O'Toole v. Commonwealth

BENTON, Judge,

dissenting.

Only if an anonymous “tip” contains sufficient quality and quantity of detail to overcome the inherent unreliability that flows from the anonymity of its source does the “tip” rise to the level of reasonable, articulable suspicion, the standard required to conduct a Terry stop. Beckner v. Commonwealth, 15 Va.App. 533, 536-37, 425 S.E.2d 530, 532-33 (1993). When, as in this case, an informant relays to the police information from another unidentified person, the source of the “tip” is anonymous and has no inherent reliability. “‘It simply “makes no sense to require some indicia of reliability that the informant is personally reliable but nothing at all concerning the source of his information.’”” Id. at 533, 536-37, 425 S.E.2d at 532.

“An important element in establishing the reliability of an anonymous tip is the predictive nature of the information.” Hardy v. Commonwealth, 11 Va.App. 433, 435, 399 S.E.2d 27, 28 (1990). The Supreme Court of the United States, in “a close case,” Alabama v. White, 496 U.S. 325, 332, 110 S.Ct. 2412, 2417, 110 L.Ed.2d 301 (1990), concluded as follows:

*545[T]he independent corroboration by the police of significant aspects of the informer’s predictions imparted some degree of reliability to the other allegations made by the caller.
[It is] also important that, as in [Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)], “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. (emphasis added) (citations omitted).

The “tip” that the police received regarding O’Toole was not of a quality that would have imparted an intrinsic belief that the anonymous source was operating upon a basis of knowledge and not a hunch. Nothing contained in the tip allowed the trial judge to conclude that the anonymous source had “inside information [or] a special familiarity” with O’Toole’s activities or affairs. Id. The fact that the police saw a vehicle that matched the description given by the anonymous source means only that the police verified “easily obtained facts and conditions existing at the time of the tip.” Id. Indeed, anyone who had seen O’Toole “could have ‘predicted’ [those] fact[s] because [they were] a condition presumably existing at the time of the call.” Id. Moreover, the mere fact that O’Toole was in the vehicle did not verify the uncorroborated statement that O’Toole was making rounds to deliver cocaine. See Hardy, 11 Va.App. at 435, 399 S.E.2d at 28 (seeing a person is not verification that a person is carrying an object). See also Carter v. Commonwealth, 9 Va.App. 310, 387 S.E.2d 505 (1990).

In White, the police were told the current location of the suspect, the time of the suspect’s intended departure, the vehicle the suspect intended to use, the suspect’s intended destination, and the description of the valise in which the suspect would be carrying cocaine. 496 U.S. at 327, 110 S.Ct. at 2414-15. In this case, the anonymous tipster gave neither a time nor a specific destination for O’Toole’s activities. The “tip” only indicated that she would be “making the rounds.” *546Thus, the critical deficiency in this case, and the significant factor which distinguishes this case from White, is the lack of facts predicting future behavior which would indicate “a special familiarity” with O’Toole’s affairs. Id. at 332, 110 S.Ct. at 2417. See also State v. Bullington, 165 Ariz. 11, 795 P.2d 1294, 1297 (Ct.App.1990); Brown v. U.S., 590 A.2d 1008, 1023-24 (D.C.1991); Commonwealth v. Lyons, 409 Mass. 16, 564 N.E.2d 390, 393 (1990); State v. Bedolla, 111 N.M. 448, 806 P.2d 588, 592 (Ct.App.), cert. denied, 111 N.M. 416, 806 P.2d 65 (1991).

The facts relied upon when the police made the stop were not qualitatively more than an “inchoate and unparticularized suspicion or ‘hunch.’ ” Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968).

If a hunch is not enough for a police officer to effectuate a stop, it follows that the hunch of an unnamed informant, albeit an informant with some indicia of personal reliability, is also not sufficient. The fact that the informant’s hunch is conveyed to the police officer does not raise the hunch to the level of reasonable suspicion. “Manifestly, this conduct falls below activity necessary to justify a reasonable suspicion that a violation of law had occurred or was occurring.”

Beckner, 15 Va.App. at 537, 425 S.E.2d at 533 (quoting Zimerman v. Commonwealth, 234 Va. 609, 612, 363 S.E.2d 708, 710 (1988)).

Because the tip “falls short of providing the ‘minimal level of objective justification’ ” required to conduct a Terry stop, Brown, 590 A.2d at 1023, I would hold that the trial judge erred in refusing to suppress the evidence. I dissent.