police informant reported suspect was 6'3" tall, weighed 240 pounds, was wearing particular attire, was located on ninth floor of specified building, and had access to guns and drugs
How later courts described this case
- police informant reported suspect was 6'3" tall, weighed 240 pounds, was wearing particular attire, was located on ninth floor of specified building, and had access to guns and drugs
- informant described suspect’s attire, gave his weight and height, and gave his location within building telling police where on his person drugs and gun were located
- police arrived on scene within twenty minutes of receiving phone call
- plastic vitamin pdl bottle containing tinfods of marijuana-laced POP
Written by the judges who cited it.
The opinion
NEWMAN, Associate Judge,
dissenting:
In Illinois v. Gates, 462 U.S. 213 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983), the Supreme Court overruled the two-prong test they had previously enunciated in Aguilar *939 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), to determine probable cause to search. The two-prong test was (1) the informant’s basis of knowledge, and (2) providing sufficient facts to establish the informant’s veracity or the reliability of his report. If there was a failure to satisfy either prong, then there was no probable cause. In Illinois v. Gates, the Court adopted a “totality of the circumstances” test. As we are bound to do, we have followed Illinois v. Gates. In this regard, however, it is crucial to remember what was involved in that case. An anonymous handwritten letter was sent to the police accusing the Gates of drug dealing. The letter recounted that the Gates planned a future trip to Florida to buy drugs. It set forth the modes of transportation that the Gates would take on the future trip, some details of what they would do in Florida and how they would return to Illinois. The police surveilled the Gates as well as conducting other investigations. The surveillance confirmed, in large measure, the prediction of the Gates’ future conduct. See Illinois v. Gates, supra 462 U.S. at 291-93 , 103 S.Ct. at 2360-61 (Stevens, J., dissenting). The police thereupon obtained a warrant and conducted a search.
That is not our case. Here, an apparently paid informant, without giving any basis of knowledge, tells the police how Offutt is dressed, where he can be found, and that he is dealing drugs while armed with a pistol. The first two items were entirely innocent, i.e., mode of dress and location; it was only the third — selling drugs while armed, which was sinister. The police verified only that which was entirely innocent — mode of dress and location. There was nothing to corroborate the reported criminal conduct. Most important, keeping in mind Illinois v. Gates, the informant here had not predicted any significant future conduct which the police corroborated. 1
To sanction the search in this case is to say where an informant, anonymous or otherwise, without any demonstrated basis of knowledge, can accurately describe a person’s mode of dress and location, and couples that description with a claim of criminal conduct, the police, upon verifying the totally innocent elements of the report have probable cause to search. I refuse to join such a holding. The fourth amendment not only protects drug dealers. It protects you and me.
. Unlike my colleagues, I think there was an arrest, not a Terry stop.