(dissenting).
I respectfully dissent and I would affirm the order of the district court suppressing the seized evidence. I would hold that the information provided in the anonymous tip, taken together with the observations made by the officers at a distance of one hundred yards and as they approached Edmond and the car, did not afford them probable cause to believe that the trunk of the car contained evidence of a crime.
The majority opinion is troublesome because it would permit government invasion of the privacy of persons solely on the basis of anonymous tips, made perhaps out of mischief or vengeance, just because innocent details might be corroborated by the observations of a police officer. As we observed in United States v. Jordon, 530 F.2d 722, 724 (1976), the Supreme Court has held that information from an informant may provide the basis for probable cause, but only if “there [is] some indication of the underlying circumstances from which the informant concluded that the facts are as he says they are, and there [is] some [proof] of the underlying circumstances from which the officer concluded that the informant was credible or his information reliable.” Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The tip in this case satisfied neither of these requirements.
In some cases, the detail related by an informant may permit a conclusion that the informant’s knowledge is based on something more substantial than casual rumor. See Spinelli, supra, 393 U.S. at 416, 89 S.Ct. 584. In some cases, the police may have had sufficient prior experience with the informant to enable them to conclude that he is reliable. In Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), on which the majority opinion heavily relies, both of these elements were present. The information furnished in Draper by the informant Hereford provided, with minute particularity, details, all of which were corroborated by police observations, about Draper: his clothing, his travel plans, and the activity in which he was involved. Also, Hereford had been a special employee of the Bureau of Narcotics for six months, and had given the narcotics agent with whom he worked information, which had always proved to be accurate and reliable, about violations of the narcotics laws. In the appeal before us, however, neither the basis for the informant’s information, nor the fact of his trustworthiness was established by the anonymous tip.
Clearly, the anonymous tip did not afford probable cause. Nevertheless, I agree with the majority opinion that an otherwise insufficient tip can be augmented to the point of affording probable cause by police observations which might verify the information provided by the tip. This verification may, in some cases, satisfy both requirements: that the information was obtained in a reliable way and that the informer was trustworthy. But when a tip is received from a completely unknown source, there must be some independent verification of the fact that criminal activity has occurred. The observation of innocent behavior alone is not sufficient. The majority opinion relies on “the suspicious conduct of Edmond after he spotted the officers when he . took out an object . . . and transferred it to the trunk” as verification of the criminal nature of the activity the officers observed. However, the district court’s finding that the transfer was made “[a]t one point during the surveillance” is not a finding that the transfer was made in response to Edmond’s realization that the officers, who were not in uniform and drove an unmarked car, were observing his actions. Also, a person’s transfer of an unidentified object from the interior of a pas*1261senger vehicle to its trunk is neither a criminal act nor inherently suspicious just because it was made during a period of police surveillance of which the transferer might have been unaware.
Good police practices required the officers to investigate the tip, and their observations may have heightened their suspicions to encourage them to continue their surveillance until they observed criminal activity. Nevertheless, mere suspicion does not constitute probable cause and does not permit police officers to invade an area protected by the Fourth Amendment. The circumstances here are unlike those in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1971), or Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), where the officers’ investigation created a serious risk to their safety and therefore a limited frisk of a suspect was reasonable. And even if these officers were permitted to search, as they did, the person of appellee and the interior of his car, they found no evidence of any crime and were afforded no additional reason to search the locked trunk beyond their earlier observation of the transfer of an unidentified object. In fact, the failure of the search to disclose any evidence of a crime made the earlier observation less implicative of any unlawful activity.
The majority opinion further suggests that “exigent circumstances” existed that justified the search of the automobile. If the opinion is suggesting that an automobile, because it is moveable, may be searched without probable cause, it is obviously wrong. Searches of automobiles conducted without probable cause have been upheld only when they are a necessary incident of a caretaking function, and only when no investigatory motive was involved. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). If the majority opinion is suggesting that “exigent circumstances” may lessen the standard for probable cause, it offers no support for this novel idea. Exigent circumstances become relevant only after probable cause has been found and then only to determine whether a warrant must be obtained.
Finally, I dissent from the suggestion in the majority opinion that evidence seized by constitutionally impermissible means should not be suppressed in federal prosecutions if no claim of innocence is asserted. Although this may be a proper consideration in federal collateral review of state convictions where the issue of a claimed unconstitutional search has been fully and fairly litigated in state courts, see, e.g., Stone v. Powell, 423 U.S. 817, 96 S.Ct. 29, 46 L.Ed.2d 34 (1976), it has no application in direct criminal appeals.