Jackson v. Commonwealth

Present: All the Justices

JERALD LORENZO JACKSON

v. Record No. 031867 OPINION BY JUSTICE CYNTHIA D. KINSER
April 23, 2004
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

Relying on a tip from an anonymous informant, a police

officer conducted an investigatory stop of an automobile in

which the defendant was a passenger. The issue is whether

the information from the anonymous caller, corroborated in

part by police officers’ observations, provided reasonable

articulable suspicion to justify the investigative traffic

stop. We conclude that it did not and that, therefore,

evidence seized from the defendant during a subsequent

search should have been suppressed by the trial court.

PRIOR RELEVANT PROCEEDINGS

The appellant, Jerald Lorenzo Jackson, was indicted in

the Circuit Court for the City of Newport News for

possession of cocaine in violation of Code § 18.2-250, and

possession of a firearm while in possession of a controlled

substance in violation of Code § 18.2-308.4(A). He was

also charged with a misdemeanor, possession of a concealed
weapon in violation of Code § 18.2-308.1 Jackson filed a

pretrial motion to suppress evidence, specifically a

firearm and cocaine, seized during a warrantless search of

his person. He asserted that the police did not have a

reasonable articulable suspicion justifying the

investigative traffic stop. The trial court denied the

suppression motion and convicted Jackson of the charged

offenses.

Jackson appealed his convictions to the Court of

Appeals of Virginia. That court affirmed the convictions

and the judgment of the circuit court. Jackson v.

Commonwealth, 39 Va. App. 624, 576 S.E.2d 206 (2003). Upon

granting Jackson’s petition for a rehearing en banc,

Jackson v. Commonwealth, 40 Va. App. 88, 578 S.E.2d 51

(2003), the Court of Appeals again affirmed the

convictions, Jackson v. Commonwealth, 41 Va. App. 211, 583

S.E.2d 780 (2003). We awarded Jackson this appeal limited

to the question whether the circuit court erred in denying

Jackson’s pretrial motion to suppress.

RELEVANT FACTS

At approximately 2:10 a.m. on June 17, 2001, M. A.

Cook, a police officer with the City of Newport News Police

1
The misdemeanor charge was on appeal to the circuit
court. See Code § 16.1-132.

2
Department, received a dispatch, based on information from

an anonymous caller, regarding a firearm. According to

Officer Cook, “[u]nits were dispatched to 34th [Street] and

Jefferson [Avenue]. . . . in reference to three black males

in a white Honda that were disorderly and one of the

subjects brandished a firearm.” There was a small bar and

a gasoline station situated at that location. As Officer

Cook was approaching the specified intersection

approximately five minutes after receiving the dispatch, he

observed a white Honda automobile that was occupied by

three black males. The vehicle was leaving the gasoline

station and “pulled out right in front of” Officer Cook,

allowing the headlights of his vehicle to shine into the

window of the Honda automobile. At that point, Officer

Cook executed a “U-turn” and proceeded to follow the Honda

automobile until other police units arrived. He then

executed a traffic stop, causing the automobile to pull

into the parking lot of a fast-food restaurant. Officer

Cook approached the driver of the vehicle and explained the

reason for the traffic stop. The defendant was sitting in

the front passenger seat of the vehicle.

Sergeant James Hogan, another police officer who

responded to the dispatch, assisted Officer Cook in the

traffic stop. Sergeant Hogan approached the stopped Honda

3
vehicle from the rear and moved up to the front door on the

passenger side. He then shined his flashlight into the

vehicle and spotted Jackson sitting in the front passenger

seat.

The defendant had his arms folded across his stomach,

but Sergeant Hogan noticed a bulge in Jackson’s shirt under

his arms just above the waistband of his pants. According

to Sergeant Hogan, “[the] bulge . . . obviously was not

part of [Jackson’s] body[;] . . . it was too big” to be

anything other than a firearm. Sergeant Hogan asked

Jackson if he had a firearm, and Jackson responded, “No.”

Sergeant Hogan requested Jackson to move his hands, but

Jackson just raised his hands and put them back on his

stomach. Sergeant Hogan then asked Jackson to pull his

shirt up, but Jackson merely pulled his shirt out a few

inches and then put it back, placing his arms back across

his stomach.

Due to Jackson’s unwillingness to cooperate with

Sergeant Hogan’s requests, Sergeant Hogan pulled his

firearm out of its holster, pointed it at Jackson, and

directed him to get out of the vehicle. As Jackson was

doing so, Officer Brendan D. Bartley, who was standing

behind Sergeant Hogan, reached around Jackson and removed a

firearm from the waistband of Jackson’s pants. The firearm

4
was underneath Jackson’s shirt. Officer Bartley handcuffed

Jackson and proceeded to search him subsequent to arrest.

During that search, Officer Bartley found four,

individually wrapped “rocks of cocaine” in the left pocket

of Jackson’s pants.

Officer Cook acknowledged that the driver of the Honda

automobile was not violating any traffic laws and that he

would not have stopped the vehicle except for the dispatch.

He also did not have any information other than what was

contained in the original dispatch to the police officers.

Similarly, Sergeant Hogan knew of no efforts to confirm the

information received by the dispatcher. Like Officer Cook,

he saw the white Honda automobile and it matched the

description of the vehicle for which they were looking.

So, Sergeant Hogan turned his police vehicle around and

followed Officer Cook, who was pursuing the white Honda

automobile. Likewise, Officer Bartley responded to the

original dispatch and saw the white Honda vehicle turning

southbound on Jefferson Avenue. He did, however, testify

that he had a clear vision of the entire parking lot at the

small bar and he did not see another white Honda automobile

there.

ANALYSIS

5
 The Fourth Amendment protects “persons” from

“unreasonable searches and seizures.” U.S. Const. amend.

IV. An investigatory stop (sometimes referred to as a

“Terry stop”), such as the traffic stop at issue in this

case, constitutes a seizure within the meaning of the

Fourth and Fourteenth Amendments “even though the purpose

of the stop is limited and the resulting detention quite

brief.” Delaware v. Prouse, 440 U.S. 648, 653 (1979); see

United States v. Hassan El, 5 F.3d 726, 729 (4th Cir.

1993). Consequently, such action by a police officer “must

be justified by probable cause or a reasonable suspicion,

based on specific and articulable facts, of unlawful

conduct.” Hassan El, 5 F.3d at 729; see Bass v.

Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 923-24

(2000)(“stop of an automobile . . . is unreasonable under

the Fourth Amendment absent a reasonable, articulable

suspicion that the driver is unlicensed or that the

automobile is not registered, or that either the vehicle or

an occupant is otherwise subject to seizure for violation

of the law”); United States v. Bell, 183 F.3d 746, 749 (8th

Cir. 1999) (“An investigative stop does not violate the

Fourth Amendment if the police have reasonable suspicion

that the vehicle or its occupants are involved in criminal

activity.”) If evidence is seized during an illegal stop,

6
it is not admissible at trial under the doctrine known as

“the fruit of the poisonous tree.” Hassan El, 5 F.3d at

729; see Wong Sun v. United States, 371 U.S. 471 (1963).

The issue we decide in this appeal is whether the anonymous

tip together with the police officers’ observations of the

white Honda automobile and its occupants provided

reasonable articulable suspicion to justify the

investigative traffic stop.

In deciding that issue and reviewing the trial court’s

denial of Jackson’s motion to suppress, we consider the

evidence and all reasonable inferences flowing from that

evidence in the light most favorable to the Commonwealth,

the prevailing party at trial. Bass, 259 Va. at 475, 525

S.E.2d at 924. Since the constitutionality of a search and

seizure under the Fourth Amendment involves questions of

law and fact, we give deference to the factual findings of

the trial court but independently decide whether, under the

applicable law, the manner in which the challenged evidence

was obtained satisfies constitutional requirements. McCain

v. Commonwealth, 261 Va. 483, 490, 545 S.E.2d 541, 545

(2001); see Ornelas v. United States, 517 U.S. 690, 696-97

(1996). The Commonwealth carries the burden of showing

that a warrantless search and seizure was constitutionally

permissible. Simmons v. Commonwealth, 238 Va. 200, 204,

7
380 S.E.2d 656, 659 (1989). However, a defendant must

show, when viewing the evidence in the light most favorable

to the Commonwealth, that the denial of the motion to

suppress evidence was reversible error. 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).

The constitutionality of the traffic stop in this case

turns on whether the anonymous tip sufficed to give rise to

reasonable suspicion. Reasonable suspicion is something

“more than an ‘inchoate and unparticularized suspicion or

“hunch” ’ of criminal activity.” 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. Bass, 259 Va. at 475, 525 S.E.2d at 923. 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.

The “totality of the circumstances,” which includes

“the content of information possessed by police and its

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

8
be considered when determining whether reasonable suspicion

exits. Id. “[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.; 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”). The converse is likewise true. See 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”).

The interplay between an informant’s reliability and

the informant’s basis of knowledge is illustrated by

comparing the decision in Alabama v. White, 496 U.S. 325,

with the decision in Adams v. Williams, 407 U.S. 143

(1972). In the former case, the police received a

telephone call from an anonymous informant who stated that

the defendant would leave a particular address “at a

particular time in a brown Plymouth station wagon with the

right taillight lens broken,” would drive to a named motel,

9
and would be in possession of cocaine inside a brown

attaché case. White, 496 U.S. at 327. The police

proceeded to the specified address where they observed both

the automobile as described by the informant and the

defendant as she left the building and drove away in the

automobile. Id. The police followed the vehicle as it

proceeded along the most direct route to the named motel.

Id. The police stopped the defendant’s vehicle shortly

before it reached the motel and conducted a consensual

search of the station wagon. Id. During the search, the

police found the brown attaché case, which contained

marijuana. Id. They also discovered cocaine in the

defendant’s purse. Id. At trial, the defendant moved to

suppress the evidence seized during the search on the basis

that the police officers did not have a reasonable

suspicion justifying the initial investigative stop. Id.

at 327-328.

Although the Supreme Court described White as a

“close” case, it concluded “that under the totality of the

circumstances the anonymous tip, as corroborated, exhibited

sufficient indicia of reliability to justify the

investigatory stop” of the defendant’s vehicle. Id. at

332. The Court acknowledged that the police officers had

not verified every detail mentioned by the anonymous caller

10
but that they had corroborated certain facts, including

that a woman had left a particular building, had gotten

into the described automobile, and had driven along the

most direct route toward the named motel. Id. at 331. The

Court stated that it was “important that . . . ‘the

anonymous [tip] contained a range of details relating not

just to easily obtained facts and conditions existing at

the time of the tip, but to future actions of third parties

ordinarily not easily predicted.’ ” Id. at 332 (quoting

Gates, 462 U.S. at 245). The Court explained that the

police officers’ finding an automobile exactly as the

anonymous caller had described in front of a particular

building was an example of readily obtained facts which

anyone could have known. Id. at 332. However, “[w]hat was

important was the caller’s ability to predict [the

defendant’s] future behavior, because it demonstrated

inside information − a special familiarity with [the

defendant’s] affairs” that the general public would have no

way of knowing. Id. Once the police verified the caller’s

predictions, it was reasonable to conclude that the caller

had reliable information about the defendant’s illegal

activities. Id. That “basis of knowledge” provided the

anonymous caller with sufficient indicia of reliability to

justify the investigatory stop. Id. at 329.

11
 In contrast, the decision in Adams v. Williams turned

on the informant’s veracity rather than the informant’s

basis of knowledge. There, an informant approached a

police officer and stated that “an individual seated in a

nearby vehicle was carrying narcotics and had a gun at his

waist.” 407 U.S. at 144-45. The informant was personally

known by the police officer and had provided him with

information in the past. Id. at 146. Based on the

informant’s tip, the police officer approached the vehicle

and, when the defendant rolled down the window, the officer

reached into the vehicle and removed a fully loaded firearm

from the defendant’s waistband. Id. at 145. The firearm

was not visible to the police officer from outside the

automobile, but it was located precisely where the

informant had indicated. Id. During a subsequent search

incident to arrest, police officers found heroin, a

machete, and another firearm. Id.

Emphasizing that the police officer personally knew

the informant and had received information from him in the

past, the Supreme Court concluded that the officer “acted

justifiably in responding to his informant’s tip.” Id. at

146. The Court stated that this case was “stronger” than

one involving “an anonymous telephone tip” because “[t]he

informant here came forward personally to give information

12
that was immediately verifiable at the scene.” Id. Also

important in the Court’s analysis was the fact that the

informant might have been subject to immediate arrest for

making a false complaint had the officer’s investigation

proved the tip to be false. Id. at 147.

This analysis brings us to the Supreme Court’s most

recent case involving an anonymous informant, Florida v.

J. L., 529 U.S. 266 (2000). There, an anonymous caller

reported to the police “that a young black male standing at

a particular bus stop and wearing a plaid shirt was

carrying a gun.” Id. at 268. There was no audio recording

of the call, and the police did not know anything about the

caller. Id. Proceeding on the information provided by the

informant, the police went to the bus stop and observed

three black males there. Id. One of them, J. L., was

wearing a plaid shirt. Id. Apart from the anonymous tip,

the police did not observe any suspicious behavior, nor did

the officers see a firearm. Id. Nevertheless, “[o]ne of

the officers approached J. L., told him to put his hands up

on the bus stop, frisked him, and seized a gun from J. L.’s

pocket.” Id. J. L. was charged with carrying a concealed

weapon without a license and possessing a firearm while

under the age of 18. Id. at 269. At trial, he moved to

suppress the introduction of the firearm that was seized

13
from him on the basis that it was “the fruit of an unlawful

search.” Id.

The question presented to the Supreme Court was

whether the anonymous tip pointing to J. L. had the

required indicia of reliability as enunciated in Adams and

White. Id. at 270. In J. L., the officers’ suspicion that

the defendant was carrying a concealed weapon came not from

their own observations “but solely from a call made from an

unknown location by an unknown caller.” Id. Thus, the

Court concluded that, unlike a tip such as the one in Adams

where the informant was known and could be held responsible

if the allegations were proven to be false, “ ‘an anonymous

tip alone seldom demonstrates the informant’s basis of

knowledge or veracity.’ ” Id. (quoting White, 496 U.S. at

329).

The tip concerning J. L. also lacked the indicia of

reliability present in White because the anonymous caller

did not provide any “predictive information” which the

police could use to test the informant’s basis of knowledge

or credibility. Id. at 271. The fact that the informant

provided an accurate description of an “observable location

and appearance” served only to “help the police correctly

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

Id. at 272. The reasonable suspicion at issue in J. L. was

14
whether the informant was reliable in the assertion of

concealed criminal activity, “not just in [the tip’s]

tendency to identify a determinate person.” Id. Thus,

since all the police had in J. L. was “the bare report of

an unknown, unaccountable informant who neither explained

how he knew about the gun nor supplied any basis for

believing he had inside information about J. L.,” the Court

concluded that the investigatory stop and ensuing search

were unconstitutional. Id. at 271.

The Court also rejected a “firearm exception” to its

well-established reliability analysis. Such an exception

would allow a stop and frisk when a tip alleges an illegal

firearm even if the tip lacked sufficient indicia of

reliability. Id. at 272. But, the Court pointed out that

it was not saying that there could never be “circumstances

under which the danger alleged in an anonymous tip might be

so great as to justify a search even without a showing of

reliability,” such as information that a person is carrying

a bomb. Id. at 273.

Turning now to the case before us, we agree with the

statement that “[r]arely are the facts of two cases as

congruent as the facts in J. L. and this case.” Jackson,

41 Va. App. at 240, 583 S.E.2d at 795 (Benton, J.,

dissenting). As in J. L., Officer Cook had nothing more to

15
go on than an anonymous, unaccountable informant who

neither explained how he knew that Jackson was brandishing

a firearm nor furnished any basis for believing that he had

inside knowledge about Jackson. Both the “quantity and

quality” of the information supplied to the police here

lacked sufficient indicia of reliability to justify the

investigatory stop. Nor did the police officers observe

any suspicious behavior once they spotted the white Honda

automobile.

Unlike the informant in Adams, the caller in this case

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

appear before an 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). There also is no evidence that the caller had

supplied information on any previous occasions. When, as

in this case, there are virtually no indicia of the

informant’s veracity, more information is required in order

“to establish the requisite quantum of suspicion than would

be required if the tip were more reliable.” White, 496

U.S. at 330.

16
 The tip in this case, however, also lacked sufficient

information to demonstrate the informant’s basis of

knowledge and to establish the “requisite quantum of

suspicion.” Id. The Court of Appeals correctly noted that

Officer Cook verified six details reported by the

informant: the make and color of the vehicle; its location;

and the number, race, and gender of the vehicle’s

occupants. Jackson, 41 Va. App. at 229, 583 S.E.2d at 789.

Based on the officer’s verification of these details, the

Court of Appeals concluded that it was objectively

reasonable for the officer to believe “that the remaining

portion of the tip − that one of the suspects had brandished

a firearm only moments before − was likewise true.” Id. We

do not agree. The tip included only “easily obtained facts

and conditions existing at the time of the tip” which

anyone could have known, including the allegation of

brandishing a firearm. White, 496 U.S. at 332. It failed

to include the kind of details critical to the Supreme

Court’s analysis in White, predictions about the

defendant’s future behavior. Such details are important

because they demonstrate “inside information” that would

not be available to the public generally. Id.

Thus, as in J. L., “[t]he anonymous call . . .

provided no predictive information and therefore left the

17
police without means to test the informant’s knowledge or

credibility.” 529 U.S. at 271. That the officers in fact

found a gun when they searched Jackson does not mean that,

prior to the search, they had a reasonable basis for

believing that Jackson had engaged in criminal conduct.

See id. Even when an informant reports the commission of

an open and obvious crime, if the tip is truly anonymous

and provides no explanation for how the informant acquired

the information, i.e., the informant’s basis of knowledge,

there remains a “layer of inquiry respecting the

reliability of the informant that cannot be pursued.”

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

The Court of Appeals distinguished this case from

J. L. and found the tip here

“reliable in its assertion of illegality” because
this tip − unlike the “carrying a gun” tip in J.L.
− provided information permitting the officers
reasonably to infer that it (i) came from a
concerned citizen making a contemporaneous
eyewitness report, (ii) involved an open and
obvious crime rather than mere concealed
illegality,[2] and (iii) described criminality
posing an imminent danger to the public.

2
The Court of Appeals stated that “[w]hen an anonymous
caller reports an open and obvious crime . . . , the Fourth
Amendment may require no showing that the caller have
inside information about the suspect capable of predicting
his future conduct.” Jackson, 41 Va. App. at 227, 583
S.E.2d at 788. In support of that assertion, the court, in
a footnote, cited its decision in Beckner v. Commonwealth,
15 Va. App. 533, 535, 425 S.E.2d 530, 531 (1993). However,
in Beckner, it was not necessary for the informant to have

18
Jackson, 41 Va. App. at 235, 583 S.E.2d at 792 (quoting

J. L., 529 U.S. at 272) (internal citation omitted).

However, the first factual predicate is not supported by

the record, the second factor does not distinguish this

case from J. L., and the third element was rejected by the

Supreme Court in J. L.

As to the Court of Appeals’ conclusion that this tip

came from a concerned citizen making an eyewitness report,

the record contains the testimony of two police officers

concerning the dispatch that directed them to proceed to

34th Street and Jefferson Avenue. Officer Cook stated that

“[w]e were dispatched in reference to three black males in

a white Honda [who] were disorderly and one of the subjects

brandished a firearm.” Sergeant Hogan testified that he

was backing up Officer Cook “on a call that someone was

brandishing a firearm and that they were getting, he and

two other guys were getting into a car and leaving.” This

testimony is the police officers’ recitation of the

information reported to them by the police dispatcher. The

dispatcher did not testify nor is there any evidence that

predicted future action by the defendant because the
informant had “a face-to-face confrontation with the police
officer.” Id., 425 S.E.2d at 532. Thus, the informant had
subjected himself to possible prosecution if he gave false
information.

19
the informant’s call was audio-recorded or its content

preserved in some other manner.

Thus, even when viewing the police officers’ testimony

in the light most favorable to the Commonwealth and

imputing the dispatcher’s knowledge to the officers, see

Feathers v. Aey, 319 F.3d 843, 849 (6th Cir. 2003), there

simply is no evidence from which a reasonable inference can

be drawn that the informant in this case was a concerned

citizen making an eyewitness report as a crime was being

committed as opposed to a prankster or someone with a

grudge against Jackson. The informant provided no details

about himself or herself, cf. State v. Williams, 623 N.W.2d

106, 114 (Wis. 2001) (informant provided “self-identifying

information”); no descriptive facts showing that he or she

personally observed the firearm instead of having received

information from another person; and no time frame for when

the illegal activity was observed, cf. United States v.

Thompson, 234 F.3d 725, 727 (D.C. Cir. 2000) (tipster

stated that he “just saw” the defendant with a gun).3 In

other words, the anonymous informant here provided no basis

for his or her knowledge.

3
The evidence showed only that Officer Cook arrived
at the scene approximately five minutes after receiving the
dispatch.

20
 Implicit in the second factor central to the Court of

Appeals’ holding is its statement that one fact alone

distinguishes this case from J. L., that the informant here

asserted specific illegal activity while the informant in

J. L. made no assertion of illegality. However, as the

dissent noted, “[i]f . . . the issue in J. L. concerned the

failure of the informant’s tip to convey evidence of

criminal conduct, the resolution of that case would not

have required any discussion about the informant’s

reliability.” Jackson, 41 Va. App. at 242, 583 S.E.2d at

796 (Benton, J., dissenting). Moreover, the Supreme Court

rejected any suggestion that a report of illegal conduct

justifies a stop and frisk: “[t]he mere fact that a tip, if

true, would describe illegal activity does not mean that

the police may make a Terry stop without meeting the

reliability requirement.” 529 U.S. at 273 n. *. The Court

made no distinction between concealed criminal conduct and

open, obvious criminal activity.

Additionally, as already discussed, the police here

had no way to test the anonymous informant’s basis of

knowledge and to determine his or her reliability. The

informant did not provide, contrary to the Court of

Appeals’ conclusion, any “first-person, present-tense”

details of the alleged illegal conduct. Jackson, 41 Va.

21
App. at 233, 583 S.E.2d at 791. See, e.g. Rutzinski, 623

N.W.2d at 519 (unidentified motorist reported, by cellular

phone, erratic driving by another motorist and that he or

she was in the vehicle in front of the swerving pickup).

Nor did the informant provide any information about the

defendant’s future behavior. We do not suggest that every

anonymous tip must include predictive information, see

United States v. Wheat, 278 F.3d 722, 734 (8th Cir. 2001)

(“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”); but, even

when an informant reports open and obvious criminal

conduct, sufficient indicia of reliability must be present

before a stop and frisk is justified.

Finally, with regard to the Court of Appeals’ reliance

on the imminent danger to the public, the Supreme Court

declined to carve out a “firearm exception” to its

established reliability requirements for anonymous tips.

J. L. 529 U.S. at 272. The Court stated that “an automatic

firearm exception . . . would rove too far” because it

“would enable any person seeking to harass another to set

in motion an intrusive, embarrassing police search of the

targeted person simply by placing an anonymous call falsely

22
reporting the target’s unlawful carriage of a gun.” Id.

See also Harris v. Commonwealth, 262 Va. 407, 416, 551

S.E.2d 606, 611 (2001) (a police officer’s “hunch” that the

defendant was trespassing could not be raised to the level

of reasonable suspicion based on an anonymous informant’s

assertion that the defendant was armed; the Commonwealth

could not “bootstrap[] the legitimate concern for law

enforcement officers’ safety, which permits a protective

search of a legally detained suspect, to serve as the basis

for detaining the suspect”).

Nor are we persuaded by the cases relied on by the

Commonwealth and the Court of Appeals. Those cases are

either inapposite or involved tips that contained indicia

of reliability not present here. For example, Wheat, 278

F.3d 722; State v. Walshire, 634 N.W.2d 625 (Iowa 2001);

Rutzinski, 623 N.W.2d 516; and State v. Boyea, 765 A.2d 862

(Vt. 2000), all addressed the reliability of anonymous

reports of erratic or drunk drivers. That circumstance and

the imminent public danger associated with it are not

factors in this case. As the court in Boyea recognized, “a

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

one at that.” 765 A.2d at 867. We agree 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

23
the highway presents a qualitatively different level of

danger, and concomitantly greater urgency for prompt

action.” Id.

Continuing, in Williams, 623 N.W.2d 106, the informant

was not truly anonymous. There, the caller identified her

location; indeed, she referred to it as “my house.” Id. at

114. The court concluded that the informant had provided

“self-identifying information” and therefore put her

“anonymity at risk.” Id. “Risking one’s identification

intimates that, more likely than not, the informant is a

genuinely concerned citizen as opposed to a fallacious

prankster.” Id. at 114-15. Similarly, the informant in

Rutzinski “exposed him − or herself to being identified”

because the informant told the police “that he or she was

in the vehicle in front of Rutzinski’s pickup.” 623 N.W.2d

at 525.

CONCLUSION

Under the totality of the circumstances presented

here, the anonymous tip lacked sufficient indicia of

reliability to justify the investigatory stop of the

vehicle in which Jackson was a passenger. Thus, the stop

was illegal as well as the subsequent search of Jackson’s

person. Therefore, we hold that the trial court erred in

refusing to grant Jackson’s pre-trial motion to suppress

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the evidence seized from him. Accordingly, we will reverse

the judgment of the Court of Appeals and dismiss the

indictments against Jackson.

Reversed and dismissed.

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