¶1(dissenting).
¶2{19} I respectfully dissent. I concur in the majority’s decision to analyze the tip Officer Alvidrez received as an anonymous tip and to compare the facts of this appeal with the facts of two United States Supreme Court cases, Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), which was decided after the Court of Appeals affirmed the district court, and Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), on which the Court of Appeals relied in affirming the district court. I also concur in the standard of review applied by the majority. For the reasons that follow, however, I believe we ought to conclude that Deputy Greenlee stopped Defendant on the highway prior to developing the reasonable suspicion required by the Fourth Amendment to make a valid investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). I believe we ought to conclude that Defendant’s Fourth Amendment rights were violated by the highway stop and that the district court erred in denying his motion to suppress evidence developed as a result of that stop. Therefore, I would reverse and remand this matter to the district court with instructions to grant Defendant’s motion to suppress.
¶3{20} A valid investigatory stop under Terry requires reasonable suspicion that the person stopped is engaged in criminal activity. White, 496 U.S. at 330-31, 110 S.Ct. 2412. “Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability.” Id. at 330, 110 S.Ct. 2412. “Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, ‘an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.’ ” J.L., 529 U.S. at 270, 120 S.Ct. 1375 (citation omitted) (quoting White, 496 U.S. at 329, 110 S.Ct. 2412). When an anonymous tip has been “suitably corroborated,” however, it may support a valid investigatory stop. Id. The question in this appeal is whether or not we may conclude as a matter of law that the tip Greenlee received was “suitably corroborated.”
¶4{21} In White, an anonymous tip was held to have been suitably corroborated when the police observed a woman fitting the description given by the tipster exit the described apartment complex, get into the described vehicle, and take the most direct route to the described location. 496 U.S. at 327, 110 S.Ct. 2412. In J.L., an anonymous tip was held to have been insufficient when the police observed a young man fitting the description given by the tipster at the location included in the tip. 529 U.S. at 268-69, 120 S.Ct. 1375. The difference between the two cases seems to turn on the extent to which the anonymous tip accurately predicts the future movements of the subject. As the Court noted in White,
Because only a small number of people are generally privy to an individual’s itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual’s illegal activities. When significant aspects of the caller’s predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop.
¶5496 U.S. at 332, 110 S.Ct. 2412 (citation omitted). The Court further refined this point in J.L., stating that “[t]he reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” 529 U.S. at 272, 120 S.Ct. 1375.
¶6{22} Deputy Greenlee did not see the driver of the van until after he had stopped Defendant. He did not testify that he recognized the van that he stopped. As I understand the record on appeal, he observed the eastbound travel of an older model green Econoline van toward Tueumcari at about the time the tipster had said a van of that type, owned by a man who lived in Tucumcari would reach Tueumcari. The fact that Defendant’s van was not located at 1115 South Fifth Street when Deputy Greenlee drove by the residence did not corroborate that the van ordinarily located there was traveling from Albuquerque to Tueumcari or that the van he later observed on Interstate 40 was the van ordinarily located at 1115 South Fifth Street.
¶7{23} Approximately 135 miles of interstate lie between Albuquerque and Tueumcari, a distance that, if traveled at highway speeds, would take less than six hours to cover. Had Officer Alvidrez communicated to Deputy Greenlee the time at which the tip was received, Deputy Greenlee would have had a basis for believing that the tipster was familiar with the schedule of the person who was driving the van he stopped. There is nothing in the record before us to indicate that Officer Alvidrez did so. There is also no basis in the record for believing that Deputy Green-lee possessed this information from any other source. I believe the question of whether Deputy Greenlee had the required reasonable suspicion to stop Defendant depends on how much of the information provided by the tip and conveyed to him Deputy Greenlee himself corroborated. See United States v. Shareef, 100 F.3d 1491, 1504 (10th Cir.1996) (holding that information supporting reasonable suspicion held by one officer could not be imputed to another officer absent evidence that the information was communicated between the two). In any event, since Deputy Greenlee did not identify the driver until after he stopped the van, I am not persuaded that we can conclude he corroborated the movements of the subject described in the tip prior to the stop.
¶8{24} In comparing White to the present case, the majority notes that “[t]he exact point of origin of the suspect was not corroborated in either case.” Majority Opinion, ¶ 16. I would characterize White somewhat differently, however, because in that case the police officers observed the suspect, a woman, leaving the apartment building specified in the tip and entering a ear that the tipster had described by make, color, condition and location. 496 U.S. at 327, 110 S.Ct. 2412. The police may not have seen the specific apartment from which the suspect emerged, but I think it is fail- to characterize the point of origin in White as corroborated. The majority also notes that “[t]he exact destination of the suspect was not corroborated in either case.” Majority Opinion, ¶ 16. Again, I would characterize White somewhat differently. In White, the police stopped the woman they suspected before she actually reached the hotel to which the tip indicated she was traveling. They had followed her, however, for some distance, from the point of origin and stopped her “just short” of the destination indicated in the tip. 496 U.S. at 327, 110 S.Ct. 2412. Moreover, the suspect had driven along the “most direct route possible” to that destination, despite the fact that the route “involved several turns.” Id. at 331, 110 S.Ct. 2412.
¶9{25} In J.L. the tip described the suspect and claimed that he was carrying a concealed firearm. 529 U.S. at 268, 120 S.Ct. 1375. In our case, although the tip did predict future behavior (that an Hispanic male with a long black ponytail who lived at 1115 South Fifth Street in Tueumcari would drive from Albuquerque to Tueumcari at about 10:30 p.m.), prior to the stop Deputy Greenlee only observed facts that were consistent with the tip, rather than confirming that the tipster had predicted the suspect’s movements. It is as if Deputy Greenlee had received a tip at about 10:00 p.m. that a green older model Econoline van was, at that moment, traveling East on Interstate 40 heading toward Tucumcari. Viewed in this light, I think the facts of this case are difficult to distinguish in a meaningful way from the facts of J.L.
¶10{26} White and J.L. make clear that what is important is the extent to which the predictive information in an anonymous tip is corroborated. While the predictive elements of the tip in this case make it look like the tip in White, I believe we ought to conclude that the lack of corroboration of those elements precluded a valid investigatory stop. The lack of predictive information in J.L. failed to provide any indication that the anonymous informant had access to information about the subject of the tip and was therefore “likely to also have access to reliable information about [the subject’s] illegal activities.” White, 496 U.S. at 332, 110 S.Ct. 2412. The lack of corroboration of predictive information prior to the stop in this case seems to me to require the same conclusion.
¶11{27} In concurring in J.L., Justice Kennedy wrote that the ability to accurately predict future conduct of an alleged criminal may not be the only way in which an anonymous tip would “provide the lawful basis for some police action.” 529 U.S. at 275, 120 S.Ct. 1375 (Kennedy, J., concurring). Justice Kennedy then provided three examples of other anonymous tips that might bear sufficient indicia of reliability: (1) a caller with a recognizable voice who accurately predicts criminal behavior on two successive evenings and provides a third tip; (2) an anonymous informant’s face-to-face, as opposed to telephonic, contact with the police; and (3) anonymous telephone tips that are traced using caller identification and voice recording. Id. at 275-76, 120 S.Ct. 1375. In discussing the first example, Justice Kennedy wrote that “there would be a plausible argument that experience cures some of the uncertainty surrounding the anonymity, justifying a proportionate police response.” Id. at 275, 120 S.Ct. 1375; see generally State v. Therrien, 110 N.M. 261, 264, 794 P.2d 735, 738 (Ct.App.1990) (discussing the appropriate analysis of an anonymous tip for purposes of determining probable cause to support a warrant), overruled on other grounds by State v. Barker, 114 N.M. 589, 594, 844 P.2d 839, 844 (Ct.App.1992). None of these alternatives are helpful in supporting the stop in this case.
¶12{28} Anonymous tips that predict behavior are not inherently more reliable than anonymous tips that do not. An officer who has no facts to corroborate and an officer who fails to corroborate predictive movement both lack any indication that the informant is reliable, and therefore both lack the reasonable suspicion required by the Fourth Amendment in such cases. Cf. Therrien, 110 N.M. at 264, 794 P.2d at 738 (“The veracity of [a crime stoppers caller] must be established just as it must for any other informant.”)
¶13{29} A concern about anonymous tips, aside from the inefficiency of unreliable tips, arises from their potential for harassment. See J.L., 529 U.S. at 272, 120 S.Ct. 1375; see also White, 496 U.S. at 333, 110 S.Ct. 2412 (Stevens, J., dissenting). We review anonymous tips with that concern in mind. Anonymous tips, therefore, present difficult questions regarding reasonable suspicion under the Fourth Amendment. The Supreme Court has provided some guidance by accepting certiorari in two eases that reach different results. As the Court explained in J.L., “[i]f White was a close case on the reliability of anonymous tips, this one surely falls on the other side of the line.” 529 U.S. at 271, 120 S.Ct. 1375. Given the ways in which I believe this case differs from White, and the ways in which it is similar to J.L., I believe this statement accurately describes Defendant’s case as well. “The corroborated information was in no sense incriminatory. Also, it was so readily available to any member of the public that the caller’s accuracy in this regard was not probative of his accuracy regarding covert criminal activity at the location.” Therrien, 110 N.M. at 264, 794 P.2d at 738.
¶14{30} I note that J.L., the more recent opinion, was a unanimous result and that White, the older opinion, was not. I also note that, as in J.L., “[t]he facts of this case do not require [speculation] 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.” J.L., 529 U.S. at 273, 120 S.Ct. 1375. Finally, I note that the State’s primary argument on appeal has been that the tip was not anonymous.
¶15{31} It does seem possible that more information was available to Deputy Greenlee or to Officer Alvidrez than the record on appeal indicates. As the record stands, however, I am not persuaded that the State has shown sufficient evidence to support a determination that Deputy Greenlee had sufficient reasonable suspicion to stop Defendant on the highway. A majority of this Court being of a different view, I respectfully dissent.