HANSON (P. D.), J. I respectfully dissent. The affidavit, described in the majority opinion, is insufficient as a matter of law to establish probable cause for the search because it rests in crucial part on hearsay statements of the anonymous declarant “Y,” whose information is not shown to be reliable and is uncorroborated. Further, the affidavit is so fundamentally deficient in its dependence upon unsupported assumptions that the good faith exception for reasonable reliance upon a warrant (United States v. Leon (1984) 468 U.S. 897 [82 L.Ed.2d 677, 104 S.Ct. 3405] cannot save the products of the illegal search.
The Fourth Amendment to the United States Constitution 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 person or things to be seized.”1 The warrant clause protects the security and privacy of individuals against unjustified intrusion by requiring that inferences sustaining a finding of probable cause2 “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.” (Johnson v. United States (1948) 333 U.S. 10, 14 [92 L.Ed.2d 436, 440, 68 S.Ct. 437]; Illinois v. Gates (1983) 462 U.S. 213, 240 [76 L.Ed.2d 527, 549, 103 S.Ct. 2317, 2333].) It is not required that an affidavit in support of a search warrant reflect only the personal observations of the affiant; however, in order for the magistrate [113]to perform his constitutional function, the affidavit must present a “substantial basis” for crediting hearsay information relied upon to establish probable cause. (Illinois v. Gates, supra, 462 U.S. at pp. 241-242 [76 L.Ed.2d at p. 550, 103 S.Ct. at p. 2334]; Jones v. United States (1960) 362 U.S. 257, 269 [4 L.Ed.2d 697, 707, 80 S.Ct. 725, 78 A.L.R.2d 233].)
Studying the affidavit, it is apparent affiant Finley obtained all of the information tending to support his belief that controlled substances were on the premises of 808 Kerr Avenue from “X,” who in turn had obtained the critical information from Y. This is not a case in which the police undertook an investigation and discovered evidence independently corroborating the hearsay allegations; here, the entire probable cause determination rests upon the unsworn statements of the unidentified informants concerning matters not witnessed by the affiant. Thus, the determinative question is whether the affidavit provides a substantial basis for crediting the hearsay. I cannot agree with the majority’s conclusion that it does.
In Illinois v. Gates, supra, 462 U.S. 213, 238 [76 L.Ed.2d 527, 548, 103 S.Ct. 2317, 2331], the court expressly abandoned the two-pronged Aguilar-Spinelli3 test for evaluating informants’ hearsay in search warrant affidavits in favor of a common sense, “totality of the circumstances” approach. The court emphasized that while the “reliability” or “veracity,” and “basis of knowledge” of an informant are still highly relevant, these factors are not to be considered independent requirements.
“Instead, they are better understood as relevant considerations in the totality of 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.” (462 U.S. at p. 233 [76 L.Ed.2d at p. 545, 103 S.Ct. at p. 2329]; see also, Massachusetts v. Upton (1984) 466 U.S. 727 [80 L.Ed.2d 721, 104 S.Ct. 2085].)
Applying this standard, the court in Gates held sufficient an affidavit based upon an anonymous informant’s tip which was partially corroborated by police investigation. The court considered significant the detailed and predictive information contained in the tip, which was substantially corroborated by police observations. Rejecting an argument that police verification must concern criminal and not merely innocent activities consistent with the tip, the court found it enough that the corroboration reduced the likelihood of a reckless or prevaricating tale. {Gates, supra, 462 U.S. at pp. 244-245 [114][76 L.Ed.2d at p. 552, 103 S.Ct. at p. 2335].) The affidavit in this case shows no comparable independent corroboration of the hearsay or other indicia of reliability.
Had the affidavit alleged the tested informer X personally observed a purchase of methamphetamine from a resident of 808 Kerr Avenue and reported his/her observations to Finley, such factual information would have presented a substantial basis for crediting the hearsay. However, X remained outside. He/she did not actually witness any transaction. The claim that the drugs were purchased inside comes only from statements of Y. X believed Y. There is no blanket rule that such double hearsay is insufficient to support a search warrant; rather, as with other hearsay, the value of the information depends upon its quality and persuasiveness. (People v. Superior Court (Bingham) (1979) 91 Cal.App.3d 463, 473-474 [154 Cal.Rptr. 157], and federal cases there cited.) As Y clearly is neither a citizen informant nor a tested police informer, his/her information is inherently suspect. The majority relies upon two factors to provide a basis for believing the statements of the unreliable Y: (1) the corroborative effect of X’s observations and (2) Y’s admissions of criminal involvement. However, upon examination, both theories of reliability prove illusory.
Insofar as the affidavit shows, the entire episode reported by X was arranged by Y for motives unknown. Yet, the only corroboration of Y’s statements is found in the sequence of events observed by X: Y claimed he/she could purchase “ ‘go fast’ ” at the named location; he/she went into the house and upon returning showed X drugs which Y said he/she had purchased inside. Under these circumstances, the weight of any inference that the drugs were obtained in the house is inextricably connected with the veracity of Y’s statements—a matter upon which the affidavit sheds no factual light.
The affidavit relates neither the circumstances surrounding the meeting of X and Y nor why Y would want to show X where “go fast” could be purchased. The affidavit alleges only X’s conclusion that Y did not know X was working for any law enforcement agency. Absent some information about the underlying circumstances of the meeting between X and Y, and X’s reason for accompanying Y, such a statement of belief can be given no weight. Obviously, X was not conducting a controlled buy; the affidavit does not allege a search of Y before he/she went into the residence, or any other factual grounds for inferring Y did not possess drugs at the time of entry. Indeed, there is no evidence X offered to buy, bought, or received any of the drugs. If Y was not acting as a go-between to purchase drugs for X, we can only speculate what Y’s motivations were in revealing his/her ostensible source to X, and there is little reason to assume his/her veracity [115]in “ ‘pointing] the finger of suspicion’ ” at the residents of the particular house. Here, the magistrate necessarily accepted X’s assessment of Y’s credibility, because the affidavit contained insufficient background information to enable the magistrate independently to reach an informed evaluation of the reliability of Y’s information.4
The same lack of background information makes it impossible for Y’s statements to be considered reliable as declarations against penal interest. Indeed, it appears Y did not consider that he/she was risking any penal consequences or opprobrium from his/her disclosures, but we are not told why. On the one hand, Y’s statements admitting involvement with illegal drugs were not made in the context of reporting criminal activity to police, as were the informant’s statements in United States v. Harris (1971) 403 U.S. 573, 583-584 [29 L.Ed.2d 723, 734, 91 S.Ct. 2075],5 On the other hand, the affidavit provides no basis other than X’s unsworn conclusion for the assumption Y did not know X was an informer working for law enforcement. No information is provided about how X met Y or the nature of their relationship. The information provided—that X is a former user, with no [116]mention that X offered to buy from Y, or that X turned over any drugs to Finley—suggests X was not involved as a purchaser. We have no inkling what induced Y’s course of conduct. Without knowing any facts about how X obtained Y’s cooperation, it is pure speculation to assume Y had no reason to misrepresent what he/she was doing. Under the circumstances, the credibility of Y’s accusation is not enhanced by his/her admitted criminality. (See People v. Campa (1984) 36 Cal.3d 870, 881-884 [206 Cal.Rptr. 114, 686 P.2d 634].)
Our duty as a reviewing court is to ensure that the magistrate had a “ ‘substantial basis for . . . concluding]’ that probable cause existed.” (Illinois v. Gates, supra, 462 U.S. atpp. 238-239 [76 L.Ed.2d at p. 548, 103 S.Ct. at p. 2332]; United States v. Hendricks (9th Cir. 1984) 743 F.2d 653, 654, cert. den. — U.S. — [84 L.Ed.2d 382, 105 S.Ct. 1362].) Here, there was no such basis. Reading the affidavit in a common sense manner, and giving its allegations all the weight to which they are logically entitled, the total basis for the probable cause determination rests upon the declarations of the anonymous Y. As noted in People v. Kershaw (1983) 147 Cal.App.3d 750, 757 [195 Cal.Rptr. 311], “decisions of California courts and the United States Supreme Court appear to be unanimous in rejecting anonymous tips, standing alone, as the basis for a search warrant. (See, e.g., People v. Dumas (1973) 9 Cal.3d 871, 884 . . .; Dunn v. Municipal Court (1963) 220 Cal.App.2d 858, 871 . . .; Adams v. Williams (1972) 407 U.S. 143, 146-147 . . . .)” (See also Illinois v. Gates, supra, 462 U.S. 213, 227 [76 L.Ed.2d 527, 541-542, 103 S.Ct. 2317, 2326].) Because the affidavit fails to provide any substantial basis for crediting the double hearsay, it is constitutionally insufficient to support issuance of the warrant.6
In light of this conclusion, it is necessary to consider the effect of United States v. Leon, supra, 468 U.S. 897 [82 L.Ed.2d 677, 104 S.Ct. 3405], The Supreme Court in Leon created a “good faith exception” to the exclusionary rule. Under Leon, evidence need not be suppressed when it has been seized pursuant to execution of a search warrant, which is valid on its face and on which the police in good faith reasonably relied, even though the warrant is subsequently ruled invalid. The essential prerequisite to application of the good faith exception is objective reasonableness; in order to act with objective good faith, officers must “have a reasonable knowledge of what the law prohibits.” {Id., at p. —, fn. 20 [82 L.Ed.2d at p. 696, 104 S.Ct. at p. 3420].) The court noted that suppression would remain appropriate where the affidavit is “ ‘so lacking in indicia of probable cause as [117]to render official belief in its existence entirely unreasonable.’” (Id., at p. — [82 L.Ed.2d at p. 699, 104 S.Ct. at p. 3422].) However, the majority concluded that where the police, acting reasonably in good faith, have obtained a warrant and acted within its scope, suppression of the resulting evidence is not justified because it will not serve the deterrent purpose of the exclusionary rule. (Id., at p. — [82 L.Ed.2d at p. 696, 104 S.Ct. at pp. 3419-3420]; see also Massachusetts v. Sheppard (1984) 468 U.S. 981 [82 L.Ed.2d 737, 104 S.Ct. 3424].)
The police conduct in this case fares no better under Leon than under Gates because on its face the affidavit provides no reasonable basis for believing the hearsay statements of Y. Officer Finley, who drafted the affidavit, had received special training in the investigation of drugs; he was a narcotics detective assigned to a drug enforcement unit. He also was present at the execution of the warrant and search of the residence. Finley obviously knew that no information in the affidavit supported the reliability of Y or corroborated Y’s disclosures to X.
The Supreme Court indicated in Leon that the exclusionary rule would still apply in cases involving a search warrant if the officers executing the warrant “could not have harbored an objectively reasonable belief in the existence of probable cause.” The information from X by itself is of course insufficient to provide probable cause; the information from Y contains not a shred of indicia of reliability; and there is no corroboration by independent police investigation of any fact except the existence of a residence at the named address. Reliance upon this affidavit under the objective test is “ ‘entirely unreasonable. ’ ” No reasonably well-trained officer could fail to recognize the insufficiency of such an affidavit, “[n]or would an officer manifest objective good faith in relying on a warrant based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’ ” (United States v. Leon, supra, 468 U.S. 897 [82 L.Ed.2d at p. 699, 104 S.Ct. at p. 3422].) Under the circumstances of this case, the unsupported hearsay basis for the search not only is insufficient under Gates, but also is insufficient to support the good faith exception of Leon.
Although in close cases reasonable minds may differ whether the “totality of the circumstances” demonstrates a “fair probability” evidence of crime will be found in a specified place (Illinois v. Gates, supra, 462 U.S. at pp. 230-231 [76 L.Ed.2d at pp. 543-544, 103 S.Ct. atp. 2328]), ultimately the determination where the line should be drawn in a particular case must be guided by the policies underlying the Fourth Amendment. Here, the nature and substance of the information provided in the affidavit is far too limited to justify governmental intrusion into a person’s home. [118]This assessment is not a technical one, and should not discourage conscientious officers from resort to the warrant process. Rather, responsible members of law enforcement must be aware of the necessity for some supporting information or independent corroboration where an unsupervised informer relies upon information from an undisclosed third party.
I would reverse the judgment.
Appellant’s petition for review by the Supreme Court was denied July 18, 1985.
The parallel provision of the California Constitution (art. I, § 13) provides: “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.”
Under In re Lance W. (1985) 37 Cal.3d 873 [210 Cal.Rptr. 631, 694 P.2d 744], we are bound to interpret this provision as creating no broader grounds for exclusion of evidence than does the federal Constitution.
“Probable cause exists where ‘the facts and circumstances within . . . [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief’ ” (Brinegar v. United States (1949) 338 U.S. 160, 175-176 [93 L.Ed. 1879, 1890, 69 S.Ct. 1302]) that the evidence sought is in the place to be searched.
Aguilar v. Texas (1964) 378 U.S. 108 [12 L.Ed.2d 723, 84 S.Ct. 1509]; Spinelli v. United States (1969) 393 U.S. 410 [21 L.Ed.2d 637, 89 S.Ct. 584].
I disagree with the majority’s position that X’s conclusions provide a basis for crediting Y’s statements in the absence of any of the underlying facts which might support X’s belief. Moreover, the majority’s tacit assumption that because X has experience in the drug world his/her conclusions are probably true, is unwarranted and dangerous.
In Jones v. United States, supra, 362 U.S. 257, 269 [4 L.Ed.2d 697, 707], the Supreme Court commented: “We held in Nathanson v. United States, 290 U.S. 41, that an affidavit does not establish probable cause which merely states the affiant’s belief that there is cause to search, without stating facts upon which that belief is based. A fortiori this is true of an affidavit which states only the belief of one not the affiant.” Although Gates clearly mandates a less technical approach to evaluation of search warrant affidavits than that developed in Aguilar and Spinelli, I find nothing in the Gates opinion shifting the magistrate’s constitutional responsibility for drawing reasonable inferences from the facts to the policeman, or, as here, to an unidentified “confidential reliable” informer.
Because the validity of unsupported conclusions and assumptions cannot be independently assessed, they may mask a multitude of circumstances which might lead the magistrate (or the police) to distrust the accusation. The implications of official reliance upon conclusional statements of individuals such as X are particularly disturbing. From the affidavit it appears only that X, a former methamphetamine user, is a sort of informer-entrepreneur, motivated by some perceived self-interest, such as money, power, vengeance or a combination of such factors, acting without police direction or control. Neither sworn to uphold the law, nor trained in techniques for obtaining reliable evidence, such an individual, if unchecked even by the requirement to reveal contextual information about a tip, may be expected to utilize unlawful or unreliable methods or manipulate the situation to serve his/her own needs. Furthermore, if informer activities can be thus insulated from scrutiny, police will have little incentive to supervise. Judicial acceptance of an informer’s bare conclusions can only encourage law enforcement to abandon investigative responsibility to those whose actions are unverifiable and unreviewable.
Contrary to the suggestion in the majority’s opinion, the affidavit provides no reasonable ground to assume that Y is known to police. The affidavit merely recites affiant’s belief that it is necessary to keep Y’s identity confidential in order not to disclose the identity of X. From affiant’s failure to provide even the most general information about Y, it can be inferred X withheld the facts of Y’s identity and circumstances from the officer.
I take exception to the use by the majority of the phrase “ring of truth” (maj. opn. p. 110). The phrase obscures rather than elucidates the task of the magistrate. Impressionistic conclusions have not replaced articulable facts in the determination of probable cause.