State v. Miller

HOLSTEIN, Judge,

dissenting.

I respectfully dissent. A more detailed statement of facts leading up to the stop is necessary.

Officers Kevin McDonald, Ed Robinson and Harvey Thomas of the Columbia police department are all assigned to the “Fourth Squad” which works inner-city eases involving drugs and violent crimes. Detective Mike Himmel is in an “intelligence unit” and is involved in the suppression of street level narcotics trafficking. Detective Himmel operates as a plainclothes officer and drives an unmarked vehicle. Among the specific duties of the uniformed officers of the *658 “Fourth Squad” is the making of stops based upon information supplied by Detective Him-mel. The same procedure followed on the date in question had been followed many times before.

On December 27, 1991, Detective Himmel communicated the following information to officer Thomas: a red Nissan Sentra, belonging to a Ramona Tope, with Missouri license plate number YJS976, would be in the vicinity of the Rainbow Village Trailer Court, where Ralph Miller lived, and it would be transporting controlled substances. This information was relayed to other officers of the “Fourth Squad.”

Later that same day at approximately 7:15 p.m., officer Robinson observed and stopped a vehicle matching Detective Himmel’s description in the Rainbow Village Trailer Court area. Robinson requested backup from McDonald because of the nature of the stop. Robinson expected to find Ramona Tope in the ear since it belonged to her. In fact the driver identified herself as Ramona Tope. Defendant was seated in the passenger seat. Officer Robinson explained to Ms. Tope the reason for stopping her vehicle. He asked if he could search both her person and her vehicle. Tope then gave officer Robinson permission for the search.

No doubt exists that if the facts provided by Detective Himmel were shown to be reliable, Robinson had sufficient facts to support reasonable suspicion of criminal activity when he stopped the Tope vehicle. Thus, the sole question here involves the reliability of the information supplied officer Robinson by Detective Himmel.

Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), held that, consistent with the Fourth Amendment, police may make an investigatory stop of persons in the absence of probable cause. All that is required is reasonable suspicion that criminal activity is afoot based on articulable facts known to the officer making the stop. Id. at 30 , 88 S.Ct. at 1884 . In addition, law enforcement officers may briefly stop a moving automobile to investigate a reasonable suspicion that its occupants are involved in criminal activity. United States v. Brignoni-Ponce, 422 U.S. 873, 881 , 95 S.Ct. 2574, 2580 , 45 L.Ed.2d 607 (1975).

The precise limits on whether there is reasonable suspicion for an investigatory stop are measured by a standard that balances the nature and quantity of the intrusion on personal security against the importance of the governmental interest. United States v. Hensley, 469 U.S. 221, 228 , 105 S.Ct. 675, 680 , 83 L.Ed.2d 604 (1985). It is difficult to imagine a more minimal intrusion of personal security than a police officer stopping a moving vehicle on a public street to ask the identity of its occupants. Against that intrusion one must balance the need for police officers to quickly react to information that illicit drugs are being transported on public highways.

Terms like “articulable facts” and “founded on suspicion” are not self-defining. “[T]he essence of all that has been written is that the totality of the circumstances — the whole picture — must be taken into account.” United States v. Cortez, 449 U.S. 411, 417 , 101 S.Ct. 690, 694 , 66 L.Ed.2d 621 (1981). The evidentiary quality and quantity which establishes reasonable suspicion defies mathematical calculus or the scholarly application of the laws of probability. Rather, the test is a product of practical, common sense deductions based on the specific information communicated to or observed by the officer making the stop. Id. at 418 , 101 S.Ct. at 695 .

The scope of the intrusion permitted varies to some extent with the particular facts and circumstances of each case. Florida v. Royer, 460 U.S. 491, 500 , 103 S.Ct. 1319, 1325 , 75 L.Ed.2d 229 (1983). For that reason, factual dissimilarities become highly significant in this area of the law. Indeed, it is extremely easy to extract a “test” from a case that is similar, but not quite like the case at hand, and apply that test without carefully analyzing the facts of the ease from which the test is drawn to see if the test makes sense when applied in a different circumstance. Unfortunately, I believe the majority has done just that in this case.

The majority finds the ruling of United States v. Hensley, 469 U.S. 221 , 105 S.Ct. 675 , 83 L.Ed.2d 604 (1985), and reiterated by State v. Franklin, 841 S.W.2d 639 (Mo. banc *659 1992), to be controlling. I disagree with that conclusion.

In Hensley , Covington, Kentucky, police officers recalled having read or heard about a flyer issued by St. Bernard, Ohio, police stating, “Hensley was wanted for investigation of an aggravated robbery.” 469 U.S. at 223 , 105 S.Ct. at 677 . The Covington police observed Hensley and made a stop in “objective reliance” on the flyer. However, nothing in the flyer would give a reasonable person cause to suspect that Hensley had committed a crime or was in the process of committing a crime. In order to justify a stop by the Covington police officers, it was necessary to show more information than was disclosed in the flyer, regardless of the reliability of the facts stated in the flyer.

In Franklin the police officer who stopped the defendant had received a radio dispatch that a “party armed, occupying a black 1984 Fiero [was] in the area of 4200 East 60th Terrace” in Kansas City. 841 S.W.2d at 640 . Again, even if such dispatch is entirely reliable, nothing in that communication would cause a reasonable person to suspect that the occupants of the Fiero had committed or were in the process of committing a criminal act. Unless additional facts were shown, the Terry standard was not met.

Hensley and Franklin apply when one police officer or agency communicates facts to an officer making a stop which are insufficient, regardless of reliability, to give rise to reasonable suspicion that “criminal activity may be afoot.” Terry, 392 U.S. at 30 , 88 S.Ct. at 1884 . Under those circumstances, the reasonable suspicion of the issuing police must be proved to justify the conduct of the officer making the stop. By contrast, the question here does not involve the sufficiency of the information communicated to officer Robinson, but rather the reliability of the source. Reasonable suspicion is based on two factors, the content of the information and its degree of reliability. Alabama v. White, 496 U.S. 325, 330 , 110 S.Ct. 2412, 2416 , 110 L.Ed.2d 301 (1990). As stated earlier, there is no doubt that the content of the facts communicated to officer Robinson were sufficient to give rise to reasonable suspicion if those facts were given by an objectively reliable source.

The majority applies the “three-part test” of Hensley 1 without analyzing the facts of Hensley to ensure that its test is applicable. The issue in this case is one of informant reliability and not sufficiency of the information. The issue of informant reliability was not before the court in either Hensley or Franklin . For that reason, those cases are not controlling.

The eases that come closest to being controlling authority are Alabama v. White, supra, and Adams v. Williams, 407 U.S. 143 , 92 S.Ct. 1921 , 32 L.Ed.2d 612 (1972). White held that information supplied by an anonymous tipster, if corroborated by sufficient indicia of reliability, may justify a Terry stop. There the Supreme Court said:

Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors — quantity and quality — are considered in the “totality of the circumstances — the whole picture,” ... that must be taken into account when evaluating whether there is reasonable suspicion.

496 U.S. at 330 , 110 S.Ct. at 2416 .

In White the caller supplied the name of the woman, the particular apartment she would leave from, the time she would leave, the vehicle she would drive, the destination of her trip, and that she would be transporting drugs in a brown attache case. The officers were unable to verify the woman’s name or the existence of an attache case. They were also unable to corroborate what apartment she left from, although she did exit the apartment building. The officers were able to corroborate the information regarding both the vehicle and the destination. With respect to the time frame, the caller *660 indicated a time of departure but no testimony confirmed the accuracy of that information. Even so, the court still found it significant that the officers proceeded to the apartment building immediately after the call and the woman emerged “not too long thereafter.” White, 496 U.S. at 331 , 110 S.Ct. at 2416 .

Contrary to the majority’s assertions, not every detail provided by the informant must be corroborated nor does White require that every corroborated fact that existed there exist in every other case. Rather, it stated:

When significant aspects of the caller’s predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop.

496 U.S. at 332 , 110 S.Ct. at 2417 .

In Adams a known but unnamed informant provided a police officer with information that an individual seated in a nearby vehicle was carrying narcotics and that the individual had a gun at his waist. That information was held to have sufficient indicia of reliability to justify a “stop and frisk.” The court noted that reasonable cause for the stop may be based on matters other than the officer’s observations. “[W]hen a credible informant warns of a specific impending crime — the subtleties of the hearsay rule should not thwart an appropriate police response.” 407 U.S. at 147 , 92 S.Ct. at 1923 . The facts making the informant a rehable source were as follows: “The informant was known to [the officer] personally and had provided him with information in the past_ The informant here came forward personally to give information that was immediately verifiable at the scene.” Id. at 146 , 92 S.Ct. at 1923 . The Court noted that an informant’s unverified tip may be insufficient for a narcotics arrest or search. Nevertheless, the information may carry enough indicia of reliability to justify the officer’s forcible stop of the defendant. Id.

Here officer Robinson was informed not by an unreliable anonymous tipster but by another police officer. In addition, the other police officer was not just any police officer but one who was in an “intelligence unit” whose job was to gather information about drug trafficking and to relay it to other officers. The same procedure used on the date in question had been used on many other occasions. The information relayed was a description of a specific vehicle, including its make, model and color, the name of the owner, license number, the specific location where the vehicle would be found travel-ling later that day and that the vehicle would be transporting narcotics. Based on this information, officer Robinson proceeded to the location described. Consistent with all the information supplied by Detective Himmel, he observed a vehicle at the location being driven by a woman. He proceeded to stop the vehicle.

Applying the “totality of the circumstances” test and the reduced indicia of reliability requirement in cases involving a Terry stop, we must examine both the quantity and quality of the evidence. The quality of the evidence here is far better than in White or Adams . The informant here is a known police officer whose specific duties involve gathering information about drug traffic and passing that information along to other police officers. Detective Himmel’s procedure in passing along information regarding narcotics traffic to other officers was the same as that previously used on numerous occasions. Under Adams , the fact that the informant is known and has provided information in the past further enhances reliability. Like the known informant in Adams , Detective Him-mel’s observations were verifiable by other officers going to the location he described and waiting to see if the Tope vehicle arrived. Finally, as in Adams , Detective Him-mel was subject to sanctions, both professional and otherwise, if he supplied false information to fellow officers. With a higher quality of the informant, the quantity of information needed to form reasonable suspicion should naturally be diminished.

Without citation to any authority, the majority holds that police officers are conclusively presumed to be unreliable informants unless they testify. I know of no inherent flaw in the character of law enforcement officers that justifies such presumption. A statement made by one police officer to another should be treated no differently than a *661 statement made by an informant to a police officer. Of course, the state has the burden of going forward with the evidence and the risk of nonpersuasion in determining if the defendant’s rights were violated. § 54,2.296. However, the burden of nonpersuasion and going forward with the evidence should not be translated into requiring the state to prove every conceivable fact that is available. For purposes of appellate review, the state need only establish by prima facie evidence that the movant’s rights were not violated. Of course, where the record affirmatively shows that the law enforcement officer supplying the information acted illegally or passed along demonstrably unreliable information, as was the case in Whiteley v. Warden, 401 U.S. 560, 568 , 91 S.Ct. 1031, 1037 , 28 L.Ed.2d 306 (1971), an illegal stop cannot be made lawful merely because the officers who make the stop act in objective reliance on the information supplied to them. However, in this case there was no evidence indicating that Detective Himmel acted illegally or that he obtained the information from an unreliable source. Indeed, in this ease if Detective Himmel had been merely a reliable informant rather than a police officer, the stop would be held entirely valid even though the informant was unnamed and did not testify.

Even assuming that statements by Detective Himmel should be given no more credence than those supplied by an anonymous tipster, the quantity of the information given here still rises to the level of that found in White . Here we have an even better description of the vehicle than in White . As in White , the record is vague as to the exact time elapsed between when the report was given and when the vehicle was observed. In White it was “not too long,” while here it was later the same day. We also have a prediction of a future event, which is that the Tope vehicle would be near the Rainbow Village Trailer Court on the date in question. It is important to note that it was not defendant’s car but Ms. Tope’s car that was in the area where defendant lived. As in White , it necessarily took more than a guess or “hunch” to predict that Tope would be driving her car in the area of defendant’s home on the date in question. “Significant aspects” of the information supplied by Detective Himmel were corroborated and suggested “a special familiarity with [defendant’s] affairs.” White, 496 U.S. at 332 , 110 S.Ct. at 2417 .

I am convinced that under the totality of the circumstances test, that is, considering both the quality and quantity of the evidence, the facts reported to officer Robinson had sufficient indicia of reliability to justify the stop to ask the identity of the occupants of the vehicle. The stop was not an unreasonable intrusion into the defendant’s personal security.

Once Ms. Tope was identified as the driver, the officers had further verification of Detective Himmel’s report. That verification justified a request to search her vehicle and to seek to identify the defendant. The consent to search by Ms. Tope and defendant’s furtive activity justified the further searches.

I applaud the majority’s altruistic assertion that its holding is designed to ensure the effectiveness of the Fourth Amendment prohibition on unreasonable searches and seizures. However, I am not sure that the application of an arcane “three-part test” for the reasonableness of a police stop, taken from a case which is inapposite, will have the desired effect. The Fourth Amendment prohibits only unreasonable searches and seizures. To the extent we read that amendment expansively so as to prohibit a police stop which is, in practical and common sense terms, based on reasonable suspicion, the deterrent effect of the exclusionary rule is rendered meaningless. More importantly, public confidence in core constitutional rights is eroded. To the extent public confidence is eroded, core rights are put at risk.

If there is any good news here, it is that this case is remanded for further proceedings rather than reversed outright. Implicit in that conclusion is that the error was one of admissibility of evidence, not insufficiency of evidence, and that on remand, the state is free to produce any new or additional evidence that may be available. State v. Wood, 596 S.W.2d 394, 398 (Mo. banc 1980). A ruling on a motion to suppress is an interlocutory order. State v. Collins, 816 S.W.2d 257, 258 (Mo.App.1991); State v. Fingers, 585 *662 S.W.2d 203, 206 (Mo.App.1979). Interlocutory orders are always subject to modification or alteration before final judgment. Brown v. Brown, 609 S.W.2d 223, 226 (Mo.App.1980). If the trial court in its discretion should determine on retrial that the ends of justice are best served by allowing additional evidence on the suppression of the evidence issue, and the stop of defendant is shown to meet the new test articulated by this opinion, there is no reason why the cocaine should not be admitted in evidence.

I would affirm.

. Actually, Hensley did not purport to set forth a "three-part test." It merely held that where a police officer makes a Terry stop in objective reliance on a police flyer or bulletin, even though the flyer or bulletin contains insufficient information to justify the stop, the stop is still valid "if the police who issued the flyer or bulletin possessed a reasonable suspicion justifying the stop." 469 U.S. at 233 , 105 S.Ct. at 682 .