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Media > Newsletters > Law Enforcement Bulletin > June 2012 > State v. Burnap — Fifth District Court of Appeals (Ashland, Coshocton, Delaware, Fairfield, Guernsey

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State v. Burnap — Fifth District Court of Appeals (Ashland, Coshocton, Delaware, Fairfield, Guernsey, Holmes, Knox, Licking, Morgan, Morrow, Muskingum, Perry, Richland, Stark, and Tuscarawas counties)

 Question: Can a peace officer solely rely on a citizen informant’s tip as the reasonable suspicion to stop a possible drunk driver?
Quick answer: No, not when the citizen informant doesn’t specifically describe what he has observed from the “drunk” driver.
Facts: A gas station employee called police to report what he thought was a drunk driver in a white truck. The employee identified himself, provided the truck’s license plate number, and told police what direction it was headed. However, the employee never said if he witnessed the white truck driving erratically. He also didn’t indicate that he had any personal interaction with the driver, defendant Christopher Burnap, to know that Burnap was drunk. A police officer responding to the call spotted the truck at a fast food carryout window. The officer instructed Burnap to pull over into a parking space. He never observed Burnap commit a traffic offense, but he still arrested Burnap for OVI. Burnap filed a motion to suppress based on an unconstitutional stop.
Why this case is important: This court found that, although the citizen’s tip was reliable, it didn’t provide reasonable suspicion that Burnap was driving drunk.An investigative stop does not violate the Fourth Amendment if police have reasonable suspicion that the person stopped is, or is about to be, engaged in criminal activity. And tips from identified citizen informants may provide the required reasonable suspicion because they are weighed with a high level of reliability. However, when the citizen informant only provides neutral details or conclusory statements (“The driver is drunk”) without any specific information that the informant actually observed erratic driving, this does not provide reasonable suspicion. The officer also would have to observe the driver commit a traffic offense or drive recklessly before he would be justified in stopping the suspect. Here, the informant told the dispatch operator only that Burnap was “driving drunk,” not that he saw reckless driving or smelled alcohol on Burnap before Burnap drove away. And the officer failed to indicate if he witnessed any traffic violations or evidence of impaired driving to corroborate that Burnap was “drunk.” Therefore, Burnap’s arrest was based on a suspicionless stop.
Keep in mind: You may rely on citizen informant tips as the reasonable suspicion needed for a criminal investigation, but do so only if the informant has indicated that he actually observed a traffic offense or erratic driving. A tip that gives conclusory statements may still help establish reasonable suspicion, but only if the tip is verified through your own observations.
Click here to read the entire opinion.