Opinion
111,572.
07-02-2015
STATE of Kansas, Appellee, v. Jeremy A. CHAPMAN, Appellant.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BUSER and POWELL, JJ.
MEMORANDUM OPINION
POWELL, J.
Jeremy A. Chapman was convicted by a jury of one count of identity theft and three counts of felony theft. Before trial, Chapman sought to have the evidence stemming from the traffic stop suppressed, claiming the officers lacked reasonable suspicion he was engaged in a crime at the time of the traffic stop; the district court denied his motion. Additionally, Chapman entered into a stipulation that he had two prior theft convictions as described in K.S.A.2014 Supp. 21–5801(b)(6). Chapman now appeals, arguing the district court erred in denying his motion to dismiss and there was insufficient evidence to convict him of felony theft because his stipulation was not read to the jury. Finding no reversible error by the district court, we affirm Chapman's convictions.
Factual and Procedural Background
On December 20, 2012, Wichita Police Officers Brent Johnson and Travis Cleveland responded to a “suspicious character” call at a Wichita residence at 2:37 a.m. Someone reported observing two individuals approaching and walking around the outside of the residence. According to the caller, the two individuals drove what appeared to be a black Acura Integra. The call eventually changed to a burglary in progress. The roads were mostly empty that night because the weather was extremely cold and snowy.
Johnson was approximately 2 miles west of the scene when he responded to the call. As Johnson drove toward the residence he observed what appeared to be a black Acura Integra as the only vehicle currently driving on the road. Johnson pulled behind the Acura; he noticed it was dark green in color and had two occupants. Johnson also noticed the Acura carried a 60–day tag which further aroused his suspicions because he knew 60–day tags were easy to counterfeit. He decided to follow the car until backup arrived to assist with a traffic stop.
Meanwhile, Cleveland was roughly 2 miles north of the scene when he responded to the call. Cleveland observed no traffic on the roads until he came upon Johnson's car and the Acura. Cleveland pulled in behind Johnson to assist with the traffic stop.
The officers stopped the Acura and approached with Johnson on the driver's side and Cleveland on the passenger's side. As Johnson made contact with the Acura's occupants, Cleveland noticed a firearm on the rear floorboard of the car and ordered the passenger to place his hands where they could be seen. Johnson, reacting to Cleveland's command, ordered the driver to place his hands on the steering wheel. The officers then ordered the driver and the passenger out of the Acura and placed them in separate patrol cars.
The driver's license Johnson obtained from the driver showed the name “Jeremy Brown.” However, the driver would later be identified as Chapman. Johnson discovered the ID presented by Chapman had been stolen from Brown in November 2012; the Acura had been stolen earlier in December. A subsequent search of the Acura yielded (1) registration papers, photos, and tax documents stolen in November 2012 and (2) a McConnell Air Force Base government identification card stolen the same night as the traffic stop.
The State charged Chapman with (1) identity theft for using Brown's identification; (2) felony theft for the Acura; (3) felony theft for the registration papers, photos, and tax documents; and (4) felony theft of the government identification. Because Chapman had two prior convictions for theft, the State classified the last two theft charges as felonies.
Prior to trial, Chapman filed a motion to dismiss due to an illegal stop. In it, he sought either to have the case dismissed or to have the evidence obtained from the traffic stop suppressed, claiming Johnson and Cleveland lacked reasonable suspicion to stop the Acura. The district court denied Chapman's motion after hearing testimony from Johnson and Cleveland.
Also prior to trial, Chapman entered the following stipulation, citing Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), and State v. Lee, 266 Kan. 804, 977 P.2d 263 (1999) :
“[Chapman] was twice previously convicted of theft on July 24, 2008, in case number 08CR1193, in the Eighteenth Judicial District Court, Sedgwick County Kansas. Thereby these elements and or jurisdictional issues regarding the crime of K.S.A. 21–5801(a)(4)(b)(6) Theft After Prior Conviction are considered proven and require no further evidence.”
The case proceeded to trial on October 28, 2013, but was declared a mistrial. The second trial commenced on January 27, 2014. Chapman informed the district court that his earlier-made stipulation should remain in effect. The district court noted the stipulation would be accepted as part of the file but that it was “not something that was going to be provided to the jury or set forth in the instructions.” After hearing evidence including testimony from Johnson and Cleveland, the jury unanimously found Chapman guilty as charged. The district court sentenced him to 28 months in prison and 12 months of postrelease supervision.
Chapman timely appeals.
Did the District Court Err by Denying Chapman's Motion to Dismiss?
In reviewing the granting or denial of a motion to suppress evidence, we determine whether the factual findings underlying the trial court's suppression decision are supported by “ “ “substantial competent evidence and [review] the ultimate legal conclusion drawn from those facts de novo.” “ “ State v. Reiss, 299 Kan. 291, 296, 326 P.3d 367 (2014) (quoting State v. McGinnis, 290 Kan. 547, 551, 233 P.3d 246 [2010] ). In conducting this review, we do not reweigh the evidence or reassess the credibility of the witnesses. 299 Kan. at 296.
Chapman establishes this issue was preserved for appeal through the filing of his pretrial motion to dismiss, the contemporaneous objection when the State introduced the evidence of the traffic stop, and the continuing objection permitted by the court following the contemporaneous objection. The State, however, contests preservation of the issue, arguing that at trial Chapman argued the officers lacked reasonable suspicion to pull him over and on appeal Chapman now argues the officers lacked reasonable suspicion to pull anyone over. The State cites State v. Littlejohn, 298 Kan. 632, 655–56, 316 P.3d 136 (2014), for the proposition that an issue not briefed is deemed abandoned and asserts that Chapman's altered position on appeal means he did not brief his original trial argument.
However, Chapman's argument on appeal, while perhaps not identical to his argument at trial, is not an abandonment of his argument at trial. Instead, Chapman is merely broadening his position to argue that police lacked reasonable suspicion to pull over other drivers in addition to him. Because this argument was properly preserved, we will consider the merits of Chapman's argument.
Our Supreme Court recently explained the concept of reasonable suspicion:
“Reasonable suspicion is a much lower standard than probable cause and may be established with less reliable information. But similar to probable cause, reasonable suspicion depends on both the information possessed by police and its degree of reliability. Both quantity and quality are considered together in an examination of the totality of circumstances in determining whether reasonable suspicion exists. State v. Parker, 282 Kan. 584, 594, 147 P.3d 115 (2006). What is reasonable depends on the totality of circumstances in the view of a trained law enforcement officer. We have often repeated the statement that consideration of those circumstances compels a court to “ ‘judge the officer's conduct in light of common sense and ordinary human experience. [Citation omitted.] ‘Our task ... is not to pigeonhole each purported fact as either consistent with innocent travel or manifestly suspicious,’ [citation omitted], but to determine whether the totality of the circumstances justify the detention. [Citation omitted.] We make our determination with deference to a trained law enforcement officer's ability to distinguish between innocent and suspicious circumstances, [citation omitted], remembering that reasonable suspicion represents a ‘minimum level of objective justification’ which is ‘considerably less than proof of wrongdoing by a preponderance of the evidence.” “ State v. DeMarco, 263 Kan. 727, 735, 952 P.2d 1276 (1998) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 [1989] ).” State v. Martinez, 296 Kan. 482, 487, 293 P.3d 718 (2013).
Chapman argues the district court erred when it denied his motion to dismiss because the officers did not have reasonable suspicion he had committed a crime when they stopped him. Chapman concedes the officers had reasonable suspicion that the Acura driven by Chapman was related to the suspicious character call but asserts the officers lacked reasonable suspicion a crime had actually been committed, thus foreclosing a legitimate traffic stop. For support, Chapman cites two out-of-state cases: State v. Garcia, 147 N.M. 134, 217 P.3d 1032 (2009), and Thomas v. State, 144 So.3d 660 (2014).
In Garcia, the New Mexico Supreme Court held that officers lacked reasonable suspicion a crime was being committed where the officers knew only that a caller desired to have a man removed from a home:
“[T]he officer had no information that a crime had been or was being committed: while the caller's desire to have a man named Joshua Garcia removed from his or her residence may have been the result of Joshua Garcia perpetrating some crime, the officer had no knowledge of such crime. Mere speculation that Joshua Garcia may have committed an unspecified crime does not satisfy the constitutional requirement of reasonable suspicion.” 147 N.M. at 146.
In Thomas, the District Court of Appeal of Florida, Second District held that officers lacked reasonable suspicion a crime was being committed when the officers noticed a car with its lights on sitting behind a gated business building in the evening and the car's occupants walking outside the car with flashlights. 144 So. Ed at 661–62. The officers knew the business had been burglarized several times prior and knew the business' gates were usually closed at night.
Setting aside the circumstance that neither Garcia nor Thomas is binding on this court, the facts of neither case are not analogous to those here. Unlike in Garcia, Johnson and Cleveland were advised of a possible burglary being committed; and, unlike in Thomas, Johnson and Cleveland stopped the vehicle driven by Chapman based on more than just Chapman's presence in a particular area. Therefore, both cases are unpersuasive given the facts at hand.
Instead, the facts in this case are more analogous to those in State v. Walker, 292 Kan. 1, 11–12, 251 P.3d 618 (2011), where our Supreme Court held that officers possessed reasonable suspicion to detain Walker where (1) the officer received information from an identified citizen about a burglary, (2) Walker was sitting at a bus stop located in the direction in which the citizen reported the suspect had fled, (3) Walker was located within 6 minutes and within 2 blocks of the reported crime, (4) Walker was alone and matched the race, gender, and number of burglary suspects, and (5) Walker was dressed in dark shorts and a dark shirt consistent with the description provided. Here, (1) the officers obtained information from dispatch concerning a burglary in progress, (2) Chapman was driving a car closely matching the description the caller had provided to dispatch, (3) Chapman was driving near the location identified by the caller, (4) Chapman and his passenger matched the number of suspects identified by the caller, (5) the car driven by Chapman was the only vehicle on the road due to harsh weather conditions, and (6) the car driven by Chapman carried a 60–day tag that Johnson knew could be easily counterfeited.
Moreover, even if we were to disregard the fact that law enforcement was advised about a possible burglary in progress and instead treated the matter as law enforcement merely responding to a suspicious person report, the facts still support reasonable suspicion to justify the stop. In City of Garden City v. Mesa, 215 Kan. 674, 680–81, 527 P.2d 1036 (1974), our Supreme Court held that law enforcement “acted reasonably and with justification” to detain and ask for the identification of a man observed standing in front a business at 4 a.m. and that it was reasonable under the circumstances to suspect criminal activity.
When analyzing the totality of the circumstances, the district court correctly determined the officers had at least a reasonable suspicion that Chapman had committed a crime. In Kansas, “[w]ithout making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand of the name, address of such suspect and an explanation of such suspect's actions.” K.S.A. 22–2402(1). Thus, Johnson and Cleveland did not illegally detain Chapman and did not illegally ask Chapman for identification.
Did Sufficient Evidence Support Chapman's Prior Theft Convictions?
Chapman also argues the State presented insufficient evidence at trial to convict him of felony theft because his stipulation to his two prior theft convictions was never instructed to the jury. Without the stipulation, Chapman asserts there was no trial evidence indicating he had two prior theft convictions, thus rendering the evidence supporting his convictions insufficient.
Another panel of this court recently answered a similar question in State v. Gehring, No. 111,346, 2015 WL 1310825 (Kan.App.2015) (unpublished opinion), petition for rev. filed April 13, 2015. There, the defendant argued that his stipulation was to an element of the crime, the stipulation was not admitted into evidence, and the jury was never informed of the stipulation; thus, without the presentation of the stipulation, there was insufficient evidence for the jury to find him guilty. The panel in Gehring disagreed, reasoning:
“Gehring now argues that the State should have admitted the stipulation into evidence and the district court should have informed the jury that the stipulation existed. However, the entire purpose of the stipulation was to keep that information from the jury. This is what Gehring wanted, and the prosecution was agreeable.
“We recognize as have other courts that it may be an unwise trial practice not to present the stipulation to the jury; ‘[h]owever, nothing in either law or logic compels us to reverse a conviction when the defendant enters into a stipulation on an element and then seeks a windfall from the government's failure to formally read the stipulation to the jury.’ United States v. Harrison, 204 F.3d 236, 242 (D.C.Cir.2000).
“Even if it was error, and the State should have admitted the stipulation into evidence, a litigant may not invite error and then complain of the error on appeal. State v. Verser, 299 Kan. 776, 784, 326 P.3d 1046 (2014). The State was ready and willing to present evidence that the warrant was a felony warrant, but based on Gehring's agreement, which was on the record, that the State did not need to present the evidence, Gehring invited this error. He cannot now complain of the sufficiency of the evidence when his agreement and stipulation were the cause.” Gehring, 2015 WL 1310825, at *5.
Similarly, Chapman cannot now complain because he invited this error when he entered into the stipulation. Thus, his argument that the State presented insufficient evidence to support his convictions cannot succeed because his stipulation was the cause.
Affirmed.
BUSER, J., dissenting.
I dissent from my colleagues' holding that Officers Johnson and Cleveland had reasonable suspicion to believe a crime had occurred, was occurring, or was about to occur when they conducted the traffic stop. “[S]imilar to probable cause, reasonable suspicion depends on both the information possessed by police and its degree of reliability,” and I believe the majority's assessment of the quantity and quality of the information possessed by the officers misses the mark. See State v. Martinez, 296 Kan. 482, 487, 293 P.3d 718 (2013).
First, the majority premises its holding upon an improper factual finding, i.e., the police had reasonable suspicion to believe criminal activity was afoot because the dispatcher told the officers the “ ‘suspicious person’ report” had morphed into a “possible burglary in progress.” Slip op. at 7. This finding does not comport with the record because the evidence presented at the suppression hearing does not show the officers received such information prior to executing the traffic stop.
Officer Johnson testified that he was “sitting in a parking lot when [he] heard a call come out ... for a suspicious character which eventually changed to a burglary in progress.” (Emphasis added.) But the State neglected to elicit any testimony from Officer Johnson as to the timing for this change in the characterization of the report, and Officer Johnson's later testimony suggests he effectuated the traffic stop in response to the suspicious person report rather than a possible burglary. Indeed, when describing his response to the dispatcher's call, Officer Johnson stated, “I saw a dark color Accura [sic ] which is what was described in the call as the vehicle the suspicious characters left in. And since there [were] no other vehicles around in the area, I decided to check and see if that was one that was involved.” (Emphasis added.) Officer Johnson's use of the words suspicious characters, rather than potential burglars, is an important indication that he did not have knowledge of the alleged burglary at the time of the stop.
Officer Cleveland's testimony also negates the majority's finding. Significantly, when asked to describe “the incident,” Officer Cleveland replied:
“We were dispatched to a suspicious character call ... here in Wichita, Sedgwick County, Kansas. The calling party advised that they had observed what appeared to be a black Integra—or [Acura] in front of a model home residence. And they saw two individuals going up by the residence and walking around it. At that time they didn't know if anybody had gone in or not. So that's what we were dispatched to originally.” (Emphasis added.)
Officer Cleveland then explained that he advised Officer Johnson to initiate the traffic stop “based on the suspicious character call that [they] were originally dispatched to since [the Acura] was coming from that general vicinity.” (Emphasis added.)
Despite my colleagues finding to the contrary, the evidence demonstrates that at the time of the traffic stop, the officers were not responding to a possible burglary in progress, they were investigating a suspicious persons report.
The question then becomes did the anonymous call to the dispatcher convey sufficient information to justify the traffic stop? The majority concludes that even if they were to “disregard the fact that law enforcement was advised about a possible burglary in progress,” the suspicious person call was sufficient, standing alone, to provide Officers Johnson and Cleveland with reasonable suspicion. Slip op. at 7.1 disagree with this legal conclusion.
In order to lawfully stop a moving vehicle, “the officer must know of specific and articulable facts that create a reasonable suspicion the seized individual is committing, has committed, or is about to commit a crime or traffic infraction. [Citations omitted.]” State v. Jones, 300 Kan. 630, 637, 333 P.3d 886 (2014). Here, the facts articulated by the officers at the suppression hearing demonstrate that law enforcement had no knowledge of any prior crime or any reason to suspect the occupants of the Acura were committing or about to commit a crime.
As revealed at the suppression hearing, the calling party did not report any criminal activity; instead, the caller merely notified the dispatcher that an Acura was parked in front of a model home and two individuals were “going up by the residence and walking around it”; the caller did not know if anybody had actually gone inside. Moreover, the Acura's movement on the roadway did not arouse any suspicion on the part of the officers, as both officers testified they decided to effectuate a traffic stop because the Acura happened to be in the general vicinity of the suspicious character call. In fact, Officer Johnson testified that other than his general suspicion as to the authenticity of the Acura's 60–day tag, he did not observe any motor vehicle violations or suspicious behavior while he was awaiting the backup officer.
It is well-settled law that”[t]he State bears the burden to demonstrate that a challenged search or seizure was lawful.” State v. Spagnola, 295 Kan. 1098, 1104, 289 P.3d 68 (2012). Given the totality of the evidence known to the officers immediately prior to the traffic stop, I conclude they merely had an inchoate and unparticularized suspicion or hunch of possible criminal activity and, thus, the officers did not have the requisite minimal level of objective justification to make the traffic stop. This conclusion is based on the well-known rule of Fourth Amendment jurisprudence that “a hunch has never been the benchmark of a proper police seizure.” Martinez, 296 Kan. at 488.
The majority bases its conclusion to the contrary upon a passing reference to City of Garden City v. Mesa, 215 Kan. 674, 527 P.2d 1036 (1974), one of our Supreme Court's earliest attempts to define the parameters of a valid investigative stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See slip op. at 7–8. In Mesa, police officers greeted Mesa and requested his identification after they observed him standing in the doorway of an electric shop at 4 a.m. Mesa initially refused to answer, but when the officers reiterated their request, Mesa indicated he was “doing some work in the electric shop.” 215 Kan. at 675. Dissatisfied, the officers again asked Mesa for his identification, and Mesa responded by turning away from them and walking inside the shop. In response, one of the officers caught up with Mesa, blocked his path, and informed him they were going down to the police station. Because Mesa then put his hands on the officer and attempted to push the officer out of his way, the other officer handcuffed him. Notably, before departing for the police station, Mesa provided the officers with the keys to the business and asked them to lock it.
Although the officers later testified they did not observe anything which suggested Mesa was involved in the commission of a crime when they saw him standing in the doorway, they indicated that the “purpose of investigating individuals standing around buildings in the middle of the night was for the protection and security of the buildings in reference to burglars.” 215 Kan. at 675–76. Additionally, after one officer noted that he became suspicious when he saw a person loitering near a business at 4 a.m., the officer testified that he had patrolled that area on previous occasions and while he had previously seen lights on in the electric shop, he had never seen anyone working there.
Our Supreme Court held this evidence was sufficient to establish reasonable suspicion because “a police officer is authorized ... to stop a person loitering in a public place at 4:00 o'clock a.m., where the officer harbors a suspicion of possible burglary, and demand of him his name, address and an explanation of his actions.” 215 Kan. at 681. Justice Prager, however, dissented from the majority's holding because, in his opinion, “to allow such conduct on the part of police officers effectively emasculates the safeguards set forth in Terry and utterly disregards the statutory minimum requirements of [K.S.A.] 22–2402(1).” 215 Kan. at 684 (Prager, J., dissenting).
Mesa provides scant support for the traffic stop in this case because our Supreme Court relied upon the officers' testimony that, under the totality of the circumstances, they harbored a suspicion of criminal activity, i.e., a possible burglary. See Mesa, 215 Kan. at 681. Furthermore, I cannot help but wonder if our current Supreme Court, armed with almost 50 years of precedent interpreting Terry, would find the limited facts presented in Mesa were sufficient to establish reasonable suspicion.
A better precedent with facts more comparable to the present case is State v. McKeown, 249 Kan. 506, 819 P.2d 644 (1991). In McKeown, our Supreme Court determined, on nearly identical facts, that a suspicious character report which imparts no information indicating any kind of criminal activity is insufficient, by itself, to provide law enforcement officers with reasonable suspicion. 249 Kan. at 515. In McKeown, Officer Rick Rhodenbaugh was dispatched to check on a green pickup truck after an individual reported a pickup was parked in the immediate area of his residence and the individual could not determine what the unfamiliar pickup was doing at this location. As Officer Rhodenbaugh approached the area he encountered a green pickup, so he “stopped the vehicle ‘as being the vehicle that [he] was supposed to check on in the area.’ The officer testified that ‘the [pickup] was not doing anything wrong’ when he stopped it.” 249 Kan. at 507.
Our Supreme Court began its analysis by noting the stop of a vehicle is different from merely approaching an individual on the street for investigative purposes because an officer must have reasonable suspicion to make a traffic stop under K.S.A. 22–2402(1) and Terry. “To stop a vehicle to investigate circumstances which provoke suspicion, an officer must be aware of ‘specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion’ that the vehicle contains individuals involved in criminal activity. [Citation omitted.]” 249 Kan. at 510. The court then concluded that the facts known to Officer Rhodenbaugh did not suffice because the pickup was proceeding down the roadway in a lawful manner and “the dispatcher never suggested that the vehicle in question was related to criminal activity.” 249 Kan. at 512. The court explained:
“The officer had no reasonable and articulable suspicion to stop this vehicle. He was dispatched to find out why the vehicle was parked in this rural area. When he arrived, the vehicle was no longer parked there. Because there was no suspicion of wrongful activity, the occupant of the car should have been free to leave without the intrusion of a stop and seizure by an officer.” 249 Kan. at 515.
See also State v. Kirby, No. 95,109, 2006 WL 2265165, at *3 (Kan.App.2006) (unpublished opinion) (“Here, someone reported to the police dispatcher that they saw someone from the blue truck exit the truck and enter another vehicle and then return to the truck. At most this describes suspicious activity but not illegal activity. The caller did not report a burglary. The reporting party in McKeown perhaps thought the vehicle he or she reported was engaged in criminal activity, and he or she thought police should be called. However, in both McKeown and here, no crime had been reported. Police had no reasonable suspicion to seize individuals without more information.”).
McKeown clearly demonstrates that “[t]o justify a stop, ... involvement in some kind of criminal activity must be suspected.” 249 Kan. at 511. No criminal activity was reported here prior to the traffic stop, and Officers Johnson and Cleveland did not observe any behavior indicative of such activity on the part of the Acura or its occupants. As a result, I cannot adopt the majority's reasonable suspicion determination because it does not comport with the constitutional principles outlined in Terry.
Moreover, even if the officers possessed a sufficient quantity of information to justify the traffic stop, the tip received by the dispatcher was still insufficient to provide the officers with reasonable suspicion because the tip lacked any indicia of reliability, an important aspect of the reasonable suspicion calculus, which my colleagues do not address. “Information received by police from an outside source may, depending upon the quantity and quality of the information received, provide reasonable suspicion for an investigatory [traffic] stop of a motor vehicle.” State v. Slater, 267 Kan. 694, Syl. ¶ 3, 986 P.2d 1038 (1999). When evaluating whether a tip has provided law enforcement with a sufficient basis to justify a stop, appellate courts examine the following three factors: “(1) the type of tip or informant involved; (2) the detail given about the observed criminal activity; and (3) whether the police officer's personal observations corroborate the information supplied in the tip. [Citation omitted.]” State v. Crawford, 275 Kan. 492, 498, 67 P.3d 115 (2003).
Here, the evidence elicited at the suppression hearing indicates the officers were acting on the least reliable type of tip, i.e., a tip from a truly anonymous informant. Indeed, the record is bereft of any evidence indicating the caller identified himself or herself or provided the dispatcher with enough information to ascertain their identity. See Slater, 267 Kan. at 699–702. An anonymous tip seldom demonstrates the informant's basis of knowledge or veracity; consequently, such a tip may only serve as a basis for reasonable suspicion if the tip appears to be premised upon the informant's personal observations and the information is corroborated in some respect by law enforcement before the stop. 267 Kan. 694, Syl. ¶ 5. Neither of these circumstances, however, is present in this case because the anonymous caller did not describe any criminal behavior and law enforcement officers did not personally observe any such behavior.
In conclusion, for all of the reasons stated, I would reverse Chapman's convictions and remand for a new trial.