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State v. Boyea12/1/2000
81 (quoting Terry, 392 U.S. at 25) (emphasis added).
The recent decision of the United States Supreme Court in Florida v. J.L., 120 S. Ct. 1375 (2000), also provides an illuminating contrast to the case at bar. In a relatively brief, unanimous ruling the high court there held that, absent any other indicia of reliability, an anonymous tip that an individual was in possession of a firearm did not justify a stop and frisk. In so holding, the Court rejected the government's argument that firearms were sufficiently dangerous in and of themselves to justify dispensing with the requirement of reliability. The Court was particularly careful, however, to limit its holding to the facts, explaining: "The 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. at 1380. It held only "that an anonymous tip lacking indicia of reliability of the kind contemplated in Adams and White does not justify a stop and frisk whenever and however it alleges the illegal possession of a firearm." Id.
The case before us differs from J.L. in several critical respects. First, the information here was more reliable. The Court in J.L. emphasized that the anonymous informant had provided nothing more than a bare-bones description of an individual standing at a bus stop. Hence, there was none of the "predictive" information about the individual's movements which lent credibility to the anonymous informant in White, 496 U.S. at 332. Here, in contrast, the informant described with particularity, and accurately predicted, the location of a fast moving vehicle on a freeway, information which the officer confirmed within minutes of the call.
The Supreme Court also noted the relative lack of urgency confronting the investigating officers. While acknowledging that guns are dangerous, the Court analogized the situation to one involving an anonymous tip concerning possession of narcotics. In either case the contraband could pose a potential public risk, but in neither is the danger particularly imminent. Thus, the Court rejected a rule that would have dispensed with the requirement of reliability "whenever and however" the information involved a gun. J.L., 120 S. Ct. at 1380. At the same time, however, the Court carefully limited its holding to the facts, declining to "speculate" about situations involving other types of dangers, such as a report of a person carrying a bomb. Id.
In 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. In the case of a concealed gun, the possession itself might be legal, and the police could, in any event, surreptitiously observe the individual for a reasonable period of time without running the risk of death or injury with every passing moment. An officer in pursuit of a reportedly drunk driver on a freeway does not enjoy such a luxury. Indeed, a drunk driver is not at all unlike a "bomb," and a mobile one at that.
Finally, in contrast to the police search and seizure of the person in J.L., the police "intrusion" here, as in most DUI cases, consisted of a simple motor vehicle stop, "a temporary and brief detention that is exposed to public view." State v. Zumbo, 157 Vt. 589, 592, 601 A.2d 986, 988 (1991). In determining the validity of a stop, it is not unreasonable to consider both the risk of harm resulting from a failure to detain the driver, and the level of intrusiveness occasioned by a detention. See State v. Richardson, 456 N.W.
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