Lead Opinion
This prosecutor’s appeal requires us to decide what amount of information supplied by an unnamed citizen, who provides a face-to-face contemporaneous tip about potentially dangerous or erratic driving, is sufficient to justify an investigative stop of a moving vehicle. On defendant’s motion to suppress evidence, the circuit court dismissed defendant’s charge of operating a motor vehicle while intoxicated, MCL 257.625, on the ground that the police officer lacked a reasonable articulable suspicion that defendant was involved in criminal activity. We disagree and reverse.
I. BASIC FACTS
On March 17, 2008, defendant was issued a citation for driving while intoxicated. Defendant moved to suppress the evidence of his intoxication and dismiss the charge on the basis that the stop of his vehicle was unreasonable and unconstitutional.
The district court held an evidentiary hearing on July 11, 2008. The only witness to testify was Michigan State Trooper Christopher Bommarito, who had stopped defendant’s vehicle and issued defendant the citation. Bommarito testified that on the evening of March 17, 2008, which was Saint Patrick’s Day, he was on regular patrol, driving a fully marked police car. As part of his assignment that evening, he was conducting a property inspection at a bar called Malarkey’s. Bommarito indicated that the bar’s parking lot was full of patrons, a “big party tent” was set up in the parking lot, and he was there to look for problems, such as people urinating outside. After his inspection, Bommarito left the Malarkey’s parking lot and headed
The district court denied without explanation defendant’s motion to suppress. Before the matter could proceed to trial, defendant appealed the district court’s decision in the circuit court, arguing that Bommarito lacked a reasonable suspicion to stop his vehicle. The circuit court reversed on the basis that Bommarito had no reasonable, articulable suspicion that a crime was afoot, but merely had a hunch, and therefore the stop violated defendant’s Fourth Amendment rights. It dismissed the charge against defendant.
Plaintiff then filed for leave to appeal in this Court. Initially, this Court denied leave to appeal, People v Barbarich, unpublished order of the Court of Appeals, entered June 3, 2009 (Docket No. 290772), and the matter was appealed in our Supreme Court. In lieu of granting leave to appeal, the Court remanded the case to this Court “for consideration as on leave granted.” People v Barbarich,
II. STANDARD OF REVIEW
We review de novo the circuit court’s ultimate ruling on a motion to suppress evidence. People v Davis,
III. GENERALLY APPLICABLE LAW
The Fourth Amendment of the United States Constitution and article 1, § 11 of the Michigan Constitution protect against unreasonable searches and seizures.
As subjective as this test may be, several categories of permissible warrantless searches and seizures are well established in Fourth Amendment jurisprudence, including “exigent circumstance, searches incident to a lawful arrest, stop and frisk, consent, and plain view.” People v Brzezinski,
The only exception applicable in the present case is the investigative stop, also known as a Terry stop. Terry v Ohio,
When a court is called upon to determine whether a defendant’s Fourth Amendment rights have been violated in the context of a Terry stop, it should view the totality of the circumstances in light of commonsense judgments and inferences about human behavior, People v Horton,
A. FEDERAL JURISPRUDENCE: UNITED STATES v WHEAT
No precedential^ binding Michigan case has addressed the exact factual situation before this Court, i.e., an investigative stop of a moving automobile based solely on a citizen informant’s face-to-face tip about driving that potentially poses a danger to persons or property. However, the United States Court of Appeals for the Eight Circuit has considered a factual situation similar to the one at issue. In United States v Wheat,
After extensively reviewing caselaw on the matter, the court determined that the amount of information necessary to justify an investigative stop based on an anonymous tipster’s report of erratic driving is less than that required for other types of criminal activity that pose less immediate danger. Id. at 729-730, 733-734. The court indicated that a tip can provide reasonable suspicion for a stop if “the anonymous tipster . . . provide [s] a sufficient quantity of information” and that the quality, or reliability, of the information conveyed need only be corroborated in its innocent details. Id. at 731, 735. With regard to the former, the quantity of information must include sufficient detail to ensure that the car identified by the police is the same as the one identified by the informant, and may include such information as “the make and model of the vehicle, its license plate numbers, its location and bearing, and similar innocent details . ...” Id. at 731. The information must also “support an inference that the tipster has witnessed an actual traffic violation that compels an immediate stop.” Id. at 732. The court reasoned that less is required with regard to predictive elements of reliability because of the imminent danger that erratic, and possibly drunk, driving poses and because of the tipster’s obvious basis of knowledge, i.e., firsthand contemporaneous observations. Id. at 734-737.
Applying this test to the circumstances before it, the court ruled that reasonable articulable suspicion justified the officer’s investigative stop:
An anonymous caller provided an extensive description of a vehicle that, based on his contemporaneous eyewitness observations, he believed was being operated dangerously, and cited specific examples of moving violations. When Officer Samuelson caught up with the vehicle minutes later while it was stopped at an intersection, he corroborated all its innocent details, confirming that it was the one identified by the tipster. Within seconds after the vehicle resumed motion, Officer Samuelson effected an immediate investigatory stop, rather than allow it to proceed and potentially endanger other vehicles. Under the totality of the circumstances, he had reasonable suspicion to do so, and the stop was valid under the Fourth and Fourteenth Amendments. [Id. at 737.]
While no Michigan case has applied the less rigorous test adopted in Wheat, this Court addressed a similar factual situation involving a tip about an automobile accident in People v Estabrooks,
[T]he fact that the motorcyclist was actually present and accusing defendant immediately after the rear-endings indicated reliability on the part of the informant. Second, the fact that the informant actually pointed out defendant’s car to Officer Summers provided her with precise and easily verifiable information, which also indicated that the information was reliable. [Id. at 536-537.]
The Court rejected the defendant’s argument that, because the informant had indicated no criminal activity, the police officer could not have stopped the defendant without some personal observation of the traffic violation. The Court reasoned that, on the basis of the information provided, the officer could have reasonably concluded that a crime had occurred, including leaving the scene of a motor vehicle accident, felonious assault, or operating under the influence of liquor (OUIL). Id. at 538. The Court noted, “It is not vital that [the officer] knew exactly what crime was being committed or would be charged when [the officer] decided to stop defendant, only that the circumstances justified the stop.” Id. at 538-539. Consequently, this Court reversed the circuit court’s order that had dismissed the defendant’s OUIL conviction. Id. at 539.
Although Estabrooks applied Tooks to conclude that the tip contained sufficient indicia of reliability to justify the stop, the rule in Tooks was adopted in a different context and does not adequately take into account the relevant interests that must be balanced in determining whether a vehicle stop based on a citizen’s tip about erratic driving is reasonable. In Tooks, an in-person anonymous tipster who was on foot informed the police that he had seen the defendant show a gun to two other men. Tooks,
The exigency here, and the one that existed in Estabrooks, is heightened in comparison to a tip informing a police officer of a concealed weapon or other clandestine contraband. In the latter instance, the police have the opportunity to observe the suspect from afar to possibly confirm or dispel any suspicions or to corroborate the tip and may have the opportunity to initiate a consensual encounter. In other words, the threat of imminent danger is not necessarily as high as in the present case, in which an erratic driver threatened the lives of fellow drivers. See Wheat,
where an anonymous tip alleges erratic and possibly drunk driving, a responding officer faces a stark choice.... [H]e can intercept the vehicle immediately and ascertain whether its driver is operating under the influence of drugs or alcohol. Or he can follow and observe, with three possible outcomes: the suspect drives without incident for several miles; the suspect drifts harmlessly onto the shoulder, providing corroboration of the tip and probable cause for an arrest; or the suspect veers into oncoming traffic, or fails to stop at a light, or otherwise causes a sudden and potentially devastating accident. [Id. (citation omitted).]
See also Christie,
The Estabrooks Court did not explicitly recognize the heightened interest at stake. Indeed, there was no need for it to do so because the exact question that is now before this Court was not at issue in Estabrooks. Rather, as noted, the defendant in Estabrooks simply argued that the informant had to provide information pertaining to a specific crime, not merely a traffic violation. Thus, while we do not disagree with the outcome in Estabrooks or its analysis, we must make clear that less information is required from citizen informants reporting contemporaneous incidents of erratic or potentially dangerous driving to justify an investigative stop than a strict application of Tooks would suggest. The Estabrooks Court appears to have implicitly recognized this principle, but did not articulate it, in holding that an investigative stop may be justified on the totality of the circumstances even if the informant’s tip did not designate a crime.
Certainly, the courts of this state have already recognized, albeit not in cases involving citizen tips, that fewer foundational facts are necessary to justify a stop of a moving vehicle than would be required to search a home or to either stop or search that same vehicle. People v Whalen,
IV ANALYSIS
In this case, on Saint Patrick’s Day in 2008, a citizen was driving north on Dix Road, and she passed Trooper Bommarito, who had just left the parking lot of Malarkey’s and was driving south on Dix Road. As she passed, she made eye contact with Bommarito, pointed to defendant’s vehicle directly in front of her, and mouthed the words “almost hit me.” Bommarito immediately made a U-turn, turned on his siren and emergency lights, and followed defendant’s vehicle into the parking lot of Malarkey’s. He did not observe defendant drive in an erratic manner.
The woman’s action of pointing to the vehicle in front of her was sufficient to accurately identify defendant’s vehicle and provided precise and verifiable information to the officer, which also strongly suggests that the information was reliable. The basis of the informant’s knowledge was obvious — it can be inferred from her statement, “Almost hit me,” and her action of pointing to the vehicle traveling immediately in front of her that defendant’s vehicle had recently almost come into contact with the woman’s vehicle; her tip was clearly based on firsthand and contemporaneous observations, which further confirms the veracity of the information. Moreover, had Bommarito wished to obtain the informant’s personal information he could have, by looking up her license plate number. Accordingly, the fact that the tipster was actually face to face with Bommarito when she relayed the tip, and thus likely knew that she could be subject to police questioning, further indicates that she was credible and that the information she provided was reliable. In addition, her statement, “Almost hit me,” was sufficient to support an inference that an actual traffic violation had occurred. While it is true that the statement could be consistent with legal behavior, it was also enough to create an inference that defendant had been driving erratically in contravention of MCL 257.626 (reckless driving, a misdemeanor), MCL 257.626b (careless or negligent operation of a motor vehicle, a civil infraction), or MCL 257.625 (operating a motor vehicle while intoxicated). See also Christie,
Certainly more facts could have strengthened the officer’s suspicion, but in cases involving tips of erratic driving of a motor vehicle, fewer facts are necessary to justify an investigative stop. Wheat, F3d at 730-737; Whalen,
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Notes
The Michigan Constitution is construed to provide the same protection as that provided by the Fourth Amendment absent a compelling reason to do otherwise. People v Levine,
Published cases issued before November 1, 1990, are not preeedentially binding on this Court, although they may be persuasive authority. MCR 7.215(J)(1).
Dissenting Opinion
(dissenting). Today the majority empowers private citizens to select certain motorists for warrantless searches and seizures conducted by police officers lacking probable cause or any reasonable suspicion of criminal conduct. Because the Fourth Amendment prohibits seizures premised on accusations utterly devoid of objective or specific facts, I respectfully dissent.
Michigan State Eolice Officer Christopher Bommarito testified that he initiated a traffic stop of defendant Shaun Barbarich’s truck immediately after a woman driving a red pickup truck pointed to Barbarich’s vehicle and mouthed the words “almost hit me.” Bommarito recalled that he probably read the woman’s lips because the windows of her vehicle and his were likely closed. Bommarito admitted that he possessed no other facts or information about the woman or Barbarich when he decided to make the stop:
Q. And so at the time that she mouthed that, did — when did you turn on your overheads?
A. I immediately turned my patrol car around and turned my emergency lights and sirens on to initiate a stop on that vehicle.
Q. Okay. So, at that point-in-time, when you saw what you thought was her mouthing that he almost hit me, you immediately decided at that point-in-time to stop Mr. Barbarich?
A. Correct.
Bommarito acknowledged that he made no attempt to look for the driver of the red pickup truck and could provide no information about her.
The majority concludes, “The woman’s action of pointing to the vehicle in front of her was sufficient to accurately identify defendant’s vehicle and provided precise and verifiable information to the officer, which also strongly suggests that the information was reliable.” Ante at 480. According to the majority, “[T]he fact that the tipster was actually face to face with Bommarito when she relayed the tip, and thus likely knew that she could be subject to police questioning, further indicates that she was credible and that the information she provided was reliable.” Ante at 480-481. In reaching these conclusions, the majority substantially relies on a decision of the United States Court of Appeals for the Eighth Circuit, United States v Wheat,
The protections afforded by the Fourth Amendment “extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest.” United States v Arvizu,
To satisfy the Fourth Amendment’s objective standard, a police officer must be able to articulate more than “an ‘inchoate and unparticularized suspicion or “hunch” of criminal activity.’ ” Illinois v Wardlow, 528 US 119, 123-124;
In Tooks,
In finding reliable the information supplied by the informant in Tooks, our Supreme Court drew heavily on the second factor, which concerns the specificity of the informant’s information:
This finding is enhanced by and is especially true in light of the second related factor; the detailed information provided regarding the suspects which allowed independent verification by the police of any persons investigated pursuant to that information. The importance of the preciseness of description allowing independent verification is great, as demonstrated by Draper v United States,358 US 307 ;79 S Ct 329 ;3 L Ed 2d 327 (1959), where an informant’s information was found to give police sufficient probable cause to arrest.... This kind of detail not only enhances the reliability of the information, but prevents the danger of widespread intrusion by indiscriminate stopping and frisking of members of the public. [Tooks,403 Mich at 578-579 .]
The Court later emphasized that it was “impressed with the detail and preciseness of the information given to the officers.” Id. at 579-580. Moreover, the citizen-informant’s information “was verified by the officers very shortly after it was given to them and within a few blocks of the location in which the officers had been given the information.” Id. at 580.
In Florida v JL,
In assessing whether a police officer possessed reasonable suspicion to stop a vehicle, courts have to take into account both the quantity (content) and quality (reliability) of the available information. Alabama v White,
Although the woman in the oncoming pickup truck came face to face with Bommarito for a second or two, Bommarito did not know her or where he could locate her again. Bommarito conceded that he did not have an opportunity to observe the woman’s license plate because “my focus was on that vehicle that she pointed out to me.” Therefore, Bommarito had no information to help him assess the informant’s veracity or her motive in making the accusation against Barbarich, and he entirely lacked any data validating the reliability of the information she relayed. The majority asserts that “the fact that the tipster was actually face to face with Bommarito when she relayed the tip, and thus likely knew that she could be subject to police questioning,” enhances her credibility and the reliability of her tip. Ante at 480-481. But no evidence of record tends to establish that the woman “likely knew” that Bommarito could question her; the majority appears to have conjured this “fact” from thin air. To the contrary, Bommarito admitted that he did not know where the woman traveled after he “went to stop [Barbarich’s] vehicle.” Bommarito also conceded that he made no attempt to look for the woman. In my view, the woman’s departure from the scene entirely undermines the majority’s characterization of her reliability, credibility, and general good citizenship. The woman’s absence also distinguishes this case from People v Estabrooks,
Furthermore, the unique situation here, a lip-read tip delivered by a rapidly passing motorist, shares no pertinent similarities to those face-to-face tips that are entitled to a finding of reliability. Usually, “[a] face-to-face encounter provides police officers the opportunity to perceive and evaluate personally an informant’s mannerisms, expressions, and tone of voice (and, thus, to assess the informant’s veracity more readily than could be done from a purely anonymous telephone tip).” United States v Romain,
Moreover, the woman supplied Bommarito with only a bare conclusion: “Almost hit me.” This declaration contained no detail concerning the circumstances of the alleged near miss or any facts from which Bommarito could reasonably conclude that Barbarich had likely violated any law. In countless situations drivers “almost hit”
However, even assuming that Bommarito legitimately translated “almost hit me” into “driving recklessly,” MCL 257.742(3) circumscribed as follows Bommarito’s authority to stop a vehicle:
A police officer may issue a citation to a person who is a driver of a motor vehicle involved in an accident when, based upon personal investigation, the officer has reasonable cause to believe that the person is responsible for a civil infraction in connection with the accident. A police officer may issue a citation to a person who is a driver of a motor vehicle when, based upon personal investigation by the police officer of a complaint by someone who witnessed the person violating this act or a local ordinance substantially corresponding to this act, which violation is a civil infraction, the officer has reasonable cause to believe that the person is responsible for a civil infraction and if the prosecuting attorney or attorney for the political subdivision approves in writing the issuance of the citation. [Emphasis added.]
The Michigan Vehicle Code, MCL 257.1 et seq., proscribes reckless driving, which it defines as driving “in willful or wanton disregard for the safety of persons or property....” MCL 257.626(2). Absent any further description of Barbarich’s driving, no evidence tended to prove that Barbarich had operated his vehicle in a manner consistent with willful or wanton disregard for the safety of persons or property. The vehicle code also proscribes careless or negligent driving, which includes vehicle operation in a “careless or negligent manner likely to endanger any person or property, but without wantonness or recklessness ....” MCL 257.626b. But the statement “almost hit me,” without more information, hardly establishes reasonable
Even if the woman’s declaration could be construed as conveying that Barbarich had driven carelessly or recklessly, Bommarito nevertheless lacked the authority to stop Barbarich’s truck. At most, the tip suggested that Barbarich had committed a civil infraction. A civil infraction “is not a crime” under Michigan law, MCL 257.6a, and the probable-cause standard applies to vehicle stops premised on civil infractions. “As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Whren v United States,
In my view, the majority ignores the critical difference between stopping a vehicle on the basis of a tip suggesting a crime in progress and a tip hinting at the commission of a civil traffic offense. Relying largely on Wheat,
On May 3, 1996, a motorist used his cellular phone to place a 9-1-1 call to the Blairsburg, Iowa Eolice Department. The caller reported that a tan- and cream-colored Nissan Stanza or “something like that,” whose license plate began with the letters W-O-C, was being driven erratically in the northbound lane of Highway 169, eight miles south of Fort Dodge, Iowa. The caller complained that the Nissan was passing on the wrong side of the road, cutting off other cars, and otherwise being driven as if by a “complete maniac.” The 9-1-1 operator did not ask the caller to identify himself.
Police dispatchers relayed the caller’s tip to patrolling officers. Shortly thereafter, Officer Paul Samuelson observed a tan Nissan Maxima whose license plate began with the letters W-O-C, stopped in the northbound lane of Highway 169 at the intersection of Highway 20. The Nissan made a right turn, and Officer Samuelson stopped it immediately, without having observed any incidents of erratic driving. [Id. at 724-725 (emphasis added).]
The details offered by the Wheat tipster gave rise to a reasonable inference that the driver of the Nissan was driving while impaired. The Eighth Circuit expressly recognized the importance of the tip’s specificity: “In all cases .. . the more extensive the description of the alleged offense, the greater the likelihood that the tip will give rise to reasonable suspicion.” Id. at 732 n 8. The court emphasized that a tip justifying a stop “must also contain a sufficient quantity of information to support an inference that the tipster
Finally, I respectfully take issue with the majority’s rationalization of its decision by means of the precept that “the higher the governmental interest, the more likely a warrantless search or seizure is to be reasonable, especially if the implicated individual interest is low.” Ante at 472. In Delaware v Prouse,
[a] central concern in balancing these competing considerations in a variety of settings has been to assure that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. To this end, the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. [Brown v Texas,443 US 47 , 51;99 S Ct 2637 ;61 L Ed 2d 357 (1979) (citation omitted).]
In this case, the tip provided Bommarito with an accusation suggesting that perhaps Barbarich had driven carelessly. However, the tipster offered no specific, objective facts reasonably establishing that Barbarich was driving while impaired. “The needs of law enforcement stand in constant tension with the Constitution’s protections of the individual against certain exercises of official power. It is precisely the predictability of these pressures that counsels a resolute loyalty to constitutional safeguards.” Almeida-Sanchez v United States,
I would hold that an uncorroborated tip from an unidentifiable source lacking any pertinent detail and suggesting only an ordinary traffic violation cannot serve as a vehicle for violating the Fourth Amendment, and thus dissent.
In this regard, the instant case is additionally distinguishable from Estabrooks. In that case, the informant advised a police officer that the defendant had rear-ended his motorcycle several times. Estabrooks,