Lead Opinion
[¶ 1] The North Dakota Department of Transportation (“Department”) appeals from a district court judgment reversing a hearing officer’s decision to suspend Jay Gabel’s driving privileges for ninety-one days. We affirm the district court judgment.
I
[¶ 2] On April 23, 2005, a dispatcher at the Stutsman County Sheriffs Office sent a radio message to Officer Elizabeth Kapp stating that Chad Steele had reported a vehicle traveling on Highway 281 south of Jamestown that would speed up and slow down, not allowing Steele to pass. Steele also reported the license plаte of the vehicle was “JAYBIRD.” Steele continued to follow the driver relaying his location to the dispatcher on his cell phone. Steele’s information was relayed from the dispatcher to Officer Kapp. The record does not reflect how many times Steele attempted to pass, what the road conditions were, how long Steele had been following Gabel, or at what speed Steele was attempting to pass Gabel’s vehicle.
[¶ 3] Officer Kapp passed Steele’s vehicle and located Gabel’s vehiсle. Officer Kapp measured the speed of Gabel’s vehicle at 47 miles per hour in a 65 mile per hour zone. There was no posted minimum speed limit in the area. After determining the vehicle’s speed, Officer Kapp stopped Gabel’s vehicle based on the information she received from the dispatcher. Officer Kapp did not report independently viewing a traffic violation. Her testimony indicates she did not observe erratic or suspicious driving. Officer Kapp testified she had not noticed Gabel cross the centеr line, drive on the shoulder, or commit any moving violation. Officer Kapp stated the stop was based on Steele’s report that Gabel had previously sped up in his own lane, making it difficult for Steele to pass.
[¶ 4] When stopped, Gabel stated he was recently married. He admitted he had been drinking. Officer Kapp testified she administered several field sobriety' tests with Gabel failing each test. Officer Kapp then arrested Gabel for driving under the influence of alcohol.
[¶ 5] At the administrative hearing, Ga-bel claimed Officer Kapp lacked а reasonable and articulable suspicion to justify the traffic stop of his vehicle. Gabel argued a case decided by this Court a day before the administrative hearing precluded the officer from stopping Gabel. See
[¶ 6] Gabel appealed the hearing officer’s decision to the district court arguing that Anderson controlled and the officer did not have an independent basis to supрort the traffic stop. The district court reversed the hearing officer’s decision, concluding the officer did not have the requisite reasonable and articulable suspicion to stop Gabel’s vehicle. On appeal, the Department argues the identity of the informant was known by the officer and incriminating information was relayed from the dispatcher to the officer making this case distinguishable from Anderson.
II
[¶ 7] Our review of a decision to suspend a driver’s license is governed by N.D.C.C. ch. 28-32. Anderson,
1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.
N.D.C.C. § 28-32-46.
[¶ 8] We give deference to the Department’s sound findings, but review questions of law de novo. Bjerklie v. Workforce Safety and Ins.,
[¶ 9] To justify the stop of a moving vehicle for investigation, an officer must have a reasonable and articulable suspicion the motorist has violated or is violating the law. City of Fargo v. Ovind,
[¶ 10] Both the hearing officer and the district court concluded this case was governed by Anderson v. Director, N.D. Dep’t of Transp.,
[¶ 11] To determine whether an officer has a reasonable and articulable suspicion, we examine the informatiоn known to the officer at the time of the stop and information imputed to the officer based on another officer’s directive to make a stop. State v. Boyd,
[¶ 12] Officer Kapp testified she knew the informant in her “professional capacity”; she believed he had a criminal record. We have allowed tips from known criminal informаnts to justify a stop provided the tip is otherwise reliable. State v. Anderson,
[¶ 13] The Department argues this case is stronger than Anderson v. Director, N.D. Dep’t of Transp.,
[¶ 14] The basis of the Department’s argument is that a traffic violation occurred. As authority for this conclusion, the Department cites N.D.C.C. § 39-10-11(2), which states: “the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal and may not increase the speed of that driver’s vehicle until completely passed by the overtaking vehicle.” Based on the record we have before us, it is not entirely clear the information Steele conveyed amounted to a violation of this statute. There was no information to suggest Steele made an “audible signal” that he intended to pass. The record we have is limited to Officer Kapp’s testimony:
MR. SHARP: What information did you receive out in the patrol car?
DEPUTY KAPP: That the vehicle,
JAYBIRD, would speed up, slow down, would not allow Mr. Steele to pass him.
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MR. DICKSON: You never noticed any crossing of the center line or any drivingon the shoulder or anything like that. Isn’t that correct?
DEPUTY KAPP: No.
MR. DICKSON: Okay. You never noticed ... you, yourself, never noticed any moving violations, did you?
DEPUTY KAPP: Other then I locked him in on radar 47 in a 65.
MR. DICKSON: And there’s no minimum speed on that highway, is there?
DEPUTY KAPP: If there’s traffic behind him, he’s impeding traffic.
MR. DICKSON: Officer, there’s no minimum speed on that highway, is there?
DEPUTY KAPP: No, not that I recall.
[¶ 15] Officer Kapp testified she did not observe a traffic violation. The sole reason Officer Kapp gave for justifying the stop was based on Steele’s report that Gabel had previously sped up in his own lane, making it difficult for Steele to pass. Officer Kapp testified that this unverified report provided her with sufficient information that Gabel was an impediment to traffic. Officer Kapp did not independently observe or corroborate Gabel speeding up and slowing down nor did she view Gabel impede the ability of others to pass his vehicle. Based upon the information conveyed, there is only a possibility that a violation had occurred. This is the functional equivalent of the “possible reckless driver or drunk driver” held to be insufficient to establish a reasonable and articu-lable suspicion in Anderson,
III
[¶ 16] Wе conclude, under the totality of the circumstances, Officer Kapp did not have a reasonable and articulable suspicion to justify the stop of Gabel’s vehicle. We affirm the district court’s judgment reinstating Gabel’s driving privileges.
Dissenting Opinion
dissenting.
[¶ 18]I respectfully dissent. The tip the officer received was reliable and specific. Therefore, the traffic stop was justified. Although the majority ultimately declares them to be dicta, the majority’s statements obscure established Fourth Amendment jurisprudence, blurring the standards between a citizen informant аnd a criminal informant and between reasonable suspicion and probable cause. Then, in its penultimate paragraph, the majority returns to what it has told us does not matter in order to erroneously conclude that because the officer did not corroborate the tip, the stop was not justified. I would affirm.
I
[¶ 19] The majority misstates the standard of review in administrative appeals. At ¶ 8, citing Bjerklie v. Workforce Safety and Ins.,
In construing the “preponderance of the evidence” standard to permit us to apply the weight-of-the-evidence test to the factual findings of an administrative agency, we do not make independent findings of fact or substitute our judgment for that of the agency. We determine only whether a reasoning mind reasonably could have determined that the factual conсlusions reached were proved by the weight of the evidence from the entire record.
II
[¶20] “The reasonable and articulable suspicion standard requires more than a ‘mere hunch,’ but less than probable cause.” Lapp v. N.D. Dep’t of Transp.,
[¶ 21] “As the reliability of the tip moves up on the scale, the quantity of the information sufficient to raise a reasonable and articulable suspicion is less.” Anderson v. Dir., N.D. Dep’t of Transp.,
In reaching this conclusion, we reject respondent’s argument that reasonable cause for a stop and frisk can only be based on the officer’s personal observation, rather than on information supplied by another person. Informants’ tips, like all other clues and evidence coming to a poliсeman on the scene, may vary greatly in their value and reliability. One simple rule will not cover every situation. Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized. But in some situations — for example, when the victim of a street crime seeks immediate police aid and gives a description of his assailant, or when a credible informant warns of a specific impending crime — the subtleties оf the hearsay rule should not thwart an appropriate police response.
III
[¶ 22] The majority argues that because the informant had a criminal record, implying he was a member of the “criminal milieu,” Officer Kapp had to corroborate the known informant’s tip before she could have a reasonable and articulable suspicion. The majority states, at ¶ 12, “Officer Kapp testified she knew the informant in her ‘professional capacity’; she believed he had a criminal record.” In misdirected dicta in State v. Anderson, the opinion differentiated between a member of the “criminal milieu” and a citizen informant.
Greg’s information has a higher indi-cia of reliability because he was a known informant who voluntarily gave Deputy Gress information on prior occasions. Deputy Gress testified that, except for the one occasion, Greg was always truthful. The information Greg gave in this case also had a higher indicia of reliability because Greg was in Jamestown and the information involved events in Fargo, which Officer Crane verified. Greg volunteered the information knowing his son, Daniel, could be arrested if law enforcement learned about Jesse and Daniel’s plan. Greg contacted Deputy Gress because he was worried about Jesse and Daniel’s safety and he wanted Deputy Gress’ help. Greg did not ask for anything in exchange for the information, and he was not at risk of going to jail in connection with this incident.
Id. at ¶ 17.
[¶ 28] Applying the facts of the present case to the definition of “criminal milieu” and citizen informant, this case’s informant is a citizen informant. He volunteered the information. The record contains no evidence that he somehow sought something in return for the tip. Finally, he was at no risk of going to jail, unless he made a false report to law enforcement. The record contains no evidence that thе informant was presently involved in criminal activity or enjoyed the confidence of criminals. Therefore, to imply that Mr. Steele was somehow a member of the “criminal milieu,” thus requiring validation of his tip, is baffling. The record does not contain any evidence of what his criminal history was. The majority has basically categorized all informants with a criminal past into the “criminal milieu” without consideration of what the criminal past is or how that past is relevant to the case at hand. The logical conclusion of this premise is that anyone with a сriminal past, no matter how long ago or how irrelevant, cannot be a citizen informant. The majority, at ¶ 12, states, “The officer was only able to corroborate the location of the vehicle and its license plate but unable to corroborate any illegal activity or other suspicious activity that would confirm the reliability of Steele’s tip.” Corroboration in this case is not required, because the tip was from a known citizen informant, not a member of the “criminal milieu.” The tip provided sufficient information to give Kapp a reasonable and articulable suspicion.
[¶ 24] The majority is also inconsistent in its conclusions. At ¶ 12, the majority first states, “Here, the content and quality of the officer’s information when she made the stop was insufficient to justify a stop of Gabel’s vehicle.” Five sentences later, however, the majority tells us that it is all dicta, stating, “we need not determine the reliability of Steele, because, even assuming he was a reliable informant, his tip of a vehicle speeding up and slowing down, not allowing a car to pass is insufficient to support a traffic stоp absent corroboration
[¶ 25] The majority, at ¶ 15, states, “Officer Kapp did not independently observe or corroborate Gabel speeding up аnd slowing down nor did she view Gabel impede the ability of others to pass his vehicle.” The majority again confuses the standards that apply to a citizen informant and a criminal informant and to a known informant and an anonymous tip. Officer Kapp could base her reasonable and artic-ulable suspicion on the information provided by the informant. Furthermore, the majority, at ¶ 15, states, “Based upon the information conveyed, there is only a possibility that a violation had occurred. This is the functional equivalent of the ‘possible recklеss driver or drunk driver’ held to be insufficient....” Under the reasonable-suspicion standard, however, a “possibility” of a violation is all that is required as long as “ ‘a reasonable person in the officer’s position would be justified by some objective manifestation to suspect potential criminal activity.’ ” Kappel,
TV
[¶ 26] The majority wrongly concludes that this case is indistinguishable from Anderson v. Dir., N.D. Dep’t of Transp.,
Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal and may not increase the speed of that driver’s vehicle until completely passed by the overtaking vehicle.
The majority attempts to ignore this specific, erratic driving by stating, at ¶ 14, “Based on the record we have before us, it is not entirely clear the information Steele conveyed amounted to a violation of this statute. There was no information to suggest Steele made an ‘audible signаl’ that he intended to pass.” The fact that every element of the violation may not have been met, however, is irrelevant when measuring Officer Kapp’s reasonable and articula-ble suspicion, because she was not required to know, for a fact, that Gabel had committed a violation. Her job was to respond to a known informant’s specific tip of erratic driving. When Officer Kapp arrived, she observed Gabel driving forty-seven miles per hour in a sixty-five mile-per-hour zone. If “JAYBIRD” was speeding up and slowing down, a slow speed would lоgically be suspicious conduct to corroborate the tip. Steele’s tip was more than the “functional equivalent” of the tip in Anderson.
V
[¶ 27] Ultimately, Officer Kapp was given a specific, rehable tip from a known informant. Upon arriving at the scene, Officer Kapp observed Gabel driving forty-seven miles per hour in a sixty-five mile-per-hour zone, which, although not illegal, is unusual and would logically be the conduct that might be observed if someone were driving slowly, speeding up to prevent a pass, and then slowing down again. One cannot logically expect, however, that Gabel would continue speeding up to prevent a pass after an officer had arrived on the scene. Therefore, corroboration of the exact conduct Gabel was accused of, in addition to being unnecessary, was unlikely to happen. Officer Kapp did not have to corroborate the tip or observe illegal conduct to have a reasonable and articulable suspicion; the reliable tip alone was enough.
VI
[¶ 28] I would reverse the district court and reinstate the Department’s order.
[¶ 29] Dale V. Sandstrom