also dissenting:
Here, the trial court concluded that the warrantless search of the trunk was not a weapons search, and that the real reason for the traffic stop was to determine whether defendant’s car was carrying drugs. This conclusion was well supported by the admissions of Beam. The court further determined that the tip of an unidentified informer was insufficient to provide probable cause to search the vehicle, “particularly the locked trunk.” It is clear that the standards for a finding of probable cause for a warrantless search are as strict as those under which a magistrate may issue a search warrant. Indeed, the United States Supreme Court has indicated a strong preference to be accorded searches under a warrant. “[I] n a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall.” United States v. Ventresca (1965), 380 U.S. 102, 106, 13 L. Ed. 2d 684, 687, 85 S. Ct. 741, 744.
This general preference for searches pursuant to a warrant is modified to the extent that exigent circumstances may justify a warrantless search of an automobile where a warrantless search of a dwelling would not be justified. (Chambers v. Maroney (1970), 399 U.S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975; Carroll v. United States (1925), 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280.) The automobile’s mobility and the risk of loss of evidence is the underlying rationale, but with or without a warrant, “[a] utomobile or no automobile, there must be probable cause for the search.” (Almeida-Sanchez v. United States (1973), 413 U.S. 266, 269, 37 L. Ed. 2d 596, 600-01, 93 S. Ct. 2535, 2537-38.) This principle has lately been reacknowledged in Texas v. White (1975), 423 U. S. 67, 46 L. Ed. 2d 209, 96 S. Ct. 304, and United States v. Martinez-Fuerte (1976), 428 U.S. 543, 49 L. Ed. 2d 1116, 96 S. Ct. 3074.
The cases of Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509, and Spinelli v. United States (1969), 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584, set the minimum standards under the Federal Constitution for the issuance of a search warrant in cases where an informer’s tip is part of the basis for the magistrate’s finding of probable cause. If the standards enunciated in Aguilar and Spinelli are the minimum for a search warrant, it follows that a warrantless search, in like circumstances, must at least meet those standards.
Aguilar established a two-pronged test: a warrant may issue where the affidavit in support thereof informs the magistrate of (1) facts upon which the affiant rests his conclusion that the informer is credible or his information reliable, and (2) the underlying circumstances upon which the informer based his conclusion of criminal activity. (Aguilar v. Texas (1964), 378 U.S. 108, 114, 12 L. Ed. 2d 723, 729, 84 S. Ct. 1509, 1514; Spinelli v. United States (1969), 393 U.S. 410, 416, 21 L. Ed. 2d 637, 643, 89 S. Ct. 584, 589.) In Aguilar, two police officers applied for a warrant to search the petitioner’s home for narcotics. The affidavit in support of their application stated that they had received reliable information from a credible person that narcotics were being kept on the premises. The court pointed out that, to support a finding of probable cause, the magistrate must base his conclusion on facts and circumstances revealed to him under oath or affirmation, and mere affirmation of belief or suspicion is not enough. (Aguilar v. Texas (1964), 378 U.S. 108, 112, 12 L. Ed. 2d 723, 727, 84 S. Ct. 1509, 1512.) The mere conclusion in the Aguilar affidavit that the subject possessed narcotics “was not even that of the affiant himself; it was that of an unidentified informant. The affidavit here not only ‘contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein,’ it does not even contain an ‘affirmative allegation’ that the affiant’s unidentified source ‘spoke with personal knowledge. ’ For all that appears, the source here merely suspected, believed or concluded that there were narcotics in petitioner’s possession.” Aguilar v. Texas (1964), 378 U.S. 108, 113-14, 12 L. Ed. 2d 723, 728, 84 S. Ct. 1509, 1513.
In the case at bar, the bare assertion of an informer’s tip, as revealed to the trial court, was patently insufficient to support a finding of probable cause, for it satisfies neither of the two prongs of the Aguilar test. Beam could neither identify the informer nor remember who in the sheriff’s department had relayed the tip. His conclusional statement that a reliable, unidentified informer had told the sheriff’s office that drug traffic was emanating from the Kraft house does not provide facts or circumstances from which the court could conclude that the informer was credible or his information gained in a reliable manner. Beam’s assertion that the house had been under surveillance for a week does not of itself cure the defect. For a court to accept Beam’s or the sheriff’s department’s inferences that the tip was from a reliable source, without any knowledge of the underlying circumstances from which the inferences were drawn, would be to remove the determination of probable cause from a neutral and detached source and allow it to be made by a police officer “ ‘*** engaged in the often competitive enterprise of ferreting out crime.’ ” (Spinelli v. United States (1969), 393 U.S. 410, 415, 21 L. Ed. 2d 637, 643, 89 S. Ct. 584, 589.) The circumstances presented here likewise fail to meet the second Aguilar test: there was no testimony whatsoever regarding the circumstances under which the informer drew his conclusion of criminal activity.
The State apparently concedes that the informant’s tip was insufficient basis for a finding of probable cause under Aguilar. Instead, it argues that any insufficiency in the tip could be, and was, remedied by corroborative information gleaned by Officer Beam. In Spinelli, the court announced that a tip, insufficient under the Aguilar tests but adequately corroborated by police investigation, could be properly considered as a basis for a finding of probable cause.
In Spinelli, the informer’s tip — held inadequate under both Aguilar tests — indicated simply that the FBI “has been informed by a confidential reliable informant that William Spinelli is operating a handbook and accepting wagers and disseminating wagering information by means of the telephones which have been assigned to the numbers WYdown 4-0029 and WYdown 4-0136.” (Spinelli v. United States (1969), 393 U.S. 410, 414, 21 L. Ed. 2d 637, 642, 89 S. Ct. 584, 588.) The “corroborative” information relied upon to validate the inadequate tip, indicated, briefly, that (1) the FBI had maintained surveillance of Spinelli’s movements for five days, on four of which Spinelli crossed from Illinois to St. Louis, Missouri, between 11 a.m. and 12:15 p.m., was seen parking his car in a parking lot used by residents of a specified building, and was once seen to enter a particular apartment therein; (2) the FBI check with the telephone company revealed that the apartment contained phones with numbers indicated in the tip; (3) Spinelli was known to Federal and local law-enforcement agents as a bookmaker and gambler. The Supreme Court pointed out that there could be no question that the informant’s tip had “a fundamental place in this warrant application. Without it, probable cause could not be established. The first two items [as above] reflect only innocent-seeming activity and data. *** Finally, the allegation that Spinelli was ‘known’ to the affiant and the other federal and local law enforcement officers as a gambler and an associate of gamblers is but a bald and unilluminating assertion of suspicion that is entitled to no weight in appraising the magistrate’s decision.” Spinelli v. United States (1969), 393 U.S. 410, 414, 21 L. Ed. 2d 637, 642-43, 89 S. Ct. 584, 588.
The court held that the informant’s tip, even when corroborated to the extent indicated, was insufficient to provide a basis for a finding of probable cause. It reiterated that the corroborative bits of information supplied by the FBI contained “no suggestion of criminal conduct when taken by themselves — and they are not endowed with an aura of suspicion by virtue of the informer’s tip.” (Emphasis added.) (Spinelli v. United States (1969), 393 U.S. 410, 418, 21 L. Ed. 2d 637, 645, 89 S. Ct. 584, 590.) With the Spinelli standard in mind, it is profitable to test for the existence of probable cause as each bit of corroborative information was accumulated.
As detailed above, the informer’s tip alone would not have afforded Officer Beam probable cause to initially search the Kraft home. The officer, thereafter, observed four to six cars stop at the Kraft house, their occupants enter and leave within 5 to 10 minutes. This information, like the innocent-appearing coming and going of Spinelli, is clearly not of itself indicative of criminal activity. No probable cause therefore would have existed to search the Kraft home itself at this point. At 7:30 on the Sunday evening in question, defendant drove to the Kraft house. He and another entered, stayed a few minutes, and exited, according to Beam, carrying an “object” (later stated by Beam to be a brown paper bag) which was allegedly put in the trunk of the car. Again, this surely is not indicative of criminal activity. However, at this point the majority concludes that the totality of the circumstances provided probable cause to search defendant’s trunk — a feeling apparently not shared by Beam. Beam felt constrained to follow the defendant and the four others in the car for the six-mile drive to Steeleville. During that period, he noticed that the rear license-plate light of defendant’s car was out and the license partially obstructed by a trailer hitch. He determined to stop the defendant’s car. Although this was ostensibly a mere traffic stop, he twice radioed for assistance to meet him in Steeleville. At the time of his calls, he observed the occupants of the car looking around, although he was in an unmarked car. Certainly it cannot be said that looking around is an occurrence indicating or corroborating criminal activity. When Beam reached Steeleville, he turned on his dashboard flasher. Defendant immediately pulled his car to the curb, exited, and approached Beam’s car at what Beam termed a “fast walk.” Defendant appeared shaky or nervous to Beam. Innocent concern over being stopped by the police would be expected. Nervousness, under these circumstances, without other indications of criminal activity, is insufficient to corroborate the tip. (See People v. Reed (1967), 37 Ill. 2d 91, where the defendant’s nervousness and his repeated glances at his automobile were held inadequate justification for the search of his car after a stop for a vehicular violation.)
Officer Beam then approached defendant’s auto with defendant, heard voice sounds from the eight-band shortwave radio in the car, and observed defendant’s brother turn a knob on the radio. The record reveals that Beam “assumed,” rather than heard, that the radio had been tuned to the police band. He further assumed that the occupants had intercepted his requests for police assistance. The presence of a shortwave radio capable of receiving police messages is not a crime, and is certainly no more unusual or indicative of criminal activity than was the presence of two telephones in the apartment under surveillance in Spinelli. There the court aptly observed that “[m] any a householder indulges himself in this petty luxury.” Spinelli v. United States (1969), 393 U.S. 410, 414, 21 L. Ed. 2d 637, 642-43, 89 S. Ct. 584, 588.
Under Spinelli, the circumstances related above must be judged without the incriminating aura of the inadequate informer’s tip. Without that aura, these so-called corroborating facts are clearly insufficient to support a finding of probable cause to search defendant’s car or trunk.
It is, in fact, questionable whether any weapons search was justified here, inasmuch as the circumstances did not indicate that the occupants were armed and dangerous or that they were involved in a violent crime. (See Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) The informer’s tip did not so indicate. Beam clearly conceded that the search qf the trunk was not a weapons search. He frankly stated that he searched the trunk only for drugs. Probable cause to search the trunk was, however, still lacking. The finding of the hunting knife by another officer during a second search of defendant’s brother did not logically corroborate the informer’s tip or Beam’s suspicion that the auto contained cannabis. Thus, the search of the locked trunk cannot be justified either as a weapons search or as a search for drugs based on probable cause.
In an alternative attempt to establish legal justification for the search of the trunk, the State in essence asserts that there was probable cause where the “circumstances surrounding defendant’s arrest gave the appearance of criminal activity.” At oral argument, it was asserted that such criminal activity was evidenced by the “totality of the circumstances.” Such a theory was a foundation of the court of appeals opinion in Spinelli and was explicitly rejected by the Supreme Court in circumstances “[w] here, as here, the informer’s tip is a necessary element in a finding of probable cause ***.” Spinelli v. United States (1969), 393 U.S. 410, 415, 21 L. Ed. 2d 637, 643, 89 S. Ct. 584, 588.
The traffic violation for which defendant was ostensibly stopped was an inoperative license-plate light and partial obstruction of the plate by a trailer hitch. It was conceded by the State at oral argument to be the kind of violation routinely handled by a brief stop and the issuance of a traffic ticket. Forgetting Beam’s admission that the stop was not for the traffic violation but to allow him to search the trunk, and disregarding, as we must, the suspicion derived from the inadequate tip, there were no circumstances surrounding the stop which would have justified the officer in concluding he was dealing with other than an ordinary traffic violator. Unlike the total absence of license plates, which could indicate car theft, the traffic offense here is not of the serious nature which of itself would reasonably justify a conclusion of criminal activity. (Compare People v. Palmer (1976), 62 Ill. 2d 261, with People v. Reed (1967), 37 Ill. 2d 91.) The State cites People v. McKnight (1968), 39 Ill. 2d 577, as a comparable traffic stop where a search was justified. However, in that case there were additional factors not present in the case at bar. In McKnight, the actual reason for the traffic stop was the traffic violation — the absence of a license-plate light. Thus the traffic stop was not a mere pretext for stopping and searching the auto for contraband. Further, the circumstances which developed out of the stop in McKnight were themselves indicative of criminal activity. When the car was stopped and the police turned a spotlight on the car, the defendant changed hands on the steering wheel and brought his arm and shoulder down in a dipping motion as though stashing something under the front seat of the car. The defendant there told the police that he had borrowed the car from a friend but did not know the friend’s address. In the presence of these facts, the police could reasonably suspect that they were dealing, not with an ordinary traffic violator, but with a car thief, and could pat down defendant and his companion for weapons. The presence of a gun in the right front pants pocket of the defendant’s companion when he stepped out of the car was an important, but additional, factor in the court’s finding of probable cause to search the car subsequent to the defendant’s arrest.
The circumstances of the traffic stop in this case were critically different. Again, untainted by the aura of the inadequate tip, they reveal nothing but the presence of an ordinary traffic violation. The trial court found, and it is clearly not against the manifest weight of the evidence, that the traffic arrest was a pretext for the police to search the automobile for cannabis. Lacking probable cause for such a search, the search cannot be justified under these circumstances as incident to a lawful custodial arrest. (Cf. United States v. Robinson (1973), 414 U.S. 218, 38 L. Ed. 2d 427, 94 S. Ct. 467; Gustafson v. Florida (1973), 414 U.S. 260, 38 L. Ed. 2d 456, 94 S. Ct. 488, where certain searches incident to full custodial arrest for traffic violations were held permissible.)
It has been observed by various courts that the circumstance of most frequent contact between citizen and police in this country is incident to a stop for a minor traffic violation. To allow the police to engage in a full-scale search of a vehicle and a “spread-eagle” search of its occupants incident to a traffic stop where the circumstances — if the subjects were on foot — would not support a finding of probable cause to search, would cut deeply into the fourth amendment privileges enjoyed by the citizens of this country. Where, as here, the trier of fact determines that a traffic stop is a pretext for an investigation of other suspected activity, this court should closely scrutinize any search which follows for justification of the search independent of the traffic stop (see People v. Watkins (1960), 19 Ill. 2d 11), for “those charged with *** investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks.” United States v. United States District Court (1972), 407 U.S. 297, 317, 32 L. Ed. 2d 752, 766, 92 S. Ct. 2125, 2136.
I would therefore affirm the judgment of the appellate court.
MR. JUSTICE GOLDENHERSH joins in this dissent.