Graf v. State, Department of Commerce & Regulation

SABERS, Justice

(dissenting).

The sole issue is whether the “anonymous tip,” independently corroborated in part, provided an articulable reason to stop defendant’s vehicle. The trial court found that it did and I am inclined to agree.

The State argues that:

Schmit was informed, in the message he received, that a “possible” drunk driver was westbound on 10th Street in a large brown automobile identified by license plate 1E3312. A radio dispatch containing this information alone is sufficient to provide reasonable suspicion to stop a motorist. See Philpott v. State, [194 Ga.App. 452] 390 S.E.2d 664, 665 (Ga.App.1990). The information in the message was significantly corroborated when Schmit encountered Graf, who was driving the described vehicle with the described license plates, approximately half an hour later in the vicinity of Grafs home. The location of Grafs home, approximately twenty blocks from the road on which he was initially reported to be travelling, was ascertained from records of the license plate reported by the caller. Schmit’s actions, combined with independent police action in the form of the registration check, corroborated significant facts from the anonymous tip, and, in the Department’s view, rendered the stop reasonable, for independent corroboration of some significant details of an anonymous informer’s tip imparts some degree of reliability to other allegations *6made by the caller. Alabama v. White, 496 U.S. 325, 331-2 [110 S.Ct. 2412, 2416-7, 110 L.Ed.2d 301] (1990). As in Czmowski, [393 N.W.2d 72 (S.D.1986) ], the police acted immediately and verified specific information in the anonymous call.

The articulable reason to stop seems clear. An anonymous tip that:

1. a possible drunk driver;
2. was westbound on 10th Street;
3. in a large brown automobile;
4. identified by license plate 1E3312.

Items 3 and 4 were independently corroborated by records checked before the stop. There is no showing that this was a grudge tip or telephone call. Do the officers have to assume bad faith on the part of the anonymous tipster? I think not. Although the factual basis for the stop was slim, it was an “articulable reason,” and not shown to be pretextual or in bad faith as the majority presumes. See State v. Thill, 474 N.W.2d 86, 87 (S.D.1991). (“It is enough if the stop is based upon ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.’ ”)

This is a far more “articulable reason” to stop than existed in Thill, and was “not the product of mere whim, caprice, or idle curiosity.” Id. (citations omitted). By a 3-2 majority, this court in Thill held there was an articulable reason to stop even though there was no tip off, no driving violation, no deviation, and no reason whatsoever to stop except that Thill lawfully turned around in a driveway prior to a roadblock. Although I dissented in Thill, and continue to believe that it was wrongly decided, I cannot vote for such inconsistency. The majority is overruling Thill and should say so, even if it is too late to help Thill.

Accordingly, I dissent.

MILLER, C.J., joins this dissent.