Polston v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Senior Judge Cole
Argued at Richmond, Virginia

SHERRI ANN POLSTON, S/K/A
SHERRI ANNE POLSTON
OPINION BY
v. Record No. 1064-96-2 JUDGE LARRY G. ELDER
MAY 27, 1997
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge

Ned M. Mikula (Rudy, Evans & Mikula, on
briefs), for appellant.

Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.

Sherri Ann Polston (appellant) appeals her conviction of

possession of marijuana with intent to distribute. She contends

that the trial court erred in denying her motion to suppress

evidence obtained during a search of her apartment. She argues

that the magistrate lacked a substantial basis for finding

probable cause to issue the search warrant for her apartment.

For the reasons that follow, we affirm.

I.

FACTS

On January 6, 1995, Detective Stuart Graham Powell of the

Chesterfield County police participated in the arrest of an
1
unidentified person (informant). Following his arrest,
1
The gender of the informant is not disclosed in the record.
Informant will be referred to in the masculine gender in order
informant told Detective Powell that he had witnessed the storage

and sale of marijuana in appellant's apartment within the past

seventy-two hours. Detective Powell had never met informant

prior to January 6, and informant had never participated in any

"controlled buys" with the police. Detective Powell did not

inquire whether or not informant was a registered voter or a

person who regularly attended church. In addition, Detective

Powell did not recall if he performed a check of informant's

criminal record or know if informant was involved in any plea

bargaining that was contingent upon his cooperation in

appellant's case.
After speaking with informant, Detective Powell wrote an

affidavit that stated in relevant part:
4. The material facts constituting probable
cause that the search should be made
are: On this date, 1-6-95, a citizen
appeared before the magistrate of the
Twelth [sic] Judicial District Court and
stated the following facts under the
penalty of purgery [sic]. This citizen
stated that within the past 72 hours
he/she observed a quantity of marijuana
being stored and being offered for sale
at [an apartment on Markview Lane].

* * * * * * *
6. I was advised of the facts set forth in
this affidavit, in whole or in part, by
an informer. This informer's
credibility or the reliability of the
information may be determined from the
following facts: The citizen mentioned
in section 4 of this document made these
statements while under oath and after
to avoid confusion with appellant.

-2-
 being advised of the penalty of purgery
[sic] by your affiant. Your affiant has
been a police officer for over six years
and is currently employed in the vice
and narcotics unit of the Chesterfield
County Police Department. Your affiant
has made several drug arrests and is
familiar with the drug culture in and
around Chesterfield County.

Detective Powell then brought informant before a magistrate,

and informant both swore that all of the information contained in

the affidavit was true and testified under oath that "within the

last 72 hours [he observed] a quantity of marijuana being

prepared and offered for sale at [the apartment on Markview

Lane]." The magistrate then questioned informant about his

familiarity with drugs. In response, informant testified that he

had used drugs on a weekly basis for several years and that he

was familiar with the drug culture in Chesterfield County.

Following this testimony, the magistrate made the following

addition to the section of the affidavit addressing the

credibility and reliability of informant:
This citizen is a self-admitted drug user
and is familiar with the drug culture in and
around Chesterfield County.

The magistrate issued a search warrant for the apartment.

When Detective Powell entered the apartment, he found appellant.

After appellant was given her Miranda warnings, she stated that

she had marijuana inside her dresser drawers in her bedroom.

Another detective recovered 12.74 ounces of marijuana from

appellant's dresser. Appellant also stated that she had been

-3-
selling marijuana in order to raise money to pay for Christmas

presents.

Appellant was charged with possessing marijuana with the

intent to distribute. The trial court denied appellant's motion

to suppress the evidence obtained during the search of the

apartment. Appellant then entered a conditional guilty plea that

was subject to her appeal regarding the denial of her motion to

suppress.
II.

MOTION TO SUPPRESS

On appeal, appellant does not contend that the facts

contained in the affidavit, if credible, failed to provide a

substantial basis for the magistrate to find probable cause to

issue the search warrant for the apartment on Markview Lane.

Instead, appellant challenges the basis for the magistrate's

reliance upon the information provided by informant.

Specifically, appellant argues that the affidavit provided by

Detective Powell failed to objectively establish informant's

veracity and basis of knowledge and that the magistrate

improperly supplemented the information provided in the affidavit

by examining informant under oath regarding his reliability and

basis of knowledge. We disagree.

A.
The existence of probable cause is determined
by examining the "totality-of-the-
circumstances." "The task of the issuing
magistrate is simply to make a practical,
commonsense decision whether, given all the

-4-
 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."
The duty of the reviewing court is "simply to
ensure that the magistrate had a 'substantial
basis for . . . conclud[ing]' that probable
cause existed."

Miles v. Commonwealth, 13 Va. App. 64, 68-69, 408 S.E.2d 602,

604-05 (1991), aff'd en banc, 14 Va. App. 82, 414 S.E.2d 619

(1992) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct.

2317, 2332, 76 L.Ed.2d 527 (1983)).
When the factual basis for probable cause is provided by an

informer, the veracity, reliability, and basis of knowledge of

the informer are "highly relevant" to the magistrate's

determination of probable cause. See Gates, 462 U.S. at 230, 103

S. Ct. at 2328. However, the credibility and basis of knowledge

of an informer are not independent "elements" that must be

"proved" in order for a magistrate to find probable cause.

Instead, these considerations are merely factors in the overall

"totality-of-the-circumstances" analysis. Id. at 233, 103 S. Ct.

at 2329. "[A] deficiency in [either credibility or basis of

knowledge] may be compensated for, in determining the overall

reliability of a tip, by a strong showing as to the other, or by

some other indicia of reliability." Id.

The reliability of an informer's tip may be established in

different ways depending on the nature of the informer and the

manner in which the information provided by the informer reaches

-5-
the magistrate. If the informer is a disinterested citizen who

is either the victim or eyewitness of a crime, the magistrate is

permitted to infer that reasonable information obtained from the

citizen is reliable. See Saunders v. Commonwealth, 218 Va. 294,

299-300, 237 S.E.2d 150, 154 (1977). On the other hand, the

reliability of a "criminal" informer, such as an "underworld

figure" or a "professional informer," should be established by

"underlying facts or circumstances buttressing the credibility of

the informer." Id. at 298, 237 S.E.2d at 153-54.

The proper method to establish the reliability of "criminal"

informers is determined in part by whether or not the informer

appears in person before the magistrate and testifies under oath.

When the "criminal" informer's tip is in the form of hearsay

recited in an affidavit, its reliability may be established by

showing that (1) the informer has previously given reliable

information; (2) the informer previously has worked with the

police and has made controlled buys or worked in narcotic

surveillance or other law enforcement efforts; (3) the informer

provided detailed information that only a person who had actually

observed the criminal activity would know; or (4) the informer

has made a declaration against his penal interest. See Boyd v.

Commonwealth, 12 Va. App. 179, 187-88 n.2, 402 S.E.2d 914, 919-20

n.2 (1991); Corey v. Commonwealth, 8 Va. App. 281, 288, 381

S.E.2d 19, 23 (1989).

A different situation is presented when an informer appears

-6-
in person before a magistrate and testifies under oath regarding

his personal observations. Our Supreme Court has previously held

that a magistrate determining probable cause may supplement the

information contained in an affidavit with information received

orally. See McCary v. Commonwealth, 228 Va. 219, 231, 321 S.E.2d

637, 643 (1984) (holding that "an insufficient affidavit may be

supplemented or rehabilitated by information disclosed to the

issuing magistrate upon application for the search warrant").

Thus, an affidavit need not include extrinsic corroboration of a

"criminal" informer's veracity when such information is provided

orally to the magistrate. This information may be conveyed

orally by the police officer seeking the warrant or through the

magistrate's direct examination of the informer while under oath.
[W]hen an informant appears before a judge or
magistrate and testifies under oath
concerning personal observations, there is no
comparable need for extrinsic corroboration
of the informant's veracity: the presiding
judge or magistrate is able to observe the
informant's demeanor, is capable of
questioning the informant, and is provided
further assurance by the fact that the
informant's testimony is under oath.

Latham v. State, 790 P.2d 717, 720 (Alaska Ct. App. 1990).
As with any other similarly situated witness,
the informant's willingness to submit to an
oath, and his personal presence and the
availability for questioning by the
magistrate [provide] adequate procedural
safeguards to assure a sound basis for
assessing veracity and reliability.

McLaughlin v. State, 818 P.2d 683, 686 (Alaska Ct. App. 1991).

However, if the reliability of a "criminal" informer is

-7-
established orally, either by information presented by a police

officer seeking a search warrant or by information elicited from

the informer while testifying under oath before the magistrate,

such information must be set forth in the record in order to

permit a reviewing court to determine that the magistrate had a

substantial basis for finding probable cause. See Boyd, 12 Va.

App. at 186, 402 S.E.2d at 918-19 (stating that "[w]here the

basis for concluding that probable cause exists rests upon

information provided by an informer, one focus of the inquiry

must be upon whether the magistrate could [reasonably and

objectively] determine the informer's honesty, veracity, and

basis of knowledge").
Appellant relies on Commonwealth v. Haberman, 390 A.2d 279

(Pa. 1978), for the proposition that an informer's credibility

cannot be established for Fourth Amendment purposes by the

informer's personal appearance before the issuing magistrate.

However, we are unpersuaded by Haberman because its Fourth

Amendment analysis is outdated. In Haberman, the Superior Court
of Pennsylvania held that an informer's personal appearance

before a magistrate in combination with his written

acknowledgement that his information was given under penalty of

perjury was not sufficient to establish the informer's

reliability under the two-pronged Aguilar-Spinelli test. Id. at

281-82. Under this test, officers seeking a search warrant were

required to provide an independent basis for the issuing

-8-
magistrate to conclude that an informer was (1) knowledgeable and

(2) reliable in regard to the information he provided. Id. at

290; see also Tamburino v. Commonwealth, 218 Va. 821, 823-24, 241

S.E.2d 762, 764 (1978). The Haberman court reasoned that the

magistrate's in-person assessment of the informer's credibility

was not sufficiently independent to satisfy the Aguilar-Spinelli

test. Haberman, 390 A.2d at 282.

However, since Haberman was decided, the United States

Supreme Court abandoned the rigid, two-pronged test for

evaluating an informer's credibility in favor of the
"totality-of-the-circumstances" approach. See Gates, 462 U.S. at

238, 103 S. Ct. at 2332. For this reason, we do not believe that

the Haberman court's reasoning and holding are cogent. Instead,

Gates opens the door for police officers to establish the

credibility of an informer in a variety of ways, including

through the personal appearance of the informer under oath before

the issuing magistrate. The credibility of an informer is now

only a factor in a magistrate's determination of probable cause.
Id. at 230, 103 S. Ct. at 2328. The credibility of an informer

is based upon both his basis of knowledge and his reliability,

and "a deficiency in one may be compensated for . . . by a strong

showing as to the other." Id. at 233, 103 S. Ct. at 2317.

Unlike in the days of the Aguilar-Spinelli test, a magistrate's

determination of probable cause, which includes some

consideration of an informer's credibility, is ascertained from

-9-
the circumstances of the particular case. Id. at 238, 103 S. Ct.

at 2332. Nothing in Gates precludes the police from establishing

an informer's credibility through a magistrate's in-person

examination and assessment of the informer while under oath.

-10-
 B.

Turning to the facts of this case, we first hold that

informant was not a "citizen" informer whose reliability could be

inferred by the magistrate. Although the record did not

establish either that informant had a criminal record or that

informant was a "professional informer," the record did indicate

that informant was under arrest when he provided the information

regarding the apartment on Markview Lane to both Detective Powell

and the magistrate. While the record does not expressly

establish that informant expected any gain or concession in

exchange for his information, we cannot say that informant, whose

cooperation with the authorities began only after his arrest, was

an ordinary citizen who "act[ed] with an intent to aid the police

in law enforcement because of his concern for society or for his

own safety." State v. Paszek, 50 Wis.2d 619, 630, 184 N.W.2d

836, 843 (1971). Thus, some indicia of informant's credibility

was required before the magistrate could rely on the informant's

information as a basis for finding probable cause.

We next hold that the information received by the magistrate

regarding informant's reliability and basis of knowledge provided

a substantial basis for the magistrate to rely on informant's

observations when making his probable cause determination.

Although the affidavit as it was written prior to informant's

appearance before the magistrate failed to provide sufficient

information for the magistrate to objectively evaluate

-11-
informant's reliability, this defect was cured by the information

elicited by the magistrate when informant testified under oath

before him. First, the reliability of informant was enhanced by

the fact that he testified under oath before the magistrate that

he saw marijuana for sale in the apartment on Markview Lane, thus

subjecting himself to criminal liability if his testimony was

fabricated. See Gates, 462 U.S. at 233-34, 103 S. Ct. at 2330

(stating that giving information while under penalty of perjury

can bolster the reliability of the informer). In addition,

informant's reliability was further strengthened when the

magistrate elicited a statement from informant that was against

his penal interest. The magistrate asked informant about his

experience with drugs, and informant testified that he had used

drugs at least once a week for several years. See United States

v. Harris, 403 U.S. 573, 583, 91 S. Ct. 2075, 2082, 29 L.Ed.2d

723 (1971) (stating that "[p]eople do not lightly admit crime and

place critical evidence in the hands of the police in the form of

their own admissions. Admissions of crime . . . carry their own

indicia of credibility . . . ."). Finally, the magistrate's

examination of informant elicited that informant had a strong

basis for his knowledge that marijuana was for sale in the

apartment. In response to the magistrate's questions, informant

testified that he was familiar with both drugs and the drug

culture in Chesterfield County and that his knowledge of the sale

of marijuana in the apartment on Markview Lane was based upon his

-12-
personal observations within the past seventy-two hours. See

Spinelli v. United States, 393 U.S. 410, 416, 89 S. Ct. 584, 589,

21 L.Ed.2d 637 (1969), abrogated on other grounds by Gates, 462

U.S. at 238, 103 S. Ct. at 2332 (stating that an informer's

declaration that he "personally observed" the information

disclosed by him would sufficiently establish his basis of

knowledge). Considering all of the information regarding

informant's reliability and strong basis of knowledge that was

elicited during informant's appearance before the magistrate, we

conclude that any defect in the affidavit was cured and that the

magistrate had a substantial basis for finding probable cause to

issue a search warrant for the apartment.
Appellant's reliance on Tamburino v. Commonwealth is

misplaced. 218 Va. 821, 241 S.E.2d 762 (1978). Tamburino was

decided when the Aguilar-Spinelli test was still applicable to a

magistrate's determination that an informer was reliable. See

id. at 823-24, 241 S.E.2d at 764. The only issue in Tamburino

was whether the information contained in the police officer's

affidavit satisfied the "reliability" prong of the
Aguilar-Spinelli test. Id. at 822, 241 S.E.2d at 763. The

magistrate had concluded that the informer's hearsay statement

that drugs were present in the defendant's apartment was reliable

because the informer (1) was a "concerned citizen," (2) admitted

that he was familiar with the local drug culture and was a user

of drugs, and (3) performed a controlled buy for the police. Id.

-13-
at 822-23, 241 S.E.2d at 763. Our Supreme Court held that:
while the admission by the informant that he
was associated with the drug culture, and was
a user of marijuana, would not alone be
sufficient to establish his credibility, it
is a factor to be considered.

Id. at 825, 241 S.E.2d at 765. The court went on to hold that

these admissions in combination with the informer's controlled

buy were sufficient to establish the informer's reliability under

the Aguilar-Spinelli test. Id.
Tamburino does not control this case because the credibility

of informant is not subject to the same rigid, two-pronged

scrutiny that was applicable in Tamburino. Despite this

difference, informant's credibility in this case was similarly

buttressed. Like the informer in Tamburino, informant admitted

that he used drugs and was familiar with the local drug culture.

Although informant's credibility in this case was not

strengthened by his performance of a controlled buy, it was

additionally bolstered by his in-person testimony under oath

before the magistrate and the fact that he had directly observed

drugs offered for sale in the apartment on Markview Lane.

For the foregoing reasons, we affirm the judgment of the

trial court.
Affirmed.

-14-
Benton, J., dissenting.

When an accused challenges the validity of a search warrant,

"the duty of a reviewing court is . . . to ensure that the

magistrate had a 'substantial basis for . . . conclud[ing]' that

probable cause existed." Illinois v. Gates, 462 U.S. 213, 238-39

(1983) (citation omitted). Because in this case the magistrate

lacked a "'substantial basis for . . . concluding' that probable

cause existed," id., I would hold that the warrant was invalid

and reverse the conviction.
The following facts were presented to the magistrate: (1)

the informant had seen "a quantity of marijuana being stored and

being offered for sale at . . . [an] apartment" on Markview Lane,

and (2) the informant was a "self-admitted drug user and [was]

familiar with the drug culture in and around Chesterfield

County." The majority concedes that these facts, alone, are

insufficient to establish probable cause. The majority

concludes, however, that the magistrate properly found probable

cause because the magistrate's opportunity to view the informant,

in person, "cured" the otherwise defective affidavit.

The majority bases its conclusion on three factors: (1) one

of the statements made by the informant, not related to the

information regarding Polston, constituted a statement against

penal interest; (2) because the informant told the police that

the informant was familiar with drugs and the drug culture in

Chesterfield County, the informant had a "strong basis for his

-15-
knowledge," and (3) the informant was under oath and, thus, was

subject to criminal prosecution for perjury in the event that the

informant lied. In the abstract, the factors identified by the

majority are persuasive; in the context of this case, they carry

negligible weight.

When asked to determine whether a magistrate had sufficient

information to determine that probable cause existed, "a

reviewing court must consider only the information presented to

the magistrate who issued the warrant." United States v.

Wilhelm, 80 F.3d 116, 118 (4th Cir. 1996). However, when the

police fail to corroborate a tip from an unidentified informant,

but instead seek to prove the informant's credibility by allowing

the magistrate to view the informant in person, a reviewing court

cannot ignore facts, which potentially destroy the informant's

credibility, that were not presented to the magistrate.

Numerous facts in the record were not presented to the

magistrate. The magistrate was never informed that the informant

was under arrest at the time he spoke to the magistrate. Indeed,

the informant was misleadingly described in the officer's

affidavit as a "citizen informant." At the hearing on the motion

to suppress, the officer's testimony revealed that the informant

"was a citizen, but he was under arrest at the time" he was

brought before the magistrate. The officer also testified that

he had not checked to determine whether the informant previously

had been convicted. The officer further testified that he did

-16-
not know whether the informant received any reduction in the

charges against him in exchange for the assistance he provided in

Polston's case.

Without knowledge of the potential for bias created by the

informant's status as an arrested criminal suspect, the

magistrate was ill-equipped to judge the informant's credibility.

The majority, and perhaps also the magistrate, rely heavily on

the fact that the informant made a statement against penal

interest by admitting his drug use. However, if the informant

made his statements because he had entered into a plea agreement

requiring such disclosure, the statement would hardly be against

his interest. Had the magistrate known of the arrest, he could

have pursued this issue to determine whether the informant may

have been biased or unduly influenced by a plea agreement or

other promise of leniency made by the police or Commonwealth's

Attorney. Cf. Christopher Slobogin, Testilying: Police Perjury

and What To Do About It, 67 U. Colo. L. Rev. 1037, 1050 (1996)

(asserting that "the[] informant, or even someone else acting as

an informant, [can be coached] to lie about the information

necessary for probable cause").

The second factor relied upon by the majority, the

informant's experience with drugs, lacks substance. The police

officer's affidavit is merely a "boiler plate" recitation that

the officer "is familiar with the drug culture in and around

Chesterfield County . . . [and the informant] is familiar with

-17-
the drug culture in and around Chesterfield County." The

informant's statement of his familiarity with the drug market

bore little relation to the inquiry whether the informant had an

adequate basis for concluding that marijuana was being offered

for sale at the apartment. The informant's statement was overly

general and lacked any factual detail. The informant did not

state precisely when he had seen the marijuana, who was in

possession of the marijuana, the quantity of marijuana the

informant had seen, the reason the informant was present, or

where in the apartment the marijuana was located. Most

importantly, the informant did not provide any explanation for

the conclusion that it was being offered for sale at the

apartment.
Reading this affidavit in a "practical,
common-sense" manner, the only claim of
possible wrongdoing is the averment that,
within three days prior to the affidavit
date, the informant was on the suspect
premises and, while there, he saw some
quantity of marijuana "expressly for the
purpose of unlawful distribution." [The
detective] presents no underlying factual
circumstances to support the informant's
knowledge regarding distribution, nor the
detective's own "belief" that these
quantities of marijuana were present "for the
purpose or with the intention of unlawful
possession, sale or transportation," or even
that the marijuana would be on the premises
when the warrant was executed.

United States v. Weaver, 99 F.3d 1372, 1378 (6th Cir. 1996); see

also United States v. Reddrick, 90 F.3d 1276, 1280 (7th Cir.

1996).

-18-
 The final factor relied on by the majority, the fact that

the informant made his statement under oath, is also of little

weight. Due to the nature of the informant's statement, the

possibility of criminal prosecution for perjury had little impact

on the informer's credibility. The informant merely swore to the

statement that "within the past 72 hours he/she observed a

quantity of marijuana being stored and being offered for sale at

the apartment." The informant did not identify the occupant of

the apartment or the person who was selling marijuana. Because

this statement is vague, the Commonwealth would have great

difficulty proving its falsity. Cf. Commonwealth v. Slater, 363

A.2d 1257, 1259 (Pa. Super. Ct. 1976) ("[T]he course from an

informant's false statement to his conviction is a long and

tortuous one. Statistically, the chances of such a prosecution

are almost nonexistent."); Slobogin, supra, at 1045 (stating that

affiants often commit perjury in the warrant process because they

are "seldom made to pay for their lying"). Thus, a successful

prosecution for perjury would be highly unlikely.

In view of the scant information attributed to the informant

and the lack of detail, the informant was likely aware that the

truth or falsity of the statement was not verifiable. Moreover,

in a case in which an anonymous informer did not testify under

oath, this Court nevertheless observed that "if the informer had

fabricated his report, he may have subjected himself to criminal

liability." Boyd v. Commonwealth, 12 Va. App. 179, 191, 402

-19-
S.E.2d 914, 922 (1991). The fact that the informant made his

accusation under oath exposed the informant to a risk faced by

all other informants and, thus, provides no basis for giving

greater credit to this informant.

Moreover, the police did not corroborate or have prior

knowledge of the information that the officer received from the

informant. "An informant's tip is rarely adequate on its own to

support a finding of probable cause." United States v. Miller,

925 F.2d 695, 698 (4th Cir. 1991). The burden of establishing

probable cause is greater when the informant is unidentified.
See Alabama v. White, 496 U.S. 325, 329 (1990). Mere

corroboration by the police of static details reported by the

informant will not suffice to cure the inadequacy of a tip from

an unidentified informant. Cf. Gates, 462 U.S. at 244-46

(holding that independent corroboration of predicted activity can

support a finding of probable cause); Joe Metcalfe, Anonymous

Tips, Investigatory Stops and Inarticulate Hunches -- Alabama v.

White, 110 S. Ct. 2412 (1990), 26 Harv. C.R.-C.L. L. Rev. 219,

234 (1991) ("[I]f corroborated facts serve to bolster a tip, then

uncorroborated facts should likewise undermine confidence in the

reliability of the information in the possession of the police.")

(citing Gates, 462 U.S. at 234).
The majority relies upon Latham v. State, 790 P.2d 717

(Alaska Ct. App. 1990). However, the informant in that case was

not an arrested criminal suspect. See id. at 719. The informant

-20-
was identified to the magistrate, testified before the magistrate

about a robbery that the police previously knew had occurred, and

provided the magistrate with "numerous details about the robbery

that he would not have been aware of without having spoken with

someone who was actually involved in the crime." Id.; see also

McLaughlin v. State, 818 P.2d 683, 685 (Alaska Ct. App. 1991)

(upholding a warrant based upon an informant's testimony about a

controlled buy). Those facts and circumstances did not exist in

this case.
The record in this case does not prove that the informant

was identified by name to the magistrate. The informant was an

arrested criminal suspect. The informant gave no details of the

alleged offense. The informant did not report an offense that

was previously known by the police to have occurred. Moreover,

the trial judge made no findings in this case that the magistrate

received any information other than the bare recitals in the

affidavit. 2 The paucity of information and the absence of any

2
The record proved that after the officer talked to the
informant and before the officer took the informant to the
magistrate, the officer typed on the affidavit for search warrant
the following recital:

On this date 1-6-95, a citizen appeared
before the magistrate of the Twelth Judicial
District Court and stated the following facts
under oath and the penalty of purgery. This
citizen stated that within the past 72 hours
he/she observed a quantity of marijuana being
stored and being offered for sale at the
apartment mentioned in section two of this
document.

-21-
corroboration of the underlying factual circumstances establish

that the informant's reliability was not adequately substantiated

in this case. See Weaver, 99 F.2d at 1378-79. Indeed, as in

Weaver, the informant in this case gave no information regarding

"a description of the marijuana and how it was maintained, . . .

the location in the residence where the marijuana . . . was seen

or kept, a description of [the seller], [or] . . . information on

the distribution operation . . . ." Id. at 1378 n.4.
Because the information provided by the informant was vague

and lacking in detail, I would hold that the magistrate lacked a

substantial basis to conclude that the informer's conclusion was

accurate. See Corey v. Commonwealth, 8 Va. App. 281, 289, 381

S.E.2d 19, 23 (1989) (holding that a tip lacked adequate detail);

cf. Boyd, 12 Va. App. at 191, 402 S.E.2d at 922 (upholding a

warrant based upon similar allegations, which were combined with

additional details provided by the informant and corroborated by

the police).

The holding in this case allows the police, under

circumstances otherwise insufficient to support a police

officer's warrant application, to take an unidentified, arrested

criminal suspect before a magistrate, present the arrested

suspect as a "citizen informant," and bathe the informant with

credibility if the informant swears to vague, unverifiable facts.

-22-
Such a procedure reduces the Fourth Amendment to a fiction and

the magistrate to "a rubber stamp for the police." United States

v. Ventresca, 380 U.S. 102, 109 (1965).
It makes all the difference in the world
whether one recognizes the central fact about
the Fourth Amendment, namely, that it was a
safeguard against recurrence of abuses so
deeply felt by the Colonies as to be one of
the potent causes of the Revolution, or one
thinks of it as merely a requirement for a
piece of paper.

United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter,

J., dissenting).
I dissent.

-23-