               IN THE SUPREME COURT OF IOWA
                              No. 11–0738

                          Filed June 28, 2013


STATE OF IOWA,

      Appellee,

vs.

LEON KOOIMA,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Sioux County, Robert J.

Dull, Judge.



      A defendant seeks further review of a court of appeals decision

affirming the district court’s order overruling his motion to suppress.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS.



      Randy L. Waagmeester of Waagmeester Law Office, PLC, Rock

Rapids, for appellant.



      Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant

Attorney General, Coleman J. McAllister, County Attorney, and Jared R.

Weber, Assistant County Attorney, for appellee.
                                     2

WIGGINS, Justice.

         The police received an anonymous tip reporting a drunk driver.

The officer stopped the vehicle and arrested the driver for operating a

motor vehicle while under the influence, second offense, in violation of

Iowa Code section 321J.2 (2009).      The driver contended the stop was

illegal under the United States and Iowa Constitutions and moved to

suppress the evidence obtained from the stop. The district court denied

the motion, and the court found the driver guilty of the charge.       The

driver appealed, and we transferred the case to the court of appeals. The
court of appeals affirmed the district court ruling on the motion to

suppress. We took the case on further review. On further review, we

find the stop was illegal under the Fourth Amendment of the United

States Constitution. Thus, we need not decide whether the stop violated

the Iowa Constitution. Accordingly, we suppress all evidence seized from

the illegal stop. Moreover, we vacate the decision of the court of appeals,

reverse the judgment of the district court, and remand for a new trial

consistent with this opinion.

         I. Facts.

         On our de novo review, we find the facts are as follows.       On

Wednesday, June 16, 2010, Leon Kooima, along with five other men, left

Rock Valley to attend a charity golf event in Okoboji. All six men rode

together in a silver Chevrolet Suburban registered to Van Zee Enterprises

of Rock Valley. After completing the course, Kooima and the rest of the

group attended a dinner and program in conjunction with the charity

event.

         Following the dinner, Kooima and the group left the golf course.

Kooima drove for the entirety of the return trip to Rock Valley. On the

way back, Kooima made several stops. They visited two group members’
                                       3

farms and one of their lake houses. Afterwards, a member of the group

suggested going to the Doon Steakhouse.          The group stopped there

around 10:30 p.m. Another patron at the steakhouse was Craig Post.

      After about an hour, Kooima and the rest of the group got into

their vehicle to leave the steakhouse. Post subsequently called 911 at

approximately 11:21 p.m. Post did not identify himself to the dispatcher.

A transcript of the call details the following exchange:

      Dispatcher: 911 where is your emergency?

      Caller: [H]i, not sure if this is a serious emergency, but I’m
      not sure what other number to dial.

      Dispatcher: [O]k, that’s fine.

      Caller: Um, please check cars in Doon area.

      Dispatcher: Cars in the Doon area?

      Caller: Yeah.

      Dispatcher: Ok.

      Caller: BC229, BC229 silver suburban.

      Dispatcher: Ok, what’s it doing?

      Caller: Um, carload of Rock Valley merchants, huge money
      guys.

      Dispatcher: Ok.

      Caller: And they are loaded, leaving Doon, and they are still
      sitting on curbside, ready to leave to Rock Valley.

      Dispatcher: Ok.

      Caller: What bothers me is these guys get away with
      everything, cuz they know everybody in Rock Valley and they
      think they can do everything.

      Dispatcher: You’re saying, you think they are drunk, you
      mean?

      Caller: I know they are.
                                    4
     Dispatcher: Ok.

     Caller: Everybody in the damn vehicle is.

     Dispatcher: Ok and where are they at right now?

     Caller: In Doon, on curbside, and

     Dispatcher: Like downtown or what?

     Caller: Yeah.

     Dispatcher: Ok.

     Caller: They are opening their doors to get the last
     passengers in and then they are leaving.

     Dispatcher: Ok.

     Caller: This includes people that own Van Zee Enterprises
     and they are on a golf outing and they think that they are
     home free.

     Dispatcher: Gotcha.

     Caller: And it bothers me a lot.

     Dispatcher: Ok, I can have somebody go check it out.

     Caller: 10-4, get on that right away.

     Dispatcher: Alright.

     Caller: And this thing is full of drunks.

     Dispatcher: Ok.

     Caller: Thank you.

     Dispatcher: You’re welcome, thank you.

     Caller: BC229.

     Dispatcher: Got it.

A review of the audio tape reveals Post spoke in a monotone voice

throughout the phone call.

     The dispatcher then broadcast the following radio transmission:
                                     5
      Attention Sioux County cars possible [intoxicated driver]
      special attention Rock Valley, possible [intoxicated driver]
      license number BC229, vehicle is just leaving Doon at the
      moment, [reporting party] stated all occupants are
      [intoxicated and in] . . . a silver 2009 Chevy Suburban
      registered to a Rock Valley address 2015 North Main, end of
      broadcast . . . .

      As Kooima drove over the hill into Rock Valley, he passed a parked

police car operated by Officer Kyle Munneke.           Approximately eight

minutes passed from the time of the dispatch to the time Munneke saw

the vehicle. Munneke followed Kooima all the way through town, staying

a block to a block-and-a-half behind. During Munneke’s observations of

the vehicle for approximately six blocks, the officer witnessed no traffic or

equipment violations that would have provided an independent basis for

the stop.

      As Kooima turned west onto Highway 18, Officer Travis Ryan

followed the vehicle for a block. Ryan did not observe the vehicle make

any traffic or equipment violations.     Based solely on the anonymous

phone tip, Ryan initiated a stop at approximately 11:38 p.m.            After

Munneke approached the vehicle and Kooima asked the officer what was

wrong, Munneke said the only reason for the traffic stop was the

anonymous tip, which indicated there was a “carload of drunks on the

way to Rock Valley.”

      Kooima cooperated with the officers. Ryan detected the smell of

alcohol on Kooima’s breath, so he conducted several field sobriety tests,

including the horizontal gaze nystagmus test, the walk-and-turn test,

and the one-legged-stand test.     Because Kooima failed these tests and

based upon the anonymous tip, Ryan arrested Kooima for operating

while intoxicated and transported him to the Rock Valley Police

Department. There, Kooima consented to a breath specimen. A breath
                                         6

test conducted at 1:15 a.m. revealed Kooima’s blood alcohol level was

.088.

        Other relevant facts are discussed below.

        II. Prior Proceedings.

        The State charged Kooima on July 1 with operating a motor vehicle

while under the influence, second offense, in violation of Iowa Code

section 321J.2.        On July 22, Kooima moved to suppress all evidence

obtained from the stop.          Kooima contended the stop violated his

constitutional rights guaranteed by the United States and Iowa
Constitutions because the police acted upon an anonymous tip.                 The

district court denied Kooima’s motion. Kooima then sought discretionary

review, which we denied.

        The case proceeded to a bench trial.          The district court found

Kooima guilty. Kooima appealed. We transferred the case to the court of

appeals. The court of appeals affirmed the district court. Kooima sought

further review, which we granted.

        III. Issues.

        The issue before the court is whether the investigatory stop of

Kooima     by   the     Rock   Valley   police   violated   his   rights   against

unreasonable searches and seizures under the Fourth Amendment of the

United States Constitution or article I, section 8 of the Iowa Constitution.

        IV. Standard of Review.

        Kooima argues the district court should have granted his motion to

suppress on state and federal constitutional grounds because the State

deprived him of his right against unlawful searches and seizures. State

v. Ochoa, 792 N.W.2d 260, 264 (Iowa 2010) (recognizing a motion to

suppress based on the deprivation of the defendant’s constitutional right
                                    7

against unlawful searches and seizures). We review constitutional issues

de novo. State v. Kreps, 650 N.W.2d 636, 640 (Iowa 2002).

      V. Analysis.

      Kooima claims the State violated his rights under both the Fourth

Amendment of the United States Constitution and article I, section 8 of

the Iowa Constitution.      We may construe the Iowa Constitution

differently than its federal counterpart, despite the provisions containing

nearly identical language and being structured generally with the same

scope, import, and purpose. See State v. Pals, 805 N.W.2d 767, 771–72,
781–83 (Iowa 2011) (noting our more stringent application of state

constitutional provisions than federal caselaw applying nearly identical

federal counterparts); Varnum v. Brien, 763 N.W.2d 862, 879 n.6 (Iowa

2009) (observing “we have jealously guarded our right to ‘employ a

different analytical framework’ under the state equal protection clause as

well as to independently apply federally formulated principles” (citations

omitted)).   Further, even where a party has not advanced a different

standard for interpreting a state constitutional provision, we may apply

the standard more stringently than federal caselaw. State v. Bruegger,

773 N.W.2d 862, 883 (Iowa 2009); Racing Ass’n of Cent. Iowa v.

Fitzgerald, 675 N.W.2d 1, 4–7 (Iowa 2004). Because we can decide this

case under the Federal Constitution, we need not conduct an analysis

utilizing the Iowa Constitution.   Ochoa, 792 N.W.2d at 267; cf. Racing

Ass’n of Cent. Iowa, 675 N.W.2d at 4 (deciding the case under the Iowa

Constitution after the United States Supreme Court overruled our

decision based on the United States Constitution).

      The Fourth Amendment prevents governmental officials from

arbitrarily intruding into citizens’ privacy and security. Camara v. Mun.

Ct., 387 U.S. 523, 528, 87 S. Ct. 1727, 1730, 18 L. Ed. 2d 930, 935
                                     8

(1967). Stopping an automobile and detaining its occupants constitutes

a seizure under the Fourth Amendment. Delaware v. Prouse, 440 U.S.

648, 653, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660, 667 (1979). A police

officer can stop and briefly detain a person for investigative purposes if

the officer has a reasonable suspicion supported by articulable facts that

criminal activity may be afoot. United States v. Sokolow, 490 U.S. 1, 7,

109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989).

      The Supreme Court has discussed when an anonymous tip

provides a sufficient indicia of reliability to give rise to reasonable
suspicion for an investigatory stop of a vehicle.        The first decision

typically referenced in this debate is Alabama v. White, 496 U.S. 325,

110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990). This case articulates the

reasonable suspicion standard for an investigatory stop.

             Reasonable suspicion is a less demanding standard
      than probable cause not only in the sense that reasonable
      suspicion can be established with information that is
      different in quantity or content than that required to
      establish probable cause, but also in the sense that
      reasonable suspicion can arise from information that is less
      reliable than that required to show probable cause.

White, 496 U.S. at 330, 110 S. Ct. at 2416, 110 L. Ed. 2d at 309. In
White, the Court recognized that whether an anonymous tip provides

reasonable suspicion for an investigatory stop depends on the quantity

and quality, or degree of reliability, of that information, viewed under the

totality of the circumstances. Id. “[I]f a tip has a relatively low degree of

reliability, more information will be required to establish the requisite

quantum of suspicion than would be required if the tip were more

reliable.” Id.

      In White, the anonymous tip stated:

      Vanessa White would be leaving 235–C Lynwood Terrace
      Apartments at a particular time in a brown Plymouth station
                                      9
      wagon with the right taillight lens broken, that she would be
      going to Dobey’s Motel, and that she would be in possession
      of about an ounce of cocaine inside a brown attaché case.

Id. at 327, 110 S. Ct. at 2414, 110 L. Ed. 2d at 306–07. Acting upon this

tip, the officers were able to identify the vehicle as it left the apartments,

as well as confirm its route and destination to a specific motel. Id. at

327, 110 S. Ct. at 2414, 110 L. Ed. 2d at 307. Although the officers did

not observe any criminal activity afoot, they stopped the vehicle. Id. The

police found drugs in the driver’s possession and charged her

accordingly. Id. at 327, 110 S. Ct. at 2415, 110 L. Ed. 2d at 307.
      The Supreme Court held the stop, based solely on the anonymous

tip, did not violate the Fourth Amendment.        Id. at 331, 110 S. Ct. at

2416, 110 L. Ed. 2d at 309. The tip contained more information than

just the bare assertion the driver possessed drugs. Id. at 331–32, 110

S. Ct. at 2416–17, 110 L. Ed. 2d at 309–10. The tip contained specific

information about the broken taillight, the place where the trip started,

the driver’s route, and the driver’s destination to a specific motel that

turned out to be accurate.      Id.   The Court reasoned the tip had the

requisite indicia of reliability to justify an investigatory stop because the

general public would have had no way of predicting the defendant’s

anticipated movements; therefore, it would have been nearly impossible

for anyone except a person who was intimately involved with the

defendant to accurately predict that the defendant would be in her car at

the particular time and place described. Id. at 332, 110 S. Ct. at 2417,

110 L. Ed. 2d at 310. In reaching its decision, the Court characterized

the matter as “a close case.” Id.

      In contrast to White, the second decision typically referenced in

this constitutional conversation is Florida v. J.L., 529 U.S. 266, 120

S. Ct. 1375, 146 L. Ed. 2d 254 (2000). J.L. involved an anonymous tip
                                      10

stating a young man, who was wearing a plaid shirt and waiting at a

particular bus stop, was carrying a concealed gun. Id. at 268, 120 S. Ct.

at 1377, 146 L. Ed. 2d at 258–59.          The tip was the only information

available to the police. Id. The officers did not see a weapon or have any

reason to believe the young man had a weapon on his person. Id. at 268,

120 S. Ct. at 1377, 146 L. Ed. 2d at 259.

      With nothing more than the tip, the officers stopped and frisked

the young man and found a gun in his possession.             Id.   The State

charged the young man with a weapons violation. Id. at 269, 120 S. Ct.
at 1377, 146 L. Ed. 2d at 259.        The Supreme Court held the search

violated the Fourth Amendment because it lacked the requisite indicia of

reliability to justify an investigatory stop. Id. at 271, 120 S. Ct. at 1379,

146 L. Ed. 2d at 260.      The Court acknowledged the tip was specific

enough to identify the alleged perpetrator. Id. at 272, 120 S. Ct. at 1379,

146 L. Ed. 2d at 261. However, nothing about the tip showed the tipster

had knowledge of concealed criminal activity. Id. For the tip to give rise

to reasonable suspicion, the Court held the tip must have some indicia of

reliability in its assertion of illegality and its tendency to identify a

determinate person. Id.

      After these decisions, lower courts have had to apply this law to

situations where police officers receive anonymous tips regarding drunk

drivers. The seminal federal circuit court case comes from the Eighth

Circuit. United States v. Wheat, 278 F.3d 722 (8th Cir. 2001). There, an

anonymous motorist called 911 to report a vehicle was passing others

“on the wrong side of the road, cutting off other cars, and otherwise

being driven as if by a ‘complete maniac.’ ”        Id. at 724.    The caller

provided a general description of the vehicle, its location, and the first

three letters of the license plate.    Id.   Upon observing the vehicle, a
                                         11

patrolling officer stopped it immediately, without noticing any erratic

driving. Id. at 724–25. The court concluded an officer is not required to

corroborate an anonymous tip reporting drunk driving when the tip’s

innocent details—the description and location of the vehicle—were

accurate, there was an urgency presented by the drunken or erratic

highway driver, and there was minimal intrusion involved in stopping the

vehicle. Id. at 731–34. The court emphasized the tip need not contain

predictive aspects when the illegal conduct is public, and the tipster is

oftentimes observing the illegal conduct contemporaneously with making
the report. Id. at 734.

      State courts have also dealt with this situation under the United

States Constitution. Our court did so in State v. Walshire, 634 N.W.2d

625 (Iowa 2001). In Walshire, police received an anonymous tip from a

motorist using a cell phone to report a driver was drunk. Id. at 626. The

tipster observed the driver operating his vehicle in the median. Id. Our

court upheld the stop, concluding that when a tipster relays details of

the crime personally observed, the anonymous tip contains the requisite

indicia of reliability. Id. at 628–29.

      Courts around the country tend to agree with the holdings in

Wheat and Walshire, finding a tip has the requisite indicia of reliability

under the Fourth Amendment when the anonymous tipster relates that

he or she has personally observed erratic driving open to public view.

See, e.g., People v. Wells, 136 P.3d 810, 815–16 (Cal. 2006) (finding the

likelihood of harassment or an insincere or unreliable report of drunk

driving is “significantly reduced” by the fact a phoned-in report involves

an anonymous tipster providing “a contemporaneous event of reckless

driving presumably viewed by the caller” and a predictive “analysis is

more appropriate in cases involving tips of concealed criminal behavior
                                      12

such as possession offenses”—not in the DUI context where the illegal

activity is visible); State v. Prendergast, 83 P.3d 714, 724 (Haw. 2004)

(emphasizing the tip must be “firmly rooted in time and place and based

on firsthand observations of criminal activity,” as well as the totality of

circumstances and specific, articulable facts); Bloomingdale v. State, 842

A.2d 1212, 1213 (Del. 2004) (upholding a stop when the officer did not

observe any erratic driving but pulled over a driver based on an

anonymous tipster who stated there was a possible drunken motorist

“driving all over the roadway” between two streets; described the make,
model, color, and license plate of the vehicle; and relayed the driver’s

race and travel route); State v. Crawford, 67 P.3d 115, 119 (Kan. 2003)

(holding an anonymous tip had the requisite indicia of reliability when

the caller described his or her observations as “reckless driving”); State v.

Rutzinski, 623 N.W.2d 516, 519, 527–28 (Wis. 2001) (holding an

anonymous tip had the requisite indicia of reliability to justify a stop

when the caller told the police of the alleged erratic driving, automobile

location, and vehicle description).

      Cases holding an anonymous tip had the sufficient indicia of

reliability to justify the stop contain three common elements. First, the

tipster gave an accurate description of the vehicle, including its location,

so the police could identify the vehicle. Next, the tipster based his or her

information     on     personal,      eyewitness     observations      made

contemporaneously with a crime in progress that was carried out in

public, identifiable, and observable by anyone. When a tipster relates

personal observations consistent with drunk driving to the dispatcher,

the caller’s basis of knowledge is apparent. Finally, the caller described

specific examples of traffic violations, indicating the report was more

than a mere hunch. This lends to a greater likelihood the tip will give
                                    13

rise to reasonable suspicion. These three elements allow our courts and

the police to determine whether an anonymous tip contains sufficient

detail to permit a reasonable inference the tipster had the necessary

personal knowledge that a person was driving while intoxicated.

      On the other hand, when the anonymous tip does not include

details pertaining to the tipster’s personal observation of erratic driving,

other facts that would lead to a reasonable inference the tipster

witnessed an intoxicated driver, or details not available to the general

public as to the defendant’s future actions, state supreme courts have
ruled the stop violated the Fourth Amendment.        See State v. Lee, 938

P.2d 637, 640 (Mont. 1997); State v. Miller, 510 N.W.2d 638, 645 (N.D.

1994); Harris v. Commonwealth, 668 S.E.2d 141, 147 (Va. 2008).

      In Harris, an anonymous informant called the police department to

report “there was a[n] intoxicated driver in the 3400 block of

Meadowbridge Road, [who] was named Joseph Harris, and he was driving

[a green] Altima, headed south, towards the city, possibly towards the

south side.” 668 S.E.2d at 144. The tipster did not detail any personal

observations about the manner in which the driver was operating the

vehicle. Id. However, the tipster provided a partial license plate number

for the vehicle and indicated the driver was wearing a striped shirt. Id.

The police report did not include the time period when the caller

observed the suspect driver. Id. The police officer observed the vehicle

driving within the posted speed limit and did not observe the car swerve,

but did see the car’s brake lights flash three times at various

intersections and red stoplights. Id. After proceeding through one of the

intersections, the driver navigated the car to the side of the road and

stopped. Id. The officer then initiated a stop. Id. The court found the

anonymous tip alone was insufficient to stop the driver, and the driver’s
                                         14

act of slowing at an intersection and stopping at the side of the road was

insufficient conduct “to corroborate the criminal activity alleged in the

anonymous tip.” Id. at 147.

        The State of Virginia requested the Supreme Court grant certiorari

to review the court’s decision in Virginia v. Harris, which the Court

denied. Virginia v. Harris, 558 U.S. 978, 130 S. Ct. 10, 175 L. Ed. 2d

322 (2009). Two justices dissented from the denial of certiorari, arguing

“[t]he imminence of the danger posed by drunk drivers exceeds that at

issue in other types of cases.” Id. at _____, 130 S. Ct. at 11, 175 L. Ed.
2d at 323. The justices appear to rely upon the following language in

J.L.:

        We do not say, for example, that a report of a person
        carrying a bomb need bear the indicia of reliability we
        demand for a report of a person carrying a firearm before the
        police can constitutionally conduct a frisk.

J.L., 529 U.S. at 273–74, 120 S. Ct. at 1380, 146 L. Ed. 2d at 262.

        As a court interpreting the Fourth Amendment, we cannot rely on

a dissent from a denial of a petition for writ of certiorari for guidance.

However, we do acknowledge that the Supreme Court left intact as good

law     the   Virginia   Supreme     Court’s   interpretation   of   the   Fourth

Amendment as it applied to an anonymous tip regarding drunk driving

that did not include a personal observation of erratic driving or other

facts to substantiate the driver was intoxicated.

        As J.L. teaches us, without a means for the police to test an

anonymous tipster’s personal knowledge or credibility, the tip is nothing

more than a hunch. J.L., 529 U.S. at 271, 120 S. Ct. at 1379, 146 L. Ed.

2d at 260–61.       Without such information, the tip has no indicia of

reliability in its assertion of illegality.
                                    15

      In Lee, the anonymous tip consisted of the statement “that a

purple Chevrolet Camaro with a tan convertible top, driven by David Lee,

was heading toward Glasgow on the Fort Peck highway.                    The

complainant believed Mr. Lee was under the influence of alcohol, and

speeding.” 938 P.2d at 638. When the officer observed the vehicle, the

driver did not exhibit any signs he was driving under the influence or

speeding. Id. at 638–40. The Montana Supreme Court held:

      [T]here was no objective data from which the officer could
      reach any conclusion justifying the investigative stop.
      Therefore, we conclude that under the totality of the
      circumstances, as applied to the facts in this case,
      information provided by the citizen informant alone, with no
      other objective data, does not support a particularized
      suspicion that Lee had been engaged in wrongdoing.

Id. at 640.

      In Miller, the court analyzed the tip as an anonymous one. 510

N.W.2d at 644. There, the tip “described the vehicle as a red pickup and

gave its license plate number and location as second in line in the drive-

up lane. The dispatcher also relayed the informant’s statement that the

driver ‘could barely hold his head up.’ ” Id. at 639.     When the officer

found the vehicle, he followed it. Id. The officer did not observe anything
unusual about the driver’s operation of the pickup.        Id.   The North

Dakota Supreme Court found the quantity of information given by the

tipster did not lead to a reasonable inference the tipster personally

witnessed an intoxicated driver. Id. at 644.

      Cases decided by us and other courts require a personal

observation of erratic driving, other facts to substantiate the allegation

the driver is intoxicated, or details not available to the general public as

to the defendant’s future actions in order to spawn a reasonable

inference the tipster had the necessary personal knowledge that a person
                                      16

was   driving   while   intoxicated   and   the    stop   comports   with   the

requirements of the Fourth Amendment. To hold otherwise would cause

legitimate concern because such tips would let the police stop persons on

anonymous tips that might have been called in for vindictive or

harassment purposes or based solely on a hunch or rumor. These types

of tips do not have the requisite indicia of reliability in their assertion of

illegality because the information relayed to the police does not lead to a

reasonable inference the tipster had the necessary personal knowledge

that a person was driving while intoxicated.
      The State cites State v. Christoffersen, 756 N.W.2d 230 (Iowa Ct.

App. 2008), as controlling precedent. It is easily distinguishable. There,

the suspect backed into the reporting police officer’s patrol car. Id. at

231. This constituted an obvious offense committed in the presence of a

police officer, which served as the basis for the stop and subsequent

arrest for operating while intoxicated.           Consequently, we overrule

Christoffersen to the extent it stands for the proposition that a bare

assertion by an anonymous tipster reporting drunk driving provides

reasonable suspicion to stop a vehicle.

      Accordingly, we hold a bare assertion by an anonymous tipster,

without relaying to the police a personal observation of erratic driving,

other facts to establish the driver is intoxicated, or details not available

to the general public as to the defendant’s future actions does not have

the requisite indicia of reliability to justify an investigatory stop. Such a

tip does not meet the requirements of the Fourth Amendment.

      Applying these principles to the tip concerning Kooima, the

undisputed facts are the tipster did not relay a contemporaneous

observation of erratic driving or any facts that would indicate the persons

getting in the vehicle exhibited any signs of intoxication.            We do
                                    17

acknowledge the tipster did tell the dispatcher the vehicle “was ready to

leave to Rock Valley.” However, this predictive behavior is of a type that

would be known to the general public in Sioux County.         It was not

information that would likely be known only by those intimately involved

with Kooima and his associates.

      We reach this conclusion for a number of reasons. The persons

getting in the vehicle did so in a public setting where anyone at the bar

could have observed their conduct. The tipster did not know for sure

where the vehicle was going. He first told the dispatcher to check the
Doon area. Later in the call, he said they were leaving for Rock Valley.

The occupants of the vehicle were well known in the area because they

were successful businessmen. Any person at the bar would be able to

surmise that at 11:20 p.m. on a Wednesday night, these four well-known

businessmen from Rock Valley would most likely be going home at that

time of night.     Thus, the tipster was not basing the information he

relayed to the dispatcher on intimate involvement with Kooima by

predicting the defendant would be in his car at the particular time and

place described.    The tipster used information available to the general

public in surmising where Kooima might be heading.

      Our holding is consistent with the differences in information

provided by the tipsters in White and in J.L. In White, the defendant was

leaving from a private motel room to do a drug transaction at a certain

place at a certain time. White, 496 U.S. at 327, 110 S. Ct. at 2414, 110

L. Ed. 2d at 306–07. Only someone with intimate knowledge of what the

defendant was doing would be able to predict that behavior. In other

words, it was more likely than not the tipster was with the defendant or

talked to her shortly before she left the motel. The general public would
                                      18

not know the details as to when the defendant would have left the motel

or where she was going.

      In J.L., the observations relayed to the police were such that

anyone in the general public could observe. The observations relayed to

the police were that the defendant was a young man, wearing a plaid

shirt at a particular bus stop. J.L., 529 U.S. at 268, 120 S. Ct. at 1377,

146 L. Ed. 2d at 258–59. Just as in this case, the facts relayed by the

tipster in J.L. could be observed by the general public and did not

indicate the tipster was someone with intimate knowledge of what the
defendant was doing in order to be able to predict future behavior.

      Therefore, we reverse the ruling of the district court on the motion

to suppress and find the stop of Kooima was illegal. In doing so, the

evidence seized from the illegal stop must also be suppressed under the

fruit of the poisonous tree doctrine. Wong Sun v. United States, 371 U.S.

471, 484–85, 83 S. Ct. 407, 415–16, 9 L. Ed. 2d 441, 453–54 (1963).

      Before concluding, we stress this court does not condone drunk

driving. However, our oath requires us to uphold the Constitution of the

United States as interpreted by the Supreme Court.           Additionally, we

commend the dispatcher who took the 911 call. The dispatcher asked

probing questions in an attempt to get more facts concerning the tipster’s

knowledge that the driver was intoxicated.          The only responses the

dispatcher received to her inquiries was that “I know they are” or “And

this thing is full of drunks.” We hope that in the future, a dispatcher will

be able to get more than conclusory statements from the anonymous

caller, so the tip has the requisite indicia of reliability in its assertion of

illegality to justify a stop under the Fourth Amendment.
                                     19

      VI. Summary and Disposition.

      We do not decide this case under the Iowa Constitution because we

resolve this issue based upon the Fourth Amendment of the United

States Constitution.     In doing so, we find the investigatory stop of

Kooima was illegal under the Fourth Amendment.                Accordingly, we

suppress all evidence seized from the unconstitutional stop. Moreover,

we vacate the decision of the court of appeals, reverse the judgment of

the district court, and remand for a new trial consistent with this

opinion.
      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT       JUDGMENT      REVERSED        AND   CASE     REMANDED            WITH

DIRECTIONS.

      All   justices   concur   except    Mansfield,   J.,   Cady,   C.J.,    and

Waterman, J., who dissent.
                                          20
                                                         #11–0738, State v. Kooima
MANSFIELD, Justice (dissenting).

       I respectfully dissent. I believe the tip provided a sufficient basis

for the stop of the vehicle under the standards we set forth in State v.

Walshire and have reiterated here.

       In Walshire, we upheld a stop based on an anonymous telephone

tip that the defendant was driving in the median. We stated:

             We believe the following factors distinguish this case
       from J.L.:

              (1) In this case the informant revealed the basis for his
       knowledge—he was observing a crime in progress, open to
       public view; (2) in the present case, a serious public hazard
       [drunk driving] allegedly existed that, in the view of the
       Supreme Court, might call for a relaxed threshold of
       reliability; and (3) the intrusion on privacy interests [with a
       traffic stop] is slight, less than in a pat-down situation.

634   N.W.2d      625,   630    (Iowa    2001).      I    find   the   present   case

constitutionally indistinguishable from Walshire.

       At 11:21 p.m. on June 16, 2010, the 911 call came in. The caller

told the dispatcher that a “carload of Rock Valley merchants,” including

people “that own Van Zee Enterprises,” were “loaded,” “sitting on

curbside,” and getting ready to leave Doon for Rock Valley.1 In response
to questioning from the dispatcher, the caller confirmed they were drunk.

He described them as “opening their doors to get the last passengers in

and then they are leaving.” They were in a silver Suburban license plate

BC229.     They had been on a golf outing and, according to the caller,

thought they were “home free.”           The caller was not asked to provide

further details or to give his name.


       1The majority says that the tipster “did not know for sure where the vehicle was
going.” I disagree. The transcript of the call is reproduced in full in the majority
opinion. The caller made it clear the individuals were “ready to leave to Rock Valley.”
                                      21

        A summary of this information was passed along to the Rock

Valley police. About ten minutes later, two Rock Valley police officers

saw the vehicle arrive in town from the direction of Doon. They verified

the license plate and description, and were told the vehicle was registered

to Van Zee Enterprises with a Rock Valley address. They saw multiple

people in the vehicle.    Although no traffic violations were observed, a

decision was made to stop the vehicle. I believe that was a correct, not

an unconstitutional, decision.

        Three points about the tip should be noted. First, although the
tipster did not say he had actually observed the group of intoxicated

individuals get into the car, this is a pretty obvious inference from the

call:

              Dispatcher: Ok and where are they at right now?

              Caller: In Doon, on curbside, and

              Dispatcher: Like downtown or what?

              Caller: Yeah.

              Dispatcher: Ok.

             Caller: They are opening their doors to get the last
        passengers in and then they are leaving.

A 911 dispatcher listening to this narrative would reasonably assume it

was based on personal observation. See Kaysville City v. Mulcahy, 943

P.2d 231, 237 (Utah Ct. App. 1997) (“That Olsen reported a ‘drunk

individual’ without explaining why he thought the person was drunk

does not by itself nullify reasonable suspicion.”), abrogated on other

grounds by State v. Sadler, 104 P.3d 1265, 1272 (Utah 2004).

        Given the further details provided elsewhere in the call and the late

hour (11:21 p.m.), it doesn’t require much in the way of inference to

conclude that the tipster had seen the group stop in downtown Doon for
                                      22

drinks after their golf outing and was now watching them in their

intoxicated state preparing to head home to Rock Valley. If he had not

seen them close up, how would he know they had been on a golf outing

that day?

      It is true that unlike the tipster in Walshire who claimed to have

seen erratic driving, the caller here described a group of drunk people

getting into a car to drive it home. But since the crime is actually drunk

driving, not erratic driving, I do not think that puts the Walshire stop on

firmer constitutional ground.      It is noteworthy that in both cases, the
officers who stopped the vehicle did not actually see anything wrong with

how the vehicle was being driven. And in Walshire, but not here, the

tipster refused to give a name. 634 N.W.2d at 626.

      Second, by the time of the stop in this case, the Rock Valley

officers had corroborated several predictive statements in the call. They

saw the silver Suburban arriving in Rock Valley with the identified

license plate from the direction of Doon, about ten minutes after the call.

(We can take judicial notice that Rock Valley is eight miles driving

distance from Doon.)     Several people were in the car.      The car was

registered to Van Zee Enterprises with a Rock Valley address.           The

officers initiated a stop after confirming these details.   See id. at 628

(stating that “ ‘[i]ndependent corroboration of the inculpatory details of a

defendant’s tip is not mandatory’ ” (quoting State v. Markus, 478 N.W.2d

405, 408 (Iowa Ct. App. 1991))).

      I think the present case is comparable to one decided by the South

Dakota Supreme Court. See State v. Scholl, 684 N.W.2d 83 (S.D. 2004).

There, an anonymous informant called police to report the defendant

“leaving Scarlet O’Hara’s bar stumbling pretty badly and having

problems getting into [his] Toyota Tacoma pickup.”       Id. at 84 (internal
                                     23

quotation marks omitted) (alterations in original).          The informant

provided a license plate number, vehicle description, and location.        Id.

An officer found the truck where the informant said it would be, followed

it for about eleven blocks, and “stopped the vehicle solely on the basis of

the informant information.” Id. The officer had confirmed the “innocent

details” such as license number and vehicle description, but did not

witness any moving violations, erratic driving, or anything else

suggesting the driver was impaired. Id. at 84, 86.

      The court concluded the stop was valid because (1) the informant
provided detailed information allowing the officer to confirm the identity

of the vehicle it stopped and (2) the informant’s tip included sufficient

details of possible criminal activity, namely, stumbling from a bar and

difficulty getting into an automobile. Id. at 88–89. The stop was valid

despite the informant’s lack of “specific examples of moving violations.”

Id. at 88. The court noted that “[i]t requires no leap of logic or common

sense to deduce that a person stumbling from a bar late in the evening

and exhibiting difficulty getting into his car may well be under the

influence of alcohol and incapable of safely operating his vehicle.” Id.

      In another, more recent unnamed-informant case, the South

Dakota Supreme Court again upheld a traffic stop of a vehicle even

though the officer did not witness any evidence of impaired driving.

State v. Satter, 766 N.W.2d 153, 158 (S.D. 2009). There, an unnamed

tipster approached an officer in person and pointed out a vehicle whose

occupants he said possessed open containers and were drinking beer.

Id. at 154. In upholding the stop, the court defended the officer’s choice

to pursue the driver immediately, rather than stay and ascertain the

tipster’s identity. “[T]he officer faced a dilemma of either: 1) obtaining the

tipster’s identifying information, then attempting to track down the van,
                                         24

driven by a potentially intoxicated driver, in city traffic; or 2) he could

follow the van immediately.” Id. at 157. The court also noted that the

tipster’s observation of the act of drinking and the possibility of further

consumption contained sufficient signs of intoxication to justify a traffic

stop. Id. at 158; see also Lamb v. State, 604 S.E.2d 207, 208 (Ga. Ct.

App. 2004) (upholding a traffic stop based on a tip from a bartender who

told authorities by phone “that a man who was too intoxicated to drive

was leaving the restaurant, and that he would not let her call him a

cab”); State v. Amelio, 962 A.2d 498, 502 (N.J. 2008) (upholding a stop
based on a tip containing a teenager’s bare assertion defendant was

“drunk” and observing that “ ‘drunk’ has a commonly understood

meaning and the signs of drunkenness are matters of common

knowledge and experience”); State v. Lamb, 720 A.2d 1101, 1102–06 (Vt.

1998) (holding that a traffic stop was “more than” justified where a 911

caller reported that the defendant was “very upset and intoxicated and

was leaving a residence” because of the “impossibility that such

information could have been supplied by anyone but a knowledgeable

insider”).

      This is not a case like Florida v. J.L., 529 U.S. 266, 120 S. Ct.

1375, 146 L. Ed. 2d 254 (2000). In that case, a tipster provided only a

description of an individual and his location and the allegation that the

individual had a gun. Id. at 268, 120 S. Ct. at 1377, 146 L. Ed. 2d at

258–59.      There was “no predictive information” and the tip involved

“concealed criminal activity.” Id. at 271–72, 120 S. Ct. at 1379, 146 L.

Ed. 2d at 260–61. Here, by contrast, the tip involved a description of

criminal     activity   taking   place   out   in   the   open—i.e.,   intoxicated

individuals at curbside in downtown Doon getting into a vehicle—and the
                                          25

tipster added predictive information, such as when the vehicle was

leaving and where it was going (Rock Valley).

       As we have already pointed out, this case is functionally similar to

the erratic driving cases, which the majority agrees were correctly

decided.      The only difference is that the criminal activity involved

intoxicated individuals getting into a car to drive away instead of erratic

driving.

       What J.L. emphasizes is that when the criminal activity is

concealed, the tip must provide more than just a description of the
alleged criminal and his location.                  There must be further detail

demonstrating the tipster’s basis for knowledge of the criminal activity.

But   when     the    criminal    activity     is   out   in   the   open,   firsthand

contemporaneous observations are sufficient. The reality is that here we

have publicly observable criminal activity, plus additional verifiable

details provided by the caller that would indicate the caller likely had

been observing the situation for some time (i.e., in the bar) before it

moved onto the public curbside—which in fact was the case.2

       By contrast, Harris v. Commonwealth, 668 S.E.2d 141 (Va. 2008),

cited by the majority, involved neither of these factors.               The tip was

merely of an “intoxicated driver” and his name, vehicle, location, and

direction.    Id. at 144.    Unlike here, the caller did not relay firsthand,

contemporaneous observations, such as the description of a group of


       2The   majority says, “Any person at the bar would be able to surmise that at
11:20 p.m. on a Wednesday night, these four well-known businessmen from Rock
Valley would most likely be going home at that time of night.” I think this proves the
point I am making, that the details indicate the caller had been observing these
individuals inside “at the bar” and now was seeing them get into the car drunk. It is
possible, of course, that these persons had not been consuming a significant quantity of
alcoholic beverages (despite being in a bar until 11:21 p.m.) and the tipster was lying
about their intoxicated condition. But the law only requires reasonable suspicion.
                                    26

“drunks” first “sitting on curbside” in downtown Doon and then “opening

their doors to get the last passengers in.” Further, the caller in Harris

provided no details that demonstrated intimate knowledge, whereas here

the caller advised the dispatcher where these people worked and lived,

where they planned to go after they got into the car, and what they had

been doing that day. Id.; see also Alabama v. White, 496 U.S. 325, 332,

110 S. Ct. 2412, 2417, 110 L. Ed. 2d 301, 310 (1990) (emphasizing that

the tipster had provided predictive information that demonstrated

intimate familiarity).
      Third, the tip came in the form of a 911 call. The risk that a 911

call would be used purely to harass someone rather than to report a

potential crime seems to me a decreasing one.            By statute and

administrative regulations, Iowa emergency call centers use “enhanced

911” which “[a]utomatically provides voice, displays the name, address or

location, and telephone number of an incoming 911 call and public

safety agency servicing the location.” Iowa Code § 34A.2(5)(b) (2009); see

also Iowa Admin. Code r. 605—10.7 (providing for implementation of

enhanced wireless 911 service). All of Iowa’s ninety-nine counties have

implemented enhanced wireless 911, according to the Iowa Homeland

Security and Emergency Management Division.          See Iowa Homeland

Security   &    Emergency    Management,     Enhanced     9–1–1   (E–911),

http://www.iowahomelandsecurity.org/programs/E_911.html               (last

visited Jun. 20, 2013). “[T]he State stands on firm constitutional ground

when it treats the anonymous 9–1–1 caller in the same fashion as it

would an identified citizen informant who alerts the police to an

emergent situation.” State v. Golotta, 837 A.2d 359, 367, 373 (N.J. 2003)

(upholding a DUI traffic stop based on a 911 call reporting erratic driving

and noting such calls are not truly anonymous).       I think the average
                                       27

citizen has developed an understanding from watching television that

911 calls are frequently traceable. In fact, the tipster was tracked down

here.

        Not only are 911 tipsters generally identifiable, they are criminally

liable if they knowingly make false tips. See Iowa Code § 718.6(2) (“A

person who telephones an emergency 911 communications center

knowing that the person is not reporting an emergency or otherwise

needing    emergency     information   or   assistance   commits   a   simple

misdemeanor.”); see also id. § 718.6(1) (providing that knowingly
reporting false information about a felony or serious or aggravated

misdemeanor is itself a serious misdemeanor). Calling 911 is no way to

make a false report and get away with it. In this sense, 911 callers have

the incentive to provide reliable information or else face criminal

consequences. See Golotta, 837 A.2d at 367 (noting that “it is hard to

conceive that a person would place himself or herself at risk of a criminal

charge by making” a phony 911 call (internal quotation marks omitted)).

        The majority says, “[W]e commend the dispatcher who took the

911 call.” I don’t follow what the majority means by this statement. The

entire thrust of the majority opinion is that the dispatcher did not do an

adequate job, and should have kept the caller on the line longer and

asked additional questions. I disagree with imposing this burden on 911

operators and would uphold the stop.

        For the foregoing reasons, I respectfully dissent.

        Cady, C.J., and Waterman, J., join this dissent.
