People v. Garcia

Justice ROVIRA

dissenting:

I respectfully dissent. Because I believe that the specificity of the informant’s detailed information, coupled with the degree of corroboration, created a reasonable suspicion that defendant was engaged in criminal activity, I would reverse the trial court’s suppression order.

We have held that an anonymous tip, when corroborated by further observations by police officers, may provide a specific and articulable basis in fact to suspect that a defendant is involved in criminal activity. People v. Contreras, 780 P.2d 552 (Colo.1989). The focal point of our analysis is whether the corroborated information is sufficiently reliable to satisfy the reasonableness requirement of the fourth amendment. Guidance for this analysis, in turn, may be found in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), in which the United States Supreme Court discussed the factors which support probable cause when relying on an informant’s tip. Because probable cause is a higher standard than that of reasonable suspicion, the Court’s analysis may certainly be applied in assessing whether the less stringent standard has been met.

In Gates, the Court held that the informant’s basis of knowledge, the veracity of the informant and the reliability of the reported information are “highly relevant” in evaluating the value of an informant’s tip. It rejected a rigid two-pronged analysis which would require that these factors be proved independently, adopting instead a “totality of the circumstances” approach to evaluating the credibility of an informer’s report.

Gates, although involving the issue of probable cause, is helpful in an evaluation of this case because the facts are so similar. Gates involved an anonymous tip concerning the possession of a large quantity of drugs. The tip was relatively specific, and many of the details were subsequently corroborated by law enforcement officials. In discussing the “reliability” of the information and the “veracity” of the informant, the court emphasized the degree of detail reported, and the fact that almost every detail had been independently corroborated. Further, the court indicated that corroboration of entirely innocent details was sufficient to support a probable cause determination. Finally, the informant’s “basis of knowledge” was demonstrated by the degree of detail and the subsequent reliability of those details.

In this case, it is evident that the officers were in possession of specific and articula-ble facts. Although the informant was anonymous, the degree of detail and subsequent police corroboration lend credence to the informant’s statement that the defendant would be in possession of illegal drugs at the time indicated by the informant. The informant provided a description of the vehicle involved, including its license number and location. Moreover, the complete first, middle, and last name of the driver was provided, and the date and time of his departure was detailed. Finally, the type and amount of the illegal drug was specified, as well as the location in which it would be found. This degree of specificity indicates that the informant based his report on “something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.” Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, *1951514, 12 L.Ed.2d 723 (1964); see also State v. Hasenbank, 425 A.2d 1330 (Me.1981).

The police were also able to corroborate a substantial part of the caller’s information prior to stopping the defendant. They found the vehicle described by the informant, with license tags bearing the correct number, at the location which the caller reported the car would be found. Moreover, the caller’s prediction of the future action of a third party proved accurate when a man entered the vehicle at the predicted time and started to drive away. The corroboration of these details supported an inference that the informant’s other statements were true. “Because an informant is right about some things, he is more probably right about other facts.” Gates, 462 U.S. at 244, 103 S.Ct. at 2335; People v. Villiard, 679 P.2d 593 (Colo.1984).

The majority indicates that the corroboration of the details of the call should not be accorded much weight because the observed actions were- “not at all suspicious.” Op. at 193. However, Gates makes it quite clear that observation of innocent behavior is sufficient to demonstrate the reliability of the informant’s tip so as to establish reasonable suspicion. Seemingly innocent activity becomes suspicious in light of the initial tip. “In making a determination of [reasonable suspicion] the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.” Gates, 462 U.S. 213 n. 13, 103 S.Ct. 2317 n. 13.

The sufficiency of corroboration of innocent details was also demonstrated in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). In Draper, an informant provided information concerning a person who was trafficking drugs. He gave a physical description of the defendant and of the clothing he would wear, predicted that the defendant would arrive in Denver on a train from Chicago on either the 8th or 9th of September, and stated that defendant “walked real fast.” On September 9, law enforcement officials saw a person, matching the physical description and wearing the clothing described by the informant, alighting from a train from Chicago and walking quickly to the exit. The United States Supreme Court found that this degree of corroboration, albeit of innocent details, was sufficient to establish probable cause to arrest the defendant. See also United States v. Gomez, 776 F.2d 542 (5th Cir.1985); People v. Melgosa, 753 P.2d 221 (Colo.1988).

The majority voices concern about the information which the informant did not provide, to show that the tip was “not very specific or complete.” Op. at 192. As discussed above, I believe that the degree of detail provided by the caller made the information quite specific. Further, I disagree with an approach which focuses on the details which are lacking rather than the quantity and sufficiency of information which ?⅛ conveyed. The determination of reasonable suspicion must be based on the actual information provided by an informant, and we should not measure this information against the infinite range of details which potentially could have been included. What might have been is no substitute for what is. Reasonable suspicion “simply does not require the perfection the [majority] finds necessary.... Indeed, the line-by-line scrutiny that the [majority] applies to the anonymous [tip] is akin to that which we find inappropriate in reviewing magistrate’s decisions.” Gates, 462 U.S. at 245 n. 14, 103 S.Ct. at 2336 n. 14.

Numerous other courts have found that reasonable suspicion was established based on the corroboration of innocent details of an anonymous tip. For example, in United States v. McBride, 801 F.2d 1045 (8th Cir.1986), cert. denied, 479 U.S. 1100, 107 S.Ct. 1325, 94 L.Ed.2d 177 (1987), an anonymous caller stated that defendant had just left his house with heroin, described the car and license plate, and indicated that defendant was heading in a particular direction. Four hours later, law enforcement officials saw a car which matched the description, bearing appropriate license plates, in the vicinity of the described location. The court held that the caller’s information and the subsequent corroboration were sufficient to create a reasonable suspicion that *196defendant was involved in criminal activity. In United States v. Aldridge, 719 F.2d 368 (11th Cir.1983), police received an anonymous tip that persons in a large white automobile, possibly a General Motors or Chrysler product, with a broken tail light, were tampering with vehicles at a construction site. As the officer approached the site, he passed a large, white automobile with a broken tail light going in the opposite direction. The court held that although the officer could only corroborate innocent details of the anonymous tip, the facts were sufficient to justify an investigatory stop.

Finally, in State v. Thomas, 542 A.2d 912 (N.J.1988), police received an anonymous tip that a person named Ike was in possession of illegal drugs in a certain bar. The caller described the suspect’s clothing. Upon investigation, only one of the approximately twenty-five patrons in the bar matched the description. Further, police recognized the suspect as one who had been arrested in the past for drug possession. The court held that the detailed description of the suspect and its corroboration created reasonable suspicion sufficient for an investigatory stop. See also United States v. White, 648 F.2d 29 (D.C.Cir.), cert. denied, 454 U.S. 924, 102 S.Ct. 424, 70 L.Ed.2d 233 (1981); United States v. Johnson, 540 A.2d 1090 (D.C.App.1988); State v. Webb, 398 So.2d 820 (Fla.1981); State v. Hetland, 366 So.2d 831 (Fla.App.1979), aff'd, 387 So.2d 963 (Fla.1980); Graham v. Commonwealth, 667 S.W.2d 697 (Ky.App.1983); Commonwealth v. Anderson, 366 Mass. 394, 318 N.E.2d 834 (1974).

In view of the degree of detail and corroboration in this case, I believe that the information possessed by law enforcement officers rose to the level of reasonable suspicion so as to justify an investigatory stop. “The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape.” Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972).

Accordingly, I would reverse the trial court’s order suppressing the drugs found in the search of the vehicle.

I am authorized to say that Chief Justice QUINN and Justice MULLARKEY join me in this dissent.