STATE of Florida, Appellant,
v.
Joseph AUGUSTYN, Appellee.
District Court of Appeal of Florida, Second District.
Jim Smith, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellant.
James Marion Moorman, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellee.
HALL, Judge.
In its criminal prosecution for theft, burglary, and possession of a firearm, the state of Florida seeks this court's review of the trial court's suppression of evidence alleged to be stolen property. We accept appellant's argument that the initial stop of appellee's van was valid; therefore, the consents given by appellee to search both his van and his house were valid, and the yielded evidence was admissible. The trial court's order suppressing the evidence is therefore reversed.
The events of this case began when an informant called a deputy and told him that a certain individual who lived near him was involved in numerous burglaries. This deputy referred the informant to a Detective Weinstein who was patrolling the informant's neighborhood. On September 4, 1984, the informant called Detective Weinstein and told him that he lived behind a certain individual who was involved in numerous burglaries and who had the stolen property in his residence. He described the vehicle being used to transport the stolen property as an older model, blue, customized, Ford van. Detective Weinstein told the informer that if the van returned and began to move the stolen property he was to call the police dispatcher. Several hours later that same evening, a police dispatcher called Detective Weinstein with the message that an older model, blue, customized, Ford van was in the process of moving stolen property in the Odessa area.
Detective Weinstein immediately contacted a Detective Longworth, who was in the *105 area, and asked him to be on the lookout for the van. Longworth then proceeded to the area of Ogden Circle to meet a Detective Wilke. At this time he did not see a Ford van. Detective Wilke met Detective Longworth in a Kwik Trip parking lot about one-half mile from Ogden Circle, and while they were discussing the Ford van, an older model, blue, customized, Ford van pulled into the parking lot. As soon as the driver of the van saw them, he turned the van around and went back the same way he had come. Wilke followed the van out of the parking lot. The driver of the van then went back down the road and embarked on a U-turn course. Wilke eventually was told to stop the van and did so. Appellee was advised of his constitutional rights by Detective Longworth. Detective Longworth used the Miranda card to advise appellee of his rights. The detective asked if he could look in the van, and appellee responded that he could. The detective then secured a written consent to search the van. The van was empty, except for a black and white television set. Appellee then took the deputies to his home, where he produced a driver's license. The detectives then asked for and secured a written consent to search appellee's home. Longworth then searched appellee's home and found the stolen property.
At trial the court agreed to hear arguments on a motion to suppress the evidence after both appellant and appellee stipulated that the court could grant a mistrial if it suppressed the evidence so as to preserve the state's right to appeal.
Appellant raises four issues on appeal. We address the arguments pertaining to the legality of the van's initial detention and to the effect upon the ensuing consents given by appellee to search both the vehicle and his residence as indicated below.
This court has repeatedly held that in order to stop an automobile and request identification from its occupants it is not necessary for the police to have probable cause; rather, it is required that the officer have a founded or reasonable suspicion which requires further investigation, State v. Lewis,
To justify such a stop a police officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio,
While acknowledging the holding of State v. Hetland,
An informant reported that an individual who lived behind him was involved in numerous burglaries and was harboring stolen property in his residence. This individual was reported to drive an older model, blue, customized, Ford van.
At 9:30 p.m. on the evening of the events at issue, a Pasco County deputy received an informant's message from a Dade City dispatcher that an individual in an older model, blue, customized, Ford van was in the process of moving stolen property out of the Odessa area. The informant had previously reported this activity and was told to call the authorities as soon as he observed it again.
The deputy patrolled the vicinity of appellee and informant's neighborhood and did not initially observe or encounter the van. The deputy then proceeded one-half a mile to a convenience store, where he met another deputy. While the deputies were *106 discussing the Ford van, the van pulled into the parking lot and immediately turned around and left. The deputies followed the van, observing it take a U-turn course and go back down the road. The deputies continued to follow the van, eventually stopping it.
One of the officers issued prompt, cautionary Miranda warnings and asked appellee to produce his driver's license. Appellee was unable to do such but consented to a search of his van. After the van was searched, he asked the officers to accompany him back to his house to retrieve his license. He produced his license and thereafter executed a written consent to search his house. This search yielded the incriminating evidence which the court suppressed at trial.
We conclude that there was a sufficient basis for stopping appellee's van and that the subsequent consents were free of taint, thus precluding any application of the "fruits of the poisonous tree" analysis.
Of crucial significance to this position to reverse the trial court's determination of the stop's illegality is the temporal proximity between all of the events involved. No appreciable period of time lapsed between the initial call, the police response, and the eventual sighting of the van. It should also be noted that the location in issue is not densely populated, making it more reasonable to be suspicious of the van.
It is clear to us that the officers acted on the required standard of reasonable suspicion in stopping appellee's van. Watts v. State. Accordingly, we deem the stop of the van and the ensuing consents legal and the yielded evidence untainted.
Reversed and remanded with directions consistent with this opinion.
CAMPBELL, A.C.J., concurs.
LEHAN, J., dissents with opinion.
LEHAN, Judge, dissenting.
I respectfully dissent. There are in this case two questions relating to whether a stop of a vehicle by a law enforcement officer based upon an informant's tip was proper. I believe the answer to each calls for an affirmance.
The first question involves whether the description of the vehicle provided by the informant was, under all the circumstances, sufficiently specific to have been properly relied upon by the officer as a basis for stopping the vehicle, assuming that the trustworthiness of the information provided by the informant had been established. This question was answered in the negative by the trial judge when he granted the motion to suppress. There is no issue as to whether the trial judge considered the correct law in this respect. The issue is whether the law which he considered was applied by him correctly under the particular facts of this case. The second question involves whether the trustworthiness of that information had been sufficiently established to allow the officer to rely upon it as a basis for stopping the vehicle. The second question does not appear to have been directly considered by the trial judge nor need he have considered it if he was correct in his answer to the first question.
My grounds for this dissent are as follows. As to the first question, I believe we should not conclude, as grounds for reversal, that the trial judge was wrong in deciding that the description provided by the informant of an older model, blue Ford van, customized in some unspecified way, with no description of the occupant or occupants, was not specific enough to provide the officer with a proper basis to stop a vehicle of that general description an unestablished time after, and one-half mile away from the scene of, reported criminal activity. I believe we should not reverse the trial judge for deciding, in effect, that the rights of innocent persons would be improperly jeopardized if a general description of the type involved here provided a sufficient basis for a police stop of any vehicle of that description under the circumstances of this case. As to the second question, I believe there was proper basis for a conclusion that the informant's trustworthiness had not been established in the *107 manner called for by the United States Supreme Court and by Florida case law. I believe there was no proper basis for concluding that the information that the van had been transporting stolen goods was trustworthy. The information was given by an informant who was unidentified and undescribed in these proceedings and who gave no basis whatsoever for his or her purported knowledge. Accordingly, there are two alternative grounds for affirming the suppression of the evidence.
The trial judge granted the motion to suppress for reasons apparently like my grounds for affirming as to the first question. But even if he was not correct in his answer to the first question, we are bound to affirm if, as I believe, the answer to the second question required the same result. A trial court's right decision must be affirmed even if it is made for the wrong reason.
On the grounds explained below as to each of those two questions, I believe the law does not support a reversal and requires our affirmance.
As to the First Question: Under the Circumstances of This Case an Appellate Court Should Not Conclude That the Trial Judge Was Wrong in Saying That the Information Provided by the Informant Was Too General.
Under this category there are two basic reasons which in my view call for our affirmance. First, I believe an appellate court should not substitute its judgment for that of the trial judge in a close case like this involving essentially a judgment call as to whether the description of the vehicle justified its stop by a law enforcement officer under all the circumstances. Second, I believe the application of the law by the trial judge cannot be said to have been inconsistent with the case law, such as State v. Hetland,
As this court said in Hetland, "[A] vague description simply would not justify a law enforcement officer in stopping every individual who, or every vehicle which, might possibly meet that description."
The Third District's discussion in Delgado seems especially pertinent. Delgado found that the stop in that case was proper due to the existence of three factors:
1. The vehicle both described and actually seen was a distinctive and unusual one. (Citations omitted.)
2. The vehicle was seen within a close and fully consistent proximity of time and place to those of the crime. (Citation omitted.)
*108 3. The vehicle was occupied, as ... reported, by two white males. (Citation omitted.)
The stop of the vehicle in this case may well have been justified if it had been made in the neighborhood in which a vehicle of that general description had been reported by the informant to be engaged in unlawful activities. But here the stop of the generally described vehicle was made one-half mile away after the passage of some time. The majority opinion relies upon the temporal proximity of the events as being of crucial significance to support the stop under those circumstances. But the time period which was of significance was the period between the time the van was reported by the informant to be in the location indicated by the informant and the time it was seen by the officers in the parking lot. The trial judge made a point of noting the lack of evidence involving that time period. He noted that the evidence did not reveal how long it took the dispatcher to relay the call from the informant to one detective, how long the detective took to contact two other detectives who responded to the call (although the detective testified that he acted "promptly"), how long it took the other detective who went to the location indicated by the informant to respond to the call, arrive at the location, and ascertain that there was no such van in that vicinity, and how long it took him to then proceed to the parking lot where he met the other responding detective. Although the officers' testimony referred generally to various times, that testimony was vague and inconsistent. It appeared that the officers actually did not remember the times, as one of them conceded, and the trial judge obviously reached that conclusion. We, not having seen or heard the witnesses, are in my view not entitled to draw a contrary conclusion. See State v. Webb,
The majority opinion states that the detective who responded to the call and went to the location indicated by the informant had been in that area when he received the call. However, the record shows that he had been in his office and does not show the location of his office in Pasco County or whether there was a sheriff's office in or near Odessa where these events took place. There was testimony that the detectives had been in the parking lot ten or fifteen minutes before the van appeared. But, *109 again, the elapsed time which was of significance was not simply that ten or fifteen minutes and could have been very substantially longer. Indeed, following, as we should, a presumption of correctness of the trial judge and recognizing that the state had the burden of proof to establish the validity of the stop, we should assume it was very substantially longer. How long would be too long in that respect, or, perhaps more to the point, how short would be short enough to establish sufficient "temporal proximity," is, I believe, not something upon which we can base a reversal of the trial judge under this record.
The majority opinion further relies upon the area involved being not densely populated, thus "making it more reasonable to be suspicious of the van." It is well known that Odessa is by no means a metropolitan area. Nonetheless, the record is silent as to how populated the particular area involved was and, therefore, how much more reasonable the stop was in that area than in a more densely populated area. The record does not show whether the one-half mile between the location where the van was initially reported and the place where the officers first saw the van was rural and unpopulated or was residential.
There are two incidental aspects which might seem to lend support to the validity of the stop but which do not and might, in fact, be considered to have a somewhat contrary significance. First, the record would not seem to justify any conclusion that when the van pulled out of the parking lot at night and was followed by a law enforcement officer it was fleeing from the officer. The officers were in plain clothes in two unmarked cars and are not shown to have identified themselves before one of them followed the van. Therefore, the record would support a conclusion that if the driver of the van was trying to get away from the car which was following, he may have been justified in doing so. Second, there is nothing in the record even indicating that the black and white TV set which was found in the van at the time of the initial stop was then suspected of having been stolen. There was absolutely no indication from the van that defendant was involved with stolen property. It was not until the subsequent search of defendant's home, which the trial judge found to have been tainted as the fruit of an unlawful stop, that there was any substantial basis to conclude that defendant was a person referred to by the informant as having been involved with stolen property. In fact, the record does not show that the officers had been looking for stolen property like a TV set. It does show they had been looking for stolen meat.
Therefore, I believe the trial judge's suppression of the evidence on the basis of his conclusion that there was an unlawful stop was not without foundation unless defendant's consent to the subsequent search of his home (which, incidentally, was not the location where the van had been reported by the informant to be) was voluntary. But consent obtained after unlawful police activity is presumptively tainted and rendered involuntary. "The consent will be held voluntary only if there is clear and convincing proof of an unequivocal break in the chain of illegality sufficient to dissipate the taint of prior official illegal action." Norman v. State,
I would uphold the suppression of the evidence because I feel we should not disagree with the trial judge's rulings that the initial stop of the van was unlawful and that defendant's consent to the subsequent search of his home must be deemed involuntary *110 because the consent was fruit of the poisonous tree.
The trial judge's suppression of the evidence might conceivably have made this seem to be a case in which a criminal would go free based upon a technicality. But the validity of a police stop or search is not to be judged by hindsight as to whether or not the results produced incriminating evidence. "[H]indsight [should not be] coloring the evaluation of the reasonableness of a search or seizure." United States v. Martinez-Fuerte,
This is not to say, based upon the record now in this appellate court, how I, or any judge of this court, would likely have ruled in the trial judge's place. That is not the issue. Also, this is not to say that the record shows that a denial of the motion to suppress would have been without any foundation. It is to say I believe that the trial judge's granting of the motion was not without foundation and that we are obliged not to disturb it.
The ruling of the trial court on a motion to suppress, when it comes to the reviewing court, is clothed with the presumption of correctness, and the reviewing court will interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustain the trial court's ruling.
McNamara v. State,
As to the Second Question: The Trustworthiness of the Tip Had Not Been Established in the Manner Called for by the United States Supreme Court and by Florida Case Law.
The stop of the van was not made on the basis of any personal observation or knowledge of the law enforcement officers that the driver of the van may have committed or may have been committing a criminal offense. Nonetheless, if an informant's tip has sufficient indicia of trustworthiness, it can itself serve as a proper basis for a reasonable suspicion resulting in a valid stop. See Adams v. Williams,
Whether or not there were under the facts of a particular case sufficient indicia in this respect can be determined, I believe, by applying the test set forth in Illinois v. Gates,
There are three particular aspects of the law involving that two-pronged test which bear clarification: (A) Hetland and Webb, leading pre-Gates case law in Florida with respect to a stop based upon an anonymous informant's tip, while not purporting to apply the two-pronged test, actually applied the substance of the second prong of that test, as explained below. Because in the case at hand there was no testimony identifying or describing the informant this case should also be treated as involving an anonymous informant's tip; (B) the terminology of that pre-Gates Florida case law may be reconciled with the terminology of the two-pronged test; and (C) the first question dealt with in this dissenting opinion as to whether information provided to a police officer by an informant is specific enough to permit the officer to distinguish a suspect from innocent people is closely related to the second prong of the two-pronged test. That clarification is undertaken as to each of those aspects as follows:
(A) As indicated above, this area of the law, which, I believe, calls for application of the two-pronged test, involves stops by police based not upon police observation of activity leading to a reasonable suspicion of unlawfulness, but based only upon information by an informant as to purported unlawful activity. Hetland and Webb, which are leading cases in this area and were pre-Gates, did not specifically refer to the two-pronged test, notwithstanding that the test had by then come into existence under Aguilar. The reason why Hetland and Webb did not refer to that test could well have been that prior to Gates the two-pronged test simply could not work in an anonymous tip situation like that in Hetland and Webb (where there was, of course, no information as to the first prong) because, as pointed out above, both prongs must then have been established to justify a stop. Accordingly, those cases seem to have treated anonymous tip situations as involving a sort of separate type of subject within this general area, i.e., separate and apart from the two-pronged test. But it appears clear that those cases actually were dealing with the same thing as does the second prong: they were dealing with whether there was, in connection with an informant's tip, a showing of a basis of knowledge by the informant which provided sufficient indicia of the trustworthiness of the tip to justify police action. As Webb says with regard to an anonymous tip (where, of course, the reliability of the source of the tip cannot be evaluated), "Hetland holds that we may also look to the information provided by the tip and determine its reliability by the specificity of the information and its corroboration by prompt police action... ."
Now, after Gates, because there may be sufficient indicia of such trustworthiness in a particular case simply from the second prong (if, as Gates says, there is a "strong" showing of the second prong), it seems entirely appropriate to reconcile Hetland and Webb with the prevailing case law under Gates as to police action based solely upon an informant's tip. This is illustrated in Tippins v. State,
(B) The term "reliability," which is, strictly speaking, only referred to in the first *112 prong of the two-pronged test, was used in the Webb and Hetland pre-Gates discussions concerning the same subject as that involved under the second prong. For example, Webb referred to "information [in an informant's tip] bearing sufficient indicia of reliability to warrant a stop... ."
(C) The second prong of the test is similar to the first question addressed in this dissenting opinion whether information provided to police is specific enough to permit them to distinguish a suspect from innocent people. That first question simply provides a somewhat less involved approach dealing, as does the second prong, with the specificity of the information provided by an informant but only in the context of whether the information sufficiently permits law enforcement officers to distinguish a suspect from innocent persons, rather than whether, as under the second prong, it provides sufficient indicia of the trustworthiness of the informant's tip. The pursued end product of that first question is, therefore, not the same as that of the second prong of the two-pronged test. But the degree of specificity of information provided by an informant may serve to determine whether either of those end products exists.
Accordingly, the discussion above about the first question may also be apropos to the second prong of the test. That is, if information about a purported criminal is specific enough to distinguish a suspect from innocent persons, it also might be specific enough to show the trustworthiness of the informant's tip. But, as explained below, in order to establish the trustworthiness of a tip if there is nothing, for example, in the nature of a "track record" of the informant to support the first prong of the test, there should, under the second, basis of knowledge prong, be something not only distinguishing the suspect from other people but also showing that, and perhaps how, the informant knew, as his information purported to say, that the suspect was involved with a crime.
Now, referring again to the facts of the instant case, the unidentified informant here was not really anonymous; he was apparently known to the officer who originally took his call and who then referred the informant to Detective Weinstein. However, at the hearing on the motion to suppress, the defense objected on a hearsay basis to the question to Detective Weinstein about the informant's past reliability, the first prong of the two-pronged test. The trial court sustained that objection evidently because Detective Weinstein was not shown to have had first-hand knowledge of the informant's reliability. The state appeals from the court's ruling on the objection, but the state had proferred neither Detective Weinstein's answer to the question nor testimony of the officer who originally took the informant's call. The failure to proffer what the excluded evidence would have revealed precludes appellate consideration of the alleged error in excluding the evidence. See Whitted v. State,
The record is, therefore, devoid of any evidence not only as to the informant's identity but also as to the informant's "reliability," the first prong of the two-pronged *113 test. For that reason this case must be treated, as were the facts of Hetland, Webb, and Tippins, as a stop based upon a tip from an anonymous source (which, as pointed out above, may be a valid stop only if the information in the tip is sufficiently specific and can be corroborated). As the Florida Supreme Court said in Webb, "At the suppression hearing, there was no testimony concerning the source of the description of the robbery suspect. We assume, for purposes of disposition of this cause, that the tip was anonymous because the State did not prove otherwise."
A discussion of the contents of an informant's tip which did not fulfill the requirements of the second-prong is contained in Terrell v. State,
The "basis of knowledge" prong ... assumes an informant's "veracity," and then proceeds to probe and test its conclusion: ("What are the raw facts upon which the informant based his conclusion?" "How did the informant obtain those facts?" "What precisely did he see or hear or smell or touch firsthand?" "If he heard the facts from someone else, what makes that third person `credible' and how did that third person come by the knowledge?").
Terrell,
In the case before us the information given by the informant was only that someone in a specified house was moving stolen property in an older model, customized, blue Ford van. (I do not agree with the majority opinion's indication that that "someone" was reported to be the informant's neighbor; the record shows only that the van was reported to be at a neighbor's house; the defendant's address was different from the address of that house.) The record does not show how the informant purported to have known that the unspecified property was stolen or was being moved in the van.
In Gates, where the Supreme Court upheld the validity of a search, the informant gave specific information that the police were able to confirm prior to making the search. For example, the Gates informant told the police the names of the persons who were allegedly involved in the planned drug deal and gave the police details about past drug purchasing trips to Florida. The informant also told the police the date on which the next drug purchasing trip would begin. The police were able to verify this information as they observed the alleged drug dealers on their trip to Florida and back to Illinois and as they observed their actions while in Florida. Because the information proved to be accurate, the Supreme Court concluded the police were entitled to believe that the information had also been trustworthy in saying that the persons would be involved in unlawful activity consisting of possessing and transporting large amounts of drugs.
As Webb points out, in the Hetland case the specific details of the informant's tip describing the suspect's features and his location were corroborated "by prompt police action finding an individual in the general area of [the] named location who precisely fits the description given... ." Webb,
Whether the information from the informant in the case before us justified the stop of defendant, therefore, depends upon, under Hetland, Webb, Tippins, and Gates, whether the information contained enough corroboratable specificity to show that the informant knew unlawful activity was involved or, under Terrell, whether at least it was shown how he knew. But I am inclined to doubt that the requirements of Hetland, Webb, Tippins, and Gates for the trustworthiness of an anonymous tip would always be met if it were only shown how the informant knew of purported unlawful activity. Nor am I inclined to think that for an anonymous tip to be sufficiently trustworthy it must in all cases necessarily show how the informant knew. Nonetheless, I believe that the more it is shown how an anonymous informant knew, the less other details with corroboratable specificity should be required in the tip in order to justify police reliance upon it. In any event, in this case there was neither sufficient corroboratable specificity of details nor a showing of how the informant knew of the purported unlawful activity.
The informant in this case gave the officers only two pieces of information other than the crucial, unexplained information that there was unlawful activity because stolen property was involved: (a) property (unspecified) was being moved from a specific house and (b) the property was being transported in an older model, customized, blue Ford van. The officers were unable to corroborate the first piece of information because when they went to the house, they apparently saw no moving of property or any other indication that such activity was taking place. Nor did they see such a van at that location.
Thus, the officers were left with only a part of the second piece of information the general description of the vehicle as a possible basis for concluding that the information that stolen property was involved was trustworthy. As indicated above, I am not questioning that such a general description might have been sufficient to support the trustworthiness of the informant's tip if the officers had actually seen property being loaded into the van, had seen a van of that description at the specified house, or even had seen the van on the street coming from the house. In any of those situations there would have been corroboration of a part of the informant's information which may have been sufficient to support the assumption that the information was also trustworthy in saying that stolen property was involved. However, those are not the facts of this case.
Under the facts of this case, the issue is whether it was proper for the officers to assume the trustworthiness of the informant's tip about stolen property simply based upon the fact that the officers saw an older model, customized, blue Ford van pulling into a convenience store parking lot some one-half mile away from the specified house, presumably a substantial time after the informant said he saw such a van at the house. As discussed above under the first question, I believe we cannot conclude that the trial judge was incorrect in finding, in light of the generalized description of the van and the lack of any description of its occupants, that the officers could not be sufficiently sure that the van they saw was the one referred to by the informant. But, more to the point under a Hetland, Webb, *115 Tippins and Gates analysis, I do not believe that the sighting of a van matching the general description some distance away from the place described by the informant and some time later corroborated the informant's otherwise unsubstantiated information that property was stolen; at the least the record does not show the existence of any such corroboration sufficient to support a reversal of the trial judge's suppression order. In contrast to those four cases, the other information which had been given by the informant here was not independently substantiated by police observation and therefore provided no proper basis for assuming the trustworthiness of the crucial part of the information that stolen property was involved. There was not even any showing of how the informant purported to know, i.e., that the informant purported to speak from any personal knowledge as to property being stolen and was not simply saying what he had heard from others or, if he had heard it from others, what their basis for the information was or if the basis was simply "casual rumor." Spinelli,
In fact, as indicated above, when the van was stopped by the officers it did not contain property meeting the description of stolen property (meat) the record shows the officers were looking for. Therefore, if the record shows that anything was indicated from the van as to the trustworthiness of the informant's tip, it could be said to be untrustworthiness. In any event, I conclude that at best from the standpoint of the prosecution the requirement of Gates has not been met that a "strong" showing of the second prong of the test must exist to compensate for an absolute lack of evidence as to the first prong.
Especially in the absence in this case of corroborated details like those in Hetland, Webb, Tippins, and Gates, my conclusion is much like that in Terrell where the Third District said that the requirements of the second prong had not been met:
[T]he arresting officer gave no testimony from which the conclusion could have been drawn that the informant himself had seen the activities about which he spoke, or that although not personally observing these activities, the informant had learned of them from a credible and reliable source... . From all that appears, the informant here merely suspected, believed or concluded that there were narcotics in Terrell's possession. As in so many like cases, the failure to satisfy this "basis of knowledge" prong .. . renders the defendant's arrest and search incident thereto unlawful. (Citations of fourteen cases omitted.)
I believe the majority opinion, by not more specifically addressing the second question discussed in this dissent, has not dealt with a clear alternative ground for the trial court to have granted the motion to suppress which requires our affirmance. The Terry principle referred to in the majority opinion that a police stop may be justified if based upon "specific and articulable facts which ... reasonably warrant that intrusion" is, of course, the law but does not fully state the law applicable to a stop based solely upon an informant's tip. Terry involved a situation where the relevant facts indicating criminal activity were observed by the officer. That was not the situation in this case which is governed not only by the Terry principle as to an officer's reasonable suspicions but also by the second prong of the two-pronged test in Gates for stops based solely upon information received by the police from an anonymous informant.
This relationship between Terry and Gates in a case like this is shown in Tippins,
Possibly the majority opinion's reference to Terry was meant to represent the view that Gates should only apply to arrests or warrants, for which "probable cause" is necessary, whereas a stop merely requires a reasonable suspicion of illegal activity under Terry. However, in both Hetland and Webb, which involved stops and gave substantial attention to Terry, the analyses of the requisites of indicia of trustworthiness and corroboratability of anonymous tips in order to justify stops based upon those types of tips are virtually the same as the analysis of those aspects in Gates as to a warrant. For example, Hetland stresses, with regard to the validity of a stop, "indicia of reliability" from "the specificity of the information given" when "the information is corroborated."
Along similar lines, it might possibly be argued that the majority opinion's reversal is based upon the plain premise that Terry authorized the stop in this case because the officers were entitled to have had a reasonable suspicion of illegal activity from the informant's tip, regardless of any indicia of reliability of the informant (the first prong of the two-pronged test) or any specificity or corroboratability of the information (the second prong). However, that argument would stand for nothing less than the supposition that a police officer can rely upon any informant's tip to make a "mere" stop. Presumably the rationale would be that the officer should not be expected to not make the stop and risk the possibility of letting a criminal go free if the tip should turn out to be valid. In other words, as the question had been posed by the state in Hetland with reference to an officer who wants to do his duty, "In a situation like this, what is a policeman to do? ... Must he ignore the information given?"
If, as is the law from Hetland, Webb, Tippins, and Gates, just any anonymous tip as to unlawful activity cannot be considered trustworthy enough to justify police action against a suspect in reliance upon the tip, what then could there be to support the trustworthiness of such a tip except for the specificity and corroboratability requirements of those cases?
Whitley v. State,
Additionally, I do not think that State v. Lewis,
Even though Officer Belcher was acting upon a radio dispatch, we must still look to the source of that dispatch and determine its reliability. Whiteley v. Warden, 1971,401 U.S. 560 ,91 S.Ct. 1031 ,28 L.Ed.2d 306 . Here the source of the dispatch was merely an "anonymous citizen." There is no contention that the tip was bolstered by any other reports or observations.
Lewis v. State,
Watts v. State,