State ex rel. H. B.

Pashman, J.,

concurring in dissent. I substantially agree with the well-reasoned analysis of Justice Handler’s dissent. However, I feel constrained to note that, where the facts indicate objective evidence of danger to the policeman, I would uphold the validity of a frisk. The circumstances of this case do not square with those of Terry v. Ohio, 392 U. S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) because the danger to the officer was not so clearly evident here. In Terry a policeman of some 39 years experience, 35 of which included walking a beat in the vicinity of the place where the frisk took place, had made careful observations of the suspects before taking action. Only after three men had been observed for ten to twelve minutes engaging in contrivedly causal and oft-repeated reconnaisance of a store window did the officer approach them and identify himself. When they mumbled in response to his inquiries, the officer gave defendant Terry a pat down and felt an object that seemed to be a pistol.

In this case the officer was acting pursuant to an anonymous tip that had been phoned in at headquarters. Aside from the fact that defendant fit, in general non-unique particulars, a description of the armed person mentioned in the tip, he had no reason to believe that defendant was a danger to the patrons of the luncheonette or to himself. Nothing suspicious was going on — defendant was merely sitting at a booth with some young women. There is no indication that any actions of the defendant ever gave the officer any objective, observable cause to fear' for his safety. It is also important to note that the officer in this case was -accompanied into the luncheonette by his partner.1 Thus, he had less reason to be fearful than did the lone patrolman in Terry. In addition, the record is bereft of any suggestion that the luncheonette was a “trouble spot” or even that the *270neighborhood was particularly crime-ridden, factors which might otherwise have enhanced the officer’s apprehensions of danger.

While I do not doubt that demanding an extremely detailed description before allowing police to investigate anonymous tips would severely hamper their crime fighting efforts, such a tip, without more, does not provide an unrestricted license automatically to engage in a frisk of a suspect. Even where police are dealing with a known reliable informant, as in Draper v. United States, 358 U. S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959), Spinelli v. United States, 393 U. S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1968), or Aguilar v. Texas, 378 U. S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), they are required to find some confirmatory evidence before taking action. While these are search and seizure rather than pat down cases, the requirement of some objective supporting evidence to back the tip differs only in degree. The officer must have reason to believe that the person about to be searched is armed and dangerous, and that either he or other persons are in danger of being physically attacked. Terry, 392 U. S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909.

Moreover, the officer’s judgment is not to be measured against a subjective standard, but must reflect that of a “reasonably prudent man in the circumstances.” Id. Adams v. Williams, 407 U. S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972), is illustrative of the kinds of factors from which an officer could reasonably infer that his investigation of a suspect carries a discernible physical danger — a risk substantially beyond that faced by any uniformed law officer in normal circumstances. The officer in Adams was alone on patrol in a high crime area at 2:15 a.m. when he was approached by a known informant and told that the person in a nearby car was not only armed but carrying narcotics. When the suspect was approached by the officer and asked to open the car door, he merely rolled down the window. The officer’s subsequent reaching into the open window and *271seizing of a gnn from the suspect’s -waistband was upheld. The officer’s belief that the suspect might use a concealed weapon against him was reasonable under the circumstances. And even where these circumstances are present, the -officer is entitled to do only what is “minimally necessary to learn whether the [person] were armed and to disarm [him] once he [discovers] the weapons.” Terry, 392 U. S. at 30, 88 S. Ct. at 1884, 20 L. Ed. 2d at 911. The facts in this case do not establish a similar entitlement to frisk.

Furthermore, the State admitted that tapes were made of each call coming into police headquarters, but that the tape of the tip in this case had been destroyed. While I do not impugn the motives or veracity of the officers in this case, I believe that any doubts which might arise in a situation such as this might easily be avoided by requiring police to retain corroborating evidence for later use at trial. Accordingly, I advocate adoption of a prospective rule requiring police to retain corroborating evidence such as telephone tapes of an anonymous tip. This, of course, should not be taken to mean that police should not take immediate action if they receive a tip which they cannot confirm. For instance, a policeman on patrol who is given a tip by an individual who later cannot be identified may be able to supply the trial judge with other evidence which sufficiently supports the existence of the tip and the accuracy of the information supplied to the officer. See, e. g., Commonwealth v. Anderson, 366 Mass. 394, 318 N. E. 2d 834 (Sup. Jud. Ct. 1974); Gaskins v. United States, 262 A. 2d 810 (D. C. App. 1970). As pointed out by the dissent, a tip given directly to a police officer has some color of trustworthiness, even if delivered by a person theretofore unknown to him and subsequently unidentifiable. There is present a psychological element of personal accountability wholly lacking where the tip comes from an unknown voice over the telephone.

It should he recognized that even the limited search involved in this case can entail a substantial intrusion into *272a person’s privacy. An individual who is stopped on the street or in a public place and patted down or frisked may be humiliated in front of friends, business associates or relatives. While I recognize that such occurrences may at times be an unfortunate consequence of the violent world in which we live, I am unwilling to increase the chances of having needless searches take place. The prophylactic rule which I have suggested should serve to reduce that possibility, yet leave police free to perform their necessary duties.

Justice Handler joins in this opinion.

Mountain, Sullivan and Schreiber, JJ., concurring in the result.

For affirmance — Chief Justice Hughes and Justices Mountain, Sullivan and Schreiber — 4.

For reversal — Justices Past-iman, Clieeord and Handler —3.

The partner, Officer Oomito, did not testify and his exact whereabouts with respect to Officer Finn’s is not clear. However, it is fair to state that Finn’s partner, being inside the luncheonette, was clearly near enough to provide support if needed.