State v. Prendergast

рermit, A. This interim shall an “interim” os- permit water use MR-Wai‘ola use 174C-49(a). § cease to be shall be tensibly pursuant interim and to HRS 174C-55,[ subject § come to [HRS] 471upon the administrative review of IV. CONCLUSION quantity years, provid within 5 (including ed that all of the use discussion, foregoing On of the the basis review quantity of the which shall or- we vacate the Commission’s decision and greater not be than the ini amount der and remand matter to the Commis- tially granted) remain same. proceedings sion for further consistent added.) Furthermore, opinion. (Emphases an- its brief,

swering the Commission seems to reaf- validity firm the of its decision issue an ACOBA, J., concurring separately. permit by use stating “interim” that “the I concur in-the result. decision order contain ele- additional just ments ensure a situ- reasonable .... The

ation additional are that elements ...

the Commission issues an water interim permit only years though

use even for five the Commission has the to issue a latitude

permit longer (Emphasis time.” add- for ed.) 83 P.3d 714 put, glean Simply we are unable FOFs, COLs, part other Hawai'i, Plaintiff-Appellee, STATE of before us the

record Commission’s reasons issuing an permit “interim” use present Although proposed matter. well PRENDERGAST, L. William “fu- “existing” would accommodate both Defendant-Appellant. 146,370 uses—e.g., pro- gpd ture” from the posed well would customers existing service No. 24793. appli-

on Moloka'i—MR—Wai'ola’swater use Supreme Court of Hawai'i. groundwater cation seeks establish new from which to Cur- source make such uses. Feb. rently, MR-Wai‘ola does not control potable groundwater service its source Rather,

existing customers on Moloka'i. ‍‌​​‌​‌‌​‌‌‌‌​​‌​​‌‌​​​​‌‌​‌​​‌​​​​​‌‌‌​​‌‌‌​​​​‌‍as noted, purchases water

we have MR-Wai‘ola DHHL, County,

from the KMI. Conse-

quently, proposed well in Kamiloloa its exist-

would enable MR-Wai‘ola to service directly without an

ing and future customers

intermediary wholesaler.48 We therefore proposed well Kamiloloa

hold use, irrespective a “new”

constitutes portion

whether of the water there- derived purposes; existing

from would be utilized for

accordingly, grant- the Commission erred (1993) provides: reflects that MR-Wai'ola intended

47. HRS 174C-55 The record permits. purchase agreement permit its Duration of Each for water to discontinue designated management in a water area County granted use event that the in the Commission designation be valid until the of water shall permit present in the matter. See it a water use rescinded, management area is revoked unless supra note 8. provided in modified as section 174C-58 or provided in section 174C-57. Zane, Defender,

Bryant Deputy on Public briefs, defendant-appellant William L. Prendergast. Watanabe, Deputy Prosecuting

Arleen Y. briefs, Attorney, plaintiff-appellee for. Hawaii. State of MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, DUFFY, JJ.; J., separately. concurring DUFFY, Opinion of the Court J. Dеfendant-appellant L. William Prender- appeals gast from the second circuit court’s judgment of conviction and sentence for driv- ing intoxicating liquor influence under the [hereinafter, filed on November “DUI”] Prendergast argues that the district erroneously sup- denied his motion press evidence recovered as a result of anonymous tip that he was erratical- ly. following, Based on the we affirm the ruling sup- district court’s on the motion to press judgment as well as district court’s and sentence. of conviction

I. BACKGROUND 7, 2001, p.m. May approximately At 9:05 (MPD) Department Maui Police Officer Gor- Sagun was at the Kihei Police Station. don Sagun dispatcher The MPD called Officer caller, him that a who identi- and informed Gilbert, reported Daniel fied himself as with license a silver Honda Accord the cen- number EGN 656 had crossed over Honoapillani highway; thé caller ter line on reported that the had almost caused Accord 4(a)(1) (Supp.2000)1 several head-on and had hit collisions almost and with driv- reckless guardrail. of vehicle in The caller violation HRS 291-2 dispatcher told the (Supp.2000).2 Prendergast supr moved to the Accord had turned on to North press the evidence obtained from the war- Road, Klhei dispatcher relayed search person rantless and seizure of his to Sagun. information Officer dispatch- The court, property. The district the Honorable er Sagun Officer informed that the caller E. Barclay presiding, MacDonald denied the was on the other calling line and was suppress. Prendergast motion subse- phone. cellular DUI, quеntly plea of entered no contest to At approximately p.m., Sagun 9:13 Officer upon right appeal conditioned his the deni- traveling north on North Klhei Road exchange, al of motion to suppress; his vehicles, when he saw line of including prosecution dismissed count of reckless matching Accord description, the caller’s driving. Prendergast appeal filed a notice of traveling south on North Klhei Road. Officer 20, with this court on December Sagun testified there were three or four ears in front of the Accord and two or three II. STANDARDS OF REVIEW it, cars behind that the cars all “were A. Constitutional Law pretty much together.” bunched he After questions “We answer of constitution passed cars, the Accord other and the Officer by al exercising independent law our own Sаgun turned already around. He had acti- judgment based on the of facts the case. siren; lights vated his blue or two Thus, questions we review of constitutional over, pulled three cars behind the Accord ‘righVwrong’ law under the standard.” State Sagun and Officer to catch with up was able Jenkins, 87, 100, 93 Hawai'i P.2d the Accord. (2000) (citations and internal quotation Sagun Officer personally did not observe omitted). signals Instead, moving erratically. Accord he pulled over the Accord soon as as he turned Suppress B. Motion to around. He testified that “the call came “An appellate ruling court reviews a driver; down I stop as a reckless wanted to suppress on a motion to de novo to determine him already. He ” almost caused a head-on ruling ‘right’ ‘wrong.’ whether the or collision, saying.” that’s what the caller was 70, 72, Rodgers, State v. Hawai'i 53 P.3d 209, 211, denied, The caller indicated he was a tourist recons. 98 Hawai'i (2002). P.3d 373 and was unable to going because he was airport. The district found that III. DISCUSSION there no further information about the caller other than that name his was Daniel Stop A. A is a “Seizure” Under the Traffic Gilbert. Fourth Amendment the United States I, Constitution and Article Section prosecution subsequently charged The of the Hawai'i Constitution. driver, Prendergast, driving under liquor intoxicating influence of of violation United States Court has (HRS) Hawai'i stops § Revised 291- when a Statutes held that an auto- 1, 2002; 291-4(a)(l) provided: § repealed January HRS This statute was 29IE, Chapter of HRS Operating "Use Intoxicants While Driving intoxicating under the of influence Vehicle,” subject now covers this (a) person A liquor, of commits оffense 2003); (Supp.2000 § matter. See HRS & 291-4 driving intoxicating of li- under influence Chapter (Supp.2003). HRS 291E quor if: person operates provides: or 2. HRS 291-2 assumes actual physical operation any control of the vehi- operates Whoever vehicle or rides intoxicating cle while under the influence of disregard safety recklessly animal liquor, meaning is concerned persons property guilty or reckless animal, intoxicating liquor under influence of riding of vehicle or reckless of an impair person’s an amount sufficient appropriate, ‍‌​​‌​‌‌​‌‌‌‌​​‌​​‌‌​​​​‌‌​‌​​‌​​​​​‌‌‌​​‌‌‌​​​​‌‍and shall be fined not than more $1,000 ability imprisoned thirty mental or normal faculties to care not more than guard against casualty!.] days, oneself both. the officer indeed had occupants, detains its a “seizure” To detеrmine whether mobile and implicate specific as to the fourth and and articulable facts occurs so stop, totality investigative fourteenth amendments to the United States we examine Prouse, objective Constitution.3 Delaware v. U.S. the circumstances measured 648, 653, Arvizu, 99 S.Ct. 59 L.Ed.2d 660 United States v. standard. (1979); Bolosan, 92, 266, 273, 78 Hawai'i 151 L.Ed.2d 740 (1995).4 (2002) (“When discussing reviewing how reasonable-suspicion should make de- courts presume warrantless terminations, repeatedly we have said and until search or seizure is invalid unless ‘totality they must look at the circum- prosecution proves that the search or of each to see whether stances’ case well-recognized within seizure falls a and detaining ‘particularized officer and has narrowly exception defined to the warrant legаl objective suspecting wrongdo- basis’ for 433, requirement. Lopez, State v. 78 Hawai'i Barnes, 338, ing.”); 58 Haw. at 568 P.2d at 889, (1995). 442-43, If 896 P.2d 898-99 (“The 1211 ultimate test these situations burden, prosecution to fails meet facts, must be whether from these measured illegal obtained from search will evidence standard, objective a man of by an reason- suppressed poisonous as “fruit of the believing able caution would be warranted 462, Fukusaku, v. Hawai'i tree.” State 85 activity that criminal afoot and that the was 32, 475, (1997); Wong 946 P.2d 45 also see taken appropriate.”). action was States, 471, 484-85, Sun v. United 371 U.S. 407, (1963). 83 S.Ct. 9 L.Ed.2d 441 Anonymous Tip Frequently B. An In- excep narrowly One such defined Justify to a Search or Seizure. sufficient requirement to the warrant is that tion Both this the United court and States Su- may stop an automobile and preme placed po- Court hаve constraints on occupants detain its if that officer has a ability anonymous on an lice officers’ to act suspicion” “reasonable that briefly opinions three tip. We address engaged stopped was in criminal conduct. help anony- to permissible define the use Bolosan, 94, 78 Hawai'i at P.2d at 681. 890 tips. investigative stop, “To short of an cause, probable arrest based on ‘the v. 1. Florida J.L. specific able point officer must be and which, opinion together facts The recent of the United articulable taken States facts, J.L., Supreme Court rational inferences from those reason in Florida v. ” 266, 1375, (2000), ably warrant 120 S.Ct. 254 intrusion.’ L.Ed.2d Barnes, 333, 338, 1207, provides Haw. us with guidance 568 P.2d constitu- (1977) Ohio, tionality stop (quoting Terry v. of an traffic U.S. 1868, (1968)). 1, 21, J.L., tip. Supreme 20 L.Ed.2d 889 on an right people The 3. The fourth amendment to the United States be secure in their houses, provides: persons, papers, against Constitution and effects searches, right people and The to be secure in their unreasonable seizures violated; invasions houses, effects, against persons, papers, privacy and shall not be no war- seizures, cause, shall unreasonable searches and upon probable rants shall issue but violated, issue, and no shall be upon Warrants particularly describing place to be cause, probable supported by Oath or things persons searched and the to be seized affirmation, describing particularly sought intercept- or the to be communications searched, place persons things to be and the ed. to be seized. final, judicial the ultimate "As tribunal un- protections apply The fourth amendment authority interpret reviewable enforce through to the states the fourteenth amendment Constitution, give Hawai'i we are free to broader Lopez, States v. to the United Constitution. State privacy protection given than federal P.2d 78 Hawai'i n. 897 n. Detroy, 102 Hawai'i constitution." State 22, 16 (1995). (citations and inter- I, omitted). 4. Article section of the Hawai'i Constitution quotation signals nal provides: son, constitutionality Court considered the of a the informant did not her or articulate stop anonymous tip and frisk based knowing carrying his basis informing the that an individual stand- weapon. a concealed Id.5 stop carrying gun. at a bus Id. at that, rejected The argument S.Ct. caller extraordinarily danger- because firеarms are male, young wearing stated that a black ous, any tip regarding ought give firearms shirt, plaid standing at particular bus exception require- rise to an to the warrant stop carrying gun. and was Id. Police ment. 120 S.Ct. 1375. Justice officers went the bus and saw three Court, writing Ginsburg, for the noted: males, black wearing one of whom was exception [A]n automatic firearm to our plaid shirt. Id. The officers did not reliability analysis established rove would gun anything see a and did not notice out of too an exception far. Such would enable ordinary. tip, Id. Aside from the any person seeking to harass another to officers did not have reason to intrusive, embarrassing set in motion one of these individuals was en- targeted person simply search of the gaged activity. in criminal by placing falsely call re- Court held that this target’s porting the carriage unlawful tip justify stop mous was insufficient to the gun. tip and frisk because the did not contain Id. reliability. sufficient indicia of Id. The Court open The possibility Court left the the first its on relying anony- stated concerns police upon anonymous tip, could act an even tips: mous reliability, if it lacked indicia of in certain tip Unlike from a known informant ‍‌​​‌​‌‌​‌‌‌‌​​‌​​‌‌​​​​‌‌​‌​​‌​​​​​‌‌‌​​‌‌‌​​​​‌‍circumstances: reputation be whose can assessed and who require this ease not facts of do us to allegations can responsible be held if her speculate about the under circumstances fabricated, turn to be out see Adams v. danger alleged which the in an anonymous Williams, 143, 146-147, 407 U.S. 92 S.Ct. tip might great justify so be a search 1921, (1972), 32 L.Ed.2d 612 “an even of showing reliability. without tip alone seldom the demonstrates say, example, report do not for that a of a knowledge informant’s basis of veraci- person carrying a bomb need the bear White, 325], ty,” Alabama v. at reliability indicia of demand a re- we 329, 2412, 110 S.Ct. 110 L.Ed.2d port carrying a firearm before (1990)]. recognized, As we have how- 301[ police constitutionally can conduct a ever, there are situations in which an anon- public safety frisk. Nor do we hold that corroborated, ymous tip, suitably exhibits quarters officials in where the reasonable provide reliability “sufficient indicia of expectation of privacy Fourth Amendment suspicion investiga- reasonable to make the diminished, schools, airports is such as 327, stop.” Id., tory at 110 S.Ct. 2412. protective cannot conduct searches on J.L., 270, 529 U.S. at 120 S.Ct. 1375. The justify basis of information insufficient to noted call searches elsewherе. predictive provide any did not information (citations 273-74, at Id. S.Ct. 1375 omit- activities, regarding subject’s such that ted). not officers did have basis on concurrence, credibility. Kennedy, judge which to the informant’s Id. Justice in his stat Although anonymi at places 120 S.Ct. 1375. infor ed that an informant his “[i]f identify ty risk, per mant in fact at can did determinate a court consider this factor Joao, time, 5. See 55 Haw. 525 P.2d nor indicate when he had also did informant (1974), in which court held that a weapon. this seen the Id. at 525 P.2d at 581-82. justi- from known fy stop informant insufficient adequate This an an- “[w]ithout court held and frisk. informant told chor, place, reliability as to time and only that the defendant carried a concealed greatly information becomes attenuated.” Id. at town; weapon whenever he was the informant at identify did not the dеfendant's location at the reliability about that weighing tip.” Id. at reliable information individual’s illegal 276, 120 J., activities. (Kennedy, concurring). S.Ct. 1375 “anonymous” tips He all noted that not 332, 110 S.Ct. truly anonymous: are the wide on Stevens, writing Justice for himself and spread availability instant caller identifica Marshall, vigor- Justices Brennan and filed a tion, be “squad ears can sent within seconds ous that an dissent. He noted individual’s telephone used the location neighbors predict can often when and where mak informant” of an unreliable because might going any given be on individual against false day; may the defendant in White have Id.; law. also HRS 710-1015 see Motel, Dobey’s worked at so informant’s reporting to (making false law-enforcement “prediction” of the defendant’s future activi- misdemeanor). might authorities a extraordinary. ties have been so (Stevens, J.,

Id. dis- senting). then Justice Stevens noted that 2. Alabama v. White this anonymous could have come from an White, acquaintance who In defendant wished to U.S. Alabama Alternatively, harass the defendant. (1990), S.Ct. 110 L.Ed.2d the Unit- tip could have come from another offi- held ed States cer who hunch about the had a defendant’s rely could possible activity did illegal not have of an automobile. warrant; enough a search evidence secure White, stated, “Fortunately, as Justice Stevens leaving partic- the defendant would majority vast those in our law enforcement building ular at a certain time and apartment community adopt practice. would not such a station a wagon would drive a brown But the Fourth Amendment intended to Dobey’s taillight at broken to Motel. Id. protect the citizen from the overzealous and 110 2412. The informant stated that S.Ct. unscrupulous officer as well from those carrying the in a defendant would cocaine who are and truthful.” conscientious Id. police Id. The brown attaché case. went apartment building, they the wit- where Phillips 3. State v. get into defendant a brown sta- nessed the Phillips, In State v. 67 Haw. P.2d 696 wagon taillight tion with a broken and drive (1985), a conviction we vacated that was Dobey’s Although Motel. Id. the towards upon in a evidence seized warrantless police carrying the did not witness defendant Phillips, search. caller stopped a they brown attaché case before the reported that an unidentified male was car, (containing they did discover such case brandishing threatening people at stick cocaine) they pulled over after defendant. the Ramp. the at Lanikai Boat Id. Id. provided at 348. The caller information re- car; garding police suspect’s the the rushed upheld A divided Court the defendant’s Ramp to the Lanikai Boat and saw a car The Court held that the conviction. matching description the caller’s at the far tip predict- here was reliable because it parking end of Id. As the lot. two officers ed future activities: the defendant’s car, approached they noticed that way general public would had no have running motor otherwise noticed respondent shortly of knowing that would nothing ordinary. they Id. out of Once car, building, get leave the described car, spotted reached the one of the officers Dobey’s most direct and drive the route and seized a sheathed diver’s knife from only a small number of Motel. Because 536-37, inside the car. Id. at P.2d at privy people generally are to an individu- suspect 348. The officers then ordered the itinerary, it al’s is reasonable for car, point out of at which one of that a with access to such object believe officers and silver un- noticed black likely to also derneath seat. Id. information is have access the driver’s at P.2d only provided at 348-49. The officer did not know beeause the informant informa- object handgun that the was a regarding loaded until tion driver’s current after he seized it. Id. at at activity—i.e., P.2d driving—rather the reckless providing predictions than of future behavior. We held the circuit court shоuld have Id. at 1076-77. The court held that because suppressed this evidence. Id. at did not indicate that she or he “[wjithout more, P.2d at 351. We noted that information, has inside making thus faceless informer’s does give cause credible, more investigating person, for the forcible of a let alone the required “is to corroborate the search of his car.” at Id. 696 P.2d at fashion, usually by some other observing Phillips, 350. The was unreliable in even driving either a traffic violation or indicative though correctly reported the informant had impairment.” Id. at 1077. The court also operating particular defendant was suggested upheld that it have would con- particular number, car plate with a license driving tip viction if the reckless had come because explain the informant did nоt how informant, thereby a citizen who ex- she or he knew that the defendant was com poses possible her- or himself criminal mitting a crime and because “when two liability filing report, false rather than a scene[,] officers nothing reached completely anonymous informant. suggested there a crime had been committed perpetrator.” the defendant was the Id. possession We also held that the driver’s of a State, Similarly, Washington justify diver’s knife in the ear did not denied, N.E.2d (Ind.App.2000), transfer search, further possession because mere (Ind.2001), N.E.2d defendant knife is not unlawful. Id.6 an anonymous arrested after caller driving erratically. he was 740 N.E.2d C. Split Other Jurisdictions Are provided 1243. The informant Question Anonymous Tip Whether description vehicle, including with a its Driving in a Reckless Case Is Sufficient number, license the vehi- identified Justify Investigative Stop. cle’s location and Id. The direction. an anonymous tip Whether of reckless officer who arrested the defendant did not investigative is sufficient to driving. observe erratic question impression is a of first for this investigative stop held that the was unlawful Although Supreme court. the United States anonymous telephone tip, because “an absent issue, Court not has addressed this courts in any independent of reliability indicia have, jurisdictions varying several other with officer-observed confirmation of the caller’s results. behavior, prediction the defendant’s future permit police is not to enough to detain a holding anonymous that an Courts subject Terry stop citizen and him her to a justify to is insufficient an inves- interruption liberty attendant re- tigаtory stop quired accomplish to it.” Id. at 1246. Several states have concluded an anonymous tip Additionally, driving, of reckless without' in Commonwealth v. Lubie police corroboration, independent jewski, Mass.App.Ct. 212, insuffi- is 729 N.E.2d 288 (2000), justify investigative stop. cient an anonymous tip to For the court held that an State, example, McChesney justify 988 P.2d was to insufficient (Wyo.1999), Supreme stop. Wyoming The informant the license (in decision) number, location, Court a 3-2 held that an and direction of a reliability driving wrong mous indicia pickup lacked sufficient truck was on the vehicle); propriety justify stop 6. ‍‌​​‌​‌‌​‌‌‌‌​​‌​​‌‌​​​​‌‌​‌​​‌​​​​​‌‌‌​​‌‌‌​​​​‌‍This has court also addressed the cient to of defendant's cases, tips 497, including in several other Goudy, State v. P.2d 800 Haw. Temple, State v. P.2d Haw. (anonymous tip predicting activity, future (1982) (anonymous tip justify was to insufficient activity, of that was confirmation vehicle); Kuahuia, stop of State v. 62 Haw. vehicle). justify stop sufficient to of defendant's (1980) (anonymous tip 616 P.2d 1374 was suffi Jetta, wagen plates, with New York license of the road. Id. at 290. side erratically. at 863. operating that was Id. A report back that the truck had then called to nearby patrolling parked his officer high- side of crossed over the correct Jetta, cruiser wait for the and within five responded way. trooper Id. A state purple he saw a Jetta with New minutes pulled suspect over without ob- call and stopped Id. The plates. York serving any driving. Id. The court erratic caught he it and up Jetta soon ás did unreliable because “the held that personally driving er- not observe the Jetta supplied by the informant did information ratically. any specific include details about not easily defendant which were otherwise Supreme held Vermont bystander. an uninformed obtainable case,” af- this was “a close but nevertheless only to ‘The corroboration went obvious de- firmed the defendant’s conviction. Id. at 867 tails, Anyone can not nonobvious details.... gave n. The court three reasons for ” telephone the for reason.’ this case distinguishing from J.L.: (citations omitted) (alteration original). First, the information here was more reli- rejected the Commonwealth’s The court emphasized able. The Court justified in trooper assertion provided informant had pickup pursuant over the to the Mas- pulling descrip- nothing more than a bare-bones doctrine”; “emergency sachusetts at standing tion оf an individual a bus because, emergency held that no existed at Hence, stop. “pre- there was none of the trooper pulled pickup time the over the information dictive” about individual’s truck, the truck on the correct side of credibility which movements lent being the road and was not driven erratical- White, anonymous informant in 496 U.S. at ly. Id. 291-92.7 110 L.Ed.2d 301. contrast, Here, in the informant described holding that an 2. Courts accurately predict- particularity, justify an investi- sufficient ed, moving the location of vehicle on fast gatory stop freeway, information which the officer within of the call. confirmed minutes increasing of courts An number have dis tinguished anonymous tips of drunk or reck driving anonymous tip

less from the in J.L. [Second, contrast to the of an i]n example, shortly Supreme For after anony possession gun, individual J.L., Court decided the Vermont report of an drunk driver erratic or anonymous tip held that of erratic highway presents qualitatively investiga danger, was sufficient level of and concomitant different tory stop. Boyea, 171 Vt. ly greater urgency prompt action. denied, (2000), possession A.2d 862 gun, cert. ease of a concealed (2001). could, legal, L.Ed.2d 696 In might police itself and the event, surreptitiously in Boyea, reported any informant the observe the period and a for a blue-purple location direction of Volks- individual reasonable time suspect Appeals reported the 7. The Texas Court of came to a similar informant the conclusion, although slightly parked suspect under different cir- was while the at convenience State, 22 cumstances. In Stewart v. S.W.3d 646 reported store. Id. at 648. informant that (Tex.App.2000), held that are ”[w]e the court appeared suspect the fell driver several times and danger posed public by mindful of the intoxicat- police Id. be intoxicated. When the officer ed drivers. But we are also mindful of our later, suspect arrived minutes the had started to obligation Fourth Amend- follow established away; police stopped the the driver drive officer precedent, precedent. ment Under that the thereafter, having shortly without observed tip, which was uncorrob- caller's driving by suspect. the Id. The court erratic possible illegality, in orated its assertion of did "given generality the of the radioed noted that objectively support suspicion not a reasonable driver], description [of the it is not clear appellant driving while that intoxicated.” that could even the officer be sure auto- omitted). (citations at The facts 22 S.W.3d being by driven seen to fall mobile was the man slightly in Stewart State were different than by the informer.” case, Stewart, in the instant however. those running injury public large without the risk or and him- of death at the driver her- or every passing moment. An officer in self. Id. at 862-63. pursuit reportedly drunk on a driver Jersey Supreme New Court came freeway enjoy luxury. does not such a In Golotta, the in same conclusion deed, a drunk driver is not at all unlike a (2003). anony- N.J. 837 A.2d 359 An “bomb,” and a mobile one at that. mous called 9-1-1 cellular Finally, in police contrast to the search location, direction, phone the and J.L., police and seizure the in the plate number truck pick-up license of blue here, cases, in “intrusion” as most DUI driving erratically. at A Id. simple consisted vehicle nearby motor police pick-up saw a truck officer blue Thus, stop.... liberty the at stake interest by; pulled drive officer over the truck in ease did not rise to level which this quickly did not observe erratic in confronted Court J.L. by pick-up movement truck. Id. (footnotes omitted). Id. at 867-68 Jersey Supreme The New cited three similar to factors those cited concurrence, jus- In a one of the Vermont Supreme distinguishing Vermont in distinguished tices further from J.L. this case first, anony- this case from J.L.: by explaining public Boyea’s nature of tip was more mous here reliable than the activity: alleged “[t]he offense did not here because, nature, “by placed its a call possessory involve a concealed crime—a of- system via processed the 9-1-1 carries What fense. in the described reliability enhanced con- found other dispatch arresting to the officer was crime 8 second, texts”; investigative stop that an progress, public, earned out in identifiable than less intrusive a search of the vehicle’s by anyone sight and observable of its driver; arrest of contents or J., at (Skoglund, commission.” Id. con- third, poses that the driver an imminent risk curring). Id. serious harm. at 366-69. The court also considered the alternatives Jersey The New court held that the to the available after the informant was sufficient to an investi- the reckless driver. The of- gative narrowly but the stop, tailored (1) responding pull ficer to the cаll could: prevent this rule to an erosion of fourth right away, happened over vehicle required protections. amendment The court here; follow the or vehicle to corrobo- convey the informant’s “must driving. Boyea, erratic A.2d at rate the wit- unmistakable sense that the caller has 862. The court noted that latter course ongoing implicates nessed an offense possible could of action lead to one of three to a injury risk of imminent death or serious (a) endings: follow could particular person such as vehicle’s driver the vehicle for several miles observ- without large.” public Id. at 369. The (b) behavior; erratic ing any offi- required to be court also the informant’s drift, harm- cer could observe the vehicle in time to the first- made closе informant’s shoulder, lessly, providing . onto thus driving. of the erratic hand observations (c) driving; corroboration of erratic traffic, jurisdictions vehicle could veer across Several other have reached lanes causing accident. Id. The court held same conclusion as the Vermont compel Jersey Constitution does not Courts. New Iowa,9 police Supreme to wait and risk to the Courts of officer harm However, Jersey explained possible 367. has 8. The court that "it to re- 837 A.2d at New making anonymity by place to 9-1- placing 9-1-1 a it a crime to a call tain a call statute one's Id., emergency telephone 1 need for assistance. by using wire- without a from a booth or certain balance, citing 2C:33-3e. technology” N.J.S.A. "[o]n [the less but expanding was] satisfiеd that in an number Walshire, 2001). (Iowa system provides the 9-1-1 of cases 9. 634 N.W.2d State v. enough Supreme of information so that held users The Iowa Court that an call, they system truly anonymous telephone reporting are not when that a even mous cellular Golotta, driving identify reporting by in the median fail to themselves name.” vehicle was and Kansas,10 Wisconsin,11 an to her- or himself than individual as well as the and and Appeals parked and the at the far end Eighth Circuit Court of a in a car stick seated However, all Appeals,13 of have held parking New Mexico Court imminence of lot. anonymous tip an post-J.L. in decisions that examining the harm is but one factor when justify driving an of erratic is sufficient totality the circumstances. of stop. agree. We Supreme placed The United States emphasis unreliability tip of the great on the Anonymous Tip to Jus- D. An is Sufficient J.L.; reliability consequently, of the in Investigatory Stop tify a Limited if examina- predominant is a factor in our and Place. Firmly Rooted in Time totality the circumstances re- tion of the of may that the act on an We hold garding constitutionality of Officer Sa- only driving, but anonymous tip of reckless stop. gun’s investigative We believe very circumstances. In the under narrow reliability in the instant case is the case, totality of the instant distinguishing in this case dispositive factor circumstances, anonymous we hold from J.L. sufficiently justify an in tip was reliable to point vestigatory stop. Specifically, we knowledge in for an informant’s The basis reliability and the imminence clear, driving case is whereas the reckless distinguishing harm the instant case from in knowledge in for the informant’s basis Phillips. J.L. and affirm the We therefore An intoxicated driver’s reckless was not. sup of the motion to district court’s denial danger open is an and obvious ob- conduct subsequent judgment press of con and anyone nearby; we need not servable viction and sentence. guess at the basis of an informant’s knowl- clearly edge, knowledge derives Phillips because holding in distinguish our personal observations. As Vermont’s in the imminence of the harm based on in concurrence Skoglund Justice stated her in this case instant case. The informant Boyea, distinguishable from this case is Prendergast nearly reported that had caused collisions; J.L. because the informant here “a head-on drunk driver several public, higher public progress, crime in сarried out iden- poses significantly risk location, direction, that, make, model, therefore held because the infor- the vehicle’s The court (because number, justify put anonymity plate at risk was sufficient to mant her or his and license However, investigatory stop. could have traced the infor- an 630. officer plates), truly actually anon- that the informant was mant’s license the court held informant, ymous. who Id. at 525-26. citizen "defined as one is wit- a victim of a crime.” Id. at 629. ness to or Wheat, (8th 12. United States v. 278 F.3d Cir.2001), denied, Crawford, cert. 10. 275 Kan. (2002). (2003). Eighth Supreme L.Ed.2d Circuit The Kansas Court held that an call, call, anonymous reporting reporting that a that a vehicle was held that an being erratically provid being erratically reporting the vehi- vehicle was driven and driven direction, make, cоlor, location, direction, make, model, color, location, the vehicle’s cle's number, partial plate origin, was sufficient was sufficient' to license license state justify investigative stop. justify investigatory stop. Id. at 724. The Id. at 116-17. an ”[w]e court stated that think that tip conveying contemporaneous observation of Rutzinski, v. 241 Wis.2d State activity details are cor criminal whose innocent (2001). N.W.2d 516 The Wisconsin the one in roborated is at least as credible as White, driving by held that the of erratic activity pre where future criminal anonymous informant was sufficient to dicted, only innocent details were corrobo However, investigative stop. the informant rated.” Id. at 735. Rutzinski, unlike the informant the instant case, opera- the line with the 9-1-1 remained on Contreras, time; period N.M. P.3d 1111 when thе tor for an extended State car, Ap (N.M.App.2003). appeared The New Mexico Court behind the call, peals reporting operator that an the 9-1-1 that she or held the informant told officer; (the informant) towing operating gray van a red Geo was he saw the erratically providing the vehicle's location in the car in front of the informant was car; direction, an investi and was sufficient to and that the gatory stop. directly 777.at 1117-18. behind the correct vehicle. Id. at 519. by anyone sight (Citing tifiable and of Wong observable is inadmissible at trial.” Sun Boyea, States, 471, 484, its commission.” A.2d at v. United U.S. (emphasis (1963).)) original). omitted from 9 L.Ed.2d 441 case, In the instant infor- IV. CONCLUSION reported Prendergast’s mant who reckless driving gave contemporaneous of account upon foregoing, Based we affirm the Prendergast’s activity. criminal The infor- Prendergast’s district court’s denial of mo- provided operator mant the 9-1-1 with the suppress'as tion to well as the district court’s make, model, color, number, license judgment of conviction sentence. and location, and of Prendergast’s direction vehi- provided cle. information ACOBA, Concurring Opinion by J. firmly that was place rooted time and on based firsthand of observations criminal result, I in the agree concur do not activity. Consequently, examining ‍‌​​‌​‌‌​‌‌‌‌​​‌​​‌‌​​​​‌‌​‌​​‌​​​​​‌‌‌​​‌‌‌​​​​‌‍when adoption totality with the of circum- totality case, of circumstances hold we test, opinion my stances which in would be Sagun suspi- that Officer had reasonable purposes applying too nebulous for our cion, facts, specific based on and articulable State prohibition against Constitution’s un- Prendergast engaged in criminal reasonable seizures. Because of its undiffer- ,14 activity contours, totality entiated of circumstances confining test would be ineffective in a reck- However, we reiterate our re- concerns driving exception “very less narrow cir- garding pretextual stops and our limitation cumstances.” on evidence admissible as a result such Bolosan,

stops, articulated in State v. contrast, Jersey Supreme the New 86, 94, (1995): Hawai'i adopted following has “tenets” in equally We are post-hoc concerned about evaluating tips justifying vehicle justifications for otherwise invalid investi- (1) stops: traffic “The information [from the gatory stops, especially involving those au- convey caller] must an unmistakable sense Therefore, stops. tomobile we hold caller an ongoing has witnessed investigative justified can stop be (2) offense[,]” “implicates the offense a risk objectively suspicion reasonable injury of imminent death or serious to a offense, provided that the offense particular such as a vehicle’s driver or suspicion which reasonable exists is related (3) public large[,]” to the “the call [was] by offense articulated the officer [the close in time to first-hand caller’s] obser- involved. are Offenses related when (4) provide the “caller must a suf- vations^]” gave suspicion conduct that rise to the information, quantity ficient such as an objectively respect was not reasonable with vehicle, adequate description of the its loca- could, eyes to the articulated offense in the details, bearing, tion innocent similar officer, similarly aof situated reasonable officer, court, may so that be given also have to an rea- objectively rise stopped certain that the vehicle is the same suspicion respect justi- sonable caller[,]” by as the one identified fiable offense. conducting stop” verify “the officer must (Citations omitted.) Golotta, and footnote See also or observe such details. v. State (N.J.2003) Wheat, (inter- United States v. 278 F.3d 726 N.J. 837 A.2d (8th Cir.2001) (“If omitted). investigatory stop quotation nal marks and citation I justified by suspicion Jersey reasonable if the believe the New test investigating stop’s prop- safeguarding officers exceed the is most faithful to a reasoned scope, аny against er the right evidence derived from the unreasonable seizures and did, Wheat, (8th recognize, just Eighth as the United F.3d Circuit States Cir.2001). However, supposedly contemporaneous agree "even ac- we that court complete compared of erratic could is minimal count that this risk when with the fiction, prohibiting conducting work of created some malicious risk of prankster stop. id. to cause for another motorist." immediate See trouble our adopted appropriately under

would

constitution. P.3d 725 Hawai'i, Respondent/Plaintiff-

STATE

Appellee, KAHAWAI,

Margaret H.

Petitioner/Defendant-

Appellant.

No. 25101.

Supreme Court of Hawai'i. 6, 2004.

Feb. Deputy Pub- Matsumori-Hoshijo,

Joyce K. Defender, application petition- lic er/defendant-appellant. NAKAYAMA, C.J., LEVINSON,

MOON, DUFFY, ACOBA, JJ. ACOBA, J.

Opinion of the Court may not sentencing hold that discretionary probation impose conditions (HRS) Hawaii Revised Statutes pursuant to 706-624(2) (1993) factual there is a § unless indicating that such condi- in the record basis the factors reasonably related to “are tions and insofar as 706-606” [HRS ] set forth

Case Details

Case Name: State v. Prendergast

Court Name: Hawaii Supreme Court

Date Published: Feb 2, 2004

Citation: 83 P.3d 714

Docket Number: 24793

Court Abbreviation: Haw.