DUI Appeal - North Dakota Says Informant 911 Call Unreliable

In Gabel v. North Dakota, --- N.W.2d ----, 2011 WL 2652253 (N.D.) a dispatcher at the Stutsman County Sheriff's Office sent a radio message to Officer Elizabeth Kapp stating that Chad Steele had reported a vehicle traveling on Highway 281 south of Jamestown that would speed up and slow down, not allowing Steele to pass. Steele also reported the license plate of the vehicle was “JAYBIRD.” Steele continued to follow the driver relaying his location to the dispatcher on his cell phone. Steele's information was relayed from the dispatcher to Officer Kapp. The record does not reflect how many times Steele attempted to pass, what the road conditions were, how long Steele had been following Gabel, or at what speed Steele was attempting to pass Gabel's vehicle.

Officer Kapp passed Steele's vehicle and located Gabel's vehicle. Officer Kapp measured the speed of Gabel's vehicle at 47 miles per hour in a 65 mile per hour zone. There was no posted minimum speed limit in the area. After determining the vehicle's speed, Officer Kapp stopped Gabel's vehicle based on the information she received from the dispatcher. Officer Kapp did not report independently viewing a traffic violation. Her testimony indicates she did not observe erratic or suspicious driving. Officer Kapp testified she had not noticed Gabel cross the center line, drive on the shoulder, or commit any moving violation. Officer Kapp stated the stop was based on Steele's report that Gabel had previously sped up in his own lane, making it difficult for Steele to pass.

Officer Kapp testified she knew the informant in her “professional capacity”; she believed he had a criminal record.

The North Dakota opinion commented on the informant's reliability as follows:

"We have allowed tips from known criminal informants to justify a stop provided the tip is otherwise reliable. State v. Anderson, 2006 ND 44, ¶¶ 13, 17, 710 N.W.2d 392. “As a general rule, the lesser the quality or reliability of the tip, the greater the quantity of information required to raise a reasonable suspicion.” Id. at ¶ 13 (quoting Miller, 510 N.W.2d at 640). “In evaluating the factual basis for an investigatory stop, we must consider the totality of the circumstances, including the quantity, or content, and quality, or degree of reliability, of the officer's information.” Id. Here, the content and quality of the officer's information when she made the stop was insufficient to justify a stop of Gabel's vehicle. The officer was only able to corroborate the location of the vehicle and its license plate but unable to corroborate any illegal activity or other suspicious activity that would confirm the reliability of Steele's tip. There is nothing from the record in this case that ensures the informant was reliable. Officer Kapp did not testify about the informant's reliability. Given her testimony, there is nothing in this record to suggest Officer Kapp regarded Steele as other than a member of the “criminal milieu.” Members of the “criminal milieu” must have their reliability established. Id. at ¶ 15. However, we need not determine the reliability of Steele, because, even assuming he was a reliable informant, his tip of a vehicle speeding up and slowing down, not allowing a car to pass is insufficient to support a traffic stop absent corroboration of otherwise illegal activity or suspicious conduct. Driving on a highway slightly below the speed limit is not sufficiently suspicious to support a traffic stop."

In concluding that the stop was illegal, the North Dakota Supreme Court stated:

"Officer Kapp testified she did not observe a traffic violation. The sole reason Officer Kapp gave for justifying the stop was based on Steele's report that Gabel had previously sped up in his own lane, making it difficult for Steele to pass. Officer Kapp testified that this unverified report provided her with sufficient information that Gabel was an impediment to traffic. Officer Kapp did not independently observe or corroborate Gabel speeding up and slowing down nor did she view Gabel impede the ability of others to pass his vehicle. Based upon the information conveyed, there is only a possibility that a violation had occurred. This is the functional equivalent of the “possible reckless driver or drunk driver” held to be insufficient to establish a reasonable and articulable suspicion in Anderson, 2005 ND 97, ¶ 21, 696 N.W.2d 918.

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