United States of America Government of the Virgin Islands v. Ernie Ritter Reggy Ritter Dale Ritter

SMITH, Circuit Judge,

dissenting in part and concurring in the judgment.

Because I believe that even under a deferential standard of review, the magistrate judge’s probable cause determination should not stand, I dissent from the portion of the majority’s opinion validating the issuance of the warrant. However, because under the rule of United States v. Leon Officer Howell could reasonably rely on the invalid warrant, I reach the same result as the majority: Before they discovered that the building to be searched contained multiple apartments, the conduct of Howell and the other warrant-executing officers did not violate the Fourth Amendment.

Unlike the majority, I do not view.this as a “close case,” where our deferential review “tips the scale in favor” of validating the magistrate’s finding of probable cause. This is not a marginal case of probable cause that should be governed by a preference for warrants. See United States v. Ventresca, 380 U.S. 102, 109 , 85 S.Ct. 741 , 13 L.Ed.2d 684 (1965). Rather, under the precedent of the Supreme Court and this Court, I am doubtful that the affidavit even supports a finding that reasonable suspicion existed, much less probable cause. In my view, the majority’s analysis in concluding that the warrant was properly issued is flawed in two ways. First, the majority does not discount for staleness the information contained in Howell’s May 2003 affidavit regarding the August 2002 eradication project. Second, and more fundamentally, by crediting Howell’s supposed corroboration of a “bare bones” anonymous tip — i.e., a tip consisting only of conclusory allegations of illegality- — -the majority misapplies the anonymous tip jurisprudence of the Supreme Court and this Court, and misconceives the role corroboration plays in evaluating such tips. Both of these factors weigh strongly against the magistrate’s probable cause determination.

Staleness

The majority does not confront the fact that by the time of the first anonymous tip, Howell’s information from the August 2002 marijuana eradication effort had aged eight months. The staleness of this information renders it of minimal probative value.

It is well-established that staleness is a contextual inquiry and not simply a matter of measuring the age of information contained in an affidavit. United States v. Harvey, 2 F.3d 1318, 1322 (3d Cir.1993) (noting that the speed with which information supporting a warrant becomes stale varies with the nature of the crime and the type of evidence); United States v. Williams, 897 F.2d 1034, 1039 (10th Cir.1990). By the same token, staleness implies no frontier between full-potency fresh information and the worthlessly stale. With half-lifes varying by context, the reliability of information dissipates over time to the point that such information must be disregarded. For instance, information regarding an alleged burglar’s possession of readily fenced music CDs will dissipate faster than, say, an alleged burglar’s possession of a stolen Cezanne painting that may take the suspected thief years to unload. Further, we have recognized, quite sensibly, that information regarding repeated unlawful conduct over an extended period suggests a “continuing offense,” and thus is more durable than information of discrete offenses. United States v. Urban, 404 F.3d 754, 774 (3d Cir.2005) (“[W]here *271 the facts adduced to support probable cause describe a course or pattern of ongoing and continuous criminality, the passage of time between the occurrence of the facts set forth in the affidavit and the submission of the affidavit itself loses significance.”); United States v. Zimmerman, 277 F.3d 426, 434 (3d Cir.2002).

Here, the information Howell used to corroborate the anonymous tip was weak as an initial matter, 13 and the nature of the crime and type of evidence indicates that the information was susceptible to becoming stale.

First, Howell saw marijuana growing on the property on one occasion. By definition, one sighting cannot constitute a “continuing offense” such that the information would become stale at a relatively slow rate. Compare Zimmerman, 277 F.3d at 434 (concluding that one viewing of a pornographic video clip ten months before rendered the information stale), with Urban, 404 F.3d at 775 (determining that a years-long pattern of graft and extortion, the last evidence of which was from October 1999, was not stale at the time of a February 2000 affidavit), and Harvey, 2 F.3d at 1323 (concluding that information concerning the receipt of fifteen child pornography mailings over a period from two to fifteen months before the warrant application was made was not stale). The August 2002 discovery of an outdoor grow operation was a discrete event, and the marijuana was destroyed. To be sure, one may speculate that marijuana is more likely to be regrown in the same location where it has been found than in a place where it has never been discovered. However, Howell’s affidavit contains no information that marijuana was repeatedly grown at the location, and it is equally sensible to posit that people will not again cultivate marijuana in a location already known to authorities. Because there was no pattern of illegality here, I believe the information from the August 2002 eradication effort had become stale by the time Howell included it in his May 2003 affidavit.

Second, not only was no connection between the outdoor grow operations and the main house made in August 2002, even if one were to infer such a connection then existed, Howell made no effort to determine whether there was a continuity of ownership or occupancy of the property. What the majority terms “Ritters’ property,” ante n. 1- — a fair enough characterization in May-2003 considering the Ritters’ residency if not ownership of the compound — may have been no such thing in August 2002. There was simply no investigation of (1) who, if anyone, lived in the building (or who owned it) at the time of the August 2002 marijuana eradication; (2) whether the occupants or owners of the building were connected to the August 2002 outdoor marijuana growing; or (3) whether any changes in occupancy or ownership had occurred between August 2002 and May 2003. Moreover, apart from the anonymous tips, Howell had no evidence that the building ever housed an indoor marijuana growing operation. Any connection between the outdoor grow opera *272 tion and an indoor grow room must be imputed. Yet, the majority transports across the eight-month interim the connection they necessarily draw between the illicit outdoor activity and that suspected to have occurred indoors in August 2002. In my view, the connection between the outdoor marijuana cultivation and that which the majority presumes to have occurred indoors was weak in 2002, and was worthlessly stale by May 2003. People are mobile. Real property changes hands.

Corroboration of Anonymous Tips

In Illinois v. Gates, 462 U.S. 213 , 103 S.Ct. 2317 (1983), the Supreme Court stressed that, unlike tips from known informants who have provided reliable information in the past, or tips from identified citizens who could be charged with filing a false report if the tip proved faulty, the veracity and reliability of anonymous tipsters is “by hypothesis largely unknown, and unknowable.” Id. at 237 , 103 S.Ct, 2317 . Gates also observed that the same deficiency obtains regarding the means by which an anonymous informant came by the information contained in a tip, what the Court termed the “basis of knowledge.” 14 Id. at 246 , 103 S.Ct. 2317 . In expounding on the “veracity,” “reliability,” and “basis of knowledge” inquiries, Gates and its progeny distinguish between anonymous tips that contain detailed predictions of the target’s future activities from those that merely assert criminal wrongdoing occurring in the past or at the time of the tip.

In the former category, the cases allow that police corroboration of the tip’s predictions regarding the target’s future lawful actions can bolster the tip’s creditability, and may create the reasonable suspicion or probable cause needed to support a seizure and search of the target and his property for evidence of illegal activity. The rationale of these decisions is that if the anonymous tip proves correct about the target’s predicted licit actions “A, B, and C,” then the tip’s prediction that the target will be engaged in illegal activity “D” is more creditable. Id. at 244 , 103 S.Ct. 2317 ; see Spinelli v. United States, 393 U.S. 410, 427 , 89 S.Ct. 584 , 21 L.Ed.2d 637 (1969) (White, J., concurring) (“[Bjecause an informant is right about some things, he is more probably right - about other facts, usually the critical, unverified facts.”). The police corroboration of the anonymous tip’s innocent details, the cases teach, bolsters the veracity and reliability of the tip, as well as suggests that the tipster is a trusted intimate of the target, and thus may be privy to inside- information concerning the target’s alleged lawbreaking.

Where the anonymous tip contains only “bare bones” allegations of illegality, however, the police have no basis on which to evaluate the creditability of the tip’s illegal content by corroborating the tip’s predictions of the target’s future innocent actions. Such conclusory anonymous tips do not amount to reasonable suspicion, much less probable cause, and police may not *273 base a seizure or search on them. 15 As with predictive tips, a “bare bones” anonymous tip can trigger a police investigation, such as placing surveillance on the tip’s target, that may reveal independent suspicious activity upon which the police can then act. With nothing but the illegality to verify, however, the investigation of con-elusory allegations itself must reveal suspicious activity independently sufficient to support a seizure and search.

Here, the anonymous tips contained only bare allegations of illegality — that the residents of the identified building were cultivating marijuana in two outdoor locations and in two indoor grow rooms, and that an occupant of the house was seen carrying marijuana plants inside the building. The tips contained no predictions of innocent activity Howell could corroborate to bolster the tip’s overall reliability; there was nothing to corroborate except for the illegal activity itself. Yet, the majority, relying on inapposite “predictive anonymous tip” caselaw, erroneously concludes that Howell’s viewing of outdoor marijuana growing near the building eight months earlier somehow “corroborated” the anonymous tip. I disagree with this approach, and I believe it is unprecedented, because it substitutes Howell’s prior knowledge for any testing of the reliability and basis of knowledge of the tipster and her information. This strikes me as a fundamental error with potentially dangerous implications. The Supreme Court has analyzed anonymous tips three times, and in each case the Court has emphasized the tip’s accuracy in predicting future events as a means of assessing its overall credibility. The tip here predicted nothing that could be verified, so when the warrant issued, the predictive valué of the tip was nil.

Predictive Anonymous Tip Cases

The Supreme Court in Gates emphasized the value of the independent police investigation in corroborating the details of the Gateses’ narcotics run as predicted in an anonymous letter. By the time he had submitted his affidavit to the magistrate, the officer in Gates had corroborated several of the predictions contained in the letter, including Lance Gates’ flight from Chicago to West Palm Beach, Florida, his collecting the family car there, and his quick departure driving back north. Gates, 462 U.S. at 244 , 103 S.Ct. 2817 . That the anonymous letter had correctly predicted these innocent facts, the Court reasoned, increased the reliability of the tipster’s prediction that the trunk of the car would contain marijuana. Id.

Similarly, the basis of knowledge of the anonymous letter writer was.unassessable before the details were corroborated. As to this criteria, Gates distinguished between “easily obtained facts and conditions existing at the time of the tip,” which are deprecated, and predicted future events that only an intimate of the tip’s target would know, about which corroboration of innocent details by police investigation can bolster the probability that the tip’s content concerning illegality is accurate. Id. at 244-46, 103 S.Ct. 2317 . That several of the letter’s predictions of the Gateses’ unusual travel plans proved true increased the probability that the letter contained information known only to the Gateses themselves or a trusted intimate of theirs, namely, that they were transporting mari *274 juana in the trunk of their car. Id. at 246 , 103 S.Ct. 2317 . Noting the substantial corroboration of difficult-to-predict details contained in the letter, and observing that the Gateses’ actions were “as suggestive of a prearranged drug run, as it [was] of an ordinary vacation trip,” the Court held that the magistrate had a proper basis for issuing the warrant. Id. at 243-46 , 103 S.Ct. 2317 .

Gates highlights the illogic of the majority’s reliance here on Howell’s ex ante “corroboration” of the anonymous tip to justify the issuance of the search warrant: The majority credits the anonymous tip at face value in its probable cause calculus without requiring that its veracity, reliability, or basis of knowledge be yetted at all. Indeed, quoting Gates, the majority mentions “basis of knowledge” as a factor in a magistrate’s “practical, common-sense” probable cause decision, yet never returns to apply it to the facts of this case.

In Alabama v. White, 496 U.S. 325 , 110 S.Ct. 2412 , 110 L.Ed.2d 301 (1990), the Supreme Court applied its anonymous tip analysis from Gates in a reasonable suspicion context. The anonymous tip in White indicated that, at a given time, Vanessa White would drive a brown Plymouth station wagon with a broken taillight from her apartment on a direct route to Dobey’s Motel, and that White would be in possession of a brown attache case containing marijuana and heroin. Id. at 326 , 110 S.Ct. 2412 . Following up on the tip, the police located the station wagon at the address given, and observed a woman enter it and begin driving toward Dobey’s Motel within the time frame predicted. Id. at 331 , 110 S.Ct. 2412 . As the vehicle neared the hotel, the police effected a Terry stop of the car, and a consent search of the attache case found inside revealed narcotics. Id. at 326 , 110 S.Ct. 2412 . . .

Applying the same approach in the reasonable suspicion context as it did in Gates’ probable cause analysis, the Court again stressed the importance of personal observations by officers in corroborating some predictions of lawful behavior contained in the anonymous tip to establish the reliability of the tip’s information concerning the target’s alleged illegal activities. Id. at 331-32 , 110 S.Ct. 2412 (noting that Gates credited “the proposition that because an informant is shown to be right about some things, he is probably right about other facts that he has alleged, including the claim that the object of the tip is engaged in criminal activity,” and concluding that “the independent corroboration by the police of significant aspects of the informer’s predictions imparted some degree of reliability to the other allegations made by the caller”). Likewise, White iterated Gates’ teaching that police confirmation of a tip’s hard-to-predict details helps to establish the “insider” basis of the informant’s knowledge. Id. at 332 , 110 S.Ct. 2412 (“When significant aspects of the caller’s predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop.”). 16 The Court considered White *275 to be a “close case,” but that “under the totality of the circumstances the anonymous tip, as corroborated, exhibited sufficient indicia of reliability to justify the investigatory stop of [White’s] car.” 17 Id.

Illustrating the difference between the probable cause and reasonable suspicion standards, White noted that the tip at issue was not as detailed, and the corroboration was not as thorough, as in Gates, but that the less demanding reasonable suspicion standard lowers the sum of the quantity and quality of the information that must be established. Id. at 330, 110 S.Ct. 2412 . Also, unlike in Gates, White’s predicted activities were not independently suspicious. Though it was a borderline case, the Court concluded that the police had the reasonable suspicion necessary to effect the traffic stop.

Here, the majority notes that the Supreme Court in White stressed that an officer’s ability to corroborate a tip, and the tip’s predictive ability, are the two most important considerations in the totality of the circumstances inquiry used to determine whether an anonymous tip could provide the reasonable suspicion necessary to support a Terry stop. Despite observing that reasonable suspicion requires a lesser quantum of proof than the probable cause standard here, and despite noting that “the predictive value of the tip [went] untested” before the warrant issued, the majority still refuses to upset the magistrate’s finding. The majority then frames the question here as whether Howell’s August 2002 experience “was sufficiently corroborative so as to give the tip predictive value.”

The fundamental error the majority makes is that it fails to recognize that there is absolutely nothing “predictive” about the anonymous tip in this ease to corroborate, as that term is understood in the caselaw. Because the basis of the tipster’s knowledge was not and could not be tested to show that she likely was indeed an insider, and because the veracity and reliability of the tip’s substance was not and could not be corroborated (i.e., there was no innocent prediction of “A, B, and C” that, if corroborated, would provide a substantial basis to conclude that prediction “D” of illegal activity was also accurate), the magistrate was not permitted to rely on the anonymous tip in its probable cause calculus. 18 In my view, reference to the magistrate’s duty to make “practical, commonsense decisions,” Gates, 462 U.S. at 237 , 103 S.Ct. 2317 , offers no refuge for the legal error evident here. See United States v. Leon, 468 U.S. 897, 915 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984) (“Even if the warrant application was supported by more than a ‘bare bones’ affidavit, a reviewing court may properly conclude that, notwithstanding the deference that magistrates deserve, the warrant was invalid *276 because the magistrate’s probable-cause determination reflected an improper analysis of the totality of the circumstances .... ”). Once the anonymous tip is discredited, all that is left of the affidavit is Howell’s sighting and eradication of outdoor marijuana “at the rear” of the building eight months before, and this is not nearly enough to support the probable cause standard for the issuance of a warrant.

“Bare Bones” Anonymous Tip Cases

Florida v. J.L., 529 U.S. 266 , 120 S.Ct. 1375 , 146 L.Ed.2d 254 (2000), involved an anonymous tip that a young black male wearing a plaid shirt and standing at a particular bus stop was carrying a concealed weapon in violation of Florida law. Id. at 268, 120 S.Ct. 1375 . Acting on this skeletal tip, the police identified the target of the tip and conducted a Terry stop- and-frisk of him that revealed a gun. Id. Relying almost exclusively oh White , a unanimous Court invalidated the Search. Id. at 269, 120 S.Ct. 1375 . Unlike the post-tip corroboration essential to the White decision, the '“anonymous call concerning J.L. provided no predictive information and therefore left the police without a means to test the informant’s knowledge and credibility.” Id. at 271, 120 S.Ct. 1375 . Absent independent corroboration, the police impermissibly relied on the “bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information.” Id. “If White was a close case on the reliability of anonymous tips,” the Court concluded, “this one surely falls on the other side of the line.” Id. It bears repeating that like White, J.L. was a reasonable suspicion case, not a probable cause case as here. 19

In my view, the facts of this case are analogous to those in United States v. Roberson, 90 F.3d 75 (3d Cir.1996) (Becker, J., joined by Nygaard and Lewis, JJ.). There, this Court anticipated the Supreme Court’s decision in J.L. in concluding that an uncorroborated anonymous tip that contains only information readily observable at the time the tip was made does not justify a Terry stop. Id. at 80 . The Roberson tip was that an individual identified by his race, build, clothing, and location was selling drugs on a corner known to police as a “hot spot” for narcotic sales. 20 Id. at 75-76 . Though brief surveillance revealed no suspicious activity by the identified individual, the police nonetheless conducted a Terry stop-and-frisk of the tip’s target, and discovered narcotics. Id. at 76 . We held that reasonable suspicion is lacking where a bare anonymous tip of illegal activity contains only readily apparent information — i.e., the tip does not contain predictive information that, if corroborated, would suggest the source is a reliable intimate of the target — and the *277 police do not themselves observe suspicious behavior. Id. at 80 . To hold otherwise, we reasoned, would subject anyone to a search on the “say-so of an anonymous prankster, rival, or misinformed individual.” 21 Id. at 80-81 .

If anything, the major distinguishing features of Roberson cut against the majority’s validation of the magistrate judge’s finding of probable cause here. First, Roberson involved merely reasonable suspicion, not probable cause. The majority’s validation of the magistrate’s probable cause finding threatens to blur the distinction between the two standards by drawing what is needed to establish probable cause toward the lesser standard. Second, as recently as 2001, the Supreme Court has repeated that “the Fourth Amendment ‘draws a firm line at the entrance of the house.’” Kyllo v. United States, 588 U.S. 27 , 39, 121 S.Ct. 2038 , 150 L.Ed.2d 94 (2001) (quoting Payton v. New York, 445 U.S. 573, 590 , 100 S.Ct. 1371 , 63 L.Ed.2d 639 (1980)); see Zimmerman, 277 F.3d at 431 (“One’s home is sacrosanct, and unreasonable government intrusion into the home is ‘the chief evil against which the wording of the Fourth Amendment is directed’ ”) (quoting Payton, 445 U.S. at 585 , 100 S.Ct. 1371 ). By approving the magistrate’s probable cause finding on the flimsy showing of Howell’s affidavit, the majority guts the warrant requirement it purports to honor, and fails to recognize the status traditionally accorded the home in Fourth Amendment jurisprudence.

Summary

By failing to distinguish between predictive anonymous tips and bare bones anonymous tips, the majority misconceives the purpose of corroborating anonymous tips. The purpose is to test the verity of the tipster and his information, not the knowledge of the officer who receives the tip and submits the affidavit to the magistrate. The policy rationale for the distinction is readily understood: Except in cases where the tip involves “great danger,” such as a bomb threat, the Fourth Amendment prohibits police from effecting a seizure and search based on anonymous reports of illegal activity. 22 See J.L., 529 U.S. at 272, 120 S.Ct. 1375 (refusing to recognize an automatic weapon exception to the reliability analysis because “[sjuch an exception would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target’s unlawful carriage of a gun”). In other words, it is constitutionally unrea *278 sonable for police to rely on untested allegations by individuals who are unwilling to reveal themselves; the danger of mischief is simply too great.

Good Faith Exception of United States v. Leon

Gates’ deference to magistrates’ probable cause determinations was premised on the notion that searches pursuant to warrants are preferable to warrantless searches based on exceptions to the Fourth Amendment’s warrant requirement. Gates, 462 U.S. at 236 , 103 S.Ct. 2317 . The Court observed that the presence of a warrant during a search “reduces the perception of unlawful or intrusive police conduct, by assuring the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.” Id. (citation omitted). Relatedly, the primary purpose of the exclusionary rule is to deter unlawful police conduct, United States v. Calandra, 414 U.S. 338, 347 , 94 S.Ct. 613 , 38 L.Ed.2d 561 (1974), a purpose that is weakly served, if at all, by severe after-the-fact scrutiny of magistrates’ probable cause determinations. United States v. Leon, 468 U.S. 897, 919-20 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984).

Rather than discourage officers from seeking warrants with the prospect of reviewing courts excluding evidence by overturning magistrates’ probable cause findings after close scrutiny of these findings, and thereby induce officers to rely on warrant exceptions, Gates affirmed the deferential standard that “so long as the magistrate had a ‘substantial basis for ... concluding]’ that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more.” Gates, 462 U.S. at 236 , 103 S.Ct. 2317 (quoting Jones v. United States, 362 U.S. 257, 271 , 80 S.Ct. 725 , 4 L.Ed.2d 697 (1960)).

The Supreme Court in Leon established a broad good faith exception to the exclusionary rule that allows the introduction of evidence when an officer executes a search in reasonable reliance on a warrant found on review to have been unsupported by probable- cause. 23 Id. at 922 , 104 S.Ct. 3405 . Leon thus enables appellate courts to instruct magistrates on the contours of the probable cause requirement without discouraging conscientious officers from seeking warrants, and it does so while preserving valuable evidence of criminal wrongdoing. See id.; Zimmerman, 277 F.3d at 436 .

Leon is well-designed for a case such as this one, where the magistrate failed to comprehend an aspect of Fourth Amendment'jurisprudence requiring the synthesis of several cases, a deficiency that no police officer could have been expected to recognize, much less question. Indeed, *279 Leon invites reviewing courts to address novel probable cause questions before turning to the good faith exception analysis:

If the resolution of a particular Fourth Amendment question is necessary to guide future action by law enforcement officers and magistrates, nothing will prevent reviewing courts from deciding that question before turning to the good-faith issue. Indeed, it frequently will be difficult to determine whether the officers acted reasonably without resolving the Fourth Amendment issue. Even if the Fourth Amendment question is not one of broad import, reviewing courts could decide in particular cases that magistrates under their supervision need to be informed of their errors and so evaluate the officers’ good faith only after finding a violation.

Leon, 468 U.S. at 925 , , 104 S.Ct. 3405 ; see United States v. $ 92,422.57, 307 F.3d 137 , 145 (3d Cir.2002).

For the reasons articulated above,- Howell’s affidavit did not adequately support the magistrate judge’s probable cause determination. However, under Leon , Howell was justified in relying on the invalid warrant in organizing the execution of the search. 24 No limitation to Leon’s good faith rule • applies. There is no hint of misconduct or abdication of duty on the part of Howell or the magistrate. The deficiency of particularity regarding the multiple units of the building did not appear on the face of the warrant; this deficiency was of the Maryland v. Garrison variety, and the majority’s discussion of Garrison for the purposes of remand is thorough and I join in it. Regarding the last Leon exception recounted in the margin, this is not a circumstance in which an officer could not reasonably believe the magistrate’s probable cause determination was correct. The staleness and corroboration issues either went unrecognized or were misapplied by the magistrate, the District Court, and my two colleagues in the majority. In light of these factors, it would be unrealistic to conclude that Officer Howell should have recognized, questioned, and correctly applied the nuances of staleness and anonymous tip corroboration doctrine. In my view, the magistrate’s probable cause finding should be rejected, and the Leon good faith exception applied to Howell’s reliance on the invalid warrant.

. As the majority notes, Howell saw the area in question one time from a helicopter, approximately eight months before submitting his affidavit. The one person interviewed by the officers on the ground in August 2002, the marijuana cultivator, denied living in the house, and no connection between the main building and the marijuana growing in the roofless horse stables or in the field was ever made. Both the horse stables and the field are described in Howell’s affidavit as being “at the rear” of the main house. Where, if at all, the roofless stables appear in the aerial photograph (“Attachment A” to the affidavit) is unknown. At best, the connection between the outdoor marijuana grow operation and the nearby building must be imputed, and thus was tenuous even in August 2002.

. In Gates, the Supreme Court incorporated the reasoning of its decisions in Aguilar v. Texas, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410 , 89 S.Ct. 584 , 21 L.Ed.2d 637 (1969), into a totality-of-the-circumstances approach for evaluating informants' tips. Gates eschewed a stovepipe approach that treats an informant's "veracity,” "reliability,” and "basis of knowledge” — criteria developed in Aguilar and Spinelli — as independent and necessary elements to crediting tips. Rather, in affirming the Aguilar and Spinelli criteria as relevant indicia of a tip's value, the Court established that the inquiry should treat these criteria as related issues, such that "a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.” Gates, 462 U.S. at 233 , 103 S.Ct. 2317 .

. The Supreme Court has suggested that police may rely on an anonymous tip to conduct a seizure and search on the tip's target if the danger alleged is great, such as a bomb threat. Florida v. J.L., 529 U.S. 266, 273-74 , 120 S.Ct. 1375 , 146 L.Ed.2d 254 (2000). However, as here, anonymous tips regarding narcotics do not constitute such a special circumstance.

. Also, as it did in Gates, the Court again distinguished between "easily obtained facts and conditions existing at the time of the tip” and "future actions of third parties not easily predicted.” White, 496 U.S. at 332 , 110 S.Ct. 2412 (quoting Gates, 462 U.S. at 245 , 103 S.Ct. 2317 ). The Court noted that anyone could have "predicted” that the station wagon was parked at a given location because it was a condition presumably existing at the time of the anonymous phone tip. White, 496 U.S. at 332 , 110 S.Ct. 2412 . In the Court's view, "[w]hat was important was the caller’s ability to predict [White’s] future behavior, because it demonstrated inside information — a special familiarity with respondent's affairs.” Id. Here, the anonymous tips lacked any predictive information whatsoever, the corroboration of which could have augmented the tips’ creditability.

. The government cites a predictive anonymous tip case, United States v. Padro, 52 F.3d 120 (6th Cir.1995), for the proposition that a law enforcement officer may use information he already possesses to corroborate an anonymous tip, and thus justify a search requiring probable cause. Tellingly, the Sixth Circuit in Padro specifically noted that before the search took place the officer had corroborated the informant's predictions regarding the vehicle used and its route, timing, and occupants. Id. at 123 . Moreover, during the stop, the officer had seen a protruding armrest panel and electronic release hook in plain view, suggesting the hidden recess predicted in the tip. Id. at 124 . In short, several aspects of the informant’s tip were verified before the search, thus the Padro court held that probable cause existed to search for the narcotics the anonymous tipster alleged were being transported.

. The majority notes, “We can see how an officer and a magistrate could view the tip as establishing an identifiable pattern of activity on the premises.” I submit that under Leon , discussed infra, Officer Howell is allowed such mistakes, but the magistrate is not.

. Indeed, the Supreme Court has suggested that an unverified tip from a known, repeat informant alone does not create probable cause. Adams v. Williams, 407 U.S. 143, 147 , 92 S.Ct. 1921 , 32 L.Ed.2d 612 (1972). The verification required to credit an anonymous tip is necessarily greater. Compare id. at 146-47 , 92 S.Ct. 1921 (holding that a tip from a known informant who had provided reliable information in the past was sufficient to support a Terry stop-and-frisk for a gun), with J.L., 529 U.S. at 274, 120 S.Ct. 1375 (distinguishing Adams and White and concluding that an anonymous tip lacking indicia of reliability does not justify a stop-and-frisk under Terry).

. I view the “hot spot” characterization in Roberson to be of approximately equal weight in the totality-of-the-circumstances analysis as the connection the majority makes between the outdoor marijuana plots eradicated “at the rear” of the main house in August 2002 and the indoor grow operations alleged in the tip to have existed eight months later.

. As noted by the Roberson panel, the police could have placed surveillance on the tip’s target on the chance that he would exhibit suspicious behavior to justify a Terry stop. Id. at 81 , 88 S.Ct. 1868 . The same opportunity was presented here, yet Howell opted not to visit the compound or conduct any investigation before seeking a warrant. Deed and utility searches could have determined continuity or changes in ownership and occupancy across the eight months. A short post-tip visit presumably would have revealed the outdoor plots of marijuana, justifying a warrant for entry onto the property. Further investigation or surveillance by Howell may have produced information properly supportive of a search warrant for the building. At the time the magistrate issued the warrant, however, he had no post-tip qualifying indicia of the tip’s overall reliability. That the tip ultimately proved accurate does not matter.

. The majority's mistaken approach raises the spectre of every residence that has been the site of prior illegal activity in recent months being an anonymous tip away from the issuance of a search warrant. Consistent with the majority's reasoning, a magistrate could validly issue a search warrant where an affidavit asserts the combination of an anonymous tip of illegal activity in a certain building with a database “hit” showing that the address had been the site of similar illegality in the past eight months.

. This Court has recognized four situations in which Leon does not apply, but these are minor limitations to the applicability of the rule, and none apply here. See United States v. Williams, 3 F.3d 69, 74 (3d Cir.1993) (quoting the admonition in Leon, 468 U.S. at 921 , 104 S.Ct. 3405 : ."In the ordinary case, an officer cannot be expected to question tire magistrate's probable cause determination.”). Two limitations to the Leon rule involve misconduct, either by police effectively writing their own warrants by submitting a deliberately or recklessly false affidavit, or by the magistrate abandoning his neutral role by teaming with the officers. Id. A third situation upholding the exclusion of evidence notwithstanding .the presence of a warrant involves the use of unparticularized general warrants that purport to allow officers to search first and explain where and for what they were looking later. United States v. $ 92,422.57, 307 F.3d 137 , 148-49 (3d Cir.2002). The last limitation- to employing Leon’s good faith exception "applies in only those rare circumstances in which, although a neutral magistrate has found that there is probable cause, a lay officer executing the warrant could not reasonably believe that the magistrate was correct.” Zimmerman, 277 F.3d at 440 (Alito, J., dissenting).

. As explained by the majority, the Maryland v. Garrison issue to be addressed on remand will turn on what, if any, contraband Howell and the warrant-executing officers discovered before they realized that the building contained multiple apartments. At this point, however, I believe the officers were legally poised to enforce the warrant despite the fact that it was invalidly issued.