 911 dispatch reports based on informant tips. See supra ¶ 14.

¶28 However, the fact that an officer receives information from police dispatch does not necessarily end the reasonable suspicion inquiry. Indeed, where “the investigation end[s] in arrest and the stop’s legality [is] attacked, the State must — -albeit after the fact — establish that adequate articulable suspicion initially spurred the dispatch.” Kaysville City v. Mulcahy, 943 P.2d 231, 235 (Utah Ct.App.1997) (internal quotation marks omitted); see also Salt Lake City v. Bench, 2008 UT App 30, ¶ 14, 177 P.3d 655 (“To establish that adequate articulable suspicion spurred the dispatcher’s broadcast, the prosecution must show that [the informant’s] tip was reliable.”).

¶ 29 We assess whether the dispatcher had reasonable suspicion based on the content of the information provided by the informant and its degree of reliability. See id. ¶ 7 (citing Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)). “Both factors — quantity and quality — are considered in the ‘totality of the circumstances’ analysis.” State v. Roybal, 2008 UT App 286, ¶ 10, 191 P.3d 822 (quoting White, 496 U.S. at 330, 110 S.Ct. 2412). Although the reliability of a tip is based on the totality of the circumstances, we have traditionally *1025focused on three considerations: (1) the type of informant involved, (2) how much detail the informant provided about the observed criminal activity, and (3) any corroboration obtained through the police officer’s personal observations. See id. ¶ 11; see also Mul-cahy, 943 P.2d at 235-36.

¶ 30 As to the first consideration, I agree with the majority’s statement that although Ms. MeCaine — the supplier of the information to the dispatcher — had some personal involvement in this case as Mr. Roybal’s live-in girlfriend, she is still an identified citizen-informant and is thus entitled to a presumption of reliability. See supra ¶ 19.

¶ 31 The majority’s analysis of the second and third considerations is more troubling. The record indicates that Ms. MeCaine called 911, upset after a verbal fight with her live-in boyfriend. When the dispatcher asked Ms. MeCaine to tell her “exactly what [was] happening,” Ms. MeCaine replied, “[t]he person that’s been living with me is an a — hole, and I want him the f— out of here.” The dispatcher asked Ms. MeCaine if she had been assaulted, to which Ms. MeCaine responded, “just about, yes.” However, a few moments later Ms. MeCaine contradicted herself when she confirmed that no physical violence had occurred. The dispatcher then asked if her boyfriend had been drinking. Ms. MeCaine responded, “We both have.” When the dispatcher asked Ms. MeCaine where her boyfriend currently was, Ms. MeCaine replied, “[h]e’s out putting stuff in his van ... He’s going to be gone before you get here.” The dispatcher asked Ms. MeCaine what kind of car her boyfriend drove. Ms. MeCaine told the dispatcher that he drove a white van and gave the dispatcher a partial license plate number. When asked where her boyfriend was going, Ms. MeCaine stated, “I have no idea. He’s heading south.”

¶ 32 From this communication, the majority concludes that the dispatcher had reasonable suspicion that Mr. Roybal was driving under the influence. See supra ¶20. The majority reasons that since Ms. MeCaine admitted to drinking with Mr. Roybal and “was noticeably intoxicated on the phone,” “the dispatcher could make the reasonable inference that [Mr.] Roybal was similarly intoxicated, and now driving.” See id.

¶ 33 I am troubled by the inference made by the majority. When the information Ms. MeCaine gave to the dispatcher is examined in its totality, it reveals that Ms. MeCaine provided little detail about the alleged criminal activity. See State v. Case, 884 P.2d 1274, 1279 (Utah Ct.App.1994) (stating that corroborating details based on a person’s physical description “is not corroboration of criminal activity”). The information from the dispatcher established only that Mr. Roybal was in a white vehicle and that he had something to drink.

¶ 34 People drinking together can individually consume various amounts of alcohol, or no alcohol at all, and it is erroneous to assume that the mere fact that people are together means they have had the same amount to drink. As the court of appeals stated below, “the statement that a person has been drinking, by itself — with no other facts regarding the amount of alcohol consumed, the type of beverage consumed, or the period of time over which the person consumed the alcohol ... does not provide an adequate basis on which to rationally infer that the person has an alcohol level beyond the legally proscribed limit or that the person consumed alcohol to the extent that he or she could not safely drive a vehicle.” Roybal, 2008 UT App 286, ¶ 15, 191 P.3d 822 (citations omitted).

¶ 35 Sergeant Ledford’s personal observations further negate the “inference” that Mr. Roybal was driving under the influence. In response to the dispatcher’s call, Sergeant Ledford located a white van not far from Ms. McCaine’s house. Instead of stopping the van immediately, Sergeant Ledford followed Mr. Roybal as he drove. He observed no traffic violations. Instead, he observed that Mr. Roybal was traveling “slowly and carefully.” Sergeant Ledford testified that based on his experience as an officer, this uniformly hyper-competent driving was an effort to avoid his police car.

¶ 36 According to the majority, this observation “does not disprove or contradict ... that [Mr.] Roybal was driving under the influence.” Supra ¶ 22. I disagree.

*1026¶ 37 Our court of appeals has soundly rejected the implication that the State can impute unlawful activity to hyper-cautious driving. In Bench, the court of appeals noted:

Safe, ultra-cautious driving, however, even if motivated by a desire to avoid police contact, does not, without more, create reasonable suspicion sufficient to justify a traffic stop. Simply put, a desire to avoid an encounter with police does not indicate that a person is driving while intoxicated or is otherwise engaged in criminal activity-

2008 UT App 30, ¶ 12, 177 P.3d 655. I would bestow the imprimatur of our court on this analysis from Bench. Although Sergeant Ledford had some information that Mr. Roybal may have been driving under the influence, the quantity and detail of this information was sparse, and its reliability was put into question when Sergeant Ledford’s personal observations were inconsistent with the information. Thus, based on the totality of the circumstances in this case, I believe that Sergeant Ledford lacked the reasonable suspicion he needed to stop Mr. Roybal for driving under the influence.