Illinois v. Gates: A
FURTHER WEAKENING OF
FOURTH AMENDMENT PROTECTION
by J. Michael Hunter*
Paul R. Joseph**
I.
INTRODUCTION
"Experience ... has taught us that the power [to make arrests, searches and seizures] is one open to abuse,"1 and "the
right to be secure against searches and seizures is one of the
most difficult to protect."2 One of the most important safeguards
against the abuse of this power is the judiciary, which must scrutinize governmental conduct in order to preserve the rights guaranteed by the fourth amendment.' Thus, over the last half century, the Supreme Court has developed a set of coherent rules
governing a magistrate's consideration of a warrant application
and the showings that are necessary to support a finding of
probable cause.4
The probable cause standard is not a mere technicality or
* Assistant Professor and Director of Law Enforcement, Northern Kentucky University; B.A., University of Central Florida, 1975; M.S.C.J., Rollins College, 1980.
** Associate Professor of Law, Nova University Center for the Study of Law; B.A.,
Goddard College, 1973; J.D., University of California, Davis, 1977; LL.M., Temple University, 1979.
1. United States v. Innelli, 286 F. 731, 731 (E.D. Pa. 1923) (per curiam).
2. Brinegar v. United States, 338 U.S. 160, 181 (1949) (Jackson, J., dissenting).
3. The fourth amendment to the United State Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or
things to be seized.
U.S. CONST. amend. IV.
4. See, e.g., Illinois v. Gates, 103 S. Ct. 2317, 2351 (1983) (Brennan, J., dissenting).
In determining probable cause, "[w]e start with the proposition that a neutral and detached magistrate, and not the police, should determine whether there is probable cause
to support the issuance of a warrant." Id. (citing Johnson v. United States, 333 U.S. 10,
13-14 (1948)).
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formality. Rather, it is specifically included in the fourth amendment as the only standard upon which a warrant for an arrest or
search may issue. Probable cause means, in essence, that "'the
facts and circumstances within [the arresting officers'] knowledge and of which they had reasonably trustworthy information
[are] sufficient in themselves to warrant a man of reasonable
caution in the belief that' an offense has been or is being committed."6
The information must be communicated to a neutral and
detached magistrate for independent evaluation before a warrant may be issued. The warrant may issue only if the neutral
magistrate has sufficient information to conclude that the arrest
or search is proper. 7 This requirement recognizes that police officers are directly involved in the crime control process. The officers' job is to pursue and apprehend criminals. Therefore, it is
very likely that the officers may be more inclined to see the evidence before them in a light most favorable to the result which
they desire. The magistrate, by contrast, is sufficiently removed
from the process to permit a more detached and evenhanded
evaluation of the information.'
In evaluating the material presented, the magistrate must
consider whether the information, if accurate, would be sufficient to meet the probable cause standard. In addition, the magistrate must also determine whether the information is reliable
enough to be accurate and therefore acted upon. This second issue is often understood to include two separate but related subquestions: first, whether the person supplying the information
obtained it in a way suggesting a reasonable probability of accu5.
U.S. CONST. amend. IV. The text of the fourth amendment is set forth at supra
note 3.
6. Draper v. United States, 358 U.S. 307, 313 (1959) (quoting Carroll v. United
States, 267 U.S. 132, 162 (1925)).
7. See, e.g., Giordenello v. United States, 357 U.S. 480 (1958) (seizure of narcotics
illegal where complaint did not provide a sufficient basis upon which an arrest warrant
could initially have been issued).
8. See Johnson v. United States, 333 U.S. 10 (1948), where the Court explained:
The point of the Fourth Amendment, which often is not grasped by zealous
officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate
instead of being judged by the officer engaged in the often competitive enterprise of fettering out crime.
Id. at 13-14.
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FOURTH AMENDMENT PROTECTION
racy; and second, whether the person presenting the information
is reliable enough to relay such information truthfully.' Two examples will clarify the difference:
1. Jim, a man well known for his honesty, states that he had a dream
in which he saw Sam commit murder. Here, the doubt is not about
Jim's truthfulness in the belief that he had the dream, but in the accuracy of the information. There is not sufficient belief that dreams
are likely to be sufficiently accurate to make the issuance of an arrest
warrant upon a dream reasonable.
2. Joe, a notorious liar, states that he saw Sam commit murder. Here,
the doubt is not because of the unreliability of the means by which
Joe claimed to get the information, but rather about the truthfulness
of anything Joe states.
In many situations, these two issues of truth and accuracy
are easily satisfied. When a police officer swears under oath that
he purchased drugs from a suspect, his oath and the threat of
prosecution for perjury provide reasonable assurance that the officer will honestly report the information within his knowledge.
Personal knowledge coupled with the fact that the officer actually bought drugs from the suspect, suggests a very high probability that the information is accurate.
Difficulties arise when either issue, truthfulness or accuracy,
has a less clear foundation. Problems may result when the officer, although under oath, reports information obtained from a
nonappearing and nonswearing informant. Here, the officer can
testify as to what he was told; however, this alone does not provide any reason to believe the informant truthfully stated the
information he had, nor does it provide any reason to believe
that the information is accurate.
It would be helpful, of course, if it could be shown that the
informant is a truthful person who would honestly relay the information within his possession. Perhaps the informant has
given information in the past that has proved to be truthful.
This prior pattern of telling the truth makes the informant more
believable. However, the accuracy issue is still unanswered. How
did the informant obtain his information and is it proffered in a
way that suggests it is likely to be accurate? Unless it is known
how the informant obtained the information which he passed on
9.
See infra note 10 and accompanying text.
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to the officer, there is no way to evaluate what the informant has
said, nor to determine how much weight to give the informant's
story.
The problem could be alleviated by confining information to
informants who claim to speak with personal knowledge and
who either are in court under oath or submit a sworn affidavit.
This would mitigate doubt as to the truthfulness of the informant and the accuracy of the information which he claims to have.
In fact, reliance is often placed upon informants who are not
before the court and who did not give their information under
oath. The Supreme Court's Aguilar-Spinelli "two pronged
test"1 0 provided a means of demonstrating sufficient reliability
to make the issuance of a warrant proper in cases where the reliability level would otherwise be significantly less than that in
which a person under oath tells what he claims to have seen for
himself. The test was an attempt to strengthen the credibility of
the out of court informant so that it seemed reasonable to rely
on the information.
The seeming rigidity of the two pronged test developed as a
bulwark against a slow case by case erosion in the level of reliability of information deemed sufficient to issue a warrant. Yet,
the Supreme Court in Illinois v. Gates" rejected its own "two
pronged test"' 2 for a less rigid "totality of the circumstances"
10.
Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108
(1964).
The two pronged test is as follows:
Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant,. . . 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, .... was "credible" or his information "reliable."
Aguilar, 378 U.S. at 114-15.
Thus, the test provides that the affidavit must meet two requirements for a warrant
to issue. First, the "basis of knowledge" prong requires that the application set forth any
of the "underlying circumstances" necessary to enable the issuing judge to determine
independently the validity of the informant's conclusions. Second, the "veracity" prong
requires the officers requesting the warrant to include information demonstrating that
the informant is "credible" or his information "reliable." See Spinelli, 393 U.S. at 41516; Aguilar, 378 U.S. at 114.
11. 103 S. Ct. 2317 (1983).
12. Id. at 2332.
FOURTH AMENDMENT PROTECTION
19851
approach.1" This article will analyze the issues and decisions
which led to the development of the two pronged test. The decision of the Court in Gates will then be analyzed and discussed,
and an alternative approach will be suggested in an effort to delineate a more practical standard for determining probable
cause.
II.
INFORMANTS, HEARSAY AND PROBABLE CAUSE
No problems arise when an informant is placed under oath
and asked to testify to information he knows from his own personal knowledge. One way to assure a high level of accuracy in
the issuance of warrants would be to forbid the use of information from an out of court informant. However, there is no absolute requirement that a nonappearing informant be identified by
name. 14 Therefore, the question becomes how a magistrate, confronted with hearsay information from a nonappearing informant, can sufficiently test the reliability of the information presented so that he can determine when a warrant should issue.
In Jones v. United States,5 the Supreme Court analyzed
the use of hearsay information from an undisclosed source in establishing probable cause to support an affidavit for the issuance
of a search warrant. A confidential informant claimed to have
purchased narcotics from the defendant at his apartment and
described the apartment in detail. The affidavit stated that the
confidential source had previously provided accurate information.'" The Court held that a warrant based upon a tip from a
reliable informer who had previously given information which
was correct and who asserted that he had personally purchased
narcotics from the suspect was sufficient to establish probable
cause.' 7 With regard to the hearsay information from an unidentified but not unknown informant, the Court in Jones declared
that "an affidavit is not to be deemed insufficient, so long as a
13. Id. For a discussion of the "totality of circumstances" approach see infra text
accompanying notes 63-79.
14. See McCray v. Illinois, 386 U.S. 300, reh'g denied, 386 U.S. 1042 (1967) (identity of informant may be kept confidential unless helpful to defense or determination of
probable cause). See also Comment, Unrevealed Informants and the Fourth Amendment, 40 TENN. L. REv. 75 (1972).
15. 362 U.S. 257 (1960).
16. Id. at 268-69.
17. Id. at 271.
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substantial basis for crediting the hearsay is presented." ' s However, the Court did not undertake to spell out what a "substantial basis" for crediting hearsay would be. 9 Instead, the Court
emphasized that corroboration through other sources was the
primary reason for believing that probable cause existed.2"
Four years later, the "substantial basis" test developed in
Jones was tested by the Supreme Court in Aguilar v. Texas.2 In
Aguilar, unlike Jones, there was no allegation of personal knowledge by the informant and no explanation of how the informant
had obtained his information. The affidavit, in relevant part,
stated that the "[a]ffiants have received reliable information
from a credible person and do believe that heroin, marijuana,
barbiturates and other narcotics and narcotic paraphernalia are
being kept at the above described premises for the purpose of
sale and use contrary to the provisions of the law." 2 2
In Aguilar, the Court made a comparison of the affidavit
with that in Nathanson v. United States,25 and noted that the
affidavit went beyond a "mere affirmation of suspicion and belief
without any statement of adequate supporting facts. '24 The
Court went on to state that the affidavit in Aguilar did not contain an "'affirmative allegation' that the affiant's unidentified
source 'spoke with personal knowledge'."2 5 The Court concluded
that "[a]lthough an affidavit may be based on hearsay information . . . the magistrate must be informed of some of the underlying circumstances from which the informant 'based his conclusion' ,,26 and that the affiant must present the basis for his belief
18.
19.
MERCER
Id. at 269.
Moylan, Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25
L. REv. 741, 745 (1974).
20. Jones, 362 U.S. at 268. In Jones, the warrant was not based solely on the informant's identification. Some degree of corroboration was recited as the affidavit alleged
that two persons identified by the informant "are familar to the undersigned and other
members of the Narcotics Squad. Both have admitted to the use of narcotic drugs and
display needle marks as evidence of same." Id.
21. 378 U.S. 108 (1964).
22. Id. at 109.
23. 290 U.S. 41 (1933).
24. Aguilar, 378 U.S. at 112 (quoting Nathanson v. United States, 290 U.S. 41, 46
(1943)).
25. Aguilar, 378 U.S. at 113 (quoting Giordenello v. United States, 357 U.S. 480,
486 (1958)).
26. Aguilar, 378 U.S. at 114.
1985]
FOURTH AMENDMENT PROTECTION
that the information is "credible" or his information "reliable.
27
States, 8
the Supreme Court applied
In Spinelli v. United
the principles established in Aguilar and for the first time labeled the constitutional requirements for probable cause relating
to hearsay information as the two pronged test. 29 In Spinelli, the
affidavit essentially stated that Federal Bureau of Investigation
agents watched Spinelli as he repeatedly went into an apartment
building and into a particular apartment within the building in
which there were two phones. The affidavit further stated that
Spinelli was known as a bookmaker. Finally, it said that a reliable informant had told the police that Spinelli was operating a
bookmaking operation at the address from the two phones."0
The Court concluded that the affidavit in Spinelli failed to
meet the veracity prong of the Aguilar test. 1 The second prong
calls for a showing that the informant was credible or his information reliable.3 2 Thus, the Court stated that even "[t]hough
the affiant swore that his confidant was 'reliable,' he offered the
magistrate no reason in support of this conclusion." 33 More importantly, the first prong of the Aguilar test was not satisfied.
The tip did not contain a sufficient statement of the underlying
circumstances from which the informer could conclude that
Spinelli was involved in criminal activity.3 ' Where the affidavit
does. not describe the way in which the information was obtained, "it is especially important that the tip describe the accused's criminal activity in sufficient detail that the magistrate
may know that he is relying on something more substantial than
a casual rumor circulating in the underworld. 3 5 The majority in
Spinelli made it clear that the dual requirements were analytically severable. 6
The Spinelli Court seemed to suggest that the level of de27. Id.
28. 393 U.S. 410 (1969).
29. Id. at 413. See also Moylan, supra note 19, at 747.
30. Spinelli, 393 U.S. at 413-14. The affidavit is reprinted in full as an appendix to
the opinion. See id. at 420-22.
31. Id. at 416. For a discussion of the two pronged test, see supra note 10.
32. Spinelli, 393 U.S. at 416.
33. Id.
34. Id.
35. Id.
36. See Moylan, supra note 19, at 747.
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tail provided by the informant in Draper v. United States37 was
a "suitable benchmark. ' 38 In Draper, a federal narcotics agent
received information from a confidential source who had previously provided information found to be accurate and reliable. 9
The informant advised the agent that James Draper of Denver
"was peddling narcotics" and "that Draper had gone to Chicago
the day before [September 6] by train [and] that he would .return to Denver either on the morning of the 8th of September or
the morning of the 9th of September also by train."40 The informant also gave a detailed physical description of Draper, including the clothes he was wearing, and said "that he would be
carrying a 'tan zipper bag,' and that he habitually 'walked real
fast.' 141 The morning of September 8th, federal agents and a
Denver police officer went to the Denver Union Station and observed incoming trains from Chicago, but did not observe anyone fitting the description received from the informant. 4' The
following day the agents and officer repeated the process and
saw a person matching the exact physical description, wearing
the precise clothing described by the informant and walking
fast.4" In addition, the suspect was carrying a tan zipper bag.4
On the basis of these facts the Court found that the agent had
probable cause to believe that Draper was engaged in unlawful
drug activities. 5
Using Draper as an illustration, the majority in Spinelli
concluded that "[a] magistrate, when confronted with such detail, could reasonably infer that the informant had gained his
information in a reliable way." 4 However, in comparison to
Draper, the Court surmised that the informant's information in
Spinelli "could easily have been obtained from an offhand remark heard at a neighborhood bar.' 7 As can be seen from a
comparison of these decisions, regardless of whether the magis37.
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
358 U.S. 307 (1959).
Spinelli, 393 U.S. at 416.
Draper, 358 U.S. at 309.
Id.
Id.
Id.
Id. at 309-10.
Id. at 314.
Id. at 310.
Spinelli, 393 U.S. at 417.
Id.
FOURTH AMENDMENT PROTECTION
1985]
trate is dealing with information from the affiant or the informant, he must evaluate both the credibility of the source of the
information as well as the weight of the information itself.48
Thus, Spinelli may imply that if corroboration of parts of a
tip are to take the place of other indicia of informant truthfulness, then the corroboration must be extensive and probably at
least as detailed as that in Draper.In both Spinelli and Draper
the informants' identities were known to the police, therefore
presenting an inherently stronger case than that in which the
informant is anonymous. Additionally, in Draper,past reliability
of the informant satisfied the truthfulness prong.
To fulfill the two pronged test, the police should first state
in detail how the informant acquired the information, and second, establish the reliability of the informant. The veracity
prong may be satisfied by showing that the informant has previously provided accurate information, resulting in arrest and conviction or corroboration of the informant's information by subsequent investigation. Prior to Illinois v. Gates,4 9 the Supreme
Court had never squarely addressed the application of the Aguilar-Spinelli standard to tips from anonymous informants.
III.
A.
THE DECISION
Facts
On May 3, 1979, the police department of Bloomingdale, Illinois, received an anonymous letter stating that Lance and Sue
Gates were involved in illegal drug activities. The letter indicated that the two worked together and that Sue Gates would
drive the family car to Florida and fly back to Illinois and that
Lance Gates would fly down to Florida and drive the car back to
48. The simple thrust of these decisions is that whatever rules govern the evaluation of information from the primary source-the afflant-govern also the
evaluation of information from the secondary source-the non-swearing, nonappearing ... declarant, i.e., the informant. Whether the magistrate is dealing
with a primary, a secondary or even, theoretically, a tertiary source, he must
still (1) assess the credibility of that source and (2) then weigh the information
furnished if he believes it to be true.
In the first instance, [the magistrate] is judging the integrity of a person.
In the second instance, he is judging the logic of a proposition.
Moylan, supra note 19, at 750.
49. 103 S. Ct. 2317 (1983).
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Illinois.5 °
Acting on this tip, Detective Mader of the Bloomingdale Police Department confirmed that Lance and Sue Gates' current
address was Greenway Drive and that Lance Gates had a reservation on a May 5th flight to West Palm Beach, Florida. Arrangements for surveillance were made through the Federal
Drug Enforcement Administration, and it was revealed that
Lance Gates did, in fact, fly to Florida where he stayed overnight in a motel room registered in Sue Gates' name. The following morning the two left the motel in a car registered to Lance
Gates and headed north on an interstate highway.5 1
Based on the anonymous letter and the independent corroboration of the Gates' general activities by the police, a search
warrant was obtained for the Gates' residence and automobile.
When they returned home they were immediately met by police
officers from the Bloomingdale Police Department. Pursuant to
the search warrant, the police searched the car and found approximately 350 pounds of marijuana. A search of the Gates residence uncovered more marijuana, weapons and drug paraphernalia.2
B.
Lower Court Proceedings
Prior to trial, the circuit court granted the Gates' motion to
50.
The anonymous letter reads as follows:
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 if you watch them carefully you will make a big catch. They
are friends with some big drug dealers, who visit their house often.
Lance & Susan Gates
Greenway
in Condominiums
Id. at 2325.
51. Id. at 2325-26.
52. Id. at 2326.
1985]
FOURTH AMENDMENT PROTECTION
suppress all physical evidence obtained as a result of the
search.53 The Illinois Appellate Court affirmed the suppression,
concluding that the information supplied by the anonymous letter did not contain sufficient details to permit the judge issuing
the warrant to determine that the informant had obtained the
information in a reliable manner."' Nor could the judge reasonably have assumed that "the informer has personal knowledge on
the basis of the statements set forth in the anonymous letter.""
Applying the Aguilar-Spinelli standard to the facts in
Gates, the Illinois Supreme Court also rejected the warrant application and affirmed the lower court ruling. The letter failed to
explain how the anonymous writer claimed to have obtained the
information which the letter contained.5 6 Further, nothing indicated that the informant was a truthful or credible person. Because the letter was anonymous the police had no way of knowing who the author might be, or anything about the author's
tendency to tell the truth. 7 The court found that in order for
the warrant to be valid, it was crucial that the issuing magistrate
have some way to evaluate the credibility of the informant.5 8
Next the Illinois Supreme Court turned its attention to the
state's argument "that the 'self-verifying detail' within the letter,"5 9 along with the corroborative information obtained by the
police, "established probable cause for the issuance of the search
warrant." 60 The court found important similarities between the
circumstances in Gates and Spinelli. However, the court concluded that the affidavit in Spinelli was much stronger because
it described the informant as reliable.6 1 Detective Mader's independent investigation revealed only innocent activity which was
insufficient to support a finding of probable cause. 2
53.
Id.
54. Id.
55. People v. Gates, 82 Ill.
App. 3d 749, -, 403 N.E.2d 77, 81 (1980).
56. 85 Ill.
2d 376, 384, 423 N.E.2d 887, 890 (1981).
57. Id. at 385, 423 N.E.2d at 891.
58. Id.
59. Id. at 386, 423 N.E.2d at 891.
60. Id.
61. Id.
62. Id. at 390, 423 N.E.2d at 893. The independent investigation revealed that the
Gates lived on Greenway Drive, that Lance Gates made reservations on a flight to Florida, and upon arrival entered a room registered to his wife and that he and his wife left
the hotel together by car. Id. at 380, 423 N.E.2d at 888-89.
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The state petitioned for certiorari to the United States Supreme Court seeking review of the Illinois Supreme Court's decision. The Supreme Court granted certiorari to consider the application of the fourth amendment to a magistrate's issuance of
a search warrant on the basis of a partially corroborated anonymous informant's tip.63
C.
The Opinions
Writing for the Court, Justice Rehnquist" conceded that
the Illinois Supreme Court was correct in concluding that the
anonymous letter standing along did not provide sufficient basis
for a magistrate's determination of probable cause.65 He suggested that the letter failed to satisfy the Aguilar-Spinelli two
pronged test.66 Justice Rehnquist also pointed out that the Illinois court properly recognized that Detective Mader's affidavit
might be capable of supplementing the anonymous letter with
information sufficient to permit a determination of probable
7
cause.
6
Justice Rehnquist failed to agree, however, with the Illinois
court's interpretation of how the informant's veracity, reliability
and basis of knowledge should be applied.68 Rather than treating
these as "separate and independent requirements to be rigidly
exacted in every case," he suggested that they be used simply as
a guide to a magistrate's determination of probable cause. 69 Justice Rehnquist determined that a wider range of factors must be
considered, and indicated that a totality of the circumstances
approach is called for in determining probable cause.70 Because
63. Gates, 103 S. Ct. at 2321. After granting certiorari, the Court initially had suggested that the parties expand their arguments to address a question involving a good
faith exception to the exclusionary rule. The Court ultimately decided, however, that
this question was not properly before the state court and therefore did not address it. Id.
64. Justice Rehnquist was joined by Chief Justice Burger, as well as Justices Pow-
ell, O'Connor, and Blackmun.
65. Id. at 2326. He stated that "[t]he letter provides virtually nothing from which
one might conclude that its author is either honest or his information reliable; likewise,
the letter gives absolutely no indication of the basis for the writer's predictions regarding
the Gates' criminal activities." Id.
66.
Id.
67.
68.
69.
70.
Id.
Id. at 2327.
Id. at 2327-28.
Id. at 2328. Specifically, Justice Rehnquist stated:
1985]
FOURTH AMENDMENT PROTECTION
of the differences in persons providing information and the varying value and reliability of this information, it was noted that
71
rigid rules are "ill-suited" to determining probable cause. Justice Rehnquist indicated that the totality of the circumstances
analysis permits a balanced assessment, and went on to attack
the two pronged test as encouraging "an excessively technical
dissection of informants' tips, with undue attention being focused on isolated issues that cannot sensibly be divorced from
72
the other facts presented to the magistrate.
The Court stressed that a common sense judgment is necessary in determining probable cause.73 Search warrants are often
obtained by police officers who have little, if any, legal training,
and these officers often work under the pressure of time in attempting to solve crimes. It is also true that not every magistrate is a lawyer and it is unrealistic to expect them to absorb
each new wrinkle in the case law of the fourth amendment. 4 At
a stage of the proceeding well before trial and conviction, the
probable cause standard is intended to be less demanding than
would otherwise be required. 5 Justice Rehnquist indicated that
the rigid two pronged test is philosophically at odds with the
goal of having a test that can be understood by lay people and
which can be easily administered.70
It was indicated that the two pronged test would make it
overly difficult to solve crimes and protect society." Justice
Rehnquist argued that, under the standards of Aguilar-Spinelli,
anonymous tips would seldom be of use in establishing probable
cause.7 8 Given this result, the Court chose to adopt the totality
of the circumstances approach under which issues such as veracThis totality of the circumstances approach is far more consistent with our
prior treatment of probable cause than is any rigid demand that specific
"tests" be satisfied by every informant's tip. Perhaps the central teaching of
our decisions bearing on the probable cause standard is that it is a "practical,
nontechnical conception."
Id. (quoting Brinegar v. United States, 338 U.S. 160, 176 (1949)).
71. Gates, 103 S. Ct. at 2329.
72. Id. at 2330.
73. Id.
74. Id.
75. Id. at 2330-31.
76. Id. at 2331.
77. Id.
78. Id.
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ity and basis of knowledge remain relevant, but are not by themselves dispositive. 7 9 Justice Rehnquist concluded that a magistrate should consider all of the relevant facts and circumstances
in determining probable cause and make a practical, common
sense decision.8 0
The Court also focused on the role of an appellate court in
reviewing a magistrate's decision under the totality of the circumstances test."1 The duty of a reviewing court, Justice Rehnquist stated, "is simply to ensure that the magistrate had a 'substantial basis for . . . conclud[ing]' that probable cause
existed. ' 8 2 Clearly, this suggests that a de novo review of the decision and a re-weighing of the relevant factors considered by
the magistrate would be inappropriate.
Justice Rehnquist went on to emphasize the factual
strength upon which the warrant had been issued in this particular case. In doing so, he relied on the analysis in Draper v.
United States8" and the value of corroborative efforts of police
officials." Justice Rehnquist pointed out that Florida is a well
known source of narcotics and other illegal drugs and noted the
unusual nature of the Gates' trip and their suspiciously short
stay in Florida.8 8 He considered these facts along with the anonymous letter, which was largely corroborated by independent investigative work of police officers.8 6 Justice Rehnquist suggested
that the distinction between Draper,where the source had been
known previously to provide reliable information, and this case,
where the source was unknown, was less significant after the police investigation revealed additional corroborative information.8 7 Because the anonymous informant correctly predicted the
Florida trip, it was suggested that the informant's other assertions were also probably correct.8 8 Although this would not be
sufficient to establish reliability and veracity under Aguilar79.
Id. at 2332.
80.
81.
Id.
Id.
82. Id. (quoting Jones v. United States, 362 U.S. 257, 271 (1960)).
83. 358 U.S. 307 (1959). Draper is discussed at supra notes 38-45 and accompanying text.
84. Gates, 103 S. Ct. at 2334.
85. Id.
86.
Id. at 2334-35.
87.
Id. at 2335.
88.
Id.
1985]
FOURTH AMENDMENT PROTECTION
Spinelli, Justice Rehnquist stated that "it suffices for the practical, common sense judgment called for in making a probable
8s
cause determination.
Focusing further on the substance of the anonymous letter,
Justice Rehnquist observed that it contained sufficient details of
future action which were not easily predictable to one not familiar with the suspect's method of operation.9 0 He noted that these
details indicated that the anonymous informant had access to
reliable information, and that this provided a clear inference regarding the anonymous author's basis of knowledge.9 All of
these circumstances led the Court to conclude that there was a
substantial basis for determining that probable cause existed to
search the Gates' home and car. 2
Justice White concurred in the judgment of the Court.93 He
argued, however, that the Aguilar-Spinelli analysis should have
been applied in this context and that the adoption of the totality
of the circumstances test by the Court was improper.9 Applying
Aguilar-Spinelli, he noted that if an informant's tip fails under
either or both of the two prongs, independent police investigatory work may be used to corroborate the tip and establish probable cause if the tip supports "both the inference that the informer was generally trustworthy and that he made his charge
on the basis of information obtained in a reliable way."'9 5 Justice
White suggested that there was sufficient corroboration in this
case to support a finding of probable cause. 6 Justice White refused to join in the Court's rejection of the Aguilar-Spinelli
analysis, indicating that he was reluctant to approve any standard that did not tend to insure the credibility of the informant
or that the information was obtained in a reliable manner. 7
Justices Brennan and Stevens filed dissenting opinions.9 8
89. Id.
90. Id.
91. Id. at 2336.
92. Id.
93. Justice White initially expressed the view that the question regarding modification of the exclusionary rule was properly before the Court and discussed this matter at
some length. Id. at 2336-47 (White, J., concurring).
94. Id. at 2347.
95. Id. at 2348 (quoting Spinelli v. United States, 393 U.S. 410, 417 (1969)).
96. Gates, 103 S. Ct. at 2349 (White, J., concurring).
97. Id. at 2350.
98. Justice Brennan was joined in his dissent by Justice Marshall. Justice Brennan
BRIDGEPORT LAW REVIEW
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Justice Brennan indicated that he could find nothing persuasive
in the Court's justifications for rejecting the Aguilar-Spinelli
test.9 9 He pointed out that findings of probable cause are not
permitted unless supported by some credible and reliable factual
basis. 100 Arguing that the standards announced in AguilarSpinelli fulfill this need for accuracy in determining probable
cause, Justice Brennan called for continued application of the
two pronged test. 10 1 He attacked the Court's totality of the circumstances approach as an evisceration of the probable cause
standard and as providing no assurance of reliability or credibility. 10 2 Justice Stevens' dissent focused on the specific facts relied
on by the magistrate in issuing the search warrant. In reviewing
these facts, Justice Stevens stated that he could not accept "the
Court's casual conclusion that . . . there was probable cause to
justify a valid entry and search of a private home."10 3
D.
Strengthening the Gates Test: Massachusetts v. Upton
If any doubt existed as to the meaning and scope of Gates,
it was removed -when the Supreme Court decided the case of
Massachusetts v. Upton.10 4 In Upton, police acting under the
authority of a warrant searched the motel room of an individual
named Kelleher. A number of items suggesting that Kelleher
had been involved in recent burglaries were found, but additional items taken in those same burglaries were not discovered.10 5 Later that day, police received an anonymous phone call
stating that the rest of the items could be found in a certain
motor home parked behind the home of George Upton. The
caller said that she had seen the items and that Upton was going
to move the motor home since he was aware of the earlier
10 6
search. The identification of the caller was then confirmed.
After determining the location of the motor home, a search
warrant was obtained. During this search, a number of incrimijoined in Justice Stevens' dissent as well.
99. Id. at 2357 (Brennan, J., dissenting).
100. Id. at 2355.
101. Id. at 2357.
102. Id. at 2359.
103. Id. at 2361 (Stevens, J., dissenting).
104. 104 S. Ct. 2085 (1984) (per curiam).
105. Id. at 2086.
106. Id.
1985]
FOURTH AMENDMENT PROTECTION
nating objects were found, and Upton was arrested and eventually convicted of burglary and other crimes.10 7 On appeal, the
Supreme Judicial Court of Massachusetts held that the warrant
had been improperly issued because probable cause was lacking,
and therefore the conviction was reversed. 0 8
In reaching its decision, the state court threw down a gauntlet, challenging the direction which the Supreme Court had pursued in Gates. The Massachusetts court essentially found that
much of Gates was dicta'0 9 and that the balance of the case
merely demonstrated that when the veracity prong of the two
pronged test was weak, it could be "saved" if the level of corroboration were high enough." 0 Despite strong evidence to the contrary, the state court specifically stated that the Gates decision
did not mandate application of the totality of the circumstances
test.' The state court went on to analyze the facts de novo, and
concluded that the warrant application did not clearly demonstrate the source of the informant's knowledge and that the cor2
roboration was insufficient to establish probable cause."
In reversing the Massachusetts court, the United States Supreme Court made it clear that the Aguilar-Spinelli test was
completely rejected and that the proper approach was to judge
the warrant application in its entirety, "giving significance to
each relevant piece of information and balancing the relative
weights of all of the various indicia of reliability (and unreliabil'
ity) attending the tip.""
The Supreme Court also clarified the limited role of an appellate court reviewing the decision of a magistrate. The Court
indicated that the appellate court is not to conduct a de novo
determination on the probable cause issue." 4 Rather, deference
should be granted and the appellate court should limit its review
to considering whether -the magistrate had a substantial basis for
issuing the warrant."' Based on the Court's statements in
107. Id.
108. Commonwealth v. Upton, 390 Mass. 562, 458 N.E.2d 717 (1983).
109. Id. at 568, 458 N.E.2d at 717.
110. Id.
111. Id.
112. Id. at 569, 458 N.E.2d at 717.
113. Upton, 104 S. Ct. at 2087-88.
114. Id. at 2088.
115. Id.
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Upton, it is clear that Gates not only rejected the AguilarSpinelli test in favor of a totality of the circumstances approach,
but limited the power of reviewing courts to upset a magistrate's
decision as well.
IV.
ANALYSIS
In overruling the standards set out in Aguilar-Spinelli, the
Court in Gates cited numerous cases in support of a totality of
the circumstances approach. As Justice Brennan noted in his
dissent, however, "only one of the cases cited . . . was decided
subsequent to Aguilar," and it was not inconsistent with
Aguilar.116
One of the cases cited by Justice Rehnquist as being consistent with the totality of the circumstances approach was Brinegar v. United States.117 This case involved the search of an automobile. Part of the information used to show probable cause was
the prior criminal record of the accused, 18 which could not be
admitted against him at trial. In deciding that the prior record
could be used as- one piece of information to help establish probable cause, the Court focused on the difference between the high
standard of proof to convict someone of a crime and the lesser
probable cause standard for arrests and searches. 1 8
In Brinegar,the Court considered both first hand information from the direct observations of a federal agent and some
additional evidence (the prior arrest) which would not be admissible at trial because it might be prejudicial to the defendant.
The information in Gates that was used to establish probable
cause consisted primarily of a letter from an anonymous source.
Also, the suspects' reputations in Brinegar were known to the
police, while in Gates, the police had never heard of the defendants prior to receiving the anonymous letter. The Gates did not
have a prior arrest record, nor was there anything previous to
indicate that they were involved in criminal activity. 1 0 Thus, to
116.
Gates, 103 S. Ct. at 2357 (Brennan, J., dissenting).
117. 338 U.S. 160 (1949).
118. Id. at 170.
119. Id. at 174-75.
120. Telephone interview with Detective Mader of the Bloomingdale, Illinois Police
Department (October 21, 1983). Detective Mader indicated that he was not aware of the
Gates' involvement in drug activity prior to receiving the anonymous letter. He further
stated that he had checked the Gates' prior criminal history through the National Crime
1985]
FOURTH AMENDMENT PROTECTION
the extent that Brinegar rejects precise standards for determining probable cause in favor of a "common sense approach," 12 1
this pre-Aguilar-Spinelli case does so on facts much stronger
than those in Gates. It was at the point where probable cause
was to be shown on facts significantly weaker than in Brinegar
that the Court began to develop other standards, such as the two
pronged test, for making the determination. Given the differences between the factual circumstances in the two cases, the
Court's reliance on Brinegar in support of the Gates totality of
the circumstances analysis is questionable.
Justice Rehnquist also drew an analogy to Draper in support of his analysis. 122 It was noted that in Draper, the informant did not specify how he obtained the information that he had
given to the police. 123 However, the information was detailed in
that it recounted the movements of the defendant and provided
a description. 124 Police went to the specified location at the time
indicated by the informant and found the defendant there.
Thus, by corroborating so much of the informant's story, the police were able reasonably to conclude that the rest of the information was also accurate; i.e., that the defendant would be carrying drugs.1 25
Justice Rehnquist suggested that the facts in Gates were as
strong as those in Draper.2 He found various indications of illegal activity. For example, Justice Rehnquist pointed out that
Florida is a center of narcotics activity and focused on the unusual pattern and brief duration of the trip.127 In addition, he
noted that the anonymous letter had been corroborated by po28
lice investigation, just as had occurred in Draper.
There are several problems with this analysis. In Draper,
the informant was known and had provided police with reliable
Information Center and through local records. No prior arrest records were discovered.
When asked if he had employed other investigative methods such as those discussed
later in this article, Detective Mader replied that he had not. Id.
121. Brinegar, 338 U.S. at 176.
122. Gates, 103 S. Ct. at 2334. Draperis discussed at supra notes 38-45 and accompanying text.
123. Gates, 103 S. Ct. at 2334.
124. Id.
125. Id.
126. Id.
127. Id. at 2334.
128. Id. at 2335.
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information in the past. Thus, there was little reason to doubt
that the informant was reporting what he believed to be true.
While there was no explanation of how the informant knew the
facts he reported, this did not pose a problem because of the
detail in his descriptions and the independent corroboration by
police. The degree of detail strongly suggested that the informant was familiar with the suspects' activities and that he had
accurate information. On these facts, it appears that the two
9
pronged test would have been satisfied in Draper.1
In contrast, there was nothing in Gates to indicate that the
informant was truthful, such as past reliability. Thus, the question became one of whether corroboration could be used to
demonstrate both the accuracy of the information and truthfulness of the informant. It would seem prudent to require a higher
degree of specificity of the information corroborated in this situation than in Draper, where corroboration was not the only
method of demonstrating the informant's truthfulness.
In considering the situation in Gates, it is possible to argue
that the information in the anonymous letter was as strong as
that provided by the informant in Draper. Corroboration may
have been sufficient to indicate both the truth and accuracy of
the informant's information. Thus, as Justice White suggested,
it may be argued that the warrant in Gates should have been
upheld under the Aguilar-Spinelli test.-1 0
It is also possible to argue, however, that the information in
Gates was weaker than in Draper since some of it was found to
be inaccurate. Justice Stevens noted in his dissent that Sue
Gates did not leave the car in Florida as the anonymous letter
claimed she would. Rather, she drove with her husband away
from Palm Beach. "' This discrepancy weakened the strength of
the letter as a whole. If the writer was wrong about some of the
information, it is likely that other information was inaccurate as
well. Such a discrepancy could indicate that the writer was less
familiar with the activities of Lance and Sue Gates than had
129. The two pronged test of Aguilar-Spinelli was actually not articulated until
after Draper was decided. However, as Justice White recognized in his concurrence in
Gates, there was apparently sufficient corroboration of the informant's tip in Draper to
establish both a basis of knowledge and credibility. See Gates, 103 S. Ct. at 2349 (White,
J., concurring).
130. Id. at 2349-50.
131. Id. at 2360 (Stevens, J., dissenting).
1985]
FOURTH AMENDMENT PROTECTION
been thought. It was this supposed familiarity that made reliance on the letter reasonable.
The letter was weakened in two additional ways.13 2 First,
the letter indicated that one of the Gates always remained at
their home. 13 This may have suggested that it was necessary to
guard drugs being stored in the house. It was apparent, however,
that both Lance and Sue Gates had left their home and gone to
Florida. These circumstances clearly weakened any inference
that may have been drawn warranting a search of the Gates'
home.13 4 Further, as Justice Stevens noted, the actual activity of
the couple was much less suspicious than the letter had predicted. - 5 The fact that Sue Gates had driven down to Florida
and was later joined by her husband, and that the two later began driving north together was not unusual or indicative of criminal activity. 8 6
Contrary to the Court's suggestion, the problem in Gates
was not that the technical nature of the two pronged test made
it impossible to meet the Aguilar-Spineli requirements in the
anonymous informant situation. Rather, in comparing the circumstances to those in Draper, it appears that the information
from the informant in Gates was weak and partially false. This
is just the type of situation in which a warrant should not be
issued under any standard.
The Court in Gates went on to indicate the need for a totality of the circumstances approach by suggesting that the requirements of the Aguilar-Spinelli test impede police investigations.13 7 In assessing this argument, it is useful to consider
alternative investigative methods which should have been used
in Gates to aid in establishing probable cause."3 '
132. Id.
133. Id. For the full text of the letter, see supra note 50.
134. Gates, 103 S. Ct. at 2360 (Stevens, J., dissenting).
135. Id.
136. Id. Although it is not unusual for one spouse to go to Florida alone followed
later by the other, it is suspicious that the very next day the two would make a nonstop
twenty-two hour trip back to Illinois. It should be pointed out that the warrant in Gates
was issued before the couple returned to Illinois or before it was clear that they were
driving back to their home.
137. Gates, 103 S. Ct. at 2331.
138. Prior to 1981, Professor Hunter was a special agent with the Florida Department of Law Enforcement, primarily involved in narcotics investigations. His analysis of
the alternative police practices available in Gates is based upon his experience in law
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On May 3, 1978, police received the anonymous letter implicating the Gates in narcotics activity. On the same day, police
confirmed the couple's address. Two days later, Lance Gates
flew to Florida and surveillance began. On May 6, police obtained the search warrant which was executed the following
morning, just four days after receiving the anonymous letter
stating that the Gates were involved in criminal activity. Most
police investigations of suspects involved in a criminal enterprise
of this degree would take considerably longer. Experienced narcotic investigators would also agree that possession of narcotics
or conspiracy to possess narcotics is difficult to prove in a jury
trial without the seizure of the contraband. Therefore, it would
be unwise to risk exclusion of evidence without exhausting all
available investigative procedures in an effort to establish probable cause.
Lance and Sue Gates were not highly sophisticated or organized in their criminal operation. The fact that Sue Gates registered at the hotel in Palm Beach in her his own name, that
Lance made airline reservations in his own name, and that the
automobile used to transport drugs was also registered to Lance
Gates is indicative of their lack of sophistication. The simplicity
of this criminal activity indicates that additional evidence might
easily have been obtained through continued surveillance after
the Gates returned to Illinois. In addition, co-conspirators may
have been identified. Background investigation of those identified may have revealed previous narcotics involvement which
would have further corroborated the information already documented. A check of long distance telephone records probably
would have revealed calls to the Gates' source of drugs in Florida. Once those persons were identified, a check with Florida law
enforcement officials could have confirmed their involvement in
narcotics activity. Also, the use of a court authorized pen register (dial number recorder) would have revealed local phone
numbers dialed and may have been helpful in identifying local
contacts. Finally, attempts could have been made to develop
confidential sources who were either currently dealing with the
Gates or who could have dealt with them. Through the use of
confidential sources, an undercover police officer may have been
enforcement.
FOURTH AMENDMENT PROTECTION
1985]
introduced.
Information gained through these types of investigative procedures adds substantially to the nature of information already
developed. In determining probable cause, this additional information would be considered firsthand, reliable and credible, thus
meeting the requirements of Aguilar-Spinelli.It is therefore not
as clear as the Court suggested that the task of law enforcement
is impeded by application of the two pronged test.
V.
PROBLEMS CREATED BY
Gates
The Gates decision has created a dilemma for the courts
and police. By abandoning the well defined procedures for determining probable cause under Aguilar-Spinelli in favor of the
less rigid totality of the circumstances approach, the Court has
created confusion. This new approach provides no standards for
determining the credibility and reliability of information. Also,
it leaves no method for determining whether information was
obtained in a reliable manner. The discretion of police and magistrates in this context therefore becomes less subject to judicial
control. 13 9 Without precise guidelines to follow, the probable
cause standard is "left to the common sense judgments. of issuing magistrates.'
140
This new approach does little to inform po-
lice officers of what information they must provide for the magistrates to determine probable cause. As one commentator has
suggested, "[i]f Gates is a fair indication of the new standard,
police instructors can tell their students with some confidence
that probable cause is whatever they think it is.'
4'
Further, the
adoption of the totality of the circumstances approach may
"foretell an evisceration of the probable cause standard."' 4
Under the Gates standard, intrusions may be justified on less
than reliable information.
It has been stated that, although police are "honest and
139. See United States v. Ventresca, 380 U.S. 102, 121 (1965) (Douglas, J.,
dissenting).
140. Gates, 103 S. Ct. at 2350 (White, J., concurring).
141. Fyfe, The New Quandary Over Searches and Anonymous Tips, Law Enforcement News, July 11, 1983, at 6. The author of the article states that the meaning of the
new totality of the circumstances standard is at this point not clear "because it is 'flexible' and because it is the Court's view that 'this area does not lend itself to a prescribed
set of rules.'" Id. at 12.
142. Gates, 103 S. Ct. at 2350 (White, J., concurring).
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their aims worthy, history shows they are not appropriate guardians of the privacy which the Fourth Amendment protects."1 3
The vague standards announced in Gates could lead to further
police abuse. The decision represents an open invitation to invent anonymous tips in those cases where suspicion is strong,
yet clear probable cause is lacking. By simply adding to the
probable cause summary an anonymous letter or phone call,
strong suspicion becomes probable cause. The success of a few
dishonest officers may encourage others to do the same. Because
police officers are often judged on the success or failure of their
investigations, even the honest and ethical officers may give in to
the temptation. 4 Police are also aware that in most jurisdictions there is at least one sympathetic judge with whom the police have established a working relationship. The Gates decision
will make it even easier for those judges to act as a tool of the
police and become merely a "rubber stamp."
These problems are made more acute by the recently decided cases involving a good faith exception to the exclusionary
rule. 145 This exception allows for the admission of evidence obtained by officers in good faith reliance upon an invalid warrant.
Along with these cases, once clear standards for determining
probable cause have been destroyed by the Gates analysis. A
warrant application which does not contain any information to
satisfy one of the prongs of the two pronged test would likely
not permit a finding that the officer's reliance was objectively in
good faith. Nevertheless, it may be argued after Gates that in
143. Jones, 362 U.S. at 273 (Douglas, J., dissenting).
144. See Brinegar v. United States, 338 U.S. 160 (1949), where the Court indicated
its belief that police officers will interpret and "push to the limit" any privilege of search
and seizure. Id. at 182.
145. See United States v. Leon, 104 S. Ct. 3405 (1984). In Leon, police received a
tip from a confidential informant that two individuals were dealing in drugs. An extensive investigation ensued. One of the officers conducting the investigation later prepared
an affidavit summarizing his observations, and a search warrant was issued based on the
information in the affidavit. Id. at 3410. It was later determined that the affidavit was
insufficient to show probable cause, partly because the reliability and credibility of the
informant had not been established. Id. at 3411 n.2. Nevertheless, the Supreme Court
determined that evidence obtained under the warrant could be admitted at trial provided that the officer's reliance on the magistrate's probable cause determination and on
the technical sufficiency of the warrant was in good faith and objectively reasonable. Id.
at 3421-22. See also Massachusetts v. Sheppard, 104 S. Ct. 3424 (1984) (evidence obtained under warrant issued on wrong form should not have been suppressed where reliance on warrant was in good faith and objectively reasonable).
1985]
FOURTH AMENDMENT PROTECTION
almost all cases the officer will be justified in relying upon the
magistrate's determination under the cloudy totality of the circumstances standard, and the good faith exception will apply.
VI.
ALTERNATIVES
Rather than rejecting the two pronged test of AguilarSpinelli, the Supreme Court should have refined the analysis to
permit the use of anonymous tips. Although federal courts are
now foreclosed from taking this approach, state courts proceeding under state constitutions are not.
Interestingly, the Supreme Judicial Court of Massachusetts
in Upton specifically noted that it was basing its decision only
upon the United States Constitution." 6 This was an attempt to
determine whether its interpretation of Gates and application of
Aguilar-Spinelli was correct. The Massachusetts court intimated, however, that it would, if necessary, reject Gates on state
14
constitutional grounds. 1
The first shot in what may prove to be widespread rejection
of Gates was fired by the Supreme Court of Washington in
State v. Jackson."8 In Jackson, the court held that, in cases
where probable cause is shown partly by an informant's tip, the
state constitution requires a showing of both the basis of information and the credibility of the informant." 9 Thus, the two
pronged test was retained. The court was openly scornful of the
Gates rule, calling it "nebulous"' 50 and noting that "the State
asks us to. . . follow, blindly, the lead of the United States Su5
preme Court. This we are neither required nor inclined to do.' '
The court in Jackson explained that each prong of the
146. Commonwealth v. Upton, 390 Mass. 562, -,
457 N.E.2d 717, 723 (1983).
Other aspects of the state court's decision in Upton are discussed at supra notes 101-12
and accompanying text.
147. Upton, 390 Mass. at -,
458 N.E.2d at 724.
148. 102 Wash. 2d 432, 688 P.2d 136 (1984). Of course, not all courts can be expected to reject the totality of the circumstances test. In North Carolina, for example, it
was recently held that the Gates approach is appropriate, under the state constitution,
for determining probable cause. See State v. Arrington, 311 N.C. 633, 319 S.E.2d 254
(1984). Interestingly, the Supreme Court of Illinois also recently adopted the totality of
the circumstances approach for state constitutional purposes. See People v. Tisler, 103
Ill. 2d 226, 469 N.E.2d 147 (1984).
149. Jackson, 102 Wash. 2d at -,
688 P.2d at 137-38.
150. Id. at
, 688 P.2d at 139.
151. Id. at -, 688 P.2d at 140.
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Aguilar-Spinelli standard is separate and distinct.1 52 If one of
the prongs cannot be met, the information may be independently corroborated by police. This raises the level of the reliability of the uncorroborated portion of the tip so that it may be
utilized in determining probable cause. 153 In fact, it was under
this rationale that
the state court in Jackson upheld the validity
1 54
of the warrant.
It should be noted that the informant in Jackson was
neither anonymous nor of unknown reliability. Some of the information provided proved to be absolutely accurate. There was,
therefore, good reason to believe that other information would
be dependable as well. In both Jackson and Draper,known reliability was used to satisfy the truth prong of the test. In this
situation, a lesser degree of corroboration of the information
may be acceptable in establishing probable cause.
If Aguilar-Spinelli is to have continued validity and be applied to anonymous tips where corroboration of the information
is used to satisfy both prongs of the test, a higher degree of corroboration must be required than in cases such as Draper.With152. Id. Generally, the "veracity" prong is met by showing past reliability of the
informant, although other methods, such as a showing that the information amounts to a
declaration against penal interest, may be sufficient. See, e.g., State v. Bean, 89 Wash. 2d
467, 572 P.2d 1102 (1978). The "basis of knowledge" prong is usually satisfied where the
informant claims that he had personal knowledge of the events. If the information provided by the informant is hearsay and not based on personal knowledge, the reliability of
the hearsay must also be demonstrated. Jackson, 102 Wash. 2d at -,
688 P.2d at 140.
153. Jackson, 102 Wash. 2d at -, 688 P.2d at 140.
154. Id. at -,
688 P.2d at 144. In Jackson, federal authorities acting under a
search warrant searched the home of Judith Stern in connection with suspected drug
smuggling operations. Large quantities of marijuana and cash, along with some weapons,
were found in the home. Id. at -, 688 P.2d at 138. On the day of the search, agents saw
a particular car arrive at Stern's home and something being loaded into the car. The car
was registered to an individual named Larry Corby. A "reliable informant" had previously identified a "Larry" as being involved with Stern in a drug operation. Later, the
car was seen in the driveway of someone identified by the informant as "Walter." The
informant did not indicate how he knew these facts to be true. Based on these facts, a
federal magistrate issued a warrant to search the home of Sharon and Walter Jackson.
The Jacksons were tried and convicted on state drug possession charges. On appeal, the
state supreme court upheld the validity of the search warrant and affirmed the convictions. The court indicated that the corroboration of the information as to the existence
and location of "Walter" and "Larry," along with the pattern of activity involved, were
enough to provide sufficient reliability to satisfy the two pronged test. Id. at -,
688
P.2d at 144. The court also acknowledged that the deference due the issuing magistrate
under the circumstances balanced in favor of upholding the warrant. Id. at -, 688 P.2d
at 144.
1985]
FOURTH AMENDMENT PROTECTION
out such a requirement, it is possible that corroborative information as to a defendant's appearance and mannerisms along with
knowledge of the defendant's actions will be sufficient for issuing
a warrant in the anonymous informant situation. This lessens
the level of reliability required for a finding of probable cause
and is unacceptable under the fourth amendment. At the same
time, there is no reason to forbid the issuance of a warrant based
partly upon information supplied by an anonymous informant.
Where a tip from an anonymous informant is being used as
part of the information to establish probable cause, independent
corroboration which includes some non-innocent fact should be
required. By requiring some incriminating corroboration, there
will be an assurance that it is not the tip alone which gives rise
to a finding of probable cause. Further, this requirement would
limit the use of such tips to situations in which the potential for
15
accuracy is relatively high.
This standard would not require that the police see actual
criminality,1 5 6 but only that the police see activity which would
be considered suspicious if observed independently of the tip.
An example serves to illustrate the point. In the famous case of
Terry v. Ohio,157 a police officer watched more than one individual repeatedly examine a particular store window, walk away,
converse and examine the window again. After this pattern was
repeated many times, the activity eventually became suggestive
of a probable imminent robbery. 5 8 Of course, this alone did not
amount to probable cause. 1 9 Consider, however, the situation
where the police officer is not stationed near the store by chance,
but receives an anonymous letter from an informant who claims
155. The requirement would eliminate situations in which information supplied by
an anonymous informant not known to be previously reliable is corroborated only by
innocent facts not suspicious at all or suspicious only in light of the allegation of criminality in the tip.
156. The Washington Supreme Court in Jackson rejected the idea that criminal
activity must actually be seen, but did not propose a specific rule as to what level of
corroboration is necessary. The court did state, however, that "[c]orroboration of the
informer's report is significant only to the extent that it tends to give substance and
verity to the report that the suspect is engaged in criminal activity." Jackson, 102 Wash.
2d at -,
688 P.2d at 140.
157. 392 U.S. 1 (1968).
158. Id. at 7.
159. Terry approved a limited search and seizure on less than probable cause.
Thus, it is clear that the observations alone did not rise to the level of probable cause
which would have justified an arrest of the suspects. Id.
BRIDGEPORT LAW REVIEW
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to be involved in a burglary ring, identifies the participants and
gives descriptions of them, and predicts which store will be
targeted. Here, there will be more than mere confirmation of the
people and their movements. Rather, the officer is corroborating
activity which is itself suspicious, independent of the information received in the tip. In this situation, there is sufficient corroboration of the anonymous tip to meet the two pronged test
and establish probable cause.
Further, the issuing magistrate should be required to state
on the record which suspicious fact is used to justify reliance on
the anonymous tip. This will considerably ease the task of ap60
pellate courts reviewing a decision to issue a warrant.1
VII.
CONCLUSION
It has been stated that "freedom from unreasonable
searches differs from some of the other rights of the Constitution in that there is no way in which the innocent can invoke
advance protection."' 6 1 Thus, it is up to the courts to select a
standard firm enough to prevent erosion of fourth amendment
rights. At the same time, however, the standard must not place
an unnecessary restraint on the police. The vague totality of the
circumstances approach announced in Gates is too sweeping a
standard. Although an informant's tip, and in some situations an
anonymous tip, may be useful in determining probable cause,
more precise analysis is necessary to determine the proper
weight such information is to be accorded." 2
160. In states where the Aguilar-Spinelli test is retained and where a good faith
exception to the exclusionary rule is adopted, it is suggested that if a magistrate fails to
make this finding of fact, then reliance on the warrant by police officers would not be
objectively reasonable.
161. Brinegar, 338 U.S. at 182.
162. Id.
UNIVERSITY,
BRIDGEPORT
LAW
REVIEW
Volume 6
Number 1
1985
BOARD OF EDITORS
JONATHAN ALEN MARKS
Editor-in-Chief
FRANK ANTHONY RACANO
SIOUX CONNOLLY
Managing Editor
JOSEPH T. O'CONNOR
PAUL T. TUSCH
Notes & Comments Editors
Executive Managing Editor
CATHERINE P.
WHELAN
RAYMOND BOWER
JOHN W. O'MEARA
Research Editor
Lead Articles Editors
Associate Editors
MATTHEW D. NEWMAN
STEVEN A. NIsBEr
WENDY BESSE'rrE
SALVATORE J. COPPOLA
DAWN DITTMAR
C.
MAUREEN
E.
NORRIS
STUART FRIEDMAN
CHARLES E. OMAN
LAURIE B. PERZLEY
DOMINICK
ESPOSITO
GERARD A. HEALY
WILLIAM M. PETRocCIo
CONSTANCE MILLER KREHBIEL
TIMOTHY P. POTHIN
DENISE W. LEWIS
CHRISTOPHER J. McDONALD
DAVID ERIC Ross
BARBARA C. S. SHEA
VINCENT ROBERT MISENTI, JR.
KERRY MARc WISSER
CLIFFORD EDWARD NEIMETH
MEMBERS
MARK BARTEK
WARREN MURRAY
NANCY BONUOMO
SUSAN NIAL
ARNOLD CALABRESE
STEPHEN M.
MONA B. CAMHE
LIEsE K. NELSON
BARBARA L. HANKIN
RITA PROVATAS
JON
MICHAEL HERGENHAN
DEBORAH SAMSON
MICHELLE HORowrrz
FREDERICK SPAETH
PETER STUART JONGBLOED
DAVID STEINBRECHER
ERIN KALLAUGHER
BRAD LARSON
MATTHEW D. STOKELY
KAREN TORRE
DAVID LEGERE
STUART TUROW
JANINE MENDELOFF
EMOGENE WILHEMS
PRIGNANO
J. Russo
ANGELA SAITTA
PHILIP MIOLENE
Review Secretary
HELEN MAGRI
FACULTY ADVISORS
WILLIAM
V. DUNLAP, Chairman
JOHN T. MORGAN