Commonwealth v. Upton

*578 Lynch, J.

(dissenting, with whom Nolan, J., joins). In its opinion, the majority reduces the United States Supreme Court’s recent decision in Illinois v. Gates, 462 U.S. 213 (1983), to a mere elaboration upon the “two-pronged test” of Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969), despite the clearly articulated judgment of the Court “that it is wiser to abandon the [Aguilar/Spinelli test]”. Illinois v. Gates, supra at 238 . I dissent from that portion of the opinion. As the majority views it, “the Gates opinion deals principally with what corroboration of an informant’s tip, not adequate by itself, will be sufficient to meet probable cause standards.” Supra 568. Significantly, the majority persists in making the initial decision as to the adequacy of a tip according to the specific legal tests of Aguilar and Spinelli , which stipulate that an affidavit must present: “(1) some of the underlying circumstances from which the informant concluded that the contraband was where he claimed it was (the basis of knowledge test), and (2) some of the underlying circumstances from which the affiant concluded that the informant was ‘credible’ or his information ‘reliable’ (the veracity test).” Supra at 566. The majority seeks to address recurrent criticisms of this test, that such a precise set of legal rules is as ill-suited to the police officer in the field as it is to the magistrate trying to assess a complicated fact situation, by the corrective gloss of corroboration: if either “prong” of the test is dealt with inadequately in the affidavit, independent corroboration may be used to fill in the gaps. Hence a technical exception is carved out of the technical legal standards of Aguilar and Spinelli .

I believe that Illinois v. Gates, supra, properly read, means more than this. At its foundation, the majority opinion in Gates derives from the observation that “probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.” Id. at 232 . This recognition of the difficulty of fashioning uniform legal criteria applicable to diverse factual situations in *579 the search-and-seizure context is reflected in the adoption by the United States Supreme Court of a “totality-of-the-circumstances” standard, “which permits a balanced assessment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant’s tip (emphasis added).” Id. at 234 .

The most important aspect of this new standard is a shift in emphasis from the reviewing court to the magistrate. If the latter has a “substantial basis” for finding the existence of probable cause to search, this is enough: “after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de nova review.” Illinois v. Gates, supra at 236 . I submit that this new orientation toward the “practical, commonsense decision” of a magistrate represents a significant change from the previous emphasis placed on compliance with the rules set forth in Aguilar and Spinelli. Id. at 238 . The change is for the better; the determination of probable cause, whether by a police officer or a magistrate, should be governed by “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Illinois v. Gates, supra at 231 , quoting Brinegar v. United States, 338 U.S. 160, 175 (1949).

In the instant case, faithful application of the “totality of the circumstances” standard announced by Gates , rather than a “two-pronged test” adjusted by a corroboration feature, would have upheld the magistrate’s finding of probable cause to issue a warrant. An unannounced search of the motel room of one Kelleher yields property stolen in recent local robberies. Three hours later, a telephone call is received. The caller, whose identity is admittedly unknown, reveals knowledge of the motel search, links the defendant to the search by saying that more stolen items (which are identified and correspond to objects taken in the robberies) which the defendant bought from Kelleher are located in the defendant’s mobile home, and communicates the exigency of these circumstances by informing the police that the defendant knows of the motel room search and is plan *580 ning to move the stolen items. Whether or not the caller actually is Lynn Alberico, the caller is close enough to the defendant to know his girl friend’s name and his address, and to have been inside the defendant’s mobile home and to have actually seen the “stolen stuff.” The informant appears credible. The location of the mobile home is verified, an explanation is provided for the abrupt and incomplete nature of the information provided (the caller fears retaliation), this explanation also supplies a motive (revenge), and, most importantly, the timing of the call is too close to the search of the motel room to be a mere fortuity. All of this information was provided in the affidavit.

I agree with the majority that if the affidavit had included additional facts that were known to the police, it “would have been measurably aided.” Supra at note 8. However, I believe that the “totality-of-the-circumstances” standard announced by Gates was tailor-made for circumstances such as these. Judging the affidavit solely on its face, “there [was] a fair probability that contraband or evidence of a crime [would] be found” in the mobile home. See Illinois v. Gates, supra at 238 .

I see no conflict between this interpretation of the mandate of Gates , which simply involves taking the decision at face value, and either art. 14 of the Massachusetts Declaration of Rights or G. L. c. 276, § 2B. The language of the Fourth Amendment to the United States Constitution has been commonly thought of as paralleling that of art. 14, and indeed the structure of the latter has been viewed as occupying an important role in the drafting of the Fourth Amendment. Harris v. United States, 331 U.S. 145, 158 (1947) (Frankfurter, J., dissenting). See Commonwealth v. Cundriff, 382 Mass. 137 , 144 n.11 (1980), cert. denied, 451 U.S. 973 (1981); Commonwealth v. Wilkins, 243 Mass. 356, 360 (1923). There appears to be no logical basis, and no support in the case law, for interpreting the term “cause” in art. 14 differently from the “probable cause” requirement of the Fourth Amendment. 1 I also find no support for the *581 defendant’s argument that the “two-pronged” test of Aguilar and Spinelli is “engrafted” into art. 14.

I similarly find no merit in the defendant’s contention that G. L. c. 276, § 2B, as amended by St. 1965, c. 384, should be read to require application of the “two-pronged test.” The operative language of § 2B instead implies just the opposite, namely that determination of the sufficiency of an affidavit should be based on a totality of the circumstances analysis: “[An] affidavit shall contain the facts, information, and circumstances upon which [the person seeking a search warrant] relies to establish sufficient grounds for the issuance of the warrant.” The recommended form of an affidavit, which is delineated in the statute, contains a listing of the elements to be contained in the document, and the list does include information relating to the basis of knowledge and reliability of the information source. The inclusion of these factors in the probable cause determination is again consistent with the Gates decision, which emphasized that while establishing these two “prongs” might not be telling in every case, their existence certainly “illuminate^] the commonsense, practical question” of probable cause facing a magistrate. Illinois v. Gates, supra at 230 . The language of G. L. c. 276, § 2B, in no way suggests, however, that establishing both “prongs” of Aguilar and Spinelli is a necessary precondition for the adequacy of an *582 affidavit. The defendant’s assertion that the statute reflects the approach of Aguilar and Spinelli appears even less likely when one considers that § 2B was signed into law on June 16, 1964, St. 1964, c. 557, and Aguilar v. Texas, supra, was decided on June 15, 1964, one day earlier. Spinelli v. United States, supra, in turn, was decided five years later.

Guided by the “totality of the circumstances” analysis adopted by the United States Supreme Court’s decision in Illinois v. Gates, 462 U.S. 213 (1983), I would hold that the magistrate had a substantial basis for concluding that probable cause existed for the search of the defendant’s mobile home.

It is true that on various occasions we have acknowledged that art. 14 could conceivably be applied to searches more strictly than the Fourth *581 Amendment; however, this hypothetical situation has not yet arisen. Commonwealth v. Ortiz, 376 Mass. 349, 358 (1978). Commonwealth v. Nine Hundred and Ninety-two Dollars, 383 Mass. 764, 770-771 (1981). Commonwealth v. Sheppard, 387 Mass. 488 , 508 & n.22 (1982), cert. granted, 463 U.S. 1205 (1983). Cf. Selectmen of Framingham v. Municipal Court of the City of Boston, 373 Mass. 783, 786-788 (1977) (violation found of both State and Federal Constitution). Although other provisions of the Massachusetts Constitution have been interpreted to afford greater protection than the United States Constitution in a limited number of areas, each area has been characterized by a significant divergence between the language and construction of the respective Federal and State provisions. Commonwealth v. Soares, 377 Mass. 461 , cert. denied, 444 U.S. 881 (1979) (jury selection). District Attorney for the Suffolk Dist. v. Watson, 381 Mass. 648 (1980) (death penalty). Moe v. Secretary of Admin. & Fin., 382 Mass. 629 (1981) (abortion).