By Paul Fletcher
BridgeTower Media Newswires
An anonymous tip that a woman allegedly was driving while intoxicated, without more, did not give the police enough to make an investigatory stop of the car, the Michigan Supreme Court has ruled.
As a result, a woman in Huron County has beaten drunken driving charges in a case that has been going through the courts since 2016.
The case is People v. Pagano. Justice Richard H. Bernstein wrote the opinion for the court.
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‘Obnoxious’ behavior
In July 2016, the Huron County police got a 911 call about a woman driver.
According to a police officer’s testimony, the woman, later identified as Victoria Pagano, was yelling at her children and “appearing to be obnoxious.” She also appeared to be intoxicated, which apparently was prompting the behavior toward the children.
The caller was concerned for the children and gave the car’s license plate number and the direction in which it was traveling, and details about the car such as make, model and color.
Bernstein noted, “Although it appears that a copy of the 911 call might have been preserved, a recording was not introduced into evidence. The caller was not identified.”
A half hour later, the officer located the car, but Bernstein wrote, he “did not see defendant commit any traffic violations. When the officer subsequently pulled defendant over, the officer was doing so ‘based strictly on the information’ relayed in the 911 call.”
Pagano was arrested and charged with operating a motor vehicle while intoxicated with a child as a passenger and for an open container violation.
From there, the case had a circuitous procedural history.
The district judge in Huron County dismissed the charges, finding the 911 call unreliable. A circuit judge affirmed that ruling.
The prosecution appealed to the Court of Appeals, which reversed and reinstated the charges. The Supreme Court accepted the appeal and reversed.
Bernstein wrote, “The facts before us are undisputed. No information is known about the 911 caller, and the prosecution concedes that the caller should be treated as anonymous. The officer testified that defendant was detained solely on the basis of the information presented in that anonymous 911 call.
“Because the 911 call was not made part of the record, we only have the officer’s summary of the information relayed to him by central dispatch,” he said. “The question before us, then, is whether this information presented the officer with the reasonable and articulable suspicion necessary to justify a Terry stop.”
Anonymous tips, “when sufficiently corroborated,” Bernstein said, can provide appropriate indicia of reliability to justify a stop.
But in this case, he said, the appeals court “focused almost exclusively on the reliability of the anonymous tip,” and did not explain how the tip supported “an inference of a traffic violation.”
The court held that the anonymous tip did not give rise to a reasonable and articulable suspicion that “defendant was engaged in a traffic violation, much less criminal activity,” the opinion stated.
The officer was able to corroborate information regarding the identification of the vehicle, but that did not mean Pagano was doing anything illegal.
Bernstein said, “Assuming that the tipster here was reliable leads only to the conclusion that defendant ‘appear[ed] to be obnoxious’ and was yelling at her children in a parking lot, as there are no other details in the record that would otherwise corroborate the tipster’s mere assertion that defendant was drunk.”
He added drily, “Certainly, commonsense judgments and inferences about human behavior lead one to conclude that many parents yell at their children, even without the aid of intoxicants.”
Bernstein observed that in Navarette v. California, 572 U.S. 393 (2014), the U.S. Supreme Court said certain driving behaviors can be strongly correlated with drunken driving that, “when reported to the police by anonymous callers, the totality of the circumstances may give rise to a reasonable and articulable suspicion of criminal activity.”
Some of those behaviors include weaving all over the roadway, crossing over the center line or driving in the median. ”
But the Navarette court cautioned that not all traffic violations imply intoxication and that “[u]nconfirmed reports of driving without a seatbelt or slightly over the speed limit, for example, are so tenuously connected to drunk[en] driving that a stop on those grounds alone would be constitutionally suspect,” Bernstein wrote, quoting the high court.
While Navarette, where the tipster claimed another car had run her off the road, might be considered to be a “close case,” “this case is clearly not,” Bernstein wrote.
“[T]here was no report of even a minor traffic infraction in this case, and there is no support for the conclusion that “appearing to be obnoxious” and yelling at one’s children creates a reasonable and articulable suspicion that one is intoxicated,” he said, adding the tip was little more than a conclusory allegation of drunken driving.
The court held that the stop violated the Fourth Amendment, reversed the judgment of the Court of Appeals and remand the case to the circuit court for further proceedings consistent with their ruling.
Justice David F. Viviano, joined by Chief Justice Bridget M. McCormack, wrote a concurrence agreeing with the majority’s application of Navarette here. He suggested that the court consider, in an appropriate future case, Michigan’s historical requirement that an anonymous tip be reliable both in its assertion of illegality and in its tendency to identify a particular person.
Justice Brian K. Zahra, in a different concurrence, said he wrote separately to emphasize that his conclusion in Pagano was driven largely by the limited factual record.
He added that he encourages “citizens to continue to report their suspicions of [drunken] or impaired driving, urge police officers to remain vigilant in protecting our state’s highways, and implore prosecutors to use all available evidence to ensure that an accurate and complete record is developed.”
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