dissenting:
I respectfully disagree with the decision of the court. In my opinion, the affidavit does not sufficiently establish probable cause for the issuance of the search warrant. Consequently, the search and seizure under the authority of the warrant were improper, and the evidence so seized should have been suppressed.
Although the rule is axiomatic and so universal that its repetition might not seem of any significance, nevertheless I think that it should be borne in mind that the constitutional requirement that search warrants issue only upon probable cause requires that the sufficiency of the affidavit or other evidence of probable cause be considered without regard to the success or failure of the execution of the warrant. A distorted view of the constitutional protection is possible and must be guarded against when the cases on this issue are considered. Because of the nature of the problem, published cases involve generally those circumstances where contraband and other incriminating evidence have been in fact discovered and seized. Those cases in which the search has been fruitless do not come to the attention of the reviewing courts, and this is so regardless of whether the search warrant was or was not properly issued or executed. This places, in my judgment, a heavy burden both on the police officers and the court issuing search warrants to conscientiously safeguard a citizens right of privacy from unreasonable invasion.
The majority of the court and both parties concede the validity of the rule in Aguilar v. Texas, 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509, regarding the twofold requirement for the complaint for a search warrant where the information is supplied by an informant. Aguilar requires that two things be shown in the complaint for the search warrant: (1) the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were; and (2) the underlying circumstances from which the officer concluded that the informant was credible or his information reliable. The sole issue on this appeal is whether the affidavit for the search warrant failed to establish probable cause because it did not contain information sufficient to establish the reliability of the anonymous informer.
Although recognizing the existence of the Aguilar rules, the majority of the court, by placing such heavy reliance on United States v. Ventresca, 380 U.S. 102, 13 L.Ed.2d 684, 85 S.Ct. 741, suggests that the Aguilar rule has been modified by the Ventresca case. This is not true, for Ventresca does not involve the reliability of an anonymous informer. I have no quarrel with the majority’s citing the Ventresca case for the general principle that a commonsense reading should be given to an affidavit rather than a hypertechnical interpretation. Indeed, I wholeheartedly support the rule that requires that the affidavit be considered from a commonsense view, but I believe the application of the rule which supports the result in the Ventresca case compels an opposite result in the instant case.
Ventresca involved a prosecution for possession and operation of an illegal distillery. The affidavit in that case recited that the relevant information was in part based upon the affiant’s (investigator assigned to the case) observations as weH as upon information obtained from other investigators of the Alcohol and Tobacco Tax Division of the Internal Revenue Service assigned to the same investigation. The affidavit there described seven different occasions when a car was driven into defendant’s yard. On four of these occasions the car carried loads of sugar in 60-pound bags; it made two trips loaded with empty tin cans, and once it was merely observed as being heavily laden. The car’s owner and a passenger were seen on several occasions loading the car at defendant’s house and later unloading apparently full 5-gallon cans at the passenger’s house later in the evening. On one particular date after a delivery of empty tin cans to defendant’s house, the driver and passenger were observed carrying from the house cans which appeared to be fiHed and placing them in the trunk of the car. On two specific occasions investigators smelled the odor of fermenting mash as they walked along the sidewalk in front of Ventresca’s house. On another occasion at about the same time in the early morning they heard certain metallic noises. On the day before applying for the search warrant they heard (while they smelled the mash) sounds similar to that of a motor or pump coming from defendant’s house. All of these observations were made by affiant and his fellow investigators engaged in a common investigation, and the affidavit so stated such fact.
The Ventresca case, as can be readily seen from the above exposition of its facts, is easily distinguishable from the case at bar wherein the only support for the reliability of the informer himself is that “said informant has furnished affiant with information on four prior occasions which information has resulted in four purchases of marijuana or dangerous drugs and that arrests are pending on these four purchases.” I see no way of comparing the facts contained in the affidavit in the Ventresca case with the only issue in the present case, namely, the reliability of the anonymous informer.
Defendant cites three Illinois cases in support of his argument that the sworn complaint for the search warrant failed to establish probable cause because it did not contain information sufficient to establish the reliability of the anonymous informer, People v. Parker, 42 Ill.2d 42, 245 N.E.2d 487, People v. McClellan, 34 Ill.2d 572, 218 N.E.2d 97, and People v. Lawrence, 133 Ill.App.2d 542, 273 N.E.2d 637. In Parker, in holding that the affidavits for the search warrant were defective, the court stated, "They do not reveal the character of this prior information or whether it led to arrests or convictions. Nor do they allege that the present information had been independently corroborated by the affiant or any other officers, other than the proof that the substances handed over were marijuana. Absent such factual allegations, or other grounds from which as issuing magistrate could reasonably credit the informer’s accusation, the affidavits are defective and the warrants cannot stand.” (42 Ill.2d 42, 44-45.) The facts in the Parker case are strikingly similar to those in the instant case and furnish persuasive support for the conclusion that the result in the present case be the same as that in Parker.
In McClellan the court held there was not probable cause for an arrest without a warrant where the reliability of the informer was only shown by the fact that the police had acted on previous tips by making arrests. The court there left unanswered the question whether the tips of an informer must lead to convictions, but held that the fact that the police acted upon previous information of an informer does not prove that the prior information was accurate and the informer reliable.
The Lawrence case also dealt with the existence of probable cause for a warrantless arrest and there the court affirmed the conviction. At the hearing on the motion to suppress one officer testified that he had used the informant on three prior occasions, that his information proved accurate, arrests resulted and the cases were pending in court. The other officer testified that he had used the informer once, that the information supplied by him turned out to be correct, and arrests had been made and the case was awaiting trial. The court there stated that convictions are not essential in establishing an informer’s reliability and held, “The true test of his reliability is the accuracy of his information.” (133 Ill.App.2d 542, 544.) The Lawrence case is distinguishable because there was at least an indictment and an entity distinct from the police (the grand jury) examined the prior information and found it accurate. It is not necessary here tp decide whether such an independent entity’s ex-animation of the information is necessary since Lawrence is distinguishable on its facts. Lawrence dealt with a warrantless arrest, and there was a certain degree of exigency involved in the factual situation. Contrary to the assertion of the majority of the court, the Lawrence case is not authority for the proposition that arrests on former tips are unnecessary to justify the conclusion of reliability. In fact there were prior arrests and prior indictments. Indeed, the court concludes that even if there were prior arrests the reliability of the anonymous informer may not have been shown.
The State in its brief argues, “The Complaint for Search Warrant in the instant case states that this informant gave information to the affiant on four previous occasions; that each of these four occasions involved information on drug purchases; that each time the affiant purchased drugs based on the information furnished by this same informant; and that arrests were pending in each of the four cases at the time the instant Complaint for Search Warrant was drawn up.” The State contends that the affiant stated that the affiant purchased drugs based on the information, and yet an examination of the record reveals that this is not the case. The affidavit for the search warrant only states that the information given to the affiant resulted in purchases being made. It does not state, as contended by the State in its brief, that the affiant made the purchases. It appears that the State is arguing on appeal what it believes should have been included in the affidavit. The affiant merely concludes the information resulted in purchases and gives no indication in the affidavit as to how he knew this to be true or that the materials purchased were marijuana. If the purchases had been made by the affiant based on the informant’s information it would have been a simple matter to so state this fact in the affidavit. It cannot be assumed that the affiant personally made the purchases. I do not intend to imply that an affiant need make purchases himself, but if sales are to be relevant in determining reliability, the affiant must show, as the State apparently concedes, some personal knowledge in the transaction.
The State cites three Illinois cases in support of its position that the affidavit here established the reliability of the informant, People v. McNeil, 52 Ill.2d 409, 288 N.E.2d 464, People v. Marro, 4 Ill.App.3d 197, 280 N.E.2d 560, and People v. Ramirez, 124 Ill.App.2d 407, 260 N.E.2d 435. All three cases are distinguishable on their facts from the instant case. Ramirez dealt with a warrantless arrest and search where the police were twice informed by the informer that he could make a purchase of marijuana from defendant, the informer was searched sufficiently to make sure that he did not have narcotics on his person, he was given a prerecorded bill, the police officers were subsequently advised by radio that the informer had notified headquarters that the sale had been completed, and the officer then recovered marijuana from defendant. In Ramirez the court recognized the distinction between cases such as Ramirez concerning a warrantless- arrest and search and cases concerning an affidavit in support of a search warrant. It stated, “Cases cited'by defendant are inapplicable or distinguishable from the case at bar. Aguilar * * * and People v. Parker * * * - are cases dealing with the reliability of an anonymous informant in connection with an affidavit made for the issuance of a search warrant, and are not concerned with reasonable grounds for arrest without a warrant and an incidental search.” (124 Ill.App.2d 407, 412.) As the State recites in its own brief, “[o]ne cannot reason from the probable cause required for an arrest to the probable cause needed for a search warrant, as was specifically held in People v. Ramirez, 124 Ill.App.2d 407, 260 N.E.2d 435.”
The McNeil and Marro cases both dealt with affidavits in support of a search warrant and in both cases the affidavits were held sufficient. These two cases, however, are easily distinguishable from the case at bar on their facts. In McNeil the court stated, “In appraising .the present affidavit the issuing judge was entitled to take into account the fact that the dominant feature of the present situation was the-imperative necessity for quick action.” (52 Ill.2d 409, 413.) It should be noted in the case at bar that the information was given to the affiant police officer 3 days prior to the issuance of the search warrant. In the Marro case the court held: “In the instant case we must note that the facts involved are almost identical with those # In each of these cases the affiant police officer received information from an undisclosed informant who had previously supplied true and accurate information resulting in enumerated arrests and convictions. In each of these cases the undisclosed informant stated he placed bets over a certain phone number, and a check with the telephone company resulted in ascertaining the address associated with that phone number, which address was set out in the warrant. In each of these cases the affiant stated he dialed the given phone number, handed the telephone to tire informer and then listened to the one-sided conversation of the informant, the substance of which was the placing of a bet.” 4 Ill.App.3d 197, 202.
In the case at bar, the affidavit states arrests were pending in the cases « previously involving the informant. This term “arrests pending” is a very conclusionary and vague phrase from which it is not possible to ascertain exactly what the situation was concerning these prior tips.' The majority of the court speculates concerning the meaning of the term-, suggesting,perhaps, that arrests will be made in the future or that perhaps legal proceedings will be instituted pursuant to the sales and tips. Such speculation hardly attains the status of a “commonsense interpretation” of the affidavit.
I believe the court erred in refusing to quash the search warrant.