State v. Stewart4/1/2004
MEMORANDUM DECISION
Not for Publication
Rule 111, Rules of the Supreme Court
AFFIRMED
In the late evening of July 16, 2002, Tucson Police Officer Scott Wakefield stopped the car appellant Glenn Stewart was driving after a woman shouted to Wakefield that Stewart was following her and would not "leave her alone" as she walked through a park. He saw indications that Stewart had been driving under the influence of alcohol (DUI) and, after conducting an investigation, arrested him for various DUI offenses. Stewart moved to suppress all evidence Wakefield had obtained during the investigation, arguing Wakefield had lacked reasonable suspicion to stop him. The trial court denied the motion. A jury found Stewart guilty of the DUI offenses, and Stewart appealed, asserting as error the denial of his motion to suppress. We affirm.
In reviewing a trial court's denial of a motion to suppress evidence, we view the evidence presented at the suppression hearing in the light most favorable to upholding the court's ruling. State v. Wyman, 197 Ariz. 10, 2, 3 P.3d 392, 394 (App. 2000). Wakefield testified that he had been patrolling near the park about 11:20 p.m. when a woman carrying a small child had yelled at him that a vehicle had been following her. Wakefield noticed she had appeared "concerned." She told him an occupant of a nearby pickup truck in an otherwise empty parking lot would not "leave her alone." Wakefield testified that he had spoken with the woman from his patrol vehicle while in plain view of the occupant of the truck. As Wakefield pulled into the parking lot, the truck left the lot. Wakefield followed the truck and apparently stopped it a short distance later. After he arrested Stewart, Wakefield returned to the park and spoke with the woman.
The Fourth Amendment to the United States Constitution protects persons against "unreasonable searches and seizures," including an officer's brief investigatory stop that falls short of an arrest. Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct 1868, 1877, 20 L. Ed. 2d 889, 903 (1968); see State v. Livingston, 206 Ariz. 145, 9, 75 P.3d 1103, 1105 (App. 2003). An officer may stop an individual for questioning if, in light of the totality of the circumstances, the officer has reasonable, articulable suspicion that the individual is or has been engaged in criminal activity. Terry, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906; Wyman, 197 Ariz. 10, 6, 3 P.3d at 395. This determination is a mixed question of law and fact subject to our de novo review. State v. Gomez, 198 Ariz. 61, 8, 6 P.3d 765, 766 (App. 2000). In conducting that review, we defer to the trial court's factual findings if they are supported by reasonable evidence. See Wyman, 197 Ariz. 10, 5, 3 P.3d at 395.
When an officer's asserted basis for an investigatory stop arises largely from the report of a single witness, the reliability of that witness becomes a relevant factor in assessing whether the officer possessed reasonable cause to make the stop. State v. Altieri, 191 Ariz. 1, 14, 951 P.2d 866, 869 (1997) (anonymous tip insufficient basis for Terry stop unless tip contains specialized knowledge that corroborates tipster's reliability); State v. Bullington, 165 Ariz. 11, 13-14, 795 P.2d 1294, 1296-97 (App. 1990) (same). Citing this body of case law, Stewart likens the witness in this case to an anonymous informant -- a source of information that can support reasonable cause only if the information provided has special indicia of reliability. Id. But, here, the witness was not an "anonymous informant" but a concerned citizen who made no effort to conceal her identity. Unlike the situation presented by an
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