|
University of Miami Law Review
Volume 38 Number 5 Article 4
CASE COMMENTS
Illinois v. Gates: Will Aguilar and Spinelli Rest in Peace?
On May 3, 1978, the Police Department in Bloomingdale, Illinois, received by mail an anonymous handwritten letter stating that two local residents, Lance and Sue Gates, were dealing in illegal drugs.' The letter contained a detailed itinerary of the couple's operations; it alleged that the Gates periodically traveled to Florida, loaded their car with drugs, then returned to Bloomingdale.' The letter also predicted the date of the couple's next trip and stated that they had in their basement drugs worth over $100,000.00.3 The Chief of Police referred the letter to Detective Mader, who determined the Gates's exact address." Additionally, Detective Mader learned from a police officer assigned to O'Hare Airport that Lance Gates had flown to Florida. He also learned from Drug Enforcement Administration agents that Lance Gates had checked into a motel room registered to Susan Gates then left the motel with an unidentified woman.5 The Gates were observed leaving the motel in a Mercury bearing Illinois license plates and heading north on an interstate frequently used by travelers to the Chicago area. Based upon the anonymous letter and upon an affidavit signed by him setting forth the results of his independent investigation, Mader obtained a search warrant for the Gates's residence in Bloomingdale and for their automobile. Two days later, when the Gates arrived at their home in Bloomingdale,' the Bloomingdale police served them with the warrant. A search of the Mercury uncovered approximately 350 pounds of marijuana.8 Upon motion made by the Gates prior to their trial on charges of violating state drug laws,9 the trial court ordered suppression of all of the items seized.'0 The Illinois appellate court affirmed," as did a divided Illinois Supreme Court.'2 The state supreme court examined the facts in light of Aguilar v. Texas, 3 which held that an informant's tip can establish probable cause only if police set forth the source of the informant's knowledge and their reasons for crediting the informant's veracity. 4 After finding that Mader's affidavit lacked both elements," the court considered whether the deficiencies could be cured under Spinelli v. United States.6 There, the Supreme Court allowed magistrates to find probable cause where the details contained in the tip, together with the police corroboration of the details, established the tip's overall trustworthiness." The Illinois Supreme Court concluded that the affidavit was insufficient under the Spinelli standards as well, and held the search invalid.' 8 On certiorari, the United States Supreme Court held, re- versed: The two-prong test of Aguilar and Spinelli for determining whether an informant's tip establishes probable cause for the issuance of a warrant is abandoned, and the totality of the circum- stances approach that traditionally has informed probable cause determinations is reinstated. Accordingly, the Court held that "the judge issuing the warrant had a 'substantial basis for ...concluding' that probable cause to search the Gates' home and car existed."
In 1978, an anonymous letter was sent to the Bloomingdale Police Department accusing Lance and Sue Gates of dealing drugs. Detective Mader investigated and obtained a search warrant for their home and car. Upon their return, the Gates were served with the warrant, and a search of their car uncovered 350 pounds of marijuana. The Gates moved to suppress the items seized, but the Supreme Court ruled that probable cause existed for the search.
II. EVOLUTION OF THE Aguilar-Spinelli TEST
The backdrop of Gates is a struggle among the members of the Court with the larger issue whether to modify the exclusionary rule itself, which the Court evolved in a dozen decisions beginning with Weeks v. United States.20 Justice Rehnquist hoped that Gates would be the vehicle to address this larger issue. However, on what he thought to be a jurisdictional impediment, Justice Rehnquist, writing for the Court, did not address that issue. 1 The struggle within the Court seems to be between Justices White and Rehnquist, who apologized for the inability of the Court to address the issue,22 and Justice Brennan, who is adamantly against any modification of the exclusionary rule. His strategy for modifying the exclusionary rule being presently unavailable, Justice Rehnquist instead chose to modify the fourth amendment substantively, with respect to informants. Thus, Gates was not a product of itself, but the result of a larger, underlying jurisprudential struggle within the Court.
The moving force behind the Court's reasoning in Gates was practicality. The majority repeatedly stressed that probable cause is a "practical, nontechnical conception."2 The Court reasoned that the two-prong test of Aguilar, as refined in Spinelli and applied in subsequent cases, had become unduly rigid and too technical to serve that concept.24 The Court went too far, however. It was not necessary for the Supreme Court to overrule Aguilar and Spinelli. The warrant in Gates could have been upheld within the Aguilar-Spinelli rubric, while achieving at the same time the practicality and flexibility that the Court sought. The historical development leading up to Gates indicates that the Aguilar and Spinelli standards were never intended as overly rigid or technical guidelines; only confusion and misapplication of their standards by the lower courts produced this result. Accordingly, clarification of the standards, and perhaps a strong admonishment to the lower courts, would have sufficed; abandoning a long-standing and necessary standard was not the answer. Aguilar and Spinelli have suffered an untimely demise.
The Gates case involved a struggle among Court members regarding the modification of the exclusionary rule. Justice Rehnquist hoped to address this issue, but did not due to a jurisdictional impediment. The Court's reasoning in Gates was based on practicality, with the majority stressing that probable cause is a practical and nontechnical concept. However, the Court went too far in overruling previous standards, which could have been upheld with clarification and admonishment to lower courts. Aguilar and Spinelli were unnecessarily abandoned.
A. Pre-Aguilar Development
Half a century ago, in Nathanson v. United States2,5 the Court invalidated a search warrant 26 reasoning that "a warrant to search a private dwelling may [not] rest upon mere affirmance of suspicion or belief without disclosure of supporting facts or circumstances. '2 The Court stated that "under the Fourth Amendment, an officer may not properly issue a warrant to search a private dwelling unless he can find probable cause therefor from facts or circumstances presented to him under oath or affirmation. Mere affirmance of belief or suspicion is not enough. 2' Nathanson, the genesis of modern probable cause law, has withstood 50 years of change.
Twenty-five years after Nathanson, in Giordenello v. United States,9 the Court reviewed an arrest warrant based on the sworn complaint of a Federal Bureau of Narcotics agent." Based on the agent's testimony at the suppression hearing, the Court noted that "until the warrant was issued . . .[the agent's] suspicions of petitioner's guilt derived entirely from information given him by law enforcement officers and other persons in Houston, none of whom either appeared before the Commissioner or submitted affidavits."3 The Court found it unnecessary to decide whether a war- rant could be based solely on hearsay information, for the complaint was "defective in not providing a sufficient basis upon which a finding of probable cause could be made."3 The Court was quick to identify who was to make this probable cause determination, however, by citing to Johnson v. United States." In Johnson the Court stated:
The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the sup- port 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 ferreting out crime.34
The Court in Giordenello reaffirmed Nathanson" by stating that "[the Commissioner] should not accept without question the complainant's mere conclusion that the person whose arrest is sought has committed a crime.""6 Finally, the Court expressly rejected the argument that the deficiencies in the warrant could be cured by "the Commissioner's reliance upon a presumption that the complaint was made on the personal knowledge of the complaining officer.”
In Jones v. United States,38 the Court addressed for the first time the issue, left undecided in Giordenello,"whether an affidavit which sets out personal observations relating to the existence of cause to search is to be deemed insufficient by virtue of the fact that it sets out not the affiant's observations but those of an- other."39 The Court held that hearsay information can support the issuance of a warrant "so long as a substantial basis for crediting the hearsay is presented. 40
The Jones Court cited Draper v. United States,1 which held that an officer may rely upon information received through an in- formant, rather than upon his direct observations, so long as the informant's statement is reasonably corroborated by other means within the officer's knowledge.4 The Court reasoned that "[i]f an officer may act upon probable cause without a warrant when the only incriminating evidence in his possession is hearsay, it would be incongruous to hold that such evidence presented in an affidavit is insufficient basis for a warrant. 43
The Court found that there was a substantial basis for crediting the hearsay involved in Jones. The Court stressed that the in- formant's report was based on his personal knowledge, and that he had provided accurate information in the past." The Court also pointed out that the defendant was known to the police to be a narcotics user, and thus "the charge against him [was] much less subject to scepticism than would be such a charge against one without such a history. '40 Finally, the Court put much weight on the fact that "corroboration through other sources of information reduced the changes of a reckless or prevaricating tale ....
The United States Supreme Court reaffirmed the substantial basis test in Rugendorf v. United States.47 In Rugendorf, an informant provided a detailed description of allegedly stolen furs that he had seen in the defendant's basement.48 An independent police investigation corroborated the information.9 The Court, while emphasizing the amount of detail present in the affidavit, held that the affidavit presented a substantial basis for crediting the hearsay.50 The stage was thus set for Aguilar and Spinelli.
In Nathanson v. United States, the court stated that a warrant to search a private dwelling cannot rest on mere suspicion or belief without supporting facts. In Giordenello v. United States, the court found a complaint defective for not providing sufficient probable cause and reaffirmed the need for a neutral and detached magistrate to make the determination. In Jones v. United States, the court held that hearsay information can support a warrant if there is a substantial basis for credibility. Rugendorf v. United States reaffirmed the substantial basis test. These cases set the stage for Aguilar and Spinelli.
B. Aguilar and Spinelli
The formulation of rigid guidelines for establishing probable cause originated in the seminal case of Aguilar v. Texas." The case marked a departure from the vague substantial basis test applied in Jones and Rugendorf. In considering a search warrant based on hearsay,53 the Court reviewed Nathanson and Giordenello; it acknowledged the requirement established by those cases that an officer provide the magistrate with the underlying facts or circumstances that support the officer's conclusion that there is probable cause to justify the issuance of a warrant."4 While recognizing that a warrant may be based on hearsay, the Court articulated the following two-prong test:
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 omitted) was "credible" or his information "reliable."55
The Court reasoned that if warrants were to be issued on the basis of the information provided in Aguilar, then the inferences from the facts that led to the complaint would not be drawn "by a neutral and detached magistrate," as the Constitution has been interpreted to require. Instead, those inferences would be drawn by a police officer "engaged in the often competitive enterprise of ferreting out crime." The magistrate would in effect be accepting the police officer's judgment rather than his own, or worse yet, he would be accepting the judgment of an unidentified informer. The Court reversed, concluding that the warrant should not have been issued because the affidavit did not provide a sufficient basis for a finding of probable cause.58
In dissent, Justice Clark warned that "the Court has substituted a rigid, academic formula for the unrigid standards of reasonableness and 'probable cause' laid down by the Fourth Amendment itself substitution of technicality for practicality, Aguilar should not be read like that, however. The Court intended neither a rigid, inflexible compartmentalization of the inquiries into an informant's "veracity," "reliability," and "basis of knowledge," nor that these inquiries be elaborate exegeses of an inform- ant's tip. Rather, the Court required that only some of the facts bearing on two particular issues be provided in order to guide the magistrate's determination of probable cause.60
Illustrating this point is United States v. Ventresca. Defendant Ventresca was convicted of possessing and operating an illegal distillery. The court of appeals reversed the conviction, 2 holding that the affidavit failed to pass the basis of knowledge test of Aguilar. The court reasoned that because the affidavit did not assert that the affiant or other investigators had personal knowledge, then the information obtained from the other investigators could have been untrustworthy hearsay.63
The Supreme Court reversed;64 Justice Goldberg held that magistrates and courts must test affidavits for search warrants in a common-sense manner, without senseless technical requirements. The Supreme Court went on to admonish the court of appeals for "misapprehending its judicial function reviewing this affidavit by giving it an unduly technical and restrictive reading." 6 Thus, the Supreme Court laid a predicate; Aguilar was not to be applied restrictively.
In Ventresca, the Supreme Court evidently incorporated the "sufficient detail" analysis of Rugendorf into the "underlying circumstances" test of Aguilar.7 The detailed descriptions contained in the affidavit influenced the Court to uphold the warrant. The Court reasoned that these details,68 if read in a common-sense manner, would be sufficient to assure a magistrate that the source was credible and the information reliable, and to supply a sufficient basis for establishing probable cause. 9 It is arguable, then, because the Court in Ventresca placed so much emphasis on the desirability of a practical, nontechnical approach, that it applied a totality of circumstances test. But Ventresca would have satisfied the two-pronged test because "basis of knowledge" and "veracity" were established. Thus, Ventresca produced uncertainty as to whether Aguilar must be applied literally or whether one or both of its requirements could be ignored if common sense indicated that a tip provided probable cause.
The Aguilar v. Texas case established guidelines for establishing probable cause, departing from the vague substantial basis test applied in prior cases. The court established a two-prong test for search warrants based on hearsay, requiring the magistrate to be informed of the underlying circumstances and credibility of the informant. The Supreme Court later emphasized a common-sense approach in assessing affidavits for search warrants, incorporating a "sufficient detail" analysis into the underlying circumstances test. This produced uncertainty about whether Aguilar must be applied literally or if common sense could indicate probable cause.
This uncertainty was addressed in Spinelli v. United States.71 In Spinelli, the Court reviewed a search warrant based on an affidavit that was "more ample" than the one in Aguilar.72 The affidavit in Spinelli contained not only a tip from a confidential, reliable informant,7 but also a report of an independent police investigation that allegedly corroborated the informant's tip.74 The Court deemed the informant's tip75 the fundamental item in the affidavit and isolated this factor in its analysis.76 Rejecting of the "totality of circumstances" approach taken by the court of appeals,7 the court held that the informant's tip alone must first be measured against the Aguilar standards.7 Applying the basis of knowledge test, Justice Harlan noted that the affidavit lacked any explanation of the underlying circumstances from which the informer concluded that Spinelli was running a gambling operation. There was no allegation that the informer had seen Spinelli at work or that he had placed a bet with him. Nor was there a statement that the informer had obtained his information from another reliable source.81 Moving to the reliability test, the majority noted that the affidavit gave no reason for believing that the informer was reliable.82 There was a bald assertion of reliability but no mention of previous tips.
Because the tip failed to meet the Aguilar test alone, the Court approved two additional ways of satisfying that test. First, the Court suggested that if the tip contained sufficient detail describing the criminal activity of the accused, it might satisfy the basis of knowledge prong.84 Such detail might assure the magistrate that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation. 85 The Court stated that "the detail provided by the informant in Draper v. United States provides a suitable benchmark86 because "a magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way."87
The Court held, however, that the tip in Spinelli did not meet the Draper standard. "Here, the only facts supplied were that Spinelli was using two specified telephones and that these phones were being used in gambling operations. This meager report could easily have been obtained from an offhand remark heard at a neighbor- hood bar."88
Second, the Court stated that police corroboration of the details of an informant's tip could satisfy the veracity prong.89 Justice White stated in concurrence that "because an informant is right about some things, he is more probably right about other facts, usually the critical, unverifiable facts."9 Justice Harlan then went on to consider whether "the tip . . . when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip that would pass Aguilar's tests without independent corroboration."91 The Court held, however, that because the FBI had corroborated only the phone numbers taken from its investigation of telephone company records, there was insufficient corroboration to establish the informer's reliability.92 By stating that "the tip needed some further support," although it "could . . . properly
have counted in the magistrate's determination, 93 Spinelli hints that police must corroborate activity that is suggestive of criminal conduct before finding that probable cause exists.94 The Court generated confusion, however, by citing Draper, the case where police only corroborated details of innocent activity. 95 Justice White, concurring, disagreed with the majority's application of Draper. He believed that under Draper the warrant in Spinelli should have been upheld.96
The Spinelli Court attempted to alleviate the difficulties encountered in applying the Aguilar two-pronged test. Instead, it raised the question of the amount of specificity needed for a tip to become self-verifying, and of the extent to which an informant's tip must be corroborated in order to satisfy the veracity prong. In addition, the Court underscored the issue whether the corroboration of innocent or incriminating details was necessary. 97
In Spinelli v. United States, the Court reviewed a search warrant based on an affidavit that included a tip from a confidential informant and a report of an independent police investigation. The Court deemed the informant's tip the fundamental item in the affidavit and held that the tip alone must first be measured against the Aguilar standards. The Court approved two additional ways of satisfying the Aguilar test: if the tip contained sufficient detail describing the criminal activity of the accused, or if police corroborated the details of the informant's tip. The Court attempted to alleviate the difficulties encountered in applying the Aguilar two-pronged test but raised questions about the specificity and corroboration needed for a tip to become self-verifying.
III. Illinois v. Gates
Illinois v. Gates 8 is significant for at least three reasons. First, the Supreme Court for the first time "squarely addressed the application of the Aguilar and Spinelli standards to tips from anonymous informants."99 Second, the Court abandoned the Aguilar- Spinelli standard in favor of a "totality of circumstances" approach for determining whether an informant's tip establishes probable cause for issuance of a warrant.00 Third, the decision is just one more indication of this Court's willingness to compromise those rights that the fourth amendment was intended to protect.'0'
The theme reiterated throughout the majority opinion is that probable cause is a "practical, nontechnical conception."102 The Court reasoned that the two-pronged test enunciated in Aguilar, as refined in Spinelli and applied in subsequent cases, had become unduly rigid and too technical to serve that concept; 103 it believed that the Illinois Supreme Court's decision was just another example of this trend. Justice Rehnquist stated that the state supreme court, like others, had "apparently understood Spinelli as requiring that the anonymous letter satisfy each of two independent requirements" [the veracity and basis of knowledge prongs] before it could be relied on."'104 However, the Supreme Court points out that these requirements, although relevant to a probable cause determination, need not be met in every case:
We agree with the Illinois Supreme Court that an informant's "veracity," "reliability" and "basis of knowledge" are all highly relevant in determining the value of his report. We do not agree, however, that these elements should be understood as entirely separate and independent requirements to be rigidly exacted in every case ...
Rather, under the "totality of circumstances" approach those factors "should be understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is 'probable cause'...
Writing for the majority, Justice Rehnquist stated that the "totality of circumstances" approach is far more consistent with the Court's prior treatment of probable cause than is the two-pronged test of Aguilar and Spinelli.107 Probable cause is a "fluid concept . . . not readily, or even usefully, reduced to a neat set of legal rules."' 108 The two-pronged test, the Court asserted, "has encouraged an excessively technical dissection of informants' tips, with undue attention being focused on isolated issues that cannot sensibly be divorced from the other facts presented to the magistrate."109 However, under the "totality of circumstances" approach, "a deficiency in one [prong] may be compensated for ...by a strong showing as to the other...” The Court believed that it was incongruous to have "technical requirements of elaborate specificity" when most "affidavits 'are normally drafted by non-lawyers in the midst and haste of a criminal investigation." The Court's concern is that nonlawyers will not remain abreast of each judicial refinement in the definition of probable cause.
In reaching its decision, the Court considered the societal equities involved. It concluded that the continued use of non-flexible standards would greatly affect society. Police might resort to warrantless searches, the Court reasoned, and this is not preferred because "the possession of a warrant . . . greatly reduces the public perception of unlawful or intrusive police conduct. . ., Furthermore, "the direction taken by decisions following Spinelli poorly serves 'the most basic function of any government': 'to provide for the security of the individual and of his property." The Court reasoned that the two-pronged test would seriously impede the task of law enforcement by diminishing the value of inform- ant's tips, which "frequently contribute to the solution of otherwise 'perfect crimes,"114 in police work. Reflecting this preference for the warrant requirement and for the continued security of society the Court set forth the following standard:
The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ...concluding" that probable cause existed.
Applying the newly announced standard, the Court reversed the Illinois Supreme Court and upheld the warrant in Gates. Reaffirming the value of corroboration of details of an informant's tip, the Court held that "the showing of probable cause in the present case was fully as compelling as that in Draper. Even standing alone, the facts obtained through the independent investigation of Mader and the DEA at least suggested that the Gates were involved in drug trafficking." 6 Justice Rehnquist stated that in determining the informant's reliability the magistrate could have relied "on the anonymous letter, which had been corroborated in major part by Mader's efforts-just as had occurred in Draper”
Corroboration reduced the chances that the informant gave untruthful equivocal information.""" Finally, Justice Rehnquist reasoned that "the anonymous letter contained a range of details relating not just to easily obtained facts . . . but to future actions of third parties ordinarily not easily predicted."119 The Court stated that where an informant had access to this type of accurate information, "it was not unlikely that he also had access to reliable information of the Gates' alleged illegal activities."' 120 Therefore, the Court resolved, "the judge issuing the warrant had a 'substantial basis for .. .concluding' that probable cause to search the Gates' home and car existed.''2
Justice White, concurring, reasoned that it was not necessary to abandon the two-pronged test. Although he agreed with the majority that the warrant in Gates should be upheld, he reached his conclusion within the Aguilar and Spinelli framework.'22 Justice White agreed with the Court that "some lower courts have been applying Aguilar-Spinelli in an unduly rigid manner"; however, he believed that clarification of the rule better served their responsibility in this area.
Justice Brennan wrote separately to dissent from what he called "the Court's unjustified and ill-advised rejection" of Aguilar and Spinelli.2 4 After reviewing the opinions in Nathanson and GiordenelIo, he concluded that "[i]f the conclusory allegations of a police officer are insufficient to support a finding of probable cause, surely the conclusory allegations of an informant should a fortiori be insufficient.' 25 While the rules drawn from Jones, Aguilar, and Spinelli are cast in procedural terms, according to Justice Brennan they do advance an important underlying substantive value: "Findings of probable cause, and attendant intrusions, should not be authorized unless there is some assurance that the information on which they are based has been obtained in a reliable way by an honest or credible person. ' Because affidavits based on hearsay require a more difficult inquiry 2 7 in order to ensure greater accuracy, "[t]he standards announced by Aguilar, as refined by Spinelli fulfill that need."1'28 Justice Brennan concluded that "the Court's rejection of Aguilar and Spinelli and its adoption of a new totality of the circumstances test . . 'may foretell an evisceration of the probable cause standard . . ..
Justice Stevens also wrote separately. His dissent concentrated on the significance of an inaccuracy in the anonymous letter.130 He believed that the discrepancy was significant because it cast doubt on the informant's hypothesis that there was contraband in the Gates's basement,1 1 it made the Gates's conduct seem less unusual,"3 2 and it undermined the reasonableness of relying on the letter as a basis for making a forcible entry into a private home.
Furthermore, in his view, "the judgment of three levels of state courts, all of whom are better able to evaluate the probable reliability of anonymous informants in Bloomingdale, Illinois, than we are, should be entitled to at least a presumption of accuracy." Finally, Justice Stevens reasoned, because "'there is a constitutional difference between houses and cars',,135 that the car search should be reconsidered "in the light of our intervening decision in United States v. Ross."
IV. AN ANALYSIS OF Gates
The conclusion in Gates was correct; the warrant approving the search of the Gates's house and car should be upheld, but that could have been accomplished without abandoning the rules enunciated in Aguilar and Spinelli.
The majority contradicts itself in two important respects. First, it admonishes decisions after Spinelli for being too "rigid" and "unpractical," yet concedes that the original phrasing of Aguilar was not so inflexible: "[W]e intended neither a rigid compartmentalization of the inquiries . . nor that these inquiries be elaborate exegeses of an informant's tip." The Court points out that Aguilar required only some underlying facts.1 37 Although Spinelli conceivably evolved the two-pronged test into a more "rigid" standard, the Court nonetheless cites Adams v. Williams,"8 a post- Spinelli decision, where the Court reasserted the proposition, as the majority states it, that "rigid legal rules are ill-suited to an area of such diversity."' 89 If the majority is suggesting that Spinelli was wrongly decided or that lower courts have misapplied its standards, it should say so.140 The Gates Court would have better complied with its judicial responsibility had it clarified Spinelli in light of Draperand subsequent cases. A strong admonishment, such as the one given by the Court in Ventresca, would have re- solved the problem; abandoning Aguilar and Spinelli did not.
Second, the Court states that a finding of probable cause may be based on a tip from an informant "known for the unusual reliability of his predictions" or from "an unquestionably honest citizen," even if the report thoroughly fails to set forth the basis upon which the information was obtained. " If this is so, a similar statement from an honest police officer may also support a finding of probable cause. But that would go against the teachings of Nathanson and Jones, cases expressly reaffirmed by the Court," mere conclusory statements by officers without any statement of adequate underlying facts cannot support a finding of probable cause. Similarly, Nathanson and Giordenello directly contradict the Court's suggestion that a strong showing on one prong of the Aguilar test should compensate for a deficient showing on the other." 3 How the majority can expressly reaffirm such cases, yet implicitly reject their teachings, is without reason.
As Justice White stated in concurrence, "it is not at all necessary to overrule Aquilar-Spinelliin order to reverse the judgment below."14' The corroboration of facts in Gates sufficiently established the veracity of the anonymous informant. The tip predicted that Sue Gates would drive to Florida, that Lance would fly there a few days after May 3, and that Lance would then drive the car back. After the police corroborated these facts,14 5 the magistrate could reasonably have inferred that the informant, who had specific knowledge of these unusual travel plans, did not make up his story and that he obtained his information in a reliable way. It is enough, for purposes of assessing probable cause, that " 'corroboration through other sources of information reduced the chances of a reckless or prevaricating tale.' "140 Furthermore, the corroborated activity was quite suspicious.147 In any event, however, the majority's use of Draper, where only innocent details were corroborated, resolves this quandary. The corroboration in Gates "is as trustworthy as a tip which would pass Aguilar's test without independent corroboration."
Finally, assuming that corroboration could not satisfy the "basis of knowledge" prong,149 the detail in the tip was certainly sufficient to assure the issuing magistrate that he was "relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation.' 150 Using Draper as a "benchmark,' 151 the detail in Gates was at least as great.'52 Although theoretically the tip in Gates could have been supplied by a "vindictive travel agent," this is not determinative because "only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.'
Hence, the warrant in Gates could have been upheld within the Aguilar-Spinelli rubric. Accordingly, the majority's proposition that "anonymous tips seldom would be of . . .value in police work" is weakened. While a rigid application of Aguilar and Spinelli would diminish the value of tips from anonymous informants as well as confidential informants, a more flexible standard, following more closely the intent of the Aguilar court, as discussed above, would validate tips such as the one in Gates, while ferreting out those not worthy of such merit.
The search warrant in Gates should have been upheld without abandoning the rules of Aguilar and Spinelli. The majority contradicted itself, and could have clarified Spinelli instead of abandoning it. The Court also suggested that a strong showing on one prong of the Aguilar test should compensate for a deficient showing on the other, which goes against previous cases. However, the corroboration of facts in Gates was enough to establish the veracity of the anonymous informant. The warrant in Gates could have been upheld within the Aguilar-Spinelli rubric, and a more flexible standard would validate tips like the one in Gates.
V. THE IMPLICATIONS OF Gates
The decision in Gates is a paradox, full of conflicting ideals. Preferring to leave for another day the issue whether the exclusionary rule should be modified,'54 the Court instead chose to re- ject a long-standing and successful standard for evaluating informants' tips,155 Informants, especially anonymous ones, should be classified as presumptively unreliable.1 5 6 Informants are frequently themselves criminals, drug addicts, or liars who give information for reasons other than the call of civic duty. The reasons motivating informants include offers of immunity or sentence reductions, promises of money payments, revenge, or the hope of eliminating criminal competition.157 It is unreasonable that these "presumptively" reliable statements from informants, without an explanation as to how they obtained their information, can provide a basis for probable cause, while the same statement from an officer will not. An informant may have provided adequate information in the past but may subsequently give information for some ulterior purpose. Thus, there is even more reason to apply veracity and basis-of-knowledge standards to tips from anonymous informants-nothing is known about their reliability.
By enlarging the scope of informant evidence, society's interest in unintruded privacy takes a back seat in an important respect. The decision in Gates will "restore the preeminence and concomitant abuse of informant's tips by law enforcement officials.158 No longer will officers be required to supply the issuing magistrate with the underlying circumstances surrounding the in- formants' veracity and basis of knowledge; information on either of these bases will suffice if the issuing magistrate is convinced that in the totality of the circumstances probable cause has been established.
This can lead to extreme abuses. Warrants can be issued on the mere fact that a known informant was previously reliable. In addition, Gates will provide an opportunity for officers to fabricate informants, if the establishment of probable cause would otherwise fail, because the informants' reliability will no longer be closely scrutinized, as is the reliability of the officer.159 The possible abuses from anonymous informants is even greater. Consequently, the most alarming result from Gates is that it once again presents the question, answered affirmatively thirty-six years ago in Johnson v. United States,60 whether a "neutral and detached magistrate" will make probable cause determinations rather than the "officer engaged in the often competitive enterprise of ferreting out crime," or worse yet, whether an anonymous informant will make the determination. By requiring police to provide certain crucial information to the issuing magistrate and by structuring the magistrate's probable cause inquiries, the Aguilar and Spinelli framework assured the magistrate's independent role as the only arbiter of probable cause determinations.
That some courts may have been overly technical in their application of Aguilar and Spinelli is no justification for rejecting Aguilar and Spinelli outright. Rather, the Court in Gates could have clarified those cases and their interaction with Draper. It also could have admonished the lower courts for being overly technical and rigid in applying Aguilar and Spinelli, instructing these courts on their proper application. If we are to continue to ensure that findings of probable cause, and their attendant intrusions, are based on information provided by a credible person who acquired the information in a reliable way, then the Aquilar-Spineli standard, albeit in a less rigid form, must be revived, or a similar standard developed and applied to informants' tips, especially those from anonymous informants.
The Gates decision is paradoxical and conflicts with ideals. The Court rejected a successful standard for evaluating informants' tips. Informants are frequently unreliable and can have ulterior motives for giving information. By accepting presumptively reliable statements from informants without verifying their reliability, privacy takes a back seat to law enforcement. This can lead to extreme abuses, including the fabrication of informants. The Court could have clarified existing standards for evaluating informant tips rather than rejecting them outright. A revived or similar standard must be applied to informants' tips, especially those from anonymous informants, to ensure probable cause determinations are based on credible and reliable information.
VI. CONCLUSION
Gates is just another example of the Supreme Court chipping away at the protections that the fourth amendment"2 guarantees, while at the same time giving lip service to its meaning. It is evident that the pendulum is swinging toward the extreme right; crime control is becoming the model at the expense of individual rights. How long this trend will continue before the fourth amendment is left valueless is anyone's guess.'3 Perhaps the fourth amendment will regain its value when Justice Rehnquist and his ultra-conservative policies leave the Court. Maybe then the pendulum will swing back and the Aguilar-Spinelli standard will be resurrected or a similar one developed. But in the meantime, may Aguilar and Spinelli rest in peace.
ALEXANDER PENELAS
Gates is an example of the Supreme Court eroding fourth amendment protections while paying lip service to its meaning. The pendulum is swinging toward extreme right; crime control is becoming the model at the expense of individual rights. It is uncertain when this trend will end and the fourth amendment will be left valueless. Justice Rehnquist and his ultra-conservative policies may be responsible for the amendment regaining its value. Until then, may Aguilar and Spinelli rest in peace.
may Aguilar and Spinelli rest in peace.
이 글을 읽기 전에 이 문구가 강력한 반어적인 표현이 될 줄은 상상도 못했습니다.
그리고 이 글은 “totality of the circumstances” 에 대한 절대적인 반감으로 시작 합니다
이 글의 도입부를 통해 새롭게 알게 된 놀라운 사실은 Gates 의 내용이 수정헌법 4조에 대한 렌퀴스트 대법관님의 실제 생각이 아니었다는 사실 입니다. 판결문은 관할권의 다툼을 피하기 위해 의도적으로 주정부의 판단을 옹호했다는 사실을 알 수 있었습니다. 다시 보니 압수된 마약은 적지 않은 양 이였기도 하고 때문에 DEA의 수사에 협조하려는 의도도 존재 했을 것으로 생각이 됩니다. 이번 케이스의 디센팅 판사님들의 말씀이 길어 질 수 밖에 없었던 이유와 그리고 다수 의견의 논리가 명확하게 다가오지 않았던 이유에 대한 궁금증이 풀어진 것 같아 기분이 좋습니다.
|