Record and brief — Illinois v. Gates
Supreme Court brief1983
Ask Donna
What actually matters in this document.
Text
-wontad
| Office -Supreme Court, U.S.
FILED
AUG 25 1981
THE STATE OF ILLINOIS,
Petitioner,
LANCE GATES anp SUSAN GATES,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF ILLINOIS
TYRONE C. FAHNER,
Attorney General of the State
of Illinois
Metsourne A. Nok, Jr.
Assistant Attorney General
188 West Randolph Street
(Suite 2200)
Chicago, Illinois 60601
J. MicHakt Fitzsimmons Attorneys for Petitioner
State’s Attorney for DuPage County
Tuomas L. KNIGHT
BarBARA A. PREINER
Assistant State’s Attorneys
207 South Reber Street
Wheaton, Illinois 60187
Of Counsel
A
Printed by the Authority of the State of Illinois — 8-25-81
QUESTION PRESENTED FOR REVIEW
Whether detailed information provided to police by an
anonymous informer, coupled with government corrobora-
tion of the information, provide probable cause for the is-
suance of a search warrant?
INDEX
PAGE
END N Shoe cucdanvearcinedee sets os i
EE ono 6660s 6-0sveghadedayharest wees l
EE Vent on boeecondsndveweengenaeae vance 2
GD svn a cccncccveessccccese 3
Reasons For Granting the Writ:
Detailed information provided to police by an
anonymous informer, coupled with government
corroboration of the information, established
probable cause for the issuance of a search war-
PER cia codenabessardaveteucevae te tsesves 6
SD 6. 56.405 66 0 OV es ee rddeedeanees césenee 18
Appendix A, Supreme Court Opinion ............ la
Appendix B, Appellate Court Opinion............ lb
AUTHORITIES CITED
CONSTITUTION PAGE
United States Constitution amendment IV ..... 3
CASES
Beck v. Ohio, 379 U.S. 89, 13 L.Ed.2d 142, 85
et, ED. C64 a4 dwhbekennkena i's 7
McCray v. Iliinois, 386 U.S. 300, 18 L.Ed.2d
eee ere 7
United States v. Ventresca, 380 U.S. 102, 13
L.Ed.2d 684, 85 S.Ct. 741(1965)........... 7,17
Jones v. United States, 362 U.S. 257, 4 L.Ed.2d
Ge ee DMEED on cv cecusescéiecce’s 7, 15
Aguilar v. Texas, 378 U.S. 108, 12 L.Ed.2d 723,
TP CUUIIED > bcebabvscaecesoseuse 5, 7, 8,
12, 13,
14, 15
Stanley v. State, 19 Md.App. 507, 313 A.2d 847
EE 5.1.0 5.5.64 ab bee UCL ee th awh aes 8
Spinelli v. United States, 393 U.S. 410, 21
L.Ed.2d 637, 89 S.Ct. 329(1959)........... 8, 9, 10,
11, 12,
13, 14,
16, 17
Draper v. United States, 358 U.S. 307, 3 L.Ed.2d
Bes POs DP CRRUED oc ccs cc cdc ce ces. 9, 10, 11,
12, 14, 17
Whitely v. Warden of Wyoming State Penitentt-
ary, 401 U.S. 560, 28 L.Ed.2d 306, 91 S.Ct.
a RR eres eon em 14, 15
State v. Thorp, 358 A.2d 655 (N.H. 1976)...... 15
United States v. Edmonds, 535 F.2d 714 (2d Cir.
INS S00 We 0 ced Ons Soe R Maen ares Oe és
United States v. Anderson, 500 F.2d 1311 (5th
DI 562 295 cb cea Soe eal. <s
United States v. Foose, 402 F.Supp. 526 (D.C.
ere ere SP errr), Tee
United States v. Hall, 468 F.Supp. 123 (D.C.
RS a ee
15
15
15
15
No.
In the Supreme Court of the Anited States
THE STATE OF ILLINOIS,
Petitioner,
LANCE GATES anp SUSAN GATES,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF ILLINOIS
Petitioner, the State of Illinois, respectfully prays that a
Writ of Certiorari be issued to review the judgment of the
Supreme Court of Illinois.
OPINION BELOW
The Supreme Court of Illinois issued its opinion in this case
on June 26, 1981, and it may be found at 85 IIl.2d 376, ___
N.E.2d ____, ____ Ill. Dec. ____ (1981). The court in its opi-
nion held that the anonymous letter received by police did not
satisfy the two-prong test for probable cause enunciated in
Aguilar v. Texas (1964), 378 U.S. 108, 12 L.Ed.2d 723, 84
S.Ct. 1509. The court found that the “basis of knowledge”
prong was not satisfied since the anonymous letter did not
contain any statement showing that the information was ac-
quired through personal or firsthand knowledge. The court
also found that the letter did not describe the accused's
criminal activity in sufficient detail so as to allow an inference
of personal knowledge of the informant.
In addition, the court found that there was no showing that
the informant was credible, as required by the “veracity”
prong of the Aguzlar test, since the identity of the informant
was not known and the informant failed to admit activities
which were against his penal interest.
The court declined to address the question of whether the
corroboration of the tip by the FBI agent cured the defect in
either prong of the Aguilar test, stating that the corroborating
“evidence” was only of innocent rather than criminal activity.
The court found that such corroboration is insufficient to
support a finding of probable cause. The Appellate Court —
Second District, by order, had previously affirmed the trial
court's order quashing the search warrant and suppressing the
evidence. A copy of the Appellate Court's order, as well as a
copy of the opinion of the Illinois Supreme Court is appended
to this petition.
JURISDICTION OF THE COURT
The opinion of the Illinois Supreme Court affirming the
order of the Appellate Court was rendered on June 26, 1981.
This petition is filed within sixty days of that opinion. The
jurisdiction of the Supreme Court of the United States to hear
this case is invoked under 28 U.S.C. 1257(3), since in the pro-
ceedings in the state courts of Illinois the Respondents have
specifically set up, and throughout asserted, an alleged viola-
tion of their rights arising under the Constitution of the
United States.
CONSTITUTIONAL PROVISIONS INVOLVED
United States Constitution amendment IV.;
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or affir-
mation, and particularly describing the place to be searched,
and the persons or things to be seized.
STATEMENT OF THE CASE
On May 3, 1978, the Bloomingdale police department
received by mail an anonymous handwritten letter which
alleged that Susan Gates and Lance Gates, her husband, were
planning to travel to Florida in a few days for the purpose of
obtaining illegal drugs. The letter read:
“This letter is to inform you that you have a couple in
your town who strictly make their living on selling drugs.
They are Sue and Lance Gates, they live on Greenway,
off Bloomingdale Rd. in the condominiums. Most of
their buys are done in Florida where she leaves it to be
loaded up with drugs, then Lance flys [sic] down and
drives it back. Sue flys [stc] back after she drops the car
off in Florida. May 3 she is driving down there again and
Lance will be flying down in a few days to drive it back.
At the time Lance drives the car back he has the trunk
loaded with over $100,000.00 in drugs. Presently they
have over $100,000.00 worth of drugs in their basement.
They brag about the fact they never have to work, and
make their entire living on pushers.
I guarantee [sic] if you watch them carefully you will
make a big catch. They are friends with some big drugs
dealers, who visit their house often.
Lance & Sue Gates
Greenway
in Condominiums.”
The chief of police delivered the letter to Charles Mader, a
detective of the Bloomingdale police department and he re-
quested one of the department's radio operators to seek
assistance from the Secretary of State's office in Springfield in
obtaining a specific address for the Gates. That office advised
than an Illinois driver's license had been issued to a Lance
Gates residing at a stated address in Bloomingdale. Mader
then communicated with a confidential informant who had
provided reliable information to Mader during the previous
two years. Upon examining certain financial records to which
the informant had access, he reported a new address on
Greenway Drive in Bloomingdale for the Lance Gates who
had previously resided at the address in Bloomingdale fur-
nished by the Secretary of State's office.
Upon inquiry, Mader was told by an officer of the Chicago
police department assigned to O'Hare Airport that “L. Gates”
had made a reservation with Eastern Airlines on its flight 245,
which was to depart from O'Hare on May 5, at 4:15 p.m. The
final destination of the flight was West Palm Beach, Florida.
On May 5, Mader was told by William Morely, an agent of
the Drug Enforcement Administration, that “Lance Gates”
had boarded Eastern Airlines flight 245 bound for Florida.
The following day Morely informed Mader that Gates had ar-
rived in West Palm Beach, had proceeded by cab to the West
Palm Beach Holiday Inn, and had entered a room registered
to Susan Gates. Agent Morely told him that he observed Gates
and an unidentified woman leave the room at 7 a.m. and
enter a red vinyl over gray Mercury with 1978 Illinois license
number RS 8437. Records at the Secretary of State's office
showed that the license plate was registered for Lance B.
Gates, but had been issued for a different automobile.
Based on the anonymous letter, the described information
obtained from the law enforcement authorities, and the
verification of the address obtained from the confidential in-
formant, Mader, on May 6, sought and obtained ir che circuit
court of DuPage County, a search warrant for both the Gates’
residence in Bloomingdale and the car they were driving in
Florida.
At 5:15 a.m. on May 7, Lance and Susan Gates returned by
car to their home on Greenway Drive. They were immediately
served with a search warrant by waiting Bloomingdale police
officers. In the trunk of the Mercury the officers found several
large bundles of marijuana weighing a total of approximately
350 pounds. A search of the Gates’ residence uncovered more
marijuana, weapons, ammunition, drug paraphernalia, and
several scales presumably used for weighing the drugs. Police
also ascertained that the couple had cocaine in their posses-
sion. They were indicted for unlawful possession of cannabis
with intent to deliver and unlawful possession of a controlled
substance. Lance Gates was separately indicted for possession
of an unlicensed firearm.
The defendants filed a pretrial motion to quash the search
warrant and to suppress all physical evidence obtained as a
result of the search, arguing that the anonymous letter did not
set forth the underlying circumstances or manner in which
the informant acquired the information or that the informa-
tion was reliable as required under the test for probable cause
described in Aguilar v. Texas (1964), 378 U.S. 108, 12
L.Ed.2d 723, 84 S.Ct. 1509. The defendants also argued that
the separate evidence obtained by Detective Mader in his in-
dependent investigations did not corroborate the anonymous
informant’s accusations that the Gateses were involved in
criminal activity so as to support the issuance of a search war-
rant based on probable cause. The motions to quash and to
suppress evidence were allowed by the circuit court of DuPage
County, and its action was affirmed by the appellate court (82
Ill.App.3d 749).
The People then appealed to the Illinois Supreme Court
which affirmed the Appellate Court on June 26, 1981. No
petition for rehearing was submitted.
REASONS FOR GRANTING THE WRIT
DETAILED INFORMATION PROVIDED TO PO-
LICE BY AN ANONYMOUS INFORMER, COU-
PLED WITH GOVERNMENT CORROBORA-
TION OF THE INFORMATION, ESTABLISHED
PROBABLE CAUSE FOR THE ISSUANCE OF A
SEARCH WARRANT IN THIS CASE. THE EN-
FORCEMENT OF DRUG LAWS IN ILLINOIS
WILL BE THWARTED IF OFFICERS ARE NOT
PERMITTED TO RELY UPON DETAILED IN-
FORMATION PROVIDED THEM BY AN ANON-
YMOUS CIVILIAN INFORMER.
Illinois police officers attempting to stop illegal drug activ-
ity are in large part dependent upon civilian informers, fre-
quently anonymous informers, to provide information for
their investigations. By its ruling below, the Illinois Supreme
Court has drastically narrowed this avenue of information for
investigation. Due to misinterpretation of the case law pro-
nounced by this Court, the Illinois Supreme Court has severe-
ly restricted the use of anonymous informers’ revelations to
obtain search warrants for the enforcement of drug laws.
The standard for probable cause in assessing a complaint
for a search warrant is a probability of the existence of crimi-
nal activity and not a prima facie showing, of actual criminal
activity. Beck v. Ohio, 379 U.S. 89, 96, 13 L.Ed.2d 142, 147,
85 S.Ct. 223 (1964). Affidavits relating to probable cause are
to be tested by a considerably less rigorous standards than
those governing the admissibility of evidence at trial. McCray
v. Illinois, 386 U.S. 300, 311, 18 L.Ed.2d 62, 70, 87 S.Ct.
1056 (1967). In analyzing probable cause, issuing magistrates
are neither to be confined by insubstantial limitations nor by
restrictions on the use of their common sense. United States v.
Ventresca, 380 U.S. 102 at 108, 13 L.Ed.2d 684 at 688, 85
S.Ct. 741 (1965). In cases of this type determination of prob-
able cause by issuing magistrates shall be paid great deference
by courts of review. Jones v. United States, 362 U.S. 257, at
270-271, 4 L.Ed.2d 697 at 707-709, 806 S.Ct. 725, 78 ALR 2d
233 (1960).
The recognized test applied to complaints for search war-
rants based on hearsay information is the “two-pronged” test
as set out in Aguilar v. Texas, 378 U.S. 108 at 114, 12
L.Ed.2d 723 at 729, 84S.Ct. 1509 at 1514 (1964). The Court
there in pertinent part held:
Although an affidavit may be based on hearsay infor-
mation and need not reflect the direct personal observa-
tions of the affiant, Jones v. United States, 362 U.S. 257,
4 L.Ed.2d 697, 80 S.Ct. 725, 78 ALR 2d 233, the magis-
trate must be informed of some of the underlying cir-
cumstances from which the informant concluded that
the narcotics were where he claimed they were, and some
of the underlying circumstances from which the officer
concluded that the informani, whose identity need not
be disclosed, see Rugendorf v. United States, 376 U.S.
528, 11 L.Ed.2d 887, 84 S.Ct. 825, was “credible”. .. .
[Aguilar v. Texas, supra, 378 U.S. at 114.]
Thus, the first prong of the test requires that the magistrate
be informed of “some” of the underlying circumstances from
which the informant concluded that narcotics were where he
claimed them to be. This prong is used to determine whether
the informant obtained his information in a reliable manner.
The second prong of the Aguilar test requires that the officer
set forth information from which he concluded that the hear-
say declarant was credible.
A. The Detailed Nature Of The Information
Contained In The Anonymous Letter Was
Sufficient To Allow The Issuing Judge To
Infer That The Informant Had Obtained
His Information In A Reliable Manner.
The first prong, or the “basis of knowledge” part of the test
announced in Aguilar is most often satisfied by the
informant’s declaration that he is revealing personal
arwwledge gathered through some physical sensory faculty
such as that of sight, smell, or sound. (See Stanley v. State, 19
Md.App. 507, 531, 313 A.2d 847, 861 (1974).) Absent an in-
formant's statement regarding the manner in which informa-
tion was obtained, the magistrate must be convinced that the
information is furnished by the source under circumstances
demonstrating or inferring the reliability of the information.
Spinelli v. United States, 393 U.S. 410, 425, 21 L.Ed.2d 637,
89 S.Ct. 329 (1959). As Justice White explained in his concur-
ring opinion in Spinelli, when the information is:
Sufficiently detailed [it] will in effect verify itself —
that is, the magistrate when confronted with such detail
could reasonably infer that the informant had gained his
information in a reliable way. See, Ante, at 417, 11
L.Ed.2d 644. Detailed information may sometimes imp-
ly that the informant has himself observed the facts. 393
U.S. at pg. 425.
The Spinelli Court discussed the determination which the
issuing magistrate must make when an anonymous informant
does not demonstrate the exact manner or circumstances in
which he or she received the information.
In the absence of a statement detailing the manner in
which the information was gathered it is especially im-
portant that the tip describe the accused's criminal activ-
ities in sufficient detail that the magistrate may know
that he is relying on something more substantial than a
casual rumor circulating in the underworld or an accusa-
tion based merely on an individual's reputation.
[393 U.S. at 416, 21 L.Ed.2d at 645, 89 S.Ct. at 590.]
In Draper v. United States, , 358 U.S. 307, 3 L.Ed.2d 327,
79 S.Ct. 329 (1959) a paid informant provided an FBI agent
with a mere description of the defendant and his mode of
transportating certain drugs. The detail with which it was
provided however, was one reason it was sufficient for the
court to infer that it was obtained in a reliable manner.
Referring to the Draper informer's information in the
subsequent Spinelli decision, Justice White said, “the kind of
information related by the informant is not generally sent
ahead of a person’s arrival in a city except to those who are in-
timately connected with making careful arrangements for
meeting him.” Spinelli, supra, 393 U.S. at 426. In the present
case, as in Draper, the details of the travel arrangements con-
firm the reliability of the informer's information. The infor-
mation provided by the informer relating to the involved
travel arrangements of these defendants was in great detail
and was elevated to a high degree of reliability by the cor-
roboration of government agents’ eyewitness observations.
The anonymous letter was received by the police on May 3
and gave the names, relationship and approximate addresses
of these defendants; “they live on Greenway, off Bloom-
ingdale road in the condominiums.”
10
The letter stated that the defendants made most of their
drug buys in the State of Florida, that Ms. Gates would drive
their motor vehicle to Florida and then Mr. Gates would fly
down and drive the vehicle back to Illinois. The letter stated
that on May 3 (the date it was received) she would be driving
down and he would meet her and the car there “in a few
days.” Additionally, the letter stated not only the value of the
narcotics which would be found, but also their precise loca-
tion in both the Gates’ home and automobile. The informant
also included a statement that the Gates’ “brag about the fact
they never have to work.” Finally, the letter relates that drug
dealers frequent the Gates’ home.
An anonymous letter detailing the manner in which drugs
were transported, when and how the next transport would
occur, where the drugs were stored, and finally some of the
personal characteristics of the defendants themselves should
certainly be sufficient to convince a magistrate that the infor-
mation was something other than “casual rumor” or a mere
accusation based on the defendants’ reputation in the under-
world community. As stated by Justice White, the magistrate
presented with such intimate detail could “reasonably infer
that the informer had gained his information in a reliable
way.” Spinelli, supra, 393 U.S. at 425.
In this case, the Illinois Supreme Court held that the infor-
mation provided here was not “in sufficient detail to lead a
magistrate to conclude that the tip was the product of
firsthand knowledge or personal observation.” (Slip opinion,
p- 9]. Further, the court distinguished the present case from
Draper in that the informant in Draper had previously given
reliable information to the affiant. [Slip opinion, p. 8]. Fur-
ther, the court found that the present case was more
analogous to Spinelli than Draper. [Slip opinion, pg. 6]. The
court erred in so holding.
11
The present case directly parallels Draper as stated by
Justice Moran, joined by Justice Underwood, in his dissenting
opinion below:
“(U)nder the court's analysis in Spinelli, the result in
Draper, in light of Aguilar, does not hinge on the mere
averment that the informant had previously given reli-
able information. Rather, the determining factor in es-
tablishing probable cause and complying with both prongs
of Aguilar is the speciticity of the tip combined with the
police verification by investigation.”
[Slip opinion, pg. 13, 14].
Here, as in Draper, the police were provided with a specific,
detailed and future sequence of events, as emphasized by
Justice Moran. [Slip opinion, pg. 12]. Further, in this case, as
in Draper, every detail of the informant’s letter was cor-
roborated by police investigation, clearly indicating that the
informant had an underlying basis of knowledge.
The present case is readily distinguishable from Spinelli. In
that case the information was provided by a “confidential,
reliable informant.” The affidavit stated that the informant
told law enforcement agents that Spinelli was “accepting
wagers and disseminating wagering information by means of
telephones which have been assigned numbers WYdown
4-0029 and WYdown 4-1036.” 393 U.S. 410, 414, 21L.Ed.2d
637, 642, 89 S.Ct. 584, 588. The Court held the affidavit was
insufficient to establish probable cause. The Court in Spinelli
found there was insufficient detail from which a magistrate
could infer that the informant had gained his information in
a reliable way. Further, the Court found that the investigative
police work in Spinelli corroborated only that Spinelli could
have used two telephones for gambling or for some other pur-
pose. Clearly, the present case contains much more detail and
corroboration than that in Spinelli.
12
For the foregoing reasons, the details provided were suffi-
cient to satisfy the first prong of the Aguilar test. The issuing
judge correctly inferred from the detailed information pro-
vided that the informant obtained his information in a
reliable way. The trial court erred in reversing the issuing
magistrate’s finding of probable cause and the Appellate
Court and Supreme Court erred in affirming that action.
B. Corroboration Of Informant’s Letter Is Rel-
evant To And May Be Used To Support The
First Prong Of The Aguilar Test. Sufficient
Corroboration Existed Here To Warrant A
Finding Of Probable Cause.
In this case, the People contended that the judge who
issued the search warrant correctly considered the fact that
much of the information provided by the informant was cor-
roborated by other law enforcement officials and a reliable
informant. The Appellate Court stated that such corrobora-
tion could not be used to support the first prong of the Aguélar
test, the basis of the knowledge prong. The court held “Cor-
roboration does not establish that the informer obtained his
information in a reliable manner.” The Illinois Supreme
Court refused to address this issue in the present case, holding
that “The corroboration of innocent activity is insufficient to
support a finding of probable cause.” Slip opinion, p. 10. The
court's holding clearly reflects a misunderstanding and mis-
application of the law as previously expressed by this Honor-
able Court in Draper v. United States, 358 U.S. 307 3
L.Ed.2d 327, 79 S.Ct. 329 (1959), Aguilar v. Texas, 378 U.S.
108, 12 L.Ed.2d 723, 84 S.Ct. 1509 (1964), and Spinelli v.
United States, 393 U.S. 410, 21 L.Ed.2d 637, 89 S.Ct. 584
(1969).
In Spinelli, the Court established the approach to be taken -
by lower courts where, as here, the informant's tip is a
13
necessary element in a finding of probable cause. The Court
held that:
“If the tip is found inadequate under Aguilar, the other
alleg .tions which corroborate the information contained
in the hearsay report should then be considered. At this
stage as well, however, the standards enunciated in Agut-
lar must inform the magistrate’s decision. He must ask:
Can it fairly be said that the tip, even when certain parts
of it have been corroborated by independent sources, is
as trustworthy as a tip which would pass Aguilar’s tests
without independent corroboration.”
[393 U.S. at 415.]
In Spinelli, the FBI was informed by a “confidential, reliable
informant,” that Spinelli was “operating a handbook and ac-
cepting wagers and disseminating wagering information by
means of the telephones which have been assigned the num-
bers WYdown 4-0029 and WYdown 4-0136.” 393 U.S. at 414.
The FBI conducted an independent investigation of defen-
dant corroborating the two telephone numbers (although
listed to another person). In addition, the FBI observed the
defendant travel to and from the apartment building, park
his car there, and enter one of the apartments. The FBI
agents also informed the issuing magistrate that Spinelli was
“known to [the] affiant and to federal law enforcement agents
and local law enforcement agents as a bookmaker, an associ-
ate of bookmakers, a gambler, and an associate of gamblers.”
Id. This Court held that probable cause did not exist, and
found that the independent investigation was not sufficient
“to support both the inference that the informer was generally
trustworthy and that he had made his charge against Spinelli
on the basis of information obtained in a reliable way.” 393
U.S. at 417. The Spinelli Court nowhere stated that cor-
roboration could not be used to support the first prong of the
Aguilar test; it only held that in that particular case neither
prong of the test was supported by independent police cor-
roboration.
14
In Draper, decided before Aguilar, the tip of a reliable,
paid informer was investigated by a police officer and many of
the details of the tip were corroborated. It is significant to
note that the reliability of the informer was not in issue.
Therefore, the police corrobozation in that case went to
establish only the trustworthiness of the information, which
later became a “basis of knowledge” prong of Aguilar. In
Draper, the Court stated:
And surely, with every other bit of [the informant’s] in-
formation being thus personally verified, [officer/affi-
ant] had “reasonable grounds” to believe that the re-
maining unverified bit of [the informant's] information
— that Draper would have the heroin with him — was
likewise true.
[Draper, supra, 358 U.S. at $13].
The Spinelli Court recognized that corroboration could be
used to support the basis of knowledge prong:
Once again, Draper provides a relevant comparison. In-
dependent police work in that case corroborated much
more than one small detail that had been provided by the
informant .. .. It was then apparent that the informant
had not been fabricating his report out of whole cloth;
since the report was of the sort which in common experi-
ence may be recognized as having been obtained in a reli-
able way, it was perfectly clear that probable cause had
been established.
[393 U.S. at 417, 418].
In Whitely v. Warden of Wyoming State Penitentiary, 401
U.S. 560, 28 L.Ed.2d 306, 91 S.Ct. 1031 (1971), it was stated:
This Court has held that where the initial impetus for
an arrest is an informer's tip, information gathered by
the arresting officer can be used to sustain a finding of
probable cause for an arrest that could not adequately be
supported by the tip alone. Draper v. United States, 358
15
U.S. 307, 3 L.Ed.2d 327, 79 S.Ct. 329 (1959). See Spi-
nelli v. United States, supra, at 423, 2! L.Ed.2d at 647.
[Whitely, 28 L.Ed.2d at p. $12).
It again must be emphasized that corroboration in Whitely
was not limited by this Court to use in satisfying only the
reliability prong of Aguilar, as mistakenly held by the Illinois
Supreme Court. Other cases holding that corroboration is
relevant to whether the informer gathered his information in
a reliable way include, State v. Thorp, 358 A.2d 655, 659
(N.H. 1976); United States v. Edmonds, 535 F.2d 714, 720
(2nd Cir. 1976); United States v. Anderson, 500 F.2d 1311,
1316 (5th Cir. 1974); United States v. Foose, 402 F.Supp. 526
(D.C. PA. 1975); United States v. Hall, 468 F.Supp. 123
(D.C. Texas 1979). The theory rejected by both the Appellate
Court and the Illinois Supreme Court is sound. If much of the
informer's information is corroborated, the indication is that
the informer got his information in a reliable way.
Even though the information in the letter is hearsay, there
is a substantial basis for crediting it because the letter's details
were fully corroborated by other independent sources; federal
agents, a police official, and a reliable informant. “Cor-
roboration through other sources of information reduced the
chances of a reckless or prevaricating tale. .. ." Jones v. U.S.,
supra, 306 U.S. at 271.
Under the facts in this case the issuing judge correctly
found that the anonymous informer’s information was
reliable, and as such satisfied the requirements of the first
prong of the Aguilar test. The details of the letter regarding
defendants’ activities and the detailed corroboration of those
facts support a conclusion that the judge correctly found that
the information was accurate and truthful. The name and
address of the defendant was corroborated by another infor-
mant who had given the affiant information in the past
leading to seven arrests and seven convictions. The physical
16
description of Lance Gates was obtained through indepen-
dent police investigation of Gates’ driver's license. A person
matching that description boarded the flight bound for
Florida, again corroborating the anonymous letter. In
Fiorida, the defendant met a woman in a room at a hotel
registered to defendant Sue Gates. Again, the travel ar-
rangements in the letter were independently corroborated.
The following day, the two defendants drove back to Illinois
(again corroborating the letter) in a motor vehicle with license
plates registered to another automobile owned by the defen-
dant. This type of corroboration is as sufficient as that found
in Draper, where the only corroboration of the tip related to
the defendant's travel arrangements and physical description.
Furthermore, the independent police work here “cor-
roborated much more than one small detail that had been
provided by the informant,” Spinelli, 393 U.S. at 417, and is
therefore readily distinguishable from the Spinelli case.
The Illinois Supreme Court refused to consider the cor-
roborating evidence on this case because only “innocent facts”
were corroborated. That this holding was in error is clear
from a reading of Draper, in which only the innocent iacts of
defendant's physical description and travel arrangements
were corroborated. In addition, it must be emphasized here
that such short-term travel arrangements, which seemingly
have no purpose, are common in drug trafficking cases. This
Court in Spinelli recognized that certain activity, which is
seemingly innocent, may take on a more sinister color by vir-
tue of an informer’s tip. Thus, although the conduct of the
defendant in Spinelli coupled with the informant's tip was not
sufficient in itself to suggest criminal activity, the Court noted
that had the premises involved contained an unusual number
of telephones or if abnormal activity had been observed prob-
able cause may well have been found. 393 U.S. at 418. In the
present case, the short-term, seemingly purposeless travel ar-
rangements, were sufficient to establish probable cause, and
17
the issuing magistrate was entitled to rely on such common
sense considerations. United States v. Ventresca, 380 U.S.
102, 108, 13 L.Ed.2d 684, 688, 85 S.Ct. 741 (1965).
The People ask this Honorable Court to grant this petition
and issue a Writ of Certiorari to review the decision of the II-
linois Supreme Court. The misunderstanding and misap-
plication by Illinois courts of the notion of corroboration as set
forth in Spinelli and Draper, will result in continuing injustice
if it is not corrected and clarified by this Court. The People
request that this Honorable Court grant the People’s Petition
for a Writ of Certiorari, and ultimately vacate the judgment
of the Illinois Supreme Court and remand this case for further
prosecution.
18
CONCLUSION
For all of the foregoing reasons, the Writ of Certiorari
should be issued to review the judgment and opinion of the
Supreme Court of the State of Illinois.
Respectfully submitted,
TYRONE FAHNER,
Attorney General of the State
of Illinois
MELBOURNE A. NOEL, JR.
Assistant Attorney General
188 West Randolph Street
(Suite 2200)
Chicago, Illinois 60601
Attorneys for Petitioner
J. MICHAEL FITZSIMMONS
State’s Attorney for DuPage County
THOMAS L. KNIGHT
BARBARA A. PREINER
Assistant State's Attorneys
207 South Reber Street
Wheaton, Illinois 60187
Of Counsel
ee
la
SUPREME COURT OPINION
Docket No. 53453 -- Agenda 6 — January 1981.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant,
v. LANCE GATES et al., Appellees.
MR. JUSTICE WARD delivered the opinion of the court:
On May 3, 1978, the Bloomingdale police department
received by mail an anonymous handwritten letter which
alleged that Susan Gates and Lance Gates, her husband, were
planning to travel to Florida in a few days for the purpose of
obtaining illegal drugs. The letter read:
“This letter is to inform you that you have a couple in
your town who strictly make their living on selling drugs.
They are Sue and Lance Gates, they live on Greenway,
off Bloomingdale Rd. in the condominiums. Most of
their buys are done in Florida. Sue his wife drives their
car to Florida where she leaves it to be loaded up with
drugs, then Lance flys [sic] down and drives it back. Sue
flys [sic] back after she drops the car off in Florida. May 3
she is driving down there again and Lance will be flying
down in a few days to drive it back. At the time Lance
drives the car back he has the trunk loaded with over
$100,000.00 in drugs. Presently they have over
$100,000.00 worth of drugs in their basement.
They brag about the fact they never have to work, and
make their entire living on pushers.
I guarantee [sic] if you watch them carefully you will
make a big catch. They are friends with some big drugs
dealers, who visit their house often.
Lance & Sue Gates
Greenway
in Condominiums.”
2a
The chief of police delivered the letter to Charles Mader, a
detective of the Bloomingdale police department and he re-
quested one of the department's radio operators to seek
assistance from the Secretary of Siate’s office in Springfield in
obtaining a specific address for the Gates. That office advised
than an Illinois driver's license had been issued to a Lance
Gates residing at a stated address in Bloomingdale. Mader
then communicated with a confidential informant who had,
he claimed, provided reliable information to Mader during
the previous two years. Upon examining certain financial
records to which the informant had access, he reported a new
address on Greenway Drive in Bloomingdale for the Lance
Gates who had previously resided at the address in Bloom-
ingdale furnished by the Secretary of State's office.
Upon inquiry, Mader was told by an officer of the Chicago
police department assigned to O'Hare Airport that “L. Gates”
had made a reservation with Eastern Airlines on its flight 245,
which was to depart from O'Hare on May 5, at 4:15 p.m. The
final destination of the flight was West Palm Beach, Florida.
On May 5, Mader was told by William Morely, an agent of
the Drug Enforcement Administration, that “Lance Gates”
had boarded Eastern Airlines flight 245 bound for Florida.
The following day Morely informed Mader that Gates had ar-
rived in West Palm Beach, had proceeded by cab to the West
Palm Beach Holiday Inn, and had entered a room registered
to Susan Gates. Agent Morely told him that he observed Gates
and an unidentified woman leave the room at 7 a.m. and
enter a red-vinyl-over-gray Mercury with 1978 Tilinois license
number RS 8437. Records at the Secretary of State's office
showed that the license plate was registered for Lance B.
Gates, but had been issued for a different automobile.
Based on the anonymous letter, the described information
obtained from the law-enforcement authorities, and the
verification of the address obtained from the confidential in-
Sa
formant, Mader, on May 6, sought and obtained in the circuit
court of DuPage County, a search warrant for both the Gates’
residence in Bloomingdale and the car they were driving in
Florida.
At 5:15 a.m. on May 7, Lance and Susan Gates returned by
car to their home on Greenway Drive. They were immediately
served with a search warrant by waiting Bloomingdale police
officers. In the trunk of the Mercury the officers found several
large bundles of marijuana weighing a total of approximately
350 pounds. A search of the Gates’ residence uncovered more
marijuana, weapons, ammunition, drug paraphernalia, and
several scales presumably used for weighing the drugs. Police
also ascertained that the couple had cocaine in their posses-
sion. They were indicted for unlawful possession of cannabis
with intent to deliver and unlawful possession of a controlled
substance. Lance Gates was separately indicted for possession
of an unlicensed firearm.
The defendants filed a pretrial motion to quash the search
warrant and to suppress all physical evidence obtained as a
result of the search, arguing that the anonymous letter did not
set forth the underlying circumstances or manner in which
the informant acquired the information or that the informa-
tion was reliable as required under the test for probable cause
described in Aguilar v. Texas (1964), 378 U.S. 108,-12 L. Ed.
2d 723, 84 S. Ct. 1509. The defendants also argued that the
separate evidence obtained by Detective Mader in his in-
dependent investigations did not corroborate the anonymous
informant’s accusations that the Gateses were involved in
criminal activity so as to support the issuance of a search war-
rant based on probable cause. The motions to quash and to
suppress evidence were allowed by the circuit court of DuPage
County, and its action was affirmed by the appellate court (82
Ill. App. 3d 749). We granted the State's petition for leave to
appeal. 73 Ill. 2d R. 315(a).
4a
Both the Constitution of the United States (U.S. Const.,
amend. IV) and the Constitution of Illinois (Ill. Const. 1970,
art. I, sec. 6) provide assurance against unreasonable searches
and seizures of person and property. The determination of
probable cause for the issuance of a search warrant must be
made by a “neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enter-
prise of ferreting out crime.” (Johnson v. United States (1948),
333 U.S. 10, 14, 92 L. Ed. 436, 440, 68 S. Ct. 367, 369.) This
determination also must be based upon the sworn observa-
tions or on other sufficient facts or circumstances presented
under oath before a magistrate. The Supreme Court in
Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84S.
Ct. 1509, considering its decisions in Giordenello v. United
States (1958), 357 U.S. 480, 2 L. Ed. 2d 1503, 78S. Ct. 1245,
Johnson v. United States (1948), 333 U.S. 10, 92 L. Ed. 436,
68 S. Ct. 367, Nathanson v. United States (1933), 290 U.S.
41, 78 L. Ed. 159, 54S. Cr. 11, and United States v. Lefkowitz
(1932), 285 U.S. 452, 76 L. Ed. 877, 52S. Ct. 420, announced
the constitutional standard to be used by courts in deciding
whether a search warrant might properly issue when the com-
plaint for the search warrant is based in whole or in part upon
information supplied by an anonymous or unidentified infor-
mant. The court stated:
“Although an affidavit may be based on hearsay infor-
mation and need not reflect the direct personal observa-
tions of the affiant [citation], the magistrate must be in-
formed of some of the underlying circumstances from
which the informant concluded that the narcotics were
where he claimed they were, and some cf the underlying
circumstances from which the officer concluded that the
informant, whose identity need not be disclosed [cita-
tion], was ‘credible’ or his information ‘reliable.’ " $78
U.S. 108, 114, 12 L. Ed. 2d 723, 729, 84 S. Ct. 1509,
1514.
5a
The first part of this standard or test is often referred to as
the “basis of knowledge prong” and the second part as the
“veracity prong.”
In Aguilar, an officer of the Houston police department
applied for a search warrant on the ground that “ ‘reliable in-
formation [had been received] from a credible person’ ” that
the defendant was known to have drugs on his premises for
purposes of sale and personal use. The court described the af-
fidavit as containing “ ‘no affirmative allegation that the af-
fiant spoke with personal knowledge of the matters contained
therein’ ” or “that the affiant’s unidentified source ‘spoke with
personal knowledge.’ The court further stated that “the
source here merely suspected, believed or concluded that
there were narcotics in petitioner's possession. The magistrate
here certainly couid not ‘judge for himself the persuasiveness
of the facts relied on * * * ito show probable cause.’ He neces-
sarily accepted ‘without question’ the informant’s ‘suspicion,’
‘belief or ‘mere conclusion.’ ” (378 U.S. 108, 109, 113-14, 12
L. Ed. 2d 723, 725, 728-29, 84 S. Ct. 1509, 1511, 1513-14,
quoting Nathanson and Giordenello.) The court held that the
evidence obtained from a search conducted with the warrant
was inadmissible and remanded the case for further pro-
ceedings.
The first prong, or the “basis of knowledge” part of the test
announced in Aguilar, is concerned with the facts and cir-
cumstances showing that the informant knew that the person
named has been or will be involved in criminal conduct. The
most common means of satifying this requirement is by the in-
formant’s declaration that he is revealing personal knowledge
gathered through some phsical sensory faculty such as that of
sight, smell or sound. (See, e.g., Stanley v. State (1974), 19
Md. App. 507, 531, 313 A.2d 847, 861.) Statements contain-
ing mere conclusions of criminal acivity without a statement
regarding independent facts and personal observations do not
6a
provide a sufficient basis for a neutral magistrate to decide to
issue a search warrant.
Looking at the anonymous handwritten letter here one can
only observe that it does not contain any statement showing
that the information was acquired through firsthand or per-
sonal knowledge of the informant. The informant states that
the defendants make their living by selling drugs but he does
not set out the source of this knowledge or the ground for his
conclusion. There is the statement that the defendants
boasted of their illegal occupation, but one does not know
whether they made these comments to the informant or
whether this was hearsay. Similarly, the informant states that
the defendants will be returning from Florida with over
$100,000 in drugs and that there is over $100,000 worth of
drugs in their basement. No basis of knowledge for this is
given. There is no statement made that the informant ever
saw drugs or was inside the defendants’ residence or even that
someone had told him of any of these claimed facts. The letter
set out mere conclusions and contained no statements of per-
sonal observation or firsthand knowledge.
The second part of the Aguilar test, often, as noted, refer-
red to as the “veracity prong,” requires a showing of the
underlying circumstances from which it was concluded that
the informant was “ ‘credible’ "’ or his information
“ ‘reliable.’ "(378 U.S. 108, 114-15, 12 L. Ed. 24 723, 729, 84
S. Ct. 1509, 1514.) Though it is not necessary to consider this
“prong” where the “basis of knowledge” part has not been
satisfied, we shall comment on it because of the State's argu -
ments discussed later relating to self-verifying detail and cor-
roborating evidence as support for the search warrant here.
The name of an informant need not be revealed to the
magistrate before a search warrant is issued so long as it is
established that the informant is credible. This requirement is
usually satisfied by reciting in the affidavit previous instances
7a
in which the affiant police officer has obtained information
from the informant that led to various arrests and convictions.
(See McCray v. Illinois (1967), 386 U.S. 300, 18 L. Ed. 2d 62,
87 S. Ct. 1056; People v. Garcia (1975), 27 Ill. App. 3d 396.)
Here, the informant's identity was not known to the affiant,
Detective Mader. There was simply no basis on which either
Mader or the magistrate could conclude that the anonymous
person was credible.
The failure to satisfy under Aguilar that the informant was
credible does not of itself mean that the “veracity prong” re-
quirement cannot be met. It may be satisfied by a showing
that the informant's tip was reliable. United States v. Harris
(1971), 403 U.S. 573, 29 L. Ed. 2d 723, 91S. Ct. 2075, shows
that a plurality of the court considered that the alternative re-
quirement of reliability of the information supplied was
satisfied where the informant, in giving the information, ad-
mitted activities which were against his penal interest. In Har-
ris a warrant was issued to Federal and local officers permit-
ting them to enter and search the defendant's premises where
they found containers of whiskey on which the Federal tax
had not been paid. The affidavit accompanying the request
for a warrant stated that information was received from an in-
dividual who claimed, as a confederate, personal knowledge
that the defendant was a “trafficker of nontaxpaid distilled
spirits.” (403 U.S. 573, 575, 29 L. Ed. 2d 723, 729, 91S. Ct.
2075, 2077.) The court held that the informant’s admission of
complicity with the defendant in these activities over an ex-
tended period of time, which subjected him to possible indict-
ment under section 5205(a) of title 26 of the United States
Code (26 U.S.C. sec 5205(a) ), generated some measure of
reliability. It was held that under the facts and circumstances
of the case that probable cause had been established. Assum-
ing, arguendo, that we were to follow the view of the plurality
in Harris it would have no significance, because there was no
admission against penal interest here.
8a
Concluding that the letter standing alone cannot satisfy the
requirements under Aguilar, we consider now the State's con-
tention that the “self-verifying detail” within the letter, coupl-
ed with the corroborating nature of the information acquired
by Detective Mader, established probable cause for the is-
suance of the search warrant.
The notion of “self-verifying detail” is found in Spinelli v.
United States (1969), 393 U.S. 410, 417, 21 L. Ed. 2d 637,
644, 89 S. Ct. 584, 589. The court had granted certiorari
“[b]elieving it desirable that the principles of Aguilar should
be further explicated * * *.” (393 U.S. 410, 412, 21 L. Ed. 2d
637, 641, 89 S. Ct. 584, 587.) There are important resem-
blances between the circumstances here and those in Spinellz.
A search warrant had been issued, and the affidavit submit-
ted in support of it cited a report from an unidentified infor-
mant and also one of an independent FBI investigation which
was said to corroborate the informant’s tip. The affidavit was
more persuading than the one here. It described the infor-
mant as “a confidential, reliable informant” and stated that
Spinelli was known to the affiant-special agent and to Federal
and local law-enforcement officers as a gambler and book-
maker. According to the affidavit the informant had advised
the FBI that Spinelli was operating a handbook and was using
specified telephone numbers in its operation. The Supreme
Court held that the affidavit was insufficient and that the
search warrant had been issued without probable cause. The
court observed: “Though the affiant swore that his confidant
was ‘reliable,’ he offered the magistrate no reason in support
of this conclusion. Perhaps even more important is the fact
Aguilar’s other test has not been satisfied. The tip does not
contain a sufficient statement of the underlying circum-
stances from which the informer concluded that Spinelli was
running a bookmaking operation. We are not told how the
FBI's source received his information — it is not alleged that
the informant personally observed Spinelli at work or that he
had ever placed a bet with him. Moreover, if the informant
came by the information indirectly, he did not explain why
his sources were reliable. [Citation.] In the absence of a state-
ment detailing the manner in which the information was
gathered, it is especially important that the tip described the
accused's criminal activity in sufficient detail that the
magistrate may know that he is relying on something more
substantial than a casual rumor circulating in the underworld
or an accusation based merely on an individual's general
reputation.” (393 U.S. 410, 416, 21 L. Ed. 2d 637, 643-44, 89
S. Ct. 584, 589.) As can be said of the investigative activities
by the law-enforcement officers here, the court in Spinelli
stated: “[WJe find nothing alleged which would permit the
suspicions engendered by the informant'’s report to ripen into
a judgment that a crime was probably being committed. As
we have already seen, the allegations detailing the FBI's
surveillance of Spinelli and its investigation of the telephone
company records contain no suggestion criminal conduct
when taken by themselves — and they are not endowed with
an aura of suspicion by virtue of the informer's tip.” (393 U.S.
410, 418, 21 L. Ed. 2d 637, 645, 89 S. Ct. 584, 590.) The
court commented that the report from the informant was
meager and could easily have been obtained from an offhand
remark heard at a neighborhood bar.
The court in Spinelli did say that while an affidavit may not
satisfy the “basis of knowledge” prong of the Aguilar test by
failing to set out adequately the circumstances explaining
how the confidential information was obtained, this may be
cured if the information set out is so detailed that a magistrate
“could reasonably infer that the informant had gained his in-
formation in a reliable way.” (393 U.S. 410, 417, 21 L. Ed. 2d
637, 644, 89 S. Ct. 584, 589.) Thus an informant's report, if
detailed sufficiently, may in effect verify itself in the sense that
the magistrate, when presented with such detail, can
10a
reasonably infer that the informant had gained his informa-
tion is a reliable way and may be a sufficient basis for a
magistrate’s finding of probable cause for the issuance of a
search warrant. The court cited Draper v. United States
(1959), 358 U.S. 307, 3 L. Ed. 2d $27, 79 S. Ct. 329, a pre-
Aguilar decision, as a “suitable benchmark” upon which to
measure this sufficiency of detail. (393 U.S. 410, 416, 21 L.
Ed. 2d 637, 644, 89S. Ct. 584, 589.) It is important to observe
that in Draper there was not, as here or in Spinelli, an anon-
ymous or unidentified informant but a named informant
whose information, when given to law-enforcement officers
on earlier occasions, had been reliable.
The use of self-verifying detail to find probable cause is
limited, though, to a situation where the informant has not
otherwise disclosed the manner in which he has obtained his
information and thus has failed to satisfy the “basis of
knowledge” prong. While the specificity of detail may be used
to supply the basis-of-knowledge requirement, it cannot
establish that the informant was credible or his information
reliable, in and of itself, so as to meet Aguilar’s “veracity”
prong. The court in Stanley v. State (1974), 19 Md. App. 507,
533, 313 A.2d 847, 862, described this when it observed: “The
notion that great detail implies personal observation rather
than the over-hearing of barroom gossip, presupposes an
honest informant. If the informant were concocting a story
out of the whole cloth, he could fabricate in fine detail as easi-
ly as with rough brush strokes. Minute detail tells us nothing
about ‘veracity.’ " See also People v. Linder (1975), 24 Ill.
App. 3d 995; Note, Probable Cause And The First-Time In-
former: United States v. Harris,, 403 U.S. 573 (1971), 43
Colo. L. Rev. 357, 362 (1972).
Self-verifying detail discussed in Spinelli as a means of satis-
fying the basis-of-knowledge prong must be accepted with
great circumspection. This was expressed by Mr. Justice
lla
Harlan when, as appears in the quotation above from
Spinelli, he cautioned that the tip must describe the claimed
criminal activity in detail adequate to show the magistrate
that he is relying on information more substantial than casual
rumor or an accusation founded only on the accused's general
reputation. We cannot say that the information provided
here was in sufficient detail to lead a magistrate to conclude
that the tip was the product of firsthand knowledge or per-
sonal observation.
That the anonymous informant gave the name of the street
where the defendants resided and stated that they would be
driving from Florida in early May with drugs in the trunk of
their car does not even meet the specificity of detail required
by the court in Draper v. United States (1959), 358 U.S. 307, 3
L. Ed. 2d 327, 79 S. Ct. 329, so as to cure the existing defi-
ciency of the “basis of knowledge” prong. Nor can it be rea-
sonably concluded that the information in the letter was ac-
quired through first-hand knowledge rather than by rumor.
Also, we reiterate and emphasize that here the informant was
anonymous. In Draper the informant was named and iden-
tified as one who earlier had given information to law-
enforcement officers that had been reliable.
The corroborative evidence gathered by Detective Mader,
when coupled with the “detail” of the informant’s letter, did
not constitute probable cause under the tests of Aguilar. The
appellate court, in addressing this question of corroborative
evidence, rejected the State's contention that corroboration
can be use® to satisfy the “veracity” prong as well as the “basis
of knowleuge” prong of the Aguilar test. The court held that
partial corroboration may be considered only to support the
contention that the information obtained was reliable. Citing
Stanley v. State (1974), 19 Md. App. 508, 531, 313 A.2d 847,
861-62, the court held that corroboration may not serve as a
means of satisfying the “basis of knowledge” prong.
l2a
Courts are not in agreement on the question of whether
partial corroboration, combined with an informant’s tip, may
cure a deficiency in either prong of the Aguilar test. See, e.g.,
1 LaFave, Search and Seizure sec. 3.3 (1978); Moylan, Hear-
say and Probable Cause: An Aguilar and Spinelli Primer, 25
Mercer L. Rev. 741 (1974); Stanley v. State (1974), 19 Md.
App. 507, 313 A.2d 847.
We need not consider this question, however, since the
nature of the corroborating “evidence” in this case would
satisfy neither the “basis of knowledge” nor the “veracity”
prong of Aguilar. Looking to the affidavit submitted as sup-
port for Detective Mader’s request that a search warrant issue,
we note that the corroborative evidence here was only of clear-
ly innocent activity. Mader’s independent investigation re-
vealed only that Lance and Susan Gates lived on Greenway
Drive; that Lance Gates booked passage on a flight to Florida;
that upon arriving he entered a room registered to his wife;
and that he and his wife left the hotel together by car. The
corroboration of innocent activity is insufficient to support a
finding of probable cause. See Whiteley v. Warden of Wyom-
ing State Penitentiary (1971), 401 U.S. 560, 567, 28 L. Ed. 2d
306, 312-13, 91 S. Ct. 1031, 1036.
For the reasons given above, the judgment of the appellate
court is affirmed.
Judgment affirmed.
MR.JUSTICE MORAN, dissenting:
The majority concludes that the letter combined with the
facts gleaned from the police investigation does not satisfy
either prong of the Aguzlar test. I disagree. As the opinion
points out, the letter did not reveal that the informant had
personal knowledge of the criminal activity, the method by
which the “basis of knowledge” prong is generally satisfied.
13a
However, that prong can be satisfied by sufficiently specific
detail and corroborating information. (Spinelli v. United
States (1969), 393 U.S. 410, 416-17, 21 L. Ed. 2d 637, 644, 89
S. Ct. 584, 589.) That the necessary specificity of the initial
information and the requisite corroboration were present
here can be demonstrated by a comparison with three United
States Supreme Court cases.
Draper v. United States (1959), 358 U.S. 307, 3 L. Ed. 2d
327, 79 S. Ct. 329, involved an arrest without a warrant.
There, an informant gave a Federal narcotics agent informa-
tion regarding narcotics law violations. On a motion to sup-
press, the agent testified that he “had always found the infor-
mation given by [the informant] to be accurate and reliable.”
(358 U.S. 307, 309, 3 L. Ed. 2d $327. 329, 79 S. Ct. 329, 331.)
No underlying facts established this conclusion. However, the
informant told the agent that Draper had gone to Chicago the
day before by train and that he would return to Denver by
train with three ounces of heroin on one of two specified
mornings. In addition, the informant described Draper's
physical appearance, the clothes he was wearing, that he
would be carrying a tan zipper bag, and that he walked quick-
ly. The court found that the agent had probable cause to ar-
rest when a man fitting Draper's description stepped off the
specified train.
In Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 24723,
84S. Ct. 1509, police officers, in support of their application
for a search warrant, submitted an affidavit stating:
“Affiants have received reliable information from a
credible person and do believe that heroin, marijuana,
barbiturates and other narcotics and narcotic parapher-
nalia are being kept at the above desc: Sed premises for
the purpose of sale and use contrary to the provisions of
the law.” ($78 U.S. 108, 109, 12 L. Ed. 2d 723, 725, 84S.
Cr. 1509, 1511.)
l4a
The court found that the information merely reflected the in-
formant’s “ ‘suspicion,’ ‘belief or ‘mere conclusion.’ ” (378
U.S. 108, 114, 12 L. Ed. 2d 723, 729, 84S. Ct. 1509, 1514.)
In so holding, it established the two-pronged standard for
evaluating if a search warrant should issue:
“[T]he magistrate must be informed of some of the un-
derlying circumstances from which the informant con-
cluded that the narcotics were where he claimed they
were, and some of the underlying circumstances from
which the officer concluded that the informant, whose
identity need not be disclosed [citation], was ‘credible’ or
his information ‘reliable.”” 378 U.S. 108, 114, 12 L. Ed.
2d 723, 729, 84S. Ct. 1509, 1514.
With this test as the standard, the Supreme Court decided
Spinelli v. United States (1969), 393 U.S. 410, 21 L. Ed. 637,
89 S. Ct. 584. In that case, the affidavit stated that Spinelli
was known to law-enforcement agents as a bookmaker and a
gambler, and that the FBI had “been informed by a confiden-
tial reliable informant that William Spinelli is operating a
handbook and accepting wagers and disseminating wagering
information by means of telephones which have been assigned
and numbers WYdown 4-0029 and Wydown 4-0136.” 393
U.S. 410, 414, 21 L. Ed. 2d 637, 642, 89 S. Ct. 584, 588.
The court contrasted the informant’s tip with the informa-
tion provided by the informant in Draper. The court conclud-
ed that a magistrate could infer from the tip in Draper that
the informant had gained his information in a reliable way
whereas, in the case before it, the report could have been ob-
tained from an offhand remark heard at a neighborhood bar.
The court also found that the investigative police work in
Draper corroborated much more than one small detail and
resulted in the inference that the report was reliable. In con-
trast, the investigation in Spinelli corroborated only that
Spinelli could have used two telephones for gambling or for
15a
some other purpose, and was insufficient to support the
reliability of the information. The court stated:
“{In Draper], the police, upon meeting the inbound
Denver train on the second morning specified by in-
former Hereford, saw a man whose dress corresponded
precisely to Hereford’s detailed description. It was then
apparent that the informant had not been fabricating his
report out of whole cloth; since the report was of the sort
which in common experience may be recognized as hav-
ing been obtained in a reliable way, it was perfectly clear
that probable cause had been established.” 393 U.S. 410,
417-18, 21 L. Ed. 2d 637, 644, 89 S. Ct. 584, 590.
When comparing the affidavits in Aguilar and Spinelli and
the testimony of the agent in Draper to the affidavit here, it is
clear that this case is more similar to Draper, than to Aguilar
and Spinelli. In Aguilar, the information in the affidavit con-
sisted of mere conclusions and did not satisfy either prong of
the standard established here. Similarly, in Spinelli the af-
fidavit did not contain a sufficient statement of the underly-
ing circumstances from which the magistrate could conclude
that the informer had knowledge that Spinelli was running a
bookmaking operation. Further, the court found that al-
though the affiant swore that his confidant was reliable, he of-
fered the magistrate no reason in support of this conclusion.
In this case, however, as in Draper, a specific, detailed and
future sequence of evemts was supplied by the informant’s let-
ter. As already stated, in Draper the tip was that a man fitting
a particular description had gone to Chicago and would be
arriving on a particular train in Denver on one of two speci-
fied mornings carrying three ounces of heroin. Here, the let-
ter revealed that on May 3, in compliance with their usual
procedure, Sue Gates would be driving down to Florida to
purchase drugs. It further stated that Lance Gates would be
flying down a few days later to drive their car back to
l6a
Bioomingdale carrying over $100,000 in drugs in the trunk.
The police investigation showed that on May 5 a person mat-
ching Lance Gates’ description flew to West Palm Beach,
Florida, and proceeded to the Holiday Inn West to a room
registered to Susan Gates. On May 6, 7 a.m., Gates and an
unidentified female left the motel driving a red-vinyl-over-
gray Mercury. The investigation disclosed that Gates and the
woman left the West Palm Beach area driving northbound on
an interstate highway and that the driving time to Bloom-
ingdale was 21 to 23 hours. In this case, as in Draper, every
detail of the informant’s information was corroborated by the
police investigation. The specific, detailed information in the
letter combined with the corroboration clearly indicates that
the informant had an underlying basis of knowledge, satisfy-
ing Aguilar’s first prong.
In addition, the specific information contained in the letter
which was then corroborated proved the informant’s state-
ments to be credible and reliable, thereby satisfying Aguzlar’s
second prong. The majority opinion attempts to distinguish
Draper by observing in that case there was a named informant
who had given the agent reliable information on other occa-
sions. However, the agent's statement as to the informant’s
reliability was a mere conclusion. It is questionable whether
that naked assertion would satisfy Aguélar’s second prong in
that it does not present any underlying circumstances from
which the judge could determine if the informant is credible
or his information reliable. That statement is not essentially
different from the one made in Spinelli that the “informant
was reliable.” The point is, however, that under the court's
analysis in Spinelli, the result in Draper, in light of Aguilar,
does not hinge on the mere averment that the informant had
previously given reliable information. Rather, the determin-
ing factor in establishing probable cause and complying with
both prongs of Aguilar is the specificity of the tip combined
with the police verification by investigation.
17a
Finally, the majority, citing Whiteley v. Warden of Wyom-
ing State Penitentiary (1971), 401 U.S. 560, 567, 28 L. Ed. 2d
306, 312-13, 91 S. Ct. 1031, 1036, finds that the corroborat-
ing information combined with the tip would not satisfy
either prong of the Aguilar test because the corroborating
evidence was of clearly innocent activity. This conclusion is
incorrect. First, in Whiteley, the corroborating evidence was
simply that the sheriff knew the defendants and the kind of
car they drove. The court in Whiteley specifically stated:
“{T]he additional information acquired by the arresting
officers must in some sense be corroborative of the in-
former's tip that the arrestees committed the felony or, as
in Draper itself, were in the process of committing the
felony.” 401 U.S. 560, 567, 28 L. Ed. 2d 306, 312-13, 91
S. Cr. 1031, 1036.
In Draper, the corroborating information also related to
innocent acitivity — a man fitting a particular description
stepped off a train on a specific day carrying a tan zipper bag.
Yet, the court in Whitley, as well as in Spinelli, clearly held
that this ype of detailed information can be used to cor-
roborate an informant’s tip. The key is whether the cor-
roborative evidence is endowed with an aura of suspicion by
virtue of the informant's tip. (See Spinelli _v. United States
(1969), 393 U.S. 410, 418, 21 L. Ed. 2d 637, 645, 89S. Ct.
584, 590.) In this case, just as in Draper, seemingly innocent
activity became suspicious in light of the initial tip.
Here, the police went through the desired procedure of ob-
taining a warrant. The judge had before him, by way of af-
fidavit, information from which he reasonably could con-
clude that the informant had knowledge that the Gates were
involved in criminal activity and that the information was re-
liable. Under the standard enunciated in Spinelli, the judge
could conclude he was relying on more than casual rumor or
reputation and that the report had not been fabricated “out
18a
of whole cloth.” (See Spinelli v. United States (1969), 393 U.S.
410, 416, 417, 21 L. Ed. 2d 637, 644, 89 S. Ct. 584, 590.)
Probable cause was determined by a neutral and detached
judge. (See Johnson v. United States (1948), 333 U.S. 10, 14,
92 L. Ed. 436, 440, 68 S. Ct. 367, 369.) Issuance of a search
warrant in the instant case is consistent with the rationale
underlying Aguilar, as applied in Spinelli, and does not at-
tenuate one’s right to be free from unreasonable searches and
seizures as guaranteed by the United States and Illinois con-
stitutions.
For the above-stated reasons, I must respectfully dissent.
MR. JUSTICE UNDERWOOD joins in this dissent.
lb
APPELLA “E COURT OPINION
(Filed April 1, 1980)
NO. 78-570
IN THE APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-A ppellant, Appeal from the Circuit
Court
v. of the 18th Judicial Circuit,
LANCE GATES AND SUSAN
GATES, DuPage County, Illinois
Defendant-A ppellees.
Mr. JUSTICE LINDBERG delivered the opinion of the court.
The State appeals on order entered by the Circuit Court of
DuPage County which quashed a search warrant and sup-
pressed the evidence seized pursuant to the authority of the
warrant. At issue is whether the warrant was sufficient under
the standards set forth in Aguilar v. Texas (1964), 378 U.S.
108, 12 L.Ed. 2d 723, 84S. Ct. 1509, and Spinelli v. United
States (1969), 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584.
We affirm.
The facts are straightforward. On May 3, 1978, the Bloom-
ingdale Police Deparment received a handwritten, anony-
mous letter which had no return address. The letter recited as
follows:
“This letter is to inform you that you have a couple in
your town who strictly make their living on selling drugs.
They are Sue and Lance Gates, they live on Greenway,
off Bloomingdale Road, in the condominiums. Most of
their buys are done in Florida. Sue his wife drives their
2b
car to Florida, where she leaves it to be loaded up with
drugs, than flys [sic] back after she drops the car off in
Florida. May 3, she is driving down there again and
Lance will be flying down in a few days to drive it back.
At the time Lance drives the car back he has the trunk
loaded with over $100,000.00 in drugs. Presently they
have over $100,000 worth of drugs in their basement.
“They brag about the fact that they never have to
work, and make their entire living on pushers.
“I guarentee [sic] if you watch them carefully you will
make a big catch. They are friends with some big drug
dealers, who visit their house often.
Lance and Sue Gates
Greenway
In Condominiums”
On the same day the letter was received, Detective Charles
Mader of the Bloomingdale Police Department made an in-
quiry to the Secretary of State's Office regarding the driver's
license of one Lance Gates. The computer reply stated that an
Illinois Drivers License had been issued to a Lance B. Gates,
whose address was listed at 209 D, Dartmouth Drive, Bloom-
ingdale, Illinois. His physical description was given as follows:
Sex — Male
Date of Birth — July 13, 1947
Height — 5° 11”
Weight — 220 pounds
Hair — Brown
Eyes — Brown
Later the same day, Detective Mader contacted a confiden-
tial informant. Detective Mader had known this informant
for approximately two years during which time the informant
had provided the detective with information which resulted in
seven criminal convictions. This informant told the Detective
3b
that Lance B. Gates’ current address was 198 B. Greenway
Drive, Bloomingdale, Illinois.
Detective Mader then called Officer Ott of the Chicago
Police Department who at that time was assigned to O'Hare
Airport. Officer Ott reviewed flight information and stated
that L. Gates, phone number 980-8427, was scheduled to
depart Chicago-O’Hare on May 5, 1978, on Eastern Airlines
Flight 245, departing at 4:15 p.m. The flight was scheduled
from Chicago to Atlanta and then to West Palm Beach,
Florida.
Detective Mader then told the radio operator at the Bloom-
ingdale Police Department to call the Security Office of the Il-
linois Bell Telephone Company. The radio operator was told
that telephone number 980-8427 was a non-published num-
ber issued to Lance B. Gates whose address is 189 B Greenway
Drive, Bloomingdale, Illinois.
On May 5, 1978, Detective Mader was telephoned by Agent
William Morely of the Drug Enforcement Agency. He told
Mader that, pursuant to a prior arrangement with the Detec-
tive, he had maintained a surveillance on all passengers boar-
ding Flight 245. He told Mader that a person matching the
description of, and using the name Lance Gates had boarded
the flight.
Agent Morely called Mader the next day and told him that
an agent in Florida had just completed a surveillance on
Lance Gates in West Palm Beach. This Florida agent told
Morely that he observed the defendant remain in the airport
for approximately one hour after his arrival. He next saw him
take a taxi which the agent followed to the Holiday Inn in
West Palm Beach. The defendant went to a room which was
registered to Susan Gates. At approximately 7:00 a.m. on
May 6, 1978, the Florida agent saw Lance Gates and a female
leave the room, go to the parking lot, and get in a red vinyl
4b
over gray Mercury bearing Illinois license plates RS8437. The
Florida agent followed this Mercury northbound to an in-
terstate which is commmonly used by travelers to the Chicago
area. At that point the surveillance was terminated.
Agent Morely also told Detective Mader that the license
plate RS8437 was registered to the defendant but for a 1975
Hornet station wagon. Finally Agent Morely advised the
Detective that the approximate driving time from West Palm
Beach to Bloomingdale is 21-23 hours.
A complaint for search warrant was prepared and
presented for approval to an associate judge. The complaint
attached an affidavit signed by Detective Mader, which
recited substantially the same facts as set forth above, and in-
cluded a copy of the anonymous note as an attachment to the
affidavit.' The request for the issuance of the warrant was ap-
proved, and a search warrant was issued authorizing police to
search the person of both defendants, their condominium
located on Greenway in Bloomingdale, and the gray Mercury
driven by Lance Gates.
On May 7, 1978 at approximately 5:15 a.m., Lance and
Susan Gates arrived at the residence of 198 B Greenway Drive,
in Bloomingdale. Pursuant to the warrant, the police search-
ed the car and found “seven large burlap bundles of
cannabis” weighing in excess of 400 pounds. The residence
was then searched, and police discovered numerous rifles, a
handgun, a green garbage can containing approximately
twenty pounds of cannabis, three-fourths of a bale of can-
nabis, numerous baggies and hand-rolled cigarettes contain-
ing cannabis, and assorted weighing devices.
Both defendants were arrested and later were indicted on
various narcotics and firearms’ charges. Prior to trial, a mo-
' The text of the affidavit is set out in full in the appendix.
5b
tion to quash the arrest and suppress evidence was filed on
behalf of both defendants. The basis of the defendants’ mo-
tion was that the warrant failed to comply with the re-
quirements of Aguzlar v. Texas (1964), 378 U.S. 108, 12 L.
Ed. 723, 84S. Ct. 1509, in that the author of the anonymous
letter was not “reliable” and that there was no showing that
his or her information was obtained in a reliable manner.
After a hearing, the trial court granted the defendants’ mo-
tion to quash and suppress, and the State appeals.
The Fourth Amendment of the United States Constitution,
as made applicable to the states by the Fourteenth Amend-
ment, requires that search warrants be issued only upon a
showing of “probable cause.” Whenever a search warrant is
sought on the basis of information supplied by an anonymous
informant, it is necessary that the judge or magistrate issuing
the warrant be provided with sufficient facts and circum-
stances from which he can determine the reliability of the in-
former and the accuracy of his present information so that the
constitutional requirement or probable cause may be sat-
isfied. People v. Thomas (1975), 62 Ill. 2d 375, 378, 342 N.E.
2d 383, 384, People v. Isenberg (1977), 52 Ill. App. 3d 426,
429, 367 N.E. 2d 364.
The leading case of Aguilar v. Texas (1964), 378 U.S. 108,
12 L.Ed. 2d 723, 84S. Ct. 1509, set forth a two-prong test to
be applied by a judge or magistrate in testing the sufficiency
of an affidavit filed in support of the insurance of a search
warrant: first, the judge must be informed of some of the un-
derlying circumstances from which the informant concluded
that the defendants were involved in criminal activity (the
“basis of knowledge” prong); and secondly, the judge must be
informed of some of the underlying circumstances from
which the affiant concluded that the informer of his informa-
tion was worthy of belief (the “veracity” prong). The veracity
prong of the Aguzlar test may be, satisfied by showing either
6b
that the informant, whose identity need not be disclosed, is
“credible” the ("credibility” spur) or that his information is
“reliable” (the “reliability” spur). Aguélar, 378 U.S. at
114-115, 12 L.Ed. 2d at 729, 84S. Ct. at 1514.
Pursuant to the test set forth in Aguilar, the first question
we must address in this case is whether the affidavit was suffi-
cient to inform the issuing judge of the underlying cir-
cumstances from which the anonymous informant reached
his conclusions that defendants were engaged in criminal con-
duct. The affidavit attached to the complaint for search war-
rant does not reveal the manner in which the anonymous in-
former obtained or gathered his information. (Cf. People v.
Gomes (1980), 80 Ill. App. 3d 668, 399 N.E.2d 1030 (infor-
mant had personal knowledge that crime had been commit-
ted); People v. Swift (1978), 61 Ill. App 3d 486, 378 N.E.2d
234 (informer was requested by defendant to participate in
crime.) Thus our inquiry turns to whether the judge could
reasonably infer that the information was gained in a reliable
fashion because of the great amount of detail supplied by the
informer. Spinelli v. United States (1968), 393 U.S. 410, 417,
21 L. Ed. 2d 637, 644, 89 S. Ct. 584, ___.. In Spinelli, the
Supreme Court utilized the detail provided by the informant
in Draper v. United States (1959), 358 U.S. 307, 3 L. Ed. 2d
$27, 79 S. Ct. 329, as an example of the detail required to
satisfy the basis of knowledge prong of the Aguzlar test.
Using Draper as a standard, we are of the opinion that the
information supplied by the anonymous informer does not
contain sufficient detail to allow the issuing judge to
reasonably infer that the informer had obtained his informa-
tion in a reliable way. The anonymous letter contains no more
than general allegations that defendants were involved in nar-
cotics sales. Although the anonymous informer did state that
the Gates would soon drive to Florida and return with a load
7b
of drugs in their car, no details regarding this trip were set
forth in the letter. These general allegations fall far short of
the specifics necessary for a judge to properly infer that the
anonymous informer had gathered his information in a
reliable way. Nor could the judge reasonably assume that the
anonymous informer had personal knowledge on the basis of
the statements set forth in the anonymous letter. In contrast
to the case at bar, the informer in Draper supplied police with
a detailed physical description of the accused, the time and
date of his arrival in Denver by train, and a description of the
clothes he would be wearing. The informer also stated that
the accused had a habit of walking very fast. (Draper, 358
U.S. at 309-10, 3 L. Ed. 2d at 330, 79S. Ct. at .) When
confronted with such detail, a judge could reasonably infer
that the informer either had personal knowledge of the tran-
saction or had obtained his information in a reliable way. The
informer in the instant case set forth few details, however, and
he may have obtained his information through rumor or
through another unreliable method. Hence, the affidavit fails
to meet the basis of knowledge requirements set forth in
Spinelli and Aguilar.
The State argues that there is “substantial basis” for
crediting the information supplied by the anonymous infor-
mant because the allegations set forth in the handwritten let-
ter were fully corroborated by other independent sources. We
cannot agree. Partial corroborration of an informant’s story
may show his information to be “reliable;” however, such
corroboration only satisfies the second prong of the Aguilar
test, i.e., the veracity prong. Corroboration does not establish
that the informer obtained his information in a reliable man-
ner. (1 La Fave, Law of Search and Seizure: A Treatise on the
Fourth Amendment, sec. 3.3.) As stated by the court in the
8b
well-reasoned case of Stanley v. State (1974), 19 Md.App.
508, ___., 313 A.2d 847, 861-62:
“[Tihe ‘independent verification’ technique cannot
repair a defect in the ‘basis of knowledge’ prong. Verify-
ing the truth of part of a story does nothing to ascertain
the story's source or to check the informant’s perhaps in-
valid conclusions. ***
An informant who does not speak from personal
knowledge may well be passing on an amalgam of under-
world rumor and barroom gossip. If that be true, the
verification of one contributing rumor would do nothing
for the ‘veracity’ of other contributing rumors. An infor-
mant may have *** then received incriminating infor-
mation from a third party lending inculpatory color to
those observations. Merely verifying the informant’s in-
nocucus observations does nothing to verify the crucial
third party who supplied the damning catalyst.” (Em-
phasis ours.) (Accord, United States v. Hamilton (%Xh
Cir. 1974), 490 F.2d 598, Garner v. State (Del. 1973),
314 A.2d 908.)
Were we to accept the State’s argument, we would permit
government invasion of the privacy of persons solely on the
basis of anonymous tips, made perhaps out of spite or based
upon unsubstantiated rumor, merely because innocent
details have been verified by the observations of a police of-
ficer. Although some federal and state courts have accepted
the position advanced by the State in this case (see e.g.,
United States v. Tuley (5th Cir. 1977), 546 F.2d 1264 (over
dissent); United States v. Myers (D.C. Cir. 1976), 538 F2d 424
(over dissent); Horton v. State (1977), 262 Ark. 211, 555
S.W.2d 226, State v. Gilbert (1976), 24 Or. App. 907, 547
P.2d 632), we believe that neither the theory nor the cases are
sound and we refuse to follow them.
In view of our determination that the affidavit failed to
satisfy the basis of knowledge prong of the Aguilar test, we
9b
need not address any other issues in this case. For the reasons
stated above, the order of the Circuit Court of DuPage Coun-
ty is affirmed.
AFFIRMED.
SEIDENFELD, NASH, concur.
10b
APPENDIX
Affidavit filed in support of complaint for search warrant:
“I, CHARLES J. MADER, am a detective employed
by the Bloomingdale Police Department, DuPage Coun-
ty, Illinois. I have been so employed for the past five
years. On May 3, 1978, I received a letter sent by an
unknown citizen to the Bloomingdale Police Depart-
ment. I received the letter and the envelope in which it
was sent from Chief Patrick J. McMahon. A copy of the
letter and a transmittal envelope are attached hereto and
incorporated herein by reference.
“On May 3, 1978, I directed a Bloomingdale Police
Department radio operator to make a SOUNDEX
drivers license name inquiry with the Illinois Secretary of
State, Springfield, Illinois to determine whether they had
any record of a LANCE GATES residing in Blooming-
dale, Illinois. The SOUNDEX response established that
one LANCE B. GATES was issued an Illinois drivers
license which listed his address as 209 D. Dartmouth,
Bloomingdale, Illinois. A copy of the response sent by the
Secretary of State is attached hereto and incorporated
herein by reference.
“On May 3, 1978, I contacted a confidential infor-
mant known to me for the past two year period, I have
times, resulting in seven criminal arrests with convictions
in all cases. This confidential informant reviewed certain
financial records available to him and told me that he
located one LANCE B. GATES residing at 198 B. Green-
that GATES’ previous address was 209 D. Dartmouth,
Bloomingdale,
CONTINUED ON PAGE 2
1lb
COMPLAINT FOR SEARCH WARRANT NUMBER S
1603 CONTINUATION OF AFFIDAVIT OF CHARLES J.
MADER PAGE TWO
“On May 8, 1978, I contacted Officer Ott of the Chicago
Police Department at O'Hare Airport. Officer Ort
checked certain flight information available to him and
told me that one L. GATES, phone number 980-8427,
was registered on Eastern Airlines Flight number 245,
scheduled to depart O'Hare on 4:15 P.M. on May 5,
1978. Officer Ott told me that Flight 245 travels from
Chicago to Atlanta and then to West Palm Beach,
Florida.
“I then directed the radio operator to contact the
Security Office of Illinois Bell Telephone Company and
was told by the radio operator that 980-8427 was a non-
published phone numer issued to LANCE GATES at 189
B. Greenway Drive, Bloomingdale, Illinois.
“On May 5, 1978, I was contacted by Agent William
Morely of the Drug Enforcement Administration. He
state that, pursuant to prior arrangement between us, he
had maintained a surveillance on all passengers boarding
Eastern Airlines Flight number 245. He stated further
that in individual using the name LANCE GATES and
matching the physical description furnished by Sc cretary
of State in the attached message boarded Flight 245
bound for Florida.
“On May 6, 1978, Agent Morely contacted me and
said that Drug Enforcement Administration agents in
Florida had just completed a surveillance of LANCE
GATES in West Palm Beach, Florida. He told me that
the Federal agents in Florida observed:
1. GATES arrive in West Palm Beach, Florida via
Eastern Flight Number 245 and remain in the air-
port for one hour before taking a taxi to the West
Palm Beach Holiday Inn;
12b
2 . The room he entered was registered to one SUSAN
GATES;
3 . At 7:00 AM May 6, 1978, LANCE GATES and a
female left the Holiday Inn Room registered to
SUSAN GATES, and entered a red vinyl over gray
Mercury bearing Illinois 1978 license RS 8437;
4 . LANCE GATES and the female left the West Palm
Beach area driving the Mercury northbound on
that interstate highway commonly used by travelers
to the Chicago area.
“Agent Morely further told me that a check of the
records of the Illinois Secretary of State revealed that
license RS 8437 registers to LANCE B. GATES on a 1975
Hornet station wagon.
“Agent Morely also told me that the driving time from
West Palm Beach, Florida to Bloomingdale, Illinois is
approximately 21-23 hours.”
“/s/ DET. CHARLES J. MADER
Complainant”
“PAGE WO OF TWO PAGES
“s/ SUSCRIBED AND SWORN
TO BEFORE ME ON MAY 6, 1978
S. K. LEWIS
Assoc. Judge”
13b
Gnited States of America
State of Illinois,
Appellate Court, $8.
Second District, |
I, LOREN J. STROTZ, Clerk of the Appellate Court, in and for
said Second Judicial District of the State of Illinois, and the keeper
of the Records and Seal thereof, do hereby certify that the foregoing
is a true, full and complete copy of the Opinion of the said Ap-
peilate Court in the above entitled cause of record in my said office.
IN TESTIMONY WHEREOF, I have set my hand and
affixed the seal of the said Appellate Court, in Elgin,
in said State, this 1st day of April, A.D. 1980.
/$/ LOREN J. STROTZ
Clerk Appellate Court, Second
District.
jaug
le}uawejddns —
ans~dii.
In the Supreme Court of the
OCTOBER TERM, 1981
Lance GATES AND SUSAN GATES,
RESPONDENTS.
On Writ Of Certiorari To
The Supreme Court Of Illinois
MOTION FOR LEAVE TO AMEND OR ENLARGE
QUESTION PRESENTED FOR REVIEW
Tyrone C. PAHNER
Attorney General
State of Illinois
Hersert Lee Caran
Matsourne A. Nok, Jr.
Assistant Attorneys General
188 W. Randolph Street
Suite 2200
Chicago, Illinois 60601
(312) 793-2570
. _ Pty he ty eS of ha — 248
ae x er < ee eS MB ee Se cae Rah OY SSR ee eee.
No. 81-430
In the Supreme Court of the Anited States
OCTOBER TERM, 1981
Tue STATE OF ILLINOIs,
PETITIONER,
vs.
LANCE GATES AND SUSAN GATES,
RESPONDENTS.
On Writ Of Certiorari To
The Supreme Court Of Illinois
MOTION FOR LEAVE TO AMEND OR ENLARGE
QUESTION PRESENTED FOR REVIEW
Petitioner, the State of Illinois, by its attorney, TYRONE
C. FAHNER, Attorney General of the State of Illinois, moves
the Court to grant petitioner leave to amend or enlarge the
question presented by its Petition for Certiorari to include the
issue of whether the recently recognized good faith exception
to the exclusionary rule precludes application of the Fourth
Amendment exclusionary rule to the present case. Petitioner
presents this Motion pursuant to Rules 42 and 21(1)(a) of the
Rules of the Supreme Court of the United States.
In support of the above Motion petitioner states as follows:
1. On August 23, 1981, the State of Illinois filed the Peti-
tion for Writ of Certiorari in the above-captioned case and
formulated the following single question presented for review:
Whether detailed information provided to police by an anony-
mous informer, coupled with government corroboration of the
information, provide probable cause for the issuance of a
search warrant?
Petition at i.
2. This Court granted certiorari on January 11, 1982, in a
brief order that made no reference to the question presented;
the joint appendix and brief for petitioner were ordered filed
by February 25, 1982 and the case was tentatively scheduled
for argument in April.
3. On November 3, 1981, this court granted certiorari in
Taylor v. Alabama, No. 81-5152, 50 U.S.L.W. 3351, a case in
which the Supreme Court of Alabama decided, inter alia,
that it would be improper to apply the exclusionary rule to the
fruit of an illegal arrest (a confession) where the police were
justified at the time of the arrest in their good faith belief that
the arrest was made on probable cause. Taylor will be argued
in March. Both the State of Alabama and the amici support-
ing the State have made an argument based on the good faith
exception to the exclusionary rule, first given significant judi-
cial recognition in United States v. Williams, 622 F.2d 830,
846-7 (5th Cir. en banc, 1980), cert. den., 101 S. Ct. 946
(1981).
4. Although the good faith exception was not raised in the
present Petition, not argued directly by the State’s Attorney in
the Illinois courts and not discussed in the opinions of the Illi-
nois reviewing courts, the State of Illinois urges, based upon
this Court's decisions waiving the strict requirements of the
predecessors to United States Supreme Rules 21(1)(a) and
(h), that the Question Presented be amended or enlarged to
include the following:
Assuming, arguendo, that the information used to obtain the
search warrant did not satisfy Aguilar v. Texas, 378 U.S. 108
(1964), should the evidence obtained under the warrant never-
theless be admitted at trial because the police acted in a rea-
sonable good faith belief in the validity of the warrant?
5. This Court has in the past granted motions by petition-
ers to amend their Questions Presented to add issues in cases
which were taken on certiorari. E.g., Costello v. United
States, 362 U.S. 973, 365 U.S. 265, 284-85 (1961).
Also the Court has expressed its willingness to consider
points not raised and preserved below where changes ave
occurring in the law which will culminate in the overruling or
limiting of an authority or where a basic unfairness might
escape review if the Rules were strictly applied. Blonder-
Tongue Labs, Inc. v. University of Illinois Foundation, 402
U.S. 313, 319-321 (1971); Erie Railroad Co. v. Tompkéns,
304 U.S. 54, 66 (1938). See dissenting opinion of Mr. Justice
Black in Standard Industries v. Tigrett, Inc., 397 U.S. 586,
587 (1970) in which he maintained that the Court had fre-
quently allowed parties to raise issues for the first time on ap-
peal when there had been a significant change in the law since
the trial. See also, Stern & Gressman, Supreme Court Prac-
tice, (5th edition, 1978), sect. 6.27.
The present case was heard in the Illinois trial court and
briefed on direct appeal by the State before the good faith ex-
ception to the exclusionary rule was adopted by any reviewing
court in a significant, published opinion. Thus, petitioner's
motion to enlarge the question presented comes within the
circumstances and rulings in the Costello and Blonder-
Tongue cases where the additional issues raised were consid-
ered by this Court.
6. The facts leading to execution of the search warrant in
the present case make it a particularly appropriate one in
which to consider adopting and applying the good faith ex-
ception to the exclusionary rule. Before searching the Gates’
clothing, car, and residence for drugs, police respected the ju-
dicial preference for search warrants, going first to an assis-
tant state’s attorney to write up a complaint and then before
an associate judge for a warrant. The complaint for search
warrant covered two pages and was based upon official sur-
veillance of the Gates’ activities as well as on the detailed in-
formant’s letter (R.C. 131 and 136). When the warrant was
properly executed seven hours later, police recovered 400 Ibs.
of cannabis from the Gates’ car, approximately one bale of
cannabis found near weighing and distribution supplies in the
house and numerous firearms (R.C. 133-4). The decision to
suppress evidence obtained during the search was based upon
the alleged technical failure of the complaint for a warrant to
satisfy the test set down by this Court in Aguilar v. Texas, 378
U.S. 108 (1964).
The record in this case establishes that police acted on the
reasonable good faith belief that the assistant state’s attorney
and judge knew the law of search and seizure and produced a
valid warrant. The history of this litigation demonstrates that
the police and state's attorney cannot be faulted for failing to
identify an Aguilar flaw in the complaint. The issuing judge
and trial judge differed on the sufficiency of the complaint.
Furthermore, the Illinois Appellate Court and the Supreme
Court of Illinois seem to have differed on whether the com-
plaint satisfied one prong of the Aguilar test, while one of the
most experienced members of the Supreme Court, Justice
Moran, dissented from the majority's opinion and found the
warrant totally valid. (Appendix to Petition, pp. 12a, 18a and
7-8b).
WHEREFORE, petitioner asks that this Honorable Court
grant its Motion to Amend or Enlarge the Question Presented
for Review.
Respectfully submitted,
TYRONE C. FAHNER
Attorney General
State of Illinois
BY:
MELBOURNE A. NOEL, JR.
Assistant Attorney General
188 West Randolph St.,
Suite 2200
Chicago, Illinois 60601
(312) 793-2570
ee
as
—— i‘
-—-
>
lie.
3n the Supreme Court of the Anited States
Tue Stare or ILumNots,
Petitioner,
v.
LANcE GATES AND SusAN GATES,
Respondents.
On Writ of Certiorari To
The Supreme Court of Illinois
JOINT APPENDIX
Tyrone C. FAHNER
Attorney General
State of Illinois
Paut P. Breset, Jr.
First Assistant Attorney General
Daniet M. Harris
Assistant Attorney General
160 North LaSalle Street
Room 800
Chicago, Illinois 60601
(312) 793-4714
Attorneys for Petitioner.
Printed by the Authority of the State of Illinois — {3-25-82}
TABLE OF CONTENTS
PAGE
Illinois Supreme Court Opinion ................- la
Illinois Appellate Court Opinion ................. Ib
Affidavit for Search Warrant ..................-. 10b
la
SUPREME COURT OPINION
Docket No. 53453 — Agenda 6 — January 1981.
THE PEOPLE OF THE STATE OF ILLINOIS,
Appellant,
v. LANCE GATES et al., Appellees.
MR. JUSTICE WARD delivered the opinion of the court:
On May 3, 1978, the Bloomingdale police department
received by mail an anonymous handwritten letter which al-
leged that Susan Gates and Lance Gates, her husband, were
planning to travel to Florida in a few days for the purpose of
obtaining illegal drugs. The letter read:
**This letter is to inform you that you have a
couple in your town who strictly make their living
on selling drugs. They are Sue and Lance Gates,
they live on Greenway, off Bloomingdale Rd. in
the condominiums. Most of their buys are done in
Florida. Sue his wife drives their car to Florida
where she leaves it to be loaded up with drugs, then
Lance flys [sic] down and drives it back. Sue flys
[sic] back after she drops the car off in Florida. May
3 she is driving down there again and Lance will be
flying down in a few days to drive it back. At the
time Lance drives the car back he has the trunk
loaded with over $100,000.00 in drugs. Presently
they have over $100,000.00 worth of drugs in their
basement.
They brag about the fact they never have to
work, and make their entire living on pushers.
I guarantee [sic] if you watch them carefully you
will make a big catch. They are friends with some
big drugs dealers, who visit their house often.
Lance & Sue Gates
Greenway
in Condominiums.”’
2a
The chief of police delivered the letter to Charles Mader, a
detective of the Bloomingdale police department and he re-
quested one of the department’s radio operators to seek as-
sistance from the Secretary of State’s office in Springfield in
obtaining a specific address for the Gates. That office advised
that an Illinois driver’s license had been issued to a Lance
Gates residing at a stated address in Bloomingdale. Mader
then communicated with a confidential informant who had,
he claimed, provided reliable information to Mader during
the previous two years. Upon examining certain financial
records to which the informant had access, he reported a new
address on Greenway Drive in Bloomingdale for the Lance
Gates who had previously resided at the address in Bloom-
ingdale furnished by the Secretary of State’s office.
Upon inquiry, Mader was told by an officer of the Chicago
police department assigned to O’Hare Airport that ‘‘L.
Gates’’ had made a reservation with Eastern Airlines on its
flight 245, which was to depart from O’ Hare on May 5, at
4:15 p.m. The final destination was West Palm Beach,
Florida.
On May 5, Mader was told by William Morely, an agent
of the Drug Enforcement Administration, that ‘‘Lance
Gates’’ had boarded Eastern Airlines flight 245 bound for
Florida. The following day Morely informed Mader that
Gates had arrived in West Palm Beach, had proceeded by
cab to the West Palm Beach Holiday Inn, and had entered a
room registered to Susan Gates. Agent Morely told him that
he observed Gates and an unidentified woman leave the
room at 7 a.m. and enter a red-vinyl-over-gray Mercury
with 1978 Illinois license number RS 8437. Records at the
Secretary of State’s office showed that the license plate was
registered for Lance B. Gates, but had been issued for a dif-
ferent automobile.
3a
Based on the anonymous letter, the described information
obtained from the law-enforcement authorities, and the veri-
fication of the address obtained from the confidential inform-
ant, Mader, on May 6, sought and obtained in the circuit
court of DuPage County, a search warrant for both the
Gates’ residence in Bloomingdale and the car they were driv-
ing in Florida.
At 5:15 a.m. on May 7, Lance and Susan Gates returned
by car to their home on Greenway Drive. They were imme-
diately served with a search warrant by waiting Blooming-
dale police officers. In the trunk of the Mercury the officers
found several large bundles of marijuana weighing a total of
approximately 350 pounds. A search of the Gates’ residence
uncovered more marijuana, weapons, ammunition, drug
paraphernalia, and several scales presumably used for
weighing the drugs. Police also ascertained that the couple
had cocaine in their possession. They were indicied for un-
lawful possession of cannabis with intent to deliver and un-
lawful possession of a controlled substance. Lance Gates was
separately indicted for possession of an unlicensed firearm.
The defendants filed a pretrial motion to quash the search
warrant and to suppress all physical evidence obtained as a
result of the search, arguing that the anonymous letter did
not set forth the underlying circumstances or manner in
which the informant acquired the information or that the in-
formation was reliable as required under the test for probable
cause described in Aguilar v. Texas (1964), 378 U.S. 108,-12
L.Ed. 2d 723, 84 S.Ct. 1509. The defendants also argued
that the separate evidence obtained by Detective Mader in
his independent investigations did not corroborate the
anonymous informant’s accusations that the Gateses were
involved in criminal activity so as to support the issuance of a
search warrant based on probable cause. The motions to
quash and to suppress evidence were allowed by the circuit
4a
court of DuPage County, and its action was affirmed by the
appellaie court (82 Ill. App. 3d 749). We granted the State’s
petition for leave to appeal. 73 Ill. 2d R. 315(a).
Both the Constitution of the United States (U.S. Const.,
amend. IV) and the Constitution of Illinois (Ill. Const. 1970,
art. I, sec. 6) provide assurance against unreasonable
searches and seizures of person and property. The determi-
nation of probable cause for the issuance of a search warrant
must be made by a ‘‘neutral and detached magistrate instead
of being judged by the officer engaged in the often competi-
tive enterprise of ferreting out crime.’’ (Johnson v. United
States (1948), 333 U.S. 10, 14, 92 L.Ed 436, 440, 68 S.Ct.
367, 369.) This determination also must be based upon the
sworn observations or on other sufficient facts or circum-
stances presented under oath before a magistrate. The Su-
preme Court in Aguilar v. Texas (1964), 378 U.S. 108, 12
L.Ed. 2d 723, 84 S.Ct. 1509, considering its decisions in
Giordenello v. United States (1958), 357 U.S. 480, 2 L.Ed. 2d
1503, 78 S.Ct. 1245, Johnson v. United States (1948), 333 U.S.
10, 92 L.Ed. 436, 68 S.Ct. 367, Nathanson v. United States
(1933), 290 U.S. 41, 78 L.Fd. 159, 54 §.Ct. 11, and United
States v. Lefkowitz (1932), 285 U.S. 452, 76 L.Ed. 877, 52
S.Ct. 420, announced the constitutional standard to be used
by courts in deciding whether a search warrant might prop-
erly issue when the complaint for the search warrant is based
in waole or in part upon information supplied by an anony-
mous or unidentified informant. The court stated:
**Although an affidavit may be based on hearsay
information and need not reflect the direct personal
observations of the affiant [citation], the magistrate
must be informed of some of the underlying circum-
stances from which the information concluded that
the narcotics were where he claimed they were, and
some of the underlying circumstances from which
5a
the officer concluded that the informant, whose
identity need not be disclosed [citation], was ‘credi-
ble’ or his information ‘reliable.’’’ 378 U.S. 108,
114, 12 L.Ed. 2d 723, 729, 84 S.Ct. 1509, 1514.
The first part of this standard or test is often referred to as
the ‘‘basis of knowledge prong’’ and the second part as the
**veracity prong.”’
In Aguilar, an officer of the Houston police department ap-
plied for a search warrant on the ground that “‘ ‘reliable in-
formation [had been received] from a credible perso,’ ’’ that
the defendant was known to have drugs on his premises for
purposes of sale and personal use. The court described the af-
fidavit as containing ‘‘ ‘no affirmative allegation that the af-
fiant spoke with personal knowledge of the matters contained
therein’’’ or ‘‘that the affiant’s unidentified source ‘spoke
with personal knowledge.’’’ The court further stated that
“*the source here merely suspected, believed or concluded
that there were narcotics in petitioner’s possession. The
magistrate here certainly should not ‘judge for himself the
persuasiveness of the facts relied on * * * to show probable
cause.’ He necessarily accepted ‘without question’ the in-
formant’s ‘suspicion,’ ‘belief’ or ‘mere conclusion.’’’ (378
U.S. 108, 109, 113-14, 12 L.Ed. 2d 723, 725, 728-29, 84
S.Ct. 1509, 1511, 1513-14, quoting Nathanson and
Giordenello.) The court held that the evidence obtained from a
search conducted with the warrant was inadmissible and
remanded the case for further proceedings.
The first prong, or the ‘‘basis of knowledge’’ part of the
test announced in Aguilar, is concerned with the facts and cir-
cumstances showing that the informant knew that the person
named has been or will be involved in criminal conduct. The
most common means of satisfying this requirement is by the
informant’s declaration that he is revealing personal knowl-
edge gathered through some physical sensory faculty such as
6a
that of sight, smell or sound. (See, ¢.g., Stanley v. State (1974),
19 Md. App. 507, 531, 313 A.2d 847, 861). Statements con-
taining mere conclusions of criminal activity without a state-
ment regarding independent facts and personal observations
do not provide a sufficient basis for a neutral magistrate to
decide to issue a search warrant.
Looking at the anonymous handwritten letter here one can
only observe that it does not contain any statement showing
that the information was acquired through firsthand or per-
sonal knowledge of the informant. The informant states that
the defendants make their living by selling drugs but he does
not set out the source of this knowledge or the ground for his
conclusion. There is the statement that the defendants
boasted of their illegal occupation, but one does not know
whether they made these comments to the informant or
whether this was hearsay. Similarly, the informant states
that the defendants will be returning from Florida with over
$100,000 in drugs and that there is over $100,000 worth of
drugs in their basement. No basis of knowledge for this is
given. There is no statement made that the informant ever
saw drugs or was inside the defendants’ vesidence or even
that someone had told him of any of these claimed facts. The
letter set out mere conclusions and contained no statements
of personal observation or firsthand knowledge.
The second part of the Aguilar test, often, as noted, re-
ferred to as the ‘‘veracity prong,’’ requires a showing of the
underlying circumstances from which it was concluded that
the informant was ‘‘‘credible’’’ or his information
***reliable.’’’ (378 U.S. 108, 114-15, 12 L.Ed.2d 723, 729,
84 S.Ct. 1509, 1514.) Though it is not necessary to consider
this ‘‘prong’’ where the ‘‘basis of knowledge’ part has not
been satisfied, we shall comment on it because of the State’s
arguments discussed later relating to self-verifying detail and
corroborating evidence as support for the search warrant
here.
7a
The name of an informant need not be revealed to the
magistrate before a search warrant is issued so long as it is
established that the informant is credible. This requirement
is usually satisifed by reciting in the affidavit previous in-
stances in which the affiant police officer has obtained infor-
mation from the informant that led to various arrests and
convictions. (See McCray v. Illinois (1967), 386 U.S. 300, 18
L.Ed.2d 62, 87 S.Ct. 1056; People v. Garcia (1975), 27 Ill.
App. 3d 396.) Here, the informant’s identity was not known
to the affiant, Detective Mader. There was simply no basis
on which either Mader or the magistrate could conclude that
the anonymous person was credible.
The failure to satisfy under Aguilar that the information
was credible does not of itself mean that the ‘‘veracity
prong’’ requirements cannot be met. It may be satisfied by a
showing that the informant’s tip was reliable. United States v.
Harris (1971), 403 U.S. 573, 29 L.Ed. 2d 723, 91 S.Ct. 2075,
shows that a plurality of the court considered that “be alterna-
tive requirement of reliability of the information supplied
was satisfied where the informant, in giving the information,
admitted activities which were against his penal interest. In
Harris a warrant was issued to Federal and local officers per-
mitting them to enter and search the defendant’s premises
where they found containers of whiskey on which the Federal
tax had not been paid. The affidavit accompanying the re-
quest for a warrant stated that information was received from
an individual who claimed, as a confederate, personal knowl-
edge that the defendant was a ‘‘trafficker of nontaxpaid
distilled spirits.’’ (403 U.S. 573, 575, 29 L.Ed. 2d 723, 729,
91 S.Ct. 2075, 2077.) The court held that the informant’s ad-
mission of complicity with the defendant in these activities
over an extended period of time, which subjected him to
possible indictment under section 5205(a) of title 26 of the
United States Code (26 U.S.C. sec. 5205(a)), generated
some measure of reliability. It was held that under the facts
8a
and circumstances of the case that probable cause had been
established. Assuming, arguendo, that we were to follow the
view of the plurality in His it would have no significance,
because there was no admission against penal interest here.
Concluding that the letter standing alone cannot satisfy
the requirements under Aguilar, we consider now the State’s
contention that the ‘‘self-verifying detail’’ within the letter,
coupled with the corroborating nature of the information ac-
quired by Detective Mader, established probable cause for
the issuance of the search warrant.
The notion of ‘‘self-verifying detail’’ is found in Spinelli v.
United States (1969), 393 U.S. 410, 417, 21 L.Ed. 2d 637,
644, 89 S.Ct. 584, 589. The court had granted certiorari
*‘[b]elieving it desireable that the principles of Aguilar should
be further explicated * * *.’’ (393 U.S. 410, 412, 21 L.Ed.
2d 637, 641, 89 S.Ct. 584, 587.) There are important resem-
blances between the circumstances here and those in Spinelli.
A search warrant had been issued, and the affidavit sub-
mitted in support of it cited a report from an unidentified in-
formant and also one of an independent FBI investigation
which was said to corroborate the informant’s tip. The affi-
davit was more persuading than the one here. It described
the informant as ‘‘a confidential, reliable informant’’ and
stated that Spinelli was known to the affiant-special agent
and to Federal and local law-enforcement officers as a
gambler and bookmaker. According to the affidavit the in-
formant had advised the FBI that Spinelli was operating a
handbook and was using specified telehone numbers in its
operation. The Supreme Court held that the affidavit was in-
sufficient and that the search warrant had been issued
without probable caus~. The court observed: ‘“Though the
affiant swore that his confidant was ‘reliable,’ he offered the
magistrate no reason in support of this conclusion. Perhaps
even more important is the fact Aguilar’s other test has not
9a
been satisfied. The tip does not contain a sufficient statement
of the underlying circumstances from which the informer
concluded that Spinelli was running a bookmaking opera-
tion. We are not told how the FBI’s source received his infor-
mation — it is not alleged that the informant personally ob-
served Spinelli at work or that he had ever placed a bet with
him. Moreover, if the informant came by the information in-
directly, he did not explain why his sources were reliable.
[Citation.] In the absence of a statement detailing the man-
ner in which the information was gathered, it is especially
important that the tip described the accused’s criminal ac-
tivity in sufficient detail that the magistrate may know that
he is relying on something more substantial than a casual
rumor circulating in the underworld or an accusation based
merely on an individual’s general reputation’’ (393 U.S.
410, 416, 21 L.Ed. 2d 637, 643-44, 89 S.Ct. 584, 589). As
can be said of the investigative activities by the law-enforce-
ment officers here, the court in Spinelli stated: ‘‘[W]e find
nothing alleged which would permit the suspicions engen-
dered by the informant’s report to ripen into a judgment that
a crime was probably being committed. As we have already
seen, the allegations detailing the FBI’s surveillance of
Spinelli and its investigation of the telephone company
records contain no suggestion criminal conduct when taken
by themselves — and they are not endowed with an aura of
suspicion by virtue of the informer’s tip.’’ (393 U.S. 410,
418, 21 L.Ed. 2d 637, 645, 89 S.Ct. 584, 590.) The court
commented that the report from the informant was meager
and could easily have been obtained from an offhand remark
heard at a neighborhood bar.
The court in Spinelli did say that while an affidavit may not
satisfy the ‘‘basis of knowledge’’ prong of the Aguilar test by
failing to set out adequately the circumstances explaining
how the confidential information was obtained, this may be
10a
cured if the information set out is so detailed that a magis-
trate ‘‘could reasonably infer that the informant had gained
his information in a reliable way.’’ (393 U.S. 410, 417, 21
L.Ed. 2d 637, 644, 89 S.Ct. 584, 589.) Thus an informant’s
report, if detailed sufficiently, may in effect verify itself in the
sense that the magistrate, when presented with such detail,
can reasonably infer that the informant had gained his infor-
mation in a reliable way and tay be a sufficient basis for a
magistrate’s finding of probable cause for the issuance of a
search warrant. The court cited Draper v. United States (1959),
358 U.S. 307, L.Ed. 2d 327, 79 S.Ct. 329, a pre-Aguilar deci-
sion, as a ‘‘suitable benchmark’’ upon which to measure this
sufficiency of detail. (393 U.S. 410, 21 L.Ed. 2d 637, 644, 89
S.Ct. 584, 589.) It is important to observe that in Draper
there was not, as here or in Spinelli, an anonymous or uniden-
tified informant but a named informant whose information,
when given to law-enforcement officers on earlier occasions,
had been reliable.
The use of self-verifying detail to find probable cause is
limited, though, to a situation where the informant has not
otherwise disclosed the manner in which he has obtained his
information and thus has failed to satisfy the ‘‘basis of knowl-
edge’’ prong. While the specificity of detail may be used to
supply the basis-of-knowledge requireinent, it cannot estab-
lish that the informant was credible or his information reli-
able, in and of itself, so as to meet Aguilar’s ‘‘veracity’’
prong. The court in Stanley v. State (1974), 19 Md. App. 507,
533, 313 A.2d 847, 862, described this when it observed:
‘*The notion that great detail implies personal observation
rather than the over-hearing of barroom gossip, presupposes
an honest informant. If the informant were concocting a
story out of the whole cloth, he could fabricate in fine detail
as easily as with rough brush strokes. Minute detail tells us
nothing about ‘veracity.’’’ See also People v. Linder (1975), 24
lla
Ill. App. 3d 995; Note, Probable Cause And The First-Time In-
former: United States v. Harris, 403 U.S. 573 (1971), 43 Colo.
L. Rev. 357, 362 (1972).
Self-verifying detail discussed in Spinelli as a means of
satisfying the basis-of-knowledge prong must be accepted
with great circumspection. This was expressed by Mr.
Justice Harlan when, as appears in the quotation above from
Spinelli, he cautioned that the tip must describe the claimed
criminal activity in detail adequate to show the magistrate
that he is relying on information more substantial than
casual rumor or an accusation founded only on the accused’s
genera! reputation. We cannot say that the information pro-
vided here was in sufficient detail to lead a magistrate to con-
clude that the tip was the product of firsthand knowledge or
personal observation.
That the anonymous informant gave the name of the street
where the defendants resided and stated that they would be
driving from Florida in early May with drugs in the trunk of
their car does not even meet the specificity of detail required
by the court in Draper v. United States (1959), 358 U.S. 307, 3
L.Ed. 2d 327, 79 S.Ct. 329, so as to cure the existing defi-
ciency of the ‘‘basis of knowledge’’ prong. Nor can it be rea-
s aably concluded that the information in the letter was ac-
quired through first-hand knowledge rather than by rumor.
Also, we reiterate and emphasize that here the informant was
anonymous. In Draper the informant was named and iden-
tified as one who earlier had given information to law en-
forcement officers that had been reliable.
The corroborative evidence gathered by Detective Mader,
when coupled with the ‘‘detail’’ of the informant’s letter, did
not constitute probable cause under the tests of Aguilar. The
appellate court, in addressing this question of corroborative
evidence, rejected the State’s contention that corroboration
12a
can be used to satisfy the ‘‘veracity’’ prong as well as the
“*basis of knowledge’’ prong of the Aguilar test. The court
held that partial corroboration may be considered only to
support the contention that the information obtained was re-
liable. Citing Stanley v. State (1974), 19 Md. App. 508, 531,
313 A.2d 847, 861-62, the court held that corroboration may
not serve as a means of satisfying the ‘‘basis of knowledge’”’
prong.
Courts are not in agreement on the question of whether
partial corroboration, combined with an informant’s tip,
may cure a deficiency in either prong of the Aguilar test. See,
e.g., 1 LaFave, Search and Seizure sec. 3.3 (1978); Moylan,
Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25
Mercer L. Rev. 741 (1974); Stanley v. State (1974), 19 Md.
App. 507, 313 A.2d 847.
We need not consider this question, however, since the na-
ture of the corroborating ‘‘evidence’’ in this case would
satisfy neither the ‘‘basis of knowledge’ nor the ‘‘veracity”’
prong of Aguilar. Looking to the affidavit submitted as sup-
port for Detective Mader’s request that a search warrant
issue, we note that the corroborative evidence here was only
of clearly innocent activity. Mader’s independent investiga-
tion revealed only that Lance and Susan Gates lived on
Greenway Drive; that Lance Gates booked passage on a
flight to Florida; that upon arriving he entered a room
registered to his wife; and that he and his wife left the hotel
together by car. The corroboration of innocent activity is in-
sufficient to support a finding of probable cause. See Whiteley
v. Warden of Wyoming State Penitentiary (1971), 401 U.S. 560,
567, 28 L.Ed. 2d 306, 312-13, 91 S. Ct. 1031, 1036.
For the reasons given above, the judgment of the appellate
court is affirmed.
Judgment affirmed.
13a
MR. JUSTICE MORAN, dissenting:
The majority concludes that the letter c mbined with the
facts gleaned from the police investigation does not satisfy
either prong of the Aguilar test. I disagree. As the opinion
points out, the letter did not reveal that the informant had
personal knowledge of the criminal activity, the method by
which the ‘‘basis of knowledge’’ prong is generally satisfied.
However, the prong can be satisfied by sufficiently specific
detail and corroborating information. (Spinelli v. United States
(1969), 393 U.S. 410, 416-17, 21 L. Ed. 2d 637, 644, 89 S.
Ct. 584, 589.) Tha’ the necessary specificity of the initial in-
formation and the requisite corroboration were present here
can be demonstrated by a comparison with three United
States Supreme Court cases.
Draper v. United States (1959), 358 U.S. 307, 3 L..Ed.2d
327, 79 S.Ct. 329, involved an arrest without a warrant.
There, an informant gave a Federal narcotics agent informa-
tion regarding narcotics law violations. On a motion to sup-
press, the agent testified that he ‘‘had always found the infor-
mation given by [the informant] to be accurate and
reliable.’’ (358 U.S. 307, 309, 3 L.Ed.2d 327, 329, 79 S.Ct.
329, 331.) No underlying facts established this conclusion.
However, the informant told the agent that Draper had gone
to Chicago the day before by train and that he would return
to Denver by train with three ounces of heroin on one of two
specified mornings. In addition, the informant described
Draper’s physical appearance, the clothes he was wearing,
that he would be carrying a tan zipper bag, and that he
walked quickly. The court found that the agent had probable
cause to arrest when a man fitting Draper’s description
stepped off the specified train.
l4a
In Aguilar v. Texas (1964), 378 U.S. 108, 12 L.Ed. 2d 723,
84 S.Ct. 1509, police officers, in support of their application
for a search warrant, submitted an affidavit stating:
‘*Affiants have received reliable information from
a credible person and do believe that heroin, mari-
juana, barbiturates and other narcotics and narcot-
ic paraphernalia are being kept at the above de-
scribed premises for the purpose of sale and use
contrary to the provisions of the law.’’ (378 U.S.
108, 109, 12 L.Ed. 2d 723, 725, 84 S.Ct. 1509,
1511.)
The court found that the information merely reflected the
informant’s ‘‘ ‘suspicion,’ ‘belief’ or ‘mere conclusion.’”’
(378 U.S. 108, 114, 12 L.Ed. 2d 723, 729, 84 S.Ct. 1509,
1514.) In so holding, it established the two-pronged standard
for evaluating if a search warrant should issue:
**[ T]he magistrate must be informed of some of the
underlying circumstances from which the inform-
ant concluded that the narcotics were where he
claimed they were, and some of the underlying cir-
cumstances from which the officer concluded that
the informant, whose identity need not be disclosed
[citation], was ‘credible’ or his information ‘relia-
ble.’’’ 378 U.S. 108, 114, 12 L.Ed. 2d 723, 729, 84
S.Ct. 1509, 1514.
With this test as the standard, the Supreme Court decided
Spinelli v. United States (1969), 393 U.S. 410, 21 L.Ed. 637, 89
S.Ct. 584. In that case, the affidavit stated that Spinelli was
known to law-enforcement agents as a bookmaker and a
gambler, and that the FBI had ‘‘been informed by a confi-
dential reliable informant that William Spinelli is operating a
handbook and accepting wagers and disseminating wagering
information by means of telephones which have been
15a
assigned and numbers WYdown 4-0029 and WYdown
4-0136.’’ 393 U.S. 410, 414, 21 L.Ed. 2d 637, 642, 89 S.Ct.
584, 588.
The court contrasted the informant’s tip with the informa-
tion provided by informant in Draper. The court concluded
that a magistrate could infer from the tip in Draper that the
informant had gained his information in a reliable way
whereas, in the case before it, the report could have been ob-
tained from an offhand remark heard at a neighborhood bar.
The court also found that the investigative police work in
Draper corroborated much more than one small detail and
resulted in the inference that the report was reliable. In con-
trast, the investigation in Spinelli corroborated only that
Spinelli could have used two telephones for gambling or for
some other purpose, and was insufficient to support the reli-
ability of the information. The court stated:
**{In Draper), the police, upon meeting the inbound
Denver train on the second morning specified by
informer Hereford, saw a man whose dress cor-
responded precisely to Hereford’s detailed descrip-
tion. It was then apparent that the informant had
not been fabricating his report out of whole cloth;
since the report was of the sort which in common
experience may be recognized as having been
obtained in a reliable way, it was perfectly clear
that probable cause had been established.’’ 393
U.S. 410, 417-18, 21 L.Ed. 2d 637, 644. 89 S.Ct.
584, 590.
When comparing the affidavits in Aguilar and Spinelli and
the testimony of the agent in Draper to the affidavit here, it is
clear that this case is more similar to Draper, than to Aguilar
and Spinelli. In Aguilar, the information in the affidavit con-
sisted of mere conclusions and did not satisfy either prong of
the standard established here. Similarly, in Spinelli the
16a
affidavit did not contain a sufficient statement of the under-
lying circumstances from which the magistrate could con-
clude that the informer had knowledge that Spinelli was run-
ning 2 bookmaking operatio.:. Further, the court found that
although the affiant swore that his confidant was reliable, he
offered the magistrate no reason in support of this conclusion.
In this case, however, as in Draper, a specific, detailed and
future sequence of events was supplied by the informant’s let-
ter. As already stated, in Draper the tip was that a man fitting
a particular description had gone to Chicago and would be
arriving on a particular train in Denver on one of two
specified mornings carrying three ounces of heroin. Here,
the letter revealed that on May 3, in compliance with their
usual procedure, Sue Gates would be driving down to
Florida to purchase drugs. It further stated that Lance Gates
would be flying down a few days later to drive their car back
to Bloomingdale carrying over $100,000 in drugs in the
trunk. The police investigation showed that on May 5 a per-
son matching Lance Gates’ description flew to West Palm
Beach, Florida, and proceeded to the Holiday Inn West to a
room registered to Susan Gates. On May 6, 7 a.m., Gates
and an unidentified female left the motel driving a red-vinyl-
over-gray Mercury. The investigation disclosed that Gates
and the woman left the West Palm Beach area driving north-
bound on an interstate highway and that the driving time to
Bloomingdale was 21 to 23 hours. In this case, as in Draper,
every detail of the informant’s information was corroborated
by the police investigation. The specific, detailed informa-
tion in the letter combined with the corroboration clearly
indicates that the informant had an underlying basis of
knowledge, satisfying Aguilar’s first prong.
In addition, the specific information contained in the letter
which was then corroborated proved the informant’s state-
ments to be credible and reliable, thereby satisfying Aguilar’s
17a
second prong. The majority opinion attempts to distinguish
Draper by observing in that case there was a named informant
who had given the agent reliable information on other
occasions. However, the agent’s statement as to the infor-
mant’s reliability was a mere conclusion. It is questionable
whether that naked assertion would satisfy Aguilar’s second
prong in that it does not present any underlying
circumstances from which the judge could determine if the
informant is credible or his information reliable. That
statement is not essentially different from the one made in
Spinelli that the ‘‘informant was reliable.’’ The point is,
however, that under the court’s analysis in Spinelli, the result
in Draper, in light of Aguilar, does not hinge on the mere
averment that the informant had previously given reliable
information. Rather, the determining factor in establishing
probable cause and complying with both prongs of Aguilar is
the specificity of the tip combined with the police verification
by investigation.
Finally, the majority, citing Whiteley v. Warden of Wyoming
State Penitentiary (1971), 401 U.S. 560, 567, 28 L.Ed. 2d 306,
312-13, 91 S.Ct. 1031, 1036, finds that the corroborating in-
formation combined with the tip would not satisfy either
prong of the Aguilar test because the corroborating evidence
was of clearly innocent activity. This conclusion is incorrect.
First, in Whiteley, the corroborating evidence was simply that
the sheriff knew the defendants and the kind of car they
drove. The court in Whiteley specifically stated:
‘*{ T]he additional information acquired by the ar-
resting officers must in some sense be corrobora-
tive of the informer’s tip that the arrestees com-
mitted the felony or, as in Draper itself, were in the
process of committing the felony.’’ 401 U.S. 560,
567, 28 L.Ed. 2d 306, 312-13, 91 S.Ct. 1031, 1036.
18a
In Draper, the corroborating information also related to in-
nocent activity — a man fitting a particular description
stepped off a train on a specific day carrying a tan zipper bag.
Yet, the court in Whiteley, as well as in Spinelli, clearly held
that this type of detailed information can be used to corrobo-
rate an informant’s tip. The key is whether the corroborative
evidence is endowed with an aura of suspicion by virtue of
the informant’s tip. (See Spinelli v. United States (1969), 393
U.S. 410, 418, 21 L.Ed. 2d 637, 645, 89 S.Ct. 584, 590.) In
this case, just as in Drpaer, seemingly innocent activity
became suspicious in light of the initial tip.
Here, the police went through the desired procedure of ob-
taining a warrant. The judge had before him, by way of
affidavit, information from which he reasonably could con-
clude that the informant had knowledge that the Gates were
involved in criminal activity and that the information was
reliable. Under the standard enunciated in Spinelli, the judge
could conclude he was relying on more than casual rumor or
reputation and that the report had not been fabricated ‘‘out
of whole cloth.’’ (See Spinelli v. United States (1969), 393 U.S.
410, 416, 417, 21 L.Ed. 2d 637, 644, 89 S.Ct. 584, 590.)
Probable cause was determined by a neutral and detached
judge. (See Johnson v. United States (1948), 333 U.S. 10, 14, 92
L.Ed. 436, 440, 68 S.Ct. 367, 369.) Issuance of a search
warrant in the instant case is consistent with the rationale
underlying Aguilar, as applied in Spinelli, and does net
attenuate one’s right to be free from unreasonable searches
and seizures as guaranteed by the United States and Illinois
constitutions.
For the above-stated reasons, I must respectfully dissent.
MR. JUSTICE UNDERWOOD joins in this dissent.
ib
APPELLATE COURT OPINION
(Filed April 1, 1980)
NO. 78-570
IN THE APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellant, Appeal from the Circuit
Court
v. of the 18th Judicial Circuit,
LANCE GATES AND
SUSAN GATES, DuPage County, Illinois
Defendant-Appellees.
Mr. JUSTICE LINDBERG delivered the opinion of the
court.
The State appeals on order entered by the Circuit Court of
DuPage County which quashed a search warrant and sup-
pressed the evidence seized pursuant to the authority of the
warrant. At issue is whether the warrant was sufficient under
the standards set forth in Aguilar v. Texas (1964), 378 U.S.
108, 12 L.Ed. 2d 723, 84 S.Ct. 1509, and Spinelli v. United
States (1969), 393 U.S. 410, 21 L.Ed. 2d 637, 89 S.Ct. 584.
We affirm.
The facts are straightforward. On May 3, 1978, the
Bloomingdale Police Department received a handwritten,
anonymous letter which had no return address. The letter
recited as follows:
**This letter is to inform you that you have a
couple in your town who strictly make their living
on selling drugs. They are Sue and Lance Gates,
2b
they live on Greenway, off Bloomingdale Road, in
the condominiums. Most of their buys are done in
Florida. Sue his wife drives their car to Florida,
where she leaves it to be loaded up with drugs, then
flys [stc] back after she drops the car off in Florida
May 3, she is driving down there again and Lance
will be flying down in a few days to drive it back. At
the time Lance drives the car back he has the trunk
loaded with over $100,000.00 in drugs. Presently
they have over $100,000 worth of drugs in their
basement.
**They brag about the fact that they never have
to work, and make their entire living on pushers.
**I guarentee [sic] if you watch them carefully
you will make a big catch. They are friends with
some big drug dealers, who visit their house often.
Lance and Sue Gates
Greenway
in Condominiums’”’
On the same day the letter was received, Detective Charles
Mader of the Bloomingdale Police Department made an
inquiry to the Secretary of State’s Office regarding the
driver’s license of one Lance Gates. The computer reply
stated that an Illinois Drivers License had been issued to a
Lance B. Gates, whose address was listed at 209 D, Dart-
mouth Drive, Bloomingdale, Illinois. His physical descrip-
tion was given as follows:
Sex -— Male
Date of Birth -— July 13, 1947
Height — 5'11”
Weight — 220 pounds
Hair — Brown
Eyes — Brown
Later the same day, Detective Mader contacted a
confidential informant. Detective Mader had known this in-
formant for approximately two years during which time the
informant had provided the detective with information
which resulted in several criminal convictions. This inform-
ant toid the Detective that Lance B. Gates’ current address
was 198 B. Greenway Drive, Bloomingdale, Illinois.
Detective Mader then called Officer Ott of the Chicago
Police Department who at that time was assigned to O’ Hare
Airport. Officer Ort reviewed flight information and stated
that L. Gates, phone number 980-8427, was scheduled to de-
part Chicago-O’ Hare on May 5, 1978, on Eastern Airlines
Flight 245, departing at 4:15 p.m. The flight was scheduled
from Chicago to Atlanta and then to West Palm Beach,
Florida.
Detective Mader then told the radio operator at the
Bloomingdale Police Department to call the Security Office
of the Illinois Bell Telephone Company. The radio operator
was told that telephone number 980-8427 was a non-
published number issued to Lance B. Gates whose address is
189 B Greenway Drive, Bloomingdale, Illinois.
On May 5, 1978, Detective Mader was telephoned by
Agent William Morely of the Drug Enforcement Agency. He
told Mader that, pursuant to a prior arrangement with the
Detective, he had maintained a surveillance on all passen-
gers boarding Flight 245. He told Mader that a person
matching the description of, and using the name Lance
Gates had boarded the flight.
Agent Morely called Mader the next day and told him that
an agent in Florida had just completed a surveillance on
Lance Gates in West Palm Beach. This Florida agent told
4b
Morely that he observed the defendant remain in the airport
for approximately one hour after his arrival. He next saw
him take a taxi which the agent followed to the Holiday Inn
in West Palm Beach. The defendant went to a room which
was registered to Susan Gates. At approximately 7:00 a.m.
on May 6, 1978, the Florida agent saw Lance Gates and a fe-
male leave the room, go to the parking lot, and get in a red
vinyl over gray Mercury bearing Illinois license plates
RS8437. The Florida agent followed this Mercury north-
bound to an interstate which is commonly used by travelers
to the Chicago area. At that point the surveillance was
terminated.
Agent Morely also told Detective Mader that the license
plate RS8437 was registered to the defendant but for a 1975
Hornet station wagon. Finally Agent Morely advised the
Detective that the approximate driving time from West Palm
Beach to Bloomingdale is 21-23 hours.
A complaint for search warrant was prepared and pre-
sented for approval to an associate judge. The complaint at-
tached an affidavit signed by Detective Mader, which recited
substantially the same facts as set forth above, and included a
copy of the anonymous note as an attachment to the af-
fidavit.' The request for the issuance of the warrant was ap-
proved, and a search warrant was issued authorizing police
to search the person of both defendants, their condominium
located on Greenway in Bloomingdale, and the gray Mer-
cury driven by Lance Gates.
On May 7, 1978 at approximately 5:15 a.m., Lance and
Susan Gates arrived at the residence of 198 B Greenway
Drive, in Bloomingdale. Pursuant to the warrant, the police
' The text of the affidavit is set out in full in the appendix.
5b
searched the car and found ‘‘seven large burlap bundles of
cannabis’’ weighing in excess of 400 pounds. The residence
was then searched, and police discovered numerous rifles, a
handgun, a green garbage can containing approximately
twenty pounds of cannabis, three-fourths of a bale of can-
nabis, numerous baggies and hand-rolled cigarettes contain-
ing cannabis, and assorted weighing devices.
Both defendants were arrested and later were indicted on
various narcotics and firarms’ charges. Prior to trial, a mo-
tion to quash the arrest and suppress evidence was filed on
behalf of both defendants. The basis of the defendants’ mo-
tion was that the warrant failed to comply with the re-
quirements of Aguilar v. Texas (1964), 378 U.S. 108, 12
L.Ed.723, 84 S.Ct. 1509, in that the author of the anony-
mous letter was not ‘‘reliable’’ and that there was no show-
ing that his or her information was obtained in a reliable
manner. After a hearing, the trial court granted the defen-
dants’ motion to quash and suppress, and the State appeals.
The Fourth Amendment of the United States Constitu-
tion, as made applicable io the states by the Fourteenth
Amendment, requires that search warrants be issued only
upon a showing of ‘‘probable cause.’’ Whenever a search
warrant is sought on the basis of information supplied by an
anonymous informant, it is necessary that the judge or
magistrate issuing the warrant be provided with sufficient
facts and circumstances from which he can determine the
reliability of the informer and the accuracy of his present in-
formation so that the constitutional requirement or probable
cause may be satisfied. People v. Thomas (1975), 62 Ill.2d 375,
378, 342 N.E.2d 383, 384, People v. Isenberg (1977), 52 Ill.
App. 3d 426, 429, 367 N.E.2d 364.
The leading case of Aguilar v. Texas (1964), 378 U.S. 108,
12 L.Ed.2d 723, 84 S.Ct. 1509, set forth a two-prong test to
6b
be applied by a judge or magistrate in testing the sufficiency
of an affidavit filed in support of the insurance of a search
warrant: first, the judge must be informed of some of the
underlying circumstances from which the informant con-
cluded that the defendants were involved in criminal activity
(the ‘‘basis of knowledge’’ prong); and secondly, the judge
must be informed of some of the underlying circumstances
from which the affiant concluded that the informer of his in-
formation was worthy of belief (the ‘‘veracity’’ prong). The
veracity prong of the Aguilar test may be, satisfied by showing
either that the informant, whose identity need not be dis-
closed, is ‘‘credible’’ the (‘“‘credibility’’ spur) or that his in-
formation is ‘‘reliable’’ (the ‘‘reliability’’ spur). Aguilar, 378
U.S. at 114-115, 12 L.Ed.2d at 729, 84 S.Ct. at 1514.
Pursi,ant to the test set forth in Aguilar, the first question
we must address in this case is whether the affidavit was suffi-
cient to inform the issuing judge of the underlying cir-
cumstances from which the anonymous informant reached
his conclusions that defendants were engaged in criminal
conduct. The affidavit attached to the complaint for search
warrant does not reveal the manner in which the anonymous
informer obtained or gathered his information. (Cf. People v.
Gomes (1980), 80 Ill. App 3d 668, 399 N.E.2d 1030 (inform-
ant had personal knowledge that crime had been
committed); People v. Swift (1978), 61 Ill. App. 3d 486, 378
N.E.2d 234 (informer was requested vy defendant to par-
ticipate in crime.) Thus our inquiry turns to whether the
judge could reasonably infer that the information was gained
in a reliable fashion because of the great amount of detail
supplied by the informer. Spinelli v. United States (1968), 393
U.S. 410, 417, 21 L.Ed.2d 637, 644, 89 S.Ct. 584, .In
Spinelli, the Supreme Court utilized the detail provided by
the informant in Draper v. United State (1959), 358 U.S. 307, 3
L.Ed.2d 327, 79 S.Ct. 329, as an example of the detail re-
quired to satisfy the basis of knowledge prong of the Aguilar
test.
7b
Using Draper as a standard, we are of the opinion that the
information supplied by the anonymous informer does not
contain sufficient detail to allow the issuing judge to
reasonably infer that the informer had obtained his informa-
tion in a reliable way. The anonymous letter contains no
more than general allegations that defendants were involved
in narcotics sales. Although the anonymous informer did
state that the Gates would soon drive to Florida and return
with a load of drugs in their car, no details regarding this trip
were set forth in the letter. These general allegations fall far
short of the specifics necessary for a judge to properly infer
that the anonymous informer had gathered his information
in a reliable way. Nor could the judge reasonably assume
that the anonymous informer had personal knowledge on the
basis of the statements set forth in the anonymous letter. In
contrast to the case at bar, the informer in Draper supplied
police with a detailed physical description of the accused, the
time and date of his arrival in Denver by train, and a descrip-
tion of the clothes he would be wearing. The informer also
stated that the accused had a habit of walking very fast.
(Draper, 358 U.S. at 309-10, 3 L.Ed.2d at 330, 79 S.Ct. at
—__..) When confronted with such detail, a judge could
reasonably infer that the informer either had personal
knowledge of the transaction or had obtained his information
in a reliable way. The informer in the instant case set forth
few details, however, and he may have obtained his informa-
tion through rumor or through another unreliable method.
Hence, the affidavit fails to meet the basis of knowledge re-
quirements set forth in Spinelli and Aguilar.
The State argues that there is ‘‘substantial basis’’ for
crediting the information supplied by the anonymous in-
formant because the allegations set forth in the handwritten
letter were fully corroborated by other independent sources.
We cannot agree. Partial ~rroboration of an informant’s
story may show his information to be ‘‘reliable;’’ however,
such corroboration only satisfies the second prong of the
8b
Aguilar test, i.e., the veracity prong. Corroboration does not
establish that the informer obtained his information in a
reliable manner (1 La Fave, Law of Search and Seizure; A
Treatise on the Fourth Amendment, sec. 3.3). As stated by
the court in the well-reasoned case of Stanley v. State (1974), 19
Md.App. 508, ____, 313 A.2d 847, 861-62:
‘(T]he ‘independent verification’ technique can-
not repair a defect in the ‘basis of knowledge’
prong. Verifying the trust of part of a story does nothing to
ascertain the story’s source or to check the informant’s
perhaps invalid conclusions. ***
An informant who does not speak from personal
knowledge may well be passing on an amalgam of
underworld rumor and barroom gossip. If that be
true, the verification of one contributing rumor
would be nothing for the ‘veracity’ of other con-
tributing rumors. An informant may have *** then
received incriminating information from a third
party lending inculpatory color to those observa-
tions. Merely verifying the informant’s innocuous
observations does nothing to verify the crucial
third party who supplied the damning catalyst.’’
(Emphasis ours.) (Accord, United States v. Hamilton
(9th Cir. 1974), 490 F.2d 598, Garner v. State (Del.
1973), 314 A.2d 908.)
Were we to accept the State’s argument, we would permit
government invasion of the privacy of persons solely on the
basis of anonymous tips, made perhaps out of spite or based
upon unsubstantiated rumor, merely because innocent
details have been verified by the observations of a police of-
ficer. Although some federal and state courts have accepted
the position advanced by the State in this case (see e.g.,
United States v. Tuley (5th Cir. 1977), 546 F.2d 1264 (over dis-
sent); United States v. Myers (D.C. Cir. 1976), 538 F.2d 424
9b
(over dissent); Horton v. State (1977), 262 Ark. 211, 555
S.W.2d 226, State v. Gilbert (1976), 24 Or. App. 907, 547
P.2d 632), we believe that neither the theory nor the cases are
sound and we refuse to follow them.
In view of our determination that the affidavit failed to
satisfy the basis of knowledge prong of the Aguilar test, we
need not address any other issues in this case. For the reasons
stated above, the order of the Circuit Court of DuPage
County is affirmed.
AFFIRMED.
SEIDENFELD, NASH, concur.
10b
APPENDIX
Affidavit filed in support of compiaint for search warrant:
“I, CHARLES J. MADER, am a detective
employed by the Bloomingdale Police Depart-
ment, DuPage County, Illinois. I have been so
employed for the past five years. On May 3, 1978,
I received a letter sent by an unknown citizen to the
Bloomingdale Police Department. I received the
letter and the envelope in which it was sent from
Chief Patrick J. McMahon. A copy of the letter
and a transmittal envelope are attached hereto and
incorporated herein by reference.
**On May 3, 1978, I directed a Bloomingdale
Police Department radio operator to make a
SOUNDEX drivers license name inquiry with the
Illinois Secretary of State, Springfieid, Illinois to
determine whether they had any record of a
LANCE GATES residing in Bloomingdale, II-
linois. The SOUNDEX response established that
one LANCE B. GATES was issued an Illinois
drivers license which listed his address as 209 D.
Dartmouth, Bloomingdale, Illinois. A copy of the
response set by the Secretary of State is attached
hereto and incorporated herein by reference.
**On May 3, 1978, I contacted a confidential in-
formant known to me for the past two year period.
I have received information from this person
several dozen times, resulting in seven criminal ar-
rests with convictions in all cases. This confidential
informant reviewed certain financial records avail-
able to him and told me that he located one
LANCE B. GATES residing at 198 B. Greenway
Drive, Bloomingdale, Illinois. He also informed
lib
me that GATES’ previous address was 209 D.
Dartmouth, Bloomingdale.
CONTINUED ON PAGE 2
COMPLAINT FOR SEARCH WARRANT
NUMBER S 1603 CONTINUATION OF AF-
FIDAVIT OF CHARLES J. MADER PAGE
TWO
**On May 3, 1978, I contacted Officer Ott of the
Chicago Police Department at O’Hare Airport.
Officer Ott checked certain flight information
available to him and told me that one L. GATES,
phone number 980-8427, was registered on
Eastern Airlines Flight number 245, scheduled to
depart O’ Hare on 4:15 P.M. on May 5, 1978. Of-
ficer Ott told me that Flight 245 travels from
Chicago to Atlanta and then to West Palm Beach,
Florida.
**I then directed the radio operator to contact the
Security Office of Illinois Bell Telephone Com-
pany and was told by the radio operator that
980-8427 was a non-published phone number
issued to LANCE GATES at 189 B. Greenway
Drive, Bloomingdale, Illinois.
“On May 5, 1978, I was contacted by Agent
William Morely of the Drug Enforcement Admin-
istration. He state that, pursuant to prior arrange-
ment between us, he had maintained a surveillance
on all passengers boarding Eastern Airlines Flight
number 245. He stated further that an individual
using the name LANCE GATES and matching the
physical description furnished by Secretary of State
in the attached message boarded Flight 245 bound
for Florida.
12b
**On May 6, 1978, Agent Morely contacted me
and said that Drug Enforcement Administration
agents in Florida had just completed a surveillance
of LANCE GATES in West Palm Beach, Florida.
He told me that the Federal agents in Florida
observed:
1. GATES arrive in West Palm Beach, Florida
via Eastern Flight Number 245 and remain
in the airport for one hour before taking a taxi
to the West Palm Beach Holiday Inn;
2. The room he entered was registered to one
SUSAN GATES;
3. At 7:00 A.M. May 6, 1978, LANCE GATES
and a female left the Holiday Inn Room
registered to SUSAN GATES, and entered a
red vinyl over gray Mercury bearing Illinois
1978 license RS 8437;
4. LANCE GATES and the female left the West
Palm Beach area driving the Mercury north-
bound on that interstate highway commonly
used by travelers to the Chicago area.
**Agent Morely further told me that a check of
the records of the Illinois Secretary of State re-
+ led that license RS 8437 registers to LANCE B.
GATES on a 1975 Hornet station wagon.
13b
**Agent Morely also told me that the driving
time from West Palm Beach, Florida to Bloom-
ingdale, Illinois is approximately 21-23 hours.”’
“/s/ DET. CHARLES J. MADER
“PAGE TWO OF TWO PAGES
“*s/ SUBSCRIBED AND SWORN
TO BEFORE ME ON MAY 6, 1978
S. K. LEWIS
Assoc. Judge’”’
14b
Anited States of America
State of Bllinois, |
Appellate Court, $3.
Second District, |
I, LOREN J. STROTZ, Clerk of the Appellate Court, in and for
said Second Judicial District of the State of Illinois, and the keeper of
the Records and Seal thereof, do hereby certify that the foregoing is a
true, full and complete copy of the Opinion of the said Appellate Court
in the above entitled cause of record in my said office.
IN TESTIMONY WHEREOF, I have set my hand and
affixed the seal of the said Appellate Court, in Elgin, in
said State, this Ist day of April, A.D. 1980.
/s/ LOREN J. STROTZ
Clerk Appellate Court, Second
an
uol!socd
Office - Supreme Court, U.S. ]
Y CIiSED: -
No. 81-430 — om
In the
Supreme Court of the United States
THE STATE OF ILLINOIS,
Petitioner,
v8.
LANCE GATES and SUSAN GATES,
Respondents.
BRIEF IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF ILLINOIS
Attorney at Law
180 North LaSalle Street
Suite 1425
Chicago, Illinois 60601.
Attorney for Respondents
Bazey E. Wrrirm
Attorney at Law
i
QUESTION PRESENTED FOR REVIEW
The Respondent would suggest that the Petitioner has
misstated the “Question Presented for Review’’ and that
the Respondent’s Statement of the Question Presented
is a more adequate one:
‘*Whether hearsay information provided to police in
an anonymous letter, containing no basis of knowledge
of how the information was obtained; certain innocent
details of the information being corroborated by po-
lice investigation, established sufficient probable cause
to merit issuance of a search warrant.’’
INDEX
PAGE
Question Presented for Review ............:ssssssssesessesesvesees i
Opinion Below 1
Jurisdiction eapendnanstmnedenemnpapeamensennearmnnemmennnes 1
Statement of the Case 1
Reasons for Denying the Writ 2
The hearsay information provided by a letter by
an anonymous writer was insufficient to establish
probable cause to support the search warrant is-
sued in this case. The case does not present a ques-
tion meriting review by this court. .0.0.........cccce.0. 2
ID seetetesnssetntiesaicirciciaanaaiaeriniaisiiintaainieeansiainaataissitiasta 3
UUTIIIID | dschbcssicdcienbienihetbiciimsasd ctcitinnciin iat a 5
AUTHORITIES CITED
Aguilar v. Texas, 378 U.S. 108, 12 L.Ed 2d 723, 84
I I II eicihpnlddlihiialial ita ccaitatiaiitata 3
Draper v. U.S., 358 US. 307, Shee SS See, 79 S.Ct.
329 (1959) ..... 4
Spinelli v. United States, 393 U.S. 410, 21 L.Ed 2d 637,
RU 3,4
IN THE
SUPREME COURT OF THE UNITED STATES
No. 81-430
THE STATE OF ILLINOIS,
Petitioner,
vs.
LANCE GATES and SUSAN GATES,
Respondents.
BRIEF IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORA <I
TO THE SUPREME COURT OF ILLINOIS
Respondents, Lance Gates and Susan Gates, respectfully
pray tha. Petitioner’s Petition for Writ of Certiorari to
the Supreme Court of Illinois be denied.
OPINION BELOW
The opinion of the Illinois Supreme Court is attached
to the Petition for Writ of Certiorari to the Supreme
Court of Illinois as Exhibit B.
JURISDICTION
The State of jurisdiction stated by the Petitioner is
adequate.
STATEMENT OF THE CASE
The Petitioner’s statement of the case is adequate and
acceptable to the Respondent.
REASONS FOR DENYING THE WalT
THE HEARSAY INFORMATION PROVIDED IN A
LETTER BY AN ANONYMOUS WRITER WAS IN-
SUFFICIENT TO ESTABLISH PROBABLE CAUSE
TO SUPPORT THE SEARCH WARRANT ISSUED IN
THIS CASE. THE CASE DOES NOT PRESENT A
QUESTION MERITING REVIEW BY THIS COURT.
ARGUMENT
The Petitioner would have the Court grant certiorari
in the instant case because as stated in the Reasons for
granting the writ: ‘‘THE ENFORCEMENT OF DRUG
LAWS IN ILLINOIS WILL BE THWARTED IF
OFFICERS ARE NOT PERMITTED TO RELY UPON
DETAILED INFORMATION SUPPLIED BY AN
ANONYMOUS CIVILIAN INFORMER”. The Respon-
dent would suggest that the facts of this case demon-
strate that only improper and illegal enforcement has been
thwarted in this case, not proper and legal enforcement.
This Court in Aguilar v. Texas, 378 U.S. 108, 12 L.Ed
2d 723, 84 S.Ct. 1509 (1964) ; and Spinelli v. United States,
393 U.S. 410, 21 L.Ed 2d 637, 89 S.Ct. 584 (1969) estab-
lished basic standards whereby law enforcement officers
and the members of the judiciary could evaluate the suf-
ficiency of probable cause based on the hearsay of an
anonymous informer to support a search warrant. The
Court in Aguilar (378 U.S. 108, 114-15, 12 L.Ed 2d 723,
729, 84 S.Ct. 1509, 1514) established the “*two-pronged’’
test, the two prongs of which are commonly called the
“basis of knowledge’’ prong and the ‘‘veracity prong’’.
The Circuit Court of DuPage County, the Illinois Ap-
pellate Court and Supreme Court of Illinois each reviewed
the probable cause supportive of the search warrant utili-
zing the Aguilar and Spinelli standards of evaluation and
found it wanting. The final and correct result of each
court’s review of the search warrant and its supportive
affidavits was as follows:
a i
(1) The letter from the anonymous author is absent
any description of the manner or means by which that
person obtained the information offered in that letter;
(2) The corroboration of entirely innocent detail by
investigating police officers was insufficient by the “‘self
verifying detail’’ concept of Spinelli v. United States, 393
U.S. 410, 417, 21 L.Ed 2d 637, 644, 89 S.Ct. 584, 589
(1969) to cure the inadequate ‘‘basis of knowledge’’ in-
formation in the letter. (Pages 8a-lla of the Illinois Su-
preme Court opinion) ;
(3) The reliance of the State of Illinois on Draper v.
U.S., 358 U.S. 307, 3 L.Ed 2d 327, 79 S.Ct. 329 (1959) is
misplaced and the fact that a previously reliable infor-
mant supplied a specificity of detail far in excess of that
supplied in the instant case was utilized by the Supreme
Court of Illinois at pages 10a-lla to distinguish Draper
from the instant case.
The above findings set forth the legal reasons why cer-
tiorari should not be granted. An anonymous letter does
not differ from an anonymous phone call or any other
form of hearsay generated probable cause based on the
tip of an unnamed informer. Each of the above must be
judged by the criteria established by this court and if
those defined parameters are not met, as in the instant
ease, the search warrant is constitutionally infirm.
The Defendant-Respondent would further suggest to
this court that the question presented here does not war-
rant review by this court. The Aguilar precedent is long
established and the present case offers only factual inter-
pretation of that precedent and presents no novel consti-
tutional question of sufficient breadth of import to merit
granting by this Court of the State of Illinois Petition
for Certiorari.
ce we
CONCLUSION
The Supreme Court of Illinois, the Illinois Appellate
Court, and the Circuit Court of DuPage County correctly
applied the probable cause standards established by this
Court and this cause presents no constitutional question
of sufficient import to merit review by this court.
The Petition for Certiorari advanced in this ease should
be denied.
Respectfully submitted,
James W. Remuey
Attorney at Law
180 North LaSalle Street
Suite 1425
Chicago, Illinois 60601
Attorney for Respondents
Banry E. Wrrum
Attorney at Law
180 North LaSalle Street
Chicago, Illinois 60601
Tyce S. Surrn
Attorney at Law
307 North Street
Waynesville, Missouri 65583
Of Counsel
oe)!
a
| iaiaieies
~ Supreme Court, U.S.
FILED
No. 81-430 FEB 24 1982
Ar
Bn the CLERK
Supreme Court of the United States
THE STATE OF ILLINOIS,
Petitioner,
LANCE GATES and SUSAN GATES,
Respondent.
On Writ Of Certiorari To
The Supreme Court Of Illinois
RESPONDENTS ANSWER TO
MOTION FOR LEAVE TO AMEND OR ENLARGE
QUESTION PRESENTED FOR REVIEW
Barry E. Wrrim James W. Retuey
Attorney at Law Attorney at Law
180 North LaSalle Street 180 North LaSalle Street
Chicago, Illinois 60601 Suite 1425
Chicago, Illinois 60601
Tyce S. Surra
Attorney at Law Attorney for Respondents
307 North Street Autan A. ACKERMAN
Waynesville, Missouri 65583 Attorney at Law
Of Counsel re North LaSalle Street
uite 611
— W. Woonr Chicago, Illinois 60602
rney at Law
1290 Pennzoil Place Of Counsel
711 Louisiana
Houston, Texas 77002
Of Counsel
——
In Tue
SUPREME COURT OF THE UNITED STATES
No. 81-430
SSS
THE STATE OF ILLINOIS,
Petitioner,
vs.
LANCE GATES and SUSAN GATES,
Respondent.
——— eee
On Writ Of Certiorari To
The Supreme Court Of Illinois
RESPONDENTS ANSWER TO
MOTION FOR LEAVE TO AMEND OR ENLARGE
QUESTION PRESENTED FOR REViEW
I.
The respondents, Lance and Susan Gates, by their
attorney, James W. Reilley, opposes the petitioner(s)
request to enlarge or amend the question presented in
this case.
0.
JURISDICTION
Within the plethora of rules and Supreme Court
authorities relied upon by the petitioner, one has no
doubt that this Court may, within its own discretion,
grant leave to amend or enlarge the question(s) presented
as per the petitioners certiorari petition. We do not
urge to the contrary. Our opposition relates, rather, to
the subject matter of the proposed amendment or en-
largement.
Ii.
THE PROPOSED AMENDMENT
The State of Illinois, in their petition for writ of
certiorari, presents this question for review:
“WHETHER DETAILED INFORMATION PRO-
VIDED TO POLICE BY AN ANONYMOUS IN-
FORMER, COUPLED WITH GOVERNMENT COR-
ROBORATION OF THE INFORMATION, PRO-
VIDE PROBABLE CAUSE FOR THE ISSUANCE
OF A SEARCH WARRANT?”
The petitioner, now proposes to enlarge or amend the
question to:
“ASSUMING, ARGUENDO, THAT THE INFOR-
MATION USED TO OBTAIN THE SEARCH
WARRANT DID NOT SATISFY AGUILAR V.
TEXAS, 378 U.S. 108 (1964), SHOULD THE EVI-
DENCE OBTAINED UNDER THE WARRANT
NEVERTHELESS BE ADMITTED AT TRIAL
BECAUSE THE POLICE ACTED IN A REASON-
ABLE GOOD FAITH BELIEF IN THE VALIDITY
OF THE WARRANT?”
IV
ARGUMENT IN OPPOSITION TO THE PROPOSED
AMENDMENT
The petitioner would suggest that the warrantless
arrest and search “good faith” exception to the exclusion-
ary rule... has a place in this case. The petitioner is
mistaken.
et ae
Recent warrantless arrest-search cases from this Court
overwhelmingly pronounce the continued difference as
between a warrantless arrest/search . . . and one con-
ducted with the benefit of a judicially approved warrant.
The Court has consistently found that the warrantless
search of premises is “per se” unreasonable’ and the
warrantless entry onto private premises may likewise
suffer the vice of Fourth Amendment prohibitions, not-
withstanding whatever “good faith” may be involved
insofar as the agents or police officers entering the said
premises’. As regarding non-dwelling or non-premises
situations, the Court has ruled in any number of recent
eases that the particular facts of the particular case
will dietate whether the arrest/search will survive Fourth
Amendment scrutiny (assuming a warrantless situation)’.
The case at bar presents a fact situation which cannot
conceivably incorporate the proposed amendment. Here,
the facts reveal that on May 7, 1978 in Bloomingdale,
Illinois, the respondents, were getting out of a car, in
front of their home when certain police officers served
both of them with a search warrant. The search warrant
called for the search of their car and the dwelling. A
search of the car and the dwelling (in the apparent
*e.9., See v. Seattle, 387 U.S. 541 (1967); Camara v.
Mumci
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.