Stanley v. State

Moylan, J., delivered the opinion of the Court. Spinelli v. United States, 393 U. S. 410 , 89 S. Ct. 584 , 21 L.Ed.2d 637 (1969), purported “to explicate” Aguilar v. Texas, 378 U. S. 108 , 84 S. Ct. 1509 , 12 L.Ed.2d 723 (1964). Spinelli is not itself without some need of explication. The precise influence of Spinelli upon Aguilar and the murky relationship to both of Draper v. United States, 358 U. S. 307 , 79 S. Ct. 329 , 3 L.Ed.2d 327 (1959), govern our review of the conviction by a Baltimore County jury, Judge H. Kemp MacDaniel presiding, of the appellant, David Richard Stanley, for the possession of heroin.

The sufficiency of the incriminating evidence is not in dispute. When the appellant was arrested at 8:30 p.m. on July 3,1972, two glassine bags of heroin were found beneath the driver’s seat of the vehicle which he had been operating until the moment of arrest. Our decision hangs upon the validity of that search and seizure. The Baltimore County Police were operating without a warrant, upon ostensible probable cause to believe that the appellant was selling heroin from his automobile.

The probable cause ran to both the person and the vehicle. If the police did, indeed, have probable cause, the search ⁵¹⁰ and seizure in issue was reasonable upon either of two distinct exceptions to the warrant requirement. That postulated probable cause, in conjunction with what we deem to have been ample exigency, would have justified a warrantless search of the vehicle under the so-called “automobile exception.” Carroll v. United States, 267 U. S. 132 , 45 S. Ct. 280 , 69 L. Ed. 543 (1925); Chambers v. Maroney, 399 U. S. 42 , 90 S. Ct. 1975 , 26 L.Ed.2d 419 (1970); Coolidge v. New Hampshire, 403 U. S. 443 , 91 S. Ct. 2022 , 29 L.Ed.2d 564 (1971); Mobley v. State, 270 Md. 803 , 310 A. 2d 803 ; King and Mobley v. State, 16 Md. App. 546 , 298 A. 2d 446 ; Soles v. State, 16 Md. App. 656 , 299 A. 2d 502 ; Peterson v. State, 15 Md. App. 478 , 292 A. 2d 714 ; Bailey v. State, 16 Md. App. 83 , 294 A. 2d 123 ; Skinner v. State, 16 Md. App. 116 , 293 A. 2d 828 . That same postulated probable cause would, quite independently, have justified a warrant-less arrest of the appellant, Art. 27, Sect. 594B, and, the unities of time and place having been in our judgment adequately established, Chimel v. California, 395 U. S. 752 , 89 S. Ct. 2034 , 23 L.Ed.2d 685 (1969); Brown v. State, 15 Md. App. 584 , 292 A. 2d 762 , the search beneath the seat where the appellant had been seated when arrested scant seconds before, would have been a legitimate “search incident” to that arrest.

Peterson v. State, supra, at 15 Md. App. 481 -493; Howell v. State, 18 Md. App. 429 , 306 A. 2d 554 . Both State theories, it is therefore quite clear, depend upon the adequacy in the first instance of the probable cause. The probable cause consisted of minimal direct observations by the arresting officer coupled with significantly incriminating hearsay from an anonymous police informant. Our problem, upon our constitutionally mandated independent review, Ker v. California, 374 U. S. 23, 34 , 83 S. Ct. 1623 , 10 L.Ed.2d 726, 738 (1963), is, as was the problem of the trial judge upon the motion to suppress, to evaluate that hearsay — to determine whether it was an appropriately trustworthy predicate for the Fourth Amendment intrusion.

In that regard, it is established that the guidelines for the ⁵¹¹ evaluation of hearsay information in a probable cause setting are the same whether a magistrate is contemplating the issuance of a warrant or whether a trial judge is weighing the propriety of a policeman’s actions without a warrant. Wong Sun v. United States, 371 U. S. 471, 479-482 , 83 S. Ct. 407 , 9 L.Ed.2d 441, 450-452 (1963); Beck v. Ohio, 379 U. S. 89, 93-97 , 85 S. Ct. 223 , 13 L.Ed.2d 142, 146-148 (1964); McCray v. Illinois, 386 U. S. 300 , 87 S. Ct. 1056 , 18 L.Ed.2d 62 (1967); Spinelli, at 393 U. S. 417 , n. 5; Mobley v. State, supra; King and Mobley v. State, supra, at 16 Md. App. 554 -557; Schmidt v. State, 17 Md. App. 492 , 302 A. 2d 714 ; Thompson v. State, 16 Md. App. 560 , 298 A. 2d 458 ; Soles v. State, supra, at 16 Md. App. 660 -665; Bauckman v. State, 9 Md. App. 612 , 267 A. 2d 309 ; Green v. State, 8 Md. App. 352 , 259 A. 2d 829 . Cf. Taylor v. State, 238 Md. 424 , 209 A. 2d 595 .

In applying the strictures of Aguilar to a warrantless arrest based upon an informant’s hearsay, former Chief Judge Murphy said for this Court in Bolesta v. State, 9 Md. App. 408 , 264 A. 2d 878 , at 9 Md. App. 412 : “Where the arrest is initiated on hearsay information received from an informant, the State to establish its legality where challenged should sufficiently inform the trial judge of some of the underlying circumstances from which the informant concluded that a crime was being or had been committed by the person to be arrested, and some of the underlying circumstances from which the police concluded that the informant was credible or his information reliable. See Spinelli v. United States, 393 U. S. 410 , and Mullaney v. State, supra [ 5 Md. App. 248 ] at page 254.” In undertaking then the evaluation of the hearsay information furnished to the arresting officer by the informant at bar, we follow the procedure set out in Spinelli , at 393 U. S. 415 : “The informer’s report must first be measured against Aguilar’s, standards so that its probative value can be assessed.” ⁵¹² The “Veracity” Prong We will look first to the “veracity” prong of Aguilar’s “two-pronged test” to determine whether there was furnished sufficient “underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed . .., was ‘credible’ or his information ‘reliable’.” Aguilar , at 378 U. S. 114 . We are persuaded that the informant was “credible.” Detective Robert Oatman testified, at the suppression hearing outside the presence of the jury, as to the following knowledge about his informant: “Your Honor, on 6/4/72 the reliable informant was made reliable by myself and Detective Minnerly. I went to a certain location and met the informant.

At this time the subject was searched and found to be free of any narcotics and any money whatsoever. He was given a ten dollar bill and observed to walk into a home on Propeller Court in the Essex District, at which time he purchased a ten dollar amount of marihuana. He returned to the police unit where again he was searched and found to be free of the ten dollar bill given to him. He was also free of any narcotics.

At this time he turned over the suspected marihuana to the Crime Lab and it was found to be marihuana, a controlled dangerous substance.” On 6/15/72, again the same reliable informant, 077, supplied our Department and myself with information involving the arrest of two subjects and the confiscation of 43 pounds of marihuana. This case is pending in Baltimore City. On 6/28/72 the same reliable informant, 077, supplied myself with information that led to the arrest of six subjects and the confiscation of 68 pounds of marihuana.” This represents a highly commendable type of detail which enables a reviewing trial court to make a truly informed ⁵¹³ judgment as to the credibility of a source of information rather than be asked to ratify a policeman’s conclusion in that regard. It is, under the circumstances, superfluous even to consider the buttressing effect, under Spinel,hi, of certain independent police verifications.

A¡guilar’s “veracity” prong is already satisfied with flying colors, upon the basis of the internal description itself. The “Basis of Knowledge” Prong Such is not the case, however, with Aguilar’s “basis of knowledge” prong. The trial judge was not furnished “the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were.” Detective Oatman’s testimony in this regard was unenlightening: “[H]e stated at this time one, David Stanley, would be operating a 1964 yellow Chevrolet and he would have in his possession Cocaine and Heroin. The informant stated the Stanley subject would be in the Dundalk area near the pool hall between the hours of eight o’clock and 8:30.

At this time he would also be accompanied by another white male subject by the name of Walter Holak.” There was no direct indication that the informant spoke from personal knowledge — no assurance that he arrived at his conclusion on the basis of that which he had seen with his own eyes or heard with his own ears — no direct elimination of the possibility that he was a mere conduit for information from yet a third party if not, indeed, for information no “more substantial than a casual rumor circulating in the underworld.” Spinelli , at 393 U. S. 416 . The hearsay at bar was, therefore, initially hung up on Aguilar's “basis of knowledge” prong. The trial judge was not informed as to what the informant based his conclusion upon — as to how the informant came upon his information. “To permit the informant, no less than to permit the affiant, to offer an unsupported conclusion, would be to usurp the [judicial] function, which the Fourth Amendment forbids.” Dawson v. State, 14 Md. App. 18, 31 , 284 A. 2d 861 . ⁵¹⁴ We would ordinarily now proceed to a routine examination of the “basis of knowledge” prong under Spinelli’s augmentation to Aguilar’s analysis to see if the information coming from the informant was furnished in such detail — “self-verifying” detail — as to permit the reasonable inference that the informant spoke from firsthand knowledge. Spinelli , at 393 U. S. 416 -417; Soles v. State, supra, at 16 Md. App. 660 -665.

A Suggested Reinforcement and a Suggested Alternative The State, however, strenuously urges upon us that it has an alternative arrow (or two) in its constitutional quiver — a perplexingly undifferentiated reliance upon Spinelli and Draper , citing independent verification as a significant factor. We hold that reliance to be misplaced. There is, to be sure, however, an elusive quality to the general notion that makes it difficult to pinpoint precisely where it goes astray. The chameleon-like thesis of diffuse and non-particularized reliance has appeared before, both here and elsewhere.

The alarming frequency with which “fuzzy” law is being advocated (and sometimes judicially promulgated) in this Fourth Amendment area, merits that an effort at clarification at least be made. The testimony at bar on the issue of probable cause contained, in addition to the hearsay, a few direct observations of Detective Oatman made just before the arrest was consummated. Detective Oatman drove to Dundalk and set up an observation post across the street from the pool hall. His observations consisted of the following: 1) at approximately 8:20 a yellow Chevrolet drove up to the intersection of Baltimore Avenue and Dundalk Avenue, just across from the pool hall; 2) the appellant was behind the wheel; and 3) Walter Holak was a passenger.

On the basis of those observations, the State posits a general reliance upon the precedent of Draper as providing “a substantial basis for crediting the hearsay” and, alternatively, a specific reliance upon the “independent police verifications” — buttressing technique described in ⁵¹⁵ Spinelli Our examination and review of the State’s thesis will be, of necessity, on two separate planes. Our first responsibility is to try to dispel the insidious and recently growing myth that some diffuse “substantial basis” test — growing out of Draper and Jones v. United States, 362 U. S. 257 , 80 S. Ct. 725 , 4 L.Ed.2d 697 (1960), invigorated by the rhetoric of United States v. Ventresca, 380 U. S. 102 , 85 S. Ct. 741 , 13 L.Ed.2d 684 (1965), and sanctioned by United States v. Harris, 403 U. S. 573 , 91 S. Ct. 2075 , 29 L.Ed.2d 723 (1971) — is now abroad as a distinct and alternative hearsay trustworthiness test to the traditional analysis of Aguilar and Spinelli Hopefully having laid that ghost to rest, we will then measure the State’s thesis against the accepted standard of Aguilar and Spinelli “Substantial Basis”: Synonym or Alternative? Without critical analysis of the hearsay evaluation problem as such, Brinegar v. United States, 338 U. S. 160 , 69 S. Ct. 1302 , 93 L. Ed. 1879 , in 1949 accepted hearsay as a legitimate factor in determining whether a policeman had probable cause for the warrantless search of an automobile. A decade later, Draper , again not addressing itself significantly to a qualitative analysis of receivable hearsay, nevertheless treated hearsay as a legitimate factor in the amassing of probable cause for a warrantless arrest.

Jones , in 1960, was the first Supreme Court decision to deal with hearsay in a warrant application and was the first decision ever to face squarely the fundamental issue of whether hearsay should or should not be received in a probable cause setting. It ruled unequivocally that hearsay was not only appropriate to be received by a magistrate on the issue of probable cause but that it could be sufficient, standing alone, to establish such probable cause. Justice Frankfurter, writing for the Court, did not give it carte blanche, however; he cautioned that it could serve as the predicate for a warrant “so long as a substantial basis for crediting the hearsay is presented.” Jones, 362 U. S. at 269 . Jones did not undertake to spell out what “a substantial basis for crediting the hearsay” would be. ⁵¹⁶ That office fell, four years later, to Aguilar. 1 The so-called “two-pronged test,” whereunder “the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant . . . was ‘credible’ or his information ‘reliable’ ” was, indeed, the fleshing out of the earlier phrase “a substantial basis for crediting.” There was np conflict or tension between Aguilar and Jones.

Aguilar explicitly built upon the foundation of Jones . It analyzed the facts of Jones at great length, at 378 U. S. 114 -115, n. 5, and showed how the hearsay in Jones would have passed muster by the more fully articulated standards of Aguilar . In Jones , the informant related explicitly that he had “on many occasions . . . gone to said apartment and purchased narcotics drugs from the above mentioned persons and that the narcotics were secreated [sic] in the above mentioned places,” to wit, “either on their person, under a pillow, on a dresser or on a window ledge in said apartment.” Even anticipatorily, Jones met every demand of Aguilar’s “basis of knowledge” prong. The informant saw with his own eyes and heard with his own ears.

Similarly, Jones satisfied Aguilar’s “veracity” prong. The affiant recited that his “source of information” had “given information to the undersigned on previous occasions and which was correct.” The affiant pointed out further, on the issue of “veracity,” how “other sources” had given similar information to both the affiant and to other officers of the Narcotics Squad. Most significantly, in terms of independent verification, the affiant was personally familiar with both suspects and recited that “Both have admitted to the use of narcotic drugs' and display needle mark's as ⁵¹⁷ evidence of same.” A careful reading of Jones simply will not support the proposition that “a substantial basis for crediting the hearsay” under Jones means anything different from or less than the “two-pronged test” of Aguilar . The same is true of Draper .

Even if one could accept the dubious notion that an earlier and more primitive case could ever overrule later and more fully developed cases, Draper simply would not erode Aguilar-Spinelli but would pass muster according to them. The informant in Draper — “one Hereford” — was not even anonymous; he was named. It was, furthermore, recited about him that he “had been engaged as a ‘special employee’ of the Bureau of Narcotics at Denver for about six months, and from time to time gave information to Marsh [the affiant] regarding violations of the narcotic laws, for which Hereford was paid small sums of money, and that Marsh had always found the information given by Hereford to be accurate and reliable.” Draper , at 358 U. S. 309 . In addition, four of the five details passed on to the affiant by Hereford were independently verified by direct police observations.

Under the circumstances, his “veracity” was amply established by the most rigorous Aguilar-Spinelli testing. As to Hereford’s “basis of knowledge,” he did not, to be sure, explicitly establish “how he came by his information.” The teaching of Spinelli , however, using Draper as its illustrative “benchmark,” is that where the information has been furnished by the informant in sufficient detail — what Spinelli refers to as “self-verifying detail” — firsthand knowledge may be implicit. 2 Thus, Draper also is an unsound base for the ⁵¹⁸ proposition that the Supreme Court will accept hearsay in a probable cause setting according to some vague alternative standard different from and less than the accepted Aguilar-Spinelli one. 3 Nor may the proponents of some looser, alternative standard take more than momentary comfort from Ventresca , decided one year after Aguilar . Ignoring its facts and, therefore, its solid holding, they grasp (very selectively) at its rhetoric that courts “should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner.” Ventresca cited Aguilar with approval and analyzed its own facts to demonstrate its solid compliance with Aguilar . Indeed, the full paragraph from which the “don’t be hypertechnical” language is so frequently pulled affirms that the oft-quoted directive comes into play only after Aguilar’s standards have first been met: “This is not to say that probable cause can be made out by affidavits which are purely conclusory, stating only the affiant’s or an informer’s belief that probable cause exists mthout detailing any of the ‘underlying circumstances’ upon which that belief is based... .

Recital of some of the underlying circumstances in the. affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. However, where these circumstances are detailed, where reason for ⁵¹⁹ crediting the source of the information is given, and when a magistrate has found probable cause, the court should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.. . .” 380 U. S. 108 -109. (Emphasis supplied.) The hearsay information in Ventresca passed traditional muster. 4 Even Harris pointed up the fundamental compatibility of Aguilar and Ventresca .

After quoting at length from Ventresca’s urgings to be “practical and not abstract” and its inveighings against the “technical requirements of elaborate specificity” and “the grudging or negative attitude by reviewing courts,” Harris noted: “Aguilar in no way departed from those sound principles.” The last redoubt of the “looser alternative” advocates is Harris , but again the case won’t hold the weight of the argument based upon it. Even if one were to accept the mere plurality opinions of four justices, three justices and four justices, respectively, for the three stated principles of Harris as the “law of the land,” 5 no damage is done to ⁵²⁰ Aguilar and the most minor adjustment is made to Spinelli . In the first place, the informant in Harris explicitly spoke from firsthand knowledge. The . informant personally purchased the untaxed whiskey from the suspect on the suspect premises and made a significant number of firsthand observations.

The plurality, concurring and idissenting opinions unanimously agreed that Aguilar’s “basis of knowledge” prong was preeminently satisfied. That was simply no issue in the case. Nor was there any disagreement with the fundamental requirement that the other — the “veracity” — prong must also and independently be satisfied. Even the plurality opinion agreed that “a bare statement by an affiant that he believed the informant to be truthful would not, in itself, provide a factual basis for crediting the report of an unnamed informant.” 403 U. S. at 579.

The informant in Harris had no “track record” of demonstrated past “veracity”. In issue were the alternative means by which his “veracity” might be established. The debate in Harris was not over the fundamental question of whether an informant’s “veracity” must be established, but only over the subsidiary question of the means by which it could be shown. The Harris plurality set out to bolster the first-time informant’s “veracity” by showing two items of independent corroboration and by showing that the “tip” was a declaration against penal interest. 6 The only peripheral collision between Harris and Spinelli was over the legitimacy of considering the suspect’s reputation with the ⁵²¹ police as one of the corroborative factors. 7 The other corroborative item — that a constable “located a sizeable stash of illicit whiskey in an abandoned house under Harris’ control” at some time within the past four years — would have been credible under Spinelli , with only its weight in issue, fluctuating presumably with the freshness or staleness of that earlier encounter.

The quarrel between the Burger plurality opinion and the Harlan dissent over declarations against penal interest was over a point not considered by or involved in either Aguilar or Spinelli. 8 ⁵²² Thus, even though Harris may have used the words “substantial basis,” we read those words — dealing as they do, in the full context of the case, with two corroborative items and a declaration against penal interest as providing “a substantial basis for crediting” the informant’s report — not as devising some new and alternative test to Aguilar-Spinelli but simply as describing an operating procedure within the framework of Aguilar 9 and Spinelli. 10 The cases themselves are reconciled and rumors of their estrangement, ill-founded. There is simply no “substantial-basis-for-crediting” or “totality-of-circumstances” alternative test. 11 Those who posit a looser approach offer not an alternative analysis but only a flight from analysis. One standard still prevails for the evaluation of hearsay information in a probable cause setting. 12 We will now proceed to an examination of the State’s argument against that traditional standard. ⁵²³ The Distinct Therapeutic Devices of Spinelli The State urges that the independent police observations bolster, under Spinelli, the initially inadequate satisfaction of Aguilar’s “basis of knowledge” prong. Anything less than a scrutinous reading of Spinelli encourages such a position.

The confusion and the misreading are, moreover, understandable. A word is in order as to where and why analysis so frequently goes awry. The “two-pronged test” of Aguilar put the State to the task of answering satisfactorily two very separate questions for two very separate purposes. Spinelli devised (or at least enunciated) substitute means for satisfying those demands where the direct initial efforts had proved unsuccessful.

Aguilar listed two distinct structural flaws that might inhere in hearsay-based probable cause; Spinelli designed two distinct buttressing techniques to shore up the hearsay against those flaws. Chaotically, however, the national case law is now replete with the undifferentiated application of either Spinelli remedy to either Aguilar defect. The analysis has not been clean. 13 With two very differing ailments — faulty narration and faulty perception — in our pathology, and two very differing remedies — truth serum and bifocal lenses — in our pharmacopoeia, we need above all to be discriminating. The State has, in our judgment, indiscriminately prescribed “Cure A” for “Disease B” — truth serum for an informant whose integrity is in good health but who desperately needs bifocal lenses.

Impediments to Clean Analysis: Mistaken Identity Based on Surface Resemblance As the two cases — Aguilar and Spinelli — interact upon one another, the confusion stems from both ends. At the prescribing end, the root of difficulty is that the functionally distinct remedies of Spinelli involve, largely by coincidence, two surface similarities: both speak of “detail” (although one ⁵²⁴ speaks of independent police observations verifying a number of “details,” while the other speaks of the story told by the informant himself being “in great detail,” to wit, “self-verifying detail”); additionally, both refer to Draper as an illustrative “benchmark” (they refer, of course, to different aspects of Draper : one, to the observations made by the FBI and the other, to the story told by the informant in the first instance). Because of the surface resemblances, a less than careful reading of Spinelli results in a hopeless intermingling of these remedies and makes confusion inevitable. Impediments to Clean Analysis: The Unreliability of “Reliability" The source of confusion at the diagnostic end, on the other hand, is not inherent in the Aguilar opinion itself but results from the careless linguistic habits of the opinions which refer to Aguilar — from what Justice Frankfurter referred to as “the use of language not with fastidious precision.” 14 The fault lies in the indiscriminate overuse of the adjective “reliable” and its variant forms.

Aguilar was concerned with the ultimate trustworthiness of hearsay information. All hearsay was not to be rejected out of hand; neither was all hearsay to be uncritically accepted; some guidelines had to be devised to separate the wheat from the chaff. Aguilar sought first to ascertain the actual source of the incriminating information. The “basis of knowledge” prong was designed to locate that source and to examine the validity of his conclusion.

It was not concerned with the integrity of the informant (that test would come later via the other prong) but only with his ratiocinative process — not with the honesty of his narration but with the nature of his perception: (How did he reach his conclusion? Did he see something or hear something firsthand or did he merely pass on a story or rumor from someone else? Or did he simply jump to a wrong conclusion on the basis of ⁵²⁵ inadequate or ambiguous observations?) The simple thrust of the “basis of knowledge” prong was that the informant must not pass on his conclusion, let alone the conclusion of someone else, but must furnish the raw data of his senses, so that the reviewing judge could draw his own conclusion from that data. Once having located the original source — the person who saw, heard or smelled something firsthand — then and only then did Aguilar look to the “veracity” of that source.

As a substitute for the classic trustworthiness device of the oath, it sought some alternative guarantee that the declarant spoke truthfully. It sought “some of the underlying circumstances from which the officer concluded that his informant was ‘credible,’ or his information ‘reliable’.” The “veracity” prong, in precise terms, has two disjunctive spurs, seeking either a) the inherent “credibility” of the person himself or b) some other circumstances reasonably assuring the “reliability” 15 of the information on the particular occasion of its being furnished. In outline form, Aguilar was concerned with: The Trustworthiness of Hearsay I. The Basis of Knowledge Prong II. The Veracity Prong A. The Credibility Spur B. The Reliability Spur That essentially simple outline, which could be an instrument of precise analysis, has been heedlessly blurred and blunted.

The case law is strewn with the random employment of the word “reliability” to connote the overall subject of the outline itself and every one of its constituent parts. 16 There is frequently no consistency in usage within a ⁵²⁶ single opinion, let alone between opinions and between courts. As a result, to use one opinion’s “reliability” analysis as authority to solve another case’s “reliability” problem is all too often to compare apples with oranges. We should never use a portmanteau word unless we are careful to designate which of its various connotations we have in mind on a particular occasion. When the case law speaks of “reliability,” does it refer to: RELIABILITY SUB 1 (“Is the hearsay information as a whole ultimately ‘reliable’ and, therefore, acceptable?”); RELIABILITY SUB 2 (“Was the information gathered in a ‘reliable’ way?”); RELIABILITY SUB 3 (“Does the hearsay stem from a ‘reliable’ source?”); RELIABILITY SUB 4 (“Has past performance shown the informant to be a ‘reliable’ person?”); RELIABILITY SUB 5 (“Do the circumstances under which the information was furnished otherwise guarantee it to be ‘reliable’?”).

The outline has deteriorated into: The Reliability ! of the Hearsay I. The Reliability 2 Prong II. VaeReliability 3,Prong A. The Reliability 4 Spur B. The Reliability 5 Spur When a word degenerates into a universal adjective, it loses all utility as a tool for discriminating thought. 17 Although as a word of art, “reliability” should refer exclusively to Item II B in the outline, it is thoughtlessly used as a careless synonym for “trustworthiness,” “basis of knowledge,” “veracity,” and “credibility” with the inevitable consequences. “Reliable” has become, in a word, unreliable. 18 ⁵²⁷ Misreading a Disjunctive Minor Theme for a Conjunctive Major Theme A second and only partially related pitfall for those who read Aguilar haphazardly is an intermingling of two dualities — 1) the major and conjunctive duality requiring that both the “basis of knowledge” prong and the “veracity” prong be satisfied, and 2) the minor and disjunctive duality describing how, the “veracity” prong may be satisfied by showing either the informant to be “credible” or his information to be otherwise “reliable.” The