IIllinois v. Gates

PETITIONER:Illinois
RESPONDENT:Lance Gates, et ux
LOCATION:Residence of Gates

DOCKET NO.: 81-430
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: Supreme Court of Illinois

CITATION: 462 US 213 (1983)
ARGUED: Oct 13, 1982
REARGUED: Mar 01, 1983
DECIDED: Jun 08, 1983

ADVOCATES:
James W. Reilley – Reargued the cause for the respondents
Paul B. Biebel Jr. – on behalf of petitioner
Paul P. Biebel, Jr. – Reargued the cause for the petitioner
Rex E. Lee – Argued the cause on reargument for the United States as amicus curiae urging reversal

Facts of the case

The Bloomingdale, Illinois Police Department received an anonymous tip that Lance and Susan Gates were selling drugs out of their home. After observing the Gates’s drug smuggling operation in action, police obtained a warrant and upon searching the suspects’ car and home uncovered large quantities of marijuana, other contraband, and weapons.

Question

Did the search of the Gates’s home violate the Fourth and Fourteenth Amendments?

Warren E. Burger:

We will hear arguments first this morning in Illinois against Gates.

Mr. Biebel, I think you may proceed whenever you’re ready.

Paul B. Biebel Jr.:

Mr. Chief Justice, and may it please the Court:

This is a search and seizure case.

It involves the question of whether or not probable cause for the establishment of a search warrant can be established where an anonymous letter is sent to a police department and many of the items of that anonymous letter are then corroborated by the police.

Here, pursuant to a search warrant, the car and the apartment of Lance and Susan Gates were searched and large quantities of drugs were seized.

However, a motion to suppress was granted by the trial court, DuPage County, Illinois.

That suppression was affirmed by the Appellate Court of Illinois and affirmed once again by the Supreme Court of Illinois.

Certiorari was granted by this Court.

The pertinent facts are these.

On May 3rd, 1978, the Bloomingdale, Illinois Police Department received an anonymous letter which was postmarked May 2nd, 1978.

That letter said that there was a couple living in Bloomingdale, Lance and Sue Gates, who lived on Greenway in the condominiums who made their living off drugs.

Most of their buys, according to the letter, were done in Florida.

Sue would drive a car down to Florida; Lance would fly down later and drive the car back.

The letter specifically stated that on May 3rd, Sue would be driving down to Florida and Lance would be flying down a couple of days later to drive the car back.

The letter stated that the car would contain $100,000 worth of drugs in the trunk, and that there are about $100,000 worth of drugs in the couple’s apartment in the basement.

Further, the letter said that the Gates brag about the fact that they don’t have to work and that they make their money off pushers.

Finally, they indicated that the Gates’s were friends with drug dealers who visit their house often.

Upon receipt of this letter on May 3rd, 1978, the case was assigned to Detective Charles Mader of the Bloomingdale Police Department who did several things to check whether or not this letter was accurate.

First of all, he checked with the Illinois Secretary of State to ascertain whether anybody with a driver’s license by the name of Gates lived in Bloomingdale, and he checked and he found out that, indeed, a Lance Gates lived in Bloomingdale; however, he lived on Dartmouth Avenue, which was different from the letter.

The Secretary of State provided a description of Mr. Gates.

He was a male, white, born in 1947, brown eyes, brown hair, five feet, eleven, 220 pounds.

Because of the discrepancy in the information of the Secretary of State, Detective Mader went further and checked with an anonymous informant who had provided reliable information in the past, which gave him information from financial records which his informant had which indicated that Mr. Gates lived on Greenway, which was consistent with the letter, and that his prior address was on Dartmouth, which would indicate that he had let his driver’s license, in effect… he didn’t follow it up with the new address.

Detective Mader then went and checked with the Chicago Police Department who has responsibility for O’Hare field and ascertained that an L. Gates was slated to go out on Flight 245 on Eastern Airlines to Atlanta and West Palm Beach, Florida at 4:15 on May 5th, which would be consistent with the letter.

A phone number was given for L. Gates, who had registered.

Detective Mader then contacted the security office of the Illinois Bell Telephone Company and found out that that phone number was an unlisted number to Lance Gates who lived on Greenway Drive in Bloomingdale, Illinois.

Detective Mader then checked with the Drug Enforcement Administration, and they had an agent out at O’Hare field waiting to watch the people get on Flight 245.

A man identifying himself as Lance Gates and meeting the description got on that plane.

Drug Enforcement agents were in Florida when that plane landed and they watched Mr. Gate get off the plane, they watched him stay at the airport for about an hour, and then they observed that he took a cab directly to the West Palm Beach Holiday Inn.

He was observed entering the room, registered to Susan Gates.

Paul B. Biebel Jr.:

The record will not reflect what time he arrived, but it had to be about 8:00 o’clock, considering the lapse in time and the delay of an hour in the airport.

Within 12 hours, at 7:00 o’clock the next morning, Mr. Gates and an unidentified female left, checked out, got into an automobile with license plates registered to Lance Gates and headed back on the interstate, presumably towards Chicago.

A check of the license plates indicated that the plates were registered to a car other than being driven in this case.

It was estimated by the drug agents that the driving time from West Palm Beach, Florida to Bloomingdale, Illinois was about 21 to 23 hours.

Now, this was May 6th in the morning.

In the evening of May 6th, which was a Saturday, Detective Mader went and presented his information to a judge who issued a search warrant for the car and for the apartment based on the anonymous letter and the corroboration of the letter.

The search warrant was executed at 5:14 the next morning, which was some 23 hours after the Gates’s had left Florida, which would indicate virtually a non-stop trip.

In the trunk of the automobile were several large bundles of marijuana weighing about 350 pounds.

A search of their residence uncovered more marijuana, weapons, ammunition, drug paraphernalia, several scales presumably for the weighing of the drugs.

The couple also had cocaine in their possession.

Both were indicted for unlawful possession of cannabis with intent to deliver and unlawful possession of a controlled substance, and Lance Gates was separately indicted for possession of an unlicensed firearm.

However, a motion to suppress was granted by the Circuit Court of DuPage County, Illinois by Judge William Hopf who indicated that neither prong of the Aguilar or Spinelli test were met here.

There was no indication in the letter of the basis of the knowledge of the letter writer, and there was nothing to substantiate his reliability.

That was affirmed by the Appellate Court of Illinois Section District in 1980 where that court, admittedly disagreeing with several state and federal cases, held that corroboration by the police can only be used to satisfy the veracity prong of Aguilar and Spinelli and cannot be used to satisfy the basis of knowledge prong.

And since there was no basis of knowledge indicated,–

William H. Rehnquist:

Counsel, where did all this prong lingo come from?

Is that in Aguilar itself?

Paul B. Biebel Jr.:

–Aguilar just set out at the end of the opinion the two steps that have to be utilized when informants are used.

I think it was explicated in the Spinelli case, and certainly there’s been a great deal of comment by courts and a Law Review article since about the two-prong test and how it’s described.

William H. Rehnquist:

You think Aguilar and Spinelli intended to cover the whole waterfront insofar as probable cause and warrants–

Paul B. Biebel Jr.:

We would certainly contend not so, Your Honor, and that’s the basis of our case here.

If Aguilar and Spinelli… we would argue that Aguilar and Spinelli ought to be carefully re-examined by this Court in view of the fact that it’s overly formalistic and it’s confused courts and police officers and prosecutors.

But beyond that, I don’t think that Aguilar and Spinelli was meant to apply to a situation such as here where you have an anonymous letter writer who volunteers information.

I think there’s a distinct difference between that and a police informant where there may well be ulterior motives by a police informant to lie.

The Appellate Court of Illinois, taking this formalistic approach, said we’re sorry, but the corroboration of the police can only go to veracity and it can’t go to the basis of knowledge.

And so there wasn’t any facial indication of basis of knowledge on the affidavit for a search warrant; it had to fall.

The Supreme Court of Illinois affirmed the appellate court but didn’t go quite as far.

In an opinion by Mr. Justice Ward over dissents by Mr. Justices Moran and Underwood, they held that neither prong was met.

They didn’t feel that the corroboration in this case of what they described as clearly innocent activity was sufficient to meet either prong.

However, they didn’t get to the question of whether or not corroboration can be used to supply the basis of knowledge prong.

Paul B. Biebel Jr.:

The dissents, however, said in that case that every detail of the letter was corroborated, like Draper versus the United States, and consequently, both prongs were satisfied and probable cause was properly granted.

It is our contention in this case, Your Honors, that probable cause here for the issuance of a search warrant was properly shown.

The probable cause standards enunciated by this Court in cases such as Draper, Brinegar, Carroll, is whether the facts and circumstances are such as to warrant a reasonably prudent man to believe that a crime has been committed.

And when search warrants are involved, the question is whether or not the items are probably present in their location.

Since probable cause requires less evidence than is required to justify conviction, hearsay can be used to establish probable cause as long as there is a substantial basis for crediting the hearsay, as this Court has enunciated in Jones, Rugendorf, Harris and the like.

Here, the hearsay evidence supplied by the anonymous letter writer, coupled by the corroboration of the police of the details of the letter, were sufficient to warrant a reasonably prudent man in believing that the drugs were probably located where the anonymous letter writer said they were.

This letter described a classic drug run rather than an ordinary social or business trip.

And the predictions of the letter are exactly what occurred–

Lance Gates flew down to Florida, a place that the Drug Enforcement Administration has identified as a major port of entry of illegal narcotics into the United States; a point that this Court can take judicial knowledge of, as it did in Carroll with the role that Detroit played with regard to illegal liquor during prohibition.

He stayed less than 12 hours in Florida, turned around in the automobile that his wife apparently had brought down there and drove back virtually non-stop to Bloomingdale, Illinois, arriving at his apartment in the early morning hours of a Sunday.

The letter was correct, therefore, not only in its conclusion that the Gates were running drugs, but also in the specifics of the trip.

Now, the Supreme Court of Illinois has gone off and said that this was clearly innocent activity.

We would like to note that that should not make a difference as long as that activity, along with the tip itself, is enough to supply probable cause.

Certainly, in the Draper case which I’ll make reference to in a minute, you had clearly innocent activity which, combined with a tip, was judged to be enough for probable cause.

Furthermore, there is an absence of an apparent motive to lie in this case.

With police informants who are often either paid or receive some sort of leniency or protection or perhaps pressure to produce information by the police, there are oftentimes those pressures to lie.

Here, the anonymous letter, however, volunteered the information.

And therefore, it should be given credence like a citizen informant and presumed to be credible.

Consequently, because of the detail of the letter which indicated specifically the time that they would go down to Florida and how they would come back, which proved to be true, because of the absence of an apparent motive to lie, because of the extensive police corroboration in this case which took in three police departments, post office, financial records, because of the inherently suspicious nature of the trip, which was a short round-trip staying less than 12 hours in an area known to be source of narcotics, because of the issuance of a search warrant–

Warren E. Burger:

–What month of the year did this occur in?

Paul B. Biebel Jr.:

–It occurred in May, Judge.

All taken together, all these factors taken together we believe amply justify the judge’s determination of probable cause, particularly when you view that preference ought to be given to search warrants as opposed to warrantless searches, as this Court has often said in cases such as Ventresca.

I might note that probable cause has been found by this Court in cases with less evidence than presented here.

In Adams versus Williams, an opinion of this Court, 1972, a policeman in Bridgeport, Connecticut in the early morning hours was told by an informant, who had only given information on one prior occasion and that had to do with alleged homosexual activity in a railroad station which did not result in any arrest because it had been unsubstantiated… that person told the police officer that the defendant was sitting in a specific location in an automobile; that he had a gun in his waist and that there were substantial amounts of drugs in the car.

The police officer went up to check the man, asked him to open the car door.

He simply rolled down the window.

The policeman then reached in and found a gun in the man’s waistband, precisely where the informant said it would be.

On the basis of this, he then had a warrantless search of the automobile and the man’s person and found heroin… substantial amounts of heroin, both on his person and in the car.

This Court, in an opinion by Mr. Justice Rehnquist, said that when we’re dealing with probable cause we’re dealing with probabilities; we’re not dealing with technicalities.

And since the gun was found precisely where the informant said it would be, then it predicted… was reasonable to corroborate the reliability of the informant that drugs would be in the car as well as the gun in the man’s waistband.

Paul B. Biebel Jr.:

The theory of Adams was premised upon Draper versus the United States where a reliable informant precisely described the attire that Mr. Draper would be wearing, that he would be carrying a tan zippered bag and that he would be walking quickly.

He also indicated that Mr. Draper would be getting off a train from Chicago in Denver, and he would be carrying heroin.

The police watched the train for two days.

The second day they saw a man meeting that description get off the train, carrying a brown zippered bag and walking quickly.

On the basis of that information, they stopped the man, they searched him without a warrant and they found three ounces of heroin on him, as the informant said they would.

This Court found there was probable cause in that case because the preciseness of the description in Draper gave support to the truthfulness of the statement that Draper was carrying heroin.

We contend that this case is stronger than either Adams or Draper because here there was extensive police corroboration of activity that was less innocent than either Adams or Draper.

In Adams, the man was sitting in a car; in Draper the man was simply getting off a train and walking away quickly, carrying a bag.

Here we have all the earmarks of a trip to obtain drugs.

Lance Gates flew down to Florida, stayed 12 hours, drove his car non-stop back to Bloomingdale, Illinois.

Because the anonymous letter writer in our case was precisely correct in the way the trip would go down, in the days… concerning the days that the trip would take, it was, we believe, a justifiable decision by the court that this would indicate that the further allegations of the anonymous letter were true, too, and that is that they were carrying drugs.

And, in fact, that was the case.

Probable cause should therefore be granted in this case, as it was in Adams, as it was in Draper, which I said were both warrantless cases.

If there is a question in favor or not in favor of a case if a warrant has been issued, then preference ought to be given to the warrant.

However, the difficulty arises in cases such as this because of the application by the lower courts of the two-prong Aguilar and Spinelli test to a situation involving other than a police informant.

Here we have an anonymous letter writer.

Because a hearsay declaration is unknown to a magistrate or a judge who is required to determine probable cause for a warrant, the two-prong test was established to require police to state to the judge first of all, the basis for why they believe that the informant has veracity, and secondly, what information the informant has to indicate that he believes that a crime has been committed.

But according to some courts, including the Appellate Court of Illinois in this case, when information comes from other than a police informant… in this case, an anonymous letter writer, volunteering information… the information is per se defective if there are not enough… there isn’t a basis for the knowledge facially indicated on the request for a warrant or on the letter, and there are not enough facts to permit self-verification, as this Court utilized in the Spinelli case.

The appellate court citing Judge Moilan, who is often cited in this area in his case, Stanley versus the State, an intermediate appellate court in Maryland, 1974 opinion, that police corroboration, though relevant in determining veracity, cannot be used to satisfy the basis of knowledge prong.

We respectfully contend that that conclusion finds no support in the opinions of this Court.

It reduces the standards of determining probable cause to ones of form over substance.

And furthermore, it avoids the mandate of this Court in Ventresca that Fourth Amendment issues ought to be considered in a common sense fashion rather than an over-formalistic fashion because search warrants, requests for search warrants are often drafted by non-lawyers in the midst and in the hiatus of criminal investigations, which is just exactly what occurred here.

The police really had a very short time in order to whether or not this information was reliable.

We find it ironic that under the appellate court opinion, which has accepted the Moilan theory, that a basis for knowledge can be obtained by non-corroborated statements in a letter, but cannot be supplied by the kind of extensive corroboration seen in this case.

If the appellate court theory is maintained here, then an anonymous letter which does not supply sufficient facts to indicate a basis of knowledge can never be utilized for the determination of probable cause because the corroboration by the police simply can’t be used to bolster the basis of knowledge prong.

It simply defies common sense, because corroboration can be utilized not only to show the veracity of a declarant,… and certainly this Court has said that… but also to indicate that there are enough verified facts to justify a finding that the letter was not based on conjecture or on rumor.

In the Draper case, certainly, the self-verifying facts only became verified because the police corroborated what occurred.

They saw that the man had the same clothing as the informant said, that he was carrying a bag as the informant said, and that he would be walking quickly.

John Paul Stevens:

Let me interrupt you with a question, Mr. Biebel.

Do you think there’s any distinction for purposes of analysis in the portion of the warrant that authorized the search of the car, which I guess was done immediately when it returned, and the portion of the warrant that authorized the search of the apartment?

Paul B. Biebel Jr.:

I don’t think so.

I think if you take the–

John Paul Stevens:

What is the corroboration of the fact that… I understand all your theory on the corroboration of what was in the trunk of the vehicle, which presumably was sent down to get back up there.

But what other than the information in the letter itself supported the view that there was something to be found in the apartment?

Paul B. Biebel Jr.:

–The letter said that there were $100,000 worth of drugs in the car as well–

John Paul Stevens:

Right.

Was there any corroboration of that?

Paul B. Biebel Jr.:

–No.

I think the corroboration simply has to do with the kind of drug trip that was taken and it’s reasonable for a judge to take the further step and say they’ve got them in the car, and they have them, as the declarant says, in the apartment as well.

John Paul Stevens:

But do you presume that… on a drug trip like this… that the stuff would always be placed in the apartment of the driver?

Is that what you assume?

Paul B. Biebel Jr.:

I don’t think you can make that presumption particularly, but when it is alleged in the letter and when the letter proves to be true in every basic aspect, then I think that the judge can together indicate that there is probable cause.

The tip and the corroboration.

John Paul Stevens:

You would not think your case was any stronger on the car part than on the house part, is what I’m after.

Paul B. Biebel Jr.:

I think the case is probably stronger on the car part, certainly, because they drove the car and there was more in the letter about the car than the apartment, but I would say that the same theory would hold true–

John Paul Stevens:

And they were apprehended just as they arrived back, weren’t they?

Paul B. Biebel Jr.:

–They were waiting for them when they arrived at 5:15 in the morning.

I might note that this two-pronged test has caused severe problems for other courts who have been required to consider it when there haven’t been the traditional police informant cases.

The United States versus Bell, for example, cited at page 19 of our brief involved a situation where an arrest warrant was quashed because the supporting affidavit did not attest to the credibility and reliability of the eyewitness in that case.

The eyewitness.

The Fifth Circuit, however, reversed and said that Aguilar and Spinelli was not meant to pertain to situations like this and should be limited to police informants only.

Similarly, in United States versus Burke that is cited in our brief, the Second Circuit noted that there’s been a growing recognition that the two-pronged test ought to be addressed to professional informants and should not be applied in a wooden fashion to citizen informants such as witnesses or as victims.

Byron R. White:

You mean the part of the test about truthfulness, about honesty.

Paul B. Biebel Jr.:

It could be either, Judge.

Byron R. White:

Well, you suggest that if a policeman comes in and says I have good cause to believe that there are stolen goods at a certain address, please give me a warrant.

Now, the magistrate knows him as an honest officer who always tells the truth, and he knows he’s experienced.

Do you think that’s enough to get a warrant?

Paul B. Biebel Jr.:

Not under the standards of this Court in Nathanson and cases such as this.

Byron R. White:

Well, that happens… Nathanson happens to be the basis for the Aguilar requirement that the officer, or whoever it is, gives the basis for his belief.

Paul B. Biebel Jr.:

That’s right.

Byron R. White:

Well, then, you don’t really mean what you said a while ago.

Paul B. Biebel Jr.:

I don’t mean what I said about what?

I’m sorry.

Byron R. White:

You said that both prongs of Aguilar shouldn’t apply in certain circumstances.

Neither one of them should apply in certain circumstances.

Paul B. Biebel Jr.:

What I am simply saying is that I think the two-pronged test gets overly formalistic, and what you ought to do is you ought to take the tip that’s involved… and in this instance we have a tip from an anonymous informant and not a police informant.

When there’s a police informant, the police have, it seems to me, an–

Byron R. White:

Then you apparently… you do agree that there must be some basis for the person’s assertion that there’s a crime being committed.

Paul B. Biebel Jr.:

–Certainly, and I think the basis has been shown here.

We had the tip, albeit we don’t know who it was that made the tip.

But there was ample corroboration made, and the suspicious nature of the trip indicates that the situation was as the declarant said.

Byron R. White:

Why are you complaining about Aguilar’s requirement that there must be a showing of the basis for the belief?

You apparently don’t take exception to that, do you?

You think Nathanson is right, don’t you?

Paul B. Biebel Jr.:

No, I’m saying that in a situation that in this case, as the appellate court did, they said there is no showing of a basis for belief.

Byron R. White:

I know, but you think there should be a showing of the basis, and that that requirement was satisfied in this case.

Paul B. Biebel Jr.:

I think that what we’re moving to, and you can see it in our brief and the Solicitor’s brief, you will see, I think you get caught up in the really confusing aspects of two prongs; a basis for belief and the veracity prong.

Rather, we ought to go back, it seems to me, to the common sense approach: is there substantial evidence to establish the probable cause.

It was shown here.

And there are many cases, Carroll, Husty, Brinegar, Chambers, Adams versus Williams, where if you take a strict two-pronged analysis, probable cause may not be found.

But what the court did in those cases was look at the case, look at the totality of the circumstances and say yes, in this case there was sufficient evidence to establish probable cause.

And ironically, most of those cases were warrantless searches.

Here, the police officers established all sorts of corroboration and then went before a judge and the judge was convinced there was enough to establish probable cause.

And we think that that ought to be given due deference by this Court.

Whatever time I have remaining I’d like to reserve for rebuttal, Your Honor.

Warren E. Burger:

Very well.

Mr. Reilley.

James W. Reilley:

Good morning, Mr. Chief Justice, and may it please the Court:

This case involves the question of whether the search warrant naming the defendants, their home and an automobile, based upon an anonymous letter and absent any exigent circumstances, with no police observations of any criminal activity, informed the issuing magistrate of some of the underlying circumstances from which the anonymous tipster concluded that the narcotics were where he or she claimed they were, and some of the underlying circumstances from which the magistrate could have concluded that the tipster, whose identity was unknown, was credible or his information reliable.

I start off, if I may, with that statement and couch it in the terms of the Aguilar case because I believe in our opinion, our feelings and our theory from the trial court up until today have been the same.

James W. Reilley:

We have read the opinions of this Court in Aguilar and Spinelli.

We have postulated them to both the trial judge, the Illinois Appellate Court and the Illinois Supreme Court.

Harry A. Blackmun:

Have you read Draper?

James W. Reilley:

Yes, Your Honor, I intend to discuss Draper and compare it to the facts of this case, Your Honor.

The test, as I have indicated–

Sandra Day O’Connor:

Do you think that the Draper provides an alternative approach to probable cause for search warrants?

James W. Reilley:

–Yes, Your Honor, it does provide an alternative approach, if I may, with regard to the facts of this case.

As stated in Spinelli, Draper was a suitable benchmark for a comparison in terms of the two-pronged or two-basis test.

In Draper, however, we had, as the court stated, a reliable informant with a past track record, compared to the Gates case, there was an anonymous letter which I described as written in the third person.

The letter writer stated facts and conclusions, talked about the trip to Florida on May 3rd by Mrs. Gates, talked about him flying down, and was incorrect in terms of the corroboration that my opponent suggests because the letter writer, the anonymous tipster, said she would fly down… or drive down, rather, leave the car to be loaded with drugs and fly back immediately.

When the police, the DEA, watched Susan Gates into the room, they saw her get into the car with Mr. Gates the next morning, contrary to what the letter writer said.

The letter write said she’d leave the car and fly back immediately; contrary to that, she got in the car.

William H. Rehnquist:

Well, Draper involved one small inaccuracy on the part of the informer, too.

Wasn’t he a day off on the day that Draper would arrive in the Denver station?

James W. Reilley:

I believe, if I recall, Your Honor, he said that Draper would be returning to Denver on either September 8th or 9th in that case, and it was, in fact, the 9th.

I believe he gave an alternative date.

William H. Rehnquist:

Did the alternative… the informer give an alternative?

James W. Reilley:

Yes, he did.

And he did describe the physical description of Draper.

In addition, the informant, whose name was Hereford, was named by the court, by the officer in his testimony.

William H. Rehnquist:

Supposing that you were, say, a police sergeant or a magistrate, rather than an attorney, and this case were presented to you on its facts not at the present time, but supposing that another informant turns up at a later date and it turns out to be the same as this… the same person as wrote this anonymous letter.

Would you say that this anonymous letter gave reason for thinking that the informant was a credible one, a second time around?

James W. Reilley:

Is your question that we now find the person who wrote the letter?

William H. Rehnquist:

Right.

James W. Reilley:

And we’re trying to back up what he said by what was said in the letter?

William H. Rehnquist:

Yes.

Can you say that he gave you previous credible information by virtue of what he did in this case?

James W. Reilley:

No, sir, I would have to say not, only based upon the content of the letter.

The letter itself does not express where the letter writer… even if we know who it is… obtained his information.

William H. Rehnquist:

Well, does that really make sense?

William H. Rehnquist:

My own personal… if this isn’t probable cause, I never saw probable cause.

And it seems to me that if you go back to the terms of the Constitution and talk about reasonable searches and that sort of thing, no one in their right mind would conclude that this was not a reasonable action on the part of the police.

James W. Reilley:

My answer to that, Your Honor, is specifically this.

That this Court has said that the probable cause standard for a search warrant, now, for a search warrant as opposed to an emergency on the street as in Adams versus Williams where there was perhaps a danger to the police officer or to society because of a gun.

Specifically, this Court said that hearsay can now be the basis for a search warrant, as opposed to the direct observations of an officer.

In addition, the Fourth Amendment commands require that a magistrate be neutral and detached and not be a rubber stamp for the police.

So keeping that as the guideline that we’re going to use hearsay and not direct observations of the swearing police officer who stands before the magistrate, there must be some guideline or some test to protect the citizens and their Fourth Amendment rights from unreasonable searches and, of course, the police to ferret out crime.

Keeping that as the basis, Your Honor, my answer to your question is no, this does not establish probable cause because the judge who signed the search warrant had absolutely no way to know whether the letter writer had a grudge, picked up this information in a neighborhood bar, as this Court has said on occasions, gossip in the underworld, that type of conversation.

I believe in the Spinelli–

William H. Rehnquist:

Anytime you’re going by hearsay you don’t know that the person may not have been motivated by a grudge in this particular instance.

James W. Reilley:

–Yes, sir, that’s true, but there is a way to find out if there’s any way to credit that hearsay, and this Court has enunciated that; with either the past track record of reliability or as in Harris, a statement against one’s penal interest to add some reliability to it.

William H. Rehnquist:

But that simply rules out the use of anonymous tips, then.

If you’re dealing with a police informer, a knowledgeable police officer can have his affidavit drawn in such a way that to the extent he truthfully can he puts forth the requirements set forth in the cases of this Court.

But when you’re dealing with an anonymous tip, you can’t say well, you really ought to have said a little more on this subject.

You either act on it or you don’t.

And you’re saying, in effect, you can’t act on it.

James W. Reilley:

Your Honor, I’m saying that anonymous tips do have a place in criminal law and in crime prevention.

I certainly do not say that they do not have a place.

However, I will say that the anonymous tip in this case, even with the corroboration, contrary to my opponent’s view, I do believe that this Court has stated that the corroboration of what an anonymous person says, or what a reliable says, the corroboration itself cannot give the court or the issuing magistrate the ability to find out where he found that information out.

Whether he heard it… corroboration, or even a reliable informant could fabricate out of the whole cloth, as this Court stated.

Could lie in detail or lie generally.

So we don’t know just by corroboration of facts subsequently… in fact, if we use the corroboration approach of my opponent, the corroboration was not specifically as the letter stated.

As a matter of fact, the letter writer did not give the specific address of the Gates’s; he gave no physical description… he or she gave no physical–

Warren E. Burger:

Did the initial address?

James W. Reilley:

–The initial address of the Gates’s was not stated, Your Honor, in the letter.

Warren E. Burger:

Yes, but that… the man had simply overlooked sending his change of address to the motor vehicle department.

James W. Reilley:

No, I’m sorry, maybe I misunderstood you, Mr. Chief Justice.

The letter writer, the anonymous tipster, did not, in his letter to the Bloomingdale Police Department give an address for the Gates’s.

He said… he gave a location.

On Greenway in the condominiums in Bloomingdale.

James W. Reilley:

The affidavit and the verification of the officer found three separate addresses which are stated in the complaint.

The first one was through the Secretary of State.

That’s the one I believe Your Honor is referring to… 209 Darthmouth.

The confidential informant who is referred to who reviewed some financial records… we do not know, of course, what financial records he reviewed, where he obtained them, whether they were his or someone else’s… gave 198 Greenway Drive.

But yet, when the officer checked with the airlines to determine that Gates was boarding a flight, he got a phone number and the Illinois Bell Telephone Company gave yet a third address… if you read it carefully, it’s 189 Greenway Drive.

Warren E. Burger:

And what difference does this make to the ultimate fact?

James W. Reilley:

To the ultimate fact?

Is the question of where the specific information comes from to enable the magistrate to, himself as opposed to rubber stamping someone else’s opinion… himself determine from the raw facts if probable cause exists.

Warren E. Burger:

Suppose that the letter had said that Mrs. Gates would be wearing a red leather jacket when she was down in Florida, and it turned out she was wearing a brown leather jacket.

Would you say that that’s relevant to anything in this scheme?

James W. Reilley:

My answer is this.

That the anonymous letter writer is… the fact that we don’t know where that information came from is the critical fact.

We don’t know the basis of the knowledge.

If you’re going to say the question of a brown versus a red jacket, I think we’ll have to go back to Draper, Your Honor, and discuss the… in Draper, although a previously reliable informant giving, let’s say, 10 facts, 9 out of 10 prove true by corroboration, therefore, the syllogism would go to the test, therefore the drugs are present.

However, I believe this Court in Spinelli said that Draper presumed a reliable informant giving that information.

Here we have an anonymous person.

We do not know the motive, we don’t know who the person is–

Warren E. Burger:

What’s the motive got to do with it?

James W. Reilley:

–I believe in assessing the credibility of the writer and the source of his information.

We don’t know if he heard it, if he saw it himself, if he was in the Gates’s home or if somebody passed this rumor on three times removed from the author of the letter.

And I believe that’s critical because we’re talking about going into someone’s house with a search warrant to search that person’s house.

Perhaps in this case it would be fair to say that the police got lucky, and we can’t justify what the legality of the search warrant by what it produced.

If nine out of ten times an anonymous letter writer might be speaking out of hearsay, rumor or gossip and the facts would became untrue and they could search anyone in this courtroom’s home and find nothing, I believe this Court would not tolerate a standard based on anonymity as the basis for a search warrant without something more.

Again, I don’t say that anonymous tipsters do not have a part in criminal law; they certainly do.

I believe the police, however, are obliged to take the information and do something more with it in order to establish criminality.

There is nothing in this search warrant that establishes any criminal conduct.

Our Supreme Court viewed it… the appellate court reviewed it and the trial judge viewed it as corroborating innocent activities, even in view of the letter.

William H. Rehnquist:

Can you seriously maintain that this was consistent only with innocence, when you have the quick flight to South Florida and the non-stop trip back?

James W. Reilley:

That fact in and of itself, Your Honor, is innocent activity.

Sandra Day O’Connor:

Didn’t we also have a license plate issued for a different vehicle?

James W. Reilley:

Yes, we did.

Sandra Day O’Connor:

And isn’t that something a little out of the ordinary?

James W. Reilley:

The license plate was listed to Lance Gates.

It was, in fact, on a red Hornet instead of a Mercury vehicle.

However, we have this fact: Mr. Gates traveled… to use the example of perhaps the profile type cases… Mr. Gates traveled to Florida under his own name.

This was not a typical drug courier profile.

If he was going to travel down there to bring $100,000 worth of drugs back, he certainly would think to use a phony name on an airline ticket.

That he apparently didn’t do because the police officer saw that he used his own name.

His wife registered under her own name in the hotel in Florida.

That is inconsistent.

I believe, in answer directly to your question, that the license plate perhaps could be an oversight in terms of… or perhaps the Secretary of State’s office didn’t get the transfer in time.

The license plate would be placed on another vehicle if one was sold and one was purchased, and maybe the computers didn’t catch up to the file.

We can’t assume on that theory that that’s criminal activity.

Warren E. Burger:

Are we to take it from that that if Mrs. Gates had registered as Mrs. Jones and in getting his airline ticket he said his name was Anderson, that then you wouldn’t be here?

James W. Reilley:

I would say if that were true, that could be an element that the court could consider in determining some criminal activity or some means of attempting to hide something.

Nothing that was done here was done in any circuitous fashion or in an attempt to hide from or evade the police.

Whether he knew he was being observed or not is not the point.

Even drug couriers may or may not feel they’re being followed, but they certainly come in and they use different names on their airline tickets which is part of the profile that this Court is considering.

Warren E. Burger:

You say they do.

Now clearly, the evidence, as it has demonstrated, shows he was a drug courier, but he did not use a false name.

So your–

–Your Honor, the evidence shows that he was a drug courier, only after they opened the trunk.

Well, but that’s the fact.

You just made the statement that drug couriers use false names.

Now, here was a drug courier who did not use a false name.

Is that not so?

James W. Reilley:

Yes, sir, that is–

Warren E. Burger:

So your generalization is not very reliable, is it?

James W. Reilley:

–I guess my response, Your Honor, was to Justice O’Connor’s question about the license plate and regarding whether that fact meant anything.

And in response to that I was talking about the fact that his own name was apparently used, since that’s what the affidavit seems to indicate.

James W. Reilley:

But I fail to see, in reading the affidavit, what if any of those facts, taken either together or separately, corroborates any criminality.

The question that something may or may not be unusual, we don’t know if Mr. Gates was having an argument with his wife and went down and they made up and he drove back.

It certainly does not reflect the statements in the anonymous letter which would be typical if that’s true, that she would drive down, leave the car to be loaded with drugs and get out of there.

And that he would drive it back alone.

That’s not what occurred.

So the letter was not corroborated in that specific and important detail.

If we can assume from the letter that that would be the profile of a drug courier, then we can take the converse and say that since they drove back together that the car was not loaded with drugs.

And she did not follow what the anonymous tipster, from whatever his source of information, stated.

And those were the facts which were not corroborated, contrary to Draper where every single fact was corroborated including the alternative date of arrival.

Warren E. Burger:

You’re suggesting that when there’s an anonymous tip, then, there must be 100 percent accuracy on predicting future conduct.

James W. Reilley:

No, sir, I’m not.

If I may, an anonymous tip could play a part, for example, in an emergency situation on the street.

For example, in Chicago we have a situation now with Tylenol.

And anonymous tip calls are coming in constantly.

The police must follow up on those calls to determine the source of the cyanide.

However, they can’t break into someone’s house with or without a search warrant based upon an anonymous phone call that says, for example, there was one in the paper that said the PLO was responsible.

There’s no way that that tip can support probable cause under the standards of this Court.

But the police can certainly follow up with investigative procedures.

This is a computer world; they have many things available to them to substantiate criminal activity if it exists.

If they can’t substantiate criminal activity under the standards this Court has stated, then they simply can’t search.

It doesn’t arise to probable cause.

That doesn’t mean that anonymous tips are not important.

They certainly are.

They can be a beginning point for something, but I don’t think they, in and of themselves, and substantiated only by innocent activity at best, can amount to probable cause in the way this Court has described it.

Sandra Day O’Connor:

Do you think that a detailed anonymous tip which is corroborated and which… and the details of which could be characterized as suspicious would be sufficient, Mr. Reilley?

James W. Reilley:

No, I do not.

Under the present standards of this Court–

Sandra Day O’Connor:

You don’t think that would be adequate, either.

James W. Reilley:

–No, I do not.

And the reason, if I may be specific as to my response to you, is this.

James W. Reilley:

Even the detail of the tip… the detail might establish, might establish some degree of basis of knowledge.

And I cite specifically Spinelli for that proposition.

If the detail is–

Sandra Day O’Connor:

Self-verifying details.

James W. Reilley:

–Yes.

Sandra Day O’Connor:

Spinelli is indicated as all right for the basis of knowledge prong.

James W. Reilley:

That’s right, that is correct.

However, if the tip that Your Honor suggests is anonymous, then the Spinelli and Aguilar holdings would say that there’s something missing, however.

The veracity of the speaker.

Again, the testing… the hearsay–

Sandra Day O’Connor:

Well, the corroboration of the details would supply that, would it not?

James W. Reilley:

–If, in fact, the details could be corroborated.

Sandra Day O’Connor:

Well, that was my assumption, and you said that that would not be enough in your view.

James W. Reilley:

No, I do believe that corroboration can establish one aspect of the two-pronged test; namely, the veracity standard.

Sandra Day O’Connor:

Veracity.

And we can have self-verifying details for the other prong, so there we are.

Right?

James W. Reilley:

However, I don’t believe that applies to this case.

The theory does but the facts do not.

And specifically, the facts that were educed in this letter were not and did not come close to Draper.

There were substantial differences between that letter writer and Draper, in addition, of course, to the fact that Draper was an anonymous informant.

But taking Your Honor’s suggestions, I agree with the theory, yes.

The letter does not approach Draper and the detail was not sufficient enough to give some characterization to it as a reliable basis of knowledge.

The corroboration, on the other hand, in terms of the veracity prong, was also not sufficient because the corroboration, although innocent detail was corroborated in Draper, was not totally corroborated.

There were some errors; there were some things that were not correct.

So if you’re taking… and I think the Court would have to look seriously and closer at an anonymous tip than it would at a confidential police informant.

And I think in a case like this, you can use those theories but I think they have to be very carefully analyzed because we’re talking about a Fourth Amendment right.

And admittedly, they may apply but not in this fact situation.

William H. Rehnquist:

Why is an anonymous tip more suspect than that of a police informer who is presumably maybe dependent for his living on what he supplies to the police in the way of information?

James W. Reilley:

I think the answer is this, Your Honor.

James W. Reilley:

That the anonymous tip, we don’t know what provokes or suggests him to become anonymous and write the letter.

Why would he want to remain anonymous?

If he knew that, perhaps I could answer your question.

Warren E. Burger:

Maybe he wants to stay alive.

[Laughter]

James W. Reilley:

But then maybe again, he is a jealous drug smuggler who wants to take revenge on another drug smuggler, so he writes letters to the police department.

William H. Rehnquist:

You have a hypothesis?

It could be with good motive, it could be with bad motive; you simply don’t know.

James W. Reilley:

Yes, sir.

William H. Rehnquist:

Why is that worse than the case of the police informant who is basically being paid for his information and who presumably has to provide some good information, may have to provide some bad information, too?

James W. Reilley:

Because here we have… with a police informant at least we can, number one, we can establish a real, live human being, a body, who is standing there either before the magistrate or at least with the police officer.

William H. Rehnquist:

Well, if he’s a police informant, he’s not standing there with the magistrate.

James W. Reilley:

Okay.

He’s standing with the police officer.

The police officer knows who he is.

Admittedly, he’s involved in criminal conduct of some sort, but assuming the typical police informant with a track record, despite his conduct in society which we don’t condone, the fact is he has given information before and it’s proven to be accurate.

So although there is a standard to look at him closely because of the nature of who he is, we still can establish a track record of his reliability in the past.

Whereas with an anonymous person, for whatever his motives may be, good or bad or a desire to live or a jealous drug smuggler, we don’t know what those motives are.

Therefore, we can’t make any judgment about him because we don’t have him standing before the officer who can also make a judgment.

He’s anonymous; we have no basis to know it.

And we’re talking about that information being supportive for a search warrant.

And I believe that that type of information cannot get over the hurdle without more.

William H. Rehnquist:

Over what hurdle?

James W. Reilley:

Over the Fourth Amendment hurdle, Your Honor.

In other words, to amount to probable cause.

William H. Rehnquist:

And you base that on the Aguilar case?

James W. Reilley:

I base it on Aguilar and Jones, and I base it on Spinelli and Draper.

I base it on a combination, and I also would cite Harris.

The whole line of cases in terms of the problems this Court has discussed in terms of what’s missing in a search warrant and how to cure it.

William H. Rehnquist:

Do you think the sum of those cases is to come out with a kind of tomistic approach that some of the lower courts have applied where you have these very complicated prong inquiries?

William H. Rehnquist:

Do you think all that can be spun out of the simple language of the Fourth Amendment that says there shall be no unreasonable searches?

James W. Reilley:

No, I really don’t think so, unless you’re going to have a search warrant only based upon the–

William H. Rehnquist:

You don’t think that can be spun out of that.

James W. Reilley:

–It can be spun out only with a little analysis, a simple analysis, of two aspects, and I don’t believe the Fourth Amendment alone can do that.

We need a little extra language to assist the Fourth Amendment.

The Fourth Amendment doesn’t talk about basis of knowledge and veracity.

But the Fourth Amendment perhaps didn’t contemplate hearsay informants as the basis for a search warrant, either.

William H. Rehnquist:

What makes you think that?

James W. Reilley:

I can only assume that.

William H. Rehnquist:

Why do you assume it?

James W. Reilley:

Because the language doesn’t seem to indicate that.

William H. Rehnquist:

Well, there isn’t a whole lot of the law of evidence laid down in the Constitution, is there?

James W. Reilley:

Yes, sir, that’s correct.

Warren E. Burger:

Suppose next week a letter comes into the same people as were involved here giving the details of some other drug smuggler, and the police officer looking at it says this looks like the same handwriting as that fellow that we had in the Gates case, which we… he is saying we lost in the Supreme Court of Illinois.

So they pull in the handwriting expert and he says yes, this is the same handwriting; the same person wrote both these letters.

Now, they go before the magistrate and present to the magistrate the facts I’ve just recited, plus all the contents of the tip.

Do you think they’ve now made out a case of reasonably reliable trustworthy informant?

James W. Reilley:

I can answer your question this way, Your Honor.

First of all, if the second letter is written in the third person as the first one is, the answer to the first part of your question is no, because even if the question you postulate substantiates some kind of reliability, if the letter is written as this one was… and I would have to presume in your fact setting that it is… it still doesn’t establish how the letter writer knew what he said.

Whether he heard it… I’m only using this Court’s analysis of barroom gossip and rumor.

We have tried to follow the decisions of this Court in terms of what that means.

Why was there a necessity for basis of knowledge.

Why was there a necessity for reliability?

In your case, Your Honor, there would not be a basis of knowledge because the party is speaking in the third person, not reiterating raw data, something he saw or heard or smelled.

And the Court has been consistent in that regard, and we feel that this fact situation cannot be supported and does not support probable cause based upon that analysis.

It simply doesn’t state how the person came to his knowledge.

Warren E. Burger:

Let’s take it one step beyond now.

The police act on this second letter which they think is written by the writer of the first letter, and they catch the smuggler and he’s convicted, but the Supreme Court of Illinois sets aside that conviction on the same ground that you’ve just advanced.

Now, a month from now they get a third letter exactly the same prediction about some other activity, and the handwriting experts say yes, that’s the same source.

It’s still no good, in your view?

James W. Reilley:

I suppose that second case we’d be back here again discussing it.

[Laughter]

I would have to say, Your Honor, in all fairness and in all candor that that sounds to me like it’s bordering on reliability.

But I still cannot state to you in response to your question that that would do anything to establish the basis of the knowledge that the letter writer is talking about.

Maybe you can get lucky twice.

If he doesn’t say how he knew it under the standards of this Court, then that’s not sufficient.

Unless, of course, the detail is verified under the Spinelli rationale.

And I fully agree, as Justice O’Connor asked me, that theory is viable and I believe that that is correct.

But under the postulate that the Court has, I don’t believe that’s proper.

It’s still anonymous.

Lewis F. Powell, Jr.:

Mr. Reilley, may I ask you a question that may be relevant to the issue of self-verification.

Do you see anything unusual at all about a man flying 1000 miles, of all places, to Palm Beach, arriving at 8:00 o’clock at night and leaving at 5:00 the next morning?

Palm Beach?

[Laughter]

James W. Reilley:

Do I see anything unusual about it?

Lewis F. Powell, Jr.:

The only suggestion you’ve made, as I recall, is that he may have made up with his wife.

I would have thought if he’d made up with his wife he would have wanted to stay at Palm Beach.

[Laughter]

James W. Reilley:

Your Honor, my answer to your question, without being facetious, is that it was May in Chicago and the weather was warm up north, also.

Certainly, it might arouse some suspicions but I can’t say that that fact in and of itself is criminality.

And I do not concede that it does.

What one does that is innocent and what someone else would do, you can’t… just because I would do it different than Your Honor might do it or someone else might do it doesn’t necessarily make it criminal.

Maybe… who knows what the reasons for it, but if there were several options available, if there were several choices we can’t say well, let’s pick the criminal choice because that’s the one we want to pick because the letter writer said there are drugs there.

If there are five options we can’t just pick one.

There must be some basis to pick it.

That would be my answer to your question.

Sandra Day O’Connor:

Mr. Reilley, under Illinois law, do you happen to know if the law allows you to put a license plate on a car if you are not… if the license is issued for car A, may you put it on car B?

James W. Reilley:

You may not.

Unless–

Sandra Day O’Connor:

So on its face, at least, that was an illegal activity.

James W. Reilley:

–No.

Let me again… you may not, except if you file a form with the Secretary of State’s office transferring the plate from car A to car B, the same plate is transferred and the form goes to Springfield and registers that plate to a new vehicle.

That is proper, and you can do that.

And you can put it on the car with a tag showing that the registration has been transferred, and the computer will catch up to it whenever that happens.

That is perfectly valid and legal.

Sandra Day O’Connor:

What does the record show in this case about the improper vehicle license?

James W. Reilley:

There was no hearing, Your Honor, at the trial court.

It was strictly an evidentiary, legal argument.

The record is blank as to that information.

The only statement is in the affidavit stating that the plate itself was registered on May 3, 1978, to a different car.

That’s the only thing in the record.

There is nothing beyond that.

I would like to conclude by saying that I feel that under the analysis this Court has prescribed, which we have attempted to follow, and the facts of this case and the lack of facts in the letter, certainly the police did what they could have done, but it certainly was not enough in order to make this case probable cause.

What they found cannot justify the existence of what I believe still to be the viable two-sided test of Aguilar: a basis for the knowledge of the speaker, and a basis for the credibility of the person or the reliability of the information.

It’s my belief that you can’t cross one to the other, that self-verifying detail can only assist, as this Court said in Spinelli, in basis of knowledge.

As in Draper, corroboration can only attempt to cure the veracity or truthfulness test.

I believe both of them are lacking, and I would ask this Court respectfully to affirm the judgment of the Illinois Supreme Court.

Unless there are any further questions, thank you very much.

Warren E. Burger:

Do you have anything further, Mr. Biebel?

Paul B. Biebel Jr.:

Very briefly, Your Honor.

To clarify what Mr. Justice Stevens and Mr. Justice White asked me when I was up the last time, that is, we agree with Nathanson that the conclusory assertion standing alone of criminal activity is not enough.

But here, as I’ve pointed out, there’s been much more than that.

The type of detail that is in this letter, indicating specifically that Susan Gates would leave on May 3rd, that Lance Gates would leave a couple days later, which proved to be true, indicated that the information had to come from somebody who was intimately connected with this criminal enterprise, as this Court said in Spinelli.

John Paul Stevens:

Mr. Biebel, may I ask you another question about the possible distinction between the car and the premises.

In your brief you made the point that one of the corroborating circumstances tending to support the conclusion that the drugs might have been in the apartment was the fact that the informant said that the woman would go to Florida and leave the car and come back before the husband left, so that the apartment would not be unattended for a long period of time, indicating probably concern about what was in the apartment.

But yet, when they verified the facts, that scenario did not take place.

Instead, she stayed in Florida until he came down there and they did in fact leave the apartment unattended, which would seem to undermine the basis for the suspicion that goods were in the apartment during that interval.

So I would think there would be less basis for your conclusion.

Paul B. Biebel Jr.:

In that instance I would say, Your Honor, that that’s true, that Susan Gates apparently came back with Lance.

But there was only a two-day stretch that the apartment was left unattended–

John Paul Stevens:

But there was a two-day stretch, which would have been consistent with the notion that they were getting drugs which might eventually be placed in the apartment, but there might not have been drugs in the apartment during their absence.

Paul B. Biebel Jr.:

–If that theory is accepted, yes.

John Paul Stevens:

And I notice in that connection that the officers, although they had a warrant to search the apartment, did not do so until they searched the car.

Paul B. Biebel Jr.:

It appears that that’s the way–

John Paul Stevens:

But under your view of the law, supposing the car had oranges in the trunk or something other than what they expected.

Would they have nevertheless had the authority under your view to enter the apartment, or did their entry in the apartment depend on their finding drugs in the car?

Paul B. Biebel Jr.:

–I think you’ve got to look, as I said earlier, at the totality of the circumstances.

John Paul Stevens:

Well, we’ve got all the circumstances before us.

Do you think that totality would justify an entry into the apartment if they had not found drugs in the car?

Paul B. Biebel Jr.:

I would have difficulties entering the apartment, because the veracity of the informant has not been shown, because there are oranges in the car.

John Paul Stevens:

Then you are relying on what they uncovered in the search of the car to justify the entry to the apartment.

Paul B. Biebel Jr.:

I’m simply saying that there was more evidence for the automobile than there was for the apartment.

John Paul Stevens:

But are you still taking the position there was enough to enter the apartment?

Paul B. Biebel Jr.:

I am taking the position it was enough to enter the apartment.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.