Probable Cause and the Informer

• Author: By Major Francis A. Gilligan
• Pages: 01

Both lead articles in this issue examine the often litigated fourth amendment protection against unreapmble searches and seizwes. .Major Gillignn emmines the evolving law of informant reliabilitg giving particular emphasis to recent Supreme Court and Court of Military Appeals' decisions. Captain Rintaameki wrveys the "plain view" rule in military and oiviliun pmctice I. INTRODUCTION

have expressed a preference for searches authorized by a magistrate. In the miiitary a military judge or a commanding officer takes the place of the magistrate. Perspective in this area mas be gained by recognizing three ways in which information as tocriminal activity may reach the magistrate. One, in the rare case, he may personally observe criminal activity or its fruits. Two, he may personally confront the person who has seen the criminal activity or evidence of its fruits. In the civilian context this person will typically be a police officer. In the military a CID agent or merely a member of the commander's unit may be the informer. Three, the person directly confronting the magistrate is basing his evidence about criminal activity or its fruits wholly or in part on information obtained from third parties who are not present before the magistrate. These parties may or may not be identified.

Throughout the area two concerns are present: 1) is the evi- 'The opinions and conclusions presented herein are those of the author and do not necessarily repreaent th8 views of The Judge Advocate General's School or any other governmental agency.

**JAGC, us Army; Instructor, Criminal Law Division, TJAGSA. B.A., 1961, Alfred University; J.D., 1964 State University of New Yark at Buffalo; LL.M. 1970 The George Washington Univerdty. Member of the Barn of New Yark, ;he US Supreme Court, and the US Court of Military Appeals and admitted to practice before the Court of Appeals, State of New Yark.

See, e.&, Coolidge Y. New Hampshire, 403 U.S. 443 (1971); Chimel v. Cslifornis, 396 U.S. 752, 763 (19691: Kat% Y. United States, 389 U.S. 347, 351 (1967).

'See, e.g., United Stater V. Jefer, 21 U.S.C.M.A. 203, 44 C.M.R.

Both the Supreme Court and the Court of Military Appeals

(1912): United States V. Sparks, 21 U.S.C.M.A. 134, 44 C.M.R. 168 (1971).

dence given to the magistrate worthy of belief, and 2) if true, does it lead to the reasonable belief that items connected with criminal activity are "located in the place or on the person to be searched." In the first situation (magistrate personally observing) the magistrate merely relies on his own powers of observation and deductive abilities. In the second situation, when the informant personally appears, his credibility is subject to the personal scrutiny of the magistrate. Reviewing courts usually defer to his assessment of the credibility of the informant.' In the third situation, where the magistrate is not personally facing the informant, hearsay is being used to establish probable cau~e. Where this method is relied upon, the Manual, drawing upon the Supreme Court opinion in Aguilar v. Tezas: requires that the person requesting search authorization inform the commanding officer or the military judge of "some of the underlying circumstances from which the informant concluded that the items in question were where he claimed they were and Some of the underlying circumstances from which the authority requesting permission to search concluded that the informant, whose identity need not be disclosed, was credible or his information reliable.''

This third area poses the greatest difficulty for magistrates and reviewing courts. Here the magistrate is not able to rely on direct confrontation of the informant. In some cases mere questions of convenience may keep the informant away from the magistrate. A policeman will typically find it easier to report a telephone

'Pars. l a MIYUAL FOR COLRTS-M~TIAL,

1969 (Rn. ED.! [hereinafter cited 81 MCM 1969 (~Ev.!].

Before the mamatrate authorizes a aeareh of a peram OT place, it IS not necesaary to show that the person to be apprehended or the pemm whose premise LS to be searched committed B crime. Campwe Article lb. U S ~ ~ R M

CODE OF MILITARY JCSTICE,wm Para. 152, MCM,

(REI.! See olao United States v Jeter, 21 U.S.C.M.A. 208, 44 C.II1.R. 262(19721, People V. Mlesderds. 111 NE. 2d 638 11. (1969)

'Sea, e.& Cnited Sratea Y. Smaliiumd, - U.S.C.M.A. -, -

C.M.R.

- (1972) (The commanding officer "was also able to assese the informant's credibihty from his demeanor in direct confrontation.") ; People V. Coleman, - Cal. App 26 -, 104 Csl. Rptr. 363 (The question of reliability is not involved when the informant himaelf personally signs the affidavit end appears before the magistrate. In such a ease the magistrate determines re. liability as wovld be the ease of the trier of fact I" court.!: People \I.

Wheatman, 29 N.Y. 2d 341, 327 N.Y.S. Zd 643 (1971).

INFORMAWS

company official's verification of a phone number than to bring the official himself before the judge. In other situations, however, information will be coming from persons closely associated with the criminal activity. They may provide their information out of fear, in a desire far revenge or in hopes of bettering their own questionable position with the police.

This article will examine the use of the informant in the criminal law. Of particular concern will be the way in which the two-prong test of the Manual can be satisfied.

The two-pronged test adapted from Aguilw v. Tezas,' may be broken down into its component parts. That portion providing that the magistrate be informed of "some of the underlying circumstances from which the informant concluded that the items in question were what he claimed they were'" will be called the "basis of knowledge test." The other portion' will be called the "reliability test."

Two of the most significant cases in this area are SvimUi v. United States In and Drape? v. United States." In Spinelli, a search warrant for gambling paraphernalia was obtained on the basis of an affidavit which indicated: (1) the defendant had been observed on several occasions going to a certain apartment: (2) a check with the telephone company disclosed that there were two telephones in this apartment listed in the name of another person; (3) the defendant was "known to this affiant and to federal law enforcement agents and local law enforcement agents as a book-maker :" ')

and (4) the affiant had been "informed by a canfidential reliable informant that [the defendant] is operating a handbook and accepting wagera and disseminating wagering information by the means of the telephones"" located in the specified apartment. Mr. Justice Harlan, speaking for the majority of the Court, stated that "[Tlhe first two items reflectedredl only innocent-seeming activity and data."l' He went on to say that the third allegation (defendant's reputation as a gambier) was

'318 U.S. 10% (1964). 'Para. 152, MCM,

1969 (Rm.).'Id. "(S)ome a i the underlying circumstance from which the authority requesting permisaim to search eonciuded that the infomant, whose identity need not be disclosed, was credible or his information reliable."

*S93 U.S. 410 (1968). "While Diaper involved the question whether the police had probable cause io? an arrest without a warrant, the analysis required for mn answer to this question is basidly similar to that demand. ed of B magistrate when he conaiders whether II aeareh warrant should isme." Id. at 417 n. 6.

"868 U.S. 301 (1868).

" Spinelii Y. United States, 383 U.S. 410, 414 (1969). ::Id.

Id. 3

"but a bald and unilluminating assertion of suspicion that is entitled to no weight in appraising the magistrate's decision."'E The fourth allegation (the informant's tip), he stated, did not pass either prong of Aguihr. In contrast, he stated, the tip in Draper did.># There, the FBI informant who had been reliable in the pact (1) informed the FBI on the 7th of September that Draper would arrive In Denver an a train from Chicago on the 8th or 9th of September, (2) described Draper's appearance and haw he would be dressed, (3) stated that the defendant walked with a fast gait, (4) stated that he would be carrying a tan zipper bag, and (5) stated he would be carrying heroin. The Court held that the apprehending officer had probable cause to apprehend the defendant w,hen he corroborated four of the five allegations prior to the defendant's arrest." In reconciling these cases it is necessary to break dawn Aguiler into the basis of knowledge test and the reliability test.

11. THE BASIS OF KTOWLEDGE TEST

The basis of knowledge test demands that the informer have obtained his knowledge in a reliable way such as by direct observation, admissions by the defendant or caaccused, through conclusions dram from circumstantial evidence, or through information given to the informant by another who was reliable and in a position to know.'& Absent one of these sources of information, the basis of knowledge test may be satisfied "(i)n the absence ofa statement detailing the manner in which the information was gathered" Is provided the accused's criminal activity is described in sufficient detail so that the magistrate may know that he is relying on something more substantial than a casual rumor.*n In SpineUi, Mr. Justice Harlan offered little guidance for determining when a tip is detailed enough to be self-verifying. How- " Id.

'I Id. at 410.

"Draper v United States, 358 P.S. 307 (1859).

"Spinelli V. rnited States, 303 U.S. 410. 423-25 (1969) (hatlee White, eoneurring opinion)

'*Id. at 416.

"Id. See a h Boyer V. Arizona, 455 F.7d 804, SO6 (0th Cir. 1072). ("Even absent a clear statement of the method by rhieh the informer gathered hm Information, the information covered Boyer'n Criminal activity >n sufficient detail that the magistrate could 'know that he [vas] relying onsomething more substantial than a esiual rumor eirevlaling in the underworld or an accusation bared merely on %" individual's...