Malcolm v. State

ROBERT M. BELL,

dissenting.

I dissent. I believe Illinois v. Gates, 462 U.S. 213 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983) applies only in the search warrant context and, further, that the information possessed by the police in this case did not constitute probable cause even under the totality-of-the-circumstances test enunciated in Gates . 1

1. Applicability of Gates to Warrantless Searches

The majority holds that the totality-of-the-circumstances test applies equally to without warrant cases and with warrant cases. I find the rationale for this holding to be totally unpersuasive. The Court of Appeals of New York, presented with the identical question, reached the opposite result. The Court explained its reasons for doing so:

Gates involved a search warrant and the Court’s reasoning relies heavily on the fact that the determination of probable cause was made by a detached and neutral magistrate. Thus, a large part of the Court’s justification for adopting the new rule rests upon its view that, in assessing probable cause, the appellate courts prefer determinations made by a magistrate issuing a warrant over those based upon the “hurried judgment” of law *447 enforcement officers engaged in investigating crime____ The importance of that consideration was emphasized by the language of the Supreme Court opinion which reaffirmed prior decisions stating that the use of warrants should be encouraged, by several statements that reviewing courts should accord great deference to the magistrate’s determination of probable cause ..., and by references to the protections afforded by limitations on a magistrate’s power to approve a warrant____ Noting that warrant applications are commonly drafted by non-lawyers who should not be hobbled by technical rules ..., the court stated that applications are to be interpreted in a commonsense, not a hypertechnical manner. Finally the court noted that warrants were to be encouraged because the use of search warrants greatly reduces the perception of unlawful or intrusive police conduct by insuring the person whose property is being searched or seized of the lawful authority of the executing officer and the limits of his power____

These several arguments suggest that the Supreme Court may not apply the rule to situations involving warrantless arrests and searches and, as a matter of State constitutional law, we decline to so apply it. (citations omitted)

People v. Johnson, 66 N.Y.2d 398 , 497 N.Y.S.2d 618, 623-24 , 488 N.E.2d 439 (1985). 2 See 1 W. LaFave, Search and Seizure, 2d ed. (1987), § 3.1(c), at 550-51. I agree with this analysis.

Neither the result reached in Gates , nor the analysis employed, can be divorced from the context in which the *448 case arose. Not only did the case involve a search warrant, but its rationale hinged largely, if not entirely, on that fact. Implicit in Gates is the recognition that different considerations obtain when a warrant permitting the search is issued prior to the search than when a search is conducted without a warrant. In the former, a detached, impartial magistrate makes a pre-intrusion probable cause determination; in the latter, the police make it. Where, therefore, the determination is made by a magistrate before the search is conducted, there is a significant interest to be served by deferring to that determination and by crediting, not condemning, after the fact, the action taken pursuant to it. See e.g. United States v. Leon, 468 U.S. 897 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984). That interest, recognized in Gates , relates to the protection of individuals from unwarranted and unjustified police invasions of privacy and the desirability of “reducfing] the perception of unlawful intrusive police conduct.” 462 U.S. at 236 , 103 S.Ct. at 2331 . Where, on the other hand, the decision is made by the police, with the result that the neutral and detached magisterial determination must be made after the fact—after the intrusion—deferral to that determination does not further that important interest. Moreover, because the police did not seek authorization in advance of acting, there is no justification for treating this action as if it had been so authorized. It was in this context that the Court re-evaluated the existing test for reviewing pre-intrusion probable cause determinations, and it was in this context that the Court fashioned the totality-of-the-circumstances test. It is understandable and natural, therefore, that the Court focused heavily on the warrant preference, deference to the magistrate’s determination, and the perception of the legitimacy which police action pursuant to a warrant engenders. 3

*449 Before it was cited as one of the reasons for abandoning the two-prong test of 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), it was well settled that the use of search warrants is preferred to warrantless searches and seizures. United States v. Ventresca, 380 U.S. 102, 109 , 85 S.Ct. 741, 746 , 13 L.Ed.2d 684 (1965); 1 W. LaFave, Search and Seizure, 2d ed. (1987) § 3.1(c), at 548. As stated in Ventresca , “Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” Because the warrant preference was one of the reasons for adopting the totality-of-the-circumstanees test and, given the context in which Ventresca was cited in Gates , it is safe to assume that the warrant preference retains its vitality even after Gates . The effect of the preference is “a subtle difference between the probable cause required when there is no warrant and that required when there is.” LaFave, § 3.1(b), at 549. Thus, conceding that some of the reasons for abandoning the Aguilar—Spinelli two-prong test, may apply across the board—to with-warrant searches and without-warrant searches, it does not follow, as the majority would suggest, that the Gates test must necessarily apply to both situations. Nor is the majority’s observation that “It is contrast, not similarity, that gives meaning to the sentence, ‘If the affidavits ... are subjected to the [.Aguilar—Spinelli ] scrutiny ..., police might well resort to warrantless searches ...’,” conclusive or even particularly persuasive. The converse of that observation is at least equally, if not more compelling—if the standard of review—and that is what we are talking about—were the same, there would be *450 no incentive for the police to resort to the warrant at all. Without such incentive, the Gates rationale for abandoning Aguilar—Spinelli would amount to no more than empty rhetoric, a position which, I am sure, the majority would not support.

' The majority in Steinian fashion 4 asserts that “Probable cause is probable cause is probable cause.” They are, of course, correct. This does not mean, however, that probable cause determinations must, in all situations, be reviewed pursuant to only one standard. While there is only one concept of probable cause, as Ventresca teaches, the interests to be served may justify application of different standards of review. See also Whiteley v. Warden of Wyoming Penitentiary, 401 U.S. 560, 566 , 91 S.Ct. 1031, 1044 , 28 L.Ed.2d 306 (1971) (“the standards applicable to the factual basis supporting the officer’s probable cause assessment at the time of the challenged arrest and search are at least as stringent as the standards applied with respect to the magistrate’s assessment.” 5 ) Another fallacy in the majority’s view is that probable cause in this case is so clear that a, to use the majority’s term, “tie breaker” is not required. On the contrary, in my view, this is, in fact just the sort of case in which the warrant preference should be applied.

Having concluded that Gates applies only to with-warrant cases, I would apply the Aguilar—Spinelli analysis in this without-warrant case. That test would produce a clear result: probable cause to effect the search simply did not exist.

*451 2. Probable Cause under Totality-of-the-Circumstances

The totality-of-the-circumstances test replaced the Aguilar—Spinelli two-prong test 6 by mandating that

... The issuing magistrate ... simply ... 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 of a crime will be found in a particular place [, a]nd [that] ... a reviewing court ... simply ... ensure that the magistrate had a “substantial basis for ... concluding]” that probable cause existed.

Gates, 462 U.S. at 238 , 103 S.Ct. at 2332 , quoting Jones v. United States, 362 U.S. 257, 271 , 80 S.Ct. 725, 736 , 4 L.Ed.2d 697 (1960). The two prongs of the Aguilar-Spinelli test were reduced to “relevant considerations in the totality of the circumstances analysis”, not to be analyzed separately. 462 U.S. at 233 , 103 S.Ct. at 2329 . Even under this test, however, sufficient information as to probable cause must be presented to the magistrate, whose determinations “cannot be a mere ratification of bare conclusions of others.” 462 U.S. at 239 , 103 S.Ct. at 2333 . Thus, although the totality-of-the-circumstances test was intended to, and did, effect a substantial change in probable cause analysis from that espoused by Aguilar-Spinelli, see Massachusetts v. Upton, 466 U.S. 727 , 104 S.Ct. 2085 , 80 L.Ed.2d 721 (1984), it does not require every probable cause determination by a magistrate to be adopted or affirmed by the reviewing court.

*452 The tip in the instant case fails to pass muster even under the totality-of-the-circumstances. Assessed in light of the relevant considerations of veracity and basis of knowledge, it is clear that the tip contains no clue as to the reliability of the information or the tipster, or, for that matter, the basis of the tipster’s knowledge. The detail provided, consisting only of the assertion that one Ricky Lewis had gone to Tennessee and obtained chemicals for a “cook of PCP”, which would be ready for street distribution on August 20, that Lewis lived in a red brick apartment on Dalmar Street; that his girlfriend’s name was Vicky; and that Lewis drove her car, a bright yellow Mustang with the door molding off the left front door, may not be considered self-verifying; it was just the sort of information that one may obtain from casual rumor or gossip. Moreover, the tipster’s reliability had never previously been tested; he had given no information in the past, and he was from the criminal milieu. Thus, although independent police work confirmed that Lewis lived on Dalmar Street, and that he drove a car meeting the description given by the tipster and listed to a Victoria Whitten, and that he had previously been convicted of a felony charge involving PCP, unlike in Draper v. United States, 358 U.S. 307 , 79 S.Ct. 329 , 3 L.Ed.2d 327 (1959) and in Gates , that information did not enhance the tipster’s veracity or basis of knowledge.

Nor does the additional observations and information developed by the police, in combination with the tip, amount to probable cause. The observations and information included the following. Appellant and another man, neither of whom was mentioned in the tip, were seen in the company of Lewis. When observed, Lewis was in possession of a blue and white vinyl suitcase. Both appellant and the other man were later determined to have a prior history of PCP involvement, and it was learned that appellant had, at one time, lived in Tennessee. 7 Continuing their investigation, *453 the police learned that the pickup truck driven by appellant was listed to a person having a different first name than that used by appellant to register at his motel.

Important to the majority’s conclusion that probable cause for the search existed are police observations of the driving patterns of appellant and Lewis. The first such observation occurred shortly after observing appellant for the first time. While being followed by the police, appellant made an abrupt U turn; Lewis was a passenger in appellant’s pickup truck. The second occurred in the early morning hours of August 20, the day when the cook of PCP was scheduled to be ready for street distribution. At that time, the pickup truck, driven by appellant, and the Mustang, driven by Lewis, were observed to engage in what the police characterized as “counter-surveillance” driving.

Finally, later on the morning of the search in question, appellant was seen leaving his motel and traveling to Dalmar Street, where he picked up Lewis. Before leaving Dalmar Street, appellant put a blue and white plastic cooler in the truck and also was in possession of the blue and white vinyl suitcase, earlier seen in Lewis’ possession. Appellant and Lewis returned to the motel and appellant checked out. His room having been searched and found to be “clean”, the police followed the truck for about 30 minutes before stopping it and executing the search. Found in the blue and white vinyl suitcase were large plastic bags containing parsley treated with PCP.

From these circumstances, the majority concludes that there was probable cause for the search. It engages in a complex and intricate (one might even say tortured) analysis to reach the desired result: The blue and white vinyl suitcase, when first observed in Lewis’ possession becomes *454 a vehicle for transporting chemicals; 8 that appellant was registered as “Jeff Malcolm” and the truck he was driving was registered in the name of a Malcolm with a different first name takes on an “elusive fluidity”, common to the criminal milieu; the U turn executed by appellant becomes “possibly evasive driving” and takes on a suspicious “coloration”, because “executed by a known underworld character with a history of narcotics involvement”; the “bizarre” driving pattern is viewed in the time frame of when the “cook” is to be available for distribution; and the fact that appellant checked out of his motel room, accompanied by Lewis and with the blue and white vinyl suitcase in the truck, on the morning when the cook was to be ready for street distribution, becomes the link which ties all of the previous observations together.

I do not agree. I concede that the totality-of-the-circumstances justifies suspicion. It does not, however, justify a finding of probable cause. Contrary to the majority’s contention, the corroboration of the non-criminal details supplied by the informant are not “quantitatively and qualitatively comparable to that found adequate by the Supreme Court in Draper____” Draper must be viewed in context. In Draper , there was no issue as to the veracity of the informant; the informant was a known quantity. Moreover, there was a greater nexus between the tip of criminal activity and the details which were verified—the observations were made at a train station, the terminal point of Draper’s trip to acquire narcotics, 358 U.S. at 309 , and the details were the kind that suggested personal knowledge or, at the least, inside information. In this case, there is absolutely nothing in the details given by the informant which would, independent of the veracity of the informant, suggest any violation of the law. And, consequently, verification of those details had no tendency to establish that the *455 balance of the tip was accurate. Significant in this regard is the failure of the tipster to mention appellant as playing a role, either in delivery or distribution of the PCP, or to tell us when Lewis went to Tennessee or when he returned. The police investigation did not fill in the gaps.

Past criminal behavior may be a suspicious factor to be considered in the probable cause equation; however, it cannot, in and of itself, constitute the sole basis for a finding of probable cause. Birds of a feather do flock together. It is not surprising then that former convicts will have friends who are former convicts. The mere fact that they get together does not lead inexorably to the conclusion that a plot to engage in criminal conduct is afoot. One may be suspicious that this is so, but that is not enough to constitute probable cause.

Perhaps the most difficult aspect of this case is the “bizarre” driving pattern observed by the police on the morning of August 20, the very morning that the “cook” was to be ready for street distribution. Despite their conclusion that this was counter-surveillance driving and the obvious significance they attributed to that fact, no search was conducted at that time. On the other hand, when appellant was stopped and searched later that morning, after having been followed for some 30 minutes, no counter-surveillance driving or suspicious conduct of any kind had been observed. Assuming that the police were correct, that appellant and Lewis were engaging in counter-surveillance driving and that that fact, taken in conjunction with their previous observations and the information which they possessed would have given the police probable cause to conduct a search, it does not follow that probable cause existed later when no such conduct was witnessed. It is far more probable that the disposal of contraband would follow closely upon the suspicious conduct observed.

The bottom line is that all we have in this case are a series of police observations, coupled with an informant’s tip and information gathered as a result of each, which *456 gives rise to a suspicion that Lewis and appellant are engaged in illicit activity. Neither the observations alone or in combination with the tip and the other information rise to the level of probable cause. If, as the majority suggests, probable cause exists in this case, then Mr. Justice White is right, the totality-of-the-circumstances test, being no more than a device by which reviewing courts are required to rubber stamp even the most implausible probable cause determinations made by a magistrate, represents “an eviseration of the probable cause standard.” Gates, 462 U.S. at 272 , 103 S.Ct. at 2350 (White, J. Concurring). Not even Gates purports to require that result.

. Finding it to be irrelevant, the majority does not address appellant’s contention that he was arrested prior to the search and discovery of contraband.

. I am aware, as the majority is so quick to point out, that almost all of the post Gates cases addressing the question have concluded that the totality-of-the-circumstances test applies to with-warrant and without-warrant searches alike; however, I am also aware that it is the quality, not the quantity, of precedent that is dispositive. Johnson is qualitatively better reasoned.

I am also aware that Johnson relied on State constitutional law. This does not in any way undermine the persuasiveness of its analysis or its conclusion that the Supreme Court may not apply the test to without-warrant cases.

. It is also significant that the Court requested briefing of and argument on the following question:

[WJhether the rule requiring the exclusion at a criminal trial of evidence obtained in violation of the Fourth Amendment ... should to any extent be modified, so as, for example, not to require the *449 inclusion of evidence obtained in the reasonable belief that the search and seizure at issue was consistent with the Fourth Amendment. (citation omitted)

462 U.S. at 217 , 103 S.Ct. at 2321 .

. Gertrude Stein observed, in the poem, "Sacred Emily', that "Civilization began with a rose. A rose is a rose is a rose is a rose." See The Third Rose, Gertrude Stein and her World by John Malcolm Brinnen, Introduction, p. x; Bartlett’s Quotations.

. It is surprising that some of the without-warrant cases following Gates cite to Whiteley as support for doing so. See e.g. United States v. George Reed, 733 F.2d 492 , 502 n. 4 (8th Cir.1984); Wisman v. Com., 667 S.W.2d 394, 397 (Ky.App.1984).

. Under Aguilar-Spinelli, the magistrate had to be informed of “(1) some of the underlying circumstances from which the informant concluded that the incriminating evidence was located where it was claimed to be and (2) some of the underlying circumstances from which the affiant concluded that the informant, whose identity need not be disclosed, was ‘credible’ or his information ‘reliable’ ”. Potts v. State, 300 Md. 567, 571 , 479 A.2d 1335 . See Aguilar, 378 U.S. at 114 , 84 S.Ct. at 1514 .

. The majority suggests that appellant’s last known address was in Tennessee. The basis for this conclusion is unclear. The majority *453 acknowledges that the motel at which appellant was staying showed appellant’s address as McVal, Virginia.

. This is most interesting. The informant said that the chemicals had been obtained from Tennessee; the informant did not provide, and the record does not reflect, any time frame to which his statement refers.