Anonymous Tip: Person Present by Dan Shatz
There is bad case law in this area holding that where an unnamed tipster remains on the line w/ LEO and/or remain engaged w/ LEO to the point that it becomes a face-to-face encounter, the anonymous tip standard does not necessarily apply. See, e.g., State v. Maready, 362 N.C. 614, 619, 669 S.E.2d 564, 567 (2008), State v. Hudgins, 195 N.C.App. 430, 672 S.E.2d 717 (2009). What you describe from your case sounds unfortunately similar to Hudgins. I agree with you that the caller's own observations that were never relayed to LEO prior to the stop are not directly relevant, but that does not mean you will necessarily win. Under Hudgins, it may be that the fact that both cars followed the route described by the caller and appeared in the predicted location where LEO intercepted them was sufficient corroboration of the caller's credibility to support his conclusory description that your client was driving erratically and possibly drunk, even if LEO did not themselves observe any erratic driving. I think you will want to hammer the failure of LEO to observe any erratic driving as a factual matter with your trial judge, rather than arguing it as a mandatory legal conclusion.
Further, anything the caller actually told 911 before the stop will be directly relevant, even if not relayed to the stopping officer in the BOLO alert, as it is the collective knowledge of LEO that counts.
Dan
Daniel Shatz
Assistant Appellate Defender
Office of the Appellate Defender
123 W. Main Street, Suite 500
Durham, North Carolina 27701
(919) 354-7210