State v. Roybal

2010 UT 34
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, 	No. 20080776
Plaintiff and Petitioner,
v.
F I L E D
Jose Baltarcar Roybal,
Defendant and Respondent. 	May 14, 2010
---
Second District, Ogden Dep’t
The Honorable Parley R. Baldwin
No. 051904214
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Ryan D. Tenney,
Asst. Att’y Gen., Salt Lake City, for petitioner
Randall W. Richards, Ogden, for respondent
Stewart P. Ralphs, Salt Lake City, for Amicus
---
On Certiorari to the Utah Court of Appeals
WILKINS, Justice:
INTRODUCTION
¶1 	Defendant Jose Baltarcar Roybal was convicted of one
count of driving under the influence of alcohol. 	Before trial,
he moved to suppress the admission of the evidence obtained from
a traffic stop, arguing that the traffic stop constituted an
unreasonable search and seizure in violation of his rights under
the Fourth Amendment to the United States Constitution, as well
as article I, section 14 of the Utah Constitution. 	The district
court denied his motion to suppress, but the court of appeals
reversed. 	We granted certiorari on one issue--whether the
majority of the panel of the court of appeals erred in reversing
the district court’s determination that there was a reasonable,
articulable suspicion to stop Roybal. 	We reverse.

No. 20080776 	2
BACKGROUND
¶2 	“‘The legal analysis of search and seizure cases is
highly fact dependent.’” 	State v. Alverez, 2006 UT 61, ¶ 2, 147
P.3d 425 (quoting State v. Brake, 2004 UT 95, ¶ 2, 103 P.3d 699).
“Therefore, we give a detailed recitation of the facts.” 	Id.
¶3 	On August 8, 2005, a police dispatcher received a 911
call from Jose Baltarcar Roybal’s live-in girlfriend, Annalee
McCaine, requesting police assistance in a dispute between the
two. 	McCaine was upset and stated that she wanted the person
living with her out of the house. 	The dispatcher asked her
whether she had been assaulted, to which McCaine responded, “Just
about, yes.” 	Later, however, the dispatcher clarified, “And he
hasn’t assaulted you?” to which McCaine replied, “No.” 	When the
dispatcher asked if Roybal had been drinking, McCaine replied,
“We both have. 	And you might have to take both of [us].” 	She
said that she did not care, she “just want[ed] him out.” 	After
the dispatcher told McCaine to “take a couple of deep breaths,”
McCaine identified Roybal as her roommate and gave the dispatcher
Roybal’s first and last names, age, and ethnicity. 	Earlier,
McCaine gave the dispatcher her own first and last names, her
phone number, and her address. 	McCaine also reported that Roybal
was “out putting stuff in his van” and was “leaving,” and gave a
description of the van and a partial license plate number. 	After
Roybal pulled out of the driveway, McCaine told the dispatcher
which road Roybal was on and the direction that he was heading.
The district court later observed, after listening to a recording
of the call, that McCaine sounded intoxicated.
¶4 	Based on the call, the 911 dispatcher sent out a
bulletin requesting police officer assistance. 	Sergeant Chad
Ledford responded. 	The dispatcher informed Ledford that a
“[m]ale and a female [were] verbally fighting, no weapons, both
parties are very intoxicated.” 	The dispatcher also identified
Roybal, gave the make and color of his vehicle and his direction
of travel, and stated that he was “1055,” police code meaning
that a driver may be intoxicated.
¶5 	While traveling eastbound on 30th Street toward
McCaine’s residence, Sergeant Ledford saw Roybal’s van
approaching on an adjoining street, Brinker Avenue. 	Although
there was no oncoming traffic, Roybal sat at the stop sign for a
few seconds before turning right onto 30th. 	Sergeant Ledford
testified that as Roybal turned the corner and approached
Sergeant Ledford, he drove “really, really slow.” 	The speed
limit on 30th was 35 miles per hour (mph), but Sergeant Ledford
estimated that Roybal was driving between 5 and 25 mph. 	Sergeant

1 Roybal was also charged with one count of violating a no
alcohol conditional license, a class B misdemeanor, in violation
of Utah Code section 53-3-232 (2007). 	However, the district
(continued...)
3 	No. 20080776
Ledford was stopped at the stop light at the intersection of 30th
and Harrison Boulevard. 	As he watched Roybal approach him from
the rear, it appeared to Sergeant Ledford that Roybal was hoping
the red light would change and Sergeant Ledford would go through
the intersection before Roybal arrived. 	However, the light did
not change, and Roybal pulled in next to Sergeant Ledford at the
light, stopped for a few seconds, then made another right turn
onto Harrison Boulevard. 	Sergeant Ledford followed. 	Roybal
continued to drive below the speed limit and made another right-
hand turn onto Patterson Avenue. 	It appeared to Sergeant Ledford
that Roybal was trying to avoid him.
¶6 	Based on his observations, Sergeant Ledford suspected
that Roybal was drunk. 	Sergeant Ledford testified that through
his training and experience, he has come to recognize slow
driving as a sign of intoxication because when someone has been
drinking, their fine motor skills and thinking are impaired,
causing them to drive more slowly. 	Sergeant Ledford asserted
that in an effort to avoid police, impaired drivers will also
slow down and stay behind police vehicles. 	Sergeant Ledford
testified that Roybal had engaged in these exact behaviors. 	He
also acknosledged that Roybal had not violated any traffic laws.
¶7 	Sergeant Ledford also testified that he suspected
Roybal of committing domestic violence. 	He knew from the 911
dispatch bulletin that there had been a domestic dispute that had
prompted a 911 call. 	Department policy thus required him to
interview both the victim and the suspect. 	In addition, Sergeant
Ledford testified that suspects will often leave the house
initially but circle back and return to the scene if the police
do not arrive. 	Because Roybal was driving a slow, circuitous
route in the vicinity of McCaine’s house, Sergeant Ledford’s
concern increased.
¶8 	Sergeant Ledford pulled Roybal over approximately
twelve blocks from McCaine’s home. 	Because he could smell
alcohol as he approached the car, and because Roybal failed a
number of field-sobriety tests, Sergeant Ledford arrested Roybal
for driving under the influence of alcohol (DUI).
¶9 	The State subsequently charged Roybal with one count of
driving under the influence of alcohol, a third degree felony, in
violation of Utah Code section 41-6a-502 (2005). 1 	Roybal moved

1(...continued)
court later dismissed this charge.
No. 20080776 	4
to suppress all evidence obtained as a result of his traffic
stop, arguing that the stop was unsupported by a reasonable
suspicion that he had committed a crime. 	However, the district
court denied Roybal’s motion to suppress, concluding that the
stop was justified by the 911 dispatcher’s reasonable suspicion
that Roybal was driving under the influence of alcohol. 	The
court did not specifically address whether Sergeant Ledford had
an independent reasonable suspicion that Roybal was driving while
intoxicated based on his own observations or a reasonable
suspicion that Roybal had committed domestic violence. 	Following
the court’s ruling, Roybal entered a conditional guilty plea to
one count of driving under the influence, a third degree felony,
preserving his right to appeal. 	Roybal thereafter timely
appealed to the court of appeals following sentencing.
¶10 	A divided panel of the court of appeals reversed.
State v. Roybal, 2008 UT App 286, ¶ 1, 191 P.3d 822. 	The court
concluded that the stop was not justified by reasonable suspicion
for four reasons. 	First, because of McCaine’s personal
relationship with Roybal and the lack of detail provided in her
call, the court considered the information relayed in her 911
call less reliable. 	Id. ¶¶ 11-13. 	Second, the court found that
the 911 dispatcher lacked reasonable suspicion that Roybal was
driving while intoxicated because there was no information
regarding “the quantity or type of alcohol he consumed[,] how
long he had been drinking,” or Roybal’s weight. 	Id. ¶¶ 14-15.
Third, the court concluded that Sergeant Ledford’s own
observations were insufficient to support a reasonable suspicion
because where Roybal had not actually violated any traffic laws,
his conduct was not “suggestive of criminality.” 	Id. ¶ 16.
Finally, the court noted that Sergeant Ledford lacked a
reasonable suspicion of domestic violence because the call
indicated merely a “nonphysical confrontation” insufficient to
justify a stop. 	Id. ¶ 17 n.6.
¶11 	Judge Thorne dissented, concluding that based on the
call, the 911 dispatcher did have a reasonable suspicion of DUI.
Judge Thorne reasoned that McCaine’s relationship to Roybal was
insufficient to render her call unreliable, and that the details
she provided, coupled with her apparently intoxicated state, were
sufficient to create a reasonable suspicion of DUI. 	Id. ¶¶ 19-22
(Thorne, J., dissenting). 	According to Judge Thorne, Sergeant
Ledford was therefore justified in making the stop.

2 The State argues that the court of appeals applied an
impermissible “divide and conquer” analysis in its consideration
of the facts. 	We have said that “courts must look to the
totality of the circumstances to determine whether, taken
together, the facts warranted further investigation by the police
officer.” 	State v. Alverez, 2006 UT 61, ¶ 14, 147 P.3d 425
(internal quotation marks omitted). 	However, when determining
(continued...)
5 	No. 20080776
¶12 	Following issuance of the court of appeals’ ruling, the
State petitioned for certiorari review, which we granted. 	The
Utah Domestic Violence Council, joined by the Utah Coalition
Against Sexual Assault, submitted an amicus brief. 	We have
jurisdiction pursuant to Utah Code section 78A-3-102(3)(a)
(2008).
STANDARD OF REVIEW
¶13 	“On certiorari, we review the decision of the court of
appeals and not that of the district court.” 	State v. Alverez,
2006 UT 61, ¶ 8, 147 P.3d 425 (internal quotation marks omitted).
Our review is for correctness, granting no deference to the court
of appeals’ application of law to the underlying factual
findings. 	Id.
ANALYSIS
¶14 	The sole issue before us is whether there was a
reasonable, articulable suspicion sufficient to support Roybal’s
traffic stop. 	“The Fourth Amendment prohibits ‘unreasonable
searches and seizures’ by the Government, and its protections
extend to brief investigatory stops of persons or vehicles that
fall short of traditional arrest.” 	United States v. Arvizu, 534
U.S. 266, 273 (2002) (quoting U.S. Const. amend. IV). 	“However,
it is settled law that ‘a police officer may detain and question
an individual when the officer has reasonable, articulable
suspicion that the person has been, is, or is about to be engaged
in criminal activity.’” 	State v. Markland, 2005 UT 26, ¶ 10, 112
P.3d 507 (quoting State v. Chapman, 921 P.2d 446, 450 (Utah
1995)). 	“The specific and articulable facts required to support
reasonable suspicion are most frequently based on an
investigating officer’s own observations and inferences . . . .”
State v. Case, 884 P.2d 1274, 1276-77 (Utah Ct. App. 1994).
However, “under certain circumstances the officer may rely on
other sources of information” such as “bulletins[] or flyers
received from other law enforcement sources,” so long as “‘the
police who issued the flyer or bulletin possessed a reasonable
suspicion justifying a stop.’” 2 	Id. at 1277 (quoting United

2(...continued)
whether a 911 dispatch report or other “flyer or bulletin” was
sufficient to support a stop, a court may look at the report as
an independent basis for a reasonable suspicion. 	If it is not
independently sufficient, then the officer’s own observations may
bolster the factual scenario to reach a reasonable suspicion. 	In
that instance, the dispatch report and the officer’s own
observations should not be considered in isolation. 	However,
because we determine in this case that the 911 dispatcher had
sufficient facts to form a reasonable suspicion, the report alone
was sufficient to justify Sergeant Ledford’s stop, provided his
own observations were not inconsistent. 	Therefore, we need not
address the State’s remaining argument that the court of appeals’
method of analysis was incorrect.
No. 20080776 	6
States v. Hensley, 469 U.S. 221, 233 (1985)). 	As the court of
appeals correctly noted, the dispatch report in this case
qualifies as a “flyer,” State v. Roybal, 2008 UT App 286, ¶ 9
n.5, 191 P.3d 822, which term “has been taken to mean any
information intended to prompt investigation that is transmitted
through police channels, regardless of method.” 	Id. at 1277 n.4.
¶15 	In stopping Roybal’s vehicle, Sergeant Ledford relied
primarily on the 911 dispatch report. 	This was appropriate so
long as the 911 dispatcher “‘possessed a reasonable suspicion
justifying a stop.’” 	Id. at 1277 (quoting Hensley, 469 U.S. at
233). 	However, the court of appeals determined that the 911 call
from Roybal’s girlfriend was not sufficient to provide the
dispatcher with a reasonable, articulable suspicion that Roybal
was driving under the influence of alcohol. 	The court reached
this conclusion primarily by considering the call to be of
questionable reliability. 	Relying on Salt Lake City v. Bench,
2008 UT App 30, 177 P.3d 655, the court stated, “When a citizen-
informant has some kind of personal involvement with the suspect,
the information conveyed is considered less reliable because
there is a possibility that the citizen is making allegations out
of anger, out of jealousy, or for other personal reasons.” 	State
v. Roybal, 2008 UT App 286, ¶ 11. 	This statement is incorrect,
and to the extent that Bench suggests otherwise, we now clarify.
¶16 	As stated in Bench, “Because a citizen-informant
volunteer[s] information out of concern for the community and not
for personal benefit, and because the informant is exposed to
possible criminal and civil prosecution if the report is false, a
tip from an identified citizen-informant is generally considered
highly reliable.” 	2008 UT App 30, ¶ 15 (alteration in original)
(citations and internal quotation marks omitted). 	See also State
v. Norris, 2001 UT 104, ¶ 18, 48 P.3d 872 (“[R]eliability and

7 	No. 20080776
veracity are generally assumed when the informant is a citizen
who receives nothing from the police in exchange for the
information.” (internal quotation marks omitted)); State v.
Keener, 2008 UT App 288, ¶ 10, 191 P.3d 835 (“[C]itizen
informants are high on the reliability scale and are entitled to
a presumption of veracity.”) . . . .; State v. Comer, 2002 UT App
219, ¶ 22, 51 P.3d 55 (“[N]ot all tips are of equal value in
establishing reasonable suspicion[,] . . . 	[b]ut an identified
citizen informant is high on the reliability scale. 	The ordinary
citizen-informant needs no independent proof of reliability or
veracity. 	We simply assume veracity when a citizen-informant
provides information as a victim or witness of crime.”
(alterations in original) (internal citations and quotation marks
omitted)). 	In contrast, informants are considered less reliable
when they are anonymous, Florida v. J.L., 529 U.S. 266, 270
(2000), or when they receive their information through criminal
activity or are motivated by pecuniary gain. 	State v. McArthur,
2000 UT App 23, ¶ 31, 996 P.2d 555.
¶17 	In Bench, despite recognizing the presumption of
reliability for an identified citizen-informant, the court of
appeals went on to say that “there are circumstances where a
citizen-informant’s veracity may properly be called into
question.” 	2008 UT App 30, ¶ 15. 	To illustrate, the court cited
several cases where personal involvement between the informant
and the suspect led to a possibility of bias and fabricated
allegations. 	Id. 	Indeed, some courts have treated tips from
personally involved family or friends as of questionable
reliability. 	See, e.g., United States v. Phillips, 727 F.2d 392,
393-94, 398 (5th Cir. 1984) (noting that the informant’s recent
quarrel with and estrangement from her husband, the defendant,
“may have cast doubt on her trustworthiness”); State v. Morris,
444 So. 2d 1200, 1204 (La. 1984) (discussing veracity of
informant who, involved in a custody dispute with his wife, may
have wanted to give “a false report to embarrass or
inconvenience” her); State v. Lindquist, 205 N.W.2d 333, 335
(Minn. 1973) (stating that a “prior relationship with a suspect
might give an informer motive to lie or exaggerate”); State v.
Williams, 193 S.W.3d 502, 507-08 (Tenn. 2006) (declining to
presume reliability of tip when informant was defendant’s
girlfriend, and they had recently quarreled); State v. White, 856
P.2d 656, 662 (Utah Ct. App. 1993) (recognizing that ex-wife’s
allegations that defendant was high on cocaine and had been
involved in a domestic disturbance earlier in the day were of
“questionable reliability”).
¶18 	However, many courts have also considered tips from
family or friends to be of greater reliability because a family
member or close friend often has a greater opportunity to observe

No. 20080776 	8
the criminal behavior of the suspect and may have an incentive
not to report the suspect due to family loyalty. 	See, e.g.,
Illinois v. McArthur, 531 U.S. 326, 331-32 (2001) (finding
probable cause where wife’s tip was based on personal observation
of criminal activity); United States v. Smith, 457 F. Supp. 2d
802, 805 (E.D. Mich. 2006) (relying on tip from ex-girlfriend who
claimed to have a close personal relationship with defendant);
State v. Cowdin, 959 P.2d 929, 933 (Kan. Ct. App. 1998)
(presuming reliability of tip from spouse living at the same
residence); State v. Van Ruiten, 760 P.2d 1302, 1305 (N.M. Ct.
App. 1988) (“[T]he familial relationship of the [informant] no
doubt lent credibility . . . .”); People v. Butchino, 544
N.Y.S.2d 64, 65-66 (N.Y. App. Div. 1989) (upholding wife’s
affidavit because she “clearly [had] personal knowledge of the
facts asserted”); State v. Nelson, 691 N.W.2d 218, 227 (N.D.
2005) (stating that other courts have presumed reliability when
an informant is a spouse living at the residence to be searched);
State v. Boushee, 284 N.W.2d 423, 430 (N.D. 1979) (deeming a
wife’s affidavit of greater reliability because it inculpated her
spouse); State v. Deluna, 2001 UT App 401, ¶ 21, 40 P.3d 1136
(granting tip greater reliability because informants relied on
personal observation and risked implicating an involved family
member). 	Similarly, several courts have specifically rejected
the argument that family or friend informants are presumed less
reliable, and instead have openly relied on such tips. 	See,
e.g., United States v. Hodges, 705 F.2d 106, 108 (4th Cir. 1983)
(concluding that even if the informant, a former live-in
girlfriend, “harbored ill will toward [the defendant], her
credibility [could not] be rejected on [that] ground”); State v.
Olson, 66 P.3d 297, 303 (Mont. 2003) (determining that evidence
of strained relationship between informant and defendant, his
estranged wife, was insufficient to overcome presumption of
reliability); State v. Amelio, 962 A.2d 498, 502 (N.J. 2008)
(relying on tip from daughter despite her recent dispute with the
defendant); State v. Bradley, 656 N.E.2d 721, 722, 724 (Ohio Ct.
App. 1995) (relying on girlfriend’s tip despite earlier
altercation with the defendant).
¶19 	After reviewing the case law, as well as the arguments
in the case before us, we find that the fact of personal
involvement between an informant and a suspect can be construed
to have conflicting effects. 	As such, we find it inappropriate
to attach a presumption of either greater or lesser reliability
to a tip from a personally involved informant. 	We therefore hold
that the fact of personal involvement with the suspect carries no
presumption one way or the other; a personally involved informant
is not presumed to have any lesser or greater reliability than

3 The State also argues that we should consider McCaine’s
call presumptively reliable because it was a 911 emergency call.
This issue has not yet been addressed in Utah, and we need not
decide it in this case.
9 	No. 20080776
any other identified informant. 3 	Indeed, an identified citizen-
informant is presumed reliable, and personal involvement of the
informant with the suspect neither weakens, nor strengthens, that
presumption. 	Instead, after recognizing the initial presumption,
as Judge Thorne stated in his dissent below, “Courts should
evaluate the specific and articulable facts required to support
reasonable suspicion in their totality, rather than looking at
each fact in isolation.” 	Roybal, 2008 UT App 286, ¶ 19 (Thorne,
J., dissenting) (citing State v. Worwood, 2007 UT 47, ¶ 23, 164
P.3d 397); see also Illinois v. Gates, 462 U.S. 213, 230-31
(1983) (adopting a “totality-of-the-circumstances” approach to
determining informant reliability in place of a rigid, separate-
elements test).
¶20 	Looking to the totality of the circumstances in the
instant case, we believe the 911 call was sufficient to provide
the dispatcher with reasonable suspicion that Roybal was driving
under the influence. 	Irrespective of the fact that McCaine was
Roybal’s live-in girlfriend, she was an identified citizen-
informant who is presumptively reliable. 	Her personal
involvement with Roybal, on its face, neither weakens, nor
strengthens, that presumption; we must consider the unique facts
of this case. 	She gave her full name and address, thereby fully
exposing herself to liability for fraudulent allegations.
Further, she did not call with the intention of reporting
Roybal’s drunk driving but to request help removing him from her
home. 	Her statement that Roybal had been drinking was made off-
handedly and with the acknowledgment that she, too, had been
drinking, which indicates that her remark was simply a statement
of fact and lacked an ulterior motive. 	In addition, she provided
specific details of her first-hand observations. 	McCaine
reported to the dispatcher that she had been with Roybal, that
they had been drinking together, and that he had just left. 	She
also described his vehicle with partial license plate number, the
area he was in, and the direction he was heading. 	Coupled with
the fact that McCaine was noticeably intoxicated on the phone,
the dispatcher could make the reasonable inference that Roybal
was similarly intoxicated, and was driving. 	Unlike the court of
appeals, we do not believe that it was necessary for McCaine to
report how much or how long Roybal had been drinking, the type of
drink consumed, or his weight. 	Undoubtedly these details would
have strengthened the report. 	However, because McCaine said
Roybal had been drinking with her, and she was clearly

4 In addition, the State contends that Sergeant Ledford was
justified in making the stop based on the dispatcher’s reasonable
suspicion that Roybal had committed domestic violence. 	Having
determined that the dispatcher possessed a reasonable suspicion
that Roybal was driving under the influence of alcohol, we need
not make that additional determination. 	However, we note that to
the degree that footnote six of the court of appeals’ opinion
suggests that only a physical confrontation would justify a
police stop for domestic violence purposes, that is incorrect.
Circumstances exist where actions amounting to less than a
physical encounter would be sufficient to form the basis of a
reasonable suspicion that a defendant had committed domestic
violence.
No. 20080776 	10
intoxicated, it was reasonable for the dispatcher to infer that
Roybal was likewise intoxicated. 	Thus, the details provided in
the call, together with their reasonable inferences, given from a
reliable, identified citizen-informant, were sufficient for the
dispatcher to form a reasonable suspicion that Roybal was driving
while intoxicated. 4
¶21 	Once a reasonable suspicion is reached by the
originator of the information–-in this case, the dispatcher–-the
responding police officer is entitled to rely on the information
unless the officer’s personal observations or interaction with
the suspect present indications to the contrary. 	That is to say,
if the suspect’s actions are not inconsistent with the reasonable
suspicion, the police officer may pursue the suspect and stop him
or her immediately. 	See Kaysville City v. Mulcahy, 943 P.2d 231,
234 (Utah Ct. App. 1997) (“An officer receiving a dispatched
message may take it at face value and act on it forthwith.”
(internal quotation marks omitted)).
¶22 	Applying that standard to this case, we must determine
whether Roybal’s actions presented Sergeant Ledford with evidence
contradicting the dispatcher’s reasonable suspicion. 	Sergeant
Ledford observed Roybal driving slowly and carefully and in a
manner that appeared as though he were trying to avoid the police
car. 	Although this behavior in and of itself is not conclusive,
it does not disprove or contradict the reasonable suspicion that
Roybal was driving under the influence, and therefore did not
diminish Sergeant Ledford’s ability to rely on the dispatcher’s
report and to pursue and detain Roybal.
CONCLUSION
¶23 	We conclude that the evidence of Roybal’s intoxication
observed by Sergeant Ledford during the traffic stop was properly

11 	No. 20080776
admitted against Roybal. 	At the time of the stop, Sergeant
Ledford was entitled to rely upon the 911 dispatch report. 	The
911 call by Roybal’s girlfriend was of adequate reliability and
detail to give the dispatcher a reasonable suspicion of Roybal’s
intoxication while driving, and Sergeant Ledford’s own
observations of Roybal’s conduct did not contradict that
suspicion. 	Thus, Sergeant Ledford was justified in stopping and
questioning Roybal.
¶24 	We therefore reverse the court of appeals and affirm
the conviction by the district.
---
¶25 	Chief Justice Durham, Associate Chief Justice Durrant,
and Justice Parrish concur in Justice Wilkins’ opinion.
---
NEHRING, Justice, dissenting:
¶26 	I respectfully dissent because I believe that under the
totality of the circumstances, Sergeant Ledford did not have
reasonable suspicion to stop Mr. Roybal.
¶27 	In order to make a lawful traffic stop, an officer must
have reasonable articulable suspicion that the subject of the
stop is involved in criminal activity. 	See State v. Kohl, 2000
UT 35, ¶ 11, 999 P.2d 7. 	The majority correctly notes that while
the articulable facts supporting reasonable suspicion are “most
frequently based on an investigating officer’s own observations
and inferences,” in some circumstances, an officer may rely on
other sources of information to make a stop, including 911
dispatch reports based on informant tips. 	See supra ¶ 14.
¶28 	However, the fact that an officer receives information
from police dispatch does not necessarily end the reasonable
suspicion inquiry. 	Indeed, where “the investigation end[s] in
arrest and the stop’s legality [is] attacked, the State must–-
albeit after the fact–-establish that adequate articulable
suspicion initially spurred the dispatch.” 	Kaysville City v.
Mulcahy, 943 P.2d 231, 235 (Utah Ct. App. 1997) (internal
quotation marks omitted); see also Salt Lake City v. Bench, 2008
UT App 30, ¶ 14, 177 P.3d 655 (“To establish that adequate
articulable suspicion spurred the dispatcher’s broadcast, the
prosecution must show that [the informant’s] tip was reliable.”).
¶29 	We assess whether the dispatcher had reasonable
suspicion based on the content of the information provided by the

No. 20080776 	12
informant and its degree of reliability. 	See id. ¶ 7 (citing
Alabama v. White, 496 U.S. 325, 330 (1990)). 	“Both factors--
quantity and quality–-are considered in the ‘totality of the
circumstances’ analysis.” 	State v. Roybal, 2008 UT App 286,
¶ 10, 191 P.3d 822 (quoting White, 496 U.S. at 330). 	Although
the reliability of a tip is based on the totality of the
circumstances, we have traditionally focused on three
considerations: 	(1) the type of informant involved, (2) how much
detail the informant provided about the observed criminal
activity, and (3) any corroboration obtained through the police
officer’s personal observations. 	See id. ¶ 11; see also Mulcahy,
943 P.2d at 235-36.
¶30 	As to the first consideration, I agree with the
majority’s statement that although Ms. McCaine--the supplier of
the information to the dispatcher--had some personal involvement
in this case as Mr. Roybal’s live-in girlfriend, she is still an
identified citizen-informant and is thus entitled to a
presumption of reliability. 	See supra ¶ 19.
¶31 	The majority’s analysis of the second and third
considerations is more troubling. 	The record indicates that Ms.
McCaine called 911, upset after a verbal fight with her live-in
boyfriend. 	When the dispatcher asked Ms. McCaine to tell her
“exactly what [was] happening,” Ms. McCaine replied, “[t]he
person that’s been living with me is an a--hole, and I want him
the f--- out of here.” 	The dispatcher asked Ms. McCaine if she
had been assaulted, to which Ms. McCaine responded, “just about,
yes.” 	However, a few moments later Ms. McCaine contradicted
herself when she confirmed that no physical violence had
occurred. 	The dispatcher then asked if her boyfriend had been
drinking. 	Ms. McCaine responded, “We both have.” 	When the
dispatcher asked Ms. McCaine where her boyfriend currently was,
Ms. McCaine replied, “[h]e’s out putting stuff in his van . . .
He’s going to be gone before you get here.” 	The dispatcher asked
Ms. McCaine what kind of car her boyfriend drove. 	Ms. McCaine
told the dispatcher that he drove a white van and gave the
dispatcher a partial license plate number. 	When asked where her
boyfriend was going, Ms. McCaine stated, “I have no idea. 	He’s
heading south.”
¶32 	From this communication, the majority concludes that
the dispatcher had reasonable suspicion that Mr. Roybal was
driving under the influence. 	See supra ¶ 20. 	The majority
reasons that since Ms. McCaine admitted to drinking with Mr.
Roybal and “was noticeably intoxicated on the phone,” “the
dispatcher could make the reasonable inference that [Mr.] Roybal
was similarly intoxicated, and now driving.” 	See id.

13 	No. 20080776
¶33 	I am troubled by the inference made by the majority.
When the information Ms. McCaine gave to the dispatcher is
examined in its totality, it reveals that Ms. McCaine provided
little detail about the alleged criminal activity. 	See State v.
Case, 884 P.2d 1274, 1279 (Utah Ct. App. 1994) (stating that
corroborating details based on a person’s physical description
“is not corroboration of criminal activity”). 	The information
from the dispatcher established only that Mr. Roybal was in a
white vehicle and that he had something to drink.
¶34 	People drinking together can individually consume
various amounts of alcohol, or no alcohol at all, and it is
erroneous to assume that the mere fact that people are together
means they have had the same amount to drink. 	As the court of
appeals stated below, “the statement that a person has been
drinking, by itself–-with no other facts regarding the amount of
alcohol consumed, the type of beverage consumed, or the period of
time over which the person consumed the alcohol . . . does not
provide an adequate basis on which to rationally infer that the
person has an alcohol level beyond the legally proscribed limit
or that the person consumed alcohol to the extent that he or she
could not safely drive a vehicle.” 	Roybal, 2008 UT App 286, ¶ 15
(citations omitted).
¶35 	Sergeant Ledford’s personal observations further negate
the “inference” that Mr. Roybal was driving under the influence.
In response to the dispatcher’s call, Sergeant Ledford located a
white van not far from Ms. McCaine’s house. 	Instead of stopping
the van immediately, Sergeant Ledford followed Mr. Roybal as he
drove. 	He observed no traffic violations. 	Instead, he observed
that Mr. Roybal was traveling “slowly and carefully.” 	Sergeant
Ledford testified that based on his experience as an officer,
this uniformly hyper-competent driving was an effort to avoid his
police car.
¶36 	According to the majority, this observation “does not
disprove or contradict . . . that [Mr.] Roybal was driving under
the influence.” 	Supra ¶ 22. 	I disagree.
¶37 	Our court of appeals has soundly rejected the
implication that the State can impute unlawful activity to hyper-
cautious driving. 	In Bench, the court of appeals noted:
Safe, ultra-cautious driving, however, even
if motivated by a desire to avoid police
contact, does not, without more, create
reasonable suspicion sufficient to justify a
traffic stop. 	Simply put, a desire to avoid
an encounter with police does not indicate

No. 20080776 	14
that a person is driving while intoxicated or
is otherwise engaged in criminal activity.
2008 UT App 30, ¶ 12. 	I would bestow the imprimatur of our court
on this analysis from Bench. 	Although Sergeant Ledford had some
information that Mr. Roybal may have been driving under the
influence, the quantity and detail of this information was
sparse, and its reliability was put into question when Sergeant
Ledford’s personal observations were inconsistent with the
information. 	Thus, based on the totality of the circumstances in
this case, I believe that Sergeant Ledford lacked the reasonable
suspicion he needed to stop Mr. Roybal for driving under the
influence.
---