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Bloomingdale v. State1/2/2004
isk of harm outweighed the risk to individual liberty. The court thus held that the stop was constitutionally valid. [FN34]
FN32. The U.S. Supreme Court has held that an anonymous tip with predictive qualities may create reasonable suspicion because it indicates inside knowledge of a suspect's criminal activities. E.g., Alabama v. White, 496 U.S. 325, 331-32, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).
FN33. Boyea, 765 A.2d at 868.
FN34. The Boyea court also emphasized the severe risk to public safety posed by intoxicated drivers. This is a valid concern, but we choose to predicate our decision primarily on the erratic driving report, the reliability of the informant's information and the minimal intrusion on individual liberty posed by the traffic stop in the case before us.
*1219 In the present case, Chief Capriglione stopped Bloomingdale's vehicle on the basis of an anonymous tip containing specific details identifying the vehicle and its location and reporting that the driver was operating the vehicle "all over the roadway." Chief Capriglione corroborated all the factual allegations except that pertaining specifically to the alleged criminal activity. Because Chief Capriglione did not himself observe any moving violations, we must decide whether the tip contained sufficient indicia of reliability to support a stop on the basis of the tip alone. [FN35] We conclude that the tip was sufficiently reliable to justify an investigatory stop.
FN35. Cf. United States v. Wheat, 278 F.3d 722, 729 (8th Cir.2001) ( "The question we now face is whether, in light of J.L., an anonymous tip about the dangerous operation of a vehicle whose innocent details are accurately described may still possess sufficient indicia of reliability to justify an investigatory stop by a law enforcement officer who does not personally observe any erratic driving.").
The anonymous tips that have been held to be insufficiently reliable to create reasonable suspicion have related largely to concealed, possessory crimes. In J.L. the tipster said the suspect had a concealed gun. In Jones, there was no such allegation-only the description of the subject as "suspicious." Accordingly, the courts considering the reliability of those tips found them to be insufficient to demonstrate the basis of the tipsters' knowledge of concealed criminal activities. [FN36] We find that an anonymous report of contemporaneously-observed erratic driving does not suffer from the same lack of indicia of reliability.
FN36. See, e.g., Florida v. J.L., 529 U.S. 266, 272, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (observing, in a weapons possession case, that a tip reporting "a subject's readily observable location and appearance .... does not show that the tipster has knowledge of concealed criminal activity"); Flonnory v. State, 805 A.2d 854, 859 (Del.2001) (finding, in a drug possession case, that a tip "provided the police with only a description of the suspects and gave no other information that would have indicated to the officers that the informant possessed an inside knowledge of illegality"); Jones v. State, 745 A.2d 856, 870 (Del.1999) (opining, in a cocaine possession and trafficking case, that an anonymous tipster's "subjective belief that another person is 'suspicious,' without more, fails to raise a reasonable and articulable suspicion of criminal activity"). Cf. State v. Boyea, 171 Vt. 401, 765 A.2d 862, 874-75 (Vt.2000) (Skoglund, J., concurring) (describing what Justice Skoglund believes "has been the dominant and determinative factor in the [U.S. Supreme] Court's development of Fourth Amendment search and seizure law-the unrelenting extension of the principles of Terry to cases where the suspected illegal activity is a possessory offense," and
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