Under the Washington and United States constitutions, a person generally cannot be seized without a warrant supported by probable cause; however, there are exceptions to this rule. Investigative Terry stops, exigent circumstances and public safety are factors that ease the standard for legal police stops. Investigative Terry stops frequently arise in the DUI context. An officer may stop a driver if that officer has a reasonable and articulable suspicion that the driver is engaged in criminal activity. If the officer does not personally observe the conduct in question, then the information provided to the officer must be reliable. This reliability rule frequently comes into play when other drivers on the road call 911 in order to report a suspected DUI driver.
The rule in Washington has been that a 911 caller’s information can be established as reliable if:
- The reporting party was reliable and the information provided regarding the criminal activity was supported by a sufficiently factual basis, or
- The officer observes conduct that corroborates the caller’s information.
For example, if an anonymous caller reports that there is a “drunk driver” on the road, this would not meet the reliability test. On the other hand, a caller who provides his or her name and describes the specific driving observed might meet the criteria.
This week, the Washington Supreme Court announced a decision that could obliterate the protections provided by previous Washington case law. In State v. Z.U.E., the court considered whether an investigative stop was legal when the reason for the stop was based on several 911 calls reporting a man in possession of a gun at a park. At least one of the callers had provided a description of the man and the car he had gotten into. Police had limited information on the identity of the callers.
The court held that the stop was not lawful because the officers did not know the reliability of the callers, did not know the factual basis of their assertion of criminal activity, and did not personally observe criminal activity. The court held that a “totality of the circumstances” test was most appropriate to determine the lawfulness of a stop based on a 911 caller’s concerns.
Despite this favorable ruling for the defense, the court also noted that a less strict standard may be applied in situations in which officers are responding to a significant threat to public safety. As an illustration, the court specifically cited the U.S. Supreme Court’s decision in Navarette v. California, which held that a single anonymous 911 call may justify the stop of a reported drunk driver because “drunk drivers pose a threat to everyone on the road.” This means that the constitutional protection from unreasonable searches essentially does not apply to suspected DUI drivers.
Only time will tell how this recent decision will affect future cases, but one thing is clear: The government now has more freedom to seize an individual if it can show there was concern for a serious crime or potential danger to the community.
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