dissenting:
I respectfully dissent from the opinion of the majority and would affirm the trial court’s decision granting the defendant’s motion to suppress.
Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509, was decided 5 years after Draper v. United States (1959), 358 U.S. 307, 3 L. Ed. 2d 327, 79 S. Ct. 329, on which the majority relies, and its continued vitality is apparent from a reading of Spinelli v. United States (1968), 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584. The Aguilar test provides that an informant must disclose some of the underlying circumstances from which he concluded that the narcotics were where he claimed they were. In my opinion, this “second prong” is effectively reduced to a nullity if it can be satisfied by a mere physical description of the alleged offender and his car. I find nothing which would tend to indicate that the informant based his tip on facts or circumstances rather than suspicion, belief, or a mere conclusion. (Aguilar v. Texas (1964), 378 U.S. 108, 113-14, 12 L. Ed. 2d 723, 84 S. Ct. 1509.) There is also no indication of whether the tip was based on personal knowledge of the informant or whether he received it indirectly.
The Supreme Court explicated the Aguilar principles in Spinelli v. United States (1968), 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584. There it was determined that an informer’s tip was inadequate under the Aguilar test because inter alia it did not sufficiently state the underlying circumstances from which the informant had concluded that the petitioner was running a bookmaking operation. The court stated that in the absence of a statement detailing the manner in which the information was gathered, the tip must describe the accused’s criminal activity in sufficient detail so that he is relying on something more substantial than casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.
The court cited Draper v. United States (1959), 358 U.S. 307, 3 L. Ed. 2d 327, 79 S. Ct. 329, as a “suitable benchmark” and noted that the informant had given such detail that a magistrate could reasonably infer that the informant had gained his information in a reliable way. In my opinion, Draper, as a benchmark, represented the outer limit on finding probable cause in a search and seizure case. The quality of information provided in the instant case simply did not reasonably imply that the informant gained his information in a reliable way. If it did, whenever an ex-offender made a 1-hour trip in his own car, he could be subject to arrest if a previously reliable informant speculated that he was receiving drugs and disclosed this to the police. As Justice Douglas wrote in dissent in Draper v. United States (1959), 358 U.S. 307, 314-15, 3 L. Ed. 2d 327, 79 S. Ct. 329:
“A rule protective of law-abiding citizens is not apt to flourish where its advocates are usually criminals. Yet the rule we fashion is for the innocent and guilty alike. If the word of the informer on which the present arrest was made is sufficient to make the arrest legal, his word would also protect the police who, acting on it, hauled the innocent citizen off to jail.”
I believe that because this arrest was in violation of the fourth amendment, the trial court was correct in granting the motion to suppress.