State v. Jackson

Utter, J.

(concurring in part, dissenting in part) — I agree with the majority's adoption, under Const. art. 1, § 7, of the Aguilar-Spinelli test for establishing the reliability of information received from an informant. My disagreement with the majority's opinion is limited to its application of this test to the facts at bar.

The majority recognizes the affidavit did not indicate the basis for the informant's assertion that petitioner, Walter Jackson, was a marijuana distributor for Judith Stern. It, however, finds the affidavit sufficient to establish probable *447 cause on the basis of "corroborative" police investigatory work.

The "corroborating evidence" upon which the majority rests its conclusion merely established: (1) that a suspected drug trafficker, Larry Corby, was seen at petitioner's residence shortly after leaving the residence of another suspected drug trafficker, Judith Stern; and (2) petitioner resided at the address indicated by the informant. The investigating officers did not see Corby take any suspicious-looking packages into petitioner's home; nor did they see any other suspicious activity. They merely saw Corby remain at petitioner's residence for over an hour and then drive away. The most this investigation corroborated was that petitioner was acquainted with Larry Corby and that he lived at 12509 Sunrise Drive N.E. There was nothing more to corroborate the informant's statement that petitioner was one of Stern's "main distributors."

Was verification of an apparently innocent association sufficient corroboration of the informant's bare allegation to establish probable cause to search?

Many courts have relied on seemingly innocent activity to corroborate an informer's tip which fails to satisfy Aguilar-Spinelli's "basis of knowledge" prong. 1 W. LaFave, Search and Seizure § 3.3(f) (1978) and cases cited therein. What these courts have failed to recognize is that such limited corroboration bolsters only the informant's credibility, not the reliability of his information that a crime is underway.

As Justice White noted in his concurrence to Spinelli v. United States, 393 U.S. 410, 423 , 21 L. Ed. 2d 637 , 89 S. Ct. 584 (1969), corroboration of innocent details does not make existence of criminal activity sufficiently probable to justify the issuance of a search warrant. In challenging the Court's reliance on Draper v. United States, 358 U.S. 307 , 3 L. Ed. 2d 327 , 79 S. Ct. 329 (1959), for this proposition, he stated:

The thrust of Draper is not that the verified facts have independent significance with respect to proof of the *448 [unverified fact]. The argument instead relates to the reliability of the source: because an informant is right about some things, he is more probably right about other facts, usually the critical, unverified facts.

But the Court's cases have already rejected for Fourth Amendment purposes the notion that the past reliability of an officer is sufficient reason for believing his current assertions. . . . The informant could still have gotten his information . . . from others about whom nothing is known or could have inferred the presence of narcotics from circumstances which a magistrate would find unacceptable.

Spinelli , at 427 (White, J., concurring).

Without corroboration of the informant's assertion that criminal activity is taking place, or a stated basis supporting his assertion, the issuing magistrate has no independent basis upon which to determine probable cause. He or she must rely totally upon the word of the informant who, although reliable in the past, may be mistaken or acting upon a hunch.

As one court has perceptively noted:

Partial verification of an unattributed tale does not, by its very nature, pinpoint the source or sources of the tale, nor does it certify the validity of the possible conclusions interwoven therein. "Basis of knowledge" still requires, explicitly or implicitly, an ascertainable source for each item of raw, primary data. Partial verification does not serve to provide that. The remedy has no bearing on the problem.

(Footnote omitted.) Stanley v. State, 19 Md. App. 507, 532 , 313 A.2d 847 (1974). See also 1 W. LaFave, Search and Seizure § 3.3, at 561-64 (1978).

The majority purports to recognize the need that corroboration relate to the alleged criminal activity.

Corroboration of public or innocuous facts only shows that the informer has some familiarity with the suspect's affairs. Such corroboration only justifies an inference that the informer has some knowledge of the suspect and his activities, not that criminal activity is occurring. Corroboration of the informer's report is significant only to the *449 extent that it tends to give substance and verity to the report that the suspect is engaged in criminal activity.

Majority, at 438. Yet, here, it finds this prong satisfied by the mere presence of a suspected drug trafficker at petitioner's residence. This holding is inconsistent with the many cases in which we have recognized both the "veracity" and "basis of knowledge" prongs as essential to establishing an independent basis for a finding of probable cause. See majority, at 436-38, and cases cited therein.

As we here incorporate the Aguilar-Spinelli test into Const. art. 1, § 7, we are free to interpret it according to the purpose it was meant to serve. Justice White's sound reasoning in Spinelli and the majority's recognition that independent corroboration should give substance to a bare allegation of criminal activity must receive strict adherence. Because the majority has failed to do so in this case, I dissent.

Williams, C.J., concurs with Utter, J.