Final editing by Lou: August 1, 2000

APPELLATE COURT OF THE HOPI TRIBE

HOPI JURISDICTION

KEAMS CANYON, ARIZONA

Before Before SEKAQUAPTEWA, Chief Judge, and LOMAYESVA and ABBEY, Judges.

Factual and Procedural Background

The Hopi Tribe appeals dismissal of a wrongful possession of alcohol charge against defendant, Beauford Dawahoya. On June 21, 1991, the Hopi Police Department dispatcher received an anonymous telephone tip that defendant was transporting an unknown quantity of alcohol in his red Ford pickup truck and was traveling northbound from Winslow on Highway 87. The arresting officer, Howard Sakiestewa, stopped defendant's vehicle on Highway 87, advised him of the report received, and asked him if he was transporting alcoholic beverages.

The defendant answered, "The beer might belong to my son." The officer asked if he could search the vehicle. Defendant replied, "Sure, go ahead and look."

The officer found a total of 33 unopened cans of Budweiser beer behind the driver's seat.

The Hopi Tribe charged defendant with wrongful possession of alcoholic beverages. Defendant filed a motion to dismiss the 1 charge with prejudice because the officer did not have a reasonable suspicion to stop the vehicle.

After a hearing on September 2, 1992, the Tribal Court granted defendant's motion to dismiss.

On September 3, 1992, the Hopi Tribe filed an appeal with this Court. The Hopi Tribe argues that the trial court erred in dismissing the case with prejudice because: (1) Officer Sakiestewa was entitled to stop and search Dawahoya's truck based on reasonable suspicion; and (2) the automobile exception to the warrant requirement excused officer Sakiestewa from obtaining a search warrant.

Discussion

This Court reviews the grant of a motion to dismiss for clear abuse of discretion. United States v. Strayer, 846 F.2d 1262, 1265 (10th Cir. 1988). State v. Sandoval, 175 Ariz. 343, 348, 857 P.2d 395, 399 (1993). State v. Doolittle, 155 Ariz. 352, 356, 746 P.2d 924, 928 (1987).

For reasons we will explain, we hold that the trial court did not abuse its discretion when it granted defendant's motion to dismiss the case after determining that Officer Sakiestewa did not have a reasonable suspicion to stop defendant's vehicle. Because Officer Sakiestewa did not have a reasonable suspicion to stop appellant's vehicle, we do not reach the Tribe's argument that the automobile exception to the warrant requirement excused the search in this case.

The applicable standard for determining whether a police officer's investigatory stop of a vehicle is justified is 2 "reasonable suspicion." Hopi Tribe v. Sockyma, No. 0669/87. In Berkemer v. McCarty,468 U.S. 420, 439 (1984), the Court held that the usual traffic stop is analogous to a so-called "Terry stop." An officer has reasonable suspicion if he can "point to specific and articulable facts" sufficient to give rise to a reasonable suspicion that an individual has committed or is committing a crime. Terry v. Ohio, 392 U.S. 1, 21 (1968).

In the present case, the anonymous telephone tip did not exhibit sufficient indicia of reliability to provide reasonable suspicion for the investigatory stop. An anonymous tip exhibits sufficient indicia of reliability when it contains "a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted." White, 496 U.S. 325, 332 (1990) (quoting Illinois v. Gates, 462 U.S. 213, 245 (1983)).

The Supreme Court has held that an anonymous telephone tip, if corroborated independently by police, could exhibit sufficient indicia of reliability to provide reasonable suspicion for an investigatory stop. White, 496 U.S. at 330, 331. However, "if 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. at 329. Whether the informant's tip is reliable enough to give rise to the required reasonable suspicion is to be determined by the totality of the circumstances. Id. at 330.

In White, the Court held that the anonymous tip contained sufficient indicia of reliability. There, the anonymous informant 3 alleged that defendant would be in possession of cocaine, and described defendant's car, its location, when defendant would enter the car, and what route the defendant would take to her ultimate destination. Id. at 331, 332. "Because only a small number of people are generally privy to an individual's itinerary, the court reasoned, "it is reasonable for police to believe that a person with access to such information is also likely to have access to reliable information about that individual's illegal activities." Id. at 332 Because significant aspects of the caller's predictions were verified, the police had a reasonable suspicion to believe the caller was well informed and thus to suspect that defendant was engaging in illegal activity. Id.

In the present case, the tipster stated only information that anyone could have known at the time of the call. In contrast to the information in White, this information does not lead to the inference that the informant had reliable access to inside information about defendant's illegal activities. The fact that defendant was driving northbound on Highway 87 in a red Ford pickup truck was easily obtainable by any roadside observer and did not require "inside information."

The amount of information provided in this anonymous tip was even less than that provided in Arizona v. Bullington, 165 Ariz. 11, 795 P.2d 1294 (Ct. App. 1990), where the court found that an anonymous tip did not justify an investigatory stop of defendant's van. In Bullington, an anonymous informant called the police and told them that four people in town from Ohio were attempting to 4 purchase $24,000 to $26,000 of marijuana. Id. The informant named the four people, their hotel room, the color and license plate number of their van. Id. The police were not able to independently verify this information. The court held that they lacked reasonable suspicion to stop the van even though they observed the van driving erratically. Id. at 1296.

In this case, the anonymous informant only described respondent's vehicle, the direction the vehicle was traveling in, and its location at a specific time.

Anyone could have obtained this information. The anonymous informant did not provide any information about defendant's itinerary that was not readily available to anyone who happened to observe the truck driving northbound on Highway 87. Therefore, this information was not enough to give the police the reasonable suspicion necessary for them to stop the vehicle.

The decision of the trial court is AFFIRMED.

Emory Sekaquaptewa Date

Fred Lomayesva Date

Jay Abbey Date