dissenting.
The posture of the case before us, as I perceive it to be, indicates that the sole issue to be decided is whether the State's refusal to disclose the identity of the informants was a proper basis upon which to grant the motion to suppress. The arguments of the parties at the motion to suppress stage appear to intertwine questions as to whether the information provided to the police by the informants leading to the controlled delivery as set forth in Detective Hoehn's affidavit for the search warrant was against their penal interests and therefore within a hearsay exception.
In the decision issued today, however, the majority states that the. opinion addresses "both the question of whether there was probable cause to support the warrant" as well as whether the granting of the motion to suppress was validated by the State's refusal to name the informants. Op. at 839. The majority concludes that there is no reason to decide whether the statements of the informants were against their penal interests because the information provided was corroborated by the police after the traffic stop, more particularly by the discovery of the marijuana in the vehicle in which Fridy was a passenger.
The validity of the traffic stop was never made an issue or argued before the trial court; nor was there any contention made that the consensual search of the vehicle after the stop and discovery of the mariJuana in the vehicle was excludable insofar as it might corroborate the earlier information provided to police by the informants. Nevertheless, I do not believe that the evidence seized from the house pursuant to the search warrant is insulated from further attack.
At the May 17, 2005 hearing upon Fri-dy's Motion to Compel Disclosure of Confidential Informants, the prosecutor did argue that the State's position was not exclusively that the informants' statements were rendered reliable because against their penal interests. The prosecutor also asserted that the information that Fridy had marijuana at his house and that the informants could obtain marijuana from him in addition to that found with them in the hotel was corroborated by their rendezvous with Fridy at his house, by his entry into their vehicle, and by the discovery of the marijuana in the vehicle. Defendant's articulated position was that he was entitled to the identities of the informants so that they could be questioned as to the reliability of their statements to the police.
The trial court granted the defendant's motion as to disclosure of the identities of the confidential informants. The State then requested that the court rule upon defendant's motion to suppress in order that the State might appeal the court's ruling compelling disclosure of the confidential informants. It had been the defendant's position that he needed the identities of the informants so that they could be called to testify at the motion to suppress hearing.
At a subsequent hearing held on July 19, 2005, the State indicated that it had determined that even with certification of the issue by the trial court, a permissive interlocutory appeal upon the confidential informant disclosure ruling would not lie absent a ruling upon the Motion to Suppress. On *843that date the court entered its order granting the Motion to Suppress. 'To all indications this ruling was made in order to have the issue of disclosure of the confidential informants placed before the Court of Appeals for resolution.
For this reason, the trial court did not base the grant of the Motion to Suppress upon any consideration that evidence which might have been construed to corroborate the earlier statements by the informants to the police may have been compromised by an invalid traffic stop.
Nevertheless, my review of the record prompts me to comment upon various evi-dentiary aspects of the case, particularly as such has impact upon the admissibility of evidence seized pursuant to the search warrant.
Initially, I note that the officers did not corroborate that Fridy had delivered marijuana pursuant to a controlled transaction until after the car was stopped and the consent search was made. If therefore there was insufficient basis for the traffic stop, it seems that there was not cause for the search of Fridy's house.6
Unless against their penal interests, the statements made by the informants to the police would not have been shown sufficiently reliable upon which to base a search warrant. The crucial information concerning the presence of marijuana in Fridy's house and available, without payment, for sale by the informants was not shown to be independently reliable but rather depended upon corroboration. Such corroboration, if it exists, does so by virtue of a traffic stop not shown to be as a result of a traffic violation or as reasonable suspicion of criminal activity by the occupant or occupants of the vehicle other than the criminal activity in which the informants had previously engaged.7
The State did not argue at the trial court level that there was a valid basis for the traffic stop; nor does it do so on appeal. Furthermore, Detective Hoehn's affidavit which prompted issuance of the search warrant does not state the basis for the traffic stop. It states merely that a traffic stop was made after Fridy exited the house and entered the vehicle along with the two informants. State's Exh. 1 at 3.
*844I acknowledge that defendant made no claim during the motion to suppress proceedings that the search of the car was pursuant to an invalid traffic stop and that therefore discovery of the marijuana in the vehicle was fruit of a poisonous tree. Nevertheless, upon the facts before us I am unable to conclude that the informants' statements to the police in the hotel and during the lead-up to the controlled delivery were adequately corroborated by the police prior to the traffic stop.
The essential corroboration that Fridy supplied marijuana to the informants and that he had marijuana in the house was provided only by discovery of the marijuana in the car during the consent search and after the car and the informants had been earlier searched by police and found to be clean.
As to the penal interest aspect of the informants' hearsay statements to the officers, this case appear to be analogous to Newby v. State, 701 N.E.2d 593 (Ind.Ct.App.1998). The State's argument implies that aside from the marijuana found in possession of the informants at the hotel, their offer to make a controlled delivery from Fridy while under surveillance by the Detectives constituted an additional admission against penal interests. In other words, their offer or agreement to set Fridy up and obtain marijuana from him was against their penal interests in that such a transaction, when consummated, was a criminal offense.
However, here, as in Newby, the criminal liability of the informants had already been established by discovery of their possession of marijuana at the hotel. The statements made after that time would not have subjected the informants to any criminal liability over and above the crime already committed and discovered by police.
Neither do I believe that the statements by the informants that they could obtain more marijuana from Fridy were against their penal interests. Such information was merely as to an event which might or might not take place at a future time. It did not subject the informants to any additional criminal liability and was therefore not against their penal interests. See Newby, 701 N.E.2d at 600.
In summation, while I agree that refusal by the State to divulge the names and addresses of the informants is not a valid basis to exclude the evidence seized pursuant to the search warrant, I also am of the view that the door remains open upon remand to consideration of the Motion to Suppress in the light of evidence adduced in an evidentiary hearing 8 and in light of the applicable law with regard to the issuance of search warrants. Such an eviden-tiary hearing might well include consideration of the reliability of the informants' information as buttressed by such corroboration provided by the investigating officers at the time of the traffic stop to the extent that such corroboration comports with the Fourth Amendment of the U.S. Constitution and Article 1, Section 11 of the Indiana Constitution. In connection with evidence of corroboration, it may well be that the validity of the traffic stop may be at issue.
. It is well settled that a legitimate traffic stop depends upon whether the officer had reasonable suspicion of criminal activity. If any such suspicion existed at the time of the stop it was necessarily dependent upon the reliability of the information earlier given to police by the informants.
. In this respect there is no evidentiary indication that, prior to the traffic stop, Fridy was in possession of marijuana when he entered the car nor any evidence that Fridy had agreed to supply additional marijuana. Before the traffic stop was made, any reasonable suspicion of criminal activity had to be based solely upon the prior statements by the informants as to what they could do and what they were willing to do. Reliance by the police that what the informants said they could do and were willing to do was actually what occurred does not constitute a reasonable suspicion as to the fact. An investigatory stop, as occurred here, may be justified only if "based upon specific and articulable facts" giving rise to a reasonable suspicion of criminal activity. Sanchez v. State, 803 N.E.2d 215, 220 (Ind.Ct.App.2004), trans. denied. Reasonable suspicion for a brief investigatory stop requires more than "inchoate and unparticu-larized hunches." Bridgewater v. State, 793 N.E.2d 1097, 1100 (Ind.Ct.App.2003), trans. denied. Prior to the stop itself the police did not have an objective reasonable suspicion that criminal activity was afoot. All they knew was that Fridy exited the house with one of the informants, entered the car and then drove off. Their suspicion was premised upon a mere hunch that the informants had accomplished or were accomplishing what they said they could accomplish.
. The ruling upon the Motion to Suppress was, as earlier noted, not made following an evidentiary hearing.