                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0467
                               Filed June 5, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

PHILLIP ORLANDO NAYLOR,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Woodbury County, Timothy T.

Jarman, District Associate Judge.



      A defendant appeals his conviction for second-offense operating while

intoxicated. AFFIRMED.



      Nick E. Wingert of Hall & Wingert, P.L.C., Sioux City, for appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney

General, for appellee.



      Considered by Potterfield, P.J., and Tabor and Bower, JJ.
                                                2


TABOR, Judge.

           We are faced with the question whether an anonymous caller reporting a

“drunk driver” offered sufficient reliable information to give police reasonable

suspicion for an investigatory stop.           Phillip Naylor appeals his conviction for

operating while intoxicated, second offense, alleging the district court should have

granted his motion to suppress evidence discovered after police pulled him over

based on two 911 calls from the same unnamed source. Applying the tests in

State v. Kooima, 833 N.W.2d 202, 208 (Iowa 2013), and Navarette v. California,

572 U.S. 393, 402–03 (2014), we find the details offered by the caller showed

enough indicia of the driver’s intoxication to warrant stopping his truck to

investigate. Accordingly, we affirm the suppression ruling and resulting conviction.

I.         Facts and Prior Proceedings

                   I want to report a drunk driver and I can tell you his name and
           address and he just took off again drunk; he couldn’t walk; he was
           fighting with a guy in the road, screaming and yelling and then took
           off in his car and he’ll be back in a little bit.

           So started the 911 call placed to the Sioux City police dispatcher around

midnight.1 The anonymous caller described the driver’s car and his direction of

travel, but did not have a license plate number. When the dispatcher asked for the

driver’s name, the caller said: “It’s Phil something . . . he lives on West Street the

cops know, they’ve been there enough.”

           The dispatcher assured the caller she would “broadcast it out” for the

officers to start watching for the driver. The caller responded:

           [I]f they could sit up at the corner of this on West Third, on the 1700 block;
           if they sat there and wait, he’ll be pulling up anytime and he’ll be getting

1
     The district court heard the 911 calls at the suppression hearing.
                                            3


       out of the car and they’ll be able to see him drive up and try to back in his
       spot and try to; I mean he couldn’t even walk across the street when he
       was yelling at people, he ended up grabbing onto the street sign. . . . My
       kids play out here and he’s drunk every day driving like this, but this is
       enough . . . but this is anonymous . . . so.

       Eleven minutes later, the same anonymous caller redialed 911 to tell the

dispatcher that the driver had switched vehicles and was now in a maroon and

silver Chrysler pickup. The caller noted: “I can’t get the plate because of where he

is parked . . . he left his driveway. . . . straight down West Third towards Hamilton.”

       Hearing the dispatch, Sioux City Police Officer Mackenzie Neely spotted

Naylor at West Third and Allan streets “right by . . . Uncle Dave’s bar.[2] He was

driving a silver and red Chevy pickup and somebody called him in saying that he

could possibly be intoxicated. That is why I pulled him over.” The State charged

Naylor with operating while intoxicated, second offense, an aggravated

misdemeanor, in violation of Iowa Code section 321J.2 (2017).

       Naylor moved to suppress the evidence of intoxicated driving revealed

during the traffic stop. The motion asserted: “The anonymous tip did not provide

sufficient indicia of reliability to give rise to reasonable suspicion for an

investigatory stop of the defendant’s vehicle.” Naylor cited Kooima, 833 N.W.2d

at 210–11, for the proposition a valid tip must relate personal observations

consistent with drunk driving. The district court denied the motion to suppress,

finding “the information provided by the informant in this case is much more

significant and detailed than the information provided by the informant” in Kooima.




2
  On cross examination at the suppression hearing, defense counsel asked the officer to
clarify that Uncle Dave’s Bar was actually located at the intersection of George Street and
West Third, three blocks from where the officer first noticed Naylor.
                                            4


       After losing his motion to suppress, Naylor waived his right to a jury trial; the

court found him guilty on stipulated facts. He now appeals his conviction and

attacks the suppression ruling.

II.    Standard of Review

       In arguing for suppression, Naylor invokes his right to be free from unlawful

searches and seizures enshrined in both the state and federal constitutions. See

Kooima, 833 N.W.2d at 205. We review such constitutional claims de novo. State

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

III.   Analysis

       Naylor contends the Sioux City officer’s investigatory stop was unlawful

under both the Fourth Amendment of the United States Constitution and article I,

section 8 of the Iowa Constitution.3 But he does not lobby for a different analysis

or result under state constitutional principles. Instead, he focuses on Kooima and

Navarette—both Fourth Amendment cases. Accordingly, we analyze Naylor’s

claim under substantive federal standards (while reserving the right to apply those

standards in a “fashion different from federal precedent”). See State v. McIver,

858 N.W.2d 699, 702 (Iowa 2015) (citing State v. Tyler, 830 N.W.2d 288, 291–92

(Iowa 2013)).

       The core question is whether Officer Neely had reasonable suspicion to

stop Naylor’s truck based solely on the caller’s information. Reasonable suspicion




3
  The Fourth Amendment provides, “The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated.” U.S. Const. amend. IV. The Iowa Constitution protects “[t]he right of the people
to be secure in their persons, houses, papers and effects, against unreasonable seizures
and searches shall not be violated.” Iowa Const. art. I, § 8.
                                             5


to justify a traffic stop depends on both the content of the information relayed to

police and its degree of reliability. Navarette, 572 U.S. at 397 (applying a “totality

of the circumstances” standard).

       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.

Alabama v. White, 496 U.S. 325, 330 (1990).

       To decide if Officer Neely had reasonable suspicion, we look first to the

analysis in Kooima—a precursor to Navarette.4 In Kooima, a 911 caller—who did

not identify himself—alerted dispatch to a silver Suburban “ready to leave to Rock

Valley” from a steakhouse in Doon; the caller said the vehicle’s occupants were

“loaded.” 833 N.W.2d at 204. When the dispatcher asked if he meant they were

drunk, the caller replied: “I know they are.” Id. The caller said the vehicle was “full

of drunks.” Id. Police stopped the Suburban based solely on the anonymous

phone tip. Id. at 205. After surveying Fourth Amendment law on anonymous tips,

our supreme court reversed Kooima’s conviction, explaining:

       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.

Id. at 206–11.




4
  “The three factors laid out in Kooima are very similar to the factors eventually applied by
the Supreme Court in Navarette.” Erika L. Lukenbill, Note, Navarette v. California: The
Supreme Court Walks a Wobbly Line in the Face of Drunk Driving Anonymous Tips, 10
Liberty U. L. Rev. 107, 124 n.123 (2015).
                                              6

       Kooima’s majority opinion distilled three common elements in cases holding

an anonymous tip carried “sufficient indicia of reliability” to justify an investigatory

the stop.5 Id. at 208. The first element was “an accurate description of the vehicle,

including its location, so the police could identify the vehicle.” Id. at 209. The

second      element       was      “personal,      eyewitness       observations       made

contemporaneously with a crime in progress that was carried out in public,

identifiable, and observable by anyone.” Id. at 208–09. And the third element was

a description of “specific examples of traffic violations, indicating the report was

more than a mere hunch.” Id. Using those elements as points of comparison, the

majority found the 911 call about Kooima’s vehicle to be wanting because “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.” Id. at 211. The majority mused: “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.” Id. at 212.

       That future is now.        Here, the dispatcher was able to get more than

conclusory statements from the anonymous caller. The caller first gave a detailed

description of Naylor’s car and its location, then called back with an equally

detailed description of the truck Naylor was driving. 6 The caller also relayed



5
  A three-member dissent believed the tip provided a sufficient basis for the vehicle stop
under existing Iowa precedent. Id. at 212 (Mansfield, J., dissenting) (citing State v.
Walshire, 634 N.W.2d 625, 630 (Iowa 2001)).
6
  The second call was placed two minutes before midnight. At ten minutes after midnight,
Officer Neely stopped the truck at West Third and West Streets, the corner where the
caller said Naylor lived and would return. While not an amazing feat for the caller to predict
                                           7


“personal, eyewitness observations” of Naylor’s behavior as he walked to his car.

See State v. Walshire, 634 N.W.2d 625, 630 (Iowa 2001) (upholding stop based

on anonymous tip when “informant revealed the basis for his knowledge”). The

caller described Naylor as so drunk he “couldn’t even walk.” The caller saw Naylor

“fighting with a guy in the road” and “screaming and yelling” at people. Finally,

sharing a very telling detail, the caller said Naylor was so inebriated he “ended up

grabbing onto the street sign.” These observations supported the caller’s opinion

Naylor was in no condition to drive. Cf. State v. Truesdell, 679 N.W.2d 611, 616

(Iowa 2004) (explaining “a person is ‘under the influence’ when the consumption

of alcohol affects the person’s reasoning or mental ability, impairs a person’s

judgment, visibly excites a person’s emotions, or causes a person to lose control

of bodily actions”). In our de novo review, we reach the same conclusion as the

district court: the depth of the caller’s information distinguishes this case from

Kooima.

       We recognize the caller did not observe any erratic driving by Naylor. But

Kooima did not require such an observation—rather, the court entertained the

possibility a tipster could provide “other facts to establish the driver is intoxicated.”

833 N.W.2d at 211. Other courts “have come to different conclusions as to the

sufficiency of the cause for a vehicle stop based solely upon an informant’s

observations of the non-driving behavior of a suspect.” State v. Scholl, 684 N.W.2d

83, 88 (S.D. 2004) (collecting cases). In Scholl, the South Dakota Supreme Court

upheld a stop when the informant reported the driver was “stumbling pretty badly”



Naylor would promptly return home, the accuracy of the prediction adds to the overall
indicia of reliability.
                                            8

as he left a bar and was having problems getting into his pickup. Id. at 89; see

also United States v. Chavez, 660 F.3d 1215, 1222 (10th Cir. 2011) (finding

reasonable suspicion where Walmart employee called to report potentially

intoxicated person causing disturbance in employer’s parking lot and provided

dispatcher information to locate car the individual was driving); State v. Zietlow,

396 P.3d 740, 743 (Mont. 2017) (finding reasonable suspicion where caller

reported her coworker’s concern Zietlow was intoxicated, stumbling around, and

smelled like alcohol and caller personally saw Zietlow “bugging other customers”

and provided a detailed description of his vehicle and plates); State v. Roberts,

977 P.2d 974, 980 (Mont. 1999) (upholding stop based upon informant’s report

man who had been fighting got into driver’s seat of a pickup and was so drunk he

could “barely walk”); but see State v. Miller, 510 N.W.2d 638, 644–45 (N.D. 1994)

(invalidating stop based upon informant’s report of a possible drunk driver who

could “barely hold his head up” in fast-food drive-up lane); Stewart v. State, 22

S.W.3d 646, 648, 650 (Tex. Ct. App. 2000) (invalidated stop based upon

informant’s report of convenience store customer who fell down twice while getting

into his vehicle). We conclude the caller’s report of Naylor’s non-driving behavior

carried sufficient indicia of reliability to provide the officer with reasonable suspicion

for the traffic stop.

       Our conclusion is also bolstered by the reasoning in Navarette. See 572

U.S. at 399. The Navarette majority viewed the caller’s use of the 911 emergency

system as an “indicator of veracity.” Id. at 400 (noting features of 911 system

“allow for identifying and tracing callers, and thus provide some safeguards against

making false reports with immunity”). To counter that view, Naylor points out the
                                         9


caller in his case expressly said “this is anonymous”—tarnishing his credibility. But

the caller made that statement after revealing to the dispatcher that he was

bothered by Naylor’s drunk driving because the caller’s “kids play out here.” From

that revelation, we can discern the anonymous caller was likely a neighbor rather

than a confidential informant. “Where a citizen informant is involved, a common

sense analysis of the totality of the circumstances must be applied to assess the

reliability of the information.” State v. Markus, 478 N.W.2d 405, 408 (Iowa Ct. App.

1991). We measure the reliability of citizen informants by the nature of the

circumstances under which they discovered the incriminating information.          Id.

Here, the caller saw Naylor create a disturbance in the street before driving away

and the caller expressed concern for neighborhood safety. Those circumstances

make it unlikely he harbored a “bad motive” for making the two 911 calls. See id.

       Given the totality of the circumstances, we conclude the pair of 911 calls by

the citizen informant offered sufficient details of Naylor’s drunken behavior to

supply Officer Neely with reasonable suspicion to stop Naylor’s truck to investigate

the allegation of operating while intoxicated. Because the district court properly

overruled the motion to suppress, we find no cause to overturn Naylor’s conviction.

       AFFIRMED.
