                                                                                               FILED
                                                                                    GOUP, OF APPEALS
                                                                                       T
                                                                                        DIVISMI 11

                                                                                  20 I4 JA -     7'          22

                                                                                   S                  SH 1° GTO

                                                                                   BY
                                                                                               DER



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II

STATE OF WASHINGTON,


                                Respondent,        I                 No. 43289 -7 -II


          V.



Z.U.E.,                                                          PUBLISHED OPINION


                                Appellant.




          MAXA, J. — ZUE appeals his juvenile adjudication for possession of a controlled


substance ( marijuana).   He asserts that the trial court erred by denying his motion to suppress the

marijuana, which was obtained during a search after an investigative stop of ZUE and three other

vehicle occupants.    Specifically, he argues that officers lacked the well- founded suspicion that

ZUE or the other occupants were connected to actual or potential criminal activity necessary to

conduct a lawful investigative stop of his vehicle. Because the citizen informants' tips that led to

the investigative stop did not have sufficient indicia of reliability and the police officers'

observations were unable to corroborate the presence of criminal activity, we hold that under the

totality of the circumstances the stop was an unlawful seizure. Therefore, we reverse the trial

court' s denial of ZUE' s suppression motion, vacate his conviction, and dismiss the charge with

prejudice.
No. 43289 -7 -II


                                                    FACTS


        On the afternoon of October 2, 2011, Tacoma police received a 911 call reporting that an

individual was running with a gun in the area of Oakland Park. The caller stated that ( 1) the man

was a shirtless black male, 18 to 19 years old, 5 feet 10 inches tall, 145 pounds, and appeared

almost bald with short dark hair; and ( 2) he was holding a gun down by his side, ducking in and

out of houses and cars, and at one point he was seen holding the gun in a ready position. At least

three officers responded to Oakland Park, which was a known gang hangout and the site of

multiple gang- related incidents in the previous year.

        As the officers were responding, dispatch advised that multiple callers had reported that

more   individuals   were   involved   and   that approximately   eight of   those individuals —including   the

shirtless man with a gun —     were in a two -door white car. Dispatch subsequently advised that a

caller had reported that the car was gray, not white, the shirtless man with a gun had gotten into

the car, and the car was headed toward Union on Center Street. These callers were not

identified.


        Dispatch updated the officers again, stating that another caller had observed a black

female handing a gun to the shirtless male. The caller described her as 17 years old, medium

height, slim, and wearing a black jacket, blue jeans and black shoes with blue trim.

         Tacoma police had limited information on the 911 callers. The record reflects that the

first caller gave his name, telephone number, and address to dispatch. Another caller provided

her first name, cell phone number, and location. One caller was uncooperative and merely

reported a fight and a man with a gun. The officers knew the name of one of the callers, but did

not know how many 911 callers there were or the callers' identities. The officers also did not



                                                        0)
No. 43289 -7 -II



attempt to contact or obtain more information from any of the callers before conducting the

investigative stop.

       When the officers arrived in the area they did not see anyone in the park. As they

checked the area they observed two females walking about one -half block away, and one of the

females appeared to match the caller' s description of the woman who handed off the gun.


However, they continued to search for the man with the gun rather than make contact with the

female subject.


       The officers then contacted an unnamed woman at an apartment building overlooking the

park. The woman stated that there had been a large brawl in the park, several of the participants


had their shirts off, and the participants left in four separate vehicles. But she could not provide


any information about the subjects or their vehicles. She did not say anything about a male or a

female with a gun.


       As they continued their area check the officers again saw the two females, who now were

in a parking lot in front of a flower shop at the intersection of Center and Union. This location

was near the area where dispatch had reported the gray car carrying the shirtless man with a gun

was headed. The women approached a small gray car, and officers noticed that one of the

women exactly matched the description of the woman who handed off the gun except she was

not wearing a black jacket. One of the officers testified that the female' s age, race, build, attire,

as well as time and proximity led him to believe that she may have been involved in the park

incident. The woman got into the back seat of the gray car, which appeared to have two men in

the front seat. The two men were wearing shirts and both had hair, so they did not match the

description   of   the bald,   shirtless man.
No. 43289 -7 -II



        Based on the available information, the officers believed they were investigating a minor

in possession of a firearm and a gang -related assault with a deadly weapon. The officers

approached   the   vehicle on   foot   with   their firearms drawn, using       a " `   felony   stop' " technique.


Clerk' s Papers ( CP) at 92. The officers instructed the occupants of the vehicle to put their hands

up, which they did. The officers waited a few minutes for other officers to arrive and then

directed the vehicle occupants to exit the vehicle one at a time. The driver and two female

passengers exited the vehicle and were detained in handcuffs without incident.

        ZUE, another passenger, was the last person to exit the vehicle. One of the officers


believed ZUE was not responding to instructions and became concerned that he was reaching for

a concealed weapon.      As   a result,   the   officer " touch[ ed]"   his electronic control tool to ZUE,


handcuffed ZUE,      and arrested      him for   obstruction.    Report   of   Proceedings       at   55. Officers


searched ZUE incident to arrest and found marijuana on his person. Officers did not locate any

guns.




        The State charged ZUE with unlawful possession of a controlled substance ( marijuana)


and obstructing a law enforcement officer. ZUE moved to suppress any evidence obtained

during the stop as the fruit of an unlawful seizure. The trial court conducted a combination CrR

3. 6 hearing and bench trial. The trial court denied ZUE' s suppression motion, ruling that the

stop was supported by reasonable suspicion of criminal activity and that the scope of the stop

was reasonable. The trial court entered detailed findings of fact and conclusions of law. The

trial court then adjudicated ZUE not guilty of obstructing a law enforcement officer and guilty of

unlawful possession of a controlled substance ( marijuana).               ZUE appeals.




                                                            11
No. 43289 -7 -II


                                                 ANALYSIS


A.       STANDARD OF REVIEW


         When reviewing the trial court' s denial of a CrR 3. 6 suppression motion, we determine
whether substantial evidence supports the challenged findings of fact and whether the findings of

fact support the conclusions of law. State v. Garvin, 166 Wn.2d 242, 249, 207 P. 3d 1266 ( 2009).

 Evidence is substantial when it is enough `to persuade a fair -
                                                               minded person of the truth of the

stated premise.' "     Garvin, 166 Wn.2d at 249 ( quoting State v. Reid, 98 Wn. App. 152, 156, 988

P. 2d 1038 ( 1999)).     Unchallenged findings of fact are considered verities on appeal. State v.

Lohr, 164 Wn.      App.   414, 418, 263 P. 3d 1287 ( 2011).   We review de novo the trial court' s

conclusions of law pertaining to the suppression of evidence. Garvin, 166 Wn.2d at 249.

B.       JUSTIFICATION FOR INVESTIGATIVE STOP


         ZUE challenges the trial court' s denial of his motion to suppress evidence discovered in

the   course of   the investigative stop.'   Following the suppression hearing, the trial court entered a

finding that ( 1) the officers " reasonably believed" that one or more of the suspect car' s occupants

were related to a possible assault with a deadly weapon and /or unlawful possession of a firearm

and were armed or dangerous and ( 2) a reasonably prudent person with the information available

to the officers at the time of the contact would believe that one or more of the occupants were




  ZUE also challenges two specific findings of fact with regard to the suppression hearing. We
 need not address these findings because they have no bearing on our analysis of the court' s legal
 conclusion that the investigatory stop was lawful. In addition, ZUE challenges two findings of
 fact entered after the bench trial. Because we reverse we need not address these findings.

                                                        5
No. 43289 -7 -II


                                                                               2
related      to the 911   reports and were armed and        dangerous.              CP   at   101.    On this basis the trial


court concluded that the officers' detention of the car was lawful. We disagree.

                  Standards for Warrantless Stop

             Under the Fourth Amendment to the United States Constitution and-article I, section 7 of


the Washington State Constitution, a police officer generally cannot seize a person without a

warrant supported by probable cause. Garvin, 166 Wn.2d at 249; State v. Acrey, 148 Wn.2d 738,

745 -46, 64 P. 3d 594 ( 2003) ( addressing only Fourth Amendment). A warrantless seizure is


considered per se unconstitutional unless it falls within an exception to the warrant requirement.


State   v.    Rankin, 151 Wn.2d 689, 695, 92 P. 3d 202 ( 2004);                    Acrey,     148 Wn.2d     at   746. One


established exception is a brief investigatory detention of a person, commonly called a Terry

stop. Acrey, 148 Wn.2d at 746. A police officer may conduct a warrantless investigative stop

based upon less evidence than is needed to establish probable cause to make an arrest. Acrey,

148 Wn.2d at 746 -4.7. But the officer must have " a reasonable suspicion, grounded in specific

and articulable facts, that the person stopped has been or is about to be involved in a crime."


Acrey,       148 Wn.2d     at   747. " A reasonable, articulable suspicion means that there ` is a substantial


possibility that     criminal conduct       has   occurred or     is   about   to   occur.' "        State v. Snapp, 174 Wn.2d

177, 197 -98, 275 P. 3d 289 ( 2012) ( quoting             State v. Kennedy, 107 Wn.2d 1, 6, 726 P. 2d 445

    1986)).    The officer' s suspicion must relate to a particular crime rather than a generalized




2
    This   finding   was   in   a section entitled "   Findings     as   to Disputed Facts," but the ultimate issue of
whether a       stop was justified is a conclusion of law. CP at 101 ( capitalization omitted); State v.
Bailey,       154 Wn. App. 295, 299, 224 P. 3d 852 ( 2010). Where a conclusion of law is erroneously

labeled as a finding of fact, we review it de novo as a conclusion of law. Casterline v. Roberts,
168 Wn. App. 376, 383, 284 P. 3d 743 ( 2012).
3
    Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 ( 1968).
                                                                6
No. 43289 -7 -II



suspicion       that the   person   detained is " up to       no good."     State v. Bliss, 153 Wn. App. 197, 204, 222

P. 3d 107 ( 2009).


           We determine the propriety            of an      investigative stop —the reasonableness of the officer' s


suspicion —based on          the "   totality   of   the   circumstances."
                                                                               Snapp,   174 Wn.2d   at   198. The focus is


on what     the   officer   knew     at   the time   of   the stop.    State v. Lee, 147 Wn. App. 912, 917, 199 P. 3d

445 ( 2008).       No subsequent events or circumstances can retroactively justify a stop. State v.

Mendez, 137 Wn. 2d 208, 224, 970 P. 2d 722 ( 1999),                        abrogated on other grounds by Brendlin v.

California, 551 U. S. 249, 255, 259              n. 5,     127 S. Ct. 2400, 168 L. Ed. 2d 132 ( 2007). A court must


base its   evaluation of reasonable suspicion on " `                  commonsense judgments and inferences about


human behavior.' "           Lee, 147 Wn. App. at 917 ( quoting Illinois v. Wardlow, 528 U.S. 119, 125,

120 S. Ct. 673, 145 L. Ed. 2d 570 ( 2000)).


           Whether a warrantless investigative stop was justified or represents a constitutional

violation is a question of law that we review de novo. State v. Bailey, 154 Wn. App. 295, 299,

224 P. 3d 852 ( 2010).         The State bears the burden of showing the propriety of an investigative

stop. Acrey, 148 Wn.2d at 746. If the initial stop was unlawful, the evidence discovered during

that stop are not admissible because they are fruits of the poisonous tree. Kennedy, 107 Wn.2d at

L


           2.      Suspicion Based on Citizen Informant


           Here, reports from citizen informants provided the sole basis for the police officers'


suspicions that the young woman entering the gray car had committed the crime of a minor in

possession of a firearm and that one of the men in the car had been running with a gun. ZUE

argues that such informant information cannot support an investigative stop under the

circumstances of this case.


                                                                      VA
No. 43289 -7 -II


          Our Supreme Court first addressed this issue in State v. Lesnick, 84 Wn.2d 940, 943, 530


P. 2d 243 ( 1975) and confirmed that information supplied by another person may authorize an

investigative stop. However, the court emphasized that the informer' s tip must demonstrate

some " `   indicia   of   reliability.' "   Lesnick, 84 Wn.2d at 943 ( quoting Adams v. Williams, 407 U.S.

143, 147, 92 S. Ct. 1921, 32 L. Ed. 2d 612 ( 1972)).             The court held that this reliability can be

established if ( the informant was reliable or ( 2) the officer' s corroborative observation
                1)


suggests either the presence of criminal activity or that the information was obtained in a reliable

fashion. Lesnick, 84 Wn.2d at 944.

          The Supreme Court in State v. Sieler, 95 Wn.2d 43, 48, 621 P. 2d 1272 ( 1980),


subsequently clarified that " reliability by itself generally does not justify an investigatory

detention."    Instead, a reliable informant' s tip also must be supported by a " sufficient factual

basis" or " underlying factual justification" so officers can assess the probable accuracy of the

informant' s conclusion. Sieler, 95 Wn.2d at 48. The court emphasized that it made no sense to

require evidence of the informant' s reliability but nothing concerning the source of the

information. Sieler, 95 Wn.2d at 48. This additional requirement of a sufficient factual basis for

the informant' s report allows officers to evaluate whether a reliable informant has " misconstrued

innocent    conduct."       Sieler, 95 Wn.2d at 48. Including this requirement creates an analysis
                                                                                                                    4
similar    to the Aguilar—Spinelli test       for issuance of   a warrant   based   on an   informant'   s   tip.




4
    Washington courts follow the Aguilar—Spinelli test under article I, section 7 of the state
constitution to determine whether issuance of a warrant was supported by probable cause. State
v.   011ivier, _   Wn.2d _,        312 P. 3d 1, 22 ( 2013). Aguilar v. Texas, 378 U. S. 108, 84 S. Ct. 1509,
 12 L. Ed. 2d 723 ( 1964) and Spinelli v. United States, 393 U. S. 410, 89 S. Ct. 584, 21 L. Ed. 2d
637 ( 1983) were overruled by Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed.
527 ( 1983), in which a totality of the circumstances analysis was adopted for purposes of the
Fourth Amendment.
No. 43289 -7 -II



        Subsequently, our Supreme Court in Kennedy, stated the indicia of reliability test without

including     the   additional     basis   of   knowledge       requirement stated   in Sieler. 107 Wn.2d at 7.


Division One of this court noted that Kennedy and the totality of the circumstances standard

compels    the   conclusion        that the " `   basis   of   knowledge' " concept grounded in the Aguilar—


Spinelli test ( used to evaluate whether a warrant is supported by probable cause) does not extend

to the indicia of reliability of informant tips for investigatory stops. State v. Marcum, 149 Wn.

App.   894, 904 -05, 205 P. 3d 969 ( 2009) ( quoting                State v. Jackson, 102 Wn.2d 432, 436, 688 P. 2d

136 ( 1984)).       In Marcum, the court indicated that the informant' s basis of knowledge was


relevant   but   not essential      to the   analysis of an       investigatory   stop.   149 Wn. App. at 904.

        Under Sieler and Lesnick, we hold that an informant' s report can provide reasonable


justification for      an officer' s    investigative stop in two        situations: (    1) when the information


available to the officer showed that the informant was reliable or ( 2) when the officer' s


observations corroborate either the presence of criminal activity or that the informant' s report

was obtained in a reliable fashion. 95 Wn.2d at 47 -48; 84 Wn.2d at 944. We need not decide


whether the informant' s basis of knowledge is a requirement or merely a factor to be considered.

in the totality of the circumstances analysis because, under either approach, the circumstances

here did not warrant an investigatory stop.

         3.      Reliable Informant / actual Basis
                                    F


                    a. "        Unknown" Informant


         Known citizen informants ( as distinguished from anonymous or " professional"


informants) generally are presumed to be reliable. State v. Gaddy, 152 Wn.2d 64, 72 -73, 93 P. 3d

872 ( 2004); State         v.   Wakeley, 29     Wn.   App.     238, 241, 628 P. 2d 835 ( 1981).     For investigative


stops, the same degree of reliability need not be shown for a " citizen" as opposed to a

                                                                    E
No. 43289 -7 -II


 professional"         informant. Kennedy, 107 Wn.2d                at   8.    However, our Supreme Court has not


adopted a presumption of reliability for anonymous citizen informants in evaluating investigative

stops. In Lesnick, the court held that an anonymous caller reporting that the driver of a van with

a certain license plate number was attempting to sell gambling devices was insufficient to

establish the well- founded suspicion needed to support an investigative stop of the van. 84

Wn.2d         at   941, 944. The    court stated, " `    It is difficult to conceive of a tip more completely

lacking in indicia of reliability than one provided by a completely anonymous and unidentifiable

informer, containing no more than a conclusionary assertion that a certain individual is engaged

in   criminal       activity.' "   Lesnick, 84 Wn.2d        at   944 ( internal       quotation marks omitted) ( quoting




State    v.   Lesnick, 10 Wn.       App.     281, 285, 518 P. 2d 199 ( 1973),            aff'd, 84 Wn.2d 940).

              Even a named, but otherwise unknown, citizen informant is not presumed to be reliable

and a report         from   such an   informant may        not   justify      an   investigative stop. In Sieler, a father


waiting to pick up his son at high school telephoned the school secretary to report that he

witnessed a drug sale in another car in the parking lot. Sieler, 95 Wn.2d at 44 -45. He provided

his name and telephone number. Sieler, 95 Wn.2d at 45. The secretary relayed this information

to the    police.      Sieler, 95 Wn.2d       at   45. The court held that the informant' s name and telephone


number were not enough                to   establish   his reliability, stating, " The reliability of an anonymous


telephone informant is not significantly different from the reliability of a named but unknown

telephone informant. Such an informant could easily fabricate an alias, and thereby remain, like

an anonymous            informant,    unidentifiable."      Sieler, 95 Wn.2d at 48.


              We relied on Sieler in State v. Hopkins, 128 Wn. App. 855, 858 -59, 117 P. 3d 377 ( 2005),

where an unknown 911 caller reported that a minor might be carrying a gun and accurately

 described the minor' s location and provided a partially accurate description. The informant gave

                                                                    10
No. 43289 -7 -II



his name and cell phone number and a second call provided police with another phone number.


Hopkins, 128 Wn.      App.   at   858. We held that despite the general presumption that a citizen


informant is reliable, providing the name and cell phone number of an informant unknown to

officers is insufficient to establish reliability and cannot by itself justify an investigative stop.

Hopkins, 128 Wn. App. at 863 -64.

        Here, two 911 callers provided basic information: one provided his name, telephone

number, and address and another provided her first name, cell phone number and location.

However, the officers did not know the callers and knew nothing else about them. And the

officers did not contact the callers to obtain more information about their reliability. The

absence of any information regarding the informants beyond basic identification precludes a

finding of reliability.

        The State argues that the fact that multiple callers provided similar information shows


reliability here. See generally       Kennedy,     107 Wn.2d       at   8 ( " The two independent sources of


information    each provide support      for the   other' s   veracity. ").   The number of callers may be a

factor to be considered in the broader totality of the circumstances analysis, but the State cites no

authority addressing the     potential   cross corroboration of          multiple   911   calls.   On the existing

briefing and under the facts here, there is no showing that one unknown caller bolstered the

credibility of another unknown caller. The State also argues that informants are more reliable

when they call 911 as opposed to a nonemergency number. Although the dissent in Hopkins

made   the   same argument,       the majority   did   not adopt   it.   128 Wn. App. at 869 -70 ( Quinn -

Brintnall, C. J.   dissenting). We disagree that calling 911, without more, can establish an

unknown informant' s reliability to purposes ofjustifying an investigative stop.



                                                              11
No. 43289 -7 -II



        We hold under Sieler and Hopkins that obtaining the unknown informants' names and

contact information is not enough to establish their reliability. We also hold under Lesnick that

here the State has not sustained its burden of proving that the officers had enough information to

establish that the anonymous callers and the unnamed woman the. officers personally contacted

were reliable.




                  b.   Factual Basis


        Even if an informant is reliable, the court in Sieler held that an informant' s " bare


conclusion" that criminal conduct had occurred " unsupported by any factual foundation" was

insufficient to justify an investigative stop. 95 Wn.2d at 49. Whether the informant' s factual

basis is a strict requirement or only one factor, an officer' s information regarding the factual

basis for the informant' s conclusion that criminal activity has occurred is relevant to the totality

of the circumstances analysis. Sieler, 95 Wn.2d at 48 -49.


        In Hopkins we generally stated this requirement as whether the informant' s tip " contains

enough objective        facts" to     justify   the   detention. 128 Wn.           App.   at   862 -63. However, we also


made it clear that these " objective facts" must involve criminal activity, not merely innocuous

information such as an accurate description of the subject or his or her location. Hopkins, 128


Wn.   App.   at   862 -64. " `    The reasonable suspicion here at issue requires that a tip be reliable in its

assertion of      illegality,   not   just in its   tendency   to   identify   a   determinate     person.' "   Hopkins, 128


Wn. App. at 864 ( quoting Florida v. J.L., 529 U. S. 266, 272, 120 S. Ct. 1375, 146 L. Ed. 2d 254

 2000)).


        Here, the record does not reflect that the first caller expressly stated the basis for his

knowledge that a man was running with a gun. The detailed information provided suggests that

he was an eyewitness, and an informant' s credibility is enhanced when he or she is an

                                                                    12
No. 43289 -7 -II



eyewitness.    Lee, 147 Wn.    App.   at   918.   But we have suggested that officers may not presume

that informants' tips are eyewitness accounts. State v. Vandover, 63 Wn. App. 754, 755 -56, 759-

60, 822 P. 2d 784 ( 1992) ( tip   that a man in a gold colored Maverick was brandishing a sawed -off

shotgun in front of a downtown restaurant did not justify investigative stop of man leaving that

location in   a green   Maverick).   As a result, the factual basis of the first caller' s tip was unclear.

On the other hand, the record does establish that a caller " observed" the young woman hand a

gun to a man. CP at 90. An eyewitness' s observation of events may provide a sufficient factual

basis for a tip. See Lee, 147 Wn. App. at 918 -19.

         However, a key portion of the informant' s report concerning the young woman was that

she was approximately 17 years old. Her age was significant because the officers stated that they

suspected her of committing the crime of being a minor in possession of a firearm. If the woman

was not a minor, there was no basis for suspecting that her possession of a firearm was unlawful

because carrying a gun is not automatically a crime. But the caller did not explain the factual

basis for the estimate of the young woman' s age. The estimate was a " bare conclusion

unsupported    by    any factual foundation." Sieler, 95 Wn.2d at 49. As a result, we hold that the


factual basis requirement was not satisfied for the officers' suspicion that the woman was


involved in criminal activity.

        4.     Police Corroboration


                a.      Corroboration of Criminal Activity

        Even if an informant is unreliable and /or the tip lacks sufficient factual basis, an officer' s

corroboration can justify an investigative stop. The informant' s tip may support an investigative

stop if an officer observes some illegal, dangerous, or suspicious activity. Lesnick, 84 Wn.2d at

944. The activity need not be particularly blatant. See Wakeley, 29 Wn. App. at 239, 241 -43

                                                         13
No. 43289 -7 -II



 stop justified when an informant identified the subject as leaving in an orange colored Pinto

after gunshots were heard and the officer passing an orange Pinto observed the driver attempting

to hide something in his jacket).              And a police officer may rely on his or her experience to

identify seemingly innocuous facts as suspicious. State v. Moreno, 173 Wn. App. 479, 492 -93,

294 P. 3d 812,       review   denied, 177 Wn.2d 1021 ( 2013). Facts that appear innocuous to an average


person may appear suspicious to a police officer in light of past experience. Moreno, 173 Wn.

App. at 493 ( an officer with considerable experience with local gangs responding to multiple

reports of gunfire in a gang neighborhood, who saw a car hurriedly leaving an alley driven by a

man wearing a shirt of a color associated with a rival gang had a reasonable suspicion that the

driver was involved in the shooting).

            On the other hand, as with the factual basis requirement, confirming a subject' s

description or location or other innocuous facts does not satisfy the corroboration requirement.

See Lesnick, 84 Wn.2d at 943 ( the fact that informant accurately described the defendant' s

vehicle     is   not sufficient corroboration       for   a   stop).    In Hopkins, an informant reported that a young

man   had    a gun,    described the   man, and provided               his location. 128 Wn.   App.   at   858.   Officers


observed a man who resembled the informant' s description at the described location, but did not

observe a gun or any illegal, dangerous, or suspicious activity. Hopkins, 128 Wn. App. at 859.

Based on these facts, we held that an investigatory stop was not justified. Hopkins, 128 Wn.

App.   at   865 -66;   see also   State   v.   Hart, 66 Wn.       App.    1, 9, 830 P. 2d 696 ( 1992) (    officer' s




observation of defendant confirming informant' s description and defendant' s location did not

satisfy the       corroboration requirement);        Campbell v. Dep' t ofLicensing, 31 Wn. App. 833, 834-

35, 644 P. 2d 1219 ( 1982) (        anonymous motorist' s tip that a drunk driver was travelling in the



                                                                   14
No. 43289 -7 -II



opposite direction and description of the car did not justify investigative stop of car matching the

motorist' s description).


        Here, the informant stated that a young woman had handed a gun to a male subject in

Oakland Park. The officers located a woman matching the description walking with another

woman near the park, but they did not see anyone else in the park or nearby. The officers

observed no illegal or suspicious behavior from the woman or her companion at that time.


Officers observed the woman again in a flower shop parking lot getting into a car, but again she

was engaged in no suspicious behavior. And nothing about the woman' s innocuous behavior

would signal a suspicion in an experienced officer. In other words, the officers did not make any

corroborative observations suggesting that the young woman had engaged in actual or potential

criminal activity.

         With regard to the young man running with the gun, the officers never located anyone

matching the informants' description of a shirtless, almost bald man. The State argues that the

officers had reasonable suspicion that one of the men in the front seat of the gray car was that

man because a caller reported that he was in a gray vehicle. However the record does not

support this argument. A gray car hardly is unique, and merely confirming a vehicle description

does   not   satisfy the   corroboration requirement.   Lesnick, 84 Wn.2d   at   943. And there was no


testimony that ZUE or the other male occupant even slightly resembled the description of the

shirtless bald man from the park. Conversely, the record reflects that the males in the front seat

were wearing shirts and had hair.

         The State also argues that the officers corroborated the details of the 911 calls by

contacting a witness who confirmed that a large brawl had occurred and that the subjects left in

four different vehicles. However, this witness said nothing about a young woman or a man with

                                                        15
No. 43289 -7 -II



a gun, or about their possible connection to the brawl. And the officers saw no indication that


any brawl had in fact occurred. Further, the witness did not give her name and the record does

not show that the officers knew her. We hold that information obtained from an anonymous,

unknown informant that the officers themselves could not confirm is not sufficient to corroborate


the report of another unknown informant.


          Finally, the State emphasizes that the reported activities took place in a high crime area.

However, the presence of the subjects in such an area cannot by itself give rise to a reasonable

suspicion that they were engaged in criminal activity. Sieler, 95 Wn.2d at 49.

          We hold that the officers did not corroborate the presence of actual or potential criminal


activity. All they corroborated was the young woman' s description and what she was wearing,

and the presence of a gray car. These observations of innocuous facts were insufficient to

support an investigatory stop.

                   b.    Corroboration that Information Obtained in a Reliable Fashion


          The court in Lesnick stated that an investigative stop could be justified if an officer' s

corroborative observations indicate that the informant' s information was obtained in a reliable


fashion. 84 Wn.2d at 944. For instance, in Lee the officer actually observed the informant

interacting with the subject of the search and was able to corroborate how the informant obtained

her information.        147 Wn. App. at 914 -15, 922. A patrol officer witnessed a car pull up to a

female pedestrian in a high -crime area and the occupants briefly speaking with her. Lee, 147

Wn. App. at 914 -15. Then she walked quickly away, appearing frightened. Lee, 147 Wn. App.

at 915. The officer contacted the pedestrian and asked if she was all right. Lee, 147 Wn. App. at
915.     The pedestrian reported that two individuals in a specific car pulled over and told her to get

in the   vehicle   to   smoke crack cocaine while   showing her that they   possessed   both   crack and a
No. 43289 -7 -II



crack pipe.      Lee, 147 Wn.           App.   at   915. The officer followed the vehicle and conducted an


investigatory stop. Lee, 147 Wn. App. at 915. Division One of this court held that the

anonymous informant' s statements justified the stop because the circumstances were

corroborated by the officer' s own observations. Lee, 147 Wn. App. at 922.

           Here, the officers had no personal knowledge regarding how the informants gathered

their information. The information simply was relayed to them by the dispatcher. We hold that

the officers had no corroborative observations that the callers obtained their information in a


reliable fashion.


           5.     Seriousness of Criminal Activity

           Although our Supreme Court has adopted specific rules for anonymous and unknown


informants, those rules must be applied in the context of the totality of circumstances approach.
See   Snapp,     174 Wn.2d         at   198. The     court stated   in Lesnick, "[ N] o single rule can be fashioned to


meet   every     conceivable confrontation             between the       police and citizen[ s].
                                                                                                   Evaluating the

reasonableness of the police action and the extent of the intrusion, each case must be considered

in light   of   the   particular circumstances
                                                        facing the    law   enforcement officer."     84 Wn.2d at 944.


The   court emphasized         that      a significant   fact in that    case —
                                                                                  in which the stop was found

unjustified —was         that the suspected crime " posed no threat of physical violence or harm to


society    or   the   officers."    Lesnick, 84 Wn.2d at 944. Conversely, the court indicated that tips

involving " murder or threatened school bombings" would be judged in light of their particular

facts. Lesnick, 84 Wn.2d at 945.


           The Supreme Court repeated this theme in Sieler, stating that the criteria for evaluating

information       obtained    by informants          could not   be   analyzed    in isolation. 95 Wn. 2d   at   50. "[ T] he


seriousness of the criminal activity reported by an informant can affect the reasonableness

                                                                    17
No. 43289 -7 -II



calculus which      determines      whether an       investigatory detention is permissible."           Sieler, 95 Wn.2d


at   50; cf.State   v.   Franklin, 41 Wn.         App.   409, 412, 704 P. 2d 666 ( 1985) ( "       The anonymity of an

informant does not necessarily make an investigatory stop improper, especially when the
                                                                                               5
informant'   s   information indicates that          a violent crime        may   occur. ,).




          Sieler and Lesnick recognize that we may apply a less stringent standard to assess the

reasonableness of an investigative stop when police officers are called upon to swiftly respond to

a significant threat to public safety. 95 Wn.2d at 50; 84 Wn.2d at 944 -45; see also State v.

Randall, 73 Wn.          App.   225, 230, 868 P. 2d 207 ( 1994) ( " An            officer acting on a tip involving the

threat of violence and rapidly developing events does not have the opportunity to undertake a

methodical, measured            inquiry   into   whether    the   tip is   reliable. ").   But see Vandover, 63 Wn. App.

at 760 ( danger to the public is a " factor which may make an investigatory stop reasonable under

the circumstances where there are already indications that the informant' s tip was reliable ")

          The parties have not briefed the standards for investigatory stops in emergent situations

presenting a serious risk to public safety or analyzed the application of these facts to such

standards. In addition, it is clear that more than mere possession of a firearm is necessary to

support an    investigatory              L.,
                                  stop. J.         529 U.S. at 272 -74; see also Vandover, 63 Wn. App. at 755,

760 ( finding a traffic stop unreasonable when based on an anonymous call that the subject had

brandished       a sawed -off shotgun).          Here, there does not appear to be any basis to believe that the

young woman had possession of the gun at the time of the stop. And any brawl that had

occurred at the park was over by the time the officers arrived. On the existing briefing and

argument, it does not appear that a risk to public safety warranted the investigatory stop.


5 The United States Supreme Court, while refusing to speculate, has suggested the possibility that
 the danger alleged in an anonymous tip might be so great as to justify a search even without a
showing     of   reliability." J.
                                L., 529 U. S. at 273 -74.
                                                                   18
No. 43289 -7 -II



          6.   Summary

          Police officers conducted an investigative stop of ZUE based solely on information

provided by 911 callers even though police officers did not know the reliability of the callers, did

not know the factual basis of the caller' s assertion of criminal activity, did not observe

circumstances corroborating the reports of criminal activity, and could not corroborate that the

information was obtained in a reliable fashion. Further, although a report of a possession of a


gun in public can raise public safety concerns that could allow for a less stringent reliability

analysis, here there was no indication of an immediate threat to public safety at the time of the

stop.


          Under the totality of these circumstances, we hold that the trial court erred in concluding
                                                                                        6
that the circumstances supported     an   investigative stop   of   ZUE'   s vehicle,       Accordingly, we

reverse the trial court' s denial of ZUE' s motion to suppress evidence obtained in an unlawful


investigative stop. Because that evidence was the only basis for ZUE' s conviction for possession




6
    ZUE also challenges the trial court' s legal conclusion that the scope of the investigative stop
was permissible. He argues that the officers' use of firearms and handcuffs was not reasonable
under the circumstances and converted the stop into an arrest, which would require the officers to
have probable cause. Because we hold that the stop was unlawful from its outset, we do not
reach this issue.


                                                     19
No. 43289 -7 -II



of a controlled substance, we further vacate ZUE' s conviction and dismiss the charge with


prejudice.




                                                     K , J,
                                                 Maxa, J.
We concur:




P.     kR, P. J.




VERELLEN, J.




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