City of Wenatchee v. Stearns

1

CITY OF WENATCHEE, Appellant, v. FRANK E. STEARNS, Respondent.

No. 38981-2-III

Court of Appeals of Washington, Division 3

November 28, 2023

UNPUBLISHED OPINION

COONEY, J.

Following his arrest for, among other offenses, driving while under the influence of intoxicating liquor (DUI), Frank Stearns moved to suppress evidence obtained from the traffic stop, arguing that the citizen informant's tip was not sufficiently reliable nor was it corroborated by law enforcement. The district court denied the motion and, after a bench trial convicted Mr. Stearns of three crimes. On appeal, the superior court reversed, concluding the circumstances did not establish the informant's reliability and the informant's report was not corroborated. Pursuant to RAP 2.3(d)(1), we granted the City of Wenatchee's (City) motion for discretionary review. We affirm the superior court's order that reversed the district court's denial of Mr. Stearns's suppression motion.

FACTS

On July 12, 2019, at approximately 6:39 p.m., Officer Natalie BrinJones of the Wenatchee Police Department was dispatched to the parking lot of Cascade Motorsports.

An individual, who identified himself as David Gilliver, had called 911 to report that he saw a man staggering through the parking lot. Mr. Gilliver advised that the staggering man got into a black pickup truck and moved it within the parking lot. Mr. Gilliver believed the man was intoxicated. Mr Gilliver had described the staggering individual as a white male in his mid-thirties wearing sunglasses, a gray hat, a blue shirt, and jeans.

When Officer BrinJones arrived at the Cascade Motorsports parking lot, she encountered a man standing next to a black truck. The man pointed to another black truck in the parking lot and said something like, "That's him! He's wasted!" Clerk's Papers (CP) at 17; Rep. of Proc (RP) (Sept. 19, 2019) at 48. Officer BrinJones did not know Mr. Gilliver and failed to verify he was the individual she encountered in the parking lot. Officer BrinJones could only speculate that the individual pointing to the black truck must have been the person who called in the tip because "he was standing there on the phone." RP (Sept. 19 2019) at 68. Officer BrinJones believed this man was "shocked" and "wanted" her "to go take action." RP (Sept. 19, 2019) at 60.

Officer BrinJones could see the driver of the black truck through the rolled-down driver's side window. She observed that the driver-later identified as Frank Stearns- was a white male wearing a gray hat, sunglasses, and a blue shirt, which she noted matched the physical description provided by Mr. Gilliver. Officer BrinJones did not observe Mr. Stearns staggering.

Based on Mr. Gilliver's description of him "staggering," Officer BrinJones felt she needed to do her "due diligence to observe him and see if this man was impaired." RP (Sept. 19, 2019) at 67. Officer BrinJones believed that the informant's tip was insufficient to seize Mr. Stearns and that she needed to observe Mr. Stearns's driving to corroborate Mr. Gilliver's assumption that Mr. Stearns was impaired.

Officer BrinJones attempted to position her vehicle behind Mr. Stearns's truck but due to heavy traffic, when she pulled out of the parking lot onto Worthen Street, there were approximately four cars between her vehicle and the truck. Mr. Stearns's vehicle, as well as the four cars between Officer BrinJones and Mr. Stearns, each had to stop at a four-way stop at the intersection of Worthen Street and Orondo Avenue, a process that allowed Mr. Stearns to put more distance between himself and Officer BrinJones. As Officer BrinJones followed Mr. Stearns, she saw his truck "drift toward[ ] the centerline" but, due to her distance, she could not tell if the truck touched or crossed the centerline. RP (Sept. 19, 2019) at 53.

Around the same time, Officer BrinJones suspected the truck may have been traveling faster than the posted speed limit. She had been driving "near" the speed limit, yet she perceived the truck as pulling away from her. Officer BrinJones's patrol vehicle lacked a radar speed measurement device. The only means for Officer BrinJones to measure the speed of another vehicle was by pacing the other vehicle. Officer BrinJones did not pace Mr. Stearns's truck, so she could not validate her hunch that he was exceeding the posted speed limit.

In the hopes of obtaining a better vantage point, Officer BrinJones activated her emergency lights so she could pass the cars in front of her. She traveled at approximately 60 m.p.h. for about 20 seconds and caught up with the truck. As Officer BrinJones closed in on the truck, she deactivated her emergency lights and noted Mr. Stearns was traveling below the speed limit.

The truck then entered a roundabout at Fifth Street and Riverside Drive. As the truck exited the roundabout, Officer BrinJones believed the truck was going to strike a curb or cross the centerline. Her concerns were alleviated when, "at the very last second," the truck continued straight in what Officer BrinJones considered a jerky maneuver. RP (Sept. 19, 2019) at 56, 58, 65, 66; Ex. A at 0:37 sec. to 0:49 sec. Officer BrinJones did not witness any part of the truck touch or cross the centerline, nor did the vehicle strike the curb. Officer BrinJones later agreed that she did not consider Mr. Stearns's movements within his lane a sufficient basis to conduct a traffic stop.

Eventually, it appeared to Officer BrinJones that Mr. Stearns was preparing to pull over. As Mr. Stearns applied his brakes, Officer BrinJones noticed one of the brake lights was inoperable. Officer BrinJones then activated her emergency lights with the intent to initiate a traffic stop. Mr. Stearns responded by stopping his vehicle. Additional law enforcement officers arrived on scene to assist Officer BrinJones.

As a result of that traffic stop and seizure, law enforcement gathered more information that incriminated Mr. Stearns. First, a few moments after initially being stopped, Mr. Stearns attempted to evade Officer BrinJones by driving away, at which point he struck a curb. Mr. Stearns pulled over a second time and, during his interactions with the officers, exhibited signs of intoxication (i.e. slurred speech; watery, bloodshot, and droopy eyes; overwhelming odor of intoxicants; swaying while standing). Mr. Stearns subsequently provided a breath sample that revealed his breath alcohol concentration was greater than three times the legal limit. Law enforcement officers also suspected Mr. Stearns had a suspended driver's license and did not have a previously required ignition interlock device installed in his truck. Mr. Stearns was then taken into custody.

PROCEDURE

The City charged Mr. Stearns with DUI, failure to obey a police officer, operating a vehicle without an ignition interlock device, and third degree driving with a suspended license. Mr. Stearns moved to suppress all the evidence obtained as a result of the traffic stop, arguing that he was unlawfully seized because Mr. Gilliver's tip was not sufficiently reliable nor did Officer BrinJones corroborate the tip before initiating the traffic stop. Officer BrinJones testified at the suppression hearing as summarized above.

The district court denied Mr. Stearns's motion and the matter proceeded to a stipulated facts trial. At the conclusion of the trial, Mr. Stearns was convicted of DUI, failure to obey a police officer, and operating a vehicle without an ignition interlock device,^[1] and was sentenced.

Mr. Stearns appealed to the superior court, arguing that "the trial court erred by denying [his] motion to suppress the traffic stop." CP at 1. The superior court reversed the district court's denial of Mr. Stearns's motion, concluding that the circumstances did not establish the informant's reliability and that law enforcement had failed to corroborate the informant's tip.

The City moved in this court for discretionary review. Pursuant to RAP 2.3(d)(1), we granted review as to the superior court's determination that the informant was not reliable and there was no corroboration.^[2] We affirm the superior court's order that reversed the district court's denial of Mr. Stearns's suppression motion and remand to district court for further proceedings.

ANALYSIS

The City contends Mr. Gilliver's tip bore sufficient indicia of reliability because Mr. Gilliver called 911, provided his name, and reported an eyewitness account of what was occurring. Alternatively, the City asserts that Officer BrinJones sufficiently corroborated Mr. Gilliver's report as she independently witnessed Mr. Stearns's aberrant driving. The City further posits that Officer BrinJones should be granted latitude due to the significant danger posed by impaired drivers. We disagree with the City's assertions.

An aggrieved party may seek discretionary review of an appeal from a court of limited jurisdiction. RAP 2.3(d); RALJ 9.1(h). In reviewing the district court's denial of Mr Stearns's suppression motion, the superior court was sitting in its appellate capacity. State v. Basson, 105 Wn.2d 314, 317, 714 P.2d 1188 (1986). This court reviews de novo the superior court's conclusions of law relating to the suppression of evidence. State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002); State v. Moore, 178 Wn.App. 489, 497, 314 P.3d 1137 (2013).

Our state constitution provides that "[n]o person shall be disturbed in [their] private affairs, or [their] home invaded, without authority of law." Wash. Const. art. I § 7. While application of this provision is generally consistent with that of the Fourth Amendment to the United States Constitution, the state provision "provides for broader privacy protections than" its federal counterpart, and "generally...