(concurring in part, dissenting in part).
Findings of Fact and Conclusions of Law and Order predicated thereon, were filed on April 17, 1985. This Court must find these Findings of Fact and Conclusions of Law to be clearly erroneous. This is so in a suppression hearing. State v. Hall, 353 N.W.2d 37 (S.D.1984). Our scope of review is thus set and the majority opinion mentions it not. As the majority opinion fails to apply the correct scope of review, and because this law-trained magistrate did not enter clearly erroneous Findings of Fact and Conclusions of Law and Order predicated thereon, I respectfully dissent to the substantive holding.
I do believe that the law-trained magistrate ruled correctly in this evidentiary matter, which is the issue of the appeal, and I would affirm his order granting the motion to suppress. I further add that I certainly agree with the majority that this appeal is not moot because of the tragic death of Trooper Oren Hindman. We should rule on the merits of this case and to that extent, I agree with the majority.
To appreciate the background of this dissent in part, I refer to State v. Kissner, 390 N.W.2d 58, 60 (S.D.1986) (Henderson, J., dissenting); State v. Jim Anderson, 359 N.W.2d 887, 892 (S.D.1984) (Henderson, J., concurring in result); and State v. Richard *75Anderson, 331 N.W.2d 568, 573 (S.D.1983) (Henderson, J., concurring in result).
We must first recognize that the majority opinion misstates the degree of knowledge possessed by Trooper Hindman and Inspector Dodd and fails to recognize the difference between a stop as referred to in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and the investigation of a DUI.
First of all, we must examine the anonymous tip. It gave a description of the vehicle, license plate number, direction of travel, and action of travel. It was based upon this information, and this information alone, that Trooper Hindman required — via state radio — Inspector Dodd to stop the defendant. Crystallize and isolate this information. Then examine it: Was this an articulable suspicion of the commission of the offense of DUI? The answer is no. Body type and color of automobile, license plate number, direction of travel, and action of travel will not, in itself, justify a stop. See Jim Anderson, 359 N.W.2d at 893. Before a law enforcement officer can stop a motor vehicle, the officer must have a specific and articulable suspicion of a violation. Whitson v. Dep’t of Pub. Safety, 346 N.W.2d 454 (S.D.1984). True, defendant had a commercial vehicle and was required to stop at the port of entry. This is not, however, the stop in question.
Rather, the stop in question is the stop made by Inspector Dodd at the request and demand of Trooper Hindman. In other words, the defendant was stopped and detained and told that he must wait for Trooper Hindman.
QUESTION: Didn’t you inform him that he was to wait there for a highway patrolman?
ANSWER: I — yes to wait for Trooper Hindman.
QUESTION: OK. So you had told him that he had to stay there because there was — was somebody coming to talk to him?
ANSWER: Yah.
Thus, we must not confuse the stop at the port of entry because of the commercial vehicle business. We then arrive at a point in judging this case as to the precise question: Was there articulable suspicion of a crime having been committed which justified Inspector Dodd in making the aforesaid stop and detention of defendant? It is obvious that we are dealing with a Fourth Amendment case. As we all know, this prohibits unreasonable search or seizure. Here, the defendant was seized. As I have pointed out, there is only an anonymous phone tip here. This then brings us to the very conceptual plateau which I feared could happen in this state. I refer to my concurrence in result in Jim Anderson, 359 N.W.2d at 892.
Although I concur in the result of this case, I cannot accept that the police tip (based on hearsay) would, in itself, constitute articulable suspicion to stop the car of appellant. An equipment violation would justify stopping the car. Here, there was an equipment violation. But, under the language of this opinion, a hearsay tip opens the door for any officer to now stop someone on the highway for no reason at all other than a hearsay tip.
There is no probative value whatsoever in Trooper Hindman’s observations of the defendant or causing the defendant to undergo tests at the scene. We cannot look and determine, after the stop, and after the intrusion, as to that which the State has found. Why? Simply because this is all after-the-fact. Later facts cannot bootstrap the justification of the stop. Hence, the majority’s allusion to facts after the defendant was stopped by Inspector Dodd and held for Trooper Hindman are totally irrelevant to the issue at hand. The majority opinion reaches out for corroboration to justify the stop. In so doing, it errs. Simply put, Port of Entry Inspector Dodd had no specific and articulable suspicion of a violation. When defendant arrived at the Tilford Port of Entry Station southeast of Sturgis, Inspector Dodd stopped and detained him at the mere request of Trooper Hindman. Trooper Hindman, however, did not at any time observe defendant operat*76ing the vehicle and Inspector Dodd did not observe anything unusual in defendant’s ability to complete the vehicular maneuvers necessary to pass a port of entry check which Dodd requested. Inspector Dodd was not cognizant of the details of the dispatcher’s report and he did not notice anything unusual in defendant’s behavior and speech (nor his driving) when defendant entered the port of entry building. Dodd saw absolutely nothing wrong, yet he requested defendant to come inside the port of entry building after defendant had satisfactorily performed all tests. Are we now at a stage, in law, where an anonymous tip takes precedence in law over (a) first-hand observation of an individual by an officer and (b) satisfactory maneuvers of a vehicle in the presence of an officer? Apparently, we have elevated a “tip” from an anonymous individual over direct, firsthand observation at the scene. Hence, there are no facts upon which to build “articulable suspicion.” “A well-established rule is that the findings of fact must support the conclusions of law.” Hartpence v. Youth Forestry Camp, 325 N.W.2d 292, 297 (S.D.1982). Therefore, I maintain the law-trained magistrate ruled correctly in this matter as there was no specific and articulable suspicion of a violation. His findings support the conclusions of law. There is no clearly erroneous determination below. I disagree with the majority opinion’s exercise of its judicial function in finding the facts and vaulting such findings over the trial court’s judicial function. The law-traiiied magistrate’s decision should be affirmed in granting the motion to suppress.