Harris v. Com.

PRESENT: All the Justices

JOSEPH A. MOSES HARRIS, JR.

v. Record No. 080437 OPINION BY
JUSTICE S. BERNARD GOODWYN
COMMONWEALTH OF VIRGINIA October 31, 2008

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether an anonymous tip,

combined with observations by a police officer, provided the

officer with the reasonable suspicion required to conduct an

investigative traffic stop in compliance with the Fourth

Amendment of the United States Constitution.

Joseph A. Moses Harris, Jr. (“Harris”) was charged with

feloniously operating a motor vehicle while intoxicated in

violation of Code § 18.2-266. Harris filed a motion to

suppress in the Circuit Court of the City of Richmond,

claiming that the investigative stop of his car was in

violation of the Fourth Amendment. The court denied the

motion to suppress and convicted Harris.

Harris appealed to the Court of Appeals. The Court of

Appeals affirmed the conviction in an unpublished opinion.

Harris v. Commonwealth, Record No. 2320-06-2 (February 5,

2008). This Court granted Harris an appeal.

FACTS

On December 31, 2005, Officer Claude M. Picard, Jr.

(“Officer Picard”), of the Richmond Police Department,
received a call from a dispatcher informing him that “there

was a[n] intoxicated driver in the 3400 block of Meadowbridge

Road, [who] was named Joseph Harris, and he was driving [a

green] Altima, headed south, towards the city, possibly

towards the south side.” The dispatcher also gave Officer

Picard a partial license plate number of “Y8066” for the green

Altima and stated that the driver was wearing a striped shirt.

The dispatcher did not include any information concerning the

identity of the person who had called in the information

communicated in the dispatch or the time frame in which the

caller had observed the car or the driver.

Officer Picard responded to the call, and shortly

thereafter, saw a green Altima traveling south on Meadowbridge

Road. Officer Picard began to follow the car. While

following the car that Harris was driving, Officer Picard

noticed that the license plate number, “YAR-8046”, was similar

to the one reported by the anonymous caller. Harris was

driving within the posted speed limit, and Officer Picard did

not observe the car swerve at any time.

While following Harris’ car, Officer Picard observed the

car’s brake lights flash three times. The first time Harris

activated the car’s brake lights was when Harris “slowed down”

at an intersection although he had the right of way. The

second time was approximately 50 feet prior to a red traffic

2
light at the intersection of Meadowbridge Road and Brookland

Park Boulevard, when Harris “slowed down” as he approached the

red traffic light. The third time the brake lights flashed

was when Harris brought the car to a complete stop for the red

traffic light at the intersection of Meadowbridge Road and

Brookland Park Boulevard.

When the traffic light turned green, Harris proceeded

through the intersection, drove his car to the side of the

road and stopped of his own accord. Officer Picard activated

his emergency lights to signify the initiation of a traffic

stop, and positioned his car behind Harris’ already stopped

car. During the traffic stop, Officer Picard detected a

strong odor of alcohol on Harris’ breath and noticed that his

eyes were watery and his speech was slurred. Harris was

charged with feloniously operating a motor vehicle while

intoxicated after being previously convicted of two like

offenses.

ANALYSIS

Harris claims that he was stopped by Officer Picard in

violation of the Fourth Amendment and that the Court of

Appeals erred in affirming the circuit court’s denial of

Harris’ motion to suppress, which was based on that alleged

violation of the Fourth Amendment. Responding, the

Commonwealth asserts that the Court of Appeals properly

3
affirmed the circuit court’s denial of Harris’ motion to

suppress because the anonymous tip, coupled with Officer

Picard’s observations, provided reasonable suspicion for

Officer Picard to conduct an investigative stop.

The Fourth Amendment protects the privacy and security of

individuals against arbitrary searches and seizures by

governmental officials. Camara v. Municipal Court, 387 U.S.

523, 528 (1967); Brown v. Commonwealth, 270 Va. 414, 418, 620

S.E.2d 760, 762 (2005). Although limited in purpose and

length of detention, an investigative traffic stop constitutes

a seizure within the meaning of the Fourth Amendment.

Delaware v. Prouse, 440 U.S. 648, 653 (1979); Jackson v.

Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004).

An investigative stop must be justified by a reasonable

suspicion, based upon specific and articulable facts, that

criminal activity is “afoot.” United States v. Sokolow, 490

U.S. 1, 7 (1989); McCain v. Commonwealth, 275 Va. 546, 552,

659 S.E.2d 512, 516 (2008); Jackson, 267 Va. at 672, 594

S.E.2d at 598; see Terry v. Ohio, 392 U.S. 1, 30 (1968).

Further, pursuant to the “the fruit of the poisonous tree”

doctrine, evidence seized as a result of an illegal stop is

inadmissible against the defendant at trial. Jackson, 267 Va.

at 672, 594 S.E.2d at 598; see Wong Sun v. United States, 371

U.S. 471, 484-85 (1963).

4
 A defendant's claim that he was seized in violation of

the Fourth Amendment presents a mixed question of law and fact

that we review de novo on appeal. Murphy v. Commonwealth, 264

Va. 568, 573, 570 S.E.2d 836, 838 (2002); see Bolden v.

Commonwealth, 263 Va. 465, 470, 561 S.E.2d 701, 704 (2002);

McCain v. Commonwealth, 261 Va. 483, 489, 545 S.E.2d 541, 545

(2001); see also Ornelas v. United States, 517 U.S. 690, 691,

699 (1996). In making such a determination, we give deference

to the factual findings of the circuit court, but we

independently determine whether the manner in which the

evidence was obtained meets the requirements of the Fourth

Amendment. Bolden, 263 Va. at 470, 561 S.E.2d at 704; McCain,

261 Va. at 490, 545 S.E.2d at 545; Bass v. Commonwealth, 259

Va. 470, 475, 525 S.E.2d 921, 924 (2000). The defendant has

the burden to show that, considering the evidence in the light

most favorable to the Commonwealth, the trial court's denial

of his suppression motion was reversible error. Bolden, 263

Va. at 470, 561 S.E.2d at 704; McCain, 261 Va. at 490, 545

S.E.2d at 545; Fore v. Commonwealth, 220 Va. 1007, 1010, 265

S.E.2d 729, 731 (1980).

Harris contends that the anonymous tip and Officer

Picard’s observations were not sufficient to create the

reasonable suspicion necessary to justify the stop of Harris’

car. Whether the Fourth Amendment has been violated is a

5
question to be determined from all the circumstances. Samson

v. California, 547 U.S. 843, 848 (2006); see Ohio v.

Robinette, 519 U.S. 33, 39 (1996).

Whether an officer has reasonable suspicion for a Terry

stop is based on an assessment of the totality of the

circumstances, which includes “ ‘the content of information

possessed by police and its degree of reliability.’ ”

Jackson, 267 Va. at 673, 594 S.E.2d at 598-99 (quoting Alabama

v. White, 496 U.S. 325, 330 (1990)). When the factual basis

for probable cause or reasonable suspicion is provided by an

anonymous informant, the informant’s veracity or reliability,

and the basis of his or her knowledge are “highly relevant”

factors in the overall totality of the circumstances analysis.

Illinois v. Gates, 462 U.S. 213, 230 (1983); see White, 496

U.S. at 328-31.

The analysis regarding the use of an anonymous tip to

provide reasonable suspicion for an investigative stop was

clarified by this Court in Jackson, in which we relied upon

the United States Supreme Court’s Fourth Amendment

jurisprudence in Florida v. J.L., 529 U.S. 266 (2000), and

White, 496 U.S. at 328-31. See Jackson, 267 Va. at 674-75,

594 S.E.2d at 599-600. An anonymous tip has a relatively low

degree of reliability, requiring more information to

sufficiently corroborate the information contained in the tip.

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See J.L., 529 U.S. at 270; Jackson, 267 Va. at 673, 594 S.E.2d

at 599. “Unlike a tip from a known informant whose reputation

can be assessed and who can be held responsible if her

allegations turn out to be fabricated, ‘an anonymous tip alone

seldom demonstrates the informant’s basis of knowledge or

veracity.’ ” J.L., 529 U.S. at 270 (quoting White, 496 U.S. at

329) (citation omitted).

The indicia of reliability of an anonymous tip may be

bolstered when the tipster provides predictive information,

which the police can use to test the tipster’s basis of

knowledge and credibility. Jackson, 267 Va. at 676, 594

S.E.2d at 600. However, for such predictive information to

bolster the tipster’s basis of knowledge or credibility, the

information must relate to the alleged criminal activity.

Providing information observable or available to anyone is not

predictive information and can only “help the police correctly

identify the person whom the tipster [meant] to accuse.”

J.L., 529 U.S. at 272. An anonymous call that provides no

predictive information leaves the police without a means to

test the tipster's knowledge or credibility. J.L., 529 U.S.

at 271.

In this case, the anonymous tip included the following

information: Joseph Harris, described as wearing a striped

shirt, was intoxicated and driving a green Altima with a

7
partial license plate number of “Y8066,” southward in the 3400

block of Meadowbridge Road. The informant in this case was

not known to the police nor did he or she personally appear

before a police officer. Thus, the informant was not

subjecting himself or herself to possible arrest if the

information provided to the dispatcher proved false. See Code

§ 18.2-461. In other words, the informant was not placing his

or her credibility at risk and could "lie with impunity."

J.L., 529 U.S. at 275 (Kennedy, J., concurring). The

informant provided information available to any observer,

whether a concerned citizen, prankster, or someone with a

grudge against Harris. See Jackson, 267 Va. at 679, 594

S.E.2d at 602. The tip received by Officer Picard failed to

include predictions about Harris' future behavior. Thus, the

anonymous tip, in this case, lacked sufficient information to

demonstrate the informant's credibility and basis of

knowledge. Such an anonymous tip cannot, of itself, establish

the requisite quantum of suspicion for an investigative stop.

An anonymous tip need not include predictive information

when an informant reports readily observable criminal actions.

See Jackson, 267 Va. at 680, 594 S.E.2d at 603. However, the

crime of driving while intoxicated is not readily observable

unless the suspected driver operates his or her vehicle in

some fashion objectively indicating that the driver is

8
intoxicated; such conduct must be observed before an

investigatory stop is justified.

This Court, in Jackson, held that an investigative stop

violated the Fourth Amendment because the tip lacked indicia

of reliability and the officer’s observations did not reveal

any suspicious behavior. 267 Va. at 677-78, 681, 594 S.E.2d

at 601, 603. This case is analogous to Jackson in that under

the totality of the circumstances presented here, the

anonymous tip lacked sufficient indicia of reliability to

justify an investigatory stop, absent observations indicating

criminal conduct. Thus, the resolution of this case is

dependent upon whether Officer Picard’s observations, when

considered together with the anonymous tip, were sufficient to

establish a reasonable suspicion that criminal activity was

afoot.

In testifying during the motion to suppress about Harris’

driving behavior, Officer Picard did not describe Harris’

driving as erratic. Furthermore, an officer’s subjective

characterization of observed conduct is not relevant to a

court’s analysis concerning whether there is a reasonable

suspicion because the Court’s review of whether there was

reasonable suspicion involves application of an objective

rather than a subjective standard. Terry, 392 U.S. at 21-22;

Bass, 259 Va. at 475, 525 S.E.2d at 923-24; Ewell v.

9
Commonwealth, 254 Va. 214, 217, 491 S.E.2d 721, 722 (1997);

Zimmerman v. Commonwealth, 234 Va. 609, 611-12, 363 S.E.2d

708, 709 (1988); Leeth v. Commonwealth, 223 Va. 335, 340, 288

S.E.2d 475, 478 (1982). Importantly, Officer Picard’s

testimony, describing what he actually observed at the time,

does not indicate that Harris’ driving behavior was erratic.

Officer Picard, while following Harris’ car, observed

that Harris was driving within the speed limit. Harris’ car

did not swerve. Officer Picard testified that Harris “slowed

down” at an intersection where Harris had the right of way and

that Harris “slowed down” 50 feet before he got to a red

traffic light, at which Harris stopped properly. After the

traffic light turned green, Harris proceeded through the

intersection, drove to the side of the road, and stopped of

his own accord. Thereafter, Officer Picard initiated the

investigative stop.

An officer may briefly detain an individual for

questioning if the officer has a reasonable suspicion, based

on particularized and objective facts, that the individual is

involved in criminal activity. Zimmerman, 234 Va. at 611, 363

S.E.2d at 709. To establish reasonable suspicion, an officer

is required to articulate more than an unparticularized

suspicion or “hunch” that criminal activity is afoot. McCain,

275 Va. at 552, 659 S.E.2d at 516. Lawful conduct that the

10
officer may subjectively view as unusual is insufficient to

generate a reasonable suspicion that the individual is

involved in criminal activity. Harris v. Commonwealth, 262

Va. 407, 416-17, 551 S.E.2d 606, 611 (2001); Ewell, 254 Va. at

217, 491 S.E.2d at 722-23; Barrett v. Commonwealth, 250 Va.

243, 248, 462 S.E.2d 109, 112 (1995); Zimmerman, 234 Va. at

612, 363 S.E.2d at 709-10.

When viewed in the context of the anonymous tip, Harris’

act of slowing his car at an intersection, or of slowing

before stopping at a red traffic signal, did not indicate that

he was involved in the criminal act of operating a motor

vehicle under the influence of alcohol. Driving to the side

of the road and stopping may be subjectively viewed as

unusual, but that conduct was insufficient to corroborate the

criminal activity alleged in the anonymous tip. See Barrett,

250 Va. at 248, 462 S.E.2d at 112. Therefore, we hold that

Officer Picard’s observations, when considered together with

the anonymous tip, were not sufficient to create a reasonable

suspicion of criminal activity, and that, therefore, Harris

was stopped in violation of his rights under the Fourth

Amendment. Thus, the circuit court erred in denying Harris’

motion to suppress.

11
 Accordingly, we will reverse the judgment of the Court of

Appeals affirming Harris’ conviction, vacate Harris’

conviction, and dismiss the indictment against him.

Reversed, vacated, and dismissed.

JUSTICE KINSER, with whom JUSTICE LEMONS and JUSTICE MILLETTE
join, dissenting.

The majority decides today that an investigative traffic

stop by a police officer acting on an anonymous tip

corroborated by the officer’s own observation of the

defendant’s driving behavior violated the defendant’s Fourth

Amendment rights. In my view, the majority fails to

understand that the anonymous tip in this case, if reliable,

provided the requisite reasonable, articulable suspicion to

justify the minimally intrusive traffic stop. So the question

is whether, under the totality of the circumstances, the

anonymous tip, as corroborated, exhibited sufficient indicia

of reliability. I answer the question affirmatively and

therefore conclude the police officer had a reasonable,

articulable suspicion that the defendant was engaged in

criminal conduct.

An investigative traffic stop, such as the one at issue,

does not violate the Fourth Amendment “so long as the officer

has reasonable, articulable suspicion that criminal activity

may be afoot.” McCain v. Commonwealth, 275 Va. 546, 552, 659

12
S.E.2d 512, 516 (2008) (citing United States v. Sokolow, 490

U.S. 1, 7 (1989)). As this Court has previously explained,

“[r]easonable suspicion is something ‘more than an “inchoate

and unparticularized suspicion or ‘hunch’ ” of criminal

activity.’ ” Jackson v. Commonwealth, 267 Va. 666, 673, 594

S.E.2d 595, 598 (2004) (quoting Illinois v. Wardlow, 528 U.S.

119, 124 (2000) (quoting Terry v. Ohio, 392 U.S. 1, 27

(1968))). “However, it is something less than probable

cause.” Id. (citing Bass v. Commonwealth, 259 Va. 470, 475,

525 S.E.2d 921, 923 (2000)). In Alabama v. White, 496 U.S.

325, 330 (1990), the Supreme Court of the United States

explained that

[r]easonable 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.

“[T]here are situations in which an anonymous tip,

suitably corroborated, exhibits ‘sufficient indicia of

reliability to provide reasonable suspicion to make the

investigatory stop.’ ” Florida v. J.L., 529 U.S. 266, 270

(2000) (quoting White, 496 U.S. at 327). The

constitutionality of the investigative traffic stop at issue

in this case thus turns on whether the anonymous tip,

13
corroborated by the police officer’s personal observations of

the defendant’s driving behavior, exhibited sufficient indicia

of reliability to provide reasonable, articulable suspicion to

effect the traffic stop. In making that determination, we

must consider the “totality of the circumstances – the whole

picture,” United States v. Cortez, 449 U.S. 411, 417 (1981),

which includes “the content of information possessed by police

and its degree of reliability,” i.e. “quantity and quality.”

White, 496 U.S. at 330. “[U]nder the totality of the

circumstances the anonymous tip, as corroborated, [must

exhibit] sufficient indicia of reliability to justify the

investigatory stop.” Id. at 332.

There is an inverse relationship between an informant’s

reliability and the informant’s basis of knowledge. “[I]f a

tip has a relatively low degree of reliability, more

information will be required to establish the requisite

quantum of suspicion than would be required if the tip were

more reliable.” Id. at 330; see also Illinois v. Gates, 462

U.S. 213, 233 (1983) (“a deficiency in one [the informant’s

‘veracity’ or ‘reliability’ and his or her ‘basis of

knowledge’] may be compensated for, in determining the overall

reliability of a tip, by a strong showing as to the other, or

by some other indicia of reliability”). Conversely, if a

police officer’s information contains strong indicia of an

14
informant’s veracity, then less indicia of the informant’s

basis of knowledge is needed. Id.; see also State v.

Rutzinski, 623 N.W.2d 516, 522 (Wis. 2001) (“if there are

strong indicia of the informant’s veracity, there need not

necessarily be any indicia of the informant’s basis of

knowledge”).

In the case at bar, the informant identified the

defendant by name and described the shirt he was wearing. The

informant further provided specific details about the type and

color of the vehicle the defendant was driving, a partial

license plate number, the city block in which the defendant

was then driving, and the direction he was traveling. I

recognize that some of this information only enabled the

police officer to correctly identify the person whom the

informant accused of driving while intoxicated. See J.L., 529

U.S. at 272 (an accurate description of an “observable

location and appearance” merely “help[s] the police correctly

identify the person whom the tipster mean[t] to accuse”).

The majority, however, overlooks the significance of the

informant’s statement that the defendant’s vehicle was

traveling in the 3400 block of Meadowbridge Road and was

heading south. Contrary to the majority’s assertion that the

informant provided no predictions about the defendant’s future

behavior, this information is predictive. Also, to know the

15
exact location and direction of the moving green Altima at any

moment indicates that the informant personally observed the

vehicle being operated by an intoxicated driver. See State v.

Melanson, 665 A.2d 338, 340 (N.H. 1995) (although anonymous

informant provided only “innocent” details, they nevertheless

were sufficient to support the conclusion that the informant

had personally observed a vehicle being operated by an

intoxicated driver and thus helped to demonstrate the

informant’s reliability).

Furthermore, when the police officer verified the

accuracy of the “innocent” details provided by the informant,

he had reason to believe the informant was also accurate as to

the defendant’s criminal activity. “[B]ecause an informant is

shown to be right about some things, he is probably right

about other facts that he has alleged, including the claim

that the object of the tip is engaged in criminal activity.”

White, 496 U.S. at 331; accord Gates, 462 U.S. at 244.

Because the majority believes (incorrectly, in my view)

that the informant in this case provided no predictions about

the defendant’s future behavior, the majority concludes the

anonymous tip “lacked sufficient information to demonstrate

the informant’s credibility and basis of knowledge.” We

explained in Jackson, however, that every anonymous tip does

not have to include predictive information in order for the

16
tip to have sufficient indicia of reliability. 267 Va. at

680, 594 S.E.2d at 603. This is especially so when an

informant reports observable criminal activity as opposed to

concealed criminal conduct. See United States v. Wheat, 278

F.3d 722, 734 (8th Cir. 2001) (“emphasis on the predictive

aspects of an anonymous tip may be less applicable to tips

purporting to describe contemporaneous, readily observable

criminal actions, as in the case of erratic driving witnessed

by another motorist”); State v. Walshire, 634 N.W.2d 625, 627

(Iowa 2001) (distinguishing between concealed criminal

activity and illegality open to the public while also noting

that reasonable suspicion does not necessarily require

prediction of future events).

Unlike with clandestine crimes such as possessory
offenses, including those involving drugs or guns,
where corroboration of the predictive elements of a
tip may be the only means of ascertaining the
informant’s basis of knowledge, in erratic driving
cases the basis of the tipster’s knowledge is likely
to be apparent. Almost always, it comes from his
eyewitness observations, and there is no need to
verify that he possesses inside information.

Wheat, 278 F.3d at 734.

In contrast to Jackson and J.L., the police officer in

this case did not immediately stop the defendant as soon as he

spotted the vehicle described by the informant. 1 Rather, the

1
In Jackson, the police responded to a dispatch based on
an anonymous tip reporting “three black males in a white Honda

17
police officer followed the green Altima and observed the

defendant’s driving, which the officer described at trial as

“erratic behavior.” 2 The defendant’s driving, as observed by

the police officer, corroborated the informant’s assertion of

criminal activity and indicated that the defendant was

operating his vehicle while intoxicated.

The majority, however, concludes that the defendant’s

driving was merely “unusual.” The defendant’s driving

behavior alone did not need to provide reasonable, articulable

suspicion. The appropriate question is whether it

. . . and one of the subjects brandished a firearm.” 267 Va.
at 670, 594 S.E.2d at 597. After merely identifying the white
Honda with the three black males inside, the police initiated
a traffic stop that led to the discovery of a firearm in
Jackson’s possession. Id. at 670-71, 594 S.E.2d at 597.

In J.L., police officers responded to an anonymous tip
“that a young black male standing at a particular bus stop and
wearing a plaid shirt was carrying a gun.” 529 U.S. at 268.
Apart from the anonymous tip, the officers did not observe any
suspicious behavior, nor did they see the firearm. Id. The
officers nevertheless frisked the defendant and recovered a
firearm from the defendant’s pocket. Id.
2
The majority states that “during the motion to
suppress[, the officer] did not describe [the defendant’s]
driving as erratic.” The officer, however, did use the
adjective “erratic” to describe the defendant’s driving during
the Commonwealth’s case in chief. This testimony can properly
be considered by this Court on appellate review. See Murphy
v. Commonwealth, 264 Va. 568, 574, 570 S.E.2d 836, 839 (2002)
(considering officer’s trial testimony as dispositive in
reversing trial court’s denial of a motion to suppress
evidence); see also Wells v. Commonwealth, 6 Va. App. 541,
548-49, 371 S.E.2d 19, 23 (1988) (holding that “an appellate
court may consider trial evidence in ruling on the correctness
of a denial of a pretrial motion to suppress”).

18
corroborated the informant’s assertion of criminal activity.

While I disagree with the majority’s view that the defendant’s

driving was merely “unusual,” even if the majority’s

characterization is accurate, the defendant’s driving

behavior, nevertheless, corroborated the informant’s assertion

that the defendant was driving while intoxicated.

Furthermore, while the case before us involves the lesser

legal standard of reasonable, articulable suspicion,

“ ‘innocent behavior’ when considered in its overall context

may [actually] ‘provide the basis for a showing of probable

cause.’ ” United States v. Thomas, 913 F.2d 1111, 1116 (4th

Cir. 1990) (quoting Gates, 462 U.S. at 244 n.13). And,

“reasonable suspicion can arise from information that is less

reliable than that required to show probable cause.” White,

496 U.S. at 330.

The majority also ignores the principle that, when

viewing the totality of the circumstances, an officer’s

training and experience are proper factors for consideration

in determining not only whether the less stringent test of

reasonable articulable suspicion is satisfied but also whether

probable cause exists. See Cost v. Commonwealth, 275 Va. 246,

251, 657 S.E.2d 505, 507 (2008) (totality of the

circumstances, in determining whether an officer has

sufficient probable cause, includes “a consideration of the

19
officer’s knowledge, training and experience”); Brown v.

Commonwealth, 270 Va. 414, 420, 620 S.E.2d 760, 763 (2005)

(“We have considered a number of instances in which an

officer’s expertise and training made his observation of an

item suspected to contain contraband a significant factor in

the probable cause analysis.”); Harris v. Commonwealth, 241

Va. 146, 149, 400 S.E.2d 191, 193 (1991) (in determining

whether the officer has reasonable articulable suspicion,

“‘due weight must be given . . . to the specific reasonable

inferences which he is entitled to draw from the facts in

light of his experience’” (quoting Terry, 392 U.S. at 27));

Hollis v. Commonwealth, 216 Va. 874, 877, 223 S.E.2d 887, 889

(1976) (In determining whether probable cause exists, we focus

on “what the totality of the circumstances meant to police

officers trained in analyzing the observed conduct for

purposes of crime control.”). In concluding that the

defendant’s driving down Meadowbridge Road corroborated the

informant’s assertion that the defendant was driving while

intoxicated, the police officer undoubtedly drew on his

training and experience in identifying intoxicated drivers.

This Court must give due weight to that reasonable inference,

which the officer was entitled to draw from the facts in light

of his experience. See Harris, 241 Va. at 149, 400 S.E.2d at

193. In my view, the police officer’s conclusion reflects

20
what the totality of the circumstances would mean to a

reasonable police officer trained in analyzing observed

driving behavior in order to determine whether there is

reasonable suspicion that the driver is intoxicated. See

Hollis, 216 Va. at 877, 223 S.E.2d at 889.

Finally, we explained in Jackson that “ ‘[i]n contrast to

the report of an individual in possession of a gun, an

anonymous report of an erratic or drunk driver on the highway

presents a qualitatively different level of danger, and

concomitantly greater urgency for prompt action.’ ” 267 Va.

at 681, 594 S.E.2d at 603 (quoting State v. Boyea, 765 A.2d

862, 867 (Vt. 2000)); accord Rutzinski, 623 N.W.2d at 526;

Walshire, 634 N.W.2d at 629. We further stated, “ ‘[A] drunk

driver is not at all unlike a ‘bomb,’ and a mobile one at

that.’ ” Jackson, 267 Va. at 681, 594 S.E.2d at 603 (quoting

Boyea, 765 A.2d at 867). Although the majority analogizes the

case before us to Jackson, it ignores this portion of the

Jackson opinion and never addresses the distinction between an

intoxicated driver on the highway and a person carrying a

21
concealed weapon in terms of the need for prompt action by the

police. 3

For these reasons, I conclude that the anonymous tip, as

corroborated, exhibited sufficient indicia of reliability and

provided reasonable, articulable suspicion to justify the

investigative traffic stop. I therefore respectfully dissent

and would affirm the judgment of the Court of Appeals of

Virginia.

3
On brief, the Commonwealth discusses at length the
decisions from other jurisdictions holding that anonymous tips
about incidents of drunk driving require less corroboration
than tips concerning matters presenting less imminent danger
to the public, see, e.g., People v. Wells, 136 P.3d 810 (Cal.
2006); People v. Shafer, 868 N.E.2d 359 (Ill. App. 2007), and
decisions holding that anonymous tips concerning drunk driving
may be sufficiently reliable to justify an investigatory stop
without independent corroboration, see, e.g., Cottrell v.
State, 971 So. 2d 735 (Ala. Crim. App. 2006). In light of its
decision, the majority, in my view, should address the
Commonwealth’s argument.

22