Commonwealth v. Priddy

COOPER, Justice,

dissenting.

Appellee, Lloyd A Priddy, entered a conditional plea of guilty, RCr 8.09, to possession of a controlled substance in the first degree, a Class D felony, KRS 218A.1415; possession of drug paraphernalia, a Class A misdemeanor, KRS 218A500; owning or operating a motor vehicle without insurance, a misdemeanor, KRS 304.39-080(5), KRS 304.99-060; arid persistent felony offender in the second degree, KRS 532.080(2). He was sentenced to an enhanced term of five years in prison. His convictions were premised entirely upon evidence obtained by Officers Michael Koenig and J. Bailey of the Jefferson County Police Department during a Terry stop of Appellee’s vehicle at the intersection of New Cut and Outer Loop Roads on September 4, 1999. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Appellee moved to suppress the evidence on grounds that Koenig had no legal basis for stopping him, thus the evidence obtained during the search of his person and his vehicle was the “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963). Following a fifteen-minute suppression hearing, the trial court overruled the motion. The Court of Appeals reversed. The majority of this Court has concluded that the Court of Appeals’ decision was in error. Because I conclude otherwise, I dissent and would affirm the Court of Appeals.

I. SUBSTANTIAL EVIDENCE.

RCr 9.78 provides, inter alia:

If at any time before trial a defendant moves to suppress ... the fruits of a search, ... the trial court shall conduct an evidentiary hearing outside the presence of the jury and at the conclusion thereof shall enter into the record findings resolving the essential issues of fact raised by the motion or objection and necessary to support the ruling. If supported by substantial evidence the factual findings of the trial court shall be conclusive.

(Emphasis added.)

In response to the trial court’s order for a bill of particulars, RCr 6.22, the prosecutor filed in the record the following description of the events leading to Appel-lee’s arrest:

On September 4,1999 at approximately 2100 hours, at 191 Outerloop [sic] Road in Jefferson County, Kentucky, Officers received information that the defendant was at 191 Outerloop [sic] Road on the lot of K-Mart, driving a 70’s model black Ford pick-up with primer on front part of truck. Through investigation, the defendant matching the description operating a late 70’s model Ford pick-up truck with primer was leaving 191 Outerloop parking lot. Officer conducted a stop and observed the defendant moving in the vehicle, in a frantic behavior. The defendant was asked to exit the vehicle, for a pat down for weapons. Officer J. Bailey conducted the pat-down and both observed and felt a bulge in front of pants. The defendant produced a crack pipe wrapped *513in a red rag. The defendant stated to Officer Bailey that he had some crank in his pants. The defendant was miran-dized [sic] and placed into custody. Officer Koenig found Marlboro box which contained a large piece of suspected crank packaged for sale.
Witnesses for the Commonwealth include but are not limited to: Jefferson City [sic] Police Department Officer R. [sic] Koenig, Officer S. [sic] Bailey; Metro Narcotics Unit; Det. F. Kron, Det. P. Ray, Det. D. Mahaffey, Sgt. D. Puckett, Sgt. D. Hogue.
The Commonwealth hereby gives notice of intent to call an expert witness in the field of narcotics should this case proceed to trial.

Note that the bill of particulars does not mention either an alleged narcotics transaction or a meeting between Appellee and another person. Nor does it identify the source of the “information” or indicate that the identity and location of the source was obtained or known by the Commonwealth.

The only witness at the suppression hearing was Officer Koenig. He testified as follows on direct examination by the prosecutor:

Q: Thank you. I want to draw your attention to that day. Do you recall conducting an investigation against a Mr. Lloyd Priddy?
A: Yes, ma’am. I do.
Q: Can you tell the court how that investigation began?
A: Yes, ma’am. I was traveling westbound on the Outer Loop approaching Third Street in my patrol car responding to a domestic violence run on Third Street when I was waived down by a subject and I pulled off to the side. That subject then advised me that there was going to be a narcotic transaction going on in the parking lot at K-Mart at 191 Outer Loop Road involving a late 70s Ford pickup truck, black in color with the hood of the truck primered, with an occupant who is approximately six feet, 150, 170 pounds with black, curly hair, shoulder length, operating the vehicle.
Q: Did that person tell you what type of narcotics were being sold from that location?
A: No he didn’t.
Q: And what was the information that you received regarding the narcotics, exactly? That that person would be in possession of them, or—
A: That that person would be selling the narcotics.
Q: But they didn’t specify what kind?
A: No ma’am.
Q: Is that all the information that you received?
A: I received that they would be in the parking lot of 191 Outer Loop selling to an unknown subject out of that vehicle.
Q: Did they give you a time or did they say that they were there right now?
A: That they were there as we spoke.
Q: And what did you do based on that information?
A: I then went eastbound on Outer Loop approaching the Winn Dixie parking lot, which sits right next to the K-Mart, just west of the K-Mart on Outer Loop. I entered the parking lot to the Winn Dixie which is an adjoining parking lot with the K-Mart and drove slowly through the parking lot and I was riding through the K-Mart parking lot and- observed a late 70s model Ford pickup truck, black in color, with a prim-ered hood, with a white male subject with black, curly hair, shoulder length, operating it, and confirmed my information from the informant.
*514Q: Did you see any narcotics being sold from that vehicle?
A: No, ma’am.
Q: What did you do when you saw the truck?
A: When I saw the vehicle, the vehicle was approaching the New Cut road exiting the parking lot.
Q: And what did you do?
A: I activated my emergency equipment and called for a backup car.
Q: Did Mr. Priddy stop when you activated your emergency equipment?
A. Yes, he did. The traffic stop was conducted at the intersection of New Cut and Outer Loop Roads.

(Emphasis added.)

Officer Koenig then described observing Appellee making frantic movements inside the vehicle as he (Koenig) waited for his back-up officer (Bailey) to arrive. When Appellee got out of the truck, Koenig noticed a large bulge in the area of Appel-lee’s groin which was subsequently determined to be a crack pipe. When asked if he was in possession of any other narcotics, Appellee responded that he had some “crack” in his pants. A subsequent search revealed a Marlboro cigarette package containing a controlled substance.

Koenig never claimed that he saw Ap-pellee meet with another person in the K-Mart parking lot or even that another person was in the parking lot. In fact, when he first saw Appellee’s vehicle, it was in the process of exiting the parking lot, and the actual stop was made at the intersection of New Cut and Outer Loop Roads. Much is made in the majority opinion about the information elicited by Appel-lee’s counsel during his three-minute cross-examination of Koenig. Because I agree that the repeated references to Koe-nig’s police report are significant, I have included the following transcript of the entirety of that cross-examination:

Q. Officer Koenig, do you have a copy of your citation there handy?
A. Yes, Ido.
Q. You stated — I assume you wrote the citation. Is that correct?
A. That is correct.
Q. You talk about the information that you received and about pulling over the truck that Mr. Priddy was operating. You said that he moved about, and when he came out, he had a bulge in his groin area. Is that correct?
A. Yes, sir.
Q. Then it says, you all observed a large bulge in front of the pants, subject was placed in custody and “Mirandized.”
A. When we observed the large bulge in his pants, he was escorted ....
Q. [Interrupting] Did you place him in custody at that time — arrest him?
A. No, sir. We actually removed the pipe from his pants and determined that it was a crack pipe with residue in it. At that point, he was placed in custody.
Q. I don’t think ... maybe I missed it about the crack pipe. I don’t see it listed here in that sequence when I was listening to your testimony a moment ago. I know it says a pipe was found but I didn’t realize it was found at that time. It was found before any crack or anything?
A. Yes. The pipe was found prior. And that’s when Lloyd Priddy stated, when we asked him if he had any other narcotics on his person. He stated that he did have crack in his pants and that’s when he was placed in custody and “Mirandized” — and we took him to the station.
Q. How long would you say you sat there waiting for your back-up before you got Mr. Priddy out of his vehicle?
*515A. My back-up caught up at the intersection I was at in maybe ten to twenty seconds.
Q. OK, so he was right there? No further questions.

As we recently held in Collins v. Commonwealth, 142 S.W.3d 113 (Ky.2004):

In order to perform an investigatory stop of an automobile, there must exist a reasonable and articulable suspicion that a violation of the law is occurring. Complications arise when, as here, the information serving as the sole basis of the officer’s suspicion is provided by an anonymous informant, whose veracity, reputation, and basis of knowledge cannot be readily assessed. In situations such as these, we are required to examine the totality of the circumstances, and to determine whether the tip, once suitably corroborated, provides sufficient in-dicia of reliability to justify an investigatory stop.

Id. at 115 (citations omitted). As in Collins, Appellee’s motion to suppress is governed by the United States Supreme Court’s decisions in Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), and Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000).

In White, the anonymous tipster told police that a woman would leave a specified apartment in a certain vehicle at a particular time and that she would be carrying cocaine and going to a designated motel. The police observed the described woman leaving the apartment building, entering the vehicle, and driving toward the motel. The police stopped the vehicle and later discovered cocaine in her purse. 496 U.S. at 327, 110 S.Ct. at 2414-15. The Court upheld the stop because it was supported by predictive information, i.e., the tipster not only provided information readily available to a third party, i.e., the description of the woman and her vehicle, but also accurately predicted the future behavior of the woman, ie., that she would drive toward the motel. Id. at 331-32, 110 S.Ct. at 2416-17. Corroboration by the police of those predictions gave the tip sufficient credibility to justify the stop. Id. at 332, 110 S.Ct. at 2417.

In Florida v. J.L., the police received an anonymous tip stating that a young, black male wearing a plaid shirt and standing at a particular bus stop was carrying a gun. The tipster gave no information predictive of J.L.’s future conduct. Soon after, two officers arrived at the named bus stop and found J.L., a young black male who was wearing a plaid shirt and standing with two other males. The officers made a Terry stop, frisked J.L., and found a gun. 529 U.S. at 268, 120 S.Ct. at 1377-78. The Court held that the search was unlawful since the anonymous tip lacked sufficient indicia of reliability upon which to base a reasonable suspicion. Id. at 271-274, 120 S.Ct. at 1379-80.

One purpose of the “anonymous tipster” rule is to preclude a tipster from making a false accusation to the police for the purpose of harassing or exacting revenge against the person accused. United States v. Christmas, 222 F.3d 141, 144 (4th Cir.2000). The evidence presented at Appel-lee’s suppression hearing was similar to the facts presented in J.L. The tip accurately described Appellee and his vehicle— information available to anyone in a position to observe. The tipster’s only predictive information was that Appellee was selling narcotics to another person. This information, however, unlike the tip in White, was not corroborated. Koenig did not witness a drug transaction or even see another person in the K-Mart parking lot. Although he found a cigarette package containing a controlled substance on Ap-pellee’s person, he did not testify to find*516ing any money which might have been the proceeds of a narcotics sale.

Nevertheless, the trial court overruled the suppression motion, distinguishing this case from Florida v. J.L. as follows:

This case has more detail from the beginning. First, it involves a vehicle that was carefully described as a late 70s black Ford truck, primer on the hood. There was a description of the male as a white male subject six feet tall, I think 150 to 170 pounds is what you said. I didn’t get all the poundage written down, but shoulder length hair. That there would be a narcotics transaction at the K-Mart parking lot at 191 Outer Loop. So this officer goes and is in the Winn Dixie parking lot and sees a vehicle matching that description and also sees him leaving the location after meeting up with another subject. So, by his own observation, he saw something that could indeed be the narcotics transaction.
I think that had he driven to the parking lot and simply seen the truck, even though it’s more detailed than it was in the Supreme Court case, Florida v. J.L., I might be inclined to agree with you, Mr. Conkin, if he just saw the truck and followed the truck and stopped. But his testimony was that he observed him leaving the location after he had met up with another person and then he followed him and he stopped him and I think that that was appropriate, and then the frantic behavior was enough to certainly add to the reasonable suspicion that he had for the stop in the first instance.
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So, it’s a closer call than I see sometimes, because I think somebody gives a description and you find someone at that point and place described that meets the description, I think you are most of the way there. But I think it’s this added factor that’s reflected in his report and it was in his testimony about meeting up with another subject there that pushes it over the line from what we had in Florida, which was just an individual at a bus stop wearing a plaid shirt. It wasn’t a very detailed description and there was nothing to pair with, besides his actual presence.
Here we had the presence of a truck, a person driving that truck that fit exactly and then the presence of another subject with whom the narcotics transaction could be conducted. So, accounting for all those factors and the cases that have been decided, I’m going to overrule the motion to suppress.

(Emphasis added.)

Of course, there was no evidence introduced and no claim made during the evi-dentiary hearing that Koenig observed Ap-pellee meeting with another person in the parking lot or that there was “another subject with whom the narcotics transaction could be conducted.” Officer Koenig did not so testify and specifically denied having observed a narcotics transaction. Nor did the prosecutor claim the existence of such evidence during her oral argument on the motion. She only argued that the informant’s accurate description of Appel-lee and his vehicle and the allegation that Appellee was selling drugs to another person justified the Terry stop. So why did the trial court make a finding of fact that Koenig observed Appellee meeting with another person?

As can be seen by viewing the videotape of the suppression hearing, the trial court was engaged in reading the clerk’s record during Koenig’s testimony. A police report found at page 18 of that record and purportedly signed by “M. Koenig” contains a notation that “Officer went to above location and subject matching description *517was just leaving that location after meeting up with another subject.” (Emphasis added.) Obviously, the trial court based her crucial finding of fact that Koenig observed Appellee “meeting up with another subject” in the parking lot on the statement contained in that report and upon her mistaken belief that she had heard Koenig make the same statement during his testimony.

The police report upon which the trial court relied is filed in the clerk’s record along with other documents that were obviously part of the original district court record, e.g., criminal history record, fingerprint card, district court docket sheet, district court case jacket. Contrary to the assertion in the majority opinion, ante, at 506, Koenig did not testify that he prepared that report or that it was the same report that he was holding in his hand during the suppression hearing. On several occasions, defense counsel directed Koenig’s attention to the latter report; yet, Koenig never mentioned the crucial fact of a meeting between Appellee and another person in the parking lot. He did not introduce the report from which he was testifying into evidence or identify it as a copy of the same document that is found at page 18 of the clerk’s record.

So why was this crucial fact of an alleged meeting between Appellee and another person omitted from the bill of particulars, omitted from Koenig’s testimony, and omitted from the prosecutor’s oral argument? No doubt, because the statement about the meeting referred not to what Koenig, himself, observed, but to what he assumed based upon the information provided by the tipster. If, as Koenig testified, he first saw Appellee’s vehicle as it was leaving the parking lot, he could not have seen Appellee meeting with another person while in the parking lot. Furthermore, if Koenig had observed such a meeting, he undoubtedly would have “Terry-stopped” both participants, not just Appel-lee. Did Koenig recognize this inconsistency in his original report after it was filed in the district court record and prepare an amended report deleting any reference to the alleged meeting? It is certainly unlikely that both the prosecutor and Koenig simply overlooked the most damning “evidence” in his report. More likely, they quite properly omitted any reference to what Koenig merely assumed and limited his testimony to what he actually observed so as not to mislead the trial court. Unfortunately, the trial court was not only misled by the statement in the report that she found in the clerk’s record, she also mistakenly believed Koenig had repeated the statement during the eviden-tiary hearing.

Of course, I agree with the majority opinion that the rules ordinarily applicable to the admission of evidence (except those pertaining to privileges) do not apply to preliminary questions of fact determined by a trial court under KRE 104(a). See KRE 1101(d)(1); Talbott v. Commonwealth, 968 S.W.2d 76, 82 (Ky.1998); accord United States v. Matlock, 415 U.S. 164, 173-74, 94 S.Ct. 988, 994, 39 L.Ed.2d 242 (1974). However, that does not mean that the trial court’s findings of fact can be predicated upon information that is not, in fact, admitted into evidence. Remember, RCr 9.78 requires an “evidentiary” hearing and that the trial court’s findings be “supported by substantial evidence,” not, e.g., “the writing on the wall.”1 Huff v. Commonwealth, 406 S.W.2d 831, 832 (Ky.1966) (“These [traffic] citations were filed in the record but do not ascend to the dignity of competent evidence ....”) (appeal from judgment following bench trial); Ray *518Brandt Nissan, Inc. v. Gurvich, 726 So.2d 474, 476 (La.Ct.App.1999) (“Evidence not properly and officially offered and introduced into evidence cannot be considered, even if it is physically placed in the record.”) (appeal from order issued after show-cause hearing); cf. Garrett v. Commonwealth, 48 S.W.3d 6, 16 (Ky.2001) (fact that victim was pregnant was not a fact in evidence even though jury could plainly see that she was pregnant; thus, trial court properly sustained prosecutor’s objection to defense counsel’s remark during closing argument that “since T.J. was pregnant, she now knew how much penetration constituted sexual intercourse.”). The majority opinion disingenuously attempts to avoid the plain language of RCr 9.78 by characterizing this suppression hearing as an in limine hearing held pursuant to RCr 8.22. Ante, at 506-07.

The majority opinion’s reliance on Mid-Southern Toyota, Ltd. v. Bug’s Imports, Inc., 453 S.W.2d 544 (Ky.1970), is also misplaced. There, the presiding judge at a bench trial considered a party’s answers to interrogatories and responses to requests for admissions in support of his judgment. The answers and responses were in the court record but were not formally introduced into evidence. The opinion held that such was not prejudicial “so long as the parties know that the court intends to consider the admission or answers as evidence, and the parties are afforded the opportunity to make any objections of inadmissibility.” Id. at 550 (emphasis added). Such did not occur here,, probably because the trial court mistakenly believed that Officer Koenig had, in fact, testified that he observed Appellee “meeting with another subject” in the parking lot. Further, the answers to interrogatories referred to in Mid-Southern Toyota were sworn to by the party held accountable, CR 33.01(2), thus were admissions that could have been admitted against that party at trial, KRE 801A(b)(l), and could have been explained, if necessary, by supplemental answers; and the CR 36 admissions referred to in that ease were judicial admissions, as opposed to evidentiary admissions, which are conclusive and eliminate the need to introduce evidence. Berrier v. Bizer, 57 S.W.3d 271, 278-79 (Ky.2001). If the trial court had informed thé parties of her intent to consider the contents of a police report filed in the clerk’s record, Appellee’s counsel could have cross-examined Koenig about the alleged meeting and, perhaps, have learned that it was based on an assumption, not an observation — or that the information was simply incorrect. However, once the trial court ruled on the motion, it was too late to reopen the evidence and further investigate this issue. Watkins v. Commonwealth, 105 S.W.3d 449, 451 (Ky.2003) (defendant could not supplement the record of the suppression hearing after the Court issued its findings and overruled his motion to suppress).

II. PRESERVATION OF ERROR.

The majority opinion’s assertion that Appellee somehow failed to preserve this issue by failing to object to the court’s findings confuses procedures applicable to the admission of evidence with those applicable to orders and judgments. The trial court did not purport to admit the police report into evidence; thus, there was no-evidentiary ruling to which defense counsel could object. See KRE 103(a)(1). Appel-lee moved to suppress the evidence that was unlawfully obtained on September 4, 1999, and that was all he was required to do in order to preserve the issue for appeal.

In actions tried by the court without a jury, the sufficiency of evidence to support the findings of fact may be raised *519on appeal without regard to whether there was an objection to such findings or whether there was a post-judgment motion. CR 52.08. In William 0. Ber-tlesman and Kurt A. Philip[p]s, 7 Kentucky Practice, § 52.03 (4th ed.1984), it is explained that “[a]n objection of this nature would be a needless formality since the very basis of the final judgment is involved.” When the only issue is whether the evidence was sufficient to support the findings of the trial court, there is no need to object or make additional motions. Such objections or motions call for nothing more than review of a completed act and are redundant or worse.

Eiland v. Ferrell, 937 S.W.2d 713, 715-16 (Ky.1997) (citation omitted); cf. Prince v. Commonwealth, 576 S.W.2d 244, 246 (Ky.App.1978) (error in verdict was one of substance not procedure, thus was preserved by motion for new trial even though defendant did not object to form of verdict when rendered).

III. ANONYMOUS TIPSTER.

The majority opinion’s “even if’ argument in this case is that the anonymous tipster was not, in fact, anonymous because he provided his information in person as opposed to, e.g., by telephone. I agree that a face-to-face anonymous tip is more rehable than a telephonic anonymous tip. However, all of the post-J.L. cases cited in the majority opinion required some factor in addition to a face-to-face encounter to render the tip sufficiently credible to justify the subsequent Terry stop.

In United States v. Romain, 393 F.3d 63 (1st Cir.2004), the police responded to a 911 emergency call in which the caller said that “someone’s in here with a gun,” and advised the police to determine her location by tracing the call. When the officers arrived at the residence, the caller answered the door, identified herself as Margaret Jones, appeared to be frightened, and nodded affirmatively when asked if there was anyone with a gun at the residence. It was not until after this additional information was received that the police confronted the defendant, conducted a pat-down search, and found the gun. Id. at 66-67. While the Court noted that “[a] face-to-face encounter provides police officers the opportunity to perceive and evaluate personally an informant’s mannerisms, expressions, and tone of voice,” id. at 73, e.g., Jones appeared frightened, the Court’s bottom fine was: “The informant here was not ‘anonymous’-” Id. at 74.

In United States v. Heard, 367 F.3d 1275 (11th Cir.2004), the defendant and the female informant were arguing inside a MARTA (Metropolitan Atlanta Rapid Transit Authority) station when the officer approached them. The informant told the officer that the defendant owed her $50.00. The defendant admitted that he owed the money and forthwith paid it to the informant. The woman then told the officer that the defendant had a gun — and the officer testified that she appeared frightened while doing so. While the officer searched the defendant, the woman fled. Id. at 1277, 1279. Thus, as far as the officer was concerned, she was, indeed, anonymous. The Court held that the facts that the defendant and the informant were together when first encountered by the officer and that the defendant paid her the $50.00 indicated that there was a relationship between the two, so that the woman probably knew whether the defendant was carrying a weapon. Id. at 1279. That and the fact that the woman appeared frightened created sufficient indicia of reliability to support the Terry stop. Id.

In United States v. Hopes, 286 F.3d 788 (5th Cir.2002), the informant identified herself as the operator of a halfway house, who was well known to the police and had *520given reliable information to the police in the past. Id. at 789-90. Manifestly, she was not an “anonymous tipster.”

In United States v. Christmas, 222 F.3d 141 (4th Cir.2000), the informant approached officers who were in her neighborhood, gave them her address, and told them that “you need to come and deal with the drugs and the guns that these guys have on the porch two doors down from me.” Id. at 143. Of course, having given her address and exposed herself to reprisal, she was no longer anonymous; and the fact that the alleged criminal activity occurred only two doors from her residence and in close proximity to the location of the criminal activity lent credibility to her tip. Id.

A closer case is United States v. Valentine, 232 F.3d 350 (3d Cir.2000), in which a young man approached a police officer at 1:00 a.m. in a high-crime area known for shootings, told the officer that the defendant had a gun, refused to give his name, then departed. Id. at 352. The officer also testified that the defendant and his companions had begun walking away when they noticed his police cruiser. Id. at 353. The Court held that the facts that the defendant was in a high-crime area known for shootings and walked away when he noticed the police cruiser gave the anonymous tip sufficient credibility to uphold the subsequent Terry stop. Id. at 356-57.

In the case sub judice, the tipster did not give Koenig his/her name, address or any information that would have indicated that he/she had reason to know that criminal activity was afoot in the K-Mart parking lot. Koenig did not testify that he observed anything about the tipster’s demeanor that caused him to give credibility to the tip. Nor did he testify that the K-Mart parking lot was a high-crime area where drug transactions often occurred. In other words, he had no information lending credibility to the anonymous tip except the tip, itself. Under J.L., that is not enough.

In its brief, the Commonwealth cites and quotes State v. Evans, 692 So.2d 216 (Fla. Dist.Ct.App.1997) in support of its claim that a tip from a citizen informant is entitled to more credibility than a telephonic tip. What Florida’s Fourth District Court of Appeal held in Evans, however, was “that an informant’s actual name need not be known so long as her identity is readily discoverable.” Id. at 218. In Evans, the informant was the manager of a McDonald’s restaurant who was working the drive-thru line when she observed that the defendant was drunk as he placed his order and drove through the line. She called the police and gave her name, her address, her location, and that she was the manager of the McDonald’s restaurant. When the police arrived, she pointed out the defendant’s vehicle as the suspect vehicle. The fact that the informant’s identity was readily discoverable is exemplified by the fact that she testified as a witness at the suppression hearing. Id. at 217.

Evans was readily distinguished by the very same court in Solino v. State, 763 So.2d 1249 (Fla.Dist.Ct.App.2000). There, an unidentified motorist driving a white sport utility vehicle (SUV) informed a deputy sheriff (face-to-face) that he had seen a bottle tossed out of the window of a green Nissan automobile proceeding down the highway in front of the SUV. The deputy did not see the defendant throw the bottle, did not see a bottle on the highway, and did not see the defendant commit any traffic violation. He made the stop based solely on the statement of the unidentified motorist. Id. at 1249. In suppressing the evidence obtained as a result of the stop, the court observed that “the driver of the white SUV was ... an anonymous tipster who could not be identified or located and whose information was not corroborated.” Id. at 1252.

*521A similar fact pattern occurred in State v. Rewis, 722 So.2d 863 (Fla.Dist.Ct.App.1998), in which the driver of a semi-truck pulled into a highway rest stop, gave sheriffs deputies (face-to-face) the license number of a Firebird automobile that he claimed to have seen “weaving on the road,” then departed without leaving any identification. Based on this tip, the deputies stopped and searched the Firebird, which was found to contain a bottle that tested positive for heroin. Id. at 864. In ordering the evidence suppressed, the court held:

Although the deputies were given the tip by a passing driver, for all practical purposes he was an anonymous tipster. His identity is unknown, any means of locating him is unknown, as are his motives for disclosing the information. He might have pointed out the Firebird because he was angered by its driver, ... or been the recipient of an obscene gesture, or for any reason other than the one he gave deputies. The deputies had no way to corroborate the information, and agreed at the hearing that they had not themselves seen anything that would have given them reason to stop the Fire-bird other than the tip.

Id. at 864. See also Rivera v. State, 771 So.2d 1246, 1247 (Fla.Dist.Ct.App.2000). As these cases hold, the mere fact that an anonymous tipster imparts his information to the police face-to-face is insufficient, standing alone, to justify a Terry stop. Unfortunately, that is all that was proven in this case.

Accordingly, I dissent.

LAMBERT, C.J., joins this dissenting opinion.

. Paul Simon, Kodachrome, verse 1, line 7 (Rhino 1973).