specially concurring:
The State wants the best of both worlds in this case. It wants to treat the informant here as anonymous and justify the stop as a Terry stop. Yet it wants us to recognize the veracity of the informant because the detectives knew the informant from another case.
During oral argument, counsel for defendant Sparks suggested that, if anything, this was an arrest based on probable cause. I agree. This was not a temporary investigative detention, lasting no longer than necessary to effectuate the purpose of the stop. Florida v. Royer, 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983). This was not a chance encounter between the police and defendants. The police had specific information on which the stop was based, they were looking for this vehicle, they used four police cars to effectuate the stop, defendants were ordered to exit the car with their hands on their heads, and narcotic sniffing dogs had been requested before the stop was effectuated.
The State may have been able to show probable cause in this case. The confidential source who told police that defendants would be traveling back from Texas with contraband in their car apparently had some basis on which to make that statement. A tip from a known informant may alone demonstrate the informant’s basis of knowledge or veracity. When the tip is from a known informant, the reputation of that informant can be assessed, and the informant can be held responsible if her allegations turn out to be fabricated. J.L., 529 U.S. at 270, 146 L. Ed. 2d at 260, 120 S. Ct. at 1378.
Nevertheless, the State does not attempt to justify this search on the basis of probable cause. If the State had attempted to show probable cause, it may have been required to disclose the identity of the confidential informant. A trial court may, in its discretion, require an in camera inspection of a confidential informant if, under all the circumstances, the trial court doubts the credibility of the officeraffiant. People v. Vauzanges, 158 Ill. 2d 509, 520, 634 N.E.2d 1085, 1090 (1994); People v. Chaney, 286 Ill. App. 3d 717, 722, 677 N.E.2d 4, 7 (1997); People v. Criss, 294 Ill. App. 3d 276, 280, 689 N.E.2d 645, 648 (1998) (defendant must show more than desire to cross-examine).
The State here seeks to avoid any possibility that it will be forced to disclose its confidential informant. The State chooses not to attempt to show probable cause and chooses instead to characterize this stop as a Terry stop, citing White.
“Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.” White, 496 U.S. at 330, 110 L. Ed. 2d at 309, 110 S. Ct. at 2416 (involving an anonymous tip).
The State tells us that the “Springfield surveillance team corroborated every aspect of the confidential informant’s tip. Thus, there was an articulable suspicion for the Springfield surveillance team to initiate a stop.”
The State does not have the power to turn a confidential informant into an anonymous tipster by its unilateral decision not to reveal the confidential informant. If there are questions about whether an officer has falsified information, the informant should be called as a witness. It is improper to treat the confidential informant as an anonymous tipster who cannot be called, thereby insulating the officer from impeachment. Both White and J.L. involved anonymous tipsters, not confidential informants. Even if the information here were “rehable in its assertion of illegality, not just in its tendency to identify a determinate person” (J.L., 529 U.S. at 272, 146 L. Ed. 2d at 261, 120 S. Ct. at 1379), it would not have been sufficient to justify this stop and search.
Finally, I am unable to find any support for Justice McCullough’s statement that “[t]he record does suggest the defendants did know the informant.” 315 Ill. App. 3d at 798 (McCullough, J., dissenting).