# Record and brief — Illinois v. Gates > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_1881%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1983 - **Citation:** 462 U.S. 213 ## 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. 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 Fiwhe db dinddiner shee «os 19 Brinegar v. United States, 338 U.S. 160(1949) .... 7, 15, 24, 27, 28, 30 Brown v. United States, 365 F.2d 976 (D.C. Cir. METS a5 b UNS Noh bce ee t9 00 care wh OUR 19 United States v. Burke, 517 F.2d 377 (2nd Cir. PE is 60s HbA be nan tw es deekes dances 19 Cabell v. Chavez-Salido, _.U.S.__, 70 L.Ed.2d Bye» MEN REED «scones cies tecmens 24 Carroll v. United States, 267 U.S. 132, 160 (1925) . 10, 14 Chambers v. Maroney, 399 U.S. 42(1970) ....... 7, 18, 19, 20, 24, 27 Draper v. United States, 358 U.S. 307 (1959) ..... 7, 13, 17, 2i, 23 Dunaway v. New York, 442 U.S. 200(1979) ..... 29, 30 United States v. Harris, 403 U.S. 573 (1971) ..... 27 Husty v. United States, 282 U.S. 694(1931)...... 21, 22 Jaben v. United States, 381 U.S. 214(1965) ...... 7, 18, 19, 20, 22, 24, 27 Johnson v. United States, 333 U.S. 10, 14(1948) .. 12 Jones v. United States, 362 U.S. 257 (1960) ...... 7, 8, 24, 25 McCreary v. Sigler, 406 F.2d 1264, 1269 (8th Cir. Pn sooo cee ha kann pe-o die eee oes 19 United States v. Mahler, 442 F.2d 1172, 1174-75 EE 95:50 6s cote bane wt pkavase:s 19 United States v. Matlock, 415 U.S. 164(1974) .... 31 Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)... 7 United States v. Milne, 487 F.2d 1232, 1235 (5th ET siky buia Foun eek beta aewdes ae 26 Rugendorf v. United States, 376 U.S. 528, 533 RCS As 9 Seep s Dew tien owes ebeees Webs « 8, 24 Spinelli v. United States, 393 U.S. 410(1969)..... 6,46, 17, 21, 23, 27 Stone v. Pow Al, 428 U.S. 465, 540(1976) ....... 29 United States v. Sultan, 463 F.2d 1066, 1069 (2nd Seen OER i+ s & cls wdbanhcae o Kekusmkas'ss 20 Thompson v. White, 406 F.2d 1176, 1178 (5th Cir. RSA Gk ane i's + haSRes oe MEAS Oo Re 20 United States v. Unger, 469 F.2d 1283 (7th Cir. PE in as 0 igre sve d ae hoe coe acid bs 19 United States v. Ventresca, 380 U.S. 102, 109(1965) 11, 26 INDEX PEE Pee Tee ETE T Te Arguments FACTS AND CIRCUMSTANCES PRE- SENTED TO MAGISTRATE WERE SUFFI- CIENT TO JUSTIFY ISSUANCE OF Cs AN, BRE SU eS ee THIS COURT HAS APPROVED FIND- INGS OF PROBABLE CAUSE ON LESS EVIDENCE THAN WAS PRESENT HERE . THE ILLINOIS SUPREME COURT’S RE- LIANCE UPON AGUILAR AND SPINELLI 8 Se eee ee AGUILAR VERACITY PRONG WAS SATISFIED HERE BECAUSE POLICE CORROBORATED THE INFORMANT’S TIP AND BECAUSE CITIZEN INFORM- ANT HAD NO APPARENT REASON TO ERE Ad ceca echo cecssebivenes toeteheosiv CITIZEN INFORMANT IS PRESUMED IE Ch ee vas Uta ENN ose eo eeede POLICE CORROBORATION ALSO SAT- ISFIED VERACITY PRONG ............. DETAIL OF INFORMANT’S LETTER AND EXTENT OF POLICE CORROBO- oN NS = >, 11 16 17 18 RATION SATISFIED THE BASIS OF KNOWLEDGE PRONG................-. AGUILAR TWO PRONG ANALYSIS SHOULD BEOVERRULED.............. PRIOR TO AGUILAR THIS COURT FOLLOWED THE RULE THAT A DETER- MINATION OF PROBABLE CAUSE COULD BE BASED UPON HEARSAY EVIDENCE SO LONG AS THERE WAS SUBSTANTIAL BASIS FOR CREDITING DEMING ho .00.6.0 Capen vtewhibievebceee AGUILAR ANALYSIS BROKE FROM THE TRADITIONAL RULE .................. AGUILAR TWO PRONGED ANALYSIS HAS PROVEN UNWORKABLE AND HAS BEEN REPEATEDLY REJECTED BY THIS COURT IN FAVOR OF THE TRADI- TIONAL STANDARD ............---++5: PERSISTENCE OF AGUILAR TOGETHER WITH SUBSEQUENT DECISIONS OF THIS COURT REJECTING THE AGUILAR ANALYSIS HAS CONFUSED THE LOWER COURTS AND POLICE ................. THIS COURT SHOULD FORMALLY OVERRULE THE AGUILAR ANALYSIS IN FAVOR OF THE ANALYSIS EMPLOYED IN ADAMS, WILLIAMS, AND JONES ». EE PP EIDOUED 6 ic ok ciccpri beste berets. 21 23 24 25 26 28 32 1 No. 81-430 3n the Supreme Court of the Anited States OCTOBER TERM, 1981 Tue STATE oF ILLINO!s, Petitioner, vs. LaNcE GATES AND SUSAN GATES, Respondents. PETITIONER’S OPENING BRIEF ON MERITS OPINION BELOW The decision of the Illinois Supreme Court in this case is reported as Peopie v. Gates, 85 Il).2d 376, 423 N.E.2d 887 (1981). The decision of the Illinois Appellate Court is reported as People v. Gates, 82 Ill.App.3d 749, 403 N.E.2d 77 (2d Dist. 1980). The decision of the Circuit Court of DuPage County, Illinois has not been reported. JURISDICTION OF THE COURT The opinion of the Illinois Supreme Court affirming the order of the Appellate Court was rendered on June 26, 1981. The petition for certiorari was filed within sixty days of that opinion. This Court granted certiorari on January i1, 1982. The jurisd ction of the Supreme Court of the United States to hear this case is based upon 28 U.S.C. §1257(3) since in the proceedings in the state courts of Illinois the Respondents have specifically set up, and throughout asserted, an alleged violation of their rights 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. United States Constitution amendment XIV.; Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or proper- ty, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 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 pur- pose of obtainir, legal drugs. The letter read: ‘*This letter is to inform you that you have a cou- ple 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 [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 *'.« 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 ad- vised 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 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 Bioom- 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 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. Gates then left the West Palm Beach area driving north- bound on the interstate highway commonly used by travelers to the Chicago area. The approximate driving time from West Palm Beach, Florida to Bloomingdale, Illinois is 21 to 23 hours. 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 in the Cir- cuit 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 im- mediately served with a search warrant by waiting Bloom- ingdale police officers. In the trunk of the Mercury the of- ficers found several large bundles of marijuana weighing a total of approximately 350 pounds. A search of the Gates’ residence uncovered more marijuana, weapons, ammuni- tion, drug paraphernalia, and several scales presumably used for weighing the drugs. Police also ascertained that the couple had cocaine in their possession. 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. They argued that the magistrate should not have relied upon the anonymous letter in making his determination of probable cause because the letter did not pass muster under the two pronged test for probable cause described in Aguilar v. Texas, 378 U.S. 108 (1964). The Circuit Court of Dupage County granted defendants’ motions to quash the warrant and to suppress the evidence seized pursuant to it. The People of the State of Illinois ap- pealed the suppression order. On April 1, 1980, the Ap- pellate Court for the Second Judicial District of Illinois af- firmed the Circuit Court. On June 26, 1981 the Illinois Supreme Court affirmed the decision of the Appellate Court. The Illinois Supreme Court agreed with the defendants that the magistrate should have ignored the anonymous let- ter because it failed to satisfy either prong of the two prong test for probable cause described in Aguilar v. Texas, 378 U.S. 108 (1964). The Court held that the letter failed to satisfy the ‘‘basis of knowledge’’ prong because the letter did not say that its author acquired his information through personal observation. The letter was not so detailed, the Court further held, that personal observation could be inferred. The Court also held that the letter failed to satisfy the ‘‘veracity’’ prong because the magistrate did not know whether the author of the letter was a truthful person and because the letter con- tained no admission against the penal interest of its author. Either defect, the Illinois Supreme Court held, was fatal. The Illinois Supreme Court went on to hold that indepen- dent police investigation failed to remedy either defect because it disclosed only innocent activities on the part of the defendants. On January 11, 1982 this Court granted the State’s petition for certiorari. SUMMARY OF ARGUMENT The decision of the Illinois Supreme Court was incorrect. Probable cause to justify issuance of a search warrant exists when the facts and circumstances presented to the magistrate are sufficient to warrant a prudent person in the belief that the described items are in the indicated location. The evidence presented to the magistrate was more than ample under this standard. The detailed nature of the tip, the extent of police corroboration, the absence of an apparent motive to lie on the part of the hearsay informant and the nature of the defendants’ trip to Florida, taken together, justified the con- clusion that narcotics were probably present in the defen- dants’ house and car. This Court has approved determina- tions of probable cause based on much less evidence. See e.g., Adams v. Williams, 407 U.S. 143 (1972). The Illinois Supreme Court’s reliance upon Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v. United States, 393 U.S. 410 (1969) for a contrary result was misplaced. The two decisions are distinguishable and the anonymous letter in this case satisfied the two prong test for probable cause described in those decisions. The veracity prong was satisfied by the absence of an apparent motive to lie on the part of the hearsay informant and police corroboration of the infor- mant’s tip. The basis of knowledge prong was satisfied by the nature and extent of the detail in the informant’s tip and by the police corroboration. In any event to the extent that the Aguilar two prong analysis is inconsistent with the analysis employed by this Court in Adams v. Williams, 407 U.S. 143 (1972), Chambers v. Maroney, 399 U.S.42 (1970), Jaben v. United States, 381 U.S. 214 (1965), Jones v. United States, 362 U.S. 257 (1960), Draper v. United States, 358 U.S. 307 (1959) and Brinegar v. United States, 338 U.S. 160 (1949), Aguilar should be overruled. FACTS AND CIRCUMSTANCES PRE- SENTED TO MAGISTRATE WERE SUFFI- CIENT TO JUSTIFY ISSUANCE OF WARRANT The decision of the Illinois Supreme Court was incorrect. The magistrate’s determination of probable cause was prop- er and should not have been overturned. “This Court repeatedly has explained that ‘probable cause’ to justify an arrest means facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.’’ Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). The standard for prob- able cause to justify the issuance of a search warrant is basically the same, except the focus of inquiry is not whether an offense has been committed but whether the items sought are ‘‘probably present’ in the described location. See Rugen- dorf v. United States, 376 U.S. 528, 533 (1964); Jones v. United States, 362 U.S. 257, 271 (1960). The search warrant in this case was properly issued under that standard. The facts and circumstances presented to the magistrate were sufficient to warrant a prudent person in the belief that illegal narcotics were probably present in the defendants’ house and car. To begin with the anonymous letter. The letter describes the defendants activities in detail and sets forth facts and circumstances supporting its conclusion that police will find illegal narcotics in the defendants’ house and car. The letter identifies the defendants by name, tells where they live and notes that the defendants ‘‘brag about the fact they never have to work, and make their entire living on pushers.’’ Ti.. letter observes that the defendants ‘‘are friends with some big drugs dealers, who visit their house often.’’ The letter ex- plains where the defendants buy their drugs and how they pick the drugs up. ‘‘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.’’ The letter then goes on to describe the defendant’s immediate travel plans. ‘‘ May 3 she is driving down there again and Lance will be flying down in a few days to drive it back.’’ The letter then notes ‘‘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.”’ The circumstances set forth in the letter are plainly incrim- inating, if true, and the nature and extent of its detail provide strong evidence that the letter is based upon its author’s per- sonal knowledge rather than upon surmise or rumour. It is also noteworthy that the letter came to police from an ordinary citizen who volunteered his information rather than from a paid police informer who was paid for his informa- tion. People who sell information to police have a financial incentive to fabricate false accusations in order to have something to sell. This is not true for citizen informers who volunteer their information and the informant in this case had no apparent reason to lie. Turning now to the police corroboration of the inform- ant’s tip. Police were able to verify several details in the anonymous letter. This greatly reduced the possibility that the informant was reporting a made-up story or the product of someone’s speculation. Police verified that the defendants lived where the informant said they did. Police confirmed that Lance Gates flew to Florida on May 5, 1978, as pre- dicted by the informant. Police verified that upon arriving in Florida, he went to a motel room registered to his wife, again consistent with the prediction of the informant. The next morning police ascertained that Gates left the motel and got into his own car which had already been driven to Florida, again consistent with the informant’s prediction. Finally, police verified that Gates left the West Palm Beach area and drove north on an interstate highway commonly used by travellers to the Chicago area, once again consistent with the prediction of the informant. Police investigators not only corroborated the informant’s tip. They also uncovered a number of circumstances that lent credence to the tip and greatly diminished the possibility that the defendants were ordinary vacationers and the anony- mous letter merely a malicious prank by a friend or neighbor who k. ©w only that the defendants would be vacationing in Florida in early May. The defendants’ trip to Florida had all the earmarks of a drug run and none of the earmarks of an ordinary vacation. The typical vacationing family would travel to Florida together, stay for a while and then return by the same mode by which they came. The average vacationer would not, as Lance Gates did, fly from Chicago to West 10 Palm Beach, Florida, arrive in the evening, go directly from the airport to a motel, check into a room registered to his wife, leave the motel at 7:00 a.m. the next morning, get into his own car, somehow waiting for him in Florida, and drive directly back toward Illinois. This unusual itinerary suggests a number of things. First, Lance Gates’ short stay in West Palm Beach, Florida suggests that he was anxious to minimize the time that his home in Illinois would be left unattended. This, in turn, is consistent with the informant’s statement that there were over $100,000.00 worth of drugs in the basement of the Gates’ home in Illinois. A person with valuables of that sort might well be inordinately fearful of burglars. Second, the short stay suggests that Gates’ trip to Florida had a business purpose rather than a recreational purpose. Since Lance Gates went only to his motel room and his car before leaving, the natural inference is that Lance Gates went to Florida to pick something up and drive it back to Illinois. That Gates drove back to Illinois, rather than flew, despite his evident concern for haste, suggests that he was transporting something that he did not want to ship or send through airport security; something over which he wished to maintain constant and exclusive control. Given that Florida is the major port of entry for illegal narcotics brought into the United States', a fact this Court may judicially notice, see Carroll v. United States, 267 U.S. 132, 159 (1925), the natural inference is that Gates was bringing nar- cotics of some sort back to Illinois, just as the anonymous let- ter predicted. ' A publication of the Drug Enforcement Administration, The National Narcotics Intelligence Consumers Committee, Narcotics Intelligence Estimate, The Supply of Drugs to the U.S. Illicit Market From Foreign and Domestic Sources in 1979 reports at page 10: continued on next page 11 All of these circumstances, the derail of the letter, the absence of an apparent motive to lie, the police corroboration and the nature of Lance Gates’ short trip to West Palm Beach, taken together, are more than ample to justify the magistrate’s determination of probable cause, particularly when considered in light of ‘‘the preference to be accorded to warrants.’’ United States v. Ventresca, 380 U.S. 102, 109 (1965). THIS COURT HAS APPROVED FINDINGS OF PROBABLE CAUSE ON LESS EVI- DENCE THAN WAS PRESENT HERE This Court has approved findings of probable cause on less evidence than was present here. In Adams v. Williams, 407 U.S. 143 (1972) an unnamed informer told a police of- ficer that a person sitting in a parked car was carrying a gun in his waistband and was also carrying illegal narcotics. The officer approached the suspect, reached into the car, and found the gun in the place indicated. The officer then arrested the suspect, searched him and found the illegal narcotics. continued from previous page Reflecting the heavy south-to-north flow of cocaine and marihuana from South America, Florida remained the prime smuggling gateway to the illicit U.S. drug market. Approx- imately 40 percent of all cocaine and 30 percent of all im- ported marihuana moved through the State, representing an estimated retail value of approximately $25 billion. Most of the counterfeit Quaalude shipments smuggled by air and sea were also destined for the Florida area. 12 The defendant challenged the search. The informant had never given police reliable information in the past and, in any event, there was no indication how the informant ac- quired his information. The discovery of the gun, the defen- dant argued, could not remedy either defect since possession of the gun was consistent with innocent behavior. Under local law possession of a gun, even if concealed, was lawful so long as the owner had a license and the police officer never asked whether the defendant had a license before making the arrest and searching the defendant for narcotics. Therefore, the defendant argued, the officer lacked probable cause. This Court rejected that argument and approved the of- ficer’s determination of probable cause. Probable cause ex- isted, this Court held, because ‘‘the policeman found Williams in possession of a gun in precisely the place predicted by the informant. This tended to corroborate the reliability of the informant’s further report of narcotics and, together with the surrounding circumstances, certainly sug- gested no lawful explanation for possession of the gun.’’ Jd. at 148-149. Similarly here, police verified Lance Gates’ strange trip to Florida to pick up his own car and immediately drive it back toward Illinois precisely as predicted by the informant. To paraphrase Adams, this tended to corroborate the reliability of the informant’s further report of narcotics and, together with the surrounding circumstances, certainly suggested no lawful explanation for the journey. Indeed, there is more reason to approve the finding of probable cause in the instant case than there was in Adams v. Williams. The informant’s tip was more detailed here, the corroboration was more extensive and the determination of probable cause was made by a neutral and detached magis- trate rather than by ‘‘the officer engaged in the often com- petitive enterprise of ferreting out crime.’’ Johnson v. United States, 333 U.S. 10, 14 (1948). 13 There are other favorable precedents. In Draper v. United States, 358 U.S. 307 (1959) federal agents arrested a suspect and searched him for narcotics on the basis of a tip from a reliable informant that the defendant would be carrying nar- cotics as he left a particular train together with government corroboration that a man meeting the informant’s descrip- tion exited the indicated train. This Court approved the ar- rest and search as based upon probable cause even though there was no indication how the informant acquired his in- formation. This Court reasoned that Marsh, the arresting officer **... had personally verified every facet of the in- formation given him by Hereford except whether petitioner had accomplished his mission and had the three ounces of heroin on his person or in his bag. And surely, with every other bit of Hereford’s information being thus personally verified, Marsh had ‘reasonable grounds’ to believe that the re- maining unverified bit of Herreford’s information — that Draper would have the heroin with him — was likewise true.’’ Jd. at 313. Similarly here, once police verified the informant’s iden- tification of the defendants and detailed prediction of their unusual travel plans, there were reasonable grounds to believe that the remaining unverified bit of information - that the defendants wowld be transporting narcotics — was Indeed the case for probable cause may be stronger here than it was in Draper since tie surrounding circumstances here were less innocent than were those in Draper. Draper just took a train from Denver to Chicago then returned, a few days later, from Chicago to Denver, also by train. Stand- ing alone these circumstances do not corroborate the inform- ant’s report. Lance Gates, by contrast, flew from Chicago to Florida to meet his own car, evidently driven there ahead of 14 him by his wife, then the very next morning drove back ithe question of probable cause in and of themselves. In Carroll v. United States, 267 U.S. 132 (1925) the Court approved the search of a car based upon only three circum- stances: (1) the defendants had offered to sell a federal agent bootleg liquor in Grand Rapids, Michigan but failed to deliver; (2) a few weeks later federal agents saw the defen- dants driving from Grand Rapids toward Detroit; and, (3) two months after that federal agents saw the defendants driv- ing toward Grand Rapids from the direction of Detroit. This Court took judicial notice ‘‘that Grand Rapids is about 152 miles from Detroit, and that Detroit and its neighborhood along the Detroit river, which is the international boundary, is one of the most active centers for introducing illegally into this country spirituous liquors for distribution into the in- terior.’’ Jd. at 160. This Court then reasoned that the federal agents had convincing evidence that ‘‘the Carroll boys, as they called them, were so-called ‘bootleggers’ in Grand Rapids, — i.e., that they were engaged in plying the unlaw- ful trade of selling such liquor in that city.’’ Jd. at 160. This Court went on: **The officers had soon noted their going from Grand Rapids halfway to Detroit, and attempted to follow them to that city to see where they went, but they escaped observation. Two months later these officers suddenly met the same men on their way westward, presumably from Detroit. The partners in the original combination to sell liquor in Grand Rapids were together in the same auto- mobile they had been in the night when they tried to furnish the whisky to the officers, which was thus identified as part of the firm equipment. They were coming from the direction of the great source of 15 supply for their stock to Grand Rapids, where they plied their trade. That the officers, when they saw the defendants, believed that they were carrying li- quor, we can have no doubt; and we think it is equally clear that they had reasonable cause for thinking so. Jd. at 160. Similarly, in Brinegar v. United States, 338 U.S. 160 (1949) this Court approved the stop of a car just inside the . Oklahoma border from Joplin, Missouri because Oklahoma was a ‘‘dry’’ state at the time, because the driver of the car was a known bootlegger and because the driver had been seen loading liquor into his car on several occasions in the six months prior to the search. ‘This Court reasoned, ‘‘[I]t is im- possible to distinguish the Carroll Case with reference to the proof relating to the source of supply, the place of probable destination and illegal market, and consequently the prob- ability that the known liquor operators were using the con- necting highway for the purposes of their unlawful business.”’ Jd. at 167. Petitioner submits that the circumstances of Lance Gates’ journey to and from Florida, the most active center for intro- ducing illicit narcotics into this country, gave far more basis for a belief that contraband was being transported than did the Carroll brothers’ drive from Detroit to Grand Rapids or Brinegar’s drive from Joplin, Missouri into Oklahoma. There were many innocent reasons why the Carroll brothers might be driving toward Grand Rapids or Brinegar from Joplin, Missouri into Oklahoma. It is much harder to ex- plain away Lance Gates’ flight to Florida to meet his own car which he immediately drove back toward Illinois. Accordingly, petitioner submits that the facts and circum- stances presented to the magistrate in the instant case were ample under this Court’s decisions to justify his finding of probable cause. 16 THE ILLINOIS SUPREME COURT’S RELI- ANCE UPON AGUILAR AND SPINELLI WAS MISPLACED The Illinois Supreme Court’s reliance upon Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v. United States, 393 U.S. 410 (1969) to reach an opposite result and to overturn the search warrant was misplaced. Those decisions are distinguishable on their facts and the search warrant affidavit in the instant case passed muster under the two prong analy- sis described in these decisions. In Aguilar v. Texas, 378 U.S. 108 (1964) police officers sub- mitted a search warrant affidavit which stated: ‘*Affiants have received reliable information from a credibie person and do believe that heroin, mari- juana, barbiturates and other narcotics and nar- cotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law.’’ Jd. at 109. The Court held the affidavit deficient because the infor- mation merely reflected the informant’s ‘‘ ‘suspicion’, ‘be- lief’ or ‘mere conclusion.’’’ Jd. at 114. The Court concluded by setting forth a two pronged standard of review for deter- minations of probable cause based in part upon hearsay evidence. sil inalasaibid at Nilliitah ot acti in 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 dis- closed, [citation], was ‘credible’ or his information ‘reliable.’’’ Jd. at 114, 115. 17 In Spinelli v. United States, 393 U.S. 410 (1969) the search warrant 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 confidential reliable in- formant that William Spinelli is operating a handbook and numbers WYdown 4-0029 and WYdown 4-0136.’’ Id. at 414. Police corroborated only that Spinelli frequented an apartment building to which these telephone numbers were assigned. This Court held the affidavit inadequate under the Aguilar standard. The search warrant affidavit in the instant case was far more detailed than those condemned in Aguilar and Spinelli, the police corroboration is more extensive and tie surround- ing circumstances more reliable indicia of probable cause. The tip does not merely state a conclusion. It sets forth the facts and circumstances supporting the conclusion. The facts of the instant case are far closer to those of Draper which Spinelli cites with approval than to those of either Aguilar or Spinelli. See Spinelli v. United States, 393 U.S. 410, 417-418 (1969). AGUILAR VERACITY PRONG WAS SATIS- FIED HERE BECAUSE POLICE CORROB- ORATED THE INFORMANT’S TIP AND BECAUSE CITIZEN INFORMANT HAD NO APPARENT REASON TO LIE The search warrant affidavit also passes muster under the Aguilar two prong analysis. Turning first to the veracity prong. This prong requires evidence that the informant is a credible person or his information reliable. The Illinois Supreme Court erred when it held that the veracity prong can be satisfied only by evidence that the informant had 18 given reliable information in the past, or that he made an ad- mission against his penal interest or that police uncovered corroborating circumstances that are incapable of innocent explanation even when viewed in isolation. These are not the only ways the veracity prong can be satisfied. Veracity may also be inferred from either of two other circumstances that are present in this case: (1) the absence of an apparent motive to lie on the part of the hearsay informant; or (2) police cor- roboration of some activity which is consistent with the tip although it would appear harmless without it. CITIZEN INFORMANT IS PRESUMED RELIABLE This is clear from this Court’s cases following Aguilar. In Jaben v. United States, 381 U.S. 214 (1965), a tax prosecution, the criminal complaint recited that the affiant had in- vestigated the taxpayer’s financial records and interviewed “third persons having knowledge of the said taxpayer’s financial condition’’ Jd. at 221-222, and, as a result, believed that the taxpayer had understood his income and tax owing by certain specified amounts. Even though there was no direct evidence that the third persons having knowledge of the defendant’s financial conditions were credible persons or that their information was reliable this Court approved the complaint as sufficient for a finding of probable cause. This Court reasoned that the hearsay informants had no reason to lie and were not likely to lie. Their veracity could therefore be presumed. In Chambers v. Maroney, 399 U.S. 42 (1970) police stopped and searched a car that matched the description of a car eye witnesses saw driving away from an armed robbery. Under the Illinois Supreme Court’s interpretation of Aguilar the search would have been improper since there was no 19 evidence that the eye witnesses had ever given police reliable information in the past, the witnesses made no admission against their penal interest and the presence of the car on the highway was, in and of itself, clearly innocent. Yet this Court had no trouble approving the search, holding that police had ample cause to stop and search the car that matched the description given to them by the citizen-informers. Jaben and Chambers were correctly decided. Citizen- informers, that is, persons who are not paid or protected police informers, should be presumed credible absent an ap- parent motive to lie. Citizen-informers do not have the finan- cial incentive to fabricate false accusations that paid in- formers do. Moreover, if citizen-informers were not pre- sumed credible then criminals could victimize people who have not informed in the past, confident that the victim’s complaint to police would be insufficient to justify an arrest. Plainly, this would be unacceptable. As this Court put it in Adams v. Williams, 407 U.S. 143, 147 (1972), ‘‘when the vic- tim of a street crime seeks immediate police aid and gives a description of his assailant. ..the subtleties of the hearsay rule should not thwart an appropriate police response.’’ See also United States v. Burke, 517 F.2d 377 (2d Cir. 1975); United States v. Unger, 469 F.2d 1283 (7th Cir. 1972); McCreary v. Sigler, 406 F.2d 1264, 1269 (8th Cir. 1969); United States v. Mahler, 442 F.2d 1172, 1174-75 (9th Cir. 1971); United States v. Bell, 457 F.2d 1231, 1238-39 (Sth Cir. 1972); Brown v. United States, 365 F.2d 976 (D.C. Cir. 1966). The informer in this case was a citizen informer rather than a paid police informant. The informer volunteered his information. He received no reward. He had no apparent financial reason to lie. In this respect, the informer in this case resembles the unnamed ‘‘third persons having knowl- edge of the said taxpayer’s financial condition’’ whose infor- 20 mation was credited in Jaben v. United States, 381 U.S. 214, 221-222 (1965) or the eye witnesses whose information was credited in Chambers v. Maroney, 399 U.S. 42 (1970). POLICE CORROBORATION ALSO SATIS- FIED VERACITY PRONG The veracity prong may also be satisfied by the police cor- roboration of the details of the anonymous letter. Police verified that the informant provided reliable information with respect to the defendants’ home address and unusual travel plans. A number of cases have recognized that ‘‘the veracity of an unknown informer can be sufficiently deter- mined by the searching officer’s personal observation of some activity which is consistent with the tip but which would appear harmless without it.’’ United States v. Anderson, 500 F.2d 1311, 1316 (5th Cir. 1974). See United States v. Sultan, 463 F.2d 1066, 1069 (2d Cir. 1972), Thompson v. White, 406 F.2d 1176, 1178 (5th Cir. 1969), Bailey v. United States, 386 F.2d 1, 3 (5th Cir. 1967). See also 8A J. Moores Federal Practice, Rules of Criminal Procedure, par. 41.04 (1981 Cipes ed). Adams v. Williams, 407 U.S. 143 (1972) is one such case and its holding is inconsistent with that of the Illinois Supreme Court in the instant case. The hearsay tip relied upon in Adams would have been deficient had this Court followed the Illinois Supreme Court’s interpretation of the Aguilar veracity prong. There was no evidence that the in- formant who told the officer that the defendant had a gun and illicit narcotics had ever given police reliable informa- tion in the past. The tip contained no admissions against the informant’s penal interest. The gun found on the defendant might well have been licensed and so was not incriminating 21 in and of itself. Yet this Court approved reliance upon the tip, reasoning that the discovery of the gun in precisely the place indicated by the informant lent credence to the inform- ant’s further report of narcotics. Adams was correctly decided. The furnishing of reliable in- formation by the informant in the present is as good an in- dication of his veracity as is his furnishing of reliable infor- mation in the past. As Justice White put it in his concurrence in Spinelli v. United States, 393 U.S. 410, 426 (1969) (White, J. concurring) in discussing the facts of Draper, ‘‘Unques- tionably, verification of arrival time, dress and gait rein- forced the honesty of the informant — he had not reported a made up story.”’ DETAIL OF INFORMANT’S LETTER AND EXTENT OF POLICE CORROBORATION SATISFIED THE BASIS OF KNOWLEDGE PRONG Turning now to the basis of knowledge prong — the requirement that there be evidence that the informant ac- quired his information in a reliable manner. The Illinois Supreme Court was wrong when it held that the anonymous letter failed to satisfy the basis of knowledge prong because the tip did not purport to be based upon personal observation and the tip was not sufficiently detailed or corroborated. This Court has approved reliance upon hearsay tips far less detailed and corroborated than the tip in the instant case even though the tips did not purport to be based upon per- sonal observation. In Adams v. Williams, supra, discussed earlier, the tip did not purport to be based upon personal observation and contained only two details. Yet corrobora- tion of only one of these details was held sufficient. In Husty v. United States, 282 U.S. 694 (1931) this Court unanimously 22 approved the search of a car based upon an informant’s tip that there was bootleg liquor in the car together with police corroboration that the defendant had once been arrested for bootlegging, that his car was in the location and met the description indicated by the informant and that two of its oc- cupants fled when police arrived. The tip in this case was far more detailed and corroborated than was the tip in Husty. The informant here not only cor- rectly predicted where the defendant’s car was, essentially the only detail corroborated in Husty, but also how it got there, how the defendant would get to it, and where he would drive it once he got to it. Similarly in Jaben v. United States, 381 U.S. 214 (1965) there was no indication how the third persons having knowledge of the taxpayer’s financial conditions acquired that knowledge or even what that knowledge was. Yet this Court permitted reliance upon the undisclosed reports of the unnamed informants in the magistrate’s determination of probable cause, reasoning that: There is a difference between disbelieving the af- fiant and requiring him to indicate some basis for his allegations. Obviously any reliance upon fac- tual allegations necessarily entails some degree of reliance upon the credibility of the source. See, e.g., Johnson v. United States, 333 U.S. 10, 13, 92 L ed 436, 439, 678 S Ct 367. Nor does it indicate that each factual allegation which the affiant puts forth must be independently documented, or that each and every fact which contributed to his conclusions be spelled out in the complaint. Com- pare United States v. Ventresca, 380 U.S. 102, 13 L ed 2d 684, 85 S Ct 741. It simply requires that enough information be presented to the Commis- sioner to enable him to make the judgment that the 23 charges are not capricious and are sufficiently sup- ported to justify bringing into play the further steps of the criminal process. Jd. at 224-225. Surely the information provided by police to the magis- trate in the instant case met and exceeded this standard. As noted earlier, the details of the informant’s tip in this case and the extent of police corroboration compare favorably to the facts of Draper, another case in which the in- formant did not say how he acquired his information and a case Spinelli recognizes as satisfying the basis of knowledge prong. As was said of the Draper decision in Spinelli v. United States, 393 U.S. 410, 417-418 (1969) so may it be said here. Once the police verified the informant’s detailed prediction of Lance Gates’ unusual travel plans, — that he would fly to Florida, to meet his own car which his wife had already driven to Florida and that he would immediately drive it back toward Iilinois, — it became ‘‘apparent that the in- formant had not been fabricating his report out of whole cloth; since the report was of the sort which in common ex- perience may be recognized as having been obtained in a reliable way, it was perfectly clear that probable cause had been established.’’ AGUILAR TWO PRONG ANALYSIS SHOULD BE OVERRULED Petitioner submits that the magistrate’s determination of probable cause in the instant case was proper under any stan- dard of probable cause this Court has employed. Neverthe- less, this case affords the Court an appropriate vehicle for reexamining the Aguilar two prong analysis which guided the Illinois Supreme Court in the instant case. 24 This Court’s treatment of the Aguilar two prong analysis *‘illustrate[s] a not unusual characteristic of legal develop- ment: broad principles are articulated, narrowed when ap- plied to new contexts, and finally replaced when the distinc- tions they rely upon are no longer tenable.’’ Cadell v. Chavez- Salido, _U.S.__, 70 L.Ed.2d 677, 681, 102 S.Ct. __ (1982). Petitioner respectfully submits that the Aguilar two prong analysis has become outmoded in light of this Court’s subse- quent decisions in Adams v. Williams, 407 U.S. 143 (1972); Chambers v. Maroney, 399 U.S. 42 (1970); and Jaben v. United States, 381 U.S. 214 (1965). To the extent that the Aguilar analysis differs from the analysis employed in these decisions it should be formally overruled. PRIOR TO AGUILAR THIS COURT FOL- LOWED THE RULE THAT A DETERMINA- TION OF PROBABLE CAUSE COULD BE BASED UPON HEARSAY EVIDENCE SO LONG AS THERE WAS SUBSTANTIAL BASIS FOR CREDITING THE HEARSAY Prior to Aguilar this Court followed the rule that a deter- mination of probable cause could be based upon hearsay evidence so long as there was substantial basis for crediting the hearsay. See Jones v. United States, 362 U.S. 257 (1960). See also Rugendorf v. United States, 376 U.S. 528 (1964). Whether there was substantial basis was decided according to the facts and circumstances of the particular case and without resort to technical rules of evidence or their equivalent. As this Court explained in Brinegar v. United States, 338 U.S. 160, 175 (1949): **In dealing with probable cause,...as the very name implies, we deal with probabilitics. These are not technical; they are the factual and practical 25 considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.”’ The focus of inquiry under this standard was on whether the facts and circumstances known to the officer or magistrate were sufficient to warrant a prudent person in the belief that an offense was being committed or that contra- band would probably be found in a perticular place. The hearsay nature of evidence relied upon went to its weight, as it bore upon that question, and was considered along with the other circumstances of the case. AGUILAR ANALYSIS BROKE FROM THE TRADITIONAL RULE Aguilar v. Texas, 378 U.S. 108 (1964) could have been decided with the same result under the Jones-Brinegar stan- dard. The search warrant affidavit held inadequate in Aguilar contained no corroboration or anything else to substantiate the hearsay informant’s bare assertions. But instead of sim- ply relying upon the old_Jones substantial basis test this Court articulated a more formal rationale for its decision. In effect Aguilar created an exclusionary rule of evidence governing the admissibility of hearsay in determinations of probable cause. Hearsay could not be considered unless a proper foundation was laid. There must be evidence that the hearsay informant was a credible person or his information reliable. There must also be evidence that he acquired his in- formation from personal observation or from a second hear- say informant who qualifies as a competent witness under both prongs of the analysis. See generally, Moylan, Hearsay and Probable Case: An Aguilar and Spinelli Primer, 25 Mercer L. Rev. 741 (1974). 26 AGUILAR TWO PRONGED ANALYSIS HAS PROVEN UNWORKABLE AND HAS BEEN REPEATEDLY REJECTED BY THIS COURT IN FAVOR OF THE TRADITIONAL STANDARD For a variety of reasons, the original formulation of the Aguilar two pronged analysis proved unworkable. The veracity prong, to take one example, was written with paid police informants in mind; people whose credibility could be proven by evidence that they had furnished reliable informa- tion in the past. The prong was illsuited for cases involving citizen informers; ordinary citizens who had not informed in the past but whom police believed because there was no reason to disbelieve them. There were also problems with the basis of knowledge prong. Even in the courtroom ‘‘witnesses often find diffi- culty in expressing themselves in language which is not that of an opinion or conclusion.’’ Advisory Committee Note to Rule 701 of the Federal Rules of Evidence quoted in 11 J. Moore’s Federal Practice, §701.01 (1976). Lay witnesses often use their opinions ‘‘as a shorthand rendition of a set of collective facts otherwise difficult to state.’’ United States v. Milne, 487 F.2d 1232, 1235 (Sth Cir. 1973). Police inform- ants suffered from the same shortcomings and in exigent cir- cumstances or in the case of anonymous tips it was not al- ways possible for police to correct the problem and elicit each and every observation which led them to their conclusions. To deal with these practical difficulties this Court added refinements to the Aguilar analysis. In United States v. Ven- tresca, 380 U.S. 102 (1965) this Court held that hearsay informants who were full-time government investigators engaged in the same investigation as the affiant were presumptively credible. 27 In Spinelli v. United States, 393 U.S. 410 (1969) this Court held that the basis of knowledge prong could be satisfied if the tip was sufficiently detailed that it could be inferred that the information was acquired in a reliable manner. In United States v. Harris, 403 U.S. 573 (1971) a plurality of this Court held that admissions against the informant’s penal interest could satisfy the veracity prong. Despite these refinements the Aguilar two pronged analysis remained unworkabie. This Court began to ignore the two pronged test in favor of the traditional common sense ap- proach. In Jaben v. United States, 381 U.S. 214 (1965) for example, a tax prosecution, this Court approved a deter- mination of probable cause based in part upon undisclosed ~ hearsay even though the affidavit said nothing about the credibility of the informants or their basis of knowledge. This court reasoned that the affidavit presented enough informa- tion ‘‘to the Commissioner to enable him to make the judg- ment that the charges are not capricious. . .’’ Jd. at 224-225. Aguilar was distinguished as involving a ‘‘ garden variet[y]’’ of crime. Id. at 224. In Chambers v. Maroney, 399 U.S. 42 (1970), an armed rob- bery prosecution, this Court approved a determination of probablé cause based upon hearsay reports from citizen eye witnesses even though there was no evidence of the inform- ant’s credibility or reliability. Aguilar and Spinz‘li were not even mentioned and the case was decided under the old com- mon sense totality of the circumstances approach that preceded Aguilar and Spinelli. In Adams v. Williams, 407 U.S. 143 (1972) this Court ap- proved a determination of probable cause based upon a hear- say report from an informant who had never provided reliable information in the past and who did not say how he acquired his information. Aguilar and Spinelli were not discussed. Instead this Court cited Brinegar and its rule that probable cause deals with probabilities not technicalities. See Adams v. Williams, 407 U.S. 143, 149 (1972) quoting from Brinegar v. United States, 338 U.S. 160, 175 (1949). PERSISTENCE OF AGUILAR TOGETHER WITH SUBSEQUENT DECISIONS OF THIS COURT REJECTING THE AGUILAR AN- ALYSIS HAS CONFUSED THE LOWER COURTS AND POLICE Lower courts have not felt as free to ignore or distinguish the Aguilar two pronged analysis and have been forced to grapple with the analysis which this Court has repeatedly re- jected as unsuitable or unsatisfactory. They have also been put to the task of reconciling Aguilar with the subsequent decisions that distinguish or ignore it. As a result of all this, the question of hearsay and probable cause, which prior to Aguilar was fairly simple, has become exceedingly complex and arcane. One commentator devotes over 140 pages of a treatise on the Fourth Amendment to the question of when police and magistrates may and may not rely upon hearsay information in forming judgments as to probable cause. See 1 LaFave, Search and Seizure 499-642 (1978). Another commentator writes that ‘“The Aguilar-Spinelli formulation has provoked apparently ceaseless litigation which indeed constitutes the bulk of probable cause law.’’ 8a J. Moore’s Federal Practice par. 41.04 (1981 Cipes ed.) Another commentator com- plains that many courts fail to appreciate the ‘‘subtleties’’ of the Aguilar-Spinelli doctrine. He warns that ‘‘a slipshod ap- plication’’ of the two prong test ‘‘calls down upon us the full fury of Murphy’s law.’’ ‘‘What can go wrong, will go wrong.’’ Moylan, Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer L. Rev. 741, 786, 786 n.137 29 (1974). This same commentator advises patience in working through the sutieties and practical problems of the two prong test. He reminds critics of Aguilar ‘‘that it took the bet- ter part of two centuries for the common law to hammer out the hearsay rule and its various and numerous exceptions in a trial setting. .. That some growing pains are inevitably be- ing experienced, as we evolve analogous guidelines for the reception of hearsay in a probable cause setting, is not to be unexpected.’’ Jd. at 786 n.135. The subtleties, complexities and growing pains of the Aguilar two prong test lead to two sorts of problems. First, police invade the privacy of individuals in violation of their _ Fourth Amendment rights because the police or the magis- _ trates upon whom they rely, honestly fail to understand the two prong test (or more accurately, how some court will _ subsequently interpret it.) Second, because of this first prob- ~ lem, evidence is excluded in circumstances in which the ex- ciusion will have no deterrent effect on similar police conduct in the future and serves only to keep unimpeachable and pro- bative evidence from the trier of fact. See Stone v. Powell, 428 U.S. 465, 540 (1976) (White, J. dissenting). THIS COURT SHOULD FORMALLY OVER- RULE THE AGUILAR ANALYSIS IN FAVOR OF THE ANALYSIS EMPLOYED IN ADAMS, WILLIAMS, AND JONES v. UNITED STATES. The time has come to put an end to this confusion and the problems that it has spawned. Police need workable rules. As this Court recognized in Dunaway v. New York, 442 U.S. 200, 213-214 (1979), in the area of probable cause: 30 ‘*A single, familiar standard is essential to guide police officers, who have only limited time and ex- pertise to reflect on and balance the social and in- dividual interests involved in the specific circum- stances they confront.’’ The Aguilar two pronged analysis cannot be that ‘‘single, familiar standard.’’ The two pronged test is neither single nor familiar. It is a complex mass of rules, subrules, presumptions and ill-defined exceptions and it is bordered by areas where the analysis does not apply. The Brinegar-Jones standard, by contrast, is ‘‘a practical, nontechnical conception affording the best compromise that has been found for accommodating [the] often opposing in- terests’’ in ‘‘safeguard|ing] citizens from rash and unreason- able interferences with privacy’’ and in ‘‘seek[ing] to give fair leeway for enforcing the law in the community’s protec- tion.’’ Brinegar v. United States, 338 U.S. 160, 176 (1949). See also Dunaway v. New York, 442 U.S. 200, 208 (1979). The standard is single; it may be applied in all cir- cumstances. The standard is familiar, it is the standard this Court applied both before and after Aguilar. And the stan- dard is workable. The standard recognizes, as Aguilar does not, that: **In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act. Because many situations which confront offi-~rs in the course of executing their duties are more or less ambiguous, room must be allowed for some . 31 mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability... . Re- quiring more would unduly hamper law enforce- ment. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.’’ Brinegar v. United States, 338 U.S. 160, 175, 176 (1949). The Brinegar-Jones standard recognizes that it is imprac- tical to prescribe a general rule to govern the admissibility of hearsay in determinations of probable cause. As this Court observed in Adams v. Williams, 407 U.S. 143, 147 (1972) ‘‘In- formants’ tips, like all other clues and evidence coming to a policeman on the scene, may vary greatly in their value and reliability. One simple rule will not cover every situation.’’ Accordingly, the Brinegar-Jones standard deems all hearsay admissible and leaves its weight to be determined according to the facts and circumstances of the particular case. This is a sensible rule. As this Court observed in United States v. Matlock, 415 U.S. 164 (1974) in considering whether hearsay evidence should be excluded from suppression hearings: **There is, therefore, much to be said for the proposition that in proceedings where the judge himself is considering the admissibility of evidence, the exclusionary rules, aside from rules of privi- lege, should not be applicable; and the judge should receive the evidence and give it such weight as his judgment and experience counsel.’’ United States v. Matlock, 415 U.S. 164, 175 (1974). The Brinegar-Jones standard is the standard that this Court has in fact applied, at least since 1970, in reviewing deter- minations of probable cause based upon hearsay evidence. There would be no harm and much good in making this of- ficial and formally overruling the Aguilar two prong analysis. 32 CONCLUSION Because of the foregoing, the decision of the Illinois Supreme Court should be reversed. Respectfully submitted, TYRONE C. FAHNER — Attorney General State of Illinois PAUL P. BIEBEL, JR. First Assistant Attorney General DANIEL M. HARRIS Assistant Attorney General 160 North LaSalle Street Room 800 Chicago, Illinois 60601 (312) 793-4714 ; jau sepiose Ju the ‘Supreme Court of the United States THE STATE OF ILLINOIS, Petitioner, vs. LANCE GATES and SUSAN GATES, . Respondents. BRICF FOR THE RESPONDENTS i CERTIFICATE OF INTERESTED PARTIES The undersigned, counsel of record, certifies that the following listed persons and government entities have an interest in the outcome of this case. These representa- tions are made in order that the Justices of this Court may evaluate possible disqualification or recusal. Name STATE OF ILLINOIS — Petitioner LANCE GATES — Respondent SUSAN GATES — Respondent Crype W. Woopy James W. REILLY Attorney at Law 1290 Pennzoil Place 711 Louisiana Houston, Texas 77002 Counsel For Respondents Attorney at Law 180 North LaSalle Street Suite 1425 Chicago, Illinois 60601 Counsel For Respondents Autan A. ACKERMAN Attorney at Law 100 N. LaSalle Street Suite 611 Chicago, Illinois 60602 Counsel For Respondents QUESTIONS PRESENTED FOR REVIEW (1) Whether An Anonymous Tipster, Who States His/Her Own Opinions Or Conclusions About The Pos- sibility Of Prospective Criminal Activity, Can Provide Constitutionally Acceptable Probable Cause For The Is- suance Of A Search Warrant, Under Article I, Section 6 Of The Illinois Constitution And The Fourth Amend- ment To The United States Constitution? (2) Whether The Trial Court, The Illinois Appellate Court And The Illinois Supreme Court Properly Affirm- ed The Quashing Of A Search Warrant Where The Un- - we ar Affidavit Failed To Meet The Jones-Aguilar ests? INDEX PAGE Questions Presented For Review .........ccccccssecssessees ii Original Ruling Below 1 Jurisdiction 2 Constitutional Provisions 3 Statutes ou IS EE “WEED WMIIID entincictnciatcscsetweseonsecnpsbestvaomnendancsnsne 4 Summary Of Argument oi 5 Argument a (A). From Draper to Franks .... the evolution of hearsay as it relates to probable cause .. 10 (B). The Aguilar Standards » (C). This Court should either remand this case to the Illinois Supreme Court for clarifica- tion or dismiss the certiorari petition as improvidently granted. 24 (D). The warrantless arrest/search parr cited by the petitioner have no relevance to this case. 27 EE ee ee oe 31 Appendix A (Ill. Rev. Stat. Ch. 38 4 114-12 (1976) .... la TABLE OF AUTHORITIES Casks: Adams v. Williams, 407 U.S. 148 ..cccccccccccceseeeees 9, 28 Aguilar v. Texas, 378 U.S. 108 ............ 7, 13, 16, 20, 22, 26 Andresen v. Maryland, 427 U.S. 463 .....c.ccccccccscseseeees 14 iv | PAGE Arkansas v. Sanders, 442 U.S. 753 11 Brinegar v. United States, 338 U.S. 160 ............ 9, 27, 28 California v. Krivda, 409 U.S. 33 .. 8, 24 Carroll v. United States, 267 U.S. 132 ......ccssssevers 9, 28 Chambers v. Maroney, 399 U.S. 42 ......... 9, 29 Delaware v. Prouse, 440 U.S. 648 .......... 8 Draper v. US., 358 U.S. 307 .......ccesccsssees sos 7,10 Franks v. Delaware, 438 U.S. 154 7, 15,17 Giordenello v. United States, 357 U.S. 480 ............ 7, 17,19 Jaben v. United States, 381 U.S. 214 ..... 22 Jones v. United States, 362 U.S. 257 ........ 7, 12, 16, 22, 26 McCray v. Illinois, 386 U.S. 300 ...........00 " 21 Nathanson v. United States, 290 U.S. 41 ....ccccesscsessess 19 People v. Garcia, 27 Ill. App. 3d 396, 326 N.E. 2d GF GE | cecciesstsensensiisintnecicnicshiiences 9, 21 People v. Linder, 24 Ill. App. 3d 995 ........cccssssssseseee 9 People v. Martin, 70 Ill. App. 3d 36, 388 N.E. 2d 278 24 People v. Palanza, 55 Ill. App. 3d 1028, 371 N.E. 2d GEE at probable cause existed for the warrantless arrest of Draper.. The litigation at bar involves loose information from an anonymous tipster. The ‘‘anonymous tipster’’ not only lacked reliability but provided precious few “facts” (for example, no address was given for either Lance or Susan Gates, no physical description of either person, and cer- tainly no suggestion that the “anonymo [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_1881%3A0. Public record. Not legal advice.