rigidly followed "two-pronged test" of Aguilar-Spinelli has encouraged an excessively technical analysis of probable cause, the Supreme Court has abandoned its application and in its place reaffirmed the "totality of the circumstances" analysis, with an eye toward a more flexible and easily applied standard. Id. at 548.
Under the "totality of the circumstances" formulation of the probable cause standard, the informant's veracity, reliability and basis of knowledge all remain highly relevant determinations. They, however, are not "entirely separate and independent requirements to be rigidly exacted in every case . . .," but "should be understood as closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is 'probable cause'. . . ." Id. at 543.
Here the defendants' primary contention is that the government's informant in this case was not reliable. They assert that prior to the date of their arrest, the informant had given the Postal Inspector several pieces of information, all of which had proven to be false.
While accurate information obtained from an informant is highly desirable, the Fourth Amendment has "never required that informants used by the police be infallible. . . ." Id. at 553 n. 14. Probable cause does not demand rigid certainty. For purposes of assessing the informant's reliability, under Gates this Court is not required to dissect and analyze isolated instances of inaccuracies, but must weigh the informant's statements against the totality of the circumstances to determine whether there exists a probability or substantial chance of criminal activity.
As earlier indicated, the informant had stated that the defendant Salany would be trafficking in stolen checks on April 1, 1983. In fact, surveillance of Salany on that date failed to uncover any illegal activity. That Salany did not deal in stolen checks in April, as predicted, is of little consequence in this case. For one thing, future actions of third parties are ordinarily difficult to predict. Moreover, we need not pause to evaluate the informant's erroneous tip in a vacuum because Gates requires a "balanced assessment of all the various indicia of reliability . . . attending an informant's tip. . . ." Id. at 545.
It has been long recognized that in making a warrantless arrest an officer "may rely upon information received through an informant, rather than upon his direct observations, so long as the informant's statement is reasonably corroborated by other matters within the officer's knowledge." Jones v. United States, 362 U.S. 257, 269, 4 L. Ed. 2d 697, 80 S. Ct. 725 (1960); Draper v. United States, 358 U.S. 307, 3 L. Ed. 2d 327, 79 S. Ct. 329 (1959). In Gates, the Supreme Court acknowledged the probative value of corroboration of details of an informant's tip by independent police work in applying the totality of the circumstances analysis. Illinois v. Gates, 76 L. Ed. 2d at 550.
The salient facts in this case occurred on May 3, 1983. It is important to note that at 1:30 p.m. on May 3, 1983, after the informant had picked the defendants up in her vehicle, she informed the Postal Inspectors, via telephone, that she and the defendants were going to the Wilkshire Poultry Farm area to steal checks. After this information was relayed to the Postal Inspectors who were keeping the field surveillance, the Corletto vehicle was spotted in the Wilkshire Poultry Farm area, parked near roadside residential mailboxes. Of course, at this point, all that had been corroborated by the Postal Inspectors was entirely innocent conduct.
Notably, however, in March the informant had indicated that Salany had called her and attempted to secure transportation to negotiate stolen checks. This information was corroborated by an independent source. In April, although Salany did not deal in stolen checks as predicted, the informant and Salany discussed various forms of criminal activity relating to the theft and negotiation of checks. This information was intercepted by the Postal Inspectors through electronic surveillance. Thus, by May 3, 1983, like in the cases of Jones v. United States, 362 U.S. at 269-70 and Ker v. California, 374 U.S. at 36, seemingly innocent activity became suspicious in light of the informant's initial tip and the Postal Inspectors earlier independent investigation. At that juncture, the Postal Inspectors were not obliged to dismiss lightly knowledge gained from their earlier investigation of Salany in March and April. Nor is it reasonable for us to do so now.
Later, at 2:15 p.m. on May 3, 1983, the informant telephoned the Postal Inspectors and advised them that "Salany had stolen a check and that they were going to the Mellon Bank in Turtle Creek to cash it". In addition, she advised the Inspectors that the check was drawn to "Kenneth Gaston, that it had come from McKee Road, and that it was a green, government check." Importantly, the informant's tip contained a range of details relating not just to facts and conditions existing at the time of the tip, but to future actions of the defendants as well. Inherent in the informant's statement was a declaration that the events were personally observed. There is nothing to suggest a reckless or prevaricating tale. More importantly, this case does not involve an anonymous tip, but an informant known to the Inspectors and under their constant surveillance. Thus, "even if we entertain some doubts as to the informant's motive [or reliability, her] explicit and detailed description of the alleged wrongdoing along with a statement that the event was observed first-hand entitles [her] tip to greater weight than might otherwise be the case." Illinois v. Gates, 76 L. Ed. 2d at 545.
Prior to making the arrest, the Postal Inspectors personally verified every facet of the information given them by the informant, except whether the Gaston check had in fact been removed from the mailbox. Two individuals, one known to be the defendant Salany and the other identified by the informant as Bronowski, were attempting to negotiate a Treasury check. The check was drawn to the order of Kenneth Gaston at McKee Road, and purported to be endorsed by K. Gaston and counter-signed by Robert Bronowski. Surely, with these details being personally verified, the Inspectors had reasonable grounds to believe that the remaining unverified information -- that the check had been removed from Gaston's mailbox -- was likewise true. Accord Draper v. United States, 358 U.S. at 313.
For these reasons, this Court holds that under the totality of the circumstances the arresting officer could have reasonably concluded that a probability or substantial chance of criminal activity existed. Nothing more is required. The defendants' motions to suppress must therefore be denied.
AND NOW, to wit, this 28th day of November, 1983, after hearing, argument, consideration of the briefs and for the reasons set forth in the accompanying opinion, IT IS ORDERED that the Motions to Suppress of the Defendants, Robert Michael Bronowski and Thomas Theodore Salany, be and the same are hereby DENIED.
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