shelton's criminal conviction for the offense of driving under the influence of alcohol the only issue in this case is whether a report from the ninety one dollars caller that a driver is asleep at an intersection for an unknown short period of time before opinion agree that the us supreme court decision and never at control here however this course opinion improperly expands the narrow holding of navarette in never at the police stop the defendant's vehicle based on a supreme court stated in its opinion that never it was a close the court held the nine when call in that case was enough because the caller alleged a specific and dangerous result of the driver's time that running another vehicle off the road this case lacks an allegation of a specific and being jurist results of the defendant's hands up which was president never in its january th opinion determining the nie one call here provides a reasonable suspicion this court added speculation about harms that were not actually present in the state in this case the caller did not allege a dangerous result of the defendant turns up all record any dangerous conditions or results of the defendant being asleep at the intersection the caller did not report that event it was causing the struction that she had to maneuver to avoid him or that even he was sacked in appropriately at the intersection such as  at a green light further the car did not report any dangerous driving by the defendant as he proceeded down the road and into the posers drive through in this case there simply was not enough information in the nine one caller's report to give the officer reasonable suspicion based on that brett because there was a lack of reasonable suspicion for the traffic stop here trial counsel should have filed a motion to suppress despite the fact the motion was not litigated below the state admitted that the only basis for the sap here was the ninety one caller's report all the evidence in this case flowed from the legal step therefore had prosecution of the two shells and we believe the appropriate remedy is that this court reversed mr shelton's conviction for driving under the influence outright thank you do you have any questions john i do can you very much johnson yes i can would you agree that under the case law the question of whether to move to suppress evidence generally is a matter of trial strategy presumption can be overcome as in cases this one where a suppression motion would have prevented all the evidence and it would have been successful all right the defendant to prevail on a claim of ineffective assistance for failing to file a motion to suppress would have to show that the i argued motion to suppress with all them ultimately had been successful correct correct ok i'm intrigued by your argument that there was nothing about the driver falling asleep at night and intersection doesn't constitute a real danger therefore the person should not have the officer should have not affected a traffic stop so looking at it from the perspective if the officer had rolled up next to this person and seen the person personally sleeping asleep at an intersection at night are you saying the officer would have had any reason to approach the vehicle no i'm not i'm not suggesting at all your honor however it's a very different he's where the officer personally observe a dangerous condition and also in the scenario you lay out the officer could have had a different reason you know such as communicator faking for approaching a sleeping driver but the real issue here is we don't have officer be anonymous ninety one report to be enough to stop a vehicle and that's what you know the court never recognized and that's why they set the bar of it needs to be enough to give the officer reasonable suspicion have any specific dangerous results here we don't have any information that he was like i said back in appropriately that even we don't even know how long it was based on the fact it was short because the caller followed up immediately to say ok he's driving and he's going to this restaurant so i want to be very clear that it's not that the the leaving behind will could never be dangerous what i'm saying is in this case there simply was not enough information provided to the officer for the officer to stop mr shelton based on this one call i understand the argument you're arguing that there's nothing about the conduct or behavior of falling asleep at night in an intersection to be a dangerous result there needed to be that the reason that color thing that they were run off the road was a loss to effectuate the south was because they allowed a specific dangerous result of the driver conduct here there's no allegation that him being a mystery help me momentarily asleep at the intersection had any dangerous result the caller doesn't say i had swerved to avoid him and again like as i said there's not even information that he was back in appropriately here so again from navarrette the supreme court was clear and i would emphasize if you look at the decision i've read it talk about the fact that even in the case of where the person said that they were run off the road by the driver the supreme court found that to be a close case and here we have lots and that so it falls on the other side of that line where it just is not enough for me look suspicious read by your interpretation is never right and never wrote this in the courts note that it must determine was in mind when one report created a reasonable suspicion of a crime such as drunk driving so at night somebody falls asleep behind the wheel of a car in an intersection that would not provide any reasonable suspicion of drunk driving again i think there are lots of reasons why someone could be momentarily asleep at an intersection and i would know just before one raises up in that red face that the court the author doesn't have to eliminate all innocent explanations and i'm not suggesting that they do what i am saying is that dangerous result of the conduct that made this a not but it was a quote hate by sheer difference i agree with what you just said alleged but that's the question does it have to allege a dangerous condition in addition to the reasonable suspicion of drunk driving but i understand your argument that's all i have at this point thank you thank you desperate just any question thank you justice  matter of trial strategy you agreed that if the defendant had filed a motion to suppress the state could very well have raised a community caretaker function i would disagree with that in this case because if the community care caking isn't implicated by the fact here i think if you look at and i know in the january th opinion this court there was a footnote citing two people who make donna other than investigating a crime and we know that and i what i had said earlier despite the fact that this motion was not filed and not litigated below there was litigation prior to trial where  the only basis for the sap in this case was the caller's statement so there was no other basis for the sound and the state admitted that twice so here we don't have anything other than after being in stopping a new road and after being admitted at trial that he didn't witness any dangerous driving or anything else like that so there's no communicator taking implicated here it's not like mcdonough so even if there had been a motion shelton appeared to be asleep at an intersection we have no idea for how long all we can know from the fact is that it had to be short enough for the caller to follow up and say that they have to keep moving away and going to this restaurant before the police could even respond so i'm not suggesting that there couldn't be decreased vigilance but there's lots of reasons that someone could appear to be sleeping at an intersection and here without any other information from the c without any report of any dangerous conditions any dangerous driving by mr shelton is simply not enough to provide that reasonable suspicion that the police need to pull him over you're assuming that stopped  an intersection the sleep is not a dangerous condition i'm not saying what i'm saying that given that you don't know that it was a dangerous condition in this case he may have stopped at a red light and no that i'm clear with respect to this information from the caller are you challenging the reliability of the information provided by the caller or only that that information nodding off him unfairly is significant in addition of a dui there could be lots of reasons that someone could not off momentarily or even again appear to be nodding off because you know it's hard for ten o'clock at night for someone driving by to really after taking what's going on another person's car but a guarantee even assuming that this person saw him nodding off behind the wheel even if that decreases vigilance it doesn't equate to a particular  objective basis for suspecting a d y there's lots of reasons that a person might appear to be sleeping and again i would emphasize that the facts of this case are what make it so different there is a very fact specific take doesn't reasonable suspicion take the totality of the circumstances i mean there are both made reasonable inferences into considering reasonable officer and has a lot of experience here that somebody is asleep in the middle of the intersection at ten o'clock at night i mean it's not a truly late time that the night it's like one or two or three in the morning where somebody might have been  o'clock at night i mean government officer have that ability to take those facts into consideration in determining people suspicions well i would correct one thing your honor i think that you yourself as well some nodding off and i don't think the ten pm actually makes very much difference as a you know many people who work different shifts or have young children if someone could be nodding off at seven in the morning and that doesn't necessarily mean anything other than their driving tired and just pulls him over what i'm saying is that is not enough without more facts how about the time between the call and the time i mean in that wreckage there were i think a few minutes between your time between the call and the time a finding that pickup truck in that case allegedly ran somebody off the road in this case isn't it the same here it was a very short period of time between the time of the call and the time to car was still in the area i don't think a short period of time i temporarily at intersections but oh no they're driving away safely and oh they're going to covert and then by the time the officer sees them he's just driving through the program drive through without any other issues so here the fact that this is so me so short as a momentary lap rather than an isolated incident of x recklessness i think that's existed and that the court uses that language it can't just be that i think this person and that's why the court cross about you know if someone just going slightly over the speed limit or the wearing their seat belt that's not enough for the doctor to pull them over without more and i think that what we have here with the citizen saying i think this person might be asleep at the intersection oh wait now they're driving down the road is more like that driving slightly over the speed limit or not wearing a seatbelt then it is like hey this person ran me off the road is very dangerous what is what the industry indication excuse me is there if it's any of any bias of this car you know she had all these different tips and they knew who she was how do we and why is it that we should immediately infer that the search is biased or is not telling that this tape is reliable they still need to have this enhanced have enough to create this reason this is an ongoing crime and they talk about they talk about this  dangerous result so the thing is even if we don't question that she has any bad motives there's still based on that right not this license to call people over face time anonymous where they don't give enough for this right i got you i got you i have no further questions the stunts and thank you so much for your time and i personally want to apologize for dropping the ball on failing to send out the notice with respect to no oral before publishing the opinion sometimes i think what's through the cracks and i take full responsibility so thanks for pointing it out and you will have your time everybody thank you disc case is still on the spectrum while the united states supreme court stated that driving with well without wearing a seatbelt and minor speeding not only incidents of past recklessness not not of on going on offense running an official off the road is indicative of an ongoing criminal activity like drunk driving on a seat behind the wheel is more like running a vehicle off the road as indicative of an ongoing human even stated during the hearing on the motion of the day that she was dispatched for welfare check and all search checking in checking up on the individual let's fall asleep behind the wheel while it's running on a public way is an actual communicator take as the limited amount of seizure that will cause is to ensure that this person will not fall asleep again while still in a public way a defendant keeps suspended seems to be indicating that it was only a minor amount of sleep occurred but that's there's no indication of this defendant was asleep long enough for another vehicle to happen upon him while he was still at it intersection and was able to then relay with that person when he finally woke up it was able to drive down infected for not filing a motion to suppress do you honest have any questions for me well out there you are i'm sorry i dropped off i don't know why yes a couple questions mr taylor how would you agree that the call reported that the defendant was asleep at the wheel while sitting in his vehicle at an intersection that is essentially what the officer responded to is a correct that is correct and what is your response to mr johnson argument that in this case someone may have been asleep at the wheel in an intersection at ten o'clock at night but there's no additional addition of dangerous condition or dangerous situation that that kind of created seeming to be implying that never read that was a consideration what's your response to that position that is not accession that threat it was an what or not it's just look at the activity in and  itself not where an activity cause some other additional dangerous condition and never at the activity was to view the defendant his vehicle running and other vehicles to wrote in this case the suggests that the defendant in this case with involved in some type of criminal activity any that you can point to yes to the callers observed has been asleep behind the wheel while you stop that intersection i but the state didn't argue in his briefing that there was communicators taking involved in this case at all and really has forfeited that argument and they're just bringing up now for the st time in oral argument after all the briefings been completed this case because by the time the officer has encountered mr shelton the caller has already reported that he's driving down the road going to covert after being and sees him in the coverts drive through and then leaving covert driving completely normally with no issues so there's no community here thinking here i would also like to point out one thing that mr taylor said he seemed to indicate that the officer could have sacked mr shelton just based on sleeping and nothing else without any reasonable suspicion of drunk driving and that's simply not true for navarette he said mr kelly said one should not be falling asleep behind the wheel one should not be driving without a seatbelt or over the speed limit however navarette specifically states that those types of infractions if a ninety one dollars call are reported hey this person is not wearing a seatbelt or hey this person is slightly speeding that would not be enough to give an officer reasonable suspicion for a traffic stop so simply a caller reporting hey there some  only if there's criminal activity mean maybe a foot and they talk about the fact that needs to be an addition of an ongoing crime such as drunk driving as opposed to an isolated incident of past recklessness and then at four o three the court after talking about these other behaviors driving instead she alleges the civic and dangerous result of the driver conduct running another car off the highway so here it's really not enough to just say this person was sleeping for a momentary amount of time and i know mr taylor said we don't know how long we don't know how long but we do know that by the time the caller got on the phone and said this person appears to be sleeping at the intersection they very quickly follow it up oh they're driving down the road now and they're covert before the police even dispatch anyone to respond that information was already being relayed so we know it was a short amount of time based on that here because there just simply was not enough information in this one caller's report to justify a reasonable suspicion of an ongoing crime and it's drunken driving and driving is serious and this is actually definitely a set it in his descent i'll be at but he said drunken driving and serious the so  freedom to come and go as we please about police interference i think that's important these stats implicate the th amendment so there needs to be more than just a small amount of information from an anonymous caller and that's the problem here we these are the facts here or in this level of detail is sufficient to validate the stuff you seem to be taking that to imply that anything less would not be sufficient and you did allude to earl the fact that the court held that reasonable suspicion need not ruled out the possibility of an innocent explanation correct that's a never up that's correct but i guess what i what i would assign it is that there needs to be here temporarily heading off intersection does not bear too great a resemblance to the parenting maddux you know in manifestation of drunken driving because we don't have someone who is crossing danger to the other people on the roadway that we had never met and i would emphasize again that navarrette emphasized that was a close and the problem here is we saw on the other side of that line there just aren't enough facts to show that specific and dangerous results of the defendant's conduct here let me ask you a pointed question do you have any authority that you can cite to us that stands for the proposition of falling asleep at some o'clock at night in a sort of intersection with no other explanation that the informant knew the other call was cars driving dangerously we don't have any implication here that mr shelton was driving dangerously so there are many cases that are factually identical to this because these are also practice but i think if you look at the reasoning and the language of navarette it's very clear that this case falls short of what the court was requiring as is your position that the police cannot pull a vehicle over unless the driver is exhibiting dangerous behavior to is where we need to be careful and really consider the source and then the concerns and because of that it's not enough to pull someone over it in this case without these the driver sorry i just said i forgot them you might say i have nothing further thank you thank you very much thank you miss johnson mr taylor for your arguments here today we will take them the arguments under consideration review conference and we will make a decision in due course court is adjourned for the day thank you so much thank you