Commonwealth v. Lyons

Nolan, J.

(dissenting). I recognize that, without some indicia of reliability, an anonymous tip cannot provide reasonable suspicion sufficient to justify an investigative stop. However, the United States Supreme Court has recently held, on almost identical facts, that an anonymous telephone tip, as corroborated by independent police observations, has sufficient indicia of reliability to provide reasonable suspicion to make an investigatory stop. Alabama v. White, 110 S. Ct. 2412 (1990). In White, the police received an anonymous telephone tip that the respondent would be leaving a certain apartment building, at a certain time, in a certain vehicle, headed to a certain destination (motel), and would be in possession of cocaine. Id. at 2414. The police then corroborated that the respondent left the apartment building, that she entered the described vehicle and that she drove the most direct route to the reported destination. The police then pulled the vehicle over and made an investigatory stop just short of the destination. The Supreme Court upheld the stop.

The court distinguishes White from this case by stating that the decision was based on a “totality of the circumstances” test which has been rejected by this court. However, even under the standard espoused by the court today, I would rule that the search was reasonable. The court states: “[I]f the police conduct an investigatory stop based on an *23informant’s tip, our evaluation of the tip’s indicia of reliability will be focused on the informant’s reliability and his or her basis of knowledge. Independent police corroboration may make up for deficiencies in one or both of these factors” (emphasis added). Ante at 19.

The court recognizes that, “[b]ecause the standard [for an investigative stop] is reasonable suspicion rather than probable cause, a less rigorous showing in each of these areas is permissible.” Ante at 19. It follows that less rigorous independent corroboration is also permissible. In this case there was sufficient corroboration to make the officer’s suspicions reasonable and the stop permissible even under the court’s test.

The officer set up a stakeout in Newburyport on Interstate 95, the logical route from Chelsea to Maine. At about 2 a.m., some forty-five minutes after the vehicle had reportedly left Chelsea, the officer saw two white males in a silver Hyundai automobile with Maine registration number 440-44T, heading toward Maine. In short, everything which could be externally ascertained about the veracity of the tip was confirmed.

The court asserts that the tip was deficient in that it demonstrated no familiarity with the defendants’ affairs and the police did not corroborate any predictive details that were not easily ascertainable by an uninformed bystander. This analysis is overly strict. At least where the standard is reasonable suspicion, the corroboration which the officer made was sufficient to compensate for the lack of information relative to both the reliability of the informant and the basis of the informant’s knowledge.

The officer was able to corroborate that the informant knew of the activities of the defendants by spotting the vehicle on a route to Maine, within an accurate time frame after it reportedly left Chelsea. The informant was able to predict where the defendants would be at a certain time. Such accurate prediction of future events certainly lends credence to the rest of the informant’s story that criminal activity was afoot.

*24The court asserts that “another driver equipped with a car telephone could have provided the same details.” Ante at 20-21. In order to do so, that other driver would have to predict accurately that the car was going to head to Maine from Chelsea. Even assuming that the Maine registration number made such a prediction possible, reasonable suspicion is not defeated. Simply because we can imagine some scenario in which the tip is false, we should not find reasonable suspicion lacking. In this case, the officer had specific, articulable facts on which to base his suspicion; he did not stop the vehicle on a “hunch.” I would hold that the initial stop of the vehicle fully comported with all constitutional requirements.

Once again, the court succeeds in imposing its own limitations on the power available to police officers to protect the public. I dissent.