# State v. Hawkins > Supreme Judicial Court of Maine · January 22, 1970 · 261 A.2d 255 URL: https://www.frixlaw.com/law-library/cases/9731087 ## Case - **Full name:** STATE of Maine v. Linda A. HAWKINS Et Al. - **Court:** Supreme Judicial Court of Maine - **Decided:** January 22, 1970 - **Citations:** 261 A.2d 255; 1970 Me. LEXIS 224 - **Precedential status:** Published - **Opinion:** Concurrence by Dufresne - **Judges:** Williamson, Webber, Marden, Dufresne, Weatherbee, Pomeroy - **Cited by:** 30 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9731087 ## Opinion text DUFRESNE, Justice (concurring in result). I concur fully that the search of the Shaw cottage in Dedham, in the County of Hancock, cannot be justified as a search incidental to a lawful arrest. On the other issue of the sufficiency of the affidavit as the basis for a finding of probable cause in support of the issuance of the instant search warrant, I concur that the reference affidavit fails the constitutional test established by the United States Supreme Court in Aguilar v. Texas, 1964, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 , and reiterated in Spinelli v. United States, 1969, 393 U.S. 410 , 89 S.Ct. 584 , 21 L.Ed.2d 637 . I further maintain that the affidavit would have been constitutionally deficient even if it had recited the officer’s personal observation that a party was actually in progress at the Shaw cottage at the time of the application for the warrant. The informer’s tip in this case, combined with *264 the personal knowledge of the affiant that the predicted party was taking place, would merely bring it within Spinelli factual dimensions, but still short of the Draper situation. In Draper, 1959, 358 U.S. 307 , 79 S.Ct. 329 , 3 L.Ed.2d 327 , where the legality of the search and seizure depended on the existence of probable cause in support of an arrest without warrant, the evidence at the hearing on the motion to suppress established that the informant was a “special employee” of the Bureau of Narcotics who had been in the field for the Bureau to investigate and give information respecting illegal narcotic traffic for some six months. His reported information regarding violations of the narcotic laws, for which he was paid, was stated under oath always to have been accurate and reliable. The testimony further disclosed that the informant had reported to the Bureau’s narcotic agent, prior to the tip concerning Draper’s Chicago trip to secure heroin, that Draper had taken up residence at a stated address in Denver and “was peddling narcotics to several addicts” in that city. This evidence, even though not stated specifically to have been obtained by the informer through personal observation and surveillance, indicates at least that Mr. Draper was under investigation by the undercover man and had been to some degree connected with the illegal narcotic traffic prior to the reported information which resulted in his arrest and search. The affidavit in this case does not disclose any alleged previous activity by the Shaws or at the Shaw cottage or by any of the guests found therein on December 2, 1968; without any supporting data it recites the informant’s report that on December 2, 1968 there were or would be the described narcotics at the cottage in preparation for a party which would be held that evening. There is no description of the persons who made the trip to the cottage to bring in the narcotics as present in Draper. There is no suggestion of any previous party at the Shaw cottage where narcotics were alleged to be present. Neither the affiant nor the informer aver any connection between the Shaws, their prospective guests and the unidentified parties to an alleged sale of marijuana in the Bangor Auditorium more than a month before, nor with any students of the Wasookeag School in Dexter, the Bangor sale being offered in support of the reliability of the informant. Even with sworn testimony that people were actually gathering at the Shaw cottage on the evening of December 2, 1968 for the obvious purpose of attending a party, such evidence would not have been sufficient to bring the case within the Draper rule. Furthermore, the affidavit’s failure to couch in positive terms the informant’s report respecting the actual or prospective presence of drugs at the Shaw cottage at the time the information was given, due most probably to an accidental omission of the verbs “were” or “would be”, coupled with the fact that the date of the report is left to inference, presents a substantial inadequacy in time averments which was condemned in Rosencranz v. United States, 1966, 1st Cir., 356 F.2d 310 . Even if the affidavit had contained the affiant’s knowledge that a party was actually being held at the Shaw cottage, the magistrate, in the face of such deficiency in positiveness and time-schedule of events, had to reach out, by an exercise in surmise or guess, for external facts with which to build inference upon inference, in order to establish the reasonable basis for his belief that narcotics were probably at that party. The officer-affiant must set forth the basis for the magistrate’s inferences with enough precision so that, if the affidavit is subjected to an attack for lack of probable cause at a subsequent hearing, the trial judge will be ruling on the reasonableness of inferences based on the same underlying circumstances as confronted the magistrate in issuing the warrant. Rosencranz, supra. Justification for this rule is bourne out in the instant case, since the officer testified at the hearing on the motion to suppress that the information was not given on the day of his application for the warrant, but on the previous day, and the informer told *265 him that the narcotics would he there, and not that they were there at the time of the report. The affidavit failed to set forth any of the underlying circumstances necessary to enable the magistrate independently to judge of the validity of the informant’s conclusion that there were narcotics in the Shaw camp at the time of the party. It is, of course, possible for an informant’s bare conclusion as we have in the instant case to be buttressed by other corroborating information from an independent source, which in combination may provide probable cause for the issuance of a search warrant. But the affidavit in this case discloses no other probative information from which to infer that narcotic drugs would be present at the Shaw place on December 2, 1968; the affiant’s statement certifying the fact that persons were congregating at the Shaw cottage for a party, even if present in the affidavit, would not have furnished that necessary corroborative information to salvage an otherwise inadequate affidavit. The magistrate must be presented facts which tend to establish a relationship between the premises or persons to be searched and the crime to be detected from which a probability of criminal activity may be inferred. Where the accuracy of the information received from a named or confidential informant is not substantiated from other sources known or stated to be accurate or from corroborative facts known or discovered by the affiant personally or from other official or reliable report, the officer-affiant must, under Aguilar and Spinelli , further present in his affidavit a substantial factual basis for crediting the informant’s story. The credibility of an informer may be shown in different ways. The most common allegation accepted as proper to substantiate reliability is that the informer on past occasions where he furnished information was instrumental in procuring narcotic convictions. Similar acceptability has been extended to such reports where the affiant stated that the data received served to induce trained officers to make arrests for narcotic violations. People v. Rogers, 15 N.Y.2d 422 , 260 N.Y.S.2d 433 , 208 N.E.2d 168 ; People v. Cruz, 1966, D.C. of App., Cal., 244 Cal.App.2d 137 , 53 Cal.Rptr. 354 . The affiant’s reasons for believing a named informant’s report were accepted as sufficient where 3 named reputable citizens were said to have vouchsafed for his truthfulness. Sessoms v. State, 1968, 3 Md.App. 293 , 239 A.2d 118 . The New York Court, in People v. Montague, 1967, 19 N.Y.2d 121 , 278 N.Y.S.2d 372 , 224 N.E.2d 873 , cert. denied 389 U.S. 862 , 88 S.Ct. 116 , 19 L.Ed.2d 130 , sustained a search warrant where the affidavit in sufficient detail established that the informer was speaking with personal knowledge and relating his own participation with the suspects in their illegal activities. The credibility standard was said to have been met. The instant affidavit is manifestly inadequate to support the affiant’s statement of reliability and credibility. The informer’s alleged ability to obtain marijuana and L.S.D. on some undisclosed single occasion, without relation to time, place or person, had no probative value tending to indicate that the informer should be believed respecting the tip relating to the Shaw cottage any more than if he had merely shown the officer a counterfeit bill. Evidence of the possession of marijuana and L.S.D., without more, bears no relation to the truthfulness of the informer’s tale. This Court would have to take notice that the illegal drug market is not confined to the area of Ded-ham, Maine. The affiant’s statement concerning the informer’s tip of a sale of L.S.D. at the parking area of the Bangor Auditorium in the City of Bangor aids in no way to establish the credibility to be given the tipster because of it, since the accuracy of the information is made to depend entirely upon the statement of an unidentified student whose reliability is completely unsupported. If the hearsay originating from the informant is insuf *266 ficient for want of supporting credibility-data, how can it be buttressed by additional hearsay from an unidentified source whose reputation for truth and veracity is also unknown. The affidavit in this case fails to present a proper factual setting whereby the officer-affiant had good reason to believe the statement of the informer, either from past experience or other stated information in his possession. I do fully appreciate that disclosure of specific information- about the informant’s source of knowledge or about other eviden-tiary data which the informer may have possessed and which, if presented to the magistrate in the affidavit, might have made some showing of a nexus between the Shaws or their invited guests and the alleged parties to the Bangor Auditorium sale, may practically reveal his identity and thus reduce the life expectancy of police undercover agents to the detriment of public order and of effective law enforcement. Yet constitutional requirements of probable cause must be met to the satisfaction of the magistrate and not left to police judgment, even in extraordinary circumstances. Where disclosure of the informant’s sources of knowledge to the extent necessary to obtain a warrant might reveal his identity and endanger his life, the police must secure independent corroborative evidence by further investigation before applying for the warrant. A good faith effort on the part of the law enforcement authorities in the use of their detective expertise and crime-probing equipment and personnel to confirm their informer’s tips with independent corroborative evidence instead of the hurried execution of arrests upon unsupported information of untried informants will go a long way to carry out their duties of ferreting out crime within the constitutional directives. As stated in People v. West, 1965, D.C. of App., 2d Dist., Cal., 237 Cal.App.2d 801 , 47 Cal.Rptr. 341 : “We are confident that in most cases the courts and the police can achieve a common perspective in law enforcement which keeps in view both the constitutional protection of the individual against society and the constitutional protection of society against the lawless individual, and which sufficiently focuses on both targets so that neither drifts from sight.” I conclude that the instant affidavit was fatally defective in its failure, first, to furnish sufficient underlying circumstances from which the informer in this case concluded that our laws against possession of narcotic drugs would be or were being violated at the Shaw cottage and that narcotic drugs to be searched for could be found there, and secondly, to recite adequate factual reasons which enabled the officer-affiant to conclude that the informer was credible and his information reliable. State v. Cadigan, 1969, Me., 249 A.2d 750 , at page 756. For these reasons, I concur in sustaining the appeal. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9731087. Public record. Not legal advice.