Present: All the Justices
JERALD LORENZO JACKSON
v. Record No. 031867 OPINION BY JUSTICE CYNTHIA D. KINSER
April 23, 2004
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Relying on a tip from an anonymous informant, a police
officer conducted an investigatory stop of an automobile in
which the defendant was a passenger. The issue is whether
the information from the anonymous caller, corroborated in
part by police officers’ observations, provided reasonable
articulable suspicion to justify the investigative traffic
stop. We conclude that it did not and that, therefore,
evidence seized from the defendant during a subsequent
search should have been suppressed by the trial court.
PRIOR RELEVANT PROCEEDINGS
The appellant, Jerald Lorenzo Jackson, was indicted in
the Circuit Court for the City of Newport News for
possession of cocaine in violation of Code § 18.2-250, and
possession of a firearm while in possession of a controlled
substance in violation of Code § 18.2-308.4(A). He was
also charged with a misdemeanor, possession of a concealed
weapon in violation of Code § 18.2-308.1 Jackson filed a
pretrial motion to suppress evidence, specifically a
firearm and cocaine, seized during a warrantless search of
his person. He asserted that the police did not have a
reasonable articulable suspicion justifying the
investigative traffic stop. The trial court denied the
suppression motion and convicted Jackson of the charged
offenses.
Jackson appealed his convictions to the Court of
Appeals of Virginia. That court affirmed the convictions
and the judgment of the circuit court. Jackson v.
Commonwealth, 39 Va. App. 624, 576 S.E.2d 206 (2003). Upon
granting Jackson’s petition for a rehearing en banc,
Jackson v. Commonwealth, 40 Va. App. 88, 578 S.E.2d 51
(2003), the Court of Appeals again affirmed the
convictions, Jackson v. Commonwealth, 41 Va. App. 211, 583
S.E.2d 780 (2003). We awarded Jackson this appeal limited
to the question whether the circuit court erred in denying
Jackson’s pretrial motion to suppress.
RELEVANT FACTS
At approximately 2:10 a.m. on June 17, 2001, M. A.
Cook, a police officer with the City of Newport News Police
1
The misdemeanor charge was on appeal to the circuit
court. See Code § 16.1-132.
2
Department, received a dispatch, based on information from
an anonymous caller, regarding a firearm. According to
Officer Cook, “[u]nits were dispatched to 34th [Street] and
Jefferson [Avenue]. . . . in reference to three black males
in a white Honda that were disorderly and one of the
subjects brandished a firearm.” There was a small bar and
a gasoline station situated at that location. As Officer
Cook was approaching the specified intersection
approximately five minutes after receiving the dispatch, he
observed a white Honda automobile that was occupied by
three black males. The vehicle was leaving the gasoline
station and “pulled out right in front of” Officer Cook,
allowing the headlights of his vehicle to shine into the
window of the Honda automobile. At that point, Officer
Cook executed a “U-turn” and proceeded to follow the Honda
automobile until other police units arrived. He then
executed a traffic stop, causing the automobile to pull
into the parking lot of a fast-food restaurant. Officer
Cook approached the driver of the vehicle and explained the
reason for the traffic stop. The defendant was sitting in
the front passenger seat of the vehicle.
Sergeant James Hogan, another police officer who
responded to the dispatch, assisted Officer Cook in the
traffic stop. Sergeant Hogan approached the stopped Honda
3
vehicle from the rear and moved up to the front door on the
passenger side. He then shined his flashlight into the
vehicle and spotted Jackson sitting in the front passenger
seat.
The defendant had his arms folded across his stomach,
but Sergeant Hogan noticed a bulge in Jackson’s shirt under
his arms just above the waistband of his pants. According
to Sergeant Hogan, “[the] bulge . . . obviously was not
part of [Jackson’s] body[;] . . . it was too big” to be
anything other than a firearm. Sergeant Hogan asked
Jackson if he had a firearm, and Jackson responded, “No.”
Sergeant Hogan requested Jackson to move his hands, but
Jackson just raised his hands and put them back on his
stomach. Sergeant Hogan then asked Jackson to pull his
shirt up, but Jackson merely pulled his shirt out a few
inches and then put it back, placing his arms back across
his stomach.
Due to Jackson’s unwillingness to cooperate with
Sergeant Hogan’s requests, Sergeant Hogan pulled his
firearm out of its holster, pointed it at Jackson, and
directed him to get out of the vehicle. As Jackson was
doing so, Officer Brendan D. Bartley, who was standing
behind Sergeant Hogan, reached around Jackson and removed a
firearm from the waistband of Jackson’s pants. The firearm
4
was underneath Jackson’s shirt. Officer Bartley handcuffed
Jackson and proceeded to search him subsequent to arrest.
During that search, Officer Bartley found four,
individually wrapped “rocks of cocaine” in the left pocket
of Jackson’s pants.
Officer Cook acknowledged that the driver of the Honda
automobile was not violating any traffic laws and that he
would not have stopped the vehicle except for the dispatch.
He also did not have any information other than what was
contained in the original dispatch to the police officers.
Similarly, Sergeant Hogan knew of no efforts to confirm the
information received by the dispatcher. Like Officer Cook,
he saw the white Honda automobile and it matched the
description of the vehicle for which they were looking.
So, Sergeant Hogan turned his police vehicle around and
followed Officer Cook, who was pursuing the white Honda
automobile. Likewise, Officer Bartley responded to the
original dispatch and saw the white Honda vehicle turning
southbound on Jefferson Avenue. He did, however, testify
that he had a clear vision of the entire parking lot at the
small bar and he did not see another white Honda automobile
there.
ANALYSIS
5
The Fourth Amendment protects “persons” from
“unreasonable searches and seizures.” U.S. Const. amend.
IV. An investigatory stop (sometimes referred to as a
“Terry stop”), such as the traffic stop at issue in this
case, constitutes a seizure within the meaning of the
Fourth and Fourteenth Amendments “even though the purpose
of the stop is limited and the resulting detention quite
brief.” Delaware v. Prouse, 440 U.S. 648, 653 (1979); see
United States v. Hassan El, 5 F.3d 726, 729 (4th Cir.
1993). Consequently, such action by a police officer “must
be justified by probable cause or a reasonable suspicion,
based on specific and articulable facts, of unlawful
conduct.” Hassan El, 5 F.3d at 729; see Bass v.
Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 923-24
(2000)(“stop of an automobile . . . is unreasonable under
the Fourth Amendment absent a reasonable, articulable
suspicion that the driver is unlicensed or that the
automobile is not registered, or that either the vehicle or
an occupant is otherwise subject to seizure for violation
of the law”); United States v. Bell, 183 F.3d 746, 749 (8th
Cir. 1999) (“An investigative stop does not violate the
Fourth Amendment if the police have reasonable suspicion
that the vehicle or its occupants are involved in criminal
activity.”) If evidence is seized during an illegal stop,
6
it is not admissible at trial under the doctrine known as
“the fruit of the poisonous tree.” Hassan El, 5 F.3d at
729; see Wong Sun v. United States, 371 U.S. 471 (1963).
The issue we decide in this appeal is whether the anonymous
tip together with the police officers’ observations of the
white Honda automobile and its occupants provided
reasonable articulable suspicion to justify the
investigative traffic stop.
In deciding that issue and reviewing the trial court’s
denial of Jackson’s motion to suppress, we consider the
evidence and all reasonable inferences flowing from that
evidence in the light most favorable to the Commonwealth,
the prevailing party at trial. Bass, 259 Va. at 475, 525
S.E.2d at 924. Since the constitutionality of a search and
seizure under the Fourth Amendment involves questions of
law and fact, we give deference to the factual findings of
the trial court but independently decide whether, under the
applicable law, the manner in which the challenged evidence
was obtained satisfies constitutional requirements. McCain
v. Commonwealth, 261 Va. 483, 490, 545 S.E.2d 541, 545
(2001); see Ornelas v. United States, 517 U.S. 690, 696-97
(1996). The Commonwealth carries the burden of showing
that a warrantless search and seizure was constitutionally
permissible. Simmons v. Commonwealth, 238 Va. 200, 204,
7
380 S.E.2d 656, 659 (1989). However, a defendant must
show, when viewing the evidence in the light most favorable
to the Commonwealth, that the denial of the motion to
suppress evidence was reversible error. McCain, 261 Va. at
490, 545 S.E.2d at 545; Fore v. Commonwealth, 220 Va. 1007,
1010, 265 S.E.2d 729, 731 (1980).
The constitutionality of the traffic stop in this case
turns on whether the anonymous tip sufficed to give rise to
reasonable suspicion. Reasonable suspicion is something
“more than an ‘inchoate and unparticularized suspicion or
“hunch” ’ of criminal activity.” Illinois v. Wardlow, 528
U.S. 119, 124 (2000) (quoting Terry v. Ohio, 392 U.S. 1, 27
(1968)). However, it is something less than probable
cause. Bass, 259 Va. at 475, 525 S.E.2d at 923. In
Alabama v. White, 496 U.S. 325, 330 (1990), the Supreme
Court of the United States explained that
[r]easonable suspicion is a less demanding standard
than probable cause not only in the sense that
reasonable suspicion can be established with
information that is different in quantity or content
than that required to establish probable cause, but
also in the sense that reasonable suspicion can arise
from information that is less reliable than that
required to show probable cause.
The “totality of the circumstances,” which includes
“the content of information possessed by police and its
degree of reliability,” i.e. “quantity and quality,” must
8
be considered when determining whether reasonable suspicion
exits. Id. “[I]f a tip has a relatively low degree of
reliability, more information will be required to establish
the requisite quantum of suspicion than would be required
if the tip were more reliable.” Id.; see also Illinois v.
Gates, 462 U.S. 213, 233 (1983) (“a deficiency in one [the
informant’s ‘veracity’ or ‘reliability’ and his or her
‘basis of knowledge’] may be compensated for, in
determining the overall reliability of a tip, by a strong
showing as to the other, or by some other indicia of
reliability”). The converse is likewise true. See State
v. Rutzinski, 623 N.W.2d 516, 522 (Wis. 2001) (“if there
are strong indicia of the informant’s veracity, there need
not necessarily be any indicia of the informant’s basis of
knowledge”).
The interplay between an informant’s reliability and
the informant’s basis of knowledge is illustrated by
comparing the decision in Alabama v. White, 496 U.S. 325,
with the decision in Adams v. Williams, 407 U.S. 143
(1972). In the former case, the police received a
telephone call from an anonymous informant who stated that
the defendant would leave a particular address “at a
particular time in a brown Plymouth station wagon with the
right taillight lens broken,” would drive to a named motel,
9
and would be in possession of cocaine inside a brown
attaché case. White, 496 U.S. at 327. The police
proceeded to the specified address where they observed both
the automobile as described by the informant and the
defendant as she left the building and drove away in the
automobile. Id. The police followed the vehicle as it
proceeded along the most direct route to the named motel.
Id. The police stopped the defendant’s vehicle shortly
before it reached the motel and conducted a consensual
search of the station wagon. Id. During the search, the
police found the brown attaché case, which contained
marijuana. Id. They also discovered cocaine in the
defendant’s purse. Id. At trial, the defendant moved to
suppress the evidence seized during the search on the basis
that the police officers did not have a reasonable
suspicion justifying the initial investigative stop. Id.
at 327-328.
Although the Supreme Court described White as a
“close” case, it concluded “that under the totality of the
circumstances the anonymous tip, as corroborated, exhibited
sufficient indicia of reliability to justify the
investigatory stop” of the defendant’s vehicle. Id. at
332. The Court acknowledged that the police officers had
not verified every detail mentioned by the anonymous caller
10
but that they had corroborated certain facts, including
that a woman had left a particular building, had gotten
into the described automobile, and had driven along the
most direct route toward the named motel. Id. at 331. The
Court stated that it was “important that . . . ‘the
anonymous [tip] contained a range of details relating not
just to easily obtained facts and conditions existing at
the time of the tip, but to future actions of third parties
ordinarily not easily predicted.’ ” Id. at 332 (quoting
Gates, 462 U.S. at 245). The Court explained that the
police officers’ finding an automobile exactly as the
anonymous caller had described in front of a particular
building was an example of readily obtained facts which
anyone could have known. Id. at 332. However, “[w]hat was
important was the caller’s ability to predict [the
defendant’s] future behavior, because it demonstrated
inside information − a special familiarity with [the
defendant’s] affairs” that the general public would have no
way of knowing. Id. Once the police verified the caller’s
predictions, it was reasonable to conclude that the caller
had reliable information about the defendant’s illegal
activities. Id. That “basis of knowledge” provided the
anonymous caller with sufficient indicia of reliability to
justify the investigatory stop. Id. at 329.
11
In contrast, the decision in Adams v. Williams turned
on the informant’s veracity rather than the informant’s
basis of knowledge. There, an informant approached a
police officer and stated that “an individual seated in a
nearby vehicle was carrying narcotics and had a gun at his
waist.” 407 U.S. at 144-45. The informant was personally
known by the police officer and had provided him with
information in the past. Id. at 146. Based on the
informant’s tip, the police officer approached the vehicle
and, when the defendant rolled down the window, the officer
reached into the vehicle and removed a fully loaded firearm
from the defendant’s waistband. Id. at 145. The firearm
was not visible to the police officer from outside the
automobile, but it was located precisely where the
informant had indicated. Id. During a subsequent search
incident to arrest, police officers found heroin, a
machete, and another firearm. Id.
Emphasizing that the police officer personally knew
the informant and had received information from him in the
past, the Supreme Court concluded that the officer “acted
justifiably in responding to his informant’s tip.” Id. at
146. The Court stated that this case was “stronger” than
one involving “an anonymous telephone tip” because “[t]he
informant here came forward personally to give information
12
that was immediately verifiable at the scene.” Id. Also
important in the Court’s analysis was the fact that the
informant might have been subject to immediate arrest for
making a false complaint had the officer’s investigation
proved the tip to be false. Id. at 147.
This analysis brings us to the Supreme Court’s most
recent case involving an anonymous informant, Florida v.
J. L., 529 U.S. 266 (2000). There, an anonymous caller
reported to the police “that a young black male standing at
a particular bus stop and wearing a plaid shirt was
carrying a gun.” Id. at 268. There was no audio recording
of the call, and the police did not know anything about the
caller. Id. Proceeding on the information provided by the
informant, the police went to the bus stop and observed
three black males there. Id. One of them, J. L., was
wearing a plaid shirt. Id. Apart from the anonymous tip,
the police did not observe any suspicious behavior, nor did
the officers see a firearm. Id. Nevertheless, “[o]ne of
the officers approached J. L., told him to put his hands up
on the bus stop, frisked him, and seized a gun from J. L.’s
pocket.” Id. J. L. was charged with carrying a concealed
weapon without a license and possessing a firearm while
under the age of 18. Id. at 269. At trial, he moved to
suppress the introduction of the firearm that was seized
13
from him on the basis that it was “the fruit of an unlawful
search.” Id.
The question presented to the Supreme Court was
whether the anonymous tip pointing to J. L. had the
required indicia of reliability as enunciated in Adams and
White. Id. at 270. In J. L., the officers’ suspicion that
the defendant was carrying a concealed weapon came not from
their own observations “but solely from a call made from an
unknown location by an unknown caller.” Id. Thus, the
Court concluded that, unlike a tip such as the one in Adams
where the informant was known and could be held responsible
if the allegations were proven to be false, “ ‘an anonymous
tip alone seldom demonstrates the informant’s basis of
knowledge or veracity.’ ” Id. (quoting White, 496 U.S. at
329).
The tip concerning J. L. also lacked the indicia of
reliability present in White because the anonymous caller
did not provide any “predictive information” which the
police could use to test the informant’s basis of knowledge
or credibility. Id. at 271. The fact that the informant
provided an accurate description of an “observable location
and appearance” served only to “help the police correctly
identify the person whom the tipster [meant] to accuse.”
Id. at 272. The reasonable suspicion at issue in J. L. was
14
whether the informant was reliable in the assertion of
concealed criminal activity, “not just in [the tip’s]
tendency to identify a determinate person.” Id. Thus,
since all the police had in J. L. was “the bare report of
an unknown, unaccountable informant who neither explained
how he knew about the gun nor supplied any basis for
believing he had inside information about J. L.,” the Court
concluded that the investigatory stop and ensuing search
were unconstitutional. Id. at 271.
The Court also rejected a “firearm exception” to its
well-established reliability analysis. Such an exception
would allow a stop and frisk when a tip alleges an illegal
firearm even if the tip lacked sufficient indicia of
reliability. Id. at 272. But, the Court pointed out that
it was not saying that there could never be “circumstances
under which the danger alleged in an anonymous tip might be
so great as to justify a search even without a showing of
reliability,” such as information that a person is carrying
a bomb. Id. at 273.
Turning now to the case before us, we agree with the
statement that “[r]arely are the facts of two cases as
congruent as the facts in J. L. and this case.” Jackson,
41 Va. App. at 240, 583 S.E.2d at 795 (Benton, J.,
dissenting). As in J. L., Officer Cook had nothing more to
15
go on than an anonymous, unaccountable informant who
neither explained how he knew that Jackson was brandishing
a firearm nor furnished any basis for believing that he had
inside knowledge about Jackson. Both the “quantity and
quality” of the information supplied to the police here
lacked sufficient indicia of reliability to justify the
investigatory stop. Nor did the police officers observe
any suspicious behavior once they spotted the white Honda
automobile.
Unlike the informant in Adams, the caller in this case
was not known to the police nor did he or she personally
appear before an officer. Thus, the informant was not
subjecting himself or herself to possible arrest if the
information provided to the dispatcher proved false. See
Code § 18.2-461. In other words, the informant was not
placing his or her credibility at risk and could “lie with
impunity.” J. L., 529 U.S. at 275 (Kennedy, J.,
concurring). There also is no evidence that the caller had
supplied information on any previous occasions. When, as
in this case, there are virtually no indicia of the
informant’s veracity, more information is required in order
“to establish the requisite quantum of suspicion than would
be required if the tip were more reliable.” White, 496
U.S. at 330.
16
The tip in this case, however, also lacked sufficient
information to demonstrate the informant’s basis of
knowledge and to establish the “requisite quantum of
suspicion.” Id. The Court of Appeals correctly noted that
Officer Cook verified six details reported by the
informant: the make and color of the vehicle; its location;
and the number, race, and gender of the vehicle’s
occupants. Jackson, 41 Va. App. at 229, 583 S.E.2d at 789.
Based on the officer’s verification of these details, the
Court of Appeals concluded that it was objectively
reasonable for the officer to believe “that the remaining
portion of the tip − that one of the suspects had brandished
a firearm only moments before − was likewise true.” Id. We
do not agree. The tip included only “easily obtained facts
and conditions existing at the time of the tip” which
anyone could have known, including the allegation of
brandishing a firearm. White, 496 U.S. at 332. It failed
to include the kind of details critical to the Supreme
Court’s analysis in White, predictions about the
defendant’s future behavior. Such details are important
because they demonstrate “inside information” that would
not be available to the public generally. Id.
Thus, as in J. L., “[t]he anonymous call . . .
provided no predictive information and therefore left the
17
police without means to test the informant’s knowledge or
credibility.” 529 U.S. at 271. That the officers in fact
found a gun when they searched Jackson does not mean that,
prior to the search, they had a reasonable basis for
believing that Jackson had engaged in criminal conduct.
See id. Even when an informant reports the commission of
an open and obvious crime, if the tip is truly anonymous
and provides no explanation for how the informant acquired
the information, i.e., the informant’s basis of knowledge,
there remains a “layer of inquiry respecting the
reliability of the informant that cannot be pursued.”
J. L., 529 U.S. at 275 (Kennedy, J., concurring).
The Court of Appeals distinguished this case from
J. L. and found the tip here
“reliable in its assertion of illegality” because
this tip − unlike the “carrying a gun” tip in J.L.
− provided information permitting the officers
reasonably to infer that it (i) came from a
concerned citizen making a contemporaneous
eyewitness report, (ii) involved an open and
obvious crime rather than mere concealed
illegality,[2] and (iii) described criminality
posing an imminent danger to the public.
2
The Court of Appeals stated that “[w]hen an anonymous
caller reports an open and obvious crime . . . , the Fourth
Amendment may require no showing that the caller have
inside information about the suspect capable of predicting
his future conduct.” Jackson, 41 Va. App. at 227, 583
S.E.2d at 788. In support of that assertion, the court, in
a footnote, cited its decision in Beckner v. Commonwealth,
15 Va. App. 533, 535, 425 S.E.2d 530, 531 (1993). However,
in Beckner, it was not necessary for the informant to have
18
Jackson, 41 Va. App. at 235, 583 S.E.2d at 792 (quoting
J. L., 529 U.S. at 272) (internal citation omitted).
However, the first factual predicate is not supported by
the record, the second factor does not distinguish this
case from J. L., and the third element was rejected by the
Supreme Court in J. L.
As to the Court of Appeals’ conclusion that this tip
came from a concerned citizen making an eyewitness report,
the record contains the testimony of two police officers
concerning the dispatch that directed them to proceed to
34th Street and Jefferson Avenue. Officer Cook stated that
“[w]e were dispatched in reference to three black males in
a white Honda [who] were disorderly and one of the subjects
brandished a firearm.” Sergeant Hogan testified that he
was backing up Officer Cook “on a call that someone was
brandishing a firearm and that they were getting, he and
two other guys were getting into a car and leaving.” This
testimony is the police officers’ recitation of the
information reported to them by the police dispatcher. The
dispatcher did not testify nor is there any evidence that
predicted future action by the defendant because the
informant had “a face-to-face confrontation with the police
officer.” Id., 425 S.E.2d at 532. Thus, the informant had
subjected himself to possible prosecution if he gave false
information.
19
the informant’s call was audio-recorded or its content
preserved in some other manner.
Thus, even when viewing the police officers’ testimony
in the light most favorable to the Commonwealth and
imputing the dispatcher’s knowledge to the officers, see
Feathers v. Aey, 319 F.3d 843, 849 (6th Cir. 2003), there
simply is no evidence from which a reasonable inference can
be drawn that the informant in this case was a concerned
citizen making an eyewitness report as a crime was being
committed as opposed to a prankster or someone with a
grudge against Jackson. The informant provided no details
about himself or herself, cf. State v. Williams, 623 N.W.2d
106, 114 (Wis. 2001) (informant provided “self-identifying
information”); no descriptive facts showing that he or she
personally observed the firearm instead of having received
information from another person; and no time frame for when
the illegal activity was observed, cf. United States v.
Thompson, 234 F.3d 725, 727 (D.C. Cir. 2000) (tipster
stated that he “just saw” the defendant with a gun).3 In
other words, the anonymous informant here provided no basis
for his or her knowledge.
3
The evidence showed only that Officer Cook arrived
at the scene approximately five minutes after receiving the
dispatch.
20
Implicit in the second factor central to the Court of
Appeals’ holding is its statement that one fact alone
distinguishes this case from J. L., that the informant here
asserted specific illegal activity while the informant in
J. L. made no assertion of illegality. However, as the
dissent noted, “[i]f . . . the issue in J. L. concerned the
failure of the informant’s tip to convey evidence of
criminal conduct, the resolution of that case would not
have required any discussion about the informant’s
reliability.” Jackson, 41 Va. App. at 242, 583 S.E.2d at
796 (Benton, J., dissenting). Moreover, the Supreme Court
rejected any suggestion that a report of illegal conduct
justifies a stop and frisk: “[t]he mere fact that a tip, if
true, would describe illegal activity does not mean that
the police may make a Terry stop without meeting the
reliability requirement.” 529 U.S. at 273 n. *. The Court
made no distinction between concealed criminal conduct and
open, obvious criminal activity.
Additionally, as already discussed, the police here
had no way to test the anonymous informant’s basis of
knowledge and to determine his or her reliability. The
informant did not provide, contrary to the Court of
Appeals’ conclusion, any “first-person, present-tense”
details of the alleged illegal conduct. Jackson, 41 Va.
21
App. at 233, 583 S.E.2d at 791. See, e.g. Rutzinski, 623
N.W.2d at 519 (unidentified motorist reported, by cellular
phone, erratic driving by another motorist and that he or
she was in the vehicle in front of the swerving pickup).
Nor did the informant provide any information about the
defendant’s future behavior. We do not suggest that every
anonymous tip must include predictive information, see
United States v. Wheat, 278 F.3d 722, 734 (8th Cir. 2001)
(“the predictive aspects of an anonymous tip may be less
applicable to tips purporting to describe contemporaneous,
readily observable criminal actions as in the case of
erratic driving witnessed by another motorist”); but, even
when an informant reports open and obvious criminal
conduct, sufficient indicia of reliability must be present
before a stop and frisk is justified.
Finally, with regard to the Court of Appeals’ reliance
on the imminent danger to the public, the Supreme Court
declined to carve out a “firearm exception” to its
established reliability requirements for anonymous tips.
J. L. 529 U.S. at 272. The Court stated that “an automatic
firearm exception . . . would rove too far” because it
“would enable any person seeking to harass another to set
in motion an intrusive, embarrassing police search of the
targeted person simply by placing an anonymous call falsely
22
reporting the target’s unlawful carriage of a gun.” Id.
See also Harris v. Commonwealth, 262 Va. 407, 416, 551
S.E.2d 606, 611 (2001) (a police officer’s “hunch” that the
defendant was trespassing could not be raised to the level
of reasonable suspicion based on an anonymous informant’s
assertion that the defendant was armed; the Commonwealth
could not “bootstrap[] the legitimate concern for law
enforcement officers’ safety, which permits a protective
search of a legally detained suspect, to serve as the basis
for detaining the suspect”).
Nor are we persuaded by the cases relied on by the
Commonwealth and the Court of Appeals. Those cases are
either inapposite or involved tips that contained indicia
of reliability not present here. For example, Wheat, 278
F.3d 722; State v. Walshire, 634 N.W.2d 625 (Iowa 2001);
Rutzinski, 623 N.W.2d 516; and State v. Boyea, 765 A.2d 862
(Vt. 2000), all addressed the reliability of anonymous
reports of erratic or drunk drivers. That circumstance and
the imminent public danger associated with it are not
factors in this case. As the court in Boyea recognized, “a
drunk driver is not at all unlike a ‘bomb,’ and a mobile
one at that.” 765 A.2d at 867. We agree that “[i]n
contrast to the report of an individual in possession of a
gun, an anonymous report of an erratic or drunk driver on
23
the highway presents a qualitatively different level of
danger, and concomitantly greater urgency for prompt
action.” Id.
Continuing, in Williams, 623 N.W.2d 106, the informant
was not truly anonymous. There, the caller identified her
location; indeed, she referred to it as “my house.” Id. at
114. The court concluded that the informant had provided
“self-identifying information” and therefore put her
“anonymity at risk.” Id. “Risking one’s identification
intimates that, more likely than not, the informant is a
genuinely concerned citizen as opposed to a fallacious
prankster.” Id. at 114-15. Similarly, the informant in
Rutzinski “exposed him − or herself to being identified”
because the informant told the police “that he or she was
in the vehicle in front of Rutzinski’s pickup.” 623 N.W.2d
at 525.
CONCLUSION
Under the totality of the circumstances presented
here, the anonymous tip lacked sufficient indicia of
reliability to justify the investigatory stop of the
vehicle in which Jackson was a passenger. Thus, the stop
was illegal as well as the subsequent search of Jackson’s
person. Therefore, we hold that the trial court erred in
refusing to grant Jackson’s pre-trial motion to suppress
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the evidence seized from him. Accordingly, we will reverse
the judgment of the Court of Appeals and dismiss the
indictments against Jackson.
Reversed and dismissed.
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