Merrick v. State

Levine, J,

dissenting:

I respectfully dissent.

Before either an arrest or search warrant may be issued, the Fourth Amendment mandates that the complaining officer present information to a neutral and detached magistrate which would be sufficient to persuade a reasonable person that probable cause exists to support the warrant. Whiteley v. Warden, 401 U. S. 560, 564 , 91 S. Ct. 1031 , 28 L.Ed.2d 306 (1971); Spinelli v. United States, 393 U. S. 410, 415 , 89 S. Ct. 584 , 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U. S. 108, 111, 113 , 84 S. Ct. 1509 , 12 L.Ed.2d 723 (1964). Information adduced in the affidavit accompanying an application for an arrest warrant must be such as would enable the commissioner to judge for himself the persuasiveness of the facts relied upon by the complainant to show probable cause. Aguilar v. Texas, 378 U. S. at 113 ; Giordenello v. United States, 357 U. S. 480, 486 , 78 S. Ct. 1245 , 2 L.Ed.2d 1503 (1958). Although the supporting affidavit need not set forth sufficient facts to sustain a finding of guilt, there must be more evidence than would arouse a mere suspicion in the mind of the commissioner. Brinegar v. United States, 338 U. S. 160, 174-76 , 69 S. Ct. 1302 , 93 L. Ed. 1879 (1949); Mobley and King v. State, 270 Md. 76, 81 , 310 A. 2d 803 (1973), cert. denied, 416 U. S. 975 (1974).

Hearsay statements in the affidavit may support a finding of probable cause, provided there is a “substantial basis” for crediting the hearsay. United States v. Ventresca, 380 U. S. 102, 108 , 85 S. Ct. 741 , 13 L.Ed.2d 684 (1965); Jones v. United States, 362 U. S. 257, 269 , 80 S. Ct. 725 , 4 L.Ed.2d 697 (1960). The meaning of “substantial basis” was explicated by the Supreme Court in Aguilar v. Texas, 378 U. S. at 114 , and *21 elaborated upon in Spinelli v. United States, 393 U. S. 410 . These decisions laid down a bifurcated standard for determining the constitutional sufficiency of an affidavit based in whole or in part on the hearsay declarations of a police informant. Under this two-pronged test, an affiant must supply the commissioner with facts to show 1) the foundation for the informant’s conclusion regarding a suspect's guilt of the crime charged; and 2) the basis for the officer’s conclusion that the informant was credible or his information reliable. Spinelli v. United States, 393 U. S. at 415 ; Aguilar v. Texas, 378 U. S. at 114 ; Peterson v. State, 281 Md. 309, 313 , 379 A. 2d 164 (1977); State v. Edwards, 266 Md. 515, 519 , 295 A. 2d 465 (1972). Since appellant concedes that the first element or “basis-of-knowledge” prong was satisfied in the present appeal, the only issue before us concerns the second element or “trustworthiness” prong.

An affidavit may meet the trustworthiness test in either of two ways. First it may contain information as to the individual declarant’s credibility in the sense of his personal history of honesty and integrity or his personal reputation or character for veracity. In the present case, the declarant was a first-time informer. There was no evidence brought to the attention of the commissioner showing, for example, that Boone had given accurate information in the past or that he had some propensity for telling the truth as a result of moral or religious convictions. In short, on the record before us the commissioner could not have made a neutral and detached assessment of Boone’s personal credibility.

But, as stated quite clearly in Aguilar , credibility is not the sole determinant of the trustworthiness of an informant’s statement. In rare instances there may be circumstances surrounding the communication of an informant’s declaration, which, when viewed from the perspective of common sense and practicality, render the statement inherently reliable, wholly apart from the character, reputation, history or background of the individual declarant. Thus, for example, a spontaneous statement of an uninvolved eyewitness or victim to a crime may be intrinsically reliable for purposes of Aguilar-Spinelli, even though nothing more *22 is known of the informant himself than his name and address. See, e.g., Jones v. State, 242 Md. 95, 100-101 , 218 A. 2d 7 (1966); King and Mobley v. State, 16 Md. App. 546, 555-57 , 298 A. 2d 446 , aff’d, 270 Md. 76 , 310 A. 2d 803 (1973).

In my view, however, there was nothing so compelling about the circumstances underlying the communication of Boone’s statement to Officer McConville as would imbue his bare utterance with a degree of reliability sufficient to support a finding of probable cause. The majority, embracing without critical comment the views expressed by Chief Justice Burger in Part III of his plurality opinion in United States v. Harris, 403 U. S. 573, 583-85 , 91 S. Ct. 2075 , 29 L.Ed.2d 723 (1971), would apparently adopt a per se rule under which an identified informer would be deemed trustworthy for purposes of Aguilar-Spinelli whenever he gives a statement which technically constitutes a declaration against penal interest, as that term has been defined in the law of evidence. C. McCormick, Handbook of the Law of Evidence § 278 (2d ed. 1972); 5 J. Wigmore, Evidence §§ 1476-77 (3d ed. 1940). Since, by divulging appellant’s involvement in the premeditated murder of Randolph Williamson, Boone admitted his own complicity in the crime, the majority concludes that his tip was inherently reliable, notwithstanding the fact that, save for Boone’s identity, the commissioner had absolutely no basis for evaluating the informant’s credibility.

I have no quarrel with the universally recognized view that a declaration against penal interest may be considered as a factor in establishing an informant’s veracity under Aguilar-Spinelli. E.g., United States v. Poulack, 556 F. 2d 83, 87 (1st Cir.), cert. denied, 434 U. S. 986 , 98 S. Ct. 613 (1977); Wilson v. State, 314 A. 2d 905, 907-908 (Del. 1973). And it may well be that such declarations could, in appropriate instances, constitute the exclusive predicate for a trustworthiness determination. But under no imaginable circumstances would I affirmatively label a statement as intrinsically reliable where, as here, the informant has, in the process of confessing his own participation in the criminal enterprise, attempted to place the blame on (or at least share the blame *23 with) a third party. In my opinion, statements of this nature are fraught with inherent untrustworthiness. The reasons for this are not difficult to divine. An informant who is himself under suspicion has powerful motives for seeking to inculpate a third party regardless of the truth or falsity of his information. As Mr. Justice Harlan cogently observed in his dissenting opinion in United States v. Harris, 403 U. S. at 595 , an informant may give false or distorted information to the police in hopes of obtaining leniency, absolution, or other concessions for himself. Especially is this likely where the tipster is subject to prosecution for serious offenses carrying the possibility of severe penal sanctions. Furthermore, an accused informant may see the implication of another as an effective means of avenging some past wrong or injustice and thus may incriminate the third party out of sheer spite. See 4 J. Weinstein & M. Berger, Evidence ¶ 804 (b) (3) [03], at p. 804-95 (1977); Comment, 62 Nw. U. L. Rev. 934 (1968); but see United States v. Miley, 513 F. 2d 1191, 1204 (2d Cir.), cert. denied, 423 U. S. 842 (1975).

By identifying the dangers widely associated with statements of the sort given by Boone in the present case, I do not, of course, mean to imply that all such declarations are unreliable in fact. My point is, rather, that sufficient doubt exists as to the overall trustworthiness of such communications that they ought not to be relied upon as the exclusive basis for establishing the veracity of an informant in the context of assessing whether there was adequate probable cause to justify the issuance of an arrest warrant grounded solely on a tipster’s uncorroborated hearsay accusations. At a minimum, the Fourth Amendment demands that there be some additional extrinsic evidence of the informant’s trustworthiness before the warrant will issue. A contrary result would, in my estimation, make a mockery of Aguilar-Spinelli’s veracity requirement.

Accordingly, I would hold that the affidavit submitted by Officer McConville in support of the arrest warrant chalenged in the instant appeal was constitutionally defective for lack of factual allegations sufficient to demonstrate the trustworthiness of the informant Boone. The judgment *24 of the Court of Special Appeals should therefore have been reversed with instructions to remand to the Circuit Court for Baltimore County for a new trial.

Judge Eldridge authorizes me to state that he joins this opinion.