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STATE v. ALBA2015 OK CR 2341 P.3d 91Case Number: S-2014-175Decided: 01/16/2015STATE OF OKLAHOMA, Appellant, v. VERONICA MCLAINA ALBA, Appellee.
Cite as: 2015 OK CR 2, 341 P.3d 91


OPINION


JOHNSON, JUDGE:
¶1 Appellee Veronica McLaina Alba was charged with Driving a Motor Vehicle 
While Under the Influence of Alcohol in violation of 47 O.S.2011, § 11-902(A)(2), in 
Rogers County District Court, Case Number CM-2013-574. Alba filed a motion to 
suppress and a hearing was held on this motion on February 4, 2014. The district 
court judge did not rule on the motion at that time but took the matter under 
advisement. On February 11, 2014, Judge Terrell S. Crosson granted Alba's motion 
to suppress. Appellant, the State of Oklahoma, appeals the suppression order. We 
exercise jurisdiction pursuant to 22 
O.S.2011, § 1053, reverse the district court's suppression order, and remand 
for further proceedings.
BACKGROUND
¶2 Around 4:00 p.m. on July 16, 2013, Claremore Police Lieutenant Steve Cox 
received a call from dispatch advising him of a possibly intoxicated driver. 
Dispatch told Lieutenant Cox that a concerned citizen called and reported that 
she had seen a woman at a mobile home park who appeared to be intoxicated get 
into a black SUV and start driving. The caller, who identified herself and gave 
dispatch her telephone number, reported that she observed the woman walk face 
first into a light pole before she got into her vehicle, that the woman was 
swaying and having a hard time keeping her eyes open, and that the woman was 
rolling something in her hands that could have been drugs. The caller described 
her own vehicle as a maroon SUV and told dispatch that she was following the 
black SUV. When Lieutenant Cox located the black SUV he noted that it was being 
followed by a maroon SUV. The woman in the maroon SUV caught Cox's attention and 
pointed at the black SUV. Cox stopped the black SUV based upon the information 
given to dispatch by the caller. He did not observe the driver of the black SUV 
commit any traffic violations.
¶3 Alba argued in the motion to suppress that the evidence against her was 
"fruit of the poisonous tree" because the stop was unlawful and violated her 
constitutional right to be free from unreasonable searches and seizures. The 
district court agreed, sustaining the motion to suppress. The State appeals the 
district court's order sustaining Alba's motion to suppress raising the sole 
issue of whether error occurred when the district court suppressed the evidence 
obtained during the investigatory stop. Title 22 O.S.2011, § 1053(5) provides that 
the State may appeal, "[u]pon a pretrial order, decision, or judgment 
suppressing or excluding evidence where appellate review of the issue would be 
in the best interests of justice." We find that the State's appeal is proper and 
review of this issue is in the best interests of justice. See State v. 
Thomas, 2014 OK CR 12, ¶ 3, 
334 P.3d 941, 943.
DISCUSSION
¶4 The State contends that the stop of Alba's vehicle was not an unreasonable 
seizure in violation of the Fourth Amendment to the United States Constitution 
and argues that the district court erroneously granted Alba's motion to 
suppress. When reviewing a trial court's ruling on a motion to suppress evidence 
based on a complaint of an illegal search and seizure, this Court defers to the 
trial court's findings of fact unless they are not supported by competent 
evidence and are therefore clearly erroneous. Seabolt v. State, 2006 OK CR 50, ¶ 5, 152 P.3d 235, 237. We review the 
trial court's legal conclusions based on those facts de novo. Id.
¶5 Both the United States and Oklahoma Constitutions guarantee the right to 
be free from unreasonable searches and seizures. U.S. Const. amend. IV; Okla. 
Const. art. 2, § 30. Although Fourth Amendment protections extend to brief 
investigatory stops of persons or vehicles that fall short of traditional 
arrest, Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 
(1968), the police are allowed to conduct brief investigative stops if the 
officer possesses "reasonable suspicion to believe that criminal activity 'may 
be afoot.'" United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 
750, 151 L.Ed.2d 740 (2002). Reasonable suspicion for an investigatory stop may 
be based on information supplied by another person, and not solely upon an 
officer's personal observation. Adams v. Williams, 407 U.S. 143, 147, 92 
S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972).
¶6 The district court's decision to grant Alba's motion to suppress was made 
in reliance on this Court's ruling in Nilsen v. State, 2009 OK CR 6, 203 P.3d 189. In Nilsen, an 
officer who observed no traffic violation stopped a vehicle based upon the tip 
of an anonymous caller that the person operating the vehicle was drinking a beer 
while driving. This Court found that the seizure was unconstitutional, reasoning 
as follows:


Because the informant was anonymous, the law enforcement officials had no 
    means of assessing his or her reliability and there was no threat of 
    criminal repercussion in case of false accusation. Further, the informant 
    provided only identifying information and included nothing--not even 
    predictive information--to sufficiently corroborate the allegation of 
    criminal activity. Thus, the anonymous tip lacked sufficient indicia of 
    reliability to justify the initial stop and accordingly, the Deputy did not 
    have, based on all the circumstances, a particularized and objective basis 
    for suspecting Appellant of criminal activity.
Nilsen, 2009 OK CR 6, 
¶ 9, 203 P.3d at 192.
¶7 Subsequent to this Court's ruling in Nilsen, the United States 
Supreme Court addressed a similar circumstance in Navarette v. 
California, __ U.S. __, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014). In 
Navarette, where the police officer conducted an investigatory stop of a 
vehicle based upon the 911 call of an anonymous citizen, the Supreme Court found 
that the stop complied with the Fourth Amendment because, under the totality of 
the circumstances, the officer had reasonable suspicion to believe that the 
driver was intoxicated. Several factors contributed to this conclusion: (1) the 
caller gave sufficient details to claim eyewitness knowledge of the alleged 
dangerous driving; (2) the timeline of events supported the conclusion that the 
report was made contemporaneous with the observed criminal conduct; (3) the 
caller's use of the 911 emergency system provided some safeguards against the 
making of a false report; and (4) the behavior reportedly observed by the 
caller, when viewed from the standpoint of an objectively reasonable police 
officer, provided reasonable suspicion of drunk driving. Id. 134 S.Ct. at 
1689-90.
¶8 The circumstances supporting the conclusion that the investigative stop in 
this case was based upon reasonable suspicion of criminal activity are more 
compelling than those articulated in Navarette. As in Navarette, 
the caller in this case gave sufficient details to claim eyewitness knowledge. 
The behavior the caller observed and reported provided reasonable suspicion that 
Alba was driving while intoxicated. Furthermore, the timeline of events 
supported the conclusion that the report was made contemporaneous with the 
observed criminal conduct; not only did the caller report Alba's alleged drunk 
driving shortly after Alba got into her vehicle and started driving, the caller 
followed Alba as she drove and pointed her out to Lieutenant Cox when he 
responded to the dispatch. Finally, while use of the 911 emergency system to 
report illegal activity can be a significant factor in reducing the possibility 
of false report, it was not a significant factor in the present case because the 
caller was not anonymous. The caller gave dispatch her name and telephone number 
and described her own vehicle as well as Alba's vehicle. The caller then 
followed Alba in the vehicle the caller had described to dispatch and made eye 
contact with Lieutenant Cox when he located Alba, thus allowing Cox the 
opportunity to identify the caller.
¶9 "The 'reasonable suspicion' necessary to justify such a stop 'is dependent 
upon both the content of the information possessed by police and its degree of 
reliability.'" Navarette, 134 S.Ct. at 1687, quoting Alabama v. 
White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). Under the 
totality of the circumstances, there were sufficient indicia of reliability in 
this case to provide Lieutenant Cox with reasonable suspicion that the driver of 
the reported vehicle was driving while intoxicated. These circumstances 
justified the investigative stop. To the extent that Nilsen v. State, 2009 OK CR 6, 203 P.3d 189 is inconsistent with 
Navarette and with the opinion in this case, it should be overruled.1 The district 
court's order granting the motion to suppress should be reversed and the matter 
remanded for further proceedings.
DECISION
¶10 The Order of the District Court of February 11, 2014, sustaining Alba's 
motion to suppress evidence is REVERSED and the matter REMANDED 
for further proceedings. Pursuant to Rule 3.15, Rules of the Oklahoma 
Court of Criminal Appeals, Title 22, Ch.18, App. (2015), the MANDATE 
is ORDERED issued upon delivery and filing of this decision.
AN APPEAL FROM THE DISTRICT COURT OF ROGERS COUNTYTHE 
HONORABLE TERRELL S. CROSSON, SPECIAL JUDGE
 




APPEARANCES AT TRIAL

APPEARANCES ON APPEAL


BRETT CHAPMANASSISTANT DISTRICT ATTORNEY200 S. LYNN RIGGS 
      BLVD.CLAREMORE, OK 74017ATTORNEY FOR STATE

BRETT CHAPMANASSISTANT DISTRICT ATTORNEY200 S. LYNN RIGGS 
      BLVD.CLAREMORE, OK 74017ATTORNEY FOR APPELLANT


JEFFREY A. PRICEATTORNEY AT LAW400 S. MUSKOGEE 
      AVE.CLAREMORE, OK 74017ATTORNEY FOR DEFENDANT

JEFFREY A. PRICEATTORNEY AT LAW400 S. MUSKOGEE 
      AVE.CLAREMORE, OK 74017ATTORNEY FOR 
APPELLEE

OPINION BY: JOHNSON, J.SMITH, P.J.: ConcurLUMPKIN, 
V.P.J.: ConcurLEWIS, J.: Concur in Part and Dissent in 
Part

FOOTNOTES

1 Alba 
argues that because state constitutions can provide greater protection of 
individual liberties than that provided by the United States Constitution, this 
Court should not follow the United States Supreme Court's ruling in 
Navarette but instead should continue to follow our own prior ruling in 
Nilsen. Article II, § 30 of the Oklahoma Constitution and the Fourth 
Amendment to the United States Constitution contain almost identical language 
and are, in substance, identical in the rights protected. Alba has provided no 
persuasive reason why we should not follow the Supreme Court's Fourth Amendment 
jurisprudence.
 

 


LEWIS, J.: CONCUR IN PART/DISSENT IN PART
¶1 I concur in much of the rationale utilized by the majority, except I must 
point out that the trial court made erroneous findings of fact in reaching its 
conclusion. I dissent to the majority's conclusion that this Court's earlier 
decision in Nilsen v. State, 2009 OK CR 6, 203 P.3d 189, need be overruled to 
any extent.
¶2 A foundational principle in the litany of United States Supreme Court 
cases discussing Terry1 type stops is that these types of cases must be 
decided on a case by case basis, examining the totality of the circumstances, 
i.e. "the whole picture," to determine whether an officer has reasonable 
suspicion necessary to justify a stop. Navarette v. California, 572 U.S. 
___, 134 S.Ct. 1683, 1687, 188 L.Ed.2d 680 (2014); United States v. 
Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). The 
totality of the circumstances includes the source of information utilized to 
justify the stop and the degree of reliability of the information. 
Navarette, 134 S.Ct. at 1687. As pointed out by the majority opinion, 
even a tip from an anonymous source may, when viewed in light of the totality of 
the circumstances, exhibit sufficient indicia of reliability to provide 
reasonable suspicion to make the investigatory stop. See Alabama v. 
White, 496 U.S. 325, 332, 110 S.Ct. 2412, 2417, 110 L.Ed.2d 301 (1990).
¶3 This standard was utilized in Nilsen where this court held that an 
anonymous tip, standing alone, and without sufficient corroboration, was 
insufficient, under the totality of the circumstances, to provide reasonable 
suspicion to make the investigatory stop. In that case, the details given by the 
anonymous caller were not sufficient to support a reasonable suspicion that a 
crime was being committed. Thus, our decision in Nilsen, holding that the 
stop was not justified, was correct.2
¶4 The facts of this case are distinguishable from the facts of 
Nilsen. When the facts of this case are judged under the same standard, a 
different result is required. The facts of the present case present a much 
stronger case supporting a reasonable suspicion.
¶5 Here the trial court improperly identified the information as coming from 
an anonymous informant. On the contrary, this informant stayed in the area 
allowing themselves to be identified by the responding officer, which reduced 
the possibility that the information was false. The caller also left a name and 
cell phone number, which, combined with the caller's actions, indicate 
authenticity, rather than deception. The caller's actions did not reflect a 
desire to remain anonymous, thus the information given can be viewed as more 
reliable than the information coming from a totally anonymous source.
¶6 Thus, after a proper analysis of the source of the information under the 
totality of the circumstances so eloquently outlined in the Court's Opinion, the 
stop in this case was properly based on sufficient indicia of reliability to 
provide reasonable suspicion to make the investigatory stop.
¶7 As I find that there are no inconsistencies between Nilsen and the 
opinion in this case, there is no need to overrule any aspect of Nilsen. 
The trial court in this case simply erred in suppressing the evidence.

FOOTNOTES

1
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 
(1968).

2 The 
same conclusion was reached in Lunsford v. State, 1982 OK CR 168, 652 P.2d 1243, where an 
uncorroborated anonymous tip was insufficient, under the totality of the 
circumstances, to provide reasonable suspicion for a stop. See Florida v. 
J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000)(holding that a 
bare-bones anonymous tip lacking any corroboration could not provide a 
reasonable suspicion for the stop).


Citationizer© Summary of Documents Citing This Document


Cite
Name
Level


Oklahoma Court of Criminal Appeals Cases
 CiteNameLevel
 2015 OK CR 10, STATE v. NELSONDiscussed


Citationizer: Table of Authority


Cite
Name
Level


Oklahoma Court of Criminal Appeals Cases
 CiteNameLevel
 2006 OK CR 50, 152 P.3d 235, SEABOLT v. STATEDiscussed
 2009 OK CR 6, 203 P.3d 189, NILSEN v. STATEDiscussed at Length
 2014 OK CR 12, 334 P.3d 941, STATE v. THOMASDiscussed
 1982 OK CR 168, 652 P.2d 1243, LUNSFORD v. STATEDiscussed
Title 22. Criminal Procedure
 CiteNameLevel
 22 O.S. 1053, State or Municipality May Appeal in What CasesDiscussed
Title 47. Motor Vehicles
 CiteNameLevel
 47 O.S. 11-902, Persons Under the Influence of Alcohol or Other Intoxicating Substance or Combination ThereofCited













