*1 сase, misconduct, all is warranted future order. so Horowitz, Stafford, Brachtenbach, Dolli-
Rosellini, Tem., J. JJ., Pro Hamilton, Williams, ver, Hicks, concur. 31, 1980.] 47076-6. En Banc. December
[No. Washington, Respondent, v. Wade State al, Petitioners. L. Sieler, et *2 peti- Grantham, Newsum & Grantham and Gene M. for tioners. Maleng, Prosecuting Attorney,
Norm and Robert J. Deputy, respondent. Conklin, for appeal J.—Defendants their convictions Brachtenbach, possession for of controlled substances viоlation of RCW 69.50.401(a). The trial court denied defendants' motion to suppress by the contraband seized con- their given Appeals fessions after arrest. Court of The affirmed. We reverse. waiting pick up
While his son at about noon in the parking High School, lot of Kent-Meridian James Tunt- drug land observed what he believed be a sale another parking car lot. Tuntland informed the school secre- tary by telephone conclusion, car, of his described the gave apparently reported his tele- number, her its license phone number, and left. Sweeney secretary Officers called drug by
Wandrey quickly trans- that a radio informed were parking possibly lot in the school occurred action had Dodge black-over-gold No number. license with a certain given. officers believed transaction were details of the during the to occur for such transactions it not unusual proceeding high parking lot. While hour school noon Sweeney high on how for information school, radioed to the had if informant asked was discovered and the sede simply Mr. told that a The officers were been identified. drug occurred, concluded a transaction Tuntland had nothing knew The officers but that he was not available. why beyond con- name, he nor informant about the drug officer, One transaction had occurred. cluded a suspects, attempted radio, obtain words, apparently In the officer's none was but available. description." go on was vehicle "all we had to *3 occupants vice-principal of to the had talked The school identi- arrival. He before the officers' the car a few minutes girls not stu- were vice-principal as students. The defendants fied two playing The cards. dents. The four were they con- to the car went over the officers before informed taining con- not observed he had the defendants that suspicious. anything traband, unusual or nor even by except given description informant, the The car fit the Defendant was incorrect. of the license number one letter by approached Officer seat, Cerar, in driver's was the passenger's Sweeney, Sieler, in the front defendant and talking by Wandrey. approached seat, While Officer was Sweeney mari- burnt Cerar, odor of stale smelled the faint Sweeney juana. identification, asked and examined Cerar's questioning. police After Cerar him for to enter his car "speed" Wandrey pills driver's on the exited, saw three prior Cerar's unable to observe Wandrey which he had been seat departure pills, up picked and the car. from the Wandrey film immediately a so, handed he did Sieler after containing speed. defendants were taken to container police they signed station, written waiver of the where a rights their Miranda and confessed. suppress pills trial,
Prior to moved to the and defendants denied, This motion was and defendants were confessions. delivering amphetamines. unpub- In an later convicted of opinion, Appeals Court of held lished Division One suppression properly that the court denied trial defendants' motion. Court of
Defendants contend that the trial court and (1) Appeals grounds: committed reversible error on two tip justify investigatory informant's did not detention and questioning provide defendants, since it did not suspicion with a well of criminal founded (2) by Sweeney's request defendants; Officer unsup- arrest Cerar exit his automobile constituted an ported by probable the Court of cause. Since we reverse Appeals argument, we on the basis of defendants' first express opinion no on defendants' latter сontention. parties informant. have treated Mr. Tuntland as the In was transmitted a school secre- fact the information tary. exactly as to what Tuntland The record is deficient secretary secretary exactly told told the what the secretary headquarters. Tuntland nor the Neither purposes case, we, do the called as For of this as a witness. parties, treat Tuntland as the informant and assume relayed secretary only told that which was place suspected officers, i.e., narcotics sale had taken allegedly involved. of the vehicle may
Although lacking, police probable cause is they briefly question if have a well detain and an individual suspicion objective that he is con founded based on facts e.g., potential See, nected to actual or *4 Texas, 47, 51, L. 99 S. Ct. Brown v. U.S. 61 Ed. 2d 443 (1979); Terry 889, Ohio, 1, 88 v. 20 L. Ed. 2d 2637 392 U.S. (1968); 424, 426, Gluck, State v. 83 Wn.2d S. Ct. 1868 see
47 constitu- (1974). tip cannot An informant's P.2d 518 703 pos- it unless suspicion a police with such tionally provide v. Adams See reliability." "indicia of sufficient sesses 612, Ct. 92 S. Williams, 407 U.S. 143, 147, L. Ed. 2d 32 943, P.2d Lesnick, v. 530 (1972); State Wn.2d 84 1921 (1975). 243 case. in this controlling decisions is prior
One of our (1975), very Lesnick, P.2d is v. 243 State 84 Wn.2d infor- anonymous telephone An present to the case. similar gam- carrying illegal that a van was police mant told the how he reached did not indicate bling devices. He license report its did the van and conclusion but describe fitting located a van рolice quickly number. The informant, but some by the description provided transposed. number had been of the license numerals distance, although for a short police followed the van pulled activity, they had observed no criminal view after plain were Gambling the van over. devices Lesnick, 941-42. stop. informant's accurate anonymous
We held that or "not such corroboration of the vehicle was with a reliability" provide which would indicia of detention. investigatory suspicion justify founded well Lesnick, v. supra State We stated that: at 943. "completely more tip to conceive of a It is difficult by a reliability" provided than one lacking indicia informer, anonymous and unidentifiable completely conclusionary assertion containing no more than in criminal engaged a certain individual While the tips duty investigate may have a which sound gesting the informant's reasonable, reliability, оr some [1] absent circumstances corrobora- sug- tive observation tion was of criminal obtained activity or which a reliable [3] suggests the informer's fashion, either [2] forcible presence informa- stop permissible. is not solely such information upon based v. Les State v. from supra State (quoting at 944 (1973)). State nick, 281, 285, P.2d 199 App. 10 Wn. criteria. satisfy any of the enumerated is unable *5 48 because the satisfy the first criterion
The State cannot of no more than those reliability of this case indicate facts Lesnick, Appeals Court of Lesnick. To the distinguish name given informant had fact that upon relied by this secretary. persuaded not We are to the school anonymous reliability of an distinction. attempted from the different significantly informant is not telephone informant. telephone but unknown reliability of a named alias, and an easily could fabricate Such an informant informant, unidenti- remain, thereby anonymous like an fiable. but named tele an unknown assuming
Even that rеliable, thereby distin adequately phone informant reliability by itself from this this case guishing detention. investigatory justify does not an generally contrary, 3 W. authority to the Although there is some (1978) LaFave, Search and Seizure 9.3, (citing 100 at § to detain cases), not be allowed generally the State should informant's reliable individual based on a question an by a merely unsupported conclusion tip which is a bare police prior which is disclosed to sufficient faсtual basis 250, McCord, v. See State App. 19 Wn. the detention.1 9.3, supra LaFave, (1978); 254-56, P.2d 3 W. 576 892 § McLeroy, States v. F.2d 748 United 99-100; cf. (5th 1978) J.). jus (Wisdom, underlying factual Some Cir. so must be revealed for informant's conclusion tification accuracy infor of the probable that an assessment no sense It "makes simply can be made. mant's conclusion informer reliability' require some 'indicia concerning the source nothing at all personally reliable but 9.3, supra LaFave, at 100. ..." 3 W. of his information § investigatory helps prevent requirement This additional honest by an tip provided of a detentions made on the basis It also conduct. innocent informant who misconstrued conclusory allegation is sufficient reliable informant 1Of course such a if, indi criteria justify investigatory second and third as Lesnick's an detention cate, by adequate police observation. it is corroborated informant, given who has such detentions when an reduсes to fabricate an past, information decides accurate Comment, The Undis- allegation of criminal Cf. A Search closed the Fourth Amendment: Informant (1972) Standards, Meaningful L.J. 713-14 81 Yale for reliable informa- (noting given informants who have allegations). tion in past infrequently not make false reliability Even if the of the informant had been estab- case, questioning lished the detention conducted an defendants was unconstitutional. The informant's bare investigatory upon detention based *6 foundation known unsupported by any conclusion factual Sweeney's to the but unsuc- police. Officer commendable cessful to con- attempt prior obtain such a foundation fronting Of change the defendants does not the result. discovery course neither deten- drugs does the after the Lesnick, supra conduct. State v. tion justify police at Re, see United v. 944; States Di 581, 595, L. 332 U.S. 92 (1948). Ed. Ct. 222 68 S. clearly satisfy
The State cannоt Lesnick's second scene, criterion. arriving police proceeded After at the immediately almost containing the car the defendants. car, they any Prior to approach their to the did not observe tip conduct which tended to corroborate the informant's fact, in that In was activity present. tip criminal was that very challenged by presumably effect a vice-principal, person, only reliable police when he told the that minutes before their arrival he occupants had talked to the car not anything illegal, and had observed or even unusual. Lastly, in presence of the defendants an area where by drug transactions were known to occur could not itself give they engaged were suspicion rise a reasonable that Texas, See Brown v. 47, 52, in 61 443 U.S. (1979). L. Ed. 2d 99 Ct. S. satisfy
Nor can the State Lesnick's third criterion. case, vehicle As we held that observаtion a by substantially description given which conforms to an corrobo- unknown not constitute sufficient informant does his informa- ration to indicate that the informant obtained tion a reliable fashion.
Lesnick indicated that are not to be ana- these criteria isolation, criminal activ- lyzed for the seriousness of the ity by informant can affect the reasonableness reported an deten- investigatory calculus which whether an determines Lesnick, See supra v. State at 944-45. permissible. tion is McCord, supra State v. While the criminal 253. reported reported clearly here was more serious than conduct was nonetheless we believe the the informant's uncertain trustworthi- unreasonable. Given ness, support- the absence of facts known to the that his ing allegation, and the unusual circumstance by very allegation challenged presumably effect to view oppоrtunity person reliable who an excellent arrival, immediately the officers' the defendants before suspi- well founded police simply could not have formed a activity by cion of criminal the defendants. holding arguably our inconsistent recognize
We anony if an with several decisions which have held that he description of a vehicle provides mous informant drugs, fitting claims contains and a vehicle detention is police, investigatоry is later observed State, 231, 244 See v. Radowick permissible. App. 145 Ga. *7 Hobson, v. 920, P.2d State (1978); Idaho 523 S.E.2d 346 95 Barton, v. 118, P.2d State (1974); N.M. 584 165 523 92 McLeroy, v. (1978). But see United States F.2d 746 584 J.) (5th 1978) (reasonable (Wisdom, of crimi suspicion Cir. anonymous nality provided not when informant established address, vehi with described his suspect's name and detail, before the and information was verified cle automobile). of defendant investigatory detention by these criticized this result reached Professor LaFavе has LaFave, supra erroneous, at 10 n.243 3 W. state courts as 1980), sufficiently do not find these decisions (Supp. and we Lesnick. departure from persuasive justify
51 case, it in this conduct we to sanction the Were mean that would alias], describe an anyone police, can call the [fabricate illegal drugs . . . allege possession and an automobile over, will be pulled
with the result [driver] himself, interrogated about identify required to search. behavior, subjected to a visual and his automobile Hobson, J., supra State v. (McQuade, dissenting). at 927 questioning upon and investigatory detention Allowing com- contrary to the plainly basis is such an insubstantial mands of the Fourth Amendment. investigatory deten- illegal
The causal chain between the school, and defend- tion and the evidence obtained at the direct, confessions, nor prompt was subsequent ants' intervening circum- "interrupted was that chain some Crews, v. United States 'taint'", stance so as to remove the (1980), 463, 471, 1244 L. Ed. 2d 100 S. Ct. 445 U.S. 63 v. See United States from unlawful conduct. Crews, suppress supra Defendants' motion 1249-50. been accordingly should have the evidence and confessions granted.
Reversed. JJ., C.J., Williams, Rosellini, Hicks,
Utter, concur. upon relies majority J. (dissenting) —The
Dolliver, (1975), to v. P.2d 243 State Wn.2d by police found of the contraband justify suppression confession of defendants automobile and the defendants' Lesnick It to me to their arrest. seems subsequent made reed, recounting a extraordinarily slender and that they completely will demonstrate are the facts each case in Lesnick are: different. The facts call telephone Department Police received The Kelso city pul- van a described advising that there to sell trailer, attempting of which was ling a the driver city. in the The caller also "punchboards" supplied completely caller remained plate number. The license *8 identify provid- himself and not anonymous, refusing to knowledge. of to the source ing any information as in a search sergeant participated chief and a pri- trailer described van and and soon located the within a short dis- They drove to parking club lot. vate tance of the vehicle, that its license and observed subject informer, though by the given similar to that number was some numerals were car parked their transposed. The officers to observe city remained adjacent on street and thereafter, driven from Shortly the van was the vehicle. the The officers followed lot onto the street. parking half, it with pulled then over vehicle for a block and a time, they observed neither to that lights. Up siren and indications of criminal violations nor other traffic activity on of the driver. part the chief license and driver his driver's produced the license of the van to check walked to the front then through paraphernalia plate, gambling and observed arrest placed under was then driver's window. Defendant to RCW pursuant devices gambling for of possession Sess., 280, ch. 9.47.030, Ex. Laws of 1st repealed § station towed to the vehicle was 23. Defendant's and searched A large number to a warrant. pursuant merchandise, devices, seized. certain were gambling plus Lesnick, supra State v. at 941-42. held reliability" the court
For "indicia of tip have an of the fol- satisfy one that it must page (1) circum- under it was received lowing criteria: that informant's, (2) reliability; thát there suggesting stances suggesting some corroborative observations were (3) obser- corroborative activity; there were some that was obtained informer's information suggesting vations fashion. a reliable of Officer testimony is the majority Unmentioned with narcotics Sweeney that he was familiаr located) (where is. High. School city Kent-Meridian of Kent method'of-oper activityiand narcotics general and with the High directly surrounding-Kent-Meridian in the area ation Sweeney 'on direct Officer questioning School. The is instructive: examination you previously
Q. You indicated were somewhat activity, experienced particularly with narcotics *9 you High around the School. Would Kent-Meridian your experience knowledge past frоm indicate that and your activity you directly through in have or that department at what location and what manner and persons type normally in of are involved narcotics trafficking high at the school? my juveniles suspects InA. with in interviews that area, I in do know that adults are involved the sale of frequently narcotics, and that the transactions take place during from the lunch hour the automobiles at majority school when access involvеd and of the the students free have grounds. all over the school I have been attempting suspect descriptions in to locate in hour, vehicles sales at the but narcotic noon only the I one been in. have successful you Sir, Q. do know or whether not these transactions characteristically have involved stu- non-students or dents? general guess really A. As I statement, well, I can't I— say. I know that non-students are involved and stu-
dents are involved as well. Q. So it would be both? Would that be a fair statement? A. Yes. your experience Q. enforcement, Officer, From in law do you knowledge feeling have or a as to whether or not persons involved narcotics as transactions a course carry weapons? are armed or They frequently yes.
A. armed, are high The officers received call from the school reporting giving the father of a student had called telephone pаrent his name and The number. advised he drug occurring parking believed a sale was the north lot High description of Kent-Meridian of School. The exact alleged the reasonably automobile involved the and a transaction plate accurate of the was license given. police, knowledge with this information and the drug which sales involved both students and nonstud- High School, had in fact ents occurred at Kent-Meridian They car, identified, arrive at the scene. find the as the In it contrast they were advised would be. location where no no stop; There was forcible parked. the car was Surely these "pulled the of the road. one was over" to side reliability and suggesting the informant's are circumstances of Lesnick. requirements thus to meet the sufficient only might argue against which reasonable- fact of concerned the observations ness of actions In his School. viсe-principal High Kent-Meridian him Sweeney vice-principal told testimony, Officer said defendants) (1) (the the front seat the two males the two back seat car were nonstudents females prior disciplin- he were students with whom had had some (2) ary he had had the defendants under problems; and officers arrival of the prior observation no contraband. suspicious or observed further I to rule out enough do not believe this *10 police. by kind the The investigation of the conducted to be reported drug of a believed sale father student he by to the time not believe that progress. It is unreasonable secretary, the the conveyed this had been to information secretary vice-principal vice-principal the and the to completed. lot parking to the transaction gone the drug to the dealers It is also not unreasonable believe as purchasers drugs оr would not flaunt the about so their students, to of other school authori- suspicions arouse the I anyone yard. unpersuaded ties or else the school am way the are in rele- vice-principal the observations police of the to of the reasonableness question vant the actions. cites Lesnick to the effect that "the seri- majority informant activity reported by an
ousness of the determines the calculus which can affect reasonableness None- investigatory permissible." detention is whether theless, police unreasonable. it finds the conduct of the in Lesnick majority which the language
The exact as follows: refers reads police of the action Evaluating reasonableness the intrusion, be considered must extent of the each case light particular facing in enforcement officer. a of the circumstances the law suspected case, In this crime was gross posed physical misdemeanor. It no threat of vio- society
lence or harm to [W]e or the . . . officers. do emphasize they if that be and when other cases will arise necessarily judged light particular of their . . . facts Lesnick, at 944-45. policy language found Lesnick draws clear lines activity
between what constitutes serious criminal and what does not constitute serious criminal Where there is physiсal society no violence, threat of harm to or harm to activity appear officers, the criminal not does to be serious. This was so in Lesnick. (i.e., drug
However, in case, the criminal students) dealing high poses grave school harm to soci- ety. The line drawn Lesnick crossed; has been actions of the were reasonable. " judge they In go the words of [I]f the trial didn't over question people point, they there and those at that then policemen, they should be fired as because would not be doing job." agree. their I here, Given the circumstances I society, cannot believe constitutions, federal or state or reasonably expect require this court could or nothing. message do major- Yet this seems to be the ity. majority, appropriate Indeed, under the view of actions for the officers would have been to have had cup leisurely another of coffee and continue a lunch. Appeals I would affirm the Court of I and dissent. JJ., J. Horowitz,
Stafford Dolliver, concur with