specially concurring.
It seems worth noting for perspective that Justice Hugo Black, who generally favored constructions expanding the effect of the civil liberties amendments, dissented in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). He commenced his dissent with the statement, “In my view, this court’s decision in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 * * * was bad enough.” Justice Black suggested that, in effect, the standard was changing from probable cause to practically certain cause. The neutral magistrate, who is at the heart of the Fourth Amendment, Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), is always free to reject the showing made.
I agree with the majority that as the law is currently articulated in Aguilar and Spinelli, the present warrant is deficient. Spinelli refers to Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), as setting forth a suitable test, and the information here does not possess the indicia of reliability that the information had in Draper. One respected commentator has observed that the totally anonymous informant carries very little indicia of reliability. 1, W. LaFave, Search and Seizure, § 3.4, pp. 595-597 (1978), citing State v. Chatmon, 9 Wash.App. 741, 515 P.2d 530 (1973), In re Betrand, 451 Pa. 381, 303 A.2d 486 (1973), and Rohrig v. State, 148 Ga.App. 869, 253 S.E.2d 253 (1979).
As a novice (and temporary) judge, I feel compelled to note that my concurrence with the issuance of a supression order is based upon Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), State v. Pina, 94 Ariz. 243, 383 P.2d 167 (1963), overruled in part on other grounds, Yuma County Attorney v. McGuire, 111 Ariz. 437, 532 P.2d 157 (1975) and the principle of stare decisis. It is not clear to me that either policy or any provision in either the Fourth Amendment or Article 2, § 8 of our State Constitution compels the routine application as a matter of course of the exclusionary rule adopted by the United State Supreme Court in 1914.1 It seems to me that a windfall of injustice occurs when, for example, a red-handed suspect goes free because the police in the haste of their business may have omitted a critical paragraph from an affidavit in support of the issuance of a search warrant. Although I recognize the quite significant potential for abuse inherent in an anonymous telephone call, I find there are significant indications in the record of the suppression hearing in the present case that the authorities had considerable information on appellant’s activities, on a rather current basis. I would see nothing unjust about a system of jurisprudence which would allow the subject cocaine and marijuana to be admitted into evidence.
On the basis stated, I concur.
NOTE: The Honorable RICHARD M. DAVIS, a Judge pro tempore of a court of record, has been authorized to participate in this matter by the Chief Justice of the Arizona Supreme Court, pursuant to Arizona Const, art. VI, § 20.
. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). The burgeoning literature on the subject includes an article by Prof. W.A. Schroeder appearing at 69 Georgetown Law Journal 1361 (1981) entitled Deterring Fourth Amendment Violations: Alternatives to the Exclusionary Rule. Prior to Mapp, Arizona did not apply the exclusionary rule. See State v. Pina, supra.