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State v. Novembrino

Decided: January 7, 1987.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
OTTAVIO NOVEMBRINO, DEFENDANT-RESPONDENT



On appeal from the Superior Court, Appellate Division, whose opinion is reported at 200 N.J. Super. 229 (1985).

For affirmance -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern and Stein. Concurring in part and dissenting in part -- Justice Garibaldi. The opinion of the Court was delivered by Stein, J. Handler, J., concurring. Garibaldi, J., concurring in part and dissenting in part.

Stein

Since 1961, when the United States Supreme Court decided Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, New Jersey and her sister states have been compelled by the federal constitution to exclude from the State's case-in-chief evidence obtained in violation of the fourth amendment. The so-called "exclusionary rule" has been applied in federal criminal cases since 1914 when the rule was first adopted to protect the rights secured by the fourth amendment.*fn1 Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652. Justice Day, writing for a unanimous Court, observed that without an exclusionary rule "the 4th Amendment * * * is of no value, and * * * might as well be stricken from the Constitution." Id. at 393, 34 S. Ct. at 344, 58 L. Ed. at 656.

For the first time since the Weeks decision, the Court in 1984 modified the exclusionary rule's application to the government's case-in-chief. In United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677, the Court held that evidence seized pursuant to a warrant issued without probable cause need not be excluded if the police officer who executed the warrant, judged by the objective standard of a reasonably well-trained police officer, relied in good faith on the defective warrant in gathering the evidence. In this case, we are asked by the Attorney General and the Hudson County Prosecutor to decide if article I, paragraph 7 of the New Jersey Constitution, which

incorporates almost verbatim the protection against unreasonable searches and seizures set forth in the fourth amendment, will tolerate a modification of the exclusionary rule that recognizes the good-faith exception established by the United States Supreme Court in Leon.

We approach the issue posed here mindful of the controversy that has engulfed the exclusionary rule since its inception.*fn2 As Justice Blackmun acknowledged in United States v. Janis, 428 U.S. 433, 446, 96 S. Ct. 3021, 3028, 49 L. Ed. 2d 1046, 1056 (1976), "The debate within the Court on the exclusionary rule has always been a warm one."

Characteristic of the sharp criticism the exclusionary rule has provoked are the observations of Chief Justice Burger, dissenting in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 419-20, 91 S. Ct. 1999, 2016-17, 29 L. Ed. 2d 619, 640 (1971):

I submit that society has at least as much right to expect rationally graded responses from judges in place of the universal "capital punishment" we inflict on all evidence when police error is shown in its acquisition. Yet for over 55 years, and with increasing scope and intensity * * * our legal system has treated vastly dissimilar cases as if they were the same. Our adherence to the exclusionary rule, our resistance to change, and our refusal even to acknowledge the need for effective enforcement mechanisms bring to mind Holmes' well-known statement:

"It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past." Holmes, The Path of the Law, 10 Harv L Rev 457, 469 (1897).

In characterizing the suppression doctrine as an anomalous and ineffective mechanism with which to regulate law enforcement, I intend no reflection on the motivation of those members of this Court who hoped it would be a means of enforcing the Fourth Amendment. Judges cannot be faulted for being offended by arrests, searches, and seizures that violate the Bill of Rights or statutes intended to regulate public officials. But we can and should be faulted for clinging to an unworkable and irrational concept of law.

In sharp contrast is the perception of the exclusionary rule articulated by Justice Clark in Mapp v. Ohio, supra:

There are those who say, as did Justice (then Judge) Cardozo, that under our constitutional exclusionary doctrine "[t]he criminal is to go free because the constable has blundered." People v. Defore, 242 NY [13], at 21, 150 NE [585], at 587 [1926]. In some cases this will undoubtedly be the result. But, as was said in Elkins, "there is another consideration -- the imperative of judicial integrity." [ Elkins v. U.S. ] 364 U.S. [206], at 222 [80 S. Ct. 1437, at 1447, 4 L. Ed. 2d 1669 (1960)]. The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. As Mr. Justice Brandeis, dissenting, said in Olmstead v United States, 277 U.S. 438, 485, 72 L. Ed. 944, 959, 48 SCt 564, 66 ALR 376 (1928): "Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. . . . If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."

The ignoble shortcut to conviction left open to the State tends to destroy the entire system of constitutional restraints on which the liberties of the people rest. Having once recognized that the right to privacy embodied in the Fourth Amendment is enforceable against the States, and that the right to be secure against rude invasions of privacy by state officers is, therefore, constitutional in origin, we can no longer permit that right to remain an empty promise. Because it is enforceable in the same manner and to like effect as other basic rights secured by the Due Process Clause, we can no longer permit it to be revocable at the whim of any police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment. Our decision, founded on reason and truth, gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice. [367 U.S. at 659-60, 81 S. Ct. at 1963-64, 6 L. Ed. 2d at 1092-93 (footnote omitted).]

The question before us requires an appreciation of the conflicting views of the purpose and effectiveness of the exclusionary rule and the necessity and wisdom of the "good-faith" exception recognized by the Court in Leon. Moreover, we address this issue in the context of a federalist system in which "enforcement of criminal laws in federal and state courts, sometimes involving identical episodes, encourages application of uniform rules governing search and seizure," State v. Hunt, 91 N.J. 338, 345 (1982), yet mindful that because a state

constitution may afford enhanced protection for individual liberties, we "should not uncritically adopt federal constitutional interpretations for the New Jersey Constitution merely for the sake of consistency," id. at 355 (Pashman, J., concurring).

I

Defendant, Ottavio Novembrino, was indicted for possession of controlled dangerous substances contrary to N.J.S.A. 24:21-20(a)(1), (4), and possession of controlled dangerous substances with intent to distribute in violation of N.J.S.A. 24:21-19(a)(1). A motion to suppress evidence was filed pursuant to Rule 3:5-7.

The suppression hearing resulted in sharply conflicting accounts of the circumstances surrounding defendant's arrest and the subsequent search of his service station. According to Detective Higgins, whose affidavit led to the issuance of the disputed search warrant, defendant was stopped by two officers from the Bayonne Police Department at about 6:15 p.m. on June 2, 1983. The stop occurred shortly after Novembrino closed his service station and was proceeding home by automobile. One officer conducted a pat-down search, while the other officer conducted a limited inspection of the interior of defendant's automobile. Defendant agreed to go with the officers to police headquarters. He drove to the station in his own car, accompanied by one of the officers. Detective Higgins testified that Novembrino was not placed under arrest and was free to leave, although neither officer advised him of his right to do so.

After being advised of his Miranda rights, Novembrino refused to consent to a search of his station. At about 6:30 p.m., Detective Higgins left a message requesting that the Bayonne municipal court judge telephone him. He then began to type an affidavit in support of a search warrant. Detective Higgins conceded that this was the first such affidavit he had ever prepared and estimated that its preparation took approximately ten or fifteen minutes. When the municipal court judge

telephoned, Detective Higgins arranged to meet him at a shopping center. They met at approximately 6:50 p.m. The judge reviewed the affidavit and signed the warrant. Detective Higgins spoke with Detective Kelly by radio, and proceeded to the gas station where he met defendant and Detective Kelly. After Novembrino was shown the warrant, he unlocked the door to the service station and pointed out the location of the contraband.

Novembrino's testimony was substantially different. He stated that the officers pulled him over at approximately 6:45 p.m. Immediately, one officer searched him while the other searched his car. He was then taken to police headquarters where he was strip-searched. Detectives Kelly and Higgins then drove him back to his gas station. Novembrino testified that Higgins never left police headquarters and therefore could not have met a municipal court judge before returning to the service station. According to Novembrino, Officer Kelly took defendant's key and unlocked the door. The officers searched the station and discovered the contraband. Defendant testified that although he asked the police if they had a warrant, he was not shown a search warrant until approximately eleven o'clock that night.

At the suppression hearing, defendant argued that the affidavit did not establish probable cause and that the warrant was issued after the evidence had been seized. The trial court initially declined to consider whether the warrant was issued before or after the search, but suppressed the evidence on the ground that the affidavit submitted in support of the warrant failed to establish probable cause. On appeal, the Appellate Division remanded the matter for a hearing to determine when the warrant was issued. After hearing testimony, the trial court determined that the officers had obtained the search warrant prior to the search of the service station. The Appellate Division affirmed that finding on the basis that it was supported by sufficient credible evidence.

In the Appellate Division, the State argued that the Higgins affidavit was sufficient to establish probable cause. The critical portion of the affidavit alleged:

I received information from an informant who has proven reliable in several investigations (with the information he supplied), that 'Otto' above description, is engaged in the illegal sales of cocaine and marijuana. My informant stated that Otto usually keeps the drugs in his gas station at above location. He (informant) also stated that he witnessed 'Otto' dealing drugs from his gas station. I, along with Det. Ralph Scianni, conducted a surveillance of subject and his station on Thurs., 6/2/83, between the hours of 3:00 PM and 7:00 PM, and observed Otto meeting with several persons, after leaving his station and making what we believed to be drug transactions. During the surveillance, we observed one person making a transaction with Otto and checked on his vehicle and called the narcotics squad to inquire on his relationship with drugs. They told us that said person has been arrested for cocaine and other violations and they felt that Otto and the other person are involved in drug activity. From the information received from our informant and from our observations, we do feel that a search of Otto's gas station should be conducted for illegal contraband. We checked on ownership of the station and it belongs to Otto who we have presently in headquarters on this investigation. Otto was advised of his rights and refused a search of his station but appeared to be very nervous.

The Appellate Division concluded that the affidavit failed to establish probable cause:

The affidavit here involved simply revealed that a police informant concluded for unknown reasons that defendant was a drug dealer, that a person previously arrested for possession of cocaine was seen at defendant's gas station engaged in some unspecified activities which caused a detective, whose education, training and experiences are unknown, to conclude that criminal activities in the form of violations of Title 24 were taking place at the gas station. The totality of the circumstances spelled out in the affidavit failed to contain a single objective fact tending to engender a "well grounded suspicion" that a crime was being committed. * * * We conclude, therefore, that probable cause was not established. [ State v. Novembrino, 200 N.J. Super. 229, 236 (1985) (citation omitted).]

The State also argued that if probable cause was not established, the evidence should nevertheless be admissible on the basis of the good-faith exception recognized by the United States Supreme Court in Leon. The Appellate Division acknowledged that if Leon were followed in New Jersey, it would apply retroactively and thereby determine the admissibility of the evidence obtained at defendant's station. A majority of the Appellate Division was also satisfied that Detective Higgins

had objectively and reasonably relied upon the warrant, which had been issued by a detached and neutral judge. Accordingly, the Appellate Division majority found that the record adequately raised the issue whether the good-faith exception should be applied under our State Constitution.

A majority of the Appellate Division panel determined that New Jersey should not recognize the good-faith exception because it would undermine the constitutional requirement of probable cause. 200 N.J. Super. at 244. In a concurring opinion, Judge Simpson agreed that probable cause had not been established. Id. at 245. However, he concluded that the applicability of the Leon doctrine was inappropriately considered by the majority, since no record had been made by the trial court as to whether the officer had relied in good faith on the search warrant. Id. at 245-46. We granted the State's motion for leave to appeal, 101 N.J. 305 (1985).

II

The first issue we confront concerns the sufficiency of the affidavit that prompted the issuance of the warrant. The standard by which we measure the affidavit is probable cause, the standard imposed by both the fourth amendment and article I, paragraph 7 of the New Jersey Constitution. Unlike the exclusionary rule, derided by critics as judge-made and not mandated by the constitution,*fn3 probable cause is the constitutionally-imposed standard for determining whether a search and seizure is lawful.*fn4 Accordingly, it occupies a position of indisputable

significance in search and seizure law. As the Supreme Court noted in Henry v. United States:

The requirement of probable cause has roots that are deep in our history. The general warrant, in which the name of the person to be arrested was left blank, and the writs of assistance, against which James Otis inveighed, both perpetuated the oppressive practice of allowing the police to arrest and search on suspicion. Police control took the place of judicial control, since no showing of "probable cause" before a magistrate was required. The Virginia Declaration of Rights, adopted June 12, 1776, rebelled against that practice.

That philosophy later was reflected in the Fourth Amendment. And as the early American decisions both before and immediately after its adoption show, common rumor or report, suspicion, or even "strong reason to suspect" was not adequate to support a warrant for arrest. And that principle has survived to this day.

Evidence required to establish guilt is not necessary. On the other hand, good faith on the part of the arresting officers is not enough. Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed. It is important, we think, that this requirement be strictly enforced, for the standard set by the Constitution protects both the officer and the citizen. [361 U.S. 98, 100-02, 80 S. Ct. 168, 170-71, 4 L. Ed. 2d 134, 137-38 (1959) (footnotes omitted, citations omitted).]

Any nonconsensual search of a person or his property is a significant invasion of fundamental privacy rights. Nevertheless, enforcement of the criminal laws requires that the police employ searches to obtain proof of crime. The probable-cause requirement is the constitutionally-prescribed standard for distinguishing unreasonable searches from those that can be tolerated in a free society:

These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community's

protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. 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, 176, 69 S. Ct. 1302, 1311, 93 L. Ed. 1879, 1890-91 (1949).]

This Court has steadfastly recognized the historical significance of probable cause as the indispensable criterion for determining the validity of a search. In State v. Macri, 39 N.J. 250 (1963), Justice Jacobs unequivocally confirmed our insistence that warrants issued without probable cause would not be tolerated in New Jersey:

The requirement for [a] search warrant is not a mere formality but is a great constitutional principle embraced by free men and expressed in substantially identical language in both our federal and state constitutions. It has its roots deep in English and colonial history. The highly abusive infringements of freedom and privacy which were the incidents of general warrants and writs of assistance allowing arrests and searches on suspicion alone were only too well-known to the American settlers. They wisely insisted on the inclusion, in the Bill of Rights, of the provision in the Fourth Amendment that the right of the people to be secure against unreasonable searches and seizures shall not be violated and that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." * * *

The [Fourth] Amendment sets a firm standard with respect to the essentials of a search warrant. Under its terms the search warrant is not to issue except upon probable cause, supported by oath or affirmation. The crucial determination is to be made not by the police officer but by a neutral issuing judge. Before the judge is in a position to make his determination for issuance, he must properly be made aware of the underlying facts or circumstances which would warrant a prudent man in believing that the law was being violated.

Our recent Rules Governing Search Warrants * * * expressly recognize, as they must, the constitutional need for a verified showing of probable cause before the issuing magistrate; and they implicitly acknowledge the basic requirement, which the federal cases have repeatedly asserted, that the showing be not merely of belief or suspicion, but of underlying facts or circumstances which would warrant a prudent man in believing that the law was being violated. Even if we are at liberty to do so, we have no inclination whatever to

restrict or undermine the great force or uniform applicability of that safeguarding requirement. [ Id. at 255-57, 260-61 (citation omitted).]

Before we examine the sufficiency of the affidavit relied on by the judge in this case, we shall review both the federal and state case law in order to determine the standard to be used in evaluating whether probable cause was established by Detective Higgins' affidavit.

A. Probable Cause -- Federal Case Law

The evolution of federal case law applying the probable-cause standard to specific search warrants has not been distinguished by clarity and consistency. See Amsterdam, "Perspectives on the Fourth Amendment," 35 Minn.L.Rev. 349, 349 (1974).

In one of its most recent and significant probable-cause decisions, the Supreme Court observed that

perhaps the central teaching of our decisions bearing on the probable-cause standard is that it is a "practical, nontechnical conception." "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." [ Illinois v. Gates, 462 U.S. 213, 231, 103 S. Ct. 2317, 2328, 76 L. Ed. 2d 527, 544 (1983) (quoting Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 1310-11, 93 L. Ed. 1879 (1949)).]

The Court's characterization of probable cause as a practical, nontechnical concept has been frequently repeated, even in cases in which the Court was sharply divided as to whether probable cause had been established. See, e.g., Massachusetts v. Upton, 466 U.S. 727, 730-33, 104 S. Ct. 2085, 2087-88, 80 L. Ed. 2d 721, 726-27 (1984); United States v. Harris, 403 U.S. 573, 577, 91 S. Ct. 2075, 2079, 29 L. Ed. 2d 723, 730 (1971); Spinelli v. United States, 393 U.S. 410, 419, 89 S. Ct. 584, 590-91, 21 L. Ed. 2d 637, 645 (1969); United States v. Ventresca, 380 U.S. 102, 108, 85 S. Ct. 741, 745-46, 13 L. Ed. 2d 684, 689 (1965); Draper v. United States, 358 U.S. 307, 313, 79 S. Ct. 329, 333, 3 L. Ed. 2d 327, 332 (1959). Justice Potter Stewart attempted to explain why the judiciary's application of the probable cause standard -- practical and nontechnical though it

may be -- has generated such markedly divergent views as to its mandate:

The fourth amendment is no "technicality." The occupation of a judge requires application of its sweeping language to cases presenting the infinite variety of factual situations that arise in real life. The art of being a judge, if there is such an art, is in announcing clear rules in the context of these infinitely varied cases, rules that can be understood and observed by conscientious government officials. If the outcome of fourth amendment cases has come to be regarded as turning on "technicalities," it is in part because of the inevitable human shortcomings of judges faced with the task of articulating fourth amendment principles applicable in a broad range of situations while doing justice in a particular case. Most judges do their best, but that is not always good enough. ["The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases," 83 Colum.L.Rev. 1365, 1393 (1983).]

Apart from the central theme that probable cause is a nontechnical concept, the Supreme Court's probable-cause decisions have generated few sustaining principles. One such principle is that probable cause is not established by a conclusory affidavit that does not provide a magistrate with sufficient facts to make an independent determination as to whether the warrant should issue. The leading case for this proposition is Nathanson v. United States, 290 U.S. 41, 54 S. Ct. 11, 78 L. Ed. 159 (1933). There, the challenged warrant recited that a federal officer

has stated under his oath that he has cause to suspect and does believe that certain merchandise, to wit: Certain liquors of foreign origin a more particular description of which cannot be given, upon which the duties have not been paid, or which has otherwise been brought into the United States contrary to law, and that said merchandise is now deposited and contained within the premises of J.J. Nathanson said premises being described as a 2 story frame dwelling located at 117 No. Bartram Ave. [ Id. at 44, 54 S. Ct. at 12, 78 L. Ed. at 160.]

The Court held that the warrant had been issued without probable cause, observing that

nothing * * * indicates that a warrant to search a private dwelling may rest upon mere affirmance of suspicion or belief without disclosure of supporting facts or circumstances. [ Id. at 47, 54 S. Ct. at 13, 78 L. Ed. at 161.]

Nathanson has consistently been followed by the Court, whether the conclusory allegations are asserted by the officer or by an informant whose observations are incorporated in the

officer's affidavit. See Whiteley v. Warden of Wyoming State Penitentiary, 401 U.S. 560, 564, 91 S. Ct. 1031, 1034-35, 28 L. Ed. 2d 306, 311 (1971); Spinelli v. United States, supra, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637; United States v. Ventresca, supra, 380 U.S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684; Beck v. Ohio, 379 U.S. 89, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Rugendorf v. United States, 376 U.S. 528, 84 S. Ct. 825, 11 L. Ed. 2d 887 (1964); Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960), overruled on other grounds, United States v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980); Giordenello v. United States, 357 U.S. 480, 78 S. Ct. 1245, 2 L. Ed. 2d 1503 (1958).

The Court's insistence that an officer's affidavit allege specific facts and not conclusions is based on the principle that

the inferences from the facts which lead to the complaint "[must] be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." The purpose of the complaint, then, is to enable the appropriate magistrate, here a Commissioner, to determine whether the "probable cause" required to support a warrant exists. The Commissioner must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept without question the complainant's mere conclusion that the person whose arrest is sought has committed a crime. [ Giordenello v. United States, supra, 357 U.S. at 486, 78 S. Ct. at 1250, 2 L. Ed. 2d at 1509 (quoting Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 369, 92 L. Ed. 436, 440 (1948)).]

Another entrenched principle is that not only may a magistrate consider hearsay in determining probable cause, but hearsay alone can provide a sufficient basis for the warrant. Although the Court had impliedly accepted hearsay as a basis for probable cause in prior cases, see Draper v. United States, supra, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 and Brinegar v. United States, supra, 338 U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879, it expressly held in Jones v. United States, supra, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697, that an officer's affidavit could rely on information provided by an informant:

The question here is whether an affidavit which sets out personal observations relating to the existence of cause to search is to be deemed insufficient by

virtue of the fact that it sets out not the affiant's observations but those of another. An affidavit is not to be deemed insufficient on that score, so long as a substantial basis for crediting the hearsay is presented. [ Id. at 269, 80 S. Ct. at 735, 4 L. Ed. at 707.]

In Jones the Court did not attempt to set standards for determining what constitutes "a substantial basis for crediting the hearsay." That task was undertaken by the Court in Aguilar v. Texas, supra, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723, and in Spinelli v. United States, supra, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637. These two decisions, superseded in 1983 by Illinois v. Gates, supra, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527, have for the past two decades been at the center of the debate concerning the sufficiency of an informant's observations in establishing probable cause.*fn5

In Aguilar, a warrant to search for narcotics in the defendant's home was issued on the basis of an affidavit that alleged:

Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law. [378 U.S. at 109, 84 S. Ct. at 1511, 12 L. Ed. 2d at 725.]

In sustaining the challenge to the admissibility of the evidence seized by the execution of the warrant, the Court established a "two-pronged test" to determine the sufficiency of an informant's tip. First, the tip must include information that apprises the magistrate of the basis for the informant's allegations (the "basis-of-knowledge" prong); and, second, the affiant must

inform the magistrate of the basis for his reliance on the informant's credibility (the "veracity" prong). See Illinois v. Gates, supra, 462 U.S. at 267, 103 S. Ct. at 2347-48, 76 L. Ed. 2d at 567 (White, J., concurring). Concluding that the affidavit did not meet these conditions, the Court determined that the warrant should not have issued:

Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, was "credible" or his information "reliable." Otherwise, "the inferences from the facts which lead to the complaint" will be drawn not "by a neutral and detached magistrate," as the Constitution requires, but instead, by a police officer "engaged in the often competitive enterprise of ferreting out crime," or, as in this case, by an unidentified informant. [ Aguilar v. Texas, supra, 378 U.S. at 114-15, 84 S. Ct. at 1514, 12 L. Ed. 2d at 729 (quoting Giordenello v. United States, 357 U.S. at 486, 78 S. Ct. at 1250, 2 L. Ed. 2d at 1509; Johnson v. United States, 333 U.S. at 14, 68 S. Ct. at 369, 92 L. Ed. at 440) (footnote omitted, citations omitted).]

Five years later, in Spinelli v. United States, supra, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637, the Court sought to clarify Aguilar by delineating the manner in which the "two-pronged test" should be applied when the informant's allegations, although inadequate standing alone, are partially verified by police investigation. The affidavit in Spinelli stated that a reliable informant had advised the FBI that "Spinelli is operating a handbook and accepting wagers and disseminating wagering information by means of the telephones which have been assigned the numbers WYdown 4-0029 and WYdown 4-0136." Id. at 414, 89 S. Ct. at 588, 21 L. Ed. 2d at 642. To corroborate the informant's tip, the affidavit recited that Spinelli was observed for a period of five days, during four of which he traveled from Illinois to Missouri, parking in a lot adjacent to an apartment house and entering an apartment whose occupant possessed telephones assigned the same phone numbers as those provided by the informant. Although concluding that the FBI affidavit was insufficient to establish probable cause, the

Court suggested that deficiencies in a search warrant affidavit incorporating information from an informant could be remedied both with respect to "basis-of-knowledge" and "veracity":

If the tip is found inadequate under Aguilar, the other allegations which corroborate the information contained in the hearsay report should then be considered. At this stage as well, however, the standards enunciated in Aguilar must inform the magistrate's decision. He must ask: Can it fairly be said that the tip, even when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar's tests without independent corroboration? [ Id. at 415, 89 S. Ct. at 588, 21 L. Ed. 2d at 643.]

The majority in Spinelli observed that if an affidavit is deficient in its recitation as to the basis of the informant's knowledge, the self-verifying details of the informant's tip can overcome this deficiency:

In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused's criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation. [ Id. at 416, 89 S. Ct. at 589, 21 L. Ed. 2d at 644.]

The Court also acknowledged that the informant's veracity, if inadequately documented in the officer's affidavit, could be bolstered by a corroborative investigation, but concluded that the veracity of the Spinelli informant had not sufficiently been established:

Nor do we believe that the patent doubts Aguilar raises as to the report's reliability are adequately resolved by a consideration of the allegations detailing the FBI's independent investigative efforts. At most, these allegations indicated that Spinelli could have used the telephones specified by the informant for some purpose. This cannot by itself be said to support both the inference that the informer was generally trustworthy and that he had made his charge against Spinelli on the basis of information obtained in a reliable way. Once again, Draper provides a relevant comparison. Independent police work in that case corroborated much more than one small detail that had been provided by the informant. There, the police, upon meeting the inbound Denver train on the second morning specified by informer Hereford, saw a man whose dress corresponded precisely to Hereford's detailed description. It was then apparent that the informant had not been fabricating his report out of whole cloth; since

the report was of the sort which in common experience may be recognized as having been obtained in a reliable way, it was perfectly clear that probable cause had been established. [ Id. at 418, 89 S. Ct. at 590, 21 L. Ed. 2d at 644.]*fn6

In Illinois v. Gates, supra, the Court abandoned its exclusive reliance on the Aguilar-Spinelli two-pronged test for evaluating information provided by an informant, adopting in its place "the totality-of-the-circumstances analysis that traditionally has informed probable cause determinations." 462 U.S. at 238, 103 S. Ct. at 2332, 76 L. Ed. 2d at 548. However, the Court took pains to point out that

an informant's "veracity," "reliability," and "basis of knowledge" are all highly relevant in determining the value of his report. We do not agree, however, that these elements should be understood as entirely separate and independent requirements to be rigidly exacted in every case * * *. Rather, * * * they should be understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is "probable cause" to believe that contraband or evidence is located in a particular place. [ Id. at 230, 103 S. Ct. at 2328, 76 L. Ed. 2d at 543.]

Gates involved the sufficiency of an affidavit offered in support of a search warrant authorizing the search of the defendants' car and house. The application for the warrant was triggered by an anonymous, handwritten letter sent to the Bloomingdale, Illinois Police Department that alleged:

"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 down and drives it back. Sue flys 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 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 & Susan Gates

"Greenway

"in Condominiums" [ Id. at 225, 103 S. Ct. at 2325, 76 L. Ed. 2d at 540.]

Detective Mader of the Bloomingdale Police Department investigated the anonymous tip and learned that an Illinois driver's license had been issued to Lance Gates of Bloomingdale. He also learned that an individual named "L. Gates" had a reservation on a flight to West Palm Beach, Florida, departing from Chicago on May 5th. At Mader's request, an agent of the Drug Enforcement Administration conducted a surveillance and observed Gates board a flight destined for West Palm Beach. He also reported that federal agents in Florida had observed Gates' arrival in West Palm Beach and confirmed that he had traveled from the airport by taxi to a nearby motel. The agents reported that Gates had entered a room in the motel

registered to Susan Gates. The next morning Gates and an unidentified woman left the motel in a Mercury automobile with Illinois license plates. They drove northbound on an interstate highway generally used by travelers bound for Chicago. The license plate number on the Mercury was identified by the federal agents as one registered to a station wagon owned by Gates.

Detective Mader prepared an affidavit that incorporated the details learned during the investigation. He submitted the affidavit, along with a copy of the anonymous letter, to a county court judge. The judge issued a search warrant that authorized the searches of the Gates' residence and automobile. On May 7, when Lance Gates and his wife returned to their home in Bloomingdale, the Bloomingdale police searched the trunk of the Mercury and discovered approximately 350 pounds of marijuana. During a search of the Gates' home the officers found marijuana, weapons, and other contraband.

The Illinois Circuit Court suppressed the evidence on the ground that the affidavit submitted in support of the search warrant did not establish probable cause. That decision was affirmed by the Illinois Appellate Court, 82 Ill.App. 3d 749, 38 Ill.Dec. 62, 403 N.E. 2d 77 (1980), and by the Supreme Court of Illinois, 85 Ill. 2d 376, 53 Ill.Dec. 218, 423 N.E. 2d 887 (1981).

Relying on the two-pronged analysis derived from Aguilar and Spinelli, the Illinois Supreme Court concluded that the anonymous letter, supplemented by Detective Mader's affidavit, did not satisfy either the "veracity" or the "basis-of-knowledge" prong established by Aguilar. The court concluded that there was no basis for determining that the anonymous letter writer was credible, and that the corroboration by police of innocent details contained in the letter could not satisfy the "veracity" requirement. Id. at 384-90, 53 Ill.Dec. at 222-24, 423 N.E. 2d at 891-93. In addition, the court observed that the anonymous letter did not reveal the source of its author's knowledge and concluded that the detail set forth in the letter

was not sufficient to justify an inference that the contents of the letter had been obtained from a reliable source. Id.

Justice Rehnquist, writing for the Gates majority, agreed with the Illinois Supreme Court that the anonymous letter, standing alone

provides virtually nothing from which one might conclude that its author is either honest or his information reliable; likewise, the letter gives absolutely no indication of the basis for the writer's predictions regarding the Gateses' criminal activities. Something more was required, then, before a magistrate could conclude that there was probable cause to believe that contraband would be found in the Gateses' home and car. [462 U.S. at 227, 103 S. Ct. at 2326, 76 L. Ed. 2d at 541.]

Rejecting the Illinois Supreme Court's reliance on Aguilar and Spinelli, the Court determined that the independent investigation by the federal agents and the Bloomingdale police adequately verified the reliability of the informant's tip. The Court observed that the Aguilar-Spinelli two-pronged analysis was overly technical and ill-suited to guide determinations of probable cause:

[T]he "two-pronged test" directs analysis into two largely independent channels -- the informant's "veracity" or "reliability" and his "basis of knowledge." There are persuasive arguments against according these two elements such independent status.

The rigorous inquiry into the Spinelli prongs and the complex superstructure of evidentiary and analytical rules that some have seen implicit in our Spinelli decision, cannot be reconciled with the fact that many warrants are -- quite properly -- issued on the basis of nontechnical, common-sense judgments of laymen applying a standard less demanding than those used in more formal legal proceedings. Likewise, given the informal, often hurried context in which it must be applied, the "built-in subtleties," of the "two-pronged test" are particularly unlikely to assist magistrates in determining probable cause. [ Id. at 233, 235-36, 103 S. Ct. at 2329, 2331, 76 L. Ed. 2d at 546 (citations omitted).]

Nevertheless, in formulating the elements of the totality-of-the-circumstances analysis, the Court recognized the continued relevance of an informant's veracity and basis of knowledge:

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of

a crime will be found in a particular place. * * * We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli. [ Id. at 233, 238-39, 103 S. Ct. at 2329, 2332, 76 L. Ed. 2d at 545, 548 (emphasis added, citations omitted).]

The Gates majority also observed that the totality-of-the-circumstances test provided magistrates with wider discretion to grant or refuse warrants than had been permitted under the Aguilar-Spinelli rules:

Nothing in our opinion in any way lessens the authority of the magistrate to draw such reasonable inferences as he will from the material supplied to him by applicants for a warrant; indeed, he is freer than under the regime of Aguilar and Spinelli to draw such inferences, or to refuse to draw them if he is so minded. [Id. at 240, 103 S. Ct. at 2333, 76 L. Ed. 2d at 549 (emphasis added).]*fn7

Finally, the Court explicitly limited the permissible scope of appellate review of the probable cause determination made by the warrant-issuing judge, holding that the fourth amendment did not require de novo review as to the validity of the warrant:

[W]e have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate's "determination of probable cause should be paid great deference by reviewing courts." "A grudging or negative attitude by reviewing courts towards warrants," is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant; "courts should not invalidate warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner."

Reflecting this preference for the warrant process, the traditional standard for review of an issuing magistrate's probable-cause determination has been that so long as the magistrate had a "substantial basis for . . . conclud[ing]" that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more. [ Id. at 236, 103 S. Ct. at 2331, 76 L. Ed. 2d at 546-47 (quoting Spinelli

v. United States, 393 U.S. 410, 419, 89 S. Ct. 584, 590-91, 21 L. Ed. 2d 637; United States v. Ventresca, 380 U.S. 102, 108-09, 85 S. Ct. 741, 745-46, 13 L. Ed. 2d 684; Jones v. United States, 362 U.S. 257, 271, 80 S. Ct. 725, 736, 4 L. Ed. 2d 697).]*fn8

To sum up, the impact of Gates on fourth amendment probable-cause determinations is two-fold. First, by adopting the totality-of-the-circumstances analysis, it signals a reemphasis of the "practical, nontechnical conception" of probable cause endorsed in Brinegar v. United States, supra, 338 U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879, but does so without repudiating the relevance of "veracity" and "basis-of-knowledge" inquiries with respect to allegations by informants. Second, it limits the scope of federal appellate review mandated by the fourth amendment as to probable-cause determinations by the warrant-issuing magistrate.

B. Probable Cause -- New Jersey Case Law

This Court's decisions in cases concerning probable cause have been relatively uncontroversial. As would be expected,

many of our opinions emphasize the same principles that have been recognized by decisions in the federal courts. We have consistently characterized probable cause as a common-sense, practical standard for determining the validity of a search warrant. In State v. Kasabucki, 52 N.J. 110, 116 (1968), we said:

Probable cause is a flexible, nontechnical concept. It includes a conscious balancing of the governmental need for enforcement of the criminal law against the citizens' constitutionally protected right of privacy. It must be regarded as representing an effort to accommodate those often competing interests so as to serve them both in a practical fashion without unduly hampering the one or unreasonably impairing the significant content of the other.

See State v. Davis, 50 N.J. 16, 24 (1967), cert. denied, 389 U.S. 1054, 88 S. Ct. 805, 19 L. Ed. 2d 852 (1968); State v. Laws, 50 N.J. 159, 173 (1967), cert. denied, 393 U.S. 971, 89 S. Ct. 408, 21 L. Ed. 2d 384 (1968); State v. Mark, 46 N.J. 262, 271 (1966); State v. ...


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