dissenting.
I would respectfully dissent, as I find it greatly disturbing that the simple purchase of more than one package of cold medication 23 could subject a citizen to an investigatory stop by law enforcement.
The State argues that the stop was permissible because Officer McCoy had reasonable suspicion of criminal activity based upon the report by Majors that the two men had each bought three packages of ephedrine. The State specifically argues that it was the "large quantity" of the methamphetamine precursor ephedrine which was purchased that created the reasonable suspicion. State's Br. at 6. However, beyond the fact that there were three packages of ephedrine, there is no evidence as to the quantity. We do not know what size packages these were, eg. containing twelve pills or forty-eight pills each, and there was no testimony as to the recommended dosage of these pills If, hypothetically, the packages contained twelve pills each, to be taken every four *352hours, and each man had a family with several individuals sick, the purchase of three packages apiece would not amount to criminally suspicious behavior.24
The majority finds that it was reasonable for McCoy to infer that the two men knew of, or might have suspected the existence of, the store policy of alerting police upon the purchase of "certain quantities and/or combinations of methamphetamine precursors and that they had attempted to purchase one such precursor in a manner calculated to avoid suspicion." Op. at 346. I do not find this to be a reasonable inference, inasmuch as the men bought the quantity which had been deemed suspicious and prompted notification of authorities. It might have been arguably reasonable to so infer had the men only bought two packages of medication each,. Nevertheless, I find nothing in the criminal statutes or in the common law which would lead me to find that the purchase of cold medicine could support the reasonable suspicion of criminal activity and thereby warrant an investigatory stop. Therefore, in my opinion, the evidence here does not lead to a result opposite the trial court's conclusion-that the articulated facts known to McCoy 25 did not warrant official intrusion on Bulington's "right to personal security free from arbitrary interference by law enforcement." (App. 60). See Glass, 769 N.E.2d at 641.
Under Article 1, Section 11, of the Indiana Constitution, an investigatory stop is permissible if the officer reasonably suspects that the individual "is engaged in, or about to engage in, illegal activity." Mitchell v. State, 745 N.E.2d 775, 786 (Ind.2001). "Reasonable suspicion exists if the facts known to the officer, together with the reasonable inferences arising therefrom, would cause an ordinarily prudent person to believe that eriminal activity" has occurred or is about to occur. Id. at 786-87. The State again argues that the stop was reasonable based on the information that the two men "were in possession of a large quantity of ephedrine, a precursor for methamphetamine." State's Br. at 6. For the same reasons that I find the evidence articulated by McCoy for having stopped Bulington to be insufficient to justify a stop permissible under the Fourth Amendment to the U.S. Constitution, I would also find the evidence does not warrant the stop under Article 1, Section 11, of the Indiana Constitution.
Finally, the State contends the stop was required because McCoy had a duty to confirm the information from Majors, cit*353ing State v. Eichholiz, (52 N.E.2d 163 (Ind.Ct.App.2001). In Hichholtz, a citizen gave the license plate number and description of a vehicle which he reported to the 911 operator as crossing into the opposite lane of traffic and driving onto curbs. We held that because the citizen identified himself to the 911 operator such that he could have been held legally responsible for having filed a false police report, it was sufficient to justify an investigatory stop by police. In Eichholtz, the actions reported to the police, if true, constituted fllegal conduct. If the actions had been observed by an officer, the officer could have executed an investigatory stop. However, here, what was reported to the police was not illegal conduct. As McCoy testified, no law proscribes the purchase of three packages of ephedrine; even if McCoy had observed Bulington make the purchase, in my opinion he would not have had suffi-client grounds for an investigatory stop based solely thereon.
Finally, the State contends that the search of Bulington's truck was legal "because Bulington freely and voluntarily consented to the search" after having been stopped by MceCoy for "a brief investigation based on reasonable suspicion." State's Br. at 8. I would not reach this argument because I would find that McCoy's initial stop of Bulington was illegal-as it was not based on reasonable suspicion. Thus, because in my opinion Bulington was subject to an illegal seizure, the evidence derivatively gained as a result of that seizure should be excluded as the "fruit" of that illegal seizure, or "fruit of the poisonous tree." See Hanna v. State, 726 N.E.2d 384, 389 (Ind.Ct.App.2000).
Accordingly, I would affirm the trial court.
. The record indicates that the Meijer clerk testified that the men were looking at "nasal decongestants," and Majors testified that one man bought "cold medicine" and the second bought "antihistamine." (Tr. 15). Officer McCoy testified that he had been informed that the men purchased ephedrine.
. I further note that the record indicates that LPD was to be called when Meijer personnel saw someone purchase "three boxes or more of cold medicine, antihistamines, Robitussin...." (Tr. 11). Thus, if one was suffering cold symptoms and bought Robitussin, an antihistamine product, and a throat spray, under the majority opinion that person would be subject to an investigatory stop by law enforcement such as was conducted here.
. At the hearing on the motion to suppress, McCoy testified that he was dispatched on a report of two men who "had purchased the maximum amount of ephedrine." (Tr. 32). Asked what was meant by "the maximum amount," McCoy answered, "three boxes per person," but then testified that he was not aware of any law limiting to three the number of ephedrine packages a person could legally purchase. (Tr. 46). When asked why he had stopped Bulington, he testified that it was the Meijer store report about the men having "purchased the maximum amount" and "that they were acting in a suspicious manner." (Tr. 32). However, McCoy provided no testimony about any reported suspicious action, and he did not testify that he had witnessed any suspicious action by Bulington and his passenger. Furthermore, Majors did not testify to having reported any suspicious act by Bulington other than the three-package purchase. McCoy also conceded at the hearing that there had been no traffic violation and that he had no basis for a traffic stop.