State v. Karr

Celebrezze, J.,

dissenting. Since the constitutional sufficiency for the issuance of the search warrants in these cases was based solely on the affidavits in support thereof, I am setting forth in their entirety these affidavits:

State v. Karr.
“Information received from a reliable informant, who *170has given reliable and factual information in the past which has led to several arrests, states that he/she has seen large quantities of miscellaneous amphetamines and barbiturates inside the above address in the past 48 hours.” (Emphasis added.)

The last sentence of the affidavit alleging “high mobility” as a reason for a nighttime search is eliminated since it is not an issue.

State v. Stevenson and State v. Mitchell.

“Information received from a reliable informant, who has given truthful and factual information in the recent past, states to the affiant that he/she had seen hallucinogens at this address within the past 48 hours.” (Emphasis added.)

No other information was submitted to the issuing magistrate.

I agree with the majority when they say that affidavits for search warrants need not meet the tests for the admissibility of evidence and further that it is essential to the police in their exercise of ferreting out crime that they of necessity need to rely on hearsay as a major source of information. I further agree with my colleagues when they say that the “affidavits herein lack much information which could have furnished a firmer basis for the magistrate’s determination * * * ”; however, I question their resolution of the obvious doubt they express.

The much maligned rule in Aguilar v. Texas (1964), 378 U. S. 108, usually referred to as the “two-pronged test” is best contained in the single paragraph, at page 114, as fpllows:

“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’ * *

*171It is in the application of the Aguilar standard that the probative value of these affidavits glaringly fails. For although the affiant swore that his confidant was “reliable,” he offered the magistrate no reason in support of that conclusion.

As Justice Frankfurter succinctly stated in the case of Jones v. United States (1960), 362 U. S. 257, 269, a forerunner of Aguilar:

“* * * We held in Nathanson v. United States, 290 U. S. 41, that an affidavit does not establish probable cause which merely states the affiant’s belief that there is a cause to search, without stating facts upon which that belief is based. A fortiori this is true of an affidavit which states only the belief of one not the affiant.”

The majority cite further the ease of United States v. Ventresca (1965), 380 U. S. 102. And while it is basically fallacious to measure the probity of an affidavit by its verbal content, it is more difficult to equate the affidavit in question here with that in the Ventresca case. Justice Goldberg, the author of the rule in the Aguilar ease, writing for the majority in the Ventresca. case stated, at page 109:

“* * * The affidavit in this case, if read in a commonsense way rather than technically, shows ample facts to establish probable cause * * *. The affidavit at issue here, unlike the affidavit held insufficient in Aguilar, is detailed and specific. It sets forth not merely ‘some of the underlying circumstances’ supporting the officer’s belief, but a good many of them. This is apparent from the summary * * * and from its text which is reproduced in the Appendix.” The Appendix contains a 4% page reprint of the affidavit and the facts for its basis.

With all deference, the affidavits in these cases seem hopelessly inadequate in the absence of facts to bolster their sufficiency.

I would affirm the decision below.

W. Bbown, J., concurs in the foregoing dissenting opinion.