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State v. Boyea12/1/2000
s would be an exception that could swallow the rule. Id. The Court reasoned that " he facts of this case do not require us to speculate about the 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." Id. The concurring justices did, however, speculate about a danger so extraordinary as to justify a stop without a showing of reliability. The example given was a report of a person carrying a bomb. Id. But that was not the case before the Court because, as the concurring justices pointed out, the prosecution failed to produce a record that showed anything other than a bare, anonymous tip. Therefore the record in J.L. did not support a finding of any reliability. Id.
The record in the instant case is no more complete than in J.L. The prosecution in this case failed to produce a record showing anything other than a bare, anonymous tip. The description of defendant's blue-purple Jetta with New York license plates is precisely like the description of a young black man wearing a plaid shirt. And just as J.L. was described as being at a specific bus stop, defendant's car was described at a particular location - on Interstate 89. Finally, the allegation of wrongdoing, J.L.'s carrying a gun and Ms. Boyea's "erratic driving," stands alone, with no explanation of how or why the tipster knows this.
The majority contends that the informant in this case "predicted" that the Jetta would continue to be on the Interstate and that this "prediction" was proven true, thereby corroborating the tip. This "prediction" is no such thing. The tipster in J.L. did not "predict" that J.L. would remain at the bus stop; the tip simply accused a specific person, an actual man at a real location, of carrying a gun. The police then saw the person described at the specified location. The facts in this case are no different. The informant did describe an actual car, Ms. Boyea's car, at a real location, which was on Interstate 89 headed south. This information is not a "prediction" - it is a description, it relates actually existing information about a determinate car but it does not predict the future activities of the driver in a way that demonstrates inside information. That is the hallmark of a prediction that is reliable when corroborated. See White, 496 U.S. at 322. This "prediction" is utterly unlike the prediction of White, that the defendant would drive a particular car at a particular date and time along a four-mile long route described in minute detail. See id. The content of this tip was simply that a specific car was allegedly "operating erratically." In fact, this "prediction" is no more and no less than the "prediction" implicit in the J.L. tip that the defendant would continue standing at the bus stop. If the White tip, with all of its detail and corroborated predictions, was "close" to the line between reliable and unreliable anonymous tips, id. at 332, this accusation of erratic driving is well over the line into unreliability.
It is certainly possible to speculate that the police might have had more information, but they have not shown that they did and it is not our job to supplement the record. In fact, our job is the opposite; we are not permitted to create a new rule of law in order to compensate for a failure in the record. We are to review the record that was before the trial court and base our decision on that record. This constraint is inherent in the nature of an appellate court; we must bow to "the controlling force of the record" and consider only those facts that were established below. D. Meador & J. Bernstein, Appellate Courts in the United States, 55 (1994); see also In re M.C.P., 153 Vt. 275, 29
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