People v. Rollins

NO. 4-03-0538 Filed 5/19/08

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Vermilion County
ANDRE ROLLINS, ) No. 02CF562
Defendant-Appellant. )
) Honorable
) Craig H. DeArmond
) Judge Presiding.
_________________________________________________________________

JUSTICE MYERSCOUGH delivered the opinion of the court:

The State appeals the trial court's order suppressing

evidence recovered from defendant's vehicle during a traffic

stop. Police officers conducted a stop of defendant's vehicle in

response to a tip from an anonymous caller to the police emer-

gency dispatch that alleged an unidentified male was selling

drugs out of a described vehicle. The court held the anonymous

tip was insufficient to provide police with the required

articulable suspicion to perform a traffic stop. We disagree,

reverse, and remand.

I. BACKGROUND

On December 2, 2002, the State charged defendant with

unlawful possession of between 1 and 15 grams of cocaine with

intent to deliver, a Class 1 felony (720 ILCS 570/401(c)(2) (West

2000)). On January 22, 2003, defendant filed a motion to sup-

press, claiming the arresting officer did not have reasonable
suspicion or probable cause to detain and arrest defendant during

the traffic stop.

On April 24, 2003, the trial court conducted a hearing

on defendant's motion. Danville police officers Michael Cox and

Richard Lee Dicken testified to the events of November 29, 2002,

as follows. Cox was on routine patrol when he received a tele-

phone call from Patricia Stuebe, a 9-1-1 dispatcher, who told Cox

she had received a telephone call from an anonymous caller

informing her that a brown four-door Chevrolet without hubcaps

and driven by a black male from Chicago was on Fowler Street in

front of Green Meadows apartment complex (Edgewood Street)

selling drugs from the trunk of the vehicle. No other informa-

tion regarding the call or the caller was relayed to Cox.

Cox notified Dicken via his patrol car's onboard

computer. Dicken arrived in the area first and notified Cox via

radio that a green Cadillac, not one matching the reported

description, had pulled into Green Meadows' parking lot. Cox and

Dicken approached the vehicle and discovered four females inside.

The officers explained to the women why they had approached the

car and told the women they were free to go. As the officers

returned to their patrol cars, a vehicle matching the reported

description, a brown four-door Chevrolet with no hubcaps, turned

from Fowler onto Edgewood. The officers noticed that the occu-

pants of the brown Chevrolet were black males. Dicken initiated

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a traffic stop of the vehicle on the basis of the tip.

Dicken approached the driver (defendant), and Cox

approached the passenger. When asked, defendant told Dicken that

he was from Chicago, and he produced a driver's license with a

Chicago address. A driver's license check on defendant and his

passenger revealed no outstanding warrants; however, the officers

then began to "hear criminal histories" on both, which included

reported gang affiliation, weapons charges, and prior drug

arrests. Dicken told defendant he had information that there

were drugs in the vehicle. Defendant denied that information and

gave Dicken permission to search. Dicken searched defendant and

found "a large amount of money" while Cox received permission to

search the passenger.

Dicken began searching the vehicle and immediately gave

Cox "some kind of indication that something was there." Cox

placed the passenger in handcuffs, sat him in his patrol car, and

assisted with the search of the vehicle. Dicken found a plastic

bag containing four or five smaller bags of cannabis under the

driver's seat. The officers then found cocaine in the trunk in a

large garbage bag among clothes. Cox asked defendant if anything

in the vehicle belonged to the passenger. Defendant said it did

not--everything was his. Cox estimated that five or six minutes

had passed from the time the vehicle was stopped until the drugs

were discovered.

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 On June 9, 2003, the trial court entered an order

suppressing the evidence, finding that defendant was detained and

searched unlawfully. Citing this court's decision in People v.

Ledesma, 327 Ill. App. 3d 805, 763 N.E.2d 806 (2002), the court

found that the anonymous tip was an insufficient basis for the

officer's stop. This appeal followed. On October 31, 2007, the

Fifth District office of the Appellate Defender (OSAD) filed a

motion to dismiss the appeal because of appellate delay. This

court denied that motion on November 9, 2007. OSAD filed its

brief on November 27, 2007. On December 4, 2007, this court

denied OSAD's motion to reconsider the denial of its motion to

dismiss. We reverse and remand.

II. ANALYSIS

A. The Trial Court Erred in Granting the Motion To Suppress

When reviewing a trial court's ruling on a motion to

suppress, we give deference to the court's findings of fact and

will reverse those findings only if they are against the manifest

weight of the evidence. People v. Roberson, 367 Ill. App. 3d

193, 195, 854 N.E.2d 317, 320 (2006). However, we decide,

without any deference to the trial court, the ultimate legal

question of whether the evidence should be suppressed by applying

a de novo standard of review. Roberson, 367 Ill. App. 3d at 195,

854 N.E.2d at 320. The court's suppression was both manifestly

erroneous and error as a matter of law.

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 In Terry v. Ohio, 392 U.S. 1, 21-22, 20 L. Ed. 2d 889,

906, 88 S. Ct. 1868, 1879-80 (1968), the United States Supreme

Court created a limited exception in the context of brief inves-

tigatory police stops to the standard requirement that police

seizures be supported by probable cause. According to the

standards set forth in Terry, a police officer may briefly detain

and question individuals to investigate possible criminal behav-

ior if "specific and articulable facts which, taken together with

rational inferences from those facts, reasonably warrant that

intrusion" are present. Terry, 392 U.S. at 21, 20 L. Ed. 2d at

906, 88 S. Ct. at 1880. Our Supreme Court of Illinois has

explained that to justify a Terry stop, the police must point to

specific, articulable facts that make the intrusion reasonable.

People v. Ledesma, 206 Ill. 2d 571, 583, 795 N.E.2d 253, 262

(2003), overruled on other grounds by People v. Pitman, 211 Ill.

2d 502, 513, 813 N.E.2d 93, 101 (2004). "An officer may initiate

a Terry stop based on information provided by a third party if

the information is reliable and 'allows an officer to reasonably

infer that a person was involved in criminal activity.'" People

v. Shafer, 372 Ill. App. 3d 1044, 1049, 868 N.E.2d 359, 362-63

(2007), quoting People v. Jackson, 348 Ill. App. 3d 719, 729, 810

N.E.2d 542, 553 (2004).

Our supreme court has discussed the use of telephone

tips as the basis for a Terry stop, stating as follows: "Where

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an informant's tip is received by telephone, it may form the

basis for a lawful Terry stop, but the information must bear some

indicia of reliability, and the information upon which the police

act must establish the requisite quantum of suspicion." Ledesma,

206 Ill. 2d at 583, 795 N.E.2d at 262. Anonymous calls made to

police emergency dispatch carry a greater indicia of reliability

than a tip provided by a confidential informant because (1) the

caller's identity may at some point become known based on the

fact that the 9-1-1 system provides police with enough informa-

tion so that users are not truly anonymous, and (2) the caller

subjects himself to a criminal charge if the report is false or

misleading. Shafer, 372 Ill. App. 3d at 1050-51, 868 N.E.2d at

364.

Defendant relies on People v. Starks, 315 Ill. App. 3d

786, 734 N.E.2d 216 (2000), to support his argument that the

trial court correctly granted his motion to suppress because the

anonymous tip, which was the sole basis for the stop, lacked any

indicia of reliability. However, Sparks is distinguishable from

the case sub judice.

In Sparks, the police arrested the two defendants for

drug-related offenses after a search of their vehicle uncovered

cannabis. Police conducted a Terry stop of the vehicle based

solely upon a tip from a confidential source that the two defen-

dants would be traveling south on Interstate 55 with contraband

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in the car. The source, a known police informant, gave the

police the defendants' names, their races, their ages, a detailed

description of the vehicle, and the approximate time at which

they would be traveling through the area. A surveillance team

was positioned on the interstate at the expected time, and upon

spotting the vehicle, they initiated a stop. The officers asked

both of the defendants if they could search the vehicle, but they

refused. Canine units arrived within minutes, performed a sniff

of the vehicle, and alerted to the trunk of the car where the

drugs were found. Sparks, 315 Ill. App. 3d at 788-89, 734 N.E.2d

at 218-19.

The trial court suppressed the evidence, finding that

the informant's tip failed to establish the informant's basis of

his knowledge. The State appealed. In analyzing the constitu-

tionality of the stop, this court, citing Alabama v. White, 496

U.S. 325, 329, 110 L. Ed. 2d 301, 308, 110 S. Ct. 2412, 2415

(1990), noted that the informant's veracity, reliability, and

basis of knowledge should be considered. Sparks, 315 Ill. App.

3d at 792, 734 N.E.2d at 221. Realizing that it is often diffi-

cult to ascertain these things from an anonymous tip, the Supreme

Court in White held that the tip must provide some indicia of

reliability. Sparks, 315 Ill. App. 3d at 793, 734 N.E.2d at 222;

White, 496 U.S. at 329, 110 L. Ed. 2d at 308, 110 S. Ct. at 2416.

Distinguishing White (where the Court held that the anonymous tip

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was sufficiently reliable where the officers corroborated the

information contained in the tip before stopping the vehicle (see

White, 496 U.S. at 326-27, 110 L. Ed. 2d at 306-07, 110 S. Ct. at

2414-15)), this court held that the informant's tip was insuffi-

cient in providing the required level of reliability because the

informant provided only "innocent" details regarding the defen-

dants. Sparks, 315 Ill. App. 3d at 795, 734 N.E.2d at 223.

In Sparks, this court found the Supreme Court's deci-

sion in Florida v. J.L., 529 U.S. 266, 146 L. Ed. 2d 254, 120 S.

Ct. 1375 (2000), controlling. Sparks, 315 Ill. App. 3d at 794,

734 N.E.2d at 223. There, the Court held that an anonymous

telephone tip reporting that a man wearing a plaid shirt and

standing at a bus stop had a gun was insufficient to justify a

Terry stop. J.L., 529 U.S. at 268, 146 L. Ed. 2d at 258-59, 120

S. Ct. at 1377. The Supreme Court stressed that "[t]he reason-

able suspicion here at issue requires that a tip be reliable in

its assertion of illegality, not just in its tendency to identify

a determinate person." J.L., 529 U.S. at 272, 146 L. Ed. 2d at

261, 120 S. Ct. at 1379. Therefore, in Sparks, the informant's

tip was found insufficient to justify the Terry stop:

"The informant did not indicate that he had

witnessed any criminal activity by [the]

defendants or that he had participated in

previous criminal activity with them, which

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 would have lent some credibility to his

story. [Citation.] Simply because the

information about the drugs turned out to be

correct does not mean that it provided

officers, prior to stopping [the] defendants,

with a reasonable basis for suspecting them

of unlawful conduct." Sparks, 315 Ill. App.

3d at 794-95, 734 N.E.2d at 223, citing J.L.,

529 U.S. at 270-71, 146 L. Ed. 2d at 260, 120

S. Ct. at 1378-79.

However, the anonymous 9-1-1 tip here, unlike the types

in J.L. and Sparks, provided the officers with a reasonable basis

for suspecting that defendant was involved in criminal activity.

The tip here was corroborated by a physical description of the

driver (black male), the vehicle (brown four-door Chevrolet

without hubcaps), the location (Fowler Street in front of Green

Meadows apartments on Edgewood Street), the driver's origin

(Chicago), and the viewed criminal activity (selling drugs from

the trunk of the car).

This information was sufficiently reliable to allow

"'an officer to reasonably infer that a person was involved in

criminal activity.'" Shafer, 372 Ill. App. 3d at 1049, 868

N.E.2d at 362-63 (2007), quoting People v. Jackson, 348 Ill. App.

3d 719, 729, 810 N.E.2d 542, 553 (2004). Moreover, this

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anonymous tip to police emergency dispatch carries a greater

indicia of reliability than a confidential informant.

"An informant tip received by telephone

may form the basis of a Terry stop if the tip

is reliable and the tip allows the officer to

reasonably infer that a person was involved

in criminal activity. See Shafer, 372 Ill.

App. 3d at 1049, 868 N.E.2d at 362-63. The

factors to consider include (1) the quantity

and detail of the information such that the

officer may be certain that the vehicle

stopped is the one identified by the caller;

(2) the time interval between the tip and the

police locating the vehicle; (3) whether the

tip is based on contemporaneous eyewitness

observations; and (4) whether the tip has

sufficient detail to permit the reasonable

inference that the tipster actually witnessed

what she described. Shafer, 372 Ill. App. 3d

at 1050, 868 N.E.2d at 363, quoting [State

v.] Sousa, 151 N.H. [297,] 303-04, 855 A.2d

[1284,] 1290 [(2004)]." People v. Ewing, 377

Ill. App. 3d 585, 595, 880 N.E.2d 587, 596

(2007).

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 Those factors have been established here. Again, the

officers knew the vehicle was a brown four-door Chevy with no

hubcaps, driven by a black male selling drugs from the trunk, and

on Fowler Street in front of Green Meadows apartments on Edgewood

Street. Only a short time passed between the tip and the stop in

question. The dispatcher called the officer with the information

from the anonymous 9-1-1 call around 11 a.m. The officers

arrived at the scene 1 to 1 1/2 minutes later and had briefly

questioned occupants of an illegally parked green Cadillac when

defendant drove up. The police report was apparently completed

following the stop at 11:12 a.m. The anonymous caller had

witnessed the original activity--selling drugs--and the tip had

sufficient detail to permit the reasonable inference that the

anonymous caller actually witnessed what she described. Unlike

Sparks, the informant in our case did indicate he witnessed

criminal activity, which lent credibility to his story.

This case is no different than Ledesma, 327 Ill. App.

3d 805, 763 N.E.2d 806, except that the anonymous caller there

had intercepted on his scanner a cellular telephone conversation.

That call indicated criminal activity was about to take place,

just as the 9-1-1 call here indicated criminal activity was

occurring. The corroborating details--the particular car,

driver, time, and location--were the same in Ledesma as the case

sub judice. Certainly here, where the caller witnessed drugs

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being sold out of the car, rather than overhearing an intercepted

phone call about future drug activity, the circumstances afford

greater reliability. Ongoing sales of drugs from a trunk must

provide as much reliability and predictive information as

criminal activity that is yet to come. The officers are simply

not required to witness a drug transaction to stop under these

circumstances.

Further, the 9-1-1 tip is unlike that in J.L., 529 U.S.

at 276, 146 L. Ed. 2d at 263-64, 120 S. Ct. at 1381 (Kennedy, J.,

concurring, joined by Rehnquist, C.J.), where the bare report

that a black male in a plaid shirt at a particular bus stop was

carrying a gun did not establish reasonable suspicion. That

caller had not explained how he knew about the gun or any basis

for believing he had inside information. The caller here was a

witness to drug sales with corroborating information.

Nonetheless, the dissent insists that this tip is not an

eyewitness account of criminal activity and that this majority

infers from the tip that the caller actually witnessed defendant

selling drugs from the car. Again, the officer (Cox) stated he

was on routine patrol when he received a telephone call from

Patricia Stuebe, a 9-1-1 dispatcher, who told Cox she had

received a telephone call from an anonymous caller informing her

that a brown four-door Chevrolet without hubcaps driven by a

black male from Chicago was on Fowler Street in front of Green

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Meadows apartment complex (Edgewood Street) selling drugs from

the trunk of the vehicle. The tipster clearly said the black man

from Chicago in the brown Chevy without hubcaps was selling drugs

from the trunk on Fowler Street in front of Green Meadows

apartment complex. Unlike in J.L., this tipster had knowledge of

ongoing public criminal activity, not concealed criminal

activity. The tipster explained how he knew about that criminal

activity--he saw it and gave detailed specifics about it.

The dissent quotes J.L.: "'[a]ll the police had to go

on in this case 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.' (Emphasis added.) J.L., 529 U.S. at 271, 146 L. Ed. 2d at

260-61, 120 S. Ct. at 1379." Slip op. at 19 (Cook, J.,

dissenting). The dissent goes on to state: "If we substituted

the word 'gun' for 'drugs' in the preceding sentence, this case

and J.L. would be identical. The caller's report was not

sufficient in J.L., and it is not sufficient here." Slip op. at

19 (Cook, J., dissenting). However, substituting the word

"drugs" for "gun" does not make this case identical to J.L. The

tipster in the case sub judice did explain how he knew about the

drugs and provided specific descriptions of the car, location,

driver, and criminal activity.

Moreover, the courts have repeatedly recognized the

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improvement in reliability of our 9-1-1 systems. See Shafer, 372

Ill. App. 3d at 1050-51, 868 N.E.2d at 364-65. No longer are 9-

1-1 calls considered anonymous and unreliable. Clearly, the

officers had a reasonable basis for the Terry stop.

B. Appellate Delay Has Not Deprived Defendant
of His Due-Process Rights

Defendant argues this appeal should be dismissed

because the excessive delay has deprived him of his due-process

right to a speedy appeal and, consequently, a speedy trial.

Specifically, defendant argues that (1) OSAD's Fourth Judicial

District office failed to file a timely brief because that office

did nothing with the case for nearly four years, (2) the State

failed to complain in a timely manner to this court about OSAD's

failure to file a brief, and (3) this court failed in its

responsibility to oversee the orderly and timely disposition of

this appeal in the appellate process.

On November 9, 2007, this court denied defendant's

motion to dismiss the appeal because of appellate delay. On

December 4, 2007, this court also denied defendant's motion to

reconsider denial of defendant's motion to dismiss. No delay in

the case was caused by the State or this court. All the delay

has been caused by defense counsel. The current but discouraged

practice in this court is for OSAD not to make a motion for

continuance, but is instead for the State to rely upon OSAD's

filing its briefs in as timely a fashion as its backlog permits.

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If defendant had been required to file motions for continuance

throughout the pendency of the appeal, the elapsed time would

have no doubt been attributable to defendant, not the State. The

outcome should be no different where the practice does not call

for motions for continuance.

Delay will be attributable to the defense where the

defendant's actions in fact caused or contributed to the

postponement of the trial. People v. Kliner, 185 Ill. 2d 81,

114, 705 N.E.2d 850, 868 (1998). In this regard, the accused is

bound by the actions or omissions of his defense counsel (People

v. Brimmer, 60 Ill. App. 3d 214, 219, 376 N.E.2d 337, 341 (1978);

Kliner, 185 Ill. 2d at 117, 705 N.E.2d at 870; People v. Staten,

159 Ill. 2d 419, 433, 639 N.E.2d 550, 557 (1994)), since an

attorney in criminal proceedings is authorized to act on behalf

of his client and to determine for him "procedural matters and

decisions involving trial strategy and tactics." People v.

Bowman, 138 Ill. 2d 131, 141, 561 N.E.2d 633, 638 (1990).

Accordingly, the acts of defense counsel cannot be separated from

the defendant's own actions. Bowman, 138 Ill. 2d at 141, 561

N.E.2d at 638.

In this case, the defense either caused or contributed

to nearly all the delay at issue. The State filed its brief

instanter about two weeks after its due date. Defendant's brief

was then due to be filed November 11, 2003. Defendant is bound

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by his attorney's implicit request for a continuance by following

district practice. People v. Steiger, 208 Ill. App. 3d 979, 981,

567 N.E.2d 660, 662 (1991) (criminal defendant "speaks and acts

through his attorney"). The delay resulting from requests for

continuances and agreements with the prosecution are generally

chargeable to the defendant. Kliner, 185 Ill. 2d at 115, 705

N.E.2d at 869 (delay caused by continuances either requested or

agreed to by defense is attributable to the defendant). While a

neutral reason for delay has been weighed against the State

rather than the defendant (People v. Belcher, 186 Ill. App. 3d

202, 206, 542 N.E.2d 419, 422 (1989); People v. Singleton, 278

Ill. App. 3d 296, 300, 662 N.E.2d 580, 583 (1996)), such is not

the case here where defendant implicitly requested the delay

through his attorney.

Further, as noted in the State's objection to

defendant's motion to dismiss on the grounds of appellate delay,

the State has relied upon the representation by OSAD that it

operated on a first-in, first-out basis. Unfortunately, in this

case, the "file was lost." Furthermore, the backlog of cases in

OSAD's office is well documented. This backlog is in spite of

section 95 of Public Act 89-689, effective December 31, 1996,

which amended the State Appellate Defender Act (725 ILCS 105/1

through 11 (West 1994)) to address the backlog of indigent

criminal appeals. People v. Dixon, 308 Ill. App. 3d 1008, 1016,

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721 N.E.2d 1172, 1178-79 (1999), citing Pub. Act 89-689, §95,

eff. December 31, 1996 (1996 Ill. Legis. Serv. 3527, 3541

(West)). The backlog also may explain the transfer of this case

from the Fourth District of OSAD to the Fifth District of OSAD.

See also, e.g., Strunck v. United States, 412 U.S. 434, 436, 37

L. Ed. 2d 56, 60, 93 S. Ct. 2260, 2262 (1973) (in determining

whether the sixth amendment was violated, delay caused by

understaffed prosecutors weighs less heavily than intentional

delay calculated to hamper defense).

Finally, the delay asserted by defendant does not

justify "the severe remedy of dismissing the indictment." United

States v. Loud Hawk, 474 U.S. 302, 317, 88 L. Ed. 2d 640, 655,

106 S. Ct. 648, 657 (1986); Barker v. Wingo, 407 U.S. 514, 522,

33 L. Ed. 2d 101, 112, 92 S. Ct. 2182, 2188 (1972); People v.

Crane, 195 Ill. 2d 42, 62, 743 N.E.2d 555, 567 (2001)

(incarcerated defendant's murder conviction was reversed and a

new trial was ordered; the defendant never demanded trial until

24 months had passed; dismissal of charges was too severe a

remedy in light of the defendant's inaction and the seriousness

of charges).

III. CONCLUSION

For the foregoing reasons, we reverse the trial court's

order granting the motion to suppress and remand.

Reversed and remanded.

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McCULLOUGH, J., concurs.

APPLETON, P.J., dissents.

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 PRESIDING JUSTICE APPLETON, dissenting:

I respectfully dissent and would affirm the trial

court's order suppressing the evidence. The majority's opinion

thwarts the rights guaranteed by the fourth amendment. In

factually similar cases, both this court and the United States

Supreme Court have held that an anonymous tip, without

corroboration, is insufficient to justify a stop and search.

Nevertheless, the majority holds otherwise. The majority relies

on the creation of a material fact to distinguish this case from

this court's decision in Sparks and the Supreme Court's decision

in J.L.

In Sparks, a known informant told police that the

defendant was going to be arriving in Springfield from Texas in a

car with contraband. The informant provided the following

information to the police: (1) the defendant's name, race, and

age; (2) the make, model, color, and license-plate number of the

car; and (3) the date and approximate time that the car would be

arriving in Springfield from Texas on Interstate 55. Compared to

the facts of this case, the officers in Sparks had a tremendous

amount of detail that could be used to assure them that the

informant had "inside information" (see J.L., 529 U.S. at 271,

146 L. Ed. 2d at 260-61, 120 S. Ct. at 1379). Yet, we held it

was not enough. Sparks, 315 Ill. App. 3d at 795, 734 N.E.2d at

223. In our opinion, the tip did not provide the officers with

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the required reasonable suspicion to justify a Terry stop because

"[t]he informant did not indicate that he had witnessed any

criminal activity by defendants or that he had participated in

previous criminal activity with them, which would have lent some

credibility to his story." Sparks, 315 Ill. App. 3d at 794, 734

N.E.2d at 223.

The majority skirts the precedential effect of Sparks

by blindly asserting that the anonymous caller "witnessed the

original activity--selling drugs--and the tip had sufficient

detail to permit the reasonable inference the anonymous caller

actually witnessed what she described. Unlike Sparks, the

informant in our case did indicate he witnessed criminal

activity, which lent credibility to his story." (Emphasis in

original.) Slip op. at 10.

Attempting to add credence to the tipster's description

of defendant, his vehicle, his location, and his purported

criminal activity, the majority insists that the caller's

statement that defendant was selling drugs from the trunk of the

vehicle equates to an eyewitness account of the same. The

Supreme Court has emphatically held otherwise. J.L., 529 U.S. at

272, 146 L. Ed. 2d at 261, 120 S. Ct. at 1379. In J.L., the

anonymous caller told police that "a young black male standing at

a particular bus stop and wearing a plaid shirt was carrying a

gun." J.L., 529 U.S. at 268, 146 L. Ed. 2d at 259, 120 S. Ct. at

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1377. The Court held that "[s]uch a tip, however, does not show

that the tipster has knowledge of concealed criminal acitivity.

The reasonable suspicion here at issue requires that a tip be

reliable in its assertion of illegality, not just in its tendency

to identify a determinate person." J.L., 529 U.S. at 272, 146 L.

Ed. 2d at 261, 120 S. Ct. at 1379. The Court did not infer from

the information contained in the tip that the caller actually

witnessed the defendant carrying a gun at the bus stop, nor

should this court impute from the information contained in the

tip that the caller actually witnessed defendant selling drugs

from his car. As the Court noted in J.L., "[a]ll the police had

to go on in this case 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." (Emphasis added.) J.L., 529 U.S. at

271, 146 L. Ed. 2d at 260-61, 120 S. Ct. at 1379. If we

substituted the word "gun" for "drugs" in the preceding sentence,

this case and J.L. would be identical. The caller's report was

not sufficient in J.L., and it is not sufficient here.

The majority relies on an uncorroborated telephone call

to evade the fourth amendment. For these reasons, I would affirm

the trial court.

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