
    [No. 26386-2-I.
    Division One.
    June 8, 1992.]
    The State of Washington, Respondent, v. Antonio Allen Hart, Appellant.
    
    
      
      Suzanne Lee Elliott of Washington Appellate Defender Association, for appellant.
    
      Seth R. Dawson, Prosecuting Attorney, and Randall Yates, Deputy, for respondent.
   Pekelis, J.

Antonio A. Hart appeals his conviction for possession of a controlled substance with intent to deliver. He contends that the trial court erred in denying his motion to suppress evidence which he asserts the police seized following an unlawful stop. We reverse.

I

On August 26, 1989, Detectives Manual Garcia and Fred Anderson of the Everett Police Department's Drug Abuse Reduction Team (DART) were patrolling a "high narcotics activity area" near several apartment complexes. At approximately 8:30 p.m., the detectives stopped to investigate a vehicle parked in the middle of the street with its engine running.

The detectives approached the vehicle and began speaking with its two juvenile occupants. While speaking with the juveniles, Detective Garcia observed an open container of alcohol inside the vehicle. One of the juveniles told Detective Garcia that "there was an individual selling marijuana" in a nearby apartment complex. The juvenile stated that the individual "was dressed in black and . . . was riding a motorcycle."

As the juvenile related this information to Detective Garcia, a person dressed in dark clothing (later identified as Hart) rode his motorcycle out of a nearby apartment complex in their direction. As Hart approached the area where the detectives were standing, the juvenile with whom Detective Garcia was speaking pointed to Hart and stated, "That's him."

Detective Garcia immediately stopped Hart and asked him for identification. In the course of the ensuing detention, Detective Anderson conducted a pat-down search for weapons. While removing a "hard object" from an inside pocket of Hart's jacket which he believed could have been a weapon, Detective Anderson saw a clear bag containing green vegetable matter protruding from another pocket which he suspected to be marijuana.

Hart was arrested and subsequently charged by information with possession of a controlled substance with intent to deliver in violation of the Uniform Controlled Substances Act, RCW 69.50.401(a). At a pretrial suppression hearing, Detective Garcia testified concerning the basis for his investigatory stop of Hart as follows:

Q: What specific information did you have that caused you to contact Mr. Hart as an individual?
A: Before I contacted Mr. Hart I was involved in a traffic stop with two minors that eventually had open container [sic] in their car. As I was talking to one, he stated through a brief conversation that there was an individual selling marijuana, an individual was dressed [sic] in black and was riding a motorcycle.
Q: Did he tell you anything about where that individual lived?
A: No.
Q: Did he tell you how he knew that that particular person was selling marijuana?
A: He knew of the person selling marijuana from the fact that he was going to score some, he said, some bud in the area, and he told that [Hart] was in the area riding his bike.
Q: Had he ever actually been approached by Mr. Hart to purchase marijuana?
A: He didn't specify that that evening, but he indicated he knew of [Hart] from perhaps — he didn't say when or if he had previous contacts.
Q: As you were talking to this individual, did you have his name . . .?
A: Not at that time, no.
Q: Did you get that individual's name while you were stopping Mr. Hart?
A: Yes, I did.
Q: Did you have any other information that you obtained prior to stopping Mr. Hart?
A: No, I didn't.

Detective Garcia also testified that he did not include the informant's name in his police report because the informant had asked to remain anonymous out of fear that Haft would retaliate against him. He also acknowledged that neither the informant nor his companion was cited for the crime of minor in possession of alcohol. There was no evidence presented that either of them could be located again.

The trial court denied Hart's motion to suppress and entered the following written findings and conclusions:

The evidence found in the search is admissible as the result of a lawful Terry stop. Viewing the totality of the circumstances the officers had a reasonable suspicion based upon articulable facts to stop the defendant. The officers were in an area of high drug trafficing [sic], with information that the defendant was selling marijuana, had his physical description and a visual identification by the minor. It would have been unreasonable under the circumstances to require the police to look the other way.

After a stipulated trial, Hart was found guilty as charged. He appeals his conviction, contending that the trial court erred in denying his motion to suppress evidence.

II

Hart argues that the trial court erred in determining that Detective Garcia's investigatory stop was reasonable under the circumstances. According to Hart, the informant's tip to Detective Garcia that Hart was selling marijuana in a nearby apartment complex did not justify the detention.

The Fourth Amendment and Const. art. 1, § 7 are applicable to investigatory stops and require that such stops be reasonable. Terry v. Ohio, 392 U.S. 1, 16-19, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); State v. Lesnick, 84 Wn.2d 940, 530 P.2d 243, cert. denied, 423 U.S. 891, 46 L. Ed. 2d 122, 96 S. Ct. 187 (1975). A police officer may conduct an investigative stop if the officer has a reasonable suspicion that there is a substantial possibility that criminal activity has occurred or is about to occur based on "specific and articulable facts" and the rational inferences from those facts. State v. Kennedy, 107 Wn.2d 1, 5-6, 726 P.2d 445 (1986); see Terry, 392 U.S. at 20-21.

An officer's reasonable suspicion may be based on information supplied by an informant. Adams v. Williams, 407 U.S. 143, 147, 32 L. Ed. 2d 612, 92 S. Ct. 1921 (1972); Kennedy, 107 Wn.2d at 7-8; Lesnick, 84 Wn.2d at 943. However, "[a]n informant's tip cannot constitutionally provide police with such a suspicion unless it possesses sufficient 'indicia of reliability.'" State v. Sieler, 95 Wn.2d 43, 47, 621 P.2d 1272 (1980) (quoting Adams, 407 U.S. at 147). Our Supreme Court stated in Lesnick that "[i]t is difficult to conceive of a tip more 'completely lacking in indicia of reliability' than one provided by a completely anonymous and unidentifiable informer, containing no more than a conclusionary assertion that a certain individual is engaged in criminal activity." 84 Wn.2d at 944 (quoting State v. Lesnick, 10 Wn. App. 281, 285, 518 P.2d 199 (1973), aff'd, 84 Wn.2d 940, 530 P.2d 243, cert. denied, 423 U.S. 891, 46 L. Ed. 2d 122, 96 S. Ct. 187 (1975)).

In Sieler, police officers received information provided by an unknown but named informant that criminal activity was occurring at a high school parking lot. 95 Wn.2d at 45. A school secretary telephoned police and stated that "a Mr. Tuntland" had called the school to report that he had observed what he believed to be a drug sale in a black-over-gold Dodge with a certain license number in the school parking lot. Sieler, 95 Wn.2d at 44-45. No details of the transaction were given. Sieler, 95 Wn.2d at 45. Nevertheless, the officers proceeded to the scene and, without being able to corroborate any sign of criminal activity, detained the occupants of the vehicle matching the description given by the informant. Sieler, 95 Wn.2d at 45.

Our Supreme Court held that the investigatory detention constituted a violation of the Fourth Amendment. Sieler, 95 Wn.2d at 51. In reaching its decision, the court reaffirmed the rule adopted in Lesnick, which provided that "[1] absent circumstances suggesting the informant's reliability, or some corroborative observation which suggests either [2] the presence of criminal activity or [3] that the informer's information was obtained in a rehable fashion, a forcible stop based solely upon such information is not permissible." Sieler, 95 Wn.2d at 47 (quoting Lesnick, 84 Wn.2d at 944).

Because the Lesnick test is framed in the disjunctive, it could be read to mean that if the informant is rehable, that will suffice to justify a stop. However, the court in Sieler makes clear that the Lesnick test requires satisfaction of both prongs. The reliability of the informant him or herself merely satisfies the first prong. As the Sieler court stated, the reliability of the informant "by itself generally does not justify an investigatory detention." (Italics ours.) Sieler, 95 Wn.2d at 48. While the court recognized some authority to the contrary, see 3 W. LaFave, Search and Seizure § 9.3, at 100 (1978), it concluded that even if an informant is reliable, in the sense of being credible,

the State generally should not be allowed to detain and question an individual based on a reliable informant's tip which is merely a bare conclusion unsupported by a sufficient factual basis which is disclosed to the police prior to the detention. . . . [The factual basis] requirement helps prevent investigatory detentions made on the basis of a tip provided by an honest informant who misconstrued innocent conduct.

(Footnote and citations omitted. Itahcs ours.) Sieler, 95 Wn.2d at 48.

Thus, the Lesnick test was reformulated by the Sieler court to provide that: An informant's tip possesses sufficient "indicia of reliability" where (1) the informant is rehable and (2) the informant's tip contains enough objective facts to justify the pursuit and detention of the suspect or the noninnocuous details of the tip have been corroborated by the police thus suggesting that the information was obtained in a rehable fashion. Sieler, 95 Wn.2d at 48 & n.1; accord, State v. Vandover, 63 Wn. App. 754, 759-60, 822 P.2d 784 (1992) (investigatory stop resulting from informant's tip is not reasonable unless tip itself is shown to be rehable); Campbell v. Department of Licensing, 31 Wn. App. 833, 835-36, 644 P.2d 1219 (1982) (informant's tip does not justify investigatory stop unless reliability of informant's tip is demonstrated). State v. Wakeley, 29 Wn. App. 238, 241-42, 628 P.2d 835 (tip from rehable informant must contain objective facts sufficient to justify pursuit and detention of suspect), review denied, 95 Wn.2d 1032 (1981).

We therefore apply the 2-prong Sieler test to the facts before us. Addressing the first prong, we recognize that under the circumstances presented here, the informant could be deemed "reliable". Because the juvenile informant was being detained for a traffic infraction and possessed an open container of alcohol in the car, he was unlikely to make his situation worse by giving false information to the detectives. In addition, the informant here was not entirely anonymous. Because he was being detained by Detective Garcia, he was, at least in some respect, "known to the police".

As in Sieler, however, whether the informant here was sufficiently known to be deemed "reliable" is not critical.

Even assuming that an unknown but named telephone informant was adequately rehable, thereby distinguishing this case from Lesnick, this reliability by itself generally does not justify an investigatory detention. . . . Some underlying factual justification for the informant's conclusion must be revealed so that an assessment of the probable accuracy of the informant's conclusion can be made. It simply "makes no sense to require some 'indicia of reliability' that the informer is personally rehable but nothing at ah concerning the source of his information . . .".

(Footnote and citations omitted.) Sieler, 95 Wn.2d at 48 (quoting 3 W. LaFave, Search and Seizure § 9.3, at 100 (1978)).

Hence, even if the first prong of the Sieler test were satisfied here based on circumstances tending to demonstrate the informant's reliability, the second prong of the test, i.e., a showing of the tip's reliability, must also be satisfied. This is done either by demonstrating that the informant's tip contains enough objective facts to justify the pursuit and detention of the suspect or by corroboration of the tip's noninnocuous details by the police. Sieler, 95 Wn.2d at 48. Neither was satisfied here.

As was true in Sieler, Detective Garcia made a "commendable but unsuccessful attempt" to obtain a foundation for the informant's tip prior to confronting Hart. See Sieler, 95 Wn.2d at 49. Detective Garcia testified that the informant did not provide any basis for his supposition that Hart was selling marijuana except that the informant, who admitted he was looking to purchase marijuana, was told that Hart was "in the area riding his bike." Detective Garcia testified further that the informant did not tell him where Hart lived or indicate whether he himself had ever been approached by Hart to purchase marijuana. Detective Garcia therefore could not assess whether Hart was in fact selling marijuana or whether the informant may have misconstrued innocent conduct. Because the informant's tip lacked any objective facts to justify Hart's detention, the first alternative of the second prong was not met.

Because the informant's tip contained no factual basis for detaining Hart, sufficient indicia of the tip's reliability existed only if the second alternative were met by the detectives' corroboration of the presence of criminal activity. See Sieler, 95 Wn.2d at 48 & n.1. However, the State presented no evidence that the detectives observed any "noninnocuous" conduct which tended to demonstrate that the informant's information was obtained in a rehable fashion. Hart's presence in an area where drug transactions were known to occur could not by itself give rise to a reasonable suspicion that he was engaged in criminal activity. See Sieler, 95 Wn.2d at 49 (citing Brown v. Texas, 443 U.S. 47, 52, 61 L. Ed. 2d 357, 99 S. Ct. 2637 (1979)); State v. Ellwood, 52 Wn. App. 70, 74, 757 P.2d 547 (1988).

Moreover, Detective Garcia's observation of Hart, which conformed to the informant's description of Hart and his location, did not, by itself, satisfy the corroboration aspect of the second prong of the Sieler test.

As our Supreme Court has stated:

Corroboration of public or innocuous facts only shows that the informer has some familiarity with the suspect's affairs. Such corroboration only justifies an inference that the informer has some knowledge of the suspect and his activities, not that criminal activity is occurring.

State v. Jackson, 102 Wn.2d 432, 438, 688 P.2d 136 (1984); accord, Sieler, 95 Wn.2d at 49-50 (pohce observation of vehicle which confirms the informant's description does not constitute sufficient corroboration indicating that informant obtained information in rehable fashion); Lesnick, 84 Wn.2d at 943 (anonymous informant's accurate description of defendant's vehicle "not such corroboration or indicia of reliability as to make [detention] reasonable"). But cf. State v. Conner, 58 Wn. App. 90, 96-97, 791 P.2d 261 (informant's specific, detailed description of suspect, time that alleged crime occurred, and identification of victim suggests that information that a crime had been committed was obtained in rehable fashion), review denied, 115 Wn.2d 1020 (1990).

We thus conclude that the State failed to satisfy the second prong of the Sieler test. Hence, the detectives lacked reasonable suspicion for their investigatory stop of Hart, and the evidence seized pursuant to that stop should have been suppressed. Accordingly, Hart's conviction is reversed.

Baker and Kennedy, JJ., concur. 
      
      However, as the dissent in Sieler argues, one could well conclude that because the police had his name, Mr. Tuntland, the informant in that case, was not anonymous either. See Sieler, 95 Wn.2d at 53-54 (Dolliver, J., dissenting).
     
      
      On the other hand, despite the trial court's finding that the informant gave Detective Garcia his name prior to Hart's appearance, Detective Garcia testified that he did not learn the informant's name until after he had already detained Hart. This court is not bound by the findings of the trial court where, as here, constitutional rights are at issue. See State v. Flowers, 57 Wn. App. 636, 641, 789 P.2d 333 (citing State v. Daugherty, 94 Wn.2d 263, 269, 616 P.2d 649 (1980), cert. denied, 450 U.S. 958 (1981)), review denied, 115 Wn.2d 1009 (1990).
     