holding that magistrate had substantial basis for determining that probable cause existed where affidavit, which recited information received from anonymous tip from informer in February 2007 regarding “narcotic activity” on unspecified date, included several details about defendant and residence that were later confirmed; officer found residue that field-tested positive for marihuana in garbage can located on street directly in front of residence on March 1, 2007; officer found marihuana stems, seeds, and residue in garbage can on March 5; and search warrant was issued on March 6 and executed on March 7
How later courts described this case
- holding that magistrate had substantial basis for determining that probable cause existed where affidavit, which recited information received from anonymous tip from informer in February 2007 regarding “narcotic activity” on unspecified date, included several details about defendant and residence that were later confirmed; officer found residue that field-tested positive for marihuana in garbage can located on street directly in front of residence on March 1, 2007; officer found marihuana stems, seeds, and residue in garbage can on March 5; and search warrant was issued on March 6 and executed on March 7
- stating that information provided to the police by an anonymous informant ―must contain some indicia of reliability or be reasonably corroborated by the police before it can be used to justify a search. The information corroborated must provide a substantial basis for crediting the informer's hearsay; corroboration of details that are easily obtainable at the time the information is provided will not support a finding of probable cause‖
- stating that the magistrate could have reasonably drawn an inference that marijuana residue found in a garbage can at the residence in question originated with that residence because ―under the ‗doctrine of chances,‘ it was objectively unlikely that a person or persons unconnected to the . . . residence would have placed mari[j]uana in that residence‘s garbage can twice within a five-day period‖
- concluding that warrant contained sufficient facts to establish probable cause when anonymous informant had seen drugs inside the house, residue from house garbage can tested positive for marijuana, and marijuana stems were found in garbage can in front of house
Written by the judges who cited it.
The opinion
MEYERS, J.,
dissenting.
Finding marijuana stems, seeds, and residue in the trash does not provide probable cause to search the adjacent house for drugs. While remnants of drugs in the trash may indicate that someone possessed drugs in the past, it does not show current possession of drugs and certainly is not an indicator that there will be drugs in the house. Drug residue in the trash is equivalent to someone saying “I used to do drugs,” which may show prior possession, but does not provide probable cause to arrest the person or search their home. *704 Even if the drag residue in the trash did provide probable cause to arrest for possession, that still doesn’t give probable cause to search the house for drugs. 1 There must be articulable facts sufficient to believe that there are drugs in the house in order to get a warrant to search the house, and drug residue in a trash can doesn’t rise to that level.
The anonymous tip from someone saying that he or she had observed cocaine in the house in the past was also not sufficient to provide probable cause to issue a search warrant for the house. Appellant correctly argued that there were not adequate facts to inform the magistrate how the alleged informant obtained his or her information and not enough information to establish the credibility or reliability of the alleged informant.
I agree with Appellant and with the court of appeals that the anonymous informer’s tip did not give the magistrate a substantial basis for believing that drugs would be found in the house. I disagree, however, with the court of appeals’s determination that the drag residue found in the searches of the trash did establish probable cause to search the house. I understand that this is a close case, but the tie goes to the runner.
I respectfully dissent.
. If someone is found with drugs in their car and they park their car in a garage attached to their house, that does not give probable cause to search the house for more drugs.