West v. State

RAYMOND G. THIEME, Jr., Judge, Retired, Specially Assigned. We are once again called upon to weigh, along that often enigmatic continuum we refer to as probable cause, the objectives of crime prevention and law enforcement against the individual protections provided to us through the guarantees of the Fourth Amendment. A jury for the Circuit Court for Baltimore City convicted appellant Tyrone Antonio West of possession with intent to distribute cocaine, possession of cocaine, and possession of marijuana. West was sentenced to twenty years’ imprisonment, the first ten years without parole, and to a concurrent term of one year.

West appeals his convictions and presents the following questions for our review: ³¹⁸ 1. Did the trial court err in denying the motion to suppress the items seized from appellant’s apartment? 2. Was the evidence sufficient to sustain appellant’s convictions? Finding no reversible error, we affirm.

Facts At approximately 2:30 p.m. on September 3, 1998, police officers executed at 4416 Marble Hall Road, Apartment 340, in Baltimore City, a search warrant that had been issued on August 21, 1998. As the officers entered the apartment, appellant and another suspect were spotted exiting the apartment through a bathroom window located at the rear of the apartment. Several officers pursued appellant, eventually apprehending him several blocks away, while other officers involved in the execution of the search warrant searched the apartment and discovered the following: a plastic bag containing one hundred vials of a “white rock substance” in a pair of trousers in the bedroom closet; four bags of marijuana in a pair of sneakers above the bed’s headboard in the bedroom; a plastic bag containing sixteen vials of a “white rock substance” in the bathroom toilet; two hand-rolled cigarettes containing marijuana on the dining room table; appellant’s Identification Card; and a gas and electric bill in appellant’s name. Chemical analysis determined that the “white rock substance[s]” contained a cocaine base.

Discussion I. Motion to Suppress Appellant contends that the trial court erred by denying his Motion to Suppress the items seized. He argues that “[t]he information supplied in the affidavit to support the issuance of the search warrant was not sufficient to establish probable cause.” We begin our analysis by turning to the affidavit that was utilized in obtaining the warrant in issue. It provided: During the last week of July your affiant received numerous complaints from several different concerned citizens ³¹⁹ about the narcotic activity going on inside of 4416 Marble Hall Road apt #340 by an individual known as Tyrone Antonio West. Your affiant initiated an investigation.

Your affiant received several complaints that there was heavy foot traffic into and out of 4416 Marble Hall Road, apt # 340 and that this type of foot traffic is going on during the early hours of the morning between 1:00 a.m.—4:00 a.m. Additional information was received from a different concerned citizen that an individual known as Tyrone West was selling cocaine and crack from his apartment at 4416 Marble Hall Road # 340. During this same time period there were additional compaints [sic] received that an individual known as Tyrone West, who goes by the street name of “James” who lives at 4416 Marble Hall Road, apt # 340 was selling narcotics from his apartment and his vehicle. The complaint also revealed that Tyrone West drives a grey [Nissan, Maryland registration ETA-931.

On 30 July 98 Officer Jon Foote interviewed a concerned citizen in reference to Tyrone West. The information obtained from this individual was that Tyrone West was dealing narcotics from his apartment at 4416 Marble Hall Road apartment # 340 and from his 1985 Nissan, Maryland registration # ETA931. Furthermore, Tyrone West was known to carry and keep a gun in his residence and vehicle. This information was already received by your affiant and was consistent with other numerous complaints....

Additionally, the affidavit contained appellant’s arrest record, which indicated that he had been arrested on ten separate occasions between July of 1987 and May of 1998. His last two arrests had been for possession of marijuana in August of 1997 and attempted murder in May of 1998. We turn to the trial court’s findings at the suppression hearing: The Court has looked on the face of the affidavit and sees that there are at least two officers involved at two different times in obtaining information. There is a reference at the beginning of the affidavit to the last week of July.

The ³²⁰ primary affiant, Officer Ahern[,] refers to numerous complaints from several different concerned citizens about narcotic activity. They refer to a specific address and a specific apartment and complain that there is information from different concerned citizens, unnamed that an individual known as Tyrone West was selling cocaine and crack from his apartment at 4416 Marble Hall Road. They refer to a street name or his alleged street name and a vehicle. A second officer interviews a concerned citizen on July 30th, again unnamed and who is reported to have said that Tyrone West was dealing narcotics.

Furthermore, that Tyrone West was known to carry a gun and that this information was consistent with other numerous complaints. The officers corroborated the ownership of the Nissan, corroborate [sic] the Marble Hall Apartment rental complex that Mr. West lived at these specific premises. They checked with the gas and electric company and they learned that there was an existing arrest warrant for assault and hand gun violations as well as according to the information that they corroborated, a previous connection with Mr. West and guns and drugs based on his record. And on the basis of this information, the officers affirm that there was probable cause to believe that there was evidence of a commission of a crime in the application being at these premises....

The Court finds that looking under the totality of the circumstances here and a practical standpoint of what the citizens have said, of what they have identified, the information that has been corroborated as to the Defendant of living, his vehicle, his previous experience with narcotic [sic] in this Court was sufficient under the totality of the circumstances to warrant the issue of the warrant----The Court further finds after reviewing the case of Miner v. State that even had the search warrant not been sufficient as the Court has found, the officer[’]s objective would have had a reasonable objective basis to execute the warrant and so for those reasons, the Court denies the [motion to suppress]. ³²¹ The Fourth Amendment to the Constitution of the United States provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Its counterpart on the state level, Article 26 of the Maryland Declaration of Rights, also requires that no search warrant shall issue without probable cause. Probable cause means a “fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983); Birchead v. State, 317 Md. 691, 700 , 566 A.2d 488 (1989). The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence.

Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers.... The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.

Johnson v. United States, 333 U.S. 10, 13-14 , 68 S.Ct. 367 , 92 L.Ed. 436 (1948). ³²² Standard of Review Our first issue concerns what standard of review should be employed by us to scrutinize the ruling of the suppression hearing judge. The authoritative word on that subject is found in Gates, 462 U.S. 213 , 103 S.Ct. 2317 . Reviewing courts (at the suppression hearing level or at the appellate level) do not undertake de novo review of the magistrate’s probable cause determination but, rather, pay “great deference” to that determination. Id. at 236 , 103 S.Ct. 2317 ; Ramia v. State, 57 Md.App. 654, 655 , 471 A.2d 1064 (1984).

Reflecting a preference for the warrant process, the traditional standard for review of an issuing magistrate’s probable cause determination has been that, so long as the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more. Gates, 462 U.S. at 236 , 103 S.Ct. 2317 . In determining whether probable cause exists, the issuing judge or magistrate is confined to the averments contained within the four corners of the search warrant application. Birchead, 317 Md. at 700 , 566 A.2d 488 ; Valdez v. State, 300 Md. 160, 168 , 476 A.2d 1162 (1984).

Review of the magistrate’s decision to issue a search warrant is limited to whether there was a substantial basis for concluding that the evidence sought would be discovered in the place described in the application and its affidavit. Birchead, 317 Md. at 701 , 566 A.2d 488 ; Potts v. State, 300 Md. 567, 571, 575 , 479 A.2d 1335 (1984). “A grudging or negative attitude by reviewing courts toward warrants is inconsistent with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant; courts should not invalidate warrants by interpreting affidavits in a hypertechnical, rather than a commonsense, manner.” Gates, 462 U.S. at 236 , 103 S.Ct. 2317 (citations and internal quotation marks omitted). In State v. Amerman, 84 Md.App. 461, 470 , 581 A.2d 19 (1990), we referred to the Supreme Court’s decision in United States v. Ventresca, 380 U.S. 102 , 85 S.Ct. 741 , 13 L.Ed.2d 684 ³²³ (1965), and pointed out that the Supreme Court had admonished reviewing courts to “call the close plays” in favor of the magistrate’s decision to issue the warrant. We quoted the Supreme Court’s language in Ventrasen: 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.

Id. (quoting Ventresca, 380 U.S. at 109 , 85 S.Ct. 741 ). Although the Supreme Court has determined that more than conclusory statements are required in order for an affidavit to be sufficient ground for probable cause, it has stated that a flexible, common-sense standard best serves the purposes of the Fourth Amendment: Our earlier cases illustrate the limits beyond which a magistrate may not venture in issuing a warrant. A sworn statement of an affiant that “he has cause to suspect and does believe” that liquor illegally brought into the United States is located on certain premises will not do.

Nathanson v. United States, 290 U.S. 41 [ 54 S.Ct. 11 , 78 L.Ed. 159 ] (1933). An affidavit must provide the magistrate with a substantial basis for determining the existence of probable cause, and the wholly conclusory statement at issue in Nathanson failed to meet this requirement. An officer’s statement that “[affiants] have received reliable information from a credible person and do believe” that heroin is stored in a home, is likewise inadequate. Aguilar v. Texas, 378 U.S. 108 [ 84 S.Ct. 1509 , 12 L.Ed.2d 723 ] (1964).

As in Nathanson , this is a mere conclusory statement that gives the magistrate virtually no basis at all for making a judgment regarding probable cause. Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others. In order to ensure that such an abdication of the magistrate’s duty does not occur, courts must continue to conscientiously review the sufficiency of affidavits on which warrants are issued. ³²⁴ But when we move beyond the “bare bones” affidavits present in cases such as Nathanson and Aguilar , this area simply does not lend itself to a prescribed set of rules.... Instead, [a] flexible, common-sense standard better serves the purposes of the Fourth Amendment’s probable-cause requirement.

Gates, 462 U.S. at 239 , 103 S.Ct. 2317 . The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same—and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.

United States v. Cortez, 449 U.S. 411, 418 , 101 S.Ct. 690 , 66 L.Ed.2d 621 (1981). In Massachusetts v. Upton, 466 U.S. 727 , 104 S.Ct. 2085 , 80 L.Ed.2d 721 (1984), the Supreme Court upbraided the Supreme Judicial Court of Massachusetts for having been too demanding in its scrutiny of the magistrate’s decision. It reiterated what Gates had said about the appropriate standard of review, making it very clear that finding a substantial basis for what the magistrate did is something less than finding the existence of probable cause: “We also emphasized that the task of a reviewing court is not to conduct a de novo determination of probable cause, but only to determine whether there is substantial evidence in the record supporting the magistrate’s decision to issue the warrant.” Upton, 466 U.S. at 728 , 104 S.Ct. 2085 . The Upton Court reiterated the significant conceptual difference between the two standards: The Supreme Judicial Court also erred in failing to grant any deference to the decision of the Magistrate to issue a warrant.

Instead of merely deciding whether the evidence viewed as a whole provided a “substantial basis” for the Magistrate’s finding of probable cause, the court conducted ³²⁵ a de novo probable-cause determination. We rejected just such after-the-fact, de novo scrutiny in Gates. Upton, 466 U.S. at 732-33 , 104 S.Ct. 2085 . In Potts, 300 Md. at 572 , 479 A.2d 1335 , the Court of Appeals, speaking through Chief Judge Robert C. Murphy, explicitly adopted the Supreme Court’s holdings as to the appropriate standard of review. “After-the-fact judicial scrutiny of the affidavit should not take the form of de novo review.” Id.

It concluded: Under the totality of the circumstances analysis explicated by Gates and Upton , and giving the magistrate’s determination the great deference mandated by those cases, we hold that there was a substantial basis upon which the magistrate could have found that a search of Potts’ residence would uncover illegal narcotics; hence, the issuance of the warrant did not violate the Fourth Amendment. Id. at 575, 479 A.2d 1335 . In Birchead, 317 Md. at 701 , 566 A.2d 488 , the Court of Appeals, again speaking through Chief Judge Murphy, emphatically reconfirmed this deferential standard for reviewing a magistrate’s probable cause determination: Our review of the judge’s decision to issue the search warrants is limited to whether there was a substantial basis for concluding that the evidence sought would be discovered in the place described in the application for the warrant. Moreover, we generally pay great deference to a magistrate’s determination of probable cause.

Id. (citation omitted). See also Malcolm v. State, 314 Md. 221, 229 , 550 A.2d 670 (1988) (“[T]he defendant must overcome the presumption of regularity attending a search warrant.”); Thompson v. State, 62 Md.App. 190, 206-07 , 488 A.2d 995 (1985). The “substantial basis” standard is less demanding than even the familiar “clearly erroneous” standard by which appellate courts review judicial fact-finding in a trial setting.

Amerman, 84 Md.App. at 472 , 581 A.2d 19 ; see Upton, 466 U.S. at 733 , 104 S.Ct. 2085 (“A deferential standard of review is appropriate to further the Fourth Amendment’s strong ³²⁶ preference for searches conducted pursuant to a warrant.”); Potts, 300 Md. at 575 , 479 A.2d 1335 (noting that a magistrate’s determination of probable cause should be accorded great judicial deference); 300 Md. at 169-70, 476 A.2d 1162 (noting that Maryland will not construe warrants in a hyper-technical manner, but instead give them the benefit of the doubt). We remain mindful of our language in Ramia pertaining to the appropriate standard of review: Illinois v. Gates [, supra,] leaves no room for doubt that reviewing courts, at the appellate level or at the suppression hearing level, have no business second-guessing the probable cause determinations of warrant-issuing magistrates by way of de novo determinations of their own. Unless the finding of the magistrate in this regard is “clearly erroneous” or represents “a clear abuse of discretion,” it is unassailable. Ramia, 57 Md.App. at 660 , 471 A.2d 1064 .

Equally mindful are we of our wording on this issue in Amerman 1 : The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is ³²⁷ simply to ensure that the magistrate had a “substantial basis for ... concluding]” that probable cause existed. Amerman, 84 Md.App. at 469 , 581 A.2d 19 (quoting Gates, 462 U.S. at 238-39 , 103 S.Ct. 2317 ) (emphasis added). Using then this deferential standard of review, we turn to the case sub judice.

Appellant points out several grounds in support of his position that the affidavit was insufficient to establish probable cause to support the issuance of the search warrant. These contentions, which we will discuss in turn, are: 1) the affidavit failed to establish the veracity and/or the basis of knowledge of the concerned citizens identified in the affidavit; 2) there was a lack of corroboration by police of the information that was provided by the concerned citizens; 3) the “staleness” of the information established within the affidavit; and 4) appellant’s arrest record, contained within the affidavit, is remote and insufficient to contribute to probable cause. Although we reject appellant’s contentions regarding staleness and the remoteness of his arrest record, we are obliged to agree with his claims regarding the veracity and/or basis of knowledge of the informants and the insufficient police corroboration of their information. We shall discuss each of these points in turn, ultimately holding that there was not a substantial basis for the issuing judge to conclude that probable cause existed, but that the issuance of the warrant withstands scrutiny under the Leon good-faith exception to the probable cause requirement, as established by the Supreme Court.

United States v. Leon, 468 U.S. 897 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984); Massachusetts v. Sheppard, 468 U.S. 981 , 104 S.Ct. 3424 , 82 L.Ed.2d 737 (1984); Connelly v. State, 322 Md. 719 , 589 A.2d 958 (1991). The informants’ veracity and basis of their knowledge, corroboration by police of information provided by such informants, and whether or not the information contained within the affidavit is “stale” are all factors that determine whether probable cause exists for the issuance of a warrant. While remaining mindful that each factor is but a piece of the ³²⁸ “probable cause puzzle,” we will nonetheless address these issues in turn, for the sake of clarity. Informants’ veracity and basis of knowledge Appellant contends that the affidavit was insufficient to establish probable cause because it failed to establish the veracity and/or the basis of knowledge of the concerned citizens identified in the affidavit.

In the past, the test for probable cause based on an informant’s tip consisted of the two-pronged analysis first enunciated in Aguilar v. Texas, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 (1964). There, the Supreme Court required that the police establish 1) the basis of the informant’s knowledge and 2) the veracity of the tip, i.e., the credibility of the informant or the reliability of the informant’s information. Id. at 114 , 84 S.Ct. 1509 . The Supreme Court also had emphasized that an affidavit must either indicate the manner in which the information was gathered or contain a tip which describes “the accused’s criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.” Spinelli v. United States, 393 U.S. 410, 416 , 89 S.Ct. 584 , 21 L.Ed.2d 637 (1969).

Occasionally in the law, as elsewhere, there is a house cleaning. Old concepts are discarded or dusted off and refurbished, and space is vacated in order to make room for new theories. Such was the case when it became apparent that the structured nature of these guidelines often undermined law enforcement to an extent greater than the Supreme Court believed necessary. In Gates , Justice Rehnquist, writing for the Court, expressed concern over the difficulty faced by non-lawyer magistrates in applying the complex set of analytical and evidentiary rules that had developed under the AguilarSpinelli test.

Reasoning that a less rigid common sense analysis would help alleviate this problem, the Supreme Court abandoned these strict guidelines in favor of a “totality of the ³²⁹ circumstances” approach. Gates, 462 U.S. at 238 , 103 S.Ct. 2317 . See Winters v. State, 301 Md. 214, 227 , 482 A.2d 886 (1984) (Gates replaced the rigid technical analysis of the reliability of informant data in Aguilar and Spinelli with a more flexible approach). This totality-of-the-circumstances approach is far more consistent with our prior treatment of probable cause than is any rigid demand that specific “tests” be satisfied by every informant’s tip.

Perhaps the central teaching of our decisions bearing on the probable-cause standard is that it is a “practical, nontechnical conception.” Brinegar v. United States, 338 U.S. 160, 176 [ 69 S.Ct. 1302 , 93 L.Ed. 1879 ] (1949). “In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Id. at 175 [ 69 S.Ct. 1302 ]. Gates, 462 U.S. at 230-31 , 103 S.Ct. 2317 (footnote omitted). Moreover, the “two-pronged test” directs analysis into two largely independent channels—the informant’s “veracity” or “reliability” and his “basis of knowledge.” There are persuasive arguments against according these two elements such independent status.

Instead, they are better understood as relevant considerations in the totality-of-the-circumstances analysis that traditionally has guided probable-cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability. Id. at 233 , 103 S.Ct. 2317 (footnotes and citations omitted). The approach set forth by Gates is undoubtedly a more flexible and less demanding one than had been required earlier pursuant to Aguilar and Spinelli . Even under this more lenient test, we cannot find that the information contained within the affidavit sufficiently indicated the informants’ veracity or the basis of their knowledge.

Cognizant that, pursuant to the Supreme Court’s decision in Gates , it is ³³⁰ no longer necessary to establish all of these points independently of one another, we nonetheless remain mindful of our language in Trussell v. State, 67 Md.App. 23, 29-30 , 506 A.2d 255 (1986): A word about Aguilar and Spinelli is appropriate. As valuable case law, they are not dead. They have simply been reduced from “constitutionally binding” stature to “helpful guidelines” stature. Illinois v. Gates determined that it was inappropriate, on the probable cause issue, to insist that the rigorous standards mandated by Aguilar and Spinelli and their progeny be rigidly applied.

The flexibility of the “totality of circumstances” approach was more desirable in assessing these ex parte decisions that are but part of the preliminary, investigative process. The analytic framework provided by Aguilar and Spinelli , however, continues to be of service in helping judges to understand what they should look for as they review a warrant application in the first instance. The hitch with which we are presented here is that the affidavit does not speak to either of these considerations. There is a deficiency in not just one of these considerations, but in all of them.

Thus, the deficiencies are clearly not compensated for in any regard within the affidavit, as there is not only no “strong showing” of any of these considerations; rather, there is essentially “no showing” of any one of these considerations. Moreover, there is certainly no “other indicia of reliability” to otherwise compensate for the lack of information concerning the informants’ reliability, credibility, or basis of knowledge. The affidavit merely mentioned information that had been given to the police by “several different concerned citizens.” The affidavit also mentioned that “[ajdditional information was received from a different concerned citizen,” and that “Officer Jon Foote interviewed a concerned citizen” pertaining to appellant’s activities. (Emphasis added.) Although we are cognizant of the fact that the date of this “interview” was stated within the affidavit, we think that use of the term “interview,” as opposed to referring to the means of informa ³³¹ tion as a mere anonymous telephone call, cannot, on its own, lead us to the inference or conclusion that it was any more reliable than an anonymous telephone call.

The affidavit does not explicitly state that this was a face-to-face interview; it is as likely an inference that this interview was actually conducted via telephone. What constitutes an interview as opposed to an anonymous conversation? We would have much less difficulty in applying meaning to the term “interview” had the affidavit mentioned that police knew the identity of the person “interviewed,” or even merely that they would know how to locate that person should his information have turned out to be false. We certainly cannot allow semantics to play a part in our decisions to uphold or deny the validity of search warrants, and we challenge issuing judges and suppression hearing judges alike to take notice of this fact; we cannot give more credence to the gathered information merely because the term “interview” is applied.

Unquestionably, a police officer attempting to convince a judge to issue a warrant is aware that certain words sound better and are cloaked with more reliability than others. This is a prime example. The affidavit should have indicated more facts relating to this “interview.” In order to assign more reliability to it, more information should have been provided regarding this meeting between Officer Jon Foote and the concerned citizen. Where did it take place?

Was it actually conducted in person or on the telephone? What made this an interview rather than a mere casual conversation or anonymous telephone call? If the Officer did indeed meet this person face-to-face, why was that not stated in the affidavit? Certainly, additional information can only be helpful when deciding on the issuance of a warrant.

In order to assure that the purpose of the Fourth Amendment is upheld, police officers must provide details within affidavits when attempting to acquire search warrants, even if such information would seem to the police officer of trivial consequence at the time. Additionally, mentioned nowhere within the affidavit is the basis of the concerned citizens’ knowledge regarding their ³³² complaints. The affidavit makes no mention of whether these people are speaking from first-hand knowledge received through their own senses or are merely passing on information they heard from others. We have already stated, supra, that a magistrate, when issuing a warrant, must be presented with a more substantial reason for relying on information than the mere possibility that information is based on a “casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.” Spinelli, 393 U.S. at 416 , 89 S.Ct. 584 .

We have noted in the past: The basis-of-knowledge prong seeks to avoid the danger that even a reliable informant might be passing on, through the conduit of the police affiant, a bit of barroom gossip or a mere underworld rumor. In probing for a more sure basis of knowledge, we seek some assurance that the informant speaks from personal knowledge, that he is passing along what he perceived with his senses. Shoemaker v. State, 52 Md.App. 463, 470 , 451 A.2d 127 (1982). In this case, the affidavit and application did not contain information tending to show how any of these concerned citizens had learned the information they had supplied to police.

In Amerman, 84 Md.App. at 494 , 581 A.2d 19 , unlike in the present case, it was clear that the informant had relied on information based on his own experiences. We upheld the warrant in that case, stating: The most direct and damning information in the warrant application was aimed directly at 290 Cape St. John Road. This was the information from the informant himself, whose credibility was verified again and again and who alleged that he purchased large quantities of marijuana from [defendant] on a regular, semi-weekly basis. Id.

We also stated in that case: The source of information stated that it would purchase a half pound of Marijuana twice a week from Quentin Maddox. The half pound would usually cost $450.00. The source stated that it would telephone Maddox, request the amount, and meet a short time later. The meetings would ³³³ usually take place on shopping center parking lots, or at convenience stores.

The source stated that Maddox would arrive either in a 1981 Mercedes or a 1987 Nissan truck. The source further stated that Maddox does not like to sell less than half pounds at a time, because he loses money on his investment. The source stated that Maddox was always good for several pounds. The informant recounted to Detective Brown his knowledge that Maddox’s original source of supply had been one James Todd Hibler.

The warrant application then pointed out that a series of drug raids on November 2, November 4, and November 7 took James Todd Hibler out of circulation. The further information relayed to Detective Brown by the informant self-evidently related to a time following Hibler’s arrest in early November!.] The source stated that when James Todd Hibler was arrested, Quentin Maddox was able to find another source of marijuana that could supply the same amount, if not more, than James Todd Hibler. Amerman, 84 Md.App. at 477-78 , 581 A.2d 19 . Information regarding the informant’s veracity, the amount of detail provided by the informant, and police corroboration have all been gathered together in cases in which probable cause existed.

When one of these factors was lacking, the others were stronger, so that probable cause could be determined by “the totality of the circumstances.” In Malcolm v. State, 314 Md. 221, 232 , 550 A.2d 670 (1988), the Court of Appeals emphasized that “every aspect of the informant’s detailed tip was corroborated prior to the search, with the obvious exception of the drug distribution.” Id. (Informant indicated that Lewis would travel to Tennessee for a “cook of PCP.” The police subsequently observed, among other things, Lewis keeping company with Jeff Malcolm, who had a prior Tennessee address and a history of PCP involvement.); see Potts, 300 Md. 567 , 479 A.2d 1335 (upholding search warrant based on a reliable informant’s tip and police corroboration); see also Herod v. State, 311 Md. 288, 295-96 , 534 A.2d 362 (1987) (discussing corroboration of informant’s tip); Shrout v. ³³⁴ State, 238 Md. 170 , 208 A.2d 585 (1965) (upholding search warrant based on tip of informant and police surveillance corroborating the tip). The fact that an informant provided police with reliable information in the past has served to establish the informant’s reliability in a subsequent case. See Johnson v. State, 14 Md.App. 721, 728 , 288 A.2d 622 (1972) (affidavit related that the informant had given information and actively participated in investigations resulting in over five narcotic-related arrests and seizures within the preceding six months, which was adequate for the issuing magistrate to conclude that the informant was credible).

In the present case, however, nowhere within the affidavit was there mention of a single incident in the past when any of the concerned citizens had provided police with information. Further, the mere use of the term “concerned citizen” within the affidavit causes us concern. Again we are presented with the use of semantics that potentially could be given greater weight in our analysis than it may deserve. If an individual has taken his or her time to provide the police with information about potential criminal activity, is it not safe to assume that that individual is “concerned” about those particular circumstances?

We are not provided with any details that would demonstrate how these citizens were any different from a typical anonymous police informant, nor are we provided with information regarding how they were any more “concerned” than others. Just as the term “interview” should not be loosely applied to denote inferences of reliability, the term “concerned citizen” likewise should not be applied to denote a similar indicia of reliability. It is presumed that a “concerned citizen” would have less reason to be untruthful than would the typical criminal informant. But, we are not given any information about these citizens.

It cannot be inferred that they are more rehable than any other anonymous police informants merely because they are referred to as “concerned citizens.” In Trussell, 67 Md.App. at 31 , 506 A.2d 255 we discussed the veracity of the concerned citizens who had ³³⁵ provided police with information. We stressed their reliability, and that they were “not from the criminal milieu.” The two concerned citizen-informants are both members of the West Riding Community, United States and Maryland citizens, hold full-time jobs, are on the Harford County Voters’ Register and do not have any criminal record. Neither of the concerned informants is receiving any compensation or remuneration for this information. Id.

In the present case, however, the affidavit provides no information regarding the concerned citizens; nor does it state any reasons to conclude that the concerned citizens are not from the criminal milieu. The term “concerned citizen” can tend to be quite presumptuous, as it assumes that these people were more truthful than other anonymous police informants simply because they are referred to as “concerned citizens.” Appellant relies on State v. Lee, 330 Md. 320 , 624 A.2d 492 (1993), a case in which the Court of Appeals reviewed the sufficiency of a search warrant affidavit that had been used to search Lee’s mobile home and found that the warrant had not been based on the requisite probable cause. At first glance, Lee would appear not to be on point with our facts, because it dealt with the validity of an anticipatory search warrant. The Court found the search and seizure to be invalid because police had “failed to fulfill the condition precedent on which the warrant was made contingent by its own terms.” Id. at 329 , 624 A.2d 492 .

Nevertheless, the Court did in fact provide guidance we find applicable in the present case, as it also stated that “the application and affidavit failed to establish the requisite probable cause irrespective of the anticipated drug purchase arranged by the police.” Id. at 325-26 , 624 A.2d 492 (emphasis added.) The Court noted that “[wjhether information provided by an unidentified informant supports a finding of probable cause depends on a practical, non-technical ‘totality of the circumstances’ approach that considers the informant’s veracity, reliability, and basis of knowledge.” Lee, 330 Md. at 326 , 624 ³³⁶ A.2d 492 (citations omitted). The Court pointed out that “the veracity and basis of knowledge of the informant clearly remain relevant to a probable cause determination,” and held that “[t]he affidavit failed entirely to address either factor in the instant case.” Id. at 327, 624 A.2d 492 . In affirming the suppression of the narcotics evidence seized from Lee, the Court noted that the factual predicate set out in the warrant application essentially consisted of a second-hand rumor whereby the officer merely recounted information about Lee passed through the informant from his brother. The affidavit did not assert that the informant had previously given police truthful and reliable information about criminal activity.

The affidavit did not assert that the informant’s brother was truthful and reliable. The affidavit did not explain how the brother obtained the incriminating information about Lee. The affidavit did not describe how the brother concluded he could buy drugs from Lee. Id. at 326-27 , 624 A.2d 492 .

In the present case, we agree with West that the affidavit failed to detail adequately information pertaining to the veracity of the concerned citizens or their specific basis of knowledge regarding the claims made within the affidavit. We look to Gates for the definitive word on this issue: “[A]n informant’s ‘veracity,’ ‘reliability,’ and ‘basis of knowledge’ are all highly relevant in determining the value of his report.” 462 U.S. at 230 , 103 S.Ct. 2317 (emphasis added). The Supreme Court noted in Gates that “if an unquestionably honest citizen comes forward with a report of criminal activity—which if fabricated would subject him to criminal liability—we have found rigorous scrutiny of the basis of his knowledge unnecessary.” Id. at 233-34 , 103 S.Ct. 2317 . We cannot, however, conclude that such is the situation in the case sub judiee.

Although several different people gave police information concerning West’s criminal activities, the affidavit did not mention what in fact made these individuals “concerned citizens,” and there was no definitive statement that ³³⁷ explicitly ruled out that these informants were in fact from the criminal milieu, or whether they were compensated for their information. Further, the mere mention within the affidavit that one of the citizens was actually “interviewed” could lead us to believe that the police could locate that individual and subject him or her to criminal liability if the information turned out to be false. As we have already stated, that is simply not an assumption we can accurately make, as we cannot negate the possibility that the “interview” was conducted on the telephone with an anonymous informant. Police Corrobora lion Appellant argues that the affidavit contains only a “bare bones” assertion of narcotics activity involving appellant, and that the police did not sufficiently corroborate the information provided by the unidentified “concerned citizens.” The corroborative police work in this case mainly consisted of verification of ownership of the automobile in question, verification that West indeed did reside in the apartment in question, minimal information received from several different “concerned citizens,” and a check into West’s prior arrest record.

We find such corroboration insufficient even under the deferential “substantial basis” standard for the issuing judge’s decision, when considered in conjunction with the deficiencies regarding the informants’ veracity and basis of knowledge. We note the Supreme Court’s language in Gates, 462 U.S. at 244 n. 13, 103 S.Ct. 2317 : “[Ijnnocent behavior frequently will provide the basis for a showing of probable cause.... In making a determination of probable cause the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.” In Gates , police corroboration of seemingly innocent activity, reduced to very specific details, tended to show the informant’s reliability. That situation is inapplicable here, for the amount of police corroboration greatly differs between Gates and the case at bar. ³³⁸ In Gates , a search warrant was issued based on an anonymous letter, 2 coupled with police corroboration of the details within that letter.

Police investigation determined that the suspect, Lance Gates, had indeed made a reservation, in accordance with the details of the letter, on a flight to Florida at the same time the letter had predicted. 462 U.S. at 226 , 103 S.Ct. 2317 . Police surveillance was subsequently conducted on Lance Gates, both in Chicago, where he boarded his flight, and when he arrived in Florida. Through police corroboration, most of the details mentioned in the letter proved to be precisely accurate: [Detective] Mader then made arrangements with an agent of the Drug Enforcement Administration for surveillance of the May 5 Eastern Airlines flight. The agent later reported to Mader that Gates had boarded the flight, and that federal agents in Florida had observed him arrive in West Palm Beach and take a taxi to the nearby Holiday Inn.

They also reported that Gates went to a room registered to one Susan Gates and that, at 7 o’clock the next morning, Gates and an unidentified woman left the motel in a Mercury bearing Illinois license plates and drove northbound on an interstate highway frequently used by travelers to the Chicago area. In addition, the DEA agent informed Mader that the license ³³⁹ plate number on the Mercury was registered to a Hornet station wagon owned by Gates. The agent also advised Mader that the driving time between West Palm Beach and Bloomingdale was approximately 22 to 24 hours. * * * At 5:15 a.m. on March 7, only 36 hours after he had flown out of Chicago, Lance Gates, and his wife, returned to their home in Bloomingdale, driving the car in which they had left West Palm Beach some 22 hours earlier. The Bloomingdale police were awaiting them, searched the trunk of the Mercury, and uncovered approximately 350 pounds of marihuana.

A search of the Gateses’ home revealed marihuana, weapons, and other contraband. Id. at 226-27 , 103 S.Ct. 2317 . The Supreme Court explained that the anonymous letter, on its own, would not have been enough to “provide the basis for a magistrate’s determination that there was probable cause to believe contraband would be found in the Gateses’ car and home.” Id. at 227 , 103 S.Ct. 2317 . The letter provides virtually nothing from which one might conclude that its author is either honest or his information reliable; likewise, the letter gives absolutely no indication of the basis for the writer’s predictions regarding the Gateses’ criminal activities.

Something more was required, then, before a magistrate could conclude that there was probable cause to believe that