Paul FRETTE v. CITY OF SPRINGDALE
CR 97-712 ___ S.W.2d ___
Supreme Court of Arkansas
Opinion delivered January 15, 1998
1. Criminal procedure -- conditional plea of guilty -- general rule and
exception on appeal. -- As a general rule, one is not allowed to
appeal from a conviction resulting from a guilty plea, aside
from jurisdictional defects; however, Ark. R. Crim. P. 24.3(b)
presents an exception to the rule, but only for the purpose of
determining on appeal whether an appellant should be allowed
to withdraw her plea if it is concluded that evidence should
have been, but was not, suppressed.
2. Criminal procedure -- conditional plea of guilty -- supreme court declined
to consider merits of appellant's challenge to sufficiency of evidence and
factual basis of plea. -- The supreme court has strictly construed
the permissible scope of an appeal under Ark. R. Crim. P.
24.3(b); the supreme court therefore declined to reach the
merits of appellant's challenge to the sufficiency of the
evidence and the factual basis for his plea.
3. Motions -- denial of motion to suppress -- factors on review. -- In
reviewing the denial of a motion to suppress, the supreme
court makes an independent examination based on the totality
of the circumstances; the evidence is viewed in the light most
favorable to the State as appellee, and the supreme court will
reverse only if the trial court's ruling was clearly against
the preponderance of the evidence.
4. Criminal procedure -- police-citizen encounters -- three categories. --
Police-citizen encounters have been divided into three
categories: the first and least intrusive encounter, when an
officer merely approaches an individual on a street and asks
if he is willing to answer some questions, occurs in a public
place and is consensual and thus does not constitute a
"seizure" within the meaning of the Fourth Amendment; the
second, initially consensual police encounter, which occurs
when the officer may justifiably restrain an individual for a
short period of time if he or she has an articulable suspicion
that the person has committed or is about to commit a crime,
is transformed into a seizure when, considering all the
circumstances, a reasonable person would believe that he is
not free to leave; the final category is the full-scale
arrest, which must be based on probable cause.
5. Criminal procedure -- police-citizen encounters -- officer's actions in
ordering appellant out of truck constituted "seizure." -- The police
officer's actions in ordering appellant out of his parked
truck to investigate a DWI tip fell into the second category
of police-citizen encounters, a "seizure" under the Fourth
Amendment requiring the police officer to be able to point to
specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant the
intrusion; the supreme court has held that an officer with
reasonable suspicion under Ark. R. Crim. P. 3.1 to suspect
that the occupant of a parked vehicle was about to commit a
DWI could ask the occupant to exit his car.
6. Criminal procedure -- investigatory stop -- justification for. -- The
justification for an investigative stop depends upon whether,
under the totality of the circumstances, the police have
specific, particularized and articulable reasons indicating
the person or vehicle may be involved in criminal activity.
7. Criminal procedure -- informant was not anonymous. -- Where the
informant in this case provided the police with his name,
address, and occupation, it was clear that he was more than an
anonymous informant; courts quite frequently find that
information is presumed reliable when it comes from an
8. Criminal procedure -- different considerations present where citizen or
witness provides information. -- The supreme court rejected the
argument that the information provided by an informant is per
se unreliable simply because the information was provided over
the telephone and the police had no prior dealings with the
informant; different considerations are present where
information has been provided by a citizen or a witness to a
crime, as opposed to informants who are typically unnamed
police contacts and who are usually themselves criminals.
9. Criminal procedure -- citizen-informant's report -- indicia of reliability
-- three factors. -- When reasonable suspicion is based solely on
a citizen-informant's report, the report must contain some
indicia of reliability; three factors in determining indicia
of reliability are: (1) whether the informant was exposed to
possible criminal or civil prosecution if the report is false;
(2) whether the report is based on the personal observations
of the informant; and (3) whether the officer's personal
observations corroborated the informant's observations.
10. Criminal procedure -- citizen-informant's report -- indicia of reliability
-- satisfaction of. -- Regarding the indicia of reliability for
a citizen-informant's report, the first factor is satisfied
whenever a person gives his or her name to authorities or if
the person gives the information to the authorities in person;
with regard to the second factor, an officer may infer that
the information is based on the informant's personal
observation if the information contains sufficient detail that
it is apparent that the informant had not been fabricating the
report out of whole cloth and that the report is of the sort
that in common experience may be recognized as having been
obtained in a reliable way; the third and final element may be
satisfied if the officer observes the illegal activity or
finds the person, the vehicle, and the location as
substantially described by the informant.
11. Criminal procedure -- State's interest in eliminating drunk driving --
balance tipped in favor of public safety. -- The supreme court has
previously recognized the magnitude of the State's interest in
eliminating drunk driving in comparison to relatively minimal
intrusions on motorists; the totality of circumstances tips
the balance in favor of public safety and lessens the
requirements of reliability and corroboration.
12. Criminal procedure -- citizen-informant's report -- tip carried sufficient
indicia of reliability to justify stop under Ark. R. Crim. P. 3.1. --
trial court did not err in denying motion to suppress. -- Where a
citizen-informant identified himself by name, address, and
occupation, exposing himself to potential prosecution for
making a false report, the tip ranked high on the reliability
scale, more than an anonymous caller or a confidential
informant from the criminal milieu; where it was undisputed
that the citizen-informant personally observed the alleged
criminal activity, providing a basis of knowledge for the tip;
and where the police officer's own observations substantially
corroborated the citizen-informant's report, the supreme court
concluded that under the totality of the circumstances, the
citizen-informant's tip carried with it sufficient indicia of
reliability to justify an investigatory stop under Ark. R.
Crim. P. Rule 3.1; the trial court did not clearly err in
denying appellant's motion to suppress.
Appeal from Washington Circuit Court; William Storey, Judge;
affirmed; Court of Appeals reversed.
Kenneth Osborne, for appellant.
Winston Bryant, Att'y Gen., by: J. Brent Standridge, Asst.
Att'y Gen., for appellee.
Annabelle Clinton Imber, Justice.
The primary issue in this case is whether a police officer
acted lawfully in ordering appellant, Paul Frette, the occupant
of a parked tractor-trailer, out of his vehicle. The officer,
who suspected that Frette was intoxicated, acted solely on the
basis of a tip phoned in by an identified citizen informant. We
conclude that the tip carried with it sufficient indicia of
reliability to give the officer reasonable suspicion to justify
an investigatory stop. Accordingly, we affirm the trial court's
denial of appellant's motion to suppress.
While there was no testimony taken in the case, the parties
stipulated to the following facts. At 6:51 p.m. on June 15,
1995, Jerry Smith, a truck driver from Jonesboro, Georgia, phoned
in a tip to the Springdale Police Department. Smith provided the
radio dispatcher with his name, address, and occupation. He
stated that he had observed an elderly male in a red Volvo
tractor-trailer drinking beer in the cab of his vehicle in the
commercial truck parking lot behind the McDonald's restaurant
located on West Sunset in Springdale. The lot had nine spaces
designated for commercial vehicles. The police department had no
prior dealings with Smith. At 7:02 p.m., an Officer Kwano
responded to the dispatch and discovered that Frette was behind
the wheel inside a red tractor-trailer parked immediately behind
McDonald's in the designated parking area.
Officer Kwano approached the vehicle and ordered Frette to
step out of the vehicle. When Frette exited, Officer Kwano
noticed the strong smell of intoxicants on Frette, who swayed as
he spoke. Frette failed various field-sobriety tests and was
arrested at 7:49 p.m. A test performed at the police station
revealed that Frette had a .08% blood-alcohol content.
Frette was found guilty in municipal court of driving while
intoxicated as a holder of a commercial driver's license. On
appeal to circuit court, Frette filed a motion to suppress his
"statements. . .blood alcohol analysis, physical description [of
Frette], statements of an informant, descriptions of field
sobriety tests, and a physical [of Frette]" on the ground that
this evidence was obtained as a result of an illegal seizure.
The trial court denied the motion to suppress, and accepted
Frette's conditional guilty plea to one count of driving while
intoxicated while holding a commercial driver's license.
Pursuant to Ark. R. Crim. P. 24.3(b), Frette's plea was
conditioned on an appeal of the trial court's adverse ruling on
his pretrial motion to suppress.
The Court of Appeals reversed and remanded, holding that the
trial court erroneously denied the motion to suppress. Frette v.
State, 58 Ark. App. 81, 947 S.W.2d 15 (1997). We granted the
State's petition for review, and now review the case as though it
was originally filed with this court. McElhanon v. State, 329
Ark. 261, 948 S.W.2d 89 (1997); Brunson v. State, 327 Ark. 567,
940 S.W.2d 440 (1997).
We first consider Frette's challenge to the sufficiency of
the evidence and the factual basis for his plea. Frette entered
a conditional guilty plea pursuant to Ark. R. Crim. P. 24.3(b),
With the approval of the court and the consent of the
prosecuting attorney, a defendant may enter a
conditional plea of guilty. . . reserving in writing
the right, on appeal from the judgment, to review of an
adverse determination of a pretrial motion to suppress
evidence. If the defendant prevails on appeal, he
shall be allowed to withdraw the plea.
As a general rule, one is not allowed to appeal from a conviction
resulting from a guilty plea, aside from jurisdictional defects.
Ark. R. App. P. -- Crim. 1(a). However, "Rule 24.3(b) presents
an exception to the rule but only for the purpose of determining
on appeal whether an appellant should be allowed to withdraw her
plea if it is concluded that evidence should have been, but was
not, suppressed." Wofford v. State, 330 Ark. 8, 952 S.W.2d 646
(1997). This court has strictly construed the permissible scope
of an appeal under Rule 24.3(b). In Wofford the appellant
entered a conditional guilty plea under Rule 24.3(b) and we
declined to address an upward departure from the sentencing
guidelines and an alleged violation concerning cameras in the
courtroom because these points did not concern "suppression of
evidence." Id. See also Jenkins v. State, 301 Ark. 586, 786 S.W.2d 566 (1990) (declining to reach the merits of a speedy-
trial argument when the appellant entered a Rule 24.3(b)
conditional plea of nolo contendere on the charge). Likewise, we
decline to reach the merits of Frette's challenge to the
sufficiency of the evidence and the factual basis for his plea.
We next consider the trial court's adverse determination of
Frette's pretrial motion to suppress evidence. In reviewing the
denial of a motion to suppress, this court makes an independent
examination based on the totality of the circumstances. Mullinax
v. State, 327 Ark. 41, 938 S.W.2d 801 (1997), cert. denied, 117 S. Ct. 2411 (1997); Norman v. State, 326 Ark. 210, 931 S.W.2d 96
(1996). The evidence is viewed in the light most favorable to
the State as appellee, and this court will reverse only if the
trial court's ruling was clearly against the preponderance of the
This court has previously categorized police-citizen
encounters into three categories:
The first and least intrusive category is when an
officer merely approaches an individual on a street and
asks if he is willing to answer some questions.
Because the encounter is in a public place and is
consensual, it does not constitute a "seizure" within
the meaning of the fourth amendment. Id. The second
police encounter is when the officer may justifiably
restrain an individual for a short period of time if
they have an "articulable suspicion" that the person
has committed or is about to commit a crime. Id. The
initially consensual encounter is transformed into a
seizure when, considering all the circumstances, a
reasonable person would believe that he is not free to
leave. The final category is the full-scale arrest,
which must be based on probable cause. Id.
Thompson v. State, 303 Ark. 407, 797 S.W.2d 450 (1990) (citing
U.S. v. Hernandez, 854 F.2d 295 (8th Cir. 1988)). In the present
case, Officer Kwano's actions in ordering Frette out of his
parked truck to investigate the DWI tip falls into the second
category, a "seizure" under the Fourth Amendment requiring "[t]he
police officer. . . to be able to point to specific and
articulable facts which, taken together with rational inferences
from those facts, reasonably warrant th[e] intrusion." Terry v.
Ohio, 392 U.S. 1 (1968). In Thompson, supra, we held that an
officer with reasonable suspicion under Ark. R. Crim. P. 3.1 to
suspect that the occupant of a parked vehicle was about to commit
a DWI could ask the occupant to exit his car. Likewise, other
courts have recognized that an officer with reasonable suspicion
to conduct an investigatory stop may order an occupant out of a
parked vehicle. See, e.g., Popple v. State, 626 So. 2d 185 (Fla.
1993); Johnson v. State, 658 S.W.2d 623 (Tex. Crim. App. 1983),
overruled on other grounds, 1997 WL 685978 (Tex. Crim. App.
1997); People v. Freeman, 320 N.W.2d 878 (Mich. 1982); People v.
Harrison, 443 N.E.2d 447 (N.Y. 1982).
Frette challenges the legality of his detention under Ark.
R. Crim. P. 3.1, governing investigative stops:
A law enforcement officer lawfully present in any place
may, in the performance of his duties, stop and detain
any person who he reasonably suspects is committing,
has committed, or is about to commit (1) a felony, or
(2) a misdemeanor involving danger of forcible injury
to persons or of appropriation of or damage to
property, if such action is reasonably necessary either
to obtain or verify the identification of the person or
to determine the lawfulness of his conduct. An officer
acting under this rule may require the person to remain
in or near such place in the officer's presence for a
period of not more than fifteen (15) minutes or for
such time as is reasonable under the circumstances. At
the end of such period the person detained shall be
released without further restraint, or arrested and
charged with an offense.
"Reasonable suspicion" is further defined by our rules of
[A] suspicion based on facts or circumstances which of
themselves do not give rise to the probable cause
requisite to justify a lawful arrest, but which give
rise to more than a bare suspicion; that is, a
suspicion that is reasonable as opposed to an imaginary
or purely conjectural suspicion.
Ark. R. Crim. P. 2.1. The justification for an investigative
stop depends upon whether, under the totality of the
circumstances, the police have specific, particularized and
articulable reasons indicating the person or vehicle may be
involved in criminal activity. Kilpatrick v. State, 322 Ark.
728, 912 S.W.2d 917 (1995) (quoting Hill v. State, 275 Ark. 71,
628 S.W.2d 284, cert. denied, 459 U.S. 882 (1982)).
The substance of Frette's argument is that the tip was
provided by an unreliable informant over the telephone, making
the information provided in the tip insufficient to give Officer
Kwano the reasonable suspicion necessary to conduct an
investigatory stop. Frette cites cases generally dealing with
the sufficiency of information provided by informants in
establishing reasonable suspicion. For example, in Adams v.
Williams, 407 U.S. 143 (1972), the United States Supreme Court
examined whether a police officer legally conducted an
investigatory stop pursuant to Terry, supra. The officer
justifiably responded to an informant's tip that the respondent
was carrying narcotics and a gun, in part because "[t]he
informant was known to [the police officer] personally and had
provided him with information in the past." Adams, supra.
Additionally, the informant provided the information to the
officer personally, making the case "stronger" than in the case
of an anonymous telephone tip. Adams, supra. These facts, while
perhaps insufficient to justify a warrantless arrest or a search
warrant, provided "enough indicia of reliability" to justify a
Terry stop. Adams, supra.
Adams was later cited by the Supreme Court in Alabama v.
White, 496 U.S. 325 (1990), a case involving an anonymous tipster
who telephoned the police and informed them that the respondent
would be leaving 235-C Lynwood Terrace Apartments at a particular
time in a brown Plymouth station wagon with a broken taillight.
The informant added that the respondent would be going to Dobey's
Motel, and that she was carrying an ounce of cocaine in a brown
attache case. Officers went to the Lynwood apartments and
observed a station wagon matching the precise description
provided by the informant, and saw the respondent leave the 235
building and enter the station wagon. When the respondent
proceeded to drive on the highway where Dobey's Motel was
located, the officers had a patrol car pull the vehicle over.
The respondent consented to a search of her vehicle which
resulted in the discovery of controlled substances.
The Supreme Court held that the police conducted a valid
Terry stop. In examining whether the anonymous tip carried with
it sufficient indicia of reliability by analogy to the totality
of the circumstances approach to determining whether an
informant's tip establishes probable cause under Illinois v.
Gates, 462 U.S. 213 (1983), the Court concluded that the tip,
"standing alone," "would not `warrant a man of reasonable caution
in the belief that [a stop] was appropriate.'" White, supra
(quoting Terry, supra). However, at the time the officers made
the stop, the tip had been sufficiently corroborated to give them
reasonable suspicion. The woman left the 235 building and
entered a car matching the description provided by the informant.
Evidence also demonstrated that the respondent left the building
in the time frame suggested by the informant. Finally, the
respondent was travelling on the most direct path to the
destination given by the informant. This independent
corroboration, in addition to the informant's ability to predict
the respondent's future behavior, provided "sufficient indicia of
reliability to justify the investigatory stop of respondent's
car." White, supra.
White was relied upon by the Court of Appeals in Lambert v.
State, 34 Ark. App. 227, 808 S.W.2d 788 (1991), where an
anonymous tipster (identified as "someone from Little Rock")
informed the police that a man named "Jerry" would be leaving the
Hot Springs area at a specific time, driving a "Woodline Motor
Freight" truck with a shortbed trailer, and carrying about ten
pounds of marijuana. Acting on this tip, the police officer set
up surveillance and stopped a truck matching this description at
the given time. After the driver identified himself as "Jerry
Lambert" the officer Mirandized the driver who in turn showed the
officer the marijuana that he was carrying.
Comparing the facts of the case to those presented in White,
supra, the Court of Appeals held that the officer lacked
reasonable suspicion to stop the driver under Rule 3.1. In so
holding, the court emphasized that unlike White, the police had
no information concerning the departure point of the driver or if
the vehicle was travelling to the location predicted by the
informant. The Court of Appeals also held that the police lacked
reasonable suspicion under Kaiser v. State, 296 Ark. 125, 752 S.W.2d 271 (1988). In Kaiser this court held that the police
lacked reasonable suspicion to stop a vehicle suspected of
carrying contraband when the information was provided by the
Missouri State Police, who in turn told Arkansas authorities that
the "information came from a reliable informant." While the
informant providing the information to the Missouri State Police
may have been reliable, and the Missouri State Police may have
had reasonable suspicion concerning Kaiser, "the record is devoid
of evidence supporting that conclusion." Id.
Another case relied on by Frette is Evans v. State, 33 Ark.
App. 184, 804 S.W.2d 730 (1991), where a person identifying
herself as Irene Smith called the North Little Rock police and
told them her daughter was being held at gunpoint in an apartment
at 1600 North Main Street. She told the police that she obtained
this information from her son and gave the police her number.
When a dispatcher called the woman back to tell her that no one
discovered anything at 1600 North Main, Ms. Smith attempted to
clarify the location of the residence and reiterated that the
address was 1600 North Main. An officer responded to 1600 North
Main and concluded that no crime had occurred there. At the same
time, another officer partner entered a dwelling at 1516 North
Main and reported that there were several marijuana plants there.
The Court of Appeals held that the police lacked probable
cause to make the warrantless entry into 1516 North Main. The
basis for the officer's intrusion was a call to respond to 1600
North Main, and they had no information that a felony had been or
was being committed at 1516 North Main. The Evans court also
concluded that the evidence indicated that the officers did not
know which house they were looking for and were conducting a
random search of the area. The Court of Appeals reasoned that
the case was controlled by Mitchell v. State, 294 Ark. 264, 742 S.W.2d 895 (1988), where this court held that the police lacked
probable cause to make a warrantless entry into a home when an
anonymous caller claimed that a person had been shot at a
particular address and was dead. The caller's main concern was
that she did not want a dead person in the house, and provided no
other information that the person might be alive or that anyone
else was in danger. "The identity of the caller was anonymous;
one could only speculate as to the reliability of the caller."
Id. (citing Burks v. State, 293 Ark. 374, 738 S.W.2d 399 (1987),
overruled on other grounds, 329 Ark. 422, 948 S.W.2d 557 (1997)
(holding that several anonymous calls implicating appellant in
robbery were "unverified anonymous telephone tips" that did "not
support or contribute to a probable cause determination")). The
Evans court read Mitchell and the cases cited therein to conclude
The mere fact Irene Smith identified herself in no way
established her trustworthiness. Moreover, there is
nothing in the record regarding the trustworthiness or
even the name of Ms. Smith's son, the informant who
gave her the information she relayed to the police. In
determining probable cause, the pivotal question is
reliability of the information on which the officers
rely. The record does not show that either Irene Smith
or her son were known to the police officers or known
by them to be trustworthy.
A more recent case showing the inadequacy of an anonymous
tip is Hammons v. State, 327 Ark. 520, 940 S.W.2d 424 (1997),
where the police received two anonymous phone calls. Both calls
provided detailed information about a drug dealer and where he
was going to be; one of the calls specified where he would be
that night and what vehicle he would be driving. An officer went
to the restaurant parking lot where the tipster said the dealer
would be, and eventually saw a car in the lot matching the
description with two people sitting in the car. The dome light
of the car was on, and as the officer pulled up to the car the
occupants began acting as if they were trying to conceal
something. Once the officer saw one of the passengers reach for
a gun, he drew his weapon and ordered the occupants out. This
resulted in the discovery of contraband.
In determining whether the officers conducted a valid Rule
3.1 investigatory stop, the court cited to White, supra, and
Lambert, supra, to hold that the anonymous tips in and of
themselves were insufficient to give the officer reasonable
suspicion to conduct an investigatory stop. "Had this been a
case where [the officer] stopped, detained, and then arrested
[the appellant] solely on the basis of the anonymous tips, we
would reverse the trial court." Hammons, supra. However, the
court concluded that the officer's pulling up to the vehicle was
a mere Rule 2.2 encounter, and that subsequent developments in
the parking lot gave the officer reasonable suspicion to warrant
a Rule 3.1 stop.
Taking all of these cases into consideration, it is clear
that the informant in the present case was more than an anonymous
informant. It is undisputed that Smith provided the police with
his name, address, and occupation. In discussing victim-witness
informants, Professor LaFave observes that courts "quite
frequently" find that information is presumed reliable when it
comes from an identified person. Wayne LaFave, Search & Seizure
3.4(a) (3d ed. 1996). For example, in State v. Evans, 692 So. 2d 216 (Fla. Dist. Ct. App. 1997), a McDonald's employee phoned in a
call to the police that a patron smelled of alcohol and was
intoxicated. An officer came to the McDonald's and the employee
pointed out the vehicle that the patron was driving. The officer
later stopped the suspect and the Florida Court of Appeals held
that the officer had reasonable suspicion to conduct the stop.
In rejecting the appellant's contention that the caller was an
"anonymous informant," the Evans court emphasized that the caller
"provided her name, location, and occupation to the police." Id.
Although the investigating officer did not have all of this
information given by the caller to the dispatcher, it was imputed
from the dispatcher to the officer. Even considering only what
the officer actually knew, the caller's identity was "readily
ascertainable" because the officer knew that the caller was a
McDonald's employee and the two acknowledged each other on the
scene. "The cases support the proposition that an informant's
actual name need not be known so long as her identity is readily
discoverable." Id. (citing Lachs v. State, 366 So. 2d 1223 (Fla.
Dist. Ct. App. 1979) ("This was not an anonymous tip from an
unknown tipster, it was a telephoned complaint from an identified
citizen who gave his occupation and address, the latter well-
known to the police.")).
While it is true that the Arkansas Court of Appeals in Evans
v. State, supra, declined to hold that a telephone tip from a
person who identified herself by name and telephone number was
reliable, the case is distinguishable from the present case in
all significant respects. Evans v. State involved probable cause
to make a warrantless entry into a residence. Moreover, the
caller was relaying information that she did not personally
observe, and no criminal activity was discovered at the address
provided. In fact, the Court of Appeals concluded that the
police were simply conducting a random search of the area by
entering the residence at issue.
In sum, none of the cases cited by Frette require us to hold
that the information provided by an informant is per se
unreliable simply because the information was provided over the
telephone and the police had no prior dealings with the
informant. Significantly, the tipster identified himself by
name, address, and telephone number, allowing the police to
ascertain the caller's identity. Perhaps more importantly,
Frette fails to recognize the different considerations present
where information has been provided by a citizen or a witness to
a crime, as opposed to informants who are typically unnamed
police contacts and who are usually themselves criminals.
Professor LaFave has noted that "[c]ourts are much more concerned
with veracity when the source of the information is an informant
from the criminal milieu rather than an average citizen who has
found himself in the position of a crime victim or witness. . .
[b]asis of knowledge is likewise less of a problem in the victim-
witness case, for by definition the victim or witness is
reporting first-hand knowledge." LaFave, supra at 3.4(a). He
also suggests that, at least with respect to veracity, the police
should generally be allowed to assume that they are dealing with
a credible person when an average citizen tenders information to
the police. LaFave, supra at 3.4(a).
This court has afforded added reliability to citizen-witness
informants in various contexts. See Humphrey v. State, 327 Ark.
753, 940 S.W.2d 860 (1997) (information from witness entitled to
added reliability in making warrantless arrest even though
witness had proven unreliable in a prior, unrelated criminal
investigation); Moore v. State, 323 Ark. 529, 915 S.W.2d 284
(1996) (considering sufficiency of information in affidavit
giving probable cause to arrest -- "no additional support for the
reliability of witnesses is required where the witness
volunteered the information as a good citizen and not as a
confidential informant whose identity is to be protected.");
Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983) (involving
the reliability of the informants used in a search warrant's
supporting affidavit -- informants were not "confidential
informants" but rather "[t]hey volunteered information simply as
good citizens. The police necessarily rely upon such information
every day in the course of their work, without first exploring
abstract issues of credibility. Hence no additional support for
the reliability of [the informants] was required."). In Brooks
v. State, 40 Ark. App. 208, 845 S.W.2d 530 (1993), a citizen
flagged down an officer and informed him that three people were
in a car smoking crack. While the citizen was giving a
description of the car to the officer, the car drove by. The
officer followed the vehicle and it was stopped, resulting in the
discovery of controlled substances and the appellant's arrest.
The Court of Appeals held that this was a valid investigatory
stop under Rule 3.1. While the appellant alleged that the
information forming the basis of the reasonable suspicion was an
anonymous tip, the Brooks court rejected this argument
emphasizing that the citizen spoke face-to-face with the officer,
and provided a description of the vehicle, its occupants, and the
license number. The citizen additionally identified the car as
it drove by. "We think that the `indicia of reliability' to
justify the investigatory stop in this case was as great as that
approved in Alabama v. White, [supra]." Brooks, supra.
Other jurisdictions have specifically dealt with citizen-
witness informants who have reported incidents of people driving
while intoxicated. In these cases, the officers had reasonable
suspicion to justify an investigatory stop of the suspected drunk
driver acting on the tip alone, without the officers having
independently observed criminal activity on the part of the
suspect. See, e.g., State v. Evans, 692 So. 2d 216 (Fla. Dist.
Ct. App. 1997) (McDonald's employee phoned in belief that patron
was intoxicated, officer arrived and employee pointed at vehicle
-- officer had reasonable suspicion to stop vehicle); State v.
Sailo, 910 S.W.2d 184 (Tex. Ct. App. 1995) (information given by
unknown citizen-informant sufficient where citizen drove up to
officer during traffic stop and told him about possible drunk
driver approaching scene -- officer sufficiently corroborated
enough information to justify stop); City of Beachwood v. Sims,
647 N.E.2d 821 (Ohio Ct. App. 1994) (reasonable suspicion for
investigatory stop where citizen-informer phoned that he was
following a driver that was driving erratically -- officer
responded to address given by informant and informant pointed out
vehicle to officer); State v. Bridge, 452 N.W.2d 542 (Neb. 1990)
(investigative stop justified where informant, a fellow officer
in the same department, communicated to the investigating officer
that he had smelled alcohol on defendant's breath and was
concerned that he was driving intoxicated -- description of
vehicle and license number given); State v. Ege, 420 N.W.2d 305
(Neb. 1988) (gas-station employee approached officer and told her
that he personally observed motorist drive over curb and smelled
alcohol on the motorist's breath while in service station -- this
provided "reasonable basis" for the officer's investigative stop
although officer did not observe traffic violations while she was
following motorist); compare with People v. Donnelly, 691 P.2d 747 (Colo. 1984) (citizen-informer rule inapplicable where it was
ambiguous whether the "witness's" knowledge of the drunk driver
came from first-hand knowledge).
In State v. Bybee, 884 P.2d 906 (Or. Ct. App. 1994), the
police received a call from a convenience-store employee who
reported as follows:
[I] wanted to report a drunken driver. [I'm] working
down here at Ninth Street 7-11. He came in just a
minute ago. He's driving a blue, looked like a MG, an
older little sports car convertible rag top.
The caller then gave the vehicle's license number, "RYG 126," and
the direction the car was heading on a particular street. An
officer who received the dispatch noticed a blue convertible
heading the same direction on the street given in the dispatch.
While he observed no unusual driving patterns, he stopped the
vehicle solely because of the report he received from the
dispatch. He reported that the correct license number was "RYC
126"; the driver was arrested for DUI.
The Oregon Court of Appeals held that the officer had
reasonable suspicion to justify the stop under the totality of
the circumstances. When reasonable suspicion is based solely on
a citizen-informant's report, the report must contain some
indicia of reliability. Three factors in determining indicia of
reliability are as follows: 1) whether the informant was exposed
to possible criminal or civil prosecution if the report is false;
2) whether the report is based on the personal observations of
the informant; and 3) whether the officer's personal observations
corroborated the informant's observations. Id. The first factor
is satisfied whenever a person gives his or her name to
authorities or if the person gives the information to the
authorities in person. Id. With regard to the second factor,
"an officer may infer that the information is based on the
informant's personal observation if the information contains
sufficient detail that `it [is] apparent that the informant had
not been fabricating [the] report out of whole cloth. . . [and]
the report [is] of the sort which in common experience may be
recognized as having been obtained in a reliable way.'" Id.
(quoting Spinelli v. United States, 393 U.S. 410 (1969)). The
third and final element may be satisfied if the officer observes
the illegal activity or finds the person, the vehicle, and the
location as substantially described by the informant. Bybee,
The Bybee court examined these factors and concluded that
the informant's report had sufficient indicia of reliability.
First, the clerk gave his name, location, and number to the
police exposing himself to liability if the report proved false.
Second, portions of the clerk's report indicated that he had
personally seen the defendant, "he came in just a minute ago,"
"he's driving," "he was heading South on Ninth." Bybee, supra.
Finally, the officer was able to corroborate the informant's
observations, he saw a small blue convertible driving on the same
street and in the same direction as reported.
The same court reached the opposite result in State v.
Villegas-Varela, 887 P.2d 809 (Or. Ct. App. 1994), where the
officer received a dispatch that a caller had reported an
"intoxicated driver operating a small red vehicle with four
subjects in it. The vehicle was driving erratically all over the
road." The caller gave the vehicle's license number, but failed
to disclose his location, the suspect vehicle's location, or a
description of the occupants. Additionally, the caller did not
identify himself, stating only that he was a member of a
particular citizens' watchdog group. An hour later, the officer
followed a red vehicle with four occupants into a parking lot,
even though he did not observe any traffic violations. The
license number matched the one called in, and the defendant, an
occupant, was ultimately arrested for DUI.
The Villegas-Varela court concluded that the trial court
erred in denying the appellant's motion to suppress. In
examining whether the citizen's report contained indicia of
reliability under the three factors outlined above, the court
determined that it did not. First, the informant did not give
his name or telephone number to the dispatcher. Thus, the
informant was not exposed to civil or criminal liability if the
report proved false. Second, the officer did not sufficiently
corroborate the information provided. While he saw a small red
car with four occupants, the caller did not give a description of
the defendant or any of the car's occupants, and did not give a
location of the car or its direction. "[W]e cannot say that the
defendant and his car were found at a time and location
consistent with their location at the time of the report.
Consequently, we cannot say that [the officer] corroborated the
report when he saw a small red car driving south on Portland Road
80 minutes later." Id. Given these two factors, the officer
lacked reasonable suspicion to stop the defendant's car.
In Kaysville City v. Mulcahy, 943 P.2d 231 (Utah Ct. App.
1997), Dewyane Olsen reported to the police that a drunk
individual had been at his front door and had driven away in a
white car, "a Toyota Celica, maybe." Olsen said that the car
left his subdivision and stated that it was going "east" "on the
main road that goes in front of Davis High School." Olsen
believed that the driver's name was Joe, and he gave the
dispatcher what he thought was Joe's phone number. An officer
near the high school saw a white car "as described in the
dispatch." After stopping the car and speaking with the driver,
the officer smelled alcohol and arrested the driver for DUI.
The Mulcahy court framed the issue as "whether reasonable
suspicion may be based on an informant's report of a drunk
driver, absent corroboration by a police officer of traffic
violations or intoxication." Id. Like the Oregon Court of
Appeals above, the Utah Court of Appeals used three factors in
determining the reliability and sufficiency of the informant's
report. The first factor was the "type of tip or informant
involved." By contrast to an anonymous caller, "an identified
`citizen-informant' is high on the reliability scale," and "[t]he
ordinary citizen-informant needs `no independent proof of
reliability or veracity.'" Id. The second factor was "whether
the informant gave enough detail about the observed criminal
activity to support a stop." Id. Regarding this factor, the
court noted that a tip is more reliable if the informant observed
the details personally, as opposed to passing on information from
a third party. The final factor considered is whether the
officer's personal observations confirm the informant's tip.
Applying these factors, the Mulcahy court noted that Olsen
was an identified citizen-informer, providing information as a
witness. By giving his name and address, he exposed himself to
prosecution for making a false report. Second, Olsen's
description was sufficiently detailed -- he reported a "drunk
individual" at his front door who drove off in a white car
(possibly a Celica) out of the subdivision on the main road in
front of the high school. Moreover, Olsen personally observed
these details. Finally, the officer corroborated the informant's
report by finding "the described vehicle going in the direction
and on the highway reported by the caller," only a few minutes
after the dispatch. Id.
Before turning to the analysis in the present case, we would
be remiss in not first emphasizing the significant policy
considerations present where a tip reports a driver who is
drinking. This court has previously recognized the magnitude of
the State's interest in eliminating drunk driving in comparison
to relatively minimal intrusions on motorists. See Mullinax v.
State, 327 Ark. 41, 938 S.W.2d 801 (1997). In balancing the
rights of a motorist to be free from unreasonable intrusions and
the State's interest in protecting the public from unreasonable
danger, one court has stated that "[a] motor vehicle in the hands
of a drunken driver is an instrument of death. It is deadly, it
threatens the safety of the public, and that threat must be
eliminated as quickly as possible. . .The `totality' of
circumstances tips the balance in favor of public safety and
lessens the. . . requirements of reliability and corroboration."
Mulcahy, supra, (quoting State v. Tucker, 878 P.2d 855 (Kan. Ct.
The three-factored approaches adopted by the Oregon and Utah
Courts of Appeals provide a useful analytical framework in the
present case. First, Smith, a citizen informant, identified
himself by name, address, and occupation, exposing himself to
potential prosecution for making a false report. See Ark. Code
Ann. 5-54-122 (Repl. 1993). As such, Smith's tip ranks high on
the reliability scale -- more than an anonymous caller or a
confidential informant from the "criminal milieu." Second, it is
undisputed that Smith personally observed the alleged criminal
activity, providing a basis of knowledge for the tip. Finally,
Officer Kwano's own observations substantially corroborated
Smith's report. He arrived at the exact location specified by
Smith, only minutes after the tip was phoned in. While there, he
discovered the described vehicle with an older man sitting in the
cab. Accordingly, we conclude that under the totality of the
circumstances, Smith's tip carried with it sufficient indicia of
reliability to justify an investigatory stop under Rule 3.1. The
trial court did not clearly err in denying Frette's motion to
Affirmed; Court of Appeals reversed.
Brown, J., concurring.
Robert L. Brown, concurring. I disagree that when Officer
Kwano ordered or requested Paul Frette to come down from the cab
of his truck, this was a seizure. The dispatcher of the
Springdale Police Department had received a tip from a Jerry
Smith, who identified himself as an out-of-state truck driver.
Smith told the police dispatcher that Frette was drinking beer in
the cab of his truck. As the majority makes clear, the
Springdale Police Department had had no prior dealings with Jerry
Smith. Clearly, the tip could have been as bogus as it could
have been real. The information needed to be verified.
Officer Kwano was dispatched to the scene to investigate.
He found an unidentified person sitting in the cab of a truck but
saw no beer. He ordered him down from his cab in order to assess
the situation further. At this point, Officer Kwano was
operating, in my judgment, under Rule 2.2(a) of the Arkansas
Rules of Criminal Procedure:
(a) A law enforcement officer may request any
person to furnish information or otherwise cooperate in
the investigation or prevention of crime. The officer
may request the person to respond to questions, to
appear at a police station, or to comply with any other
I cannot conclude that at this moment Frette's liberty was
restrained by show of physical force or authority so as to
constitute a seizure. See Thompson v. State, 303 Ark. 407, 797 S.W.2d 450 (1990). Frette was told to come down from his cab.
This was for the purpose of answering questions and assessing his
condition. Whether Officer Kwano requested he come down from his
cab or ordered him down seems more a question of semantics than a
pivotal distinction to me under these circumstances.
Once Frette was out of the cab and face-to-face, Officer
Kwano detected the smell of alcohol and noticed that Frette was
unsteady on his feet. With this added information, he had
reasonable suspicion to stop and detain Frette under Ark. R.
Crim. P. 3.1. Field sobriety tests were administered which
Frette failed, and he was arrested.
This progression from a tip to a Rule 2.2 investigation to a
Rule 3.1 stop-and-detention to an arrest is precisely what this
court recently approved in Hammons v. State, 327 Ark. 520, 940 S.W.2d 424 (1997). In Hammons, the tip was that "Wild Bill," who
had sold drugs to the caller's roommate and a woman named Shannon
Smith, was coming to Fort Smith to sell methamphetamine. He
would be driving a black 70 or 80 model Corvette. He was
described as being in his late 30's or early 40's, of slender
build, and with a moustache and beard. A second anonymous caller
said Wild Bill would be at a particular bar in Fort Smith on a
A Fort Smith police detective was dispatched to the parking
lot of that bar on the suspected night. He approached a black
Corvette in his police car and when he saw a man in the Corvette
scramble and pull out what he thought was a gun, he activated his
blue lights. That constituted a stop. After the stop, what was
believed to be methamphetamine was found on Hammons, and he and
his companion were arrested.
We affirmed the denial of Hammons's motion to suppress
because the two anonymous calls led the police detective to the
parking lot for further investigation under Rule 2.2. The same
holds true in the instant case -- the unverified tip warranted
further investigation. At the parking lot in Hammons, the police
detective first saw nothing unduly suspicious. In the instant
case, Officer Kwano did not see Frette with a beer. Then, in
Hammons the detective saw scrambling and what he thought was a
gun which gave him reasonable suspicion to stop and detain the
car's occupants under Rule 3.1. Similarly, the odor of alcohol
on Frette and his unsteadiness on his feet gave Officer Kwano
reasonable suspicion to stop and detain the man. Drugs were
found in Hammons's possession which led to his arrest. Here,
Frette failed the field sobriety tests and was arrested. The
case of Hammons v. State, supra, provides the blueprint for
police actions in situations where the tip is open to question,
and I would follow it.
The question arises whether a police officer, under this
reasoning, could order anyone out of a vehicle for any purpose.
The answer, of course, is no. But in this case, the tip provided
a basis for further investigation and, without question, the
information relating to a potentially inebriated truck driver
needed to be checked out immediately and thoroughly.
I would affirm, but for the reasons stated in this opinion.