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Bloomingdale v. State1/2/2004
distinguishing drunk driving cases because of the readily observable nature of the crime).
A tip reporting erratic driving is more reliable than one reporting a concealed, possessory offense because the offense is carried out in public and may be observed by any passerby. Unlike a concealed crime, a tipster reporting erratic driving requires no inside information or special basis of knowledge for her conclusion that criminal activity is occurring. Justice Skoglund, concurring in Boyea, emphasized this distinction, [FN37] and other courts have acknowledged it as well. In Wheat, the United States Court of Appeals for the Eighth Circuit distinguished on this basis gun possession offenses from driving under the influence cases. [FN38] There, the *1220 Court relied on a decision of the Iowa Supreme Court in which that court found that a tip about erratic driving inherently demonstrates the basis of the tipster's knowledge because the tip describes "not concealed criminal activity, as in J.L., but rather 'illegality open to public observation.' " [FN39] We agree that a tip about readily observable evidence of criminal activity, such as erratic driving, is inherently more reliable than a tip about concealed criminal activity. Because the basis of the tipster's knowledge is apparent where the criminal activity is readily observable to other motorists or pedestrians, [FN40] its reliability is increased.
FN37. Boyea, 765 A.2d at 874-75 (Skoglund, J., concurring).
FN38. See Wheat, 278 F.3d at 734, 736 ("[The U.S. Supreme Court's] emphasis on the predictive aspects of an anonymous tip may be less applicable to tips purporting to describe contemporaneous, readily observable criminal actions.").
FN39. Id. at 730 (quoting State v. Walshire, 634 N.W.2d 625, 627 (Iowa 2001)).
FN40. See id. at 734 ("Unlike with clandestine crimes such as possessory offenses ... 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.").
Tips reporting erratic driving [FN41] also may be more reliable because they usually will be made close in time to when the tipster observes the potential criminal activity. "[I]n our common law contemporaneous accounts of situations have long been regarded as especially credible...." [FN42] This favorable treatment of such contemporaneous accounts does not require that the witness be identified. [FN43] It is unlikely that the tipster reporting Bloomingdale's erratic driving would have had time to fabricate the unsafe driving element of the report given the short time available to contact the police and report the location of the moving vehicle. The contemporaneity of the report should permit the police officer to assess the truthfulness of the lone unverified element of the tip (that the car was being driven erratically).
FN41. We do not place weight on the potential cause of erratic driving, which are numerous. Only rarely will the tipster perceive actual drinking while driving. What the tipster can perceive is unsafe driving.
FN42. Wheat, 278 F.3d at 736 n. 11.
FN43. Id. (citing Jon R. Waltz, The Present Sense Impression Exception to the Rule Against Hearsay: Origins and Attributes, 66 IOWA L.REV. 869, 877-78 (1981)).
A tip relating to a driver who is driving erratically is less likely to involve a malicious tipster attempting to subject someone he dislikes to a police search than are tips of other varieties. The short period of time available to a tipster to notify the police accurately
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