THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. LANCE GATES et al., Appellees.
No. 53453
THE PEOPLE OF THE STATE OF ILLINOIS
June 26, 1981.
Sound reasoning and the bulk of authority, both from this State and other jurisdictions, favor allowing the tort action McCormick sought to bring against his employer. I find this a stronger case for dual capacity than Smith. The majority ruling in this case seems to me a retreat from Smith. I would affirm the appellate court rather than retreat from Smith, and allow the suit to proceed.
James W. Reilley and Barry E. Witlin, of Chicago, for appellees.
MR. JUSTICE WARD delivered the opinion of the court:
On May 3, 1978, the Bloomingdale police department received by mail an anonymous handwritten letter which alleged that Susan Gates and Lance Gates, her husband, were planning to travel to Florida in a few days for the purpose of obtaining illegal drugs. The letter read:
“This letter is to inform you that you have a couple in your town who strictly make their living on selling drugs. They are Sue and Lance Gates, they live on Greenway, off Bloomingdale Rd. in the condominiums. Most of their buys are done in Florida. Sue his wife drives their car to Florida where she leaves it to be loaded up with drugs, then Lance flys [sic] down and drives it back. Sue flys [sic] back after she drops the car off in Florida. May 3 she is driving down there again and Lance will be flying down in a few days to drive it back. At the time Lance drives the car back he has the trunk loaded with over $100,000.00 in drugs. Presently they have over $100,000.00 worth of drugs in their basement.
They brag about the fact they never have to work, and make their entire living on pushers.
I guarantee [sic] if you watch them carefully you will make a big catch. They are friends with some big drugs dealers, who visit their house often.
Lance & Sue Gates
Greenway
in Condominiums.”
The chief of police delivered the letter to Charles Mader, a detective of the Bloomingdale police department and he requested one of the department‘s radio operators to seek assistance from the Secretary of State‘s office in Springfield in obtaining a specific address for the
Upon inquiry, Mader was told by an officer of the Chicago police department assigned to O‘Hare Airport that “L. Gates” had made a reservation with Eastern Airlines on its flight 245, which was to depart from O‘Hare on May 5, at 4:15 p.m. The final destination of the flight was West Palm Beach, Florida.
On May 5, Mader was told by William Morely, an agent of the Drug Enforcement Administration, that “Lance Gates” had boarded Eastern Airlines flight 245 bound for Florida. The following day Morely informed Mader that Gates had arrived in West Palm Beach, had proceeded by cab to the West Palm Beach Holiday Inn, and had entered a room registered to Susan Gates. Agent Morely told him that he observed Gates and an unidentified woman leave the room at 7 a.m. and enter a red-vinyl-over-gray Mercury with 1978 Illinois license number RS 8437. Records at the Secretary of State‘s office showed that the license plate was registered for Lance B. Gates, but had been issued for a different automobile.
Based on the anonymous letter, the described information obtained from the law-enforcement authorities, and the verification of the address obtained from the confidential informant, Mader, on May 6, sought and obtained in the circuit court of Du Page County, a search warrant for both the Gateses’ residence in Bloomingdale and the car they were driving from Florida.
At 5:15 a.m. on May 7, Lance and Susan Gates returned by car to their home on Greenway Drive. They were immediately served with a search warrant by waiting Bloomingdale police officers. In the trunk of the Mercury the officers found several large bundles of marijuana weighing a total of approximately 350 pounds. A search of the Gateses’ residence uncovered more marijuana weapons, ammunition, drug paraphernalia, and several scales presumably used for weighing the drugs. Police also ascertained that the couple had cocaine in their possession. They were indicted for unlawful possession of cannabis with intent to deliver and unlawful possession of a controlled substance. Lance Gates was separately indicted for possession of an unlicensed firearm.
The defendants filed a pretrial motion to quash the search warrant and to suppress all physical evidence obtained as a result of the search, arguing that the anonymous letter did not set forth the underlying circumstances or manner in which the informant acquired the information or that the information was reliable as required under the test for probable cause described in Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509. The defendants also argued that the separate evidence obtained by Detective Mader in his independent investigations did not corroborate the anonymous informant‘s accusations that the Gateses were involved in criminal activity so as to support the issuance of a search warrant based on probable cause. The motions to quash and to suppress evidence were allowed by the circuit court of Du Page County, and its action was affirmed by the appellate court (82 Ill. App. 3d 749). We granted the State‘s petition for leave to appeal.
Both the Constitution of the United States (
“Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant [citation], the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed [citation], was ‘credible’ or his information ‘reliable.‘” 378 U.S. 108, 114, 12 L. Ed. 2d 723, 729, 84 S. Ct. 1509, 1514.
The first part of this standard or test is often referred
In Aguilar, an officer of the Houston police department applied for a search warrant on the ground that “‘reliable information [had been received] from a credible person‘” that the defendant was known to have drugs on his premises for purposes of sale and personal use. The court described the affidavit as containing “‘no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein‘” or “that the affiant‘s unidentified source ‘spoke with personal knowledge.‘” The court further stated that “the source here merely suspected, believed or concluded that there were narcotics in petitioner‘s possession. The magistrate here certainly could not ‘judge for himself the persuasiveness of the facts relied on *** to show probable cause.’ He necessarily accepted ‘without question’ the informant‘s ‘suspicion,’ ‘belief’ or ‘mere conclusion.‘” (378 U.S. 108, 109, 113-14, 12 L. Ed. 2d 723, 725, 728-29, 84 S. Ct. 1509, 1511, 1513-14, quoting Nathanson and Giordenello.) The court held that the evidence obtained from a search conducted with the warrant was inadmissible and remanded the case for further proceedings.
The first prong, or the “basis of knowledge” part of the test announced in Aguilar, is concerned with the facts and circumstances showing that the informant knew that the person named has been or will be involved in criminal conduct. The most common means of satisfying this requirement is by the informant‘s declaration that he is revealing personal knowledge gathered through some physical sensory faculty such as that of sight, smell or sound. (See, e.g., Stanley v. State (1974), 19 Md. App. 507, 531, 313 A.2d 847, 861.) Statements containing mere conclusions of criminal activity without a statement regarding independent facts and personal observations do not provide a sufficient basis for a neutral
Looking at the anonymous handwritten letter here one can only observe that it does not contain any statement showing that the information was acquired through firsthand or personal knowledge of the informant. The informant states that the defendants make their living by selling drugs but he does not set out the source of this knowledge or the ground for his conclusion. There is the statement that the defendants boasted of their illegal occupation, but one does not know whether they made these comments to the informant or whether this was hearsay. Similarly, the informant states that the defendants will be returning from Florida with over $100,000 in drugs and that there is over $100,000 worth of drugs in their basement. No basis of knowledge for this is given. There is no statement made that the informant ever saw drugs or was inside the defendants’ residence or even that someone had told him of any of these claimed facts. The letter set out mere conclusions and contained no statements of personal observation or firsthand knowledge.
The second part of the Aguilar test, often, as noted, referred to as the “veracity prong,” requires a showing of the underlying circumstances from which it was concluded that the informant was “‘credible‘” or his information “‘reliable.‘” (378 U.S. 108, 114-15, 12 L. Ed. 2d 723, 729, 84 S. Ct. 1509, 1514.) Though it is not necessary to consider this “prong” where the “basis of knowledge” part has not been satisfied, we shall comment on it because of the State‘s arguments discussed later relating to self-verifying detail and corroborating evidence as support for the search warrant here.
The name of an informant need not be revealed to the magistrate before a search warrant is issued so long as it is established that the informant is credible. This requirement is usually satisfied by reciting in the affidavit previous instances in which the affiant police officer has
The failure to satisfy under Aguilar that the informant was credible does not of itself mean that the “veracity prong” requirement cannot be met. It may be satisfied by a showing that the informant‘s tip was reliable. United States v. Harris (1971), 403 U.S. 573, 29 L. Ed. 2d 723, 91 S. Ct. 2075, shows that a plurality of the court considered that the alternative requirement of reliability of the information supplied was satisfied where the informant, in giving the information, admitted activities which were against his penal interest. In Harris a warrant was issued to Federal and local officers permitting them to enter and search the defendant‘s premises where they found containers of whiskey on which the Federal tax had not been paid. The affidavit accompanying the request for a warrant stated that information was received from an individual who claimed, as a confederate, personal knowledge that the defendant was a “trafficker of nontaxpaid distilled spirits.” (403 U.S. 573, 575, 29 L. Ed. 2d 723, 729, 91 S. Ct. 2075, 2077.) The court held that the informant‘s admission of complicity with the defendant in these activities over an extended period of time, which subjected him to possible indictment under
Concluding that the letter standing alone cannot satisfy the requirements under Aguilar, we consider now the State‘s contention that the “self-verifying detail” within the letter, coupled with the corroborating nature of the information acquired by Detective Mader, established probable cause for the issuance of the search warrant.
The notion of “self-verifying detail” is found in Spinelli v. United States (1969), 393 U.S. 410, 417, 21 L. Ed. 2d 637, 644, 89 S. Ct. 584, 589. The court had granted certiorari “[b]elieving it desirable that the principles of Aguilar should be further explicated ***.” (393 U.S. 410, 412, 21 L. Ed. 2d 637, 641, 89 S. Ct. 584, 587.) There are important resemblances between the circumstances here and those in Spinelli. A search warrant had been issued, and the affidavit submitted in support of it cited a report from an unidentified informant and also one of an independent FBI investigation which was said to corroborate the informant‘s tip. The affidavit was more persuading than the one here. It described the informant as “a confidential, reliable informant” and stated that Spinelli was known to the affiant - special agent and to Federal and local law-enforcement officers as a gambler and bookmaker. According to the affidavit the informant had advised the FBI that Spinelli was operating a handbook and was using specified telephone numbers in its operation. The Supreme Court held that the affidavit was insufficient and that the search warrant had been issued without probable cause. The court observed: “Though the affiant swore that his confidant was ‘reliable,’ he offered the magistrate no reason in support of this conclusion. Perhaps even more important is the fact Aguilar‘s other test has not been satisfied. The tip does not contain a sufficient statement of the underlying circumstances from which the informer concluded that Spinelli was
The court in Spinelli did say that while an affidavit may not satisfy the “basis of knowledge” prong of the Aguilar test by failing to set out adequately the circumstances explaining how the confidential information was obtained, this may be cured if the information set out is so detailed that a magistrate “could reasonably infer that the informant had gained his information in a reliable
The use of self-verifying detail to find probable cause is limited, though, to a situation where the informant has not otherwise disclosed the manner in which he has obtained his information and thus has failed to satisfy the “basis of knowledge” prong. While the specificity of detail may be used to supply the basis-of-knowledge requirement, it cannot establish that the informant was credible or his information reliable, in and of itself, so as to meet Aguilar‘s “veracity” prong. The court in Stanley v. State (1974), 19 Md. App. 507, 533, 313 A.2d 847, 862, described this when it observed: “The notion that great detail implies personal observation rather than the overhearing of barroom gossip, presupposes an honest informant. If the informant were concocting a story out of the whole cloth, he could fabricate in fine detail as easily as with rough brush strokes. Minute detail tells us nothing about ‘veracity.‘” See also People v. Lindner (1975), 24 Ill. App. 3d 995; Note, Probable Cause And The First-Time Informer: United States v. Harris, 403 U.S. 573
Self-verifying detail discussed in Spinelli as a means of satisfying the basis-of-knowledge prong must be accepted with great circumspection. This was expressed by Mr. Justice Harlan when, as appears in the quotation above from Spinelli, he cautioned that the tip must describe the claimed criminal activity in detail adequate to show the magistrate that he is relying on information more substantial than casual rumor or an accusation founded only on the accused‘s general reputation. We cannot say that the information provided here was in sufficient detail to lead a magistrate to conclude that the tip was the product of firsthand knowledge or personal observation.
That the anonymous informant gave the name of the street where the defendants resided and stated that they would be driving from Florida in early May with drugs in the trunk of their car does not even meet the specificity of detail required by the court in Draper v. United States (1959), 358 U.S. 307, 3 L. Ed. 2d 327, 79 S. Ct. 329, so as to cure the existing deficiency of the “basis of knowledge” prong. Nor can it be reasonably concluded that the information in the letter was acquired through firsthand knowledge rather than by rumor. Also, we reiterate and emphasize that here the informant was anonymous. In Draper the informant was named and identified as one who earlier had given information to law-enforcement officers that had been reliable.
The corroborative evidence gathered by Detective Mader, when coupled with the “detail” of the informant‘s letter, did not constitute probable cause under the tests of Aguilar. The appellate court, in addressing this question of corroborative evidence, rejected the State‘s contention that corroboration can be used to satisfy the “veracity” prong as well as the “basis of knowledge” prong of the Aguilar test. The court held that partial corroboration may be considered only to support the
Courts are not in agreement on the question of whether partial corroboration, combined with an informant‘s tip, may cure a deficiency in either prong of the Aguilar test. See, e.g., 1 LaFave, Search and Seizure sec. 3.3 (1978); Moylan, Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer L. Rev. 741 (1974); Stanley v. State (1974), 19 Md. App. 507, 313 A.2d 847.
We need not consider this question, however, since the nature of the corroborating “evidence” in this case would satisfy neither the “basis of knowledge” nor the “veracity” prong of Aguilar. Looking to the affidavit submitted as support for Detective Mader‘s request that a search warrant issue, we note that the corroborative evidence here was only of clearly innocent activity. Mader‘s independent investigation revealed only that Lance and Susan Gates lived on Greenway Drive; that Lance Gates booked passage on a flight to Florida; that upon arriving he entered a room registered to his wife; and that he and his wife left the hotel together by car. The corroboration of innocent activity is insufficient to support a finding of probable cause. See Whiteley v. Warden of Wyoming State Penitentiary (1971), 401 U.S. 560, 567, 28 L. Ed. 2d 306, 312-13, 91 S. Ct. 1031, 1036.
For the reasons given above, the judgment of the appellate court is affirmed.
Judgment affirmed.
MR. JUSTICE MORAN, dissenting:
The majority concludes that the letter combined with the facts gleaned from the police investigation does not satisfy either prong of the Aguilar test. I disagree. As the
Draper v. United States (1959), 358 U.S. 307, 3 L. Ed. 2d 327, 79 S. Ct. 329, involved an arrest without a warrant. There, an informant gave a Federal narcotics agent information regarding narcotics law violations. On a motion to suppress, the agent testified that he “had always found the information given by [the informant] to be accurate and reliable.” (358 U.S. 307, 309, 3 L. Ed. 2d 327, 329, 79 S. Ct. 329, 331.) No underlying facts established this conclusion. However, the informant told the agent that Draper had gone to Chicago the day before by train and that he would return to Denver by train with three ounces of heroin on one of two specified mornings. In addition, the informant described Draper‘s physical appearance, the clothes he was wearing, that he would be carrying a tan zipper bag, and that he walked quickly. The court found that the agent had probable cause to arrest when a man fitting Draper‘s description stepped off the specified train.
In Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509, police officers, in support of their application for a search warrant, submitted an affidavit stating:
“Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and nar-
cotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law.” (378 U.S. 108, 108, 109, 12 L. Ed. 2d 723, 725, 84 S. Ct. 1509, 1511.)
The court found that the information merely reflected the informant‘s “‘suspicion,’ ‘belief’ or ‘mere conclusion.‘” (378 U.S. 108, 114, 12 L. Ed. 2d 723, 729, 84 S. Ct. 1509, 1514.) In so holding, it established the two-pronged standard for evaluating if a search warrant should issue:
“[T]he magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed [citation], was ‘credible’ or his information ‘reliable.‘” 378 U.S. 108, 114, 12 L. Ed. 2d 723, 729, 84 S. Ct. 1509, 1514.
With this test as the standard, the Supreme Court decided Spinelli v. United States (1969), 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584. In that case, the affidavit stated that Spinelli was known to law-enforcement agents as a bookmaker and a gambler, and that the FBI had “been informed by a confidential reliable informant that William Spinelli is operating a handbook and accepting wagers and disseminating wagering information by means of telephones which have been assigned and numbers WYdown 4-0029 and WYdown 4-0136.” 393 U.S. 410, 414, 21 L. Ed. 2d 637, 642, 89 S. Ct. 584, 588.
The court contrasted the informant‘s tip with the information provided by the informant in Draper. The court concluded that a magistrate could infer from the tip in Draper that the informant had gained his information in a reliable way whereas, in the case before it, the report could
“[In Draper], the police, upon meeting the inbound Denver train on the second morning specified by informer Hereford, saw a man whose dress corresponded precisely to Hereford‘s detailed description. It was then apparent that the informant had not been fabricating his report out of whole cloth; since the report was of the sort which in common experience may be recognized as having been obtained in a reliable way, it was perfectly clear that probable cause had been established.” 393 U.S. 410, 417-18, 21 L. Ed. 2d 637, 644, 89 S. Ct. 584, 590.
When comparing the affidavits in Aguilar and Spinelli and the testimony of the agent in Draper to the affidavit here, it is clear that this case is more similar to Draper than to Aguilar and Spinelli. In Aguilar, the information in the affidavit consisted of mere conclusions and did not satisfy either prong of the standard established here. Similarly, in Spinelli the affidavit did not contain a sufficient statement of the underlying circumstances from which the magistrate could conclude that the informer had knowledge that Spinelli was running a bookmaking operation. Further, the court found that although the affiant swore that his confidant was reliable, he offered the magistrate no reason in support of this conclusion.
In this case, however, as in Draper, a specific, detailed and future sequence of events was supplied by the in-
In addition, the specific information contained in the letter which was then corroborated proved the informant‘s statements to be credible and reliable, thereby satisfying Aguilar‘s second prong. The majority opinion attempts to distinguish Draper by observing in that case there was a named informant who had given the agent reliable information on other occasions. However, the agent‘s statement as to the informant‘s reliability was a mere conclusion. It is questionable whether that naked assertion would satisfy Aguilar‘s second prong in that it does not present any underlying circumstances from which the judge could
Finally, the majority, citing Whiteley v. Warden of Wyoming State Penitentiary (1971), 401 U.S. 560, 567, 28 L. Ed. 2d 306, 312-13, 91 S. Ct. 1031, 1036, finds that the corroborating information combined with the tip would not satisfy either prong of the Aguilar test because the corroborating evidence was of clearly innocent activity. This conclusion is incorrect. First, in Whiteley, the corroborating evidence was simply that the sheriff knew the defendants and the kind of car they drove. The court in Whiteley specifically stated:
“[T]he additional information acquired by the arresting officers must in some sense be corroborative of the informer‘s tip that the arrestees committed the felony or, as in Draper itself, were in the process of committing the felony.” 401 U.S. 560, 567, 28 L. Ed. 2d 306, 312-13, 91 S. Ct. 1031, 1036.
In Draper, the corroborating information also related to innocent activity—a man fitting a particular description stepped off a train on a specific day carrying a tan zipper bag. Yet, the court in Whiteley, as well as in Spinelli, clearly held that this type of detailed information can be used to corroborate an informant‘s tip. The key is whether the corroborative evidence is endowed with an aura of suspicion by virtue of the informant‘s tip. (See Spinelli v. United States (1969), 393 U.S. 410, 418, 21 L. Ed. 2d 637, 645, 89 S. Ct. 584, 590.) In this case, just as in Draper, seemingly innocent activity became suspicious in light of the initial tip.
Here, the police went through the desired procedure of obtaining a warrant. The judge had before him, by way of affidavit, information from which he reasonably could conclude that the informat had knowledge that the Gateses were involved in criminal activity and that the information was reliable. Under the standard enunciated in Spinelli, the judge could conclude he was relying on more than casual rumor or reputation and that the report had not been fabricated “out of whole cloth.” (See Spinelli v. United States (1969), 393 U.S. 410, 416, 417, 21 L. Ed. 2d 637, 644, 89 S. Ct. 584, 590.) Probable cause was determined by a neutral and detached judge. (See Johnson v. United States (1948), 333 U.S. 10, 14, 92 L. Ed. 436, 440, 68 S. Ct. 367, 369.) Issuance of a search warrant in the instant case is consistent with the rationale underlying Aguilar, as applied in Spinelli, and does not attenuate one‘s right to be free from unreasonable searches and seizures as guaranteed by the United States and Illinois constitutions.
For the above-stated reasons, I must respectfully dissent.
MR. JUSTICE UNDERWOOD joins in this dissent.