JOHNSON, J. I respectfully dissent. I do so for two reasons. First, I find the majority opinion too equivocal on a straightforward yet crucial issue— whether four anonymous and uncorroborated tipsters are enough to justify a search warrant. Second, I differ with the majority on a more subtle issue— whether the affidavit in the instant case adequately alleged the informants were something other than anonymous tipsters.
[151]I. Several Anonymous Tips Taken Together Do Not Substitute for the Independent Corroboration Required to Establish Their Credibility.
As will be explained below I agree with the trial judge—and therefore disagree with the majority—that the affidavit filed in support of this search warrant failed to allege sufficient facts from which the magistrate could have reasonably concluded the officers knew the identity of the four informants. Accordingly, I conclude as did the trial judge that the two purported “citizen” informants required independent corroboration as, of course, did the two “criminal” informants. I would find it necessary to write separately, however, even if I agreed with the majority on the adequacy of the affidavit to establish the informants were known to the police. For, I think it is essential to underscore that stories told by four anonymous tipsters cannot supply the independent corroboration required to validate each other’s reports and therefore support by themselves the issuance of a search warrant.
The majority holds the necessary independent corroboration is supplied in this case by adding together the independent reports of the four informants. But the anonymity of the informants distinguishes the instant case from those decisions which have held the corroboration required to establish the credibility of one informer may be supplied by information from other informers. (People v. Sheridan (1969) 2 Cal.App.3d 483, 488-489 [82 Cal.Rptr. 695] [citing cases]; People v. Fein (1971) 4 Cal.3d 747, 753 [94 Cal.Rptr. 607, 484 P.2d 583]; People v. Balassy (1973) 30 Cal.App.3d 614, 621 [106 Cal.Rptr. 461]; People v. Green (1981) 117 Cal.App.3d 199, 205 [172 Cal.Rptr. 582]; United States v. Hyde (5th Cir. 1978) 574 F.2d 856, 863; United States v. Landis (9th Cir. 1984) 726 F.2d 540, 543; United States v. Yarbrough (9th Cir. 1988) 852 F.2d 1522, 1533; United States v. Laws (D.C. Cir. 1986) 808 F.2d 92, 103; United States v. Ellison (8th Cir. 1986) 793 F.2d 942, 946; and 1 LaFave, Search & Seizure (Supp. 1989) § 3.3(f), p. 40.)
In a typical example of this genre, People v. Sheridan, supra, the court upheld a search warrant based on the following facts. An informant whose identity was known to the police, Jones, told the officers he had been a user of marijuana, knew what it looked like and had recently seen a quantity of it in defendant’s home. A short time later, one Burch, another informant whose identity was known to the police and who had previously been arrested on a narcotics charge, told the officers he knew what marijuana looked like and had recently seen some in defendant’s home. (2 Cal.App.3d at p.486.) The court concluded neither informer could be considered a “citizen informant” because each had previously involved himself in narcotics traffic. Therefore, neither informant standing alone had furnished [152]probable cause; corroboration was necessary. The court held the necessary corroboration existed in the independent reports of the same criminal activity by the two informants. (Id., at p.489.)
In a similar case, People v. Green, the court upheld a search warrant on the basis of an affidavit containing information supplied by four heroin addicts whose identities were not only known to the police but who were under arrest at the time. The police had further information from another known informant, also an addict, who was not under arrest. All the informants claimed defendant was selling heroin from his home and that they had seen it or purchased it there. The court found that although all five informants told a similar tale the affidavit established the information was furnished independently by each informer. Therefore, the court concluded, there was sufficient corroboration of the informants’ tips to justify a search warrant. (117 Cal.App.3d at pp. 204-205.)
Similarly, in United States v. Hyde, supra, the court upheld a wiretap on the basis of information obtained from 10 informants, none of whom was “independently completely reliable” but all of whom were known by the police. The 10 known informants were “apparently independent of each other and . . . had no special reason to cooperate or collaborate.” (574 F.2d at p. 863.) The court then devoted several paragraphs to an intricate analysis of the scores of details the 10 informants supplied and how those accounts meshed at so many points. The court concluded, “when the detailed information supplied by each of the ten informants agrees in so many particulars with that supplied by the others, probable cause may be inferred.” (Ibid)
But these cases must be distinguished from the situation where the police are relying solely on information received from anonymous tipsters rather than known informants or identified citizen witnesses. Four anonymous letters or four disembodied voices give ample cause for further investigation. But unless police independently verify some significant information contained in these anonymous reports, the four tips are not enough by themselves to supply the probable cause required for a search of someone’s premises.
The case before us is much closer to Higgason v. Superior Court (1985) 170 Cal.App.3d 929 [216 Cal.Rptr. 817] than it is to Sheridan, Green and Hyde discussed above. In Higgason, the police received three anonymous telephone tips claiming defendant was selling narcotics from his residence. The first call was received by the “We Tip” organization which passed the information on to the police. The caller to “We Tip” said David Higgason was selling cocaine and marijuana from his residence. Higgason’s vehicles [153]were described—an older model blue and white Lincoln and a new Toyota or Datsun “4X4” pickup truck. It was said Higgason picked up the drugs in Tijuana, Mexico. Higgason was further “reported to be the manager of the apartment building . . . .” The caller claimed firsthand knowledge of the illegal activity, saying it had been going on for approximately six months.
The next afternoon the police received a telephone call from an anonymous tipster. The caller was a man whose voice sounded like that of a person 50 to 60 years old. This caller gave the same information about marijuana and cocaine dealing as the “We Tip” call of the previous day. The second caller gave the same residence address for Higgason, but said his first name was “John.” The caller also described Higgason as 40 to 41 years old, 5 feet 10 inches to 5 feet 11 inches, medium build and brown hair. The affidavit stated, “[t]his is substantially the same description as given to ‘We Tip’ by their anonymous caller.”
The caller claimed Higgason’s teenage son was beginning to sell drugs supplied by his father. There was foot traffic in and out of Higgason’s apartment day and night, particularly on weekends. The caller said Higgason had a heavy iron gate at the top of the stairway to his apartment; a guest had to be “buzzed in” before he or she could reach the front door. According to the affidavit, “[i]t was reported . . . this gate was installed by Higgason to prevent unknown subjects from gaining access to his front door and to keep the police from gaining entry, giving him time to dispose of his drugs.”
The caller also said Higgason kept marijuana and cocaine in his bedroom and this informant had seen, within that past week, several baggies of marijuana and bindles of white powder Higgason said was cocaine. The caller described the quantities of these drugs in which Higgason dealt. This informant wished to remain anonymous. He denied he was the person who called “We Tip” the previous day.
On September 26, 1983, a police officer drove to the apartment described as Higgason’s residence. There was a late model Datsun pickup truck with no license plates in the driveway, as well as a 1972 Lincoln “blue/white in color,” registered to John David Higgason, parked in front. The officer saw an iron gate at the top of the stairway to apartment No. 3. A Department of Motor Vehicles record check revealed the following description of John David Higgason: male, white, 5 feet 11 inches, 170 pounds, brown hair, brown eyes, born on July 20, 1943. The police ran utility checks of the apartment and found them to be in the name of John Higgason.
[154]During the morning of October 3, 1983, the police received another telephone call. The caller refused to identify herself, but the officer believed the caller to be young and female. She said John Higgason and his teenage son were selling marijuana from their residence. Her boyfriend was buying marijuana from Higgason and she was tired of him spending all his money on drugs and “getting loaded” all the time. She stated she wanted her boyfriend’s connection “busted” and refused to supply anything additional, hanging up.
Based on this information, a magistrate issued a search warrant which resulted in the seizure of narcotics and Higgason’s prosecution.
The appellate court held there was no probable cause for the search. The court acknowledged anonymous tips, if corroborated by police investigation, could establish probable cause, “but three anonymous telephone calls, without more, cannot serve to corroborate one another.” (170 Cal.App.3d at p. 938.) The court went on to explain, “In the final analysis, it is impossible to show different pieces of anonymous information emanated from independent sources and are truly corroborative of one another. (See ibid.) Granted, the calls here appear to have been made by at least two people, one older and male, the other younger and female. In addition, the male denied making the ‘We Tip’ call. But it nonetheless is impossible to say with reasonable certainty any of these calls was truly independent of either of the others. For this reason, the quantity does not improve the quality.” (Italics in original.) The court also found the independent police investigation of Higgason did not pass muster under Gates. The details actually corroborated—Higgason’s physical description, his residence and his vehicles— were facts anyone could obtain and did not raise any suspicion of criminal activity. (Id., at p. 939.)
In the case before us, the probable cause showing is even weaker than in Higgason. In our case there is no information in the affidavit to suggest the four anonymous tips were actually received from four different persons. For all the magistrate could know, the calls could have been from one person in different guises. Furthermore, the police in the case before us made no attempt to corroborate any of the details supplied by the callers, not even the innocent ones. An anonymous tip times four may multiply out to something more than zero. Whatever that something is, however, it is not enough without more to deprive someone of his constitutional right to be secure against unreasonable searches and seizures.
[155]II. The Affidavit Failed to Present Facts From Which the Magistrate Could Reasonably Infer Informants I and III Were Reliable “Citizen Informants” Whose Identities Were Known to the Officers.
The affidavit submitted to the magistrate states the police were given information about defendant on two separate occasions by “confidential citizen informants.” The allegation the information was supplied by citizen informants is significant because true citizen informants, unlike anonymous tipsters and criminal informants, are presumed reliable. (See discussion in People v. Kershaw (1983) 147 Cal.App.3d 750, 754-757 [195 Cal.Rptr. 311].) However, the status of citizen informer cannot be bestowed by the police through a bald assertion. “The affidavit must affirmatively set forth the circumstances from which the existence of the status can reasonably be inferred by a neutral and detached magistrate.” (People v. Smith (1976) 17 Cal.3d 845, 852 [132 Cal.Rptr. 397, 553 P.2d 557], italics in original.)
The majority opinion claims that by describing the informants as “confidential” citizen informants “the reasonable implication is that the informants’ names were simply omitted from the affidavit because of their desire for confidentiality.” (Maj. opn. at p. 147.) The majority bolsters this claim by noting that, “Nothing in the affidavit suggests that the informants’ identities were unknown to the police.” (Ibid.)
These arguments by the majority turn the rules for probable cause upside down. The burden is on the police to “set forth the facts tending to establish . . . probable cause . . . .” (Pen. Code, § 1527.) Our Supreme Court has stated, “Probable cause for a search exists where an officer is aware of facts that would lead a man of ordinary caution or prudence to believe . . . the object of the search is in the particular place to be searched.” (People v. Dumas (1973) 9 Cal.3d 871, 885 [109 Cal.Rptr. 304, 512 P.2d 1208].) And, as noted above, “[t]he affidavit must affirmatively set forth the circumstances” that establish probable cause. The majority says just the opposite. According to the majority, the magistrate should assume the police have the necessary facts to establish probable cause unless it affirmatively appears from the affidavit they do not. Furthermore, labeling the informants “confidential” is as ineffective as labeling them “citizens.” In both instances the magistrate is given “a mere conclusary statement [providing] virtually no basis at all for making a judgment regarding probable cause.” (Illinois v. Gates (1983) 462 U.S. 213, 239 [76 L.Ed.2d 527, 549, 103 S.Ct. 2317].) True, the magistrate could have imagined the circumstances imagined by the majority: that the identity of the informants was known to the police but omitted for the informants’ protection. But what is required in an affidavit is information, not imagination. “Sufficient information must be presented [156]to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others.” (Ibid.; and see People v. Smith quoted ante at p. 155.) In the case before us the affidavit contains no facts suggesting the informants’ identity was known to the police, but concealed. (Cf. People v. Cohn (1973) 30 Cal.App.3d 738, 743, fn. 6 [106 Cal.Rptr. 579].) Indeed as the trial judge pointed out, it even omits the language traditionally placed in affidavits to denote that an unidentified informant is a citizen whose identity is known to the police. “I received information from a confidential citizen informant who did not want his or her name disclosed. They left their name and phone number, but did not want it given to you.” Moreover, the affidavit fails to cite any knowledge the officer possessed suggesting why these unidentified informants were reliable—their occupations, reputations, lack of criminal background, or the like. Therefore, informants I and III must be treated as anonymous tipsters whose stories may factor into the probable cause determination but require corroboration.
The majority opinion asserts that even if the police did not know the identity of informants I and III there were other facts set out in the affidavit indicating these persons were “citizen” informants. This argument is flawed for two reasons. First, the presumption of reliability accorded to citizen informers is based primarily on the premise the police know the identity of the informants. If the informers are anonymous there is no basis for assuming their credibility. Second, the facts on which the majority relies do not reasonably lead to the conclusion the informants were citizen informants.
In Kershaw, supra, 147 Cal.App.3d 750, we explained why the informant’s identity must be known to the police in order for the informant to be characterized as a citizen informant.
“The courts have distinguished between sources who volunteer information to promote their own special interests and informers who volunteer information out of a sense of civic responsibility. The former class includes informants who are themselves criminals, drug addicts or professional ‘stool pigeons.’ The factors motivating these informants include offers of immunity or sentence reduction, money payments, revenge or the hope of eliminating criminal competition. (Rebell, The Undisclosed Informant and the Fourth Amendment: A Search for Meaningful Standards (1972) 81 Yale L.J. 703, 712-713.) The latter class consists of ordinary citizens who are the victims of, or witnesses to, a crime. (People v. Schulle (1975) 51 Cal.App.3d 809, 814 [124 Cal.Rptr. 585] and cases cited therein.) These informers act openly in aid of law enforcement motivated by good citizenship. (People v. Smith (1976) 17 Cal.3d 845, 850-851 [132 Cal.Rptr. 397, 553 P.2d 557].) Because of their differences in character and motivation, ‘the requisite [157]showing of reliability in the case of a citizen informant is significantly less than that demanded of a police informer.’ (People v. Ramey (1976) 16 Cal.3d 263, 269 [127 Cal.Rptr. 629, 545 P.2d 1333].) Information coming from private citizens who are witnesses to or victims of a criminal act is presumed reliable. (Ibid.)
“In order for the presumption of reliability to apply, however, the affidavit must affirmatively set forth the circumstances from which the existence of citizen-informer status can reasonably be inferred by a neutral and detached magistrate. (People v. Smith, supra, 17 Cal.3d at p. 852.) Nothing in the record here suggests the police were ever aware of the identity or background of the informant. Therefore, the presumption of reliability that attaches to information from ordinary citizen informants is not applicable here. That rule ‘presupposes that the police be aware of the identity of the person providing the information and his status as a true citizen informant. [Citation omitted.] ... In short, probable cause will not be provided by conclusionary information or anonymous informants . . . .’ (People v. Ramey, supra, 16 Cal.3d at p.269.)
“In the case of confidential citizen informers, the mere fact that they make their identity known to the police is, itself, some indication of their honesty. (United States v. Harris (1971) 403 U.S. 573, 599 [29 L.Ed.2d 723, 742, 91 S.Ct. 2075] [Harlan, J. dis.].) A further indication of reliability is that by identifying themselves to the police they expose themselves to potential liability for malicious prosecution or false reporting of a crime if their information proves to be false. (People v. Mardian [(1975) 47 Cal.App.3d 16, 32.] Furthermore, by identifying themselves, these citizen informers afford the police the opportunity to check on matters affecting their credibility such as the existence of a criminal record and whether they had previously supplied information to the police.
“In contrast, information from anonymous sources is inherently unreliable. Neither the police nor the magistrate knows the motives of the unknown informant. Here the informer may have been motivated by concern for the welfare of a relative as he/she claimed to be (cf. People v. Mardian, supra, 47 Cal.App.3d at p. 33) or may have been perpetrating a hoax on the police or seeking revenge on a neighbor (cf. Norton v. United States (4th Cir. 1978) 581 F.2d 390, 391-392). In addition, the police and the magistrate cannot possibly know how the informant obtained the information (People v. Reagan (1982) 128 Cal.App.3d 92, 98-99 [180 Cal.Rptr. 85]). Nor can they obtain additional information to check out the informer’s credibility. Without knowing the identity of the source, the police cannot [158]even determine whether he or she is a criminal, a drug addict, a ‘stoolie’ or an otherwise inherently unreliable individual. Moreover, where the anonymous information comes over the telephone, as it did here, the police have no opportunity to observe the informer’s demeanor while relating the information. Thus, they are deprived of an important facet to the determination of a witness’ credibility. (See, generally, Comment, Anonymous Tips, Corroboration, and Probable Cause, 20 Am. Crim. L.Rev. (1982) 99, 105-107.) We note that 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 [109 Cal.Rptr. 304, 512 P.2d 1208]; Dunn v. Municipal Court (1963) 220 Cal.App.2d 858, 871 [34 Cal.Rptr. 251]; Adams v. Williams (1972) 407 U.S. 143, 146-147 [32 L.Ed.2d 612, 617-618, 92 S.Ct. 1921].” (147 Cal.App.3d at pp. 755-757, fn. omitted.)
The majority cites dictum in the case of People v. Superior Court (Haflich) (1986) 180 Cal.App.3d 759, 768 [225 Cal.Rptr. 762] for the proposition that in determining whether an informant is a citizen informant the informant’s identity is irrelevant. (Maj. opn. at p. 148.) Haflich is totally inapposite to the issue we consider in this case.
In Haflich the police responded to a telephone call from a man in “panic” and “obvious fear” and who told police he had been in a friend’s house when three men with handguns broke into the house. The unidentified caller told police he was afraid his friend was going to be killed. (180 Cal.App.3d at pp. 764-765.) The police met the caller who accompanied them to the house cowering on the floorboard of the police car. The police made a warrantless entry and search of the house. No men with guns were found but the police did find, in plain sight, some white powder and marijuana. The discovery of these items led to the issuance of a search warrant. (Id., at p. 765.)
The issue in Haflich was whether the warrantless entry into defendant’s home was justified by the circumstances described by the unidentified “friend” of the “victim.” The court held the life threatening nature of the reported crime, the panic of the informant, as well as other factors, justified a warrantless entry and search under exigent circumstances. “Failure to obtain [the informant’s] name prior to entering defendant’s house does not foreclose reasonable reliance on his information.” (180 Cal.App.3d at p. 768.)
Haflich differs from the case before us in several very important ways. When the police made their initial, warrantless search they did so on the basis of the extraordinary story told by the informant and his fear and panic which obviously lent credence to his story. Even then, as the court notes, the informant was not truly anonymous because he conveyed his informa[159]tion to the police in person, accompanied them to the house and remained across the street hiding behind a post while they investigated. (Id., at p. 764.) Obtaining the informant’s name under those circumstances would have been irrelevant to the question whether there were exigent circumstances existing to justify an entry and search of defendant’s home. In the case before us, the police did not act under exigent circumstances. They did not state in the affidavit they had personally met the informants and that they could at least describe them. Nor did they have the opportunity to observe their demeanor, as the police in Haflich did. (See Kershaw, supra, 147 Cal.App.3d at p. 757.) When the police requested a search warrant in Haflich they did so on the basis of their own observation of narcotics and narcotic paraphernalia in defendant’s home; not on the basis of an informant’s claim three men were holding another man at gunpoint there. (180 Cal.App.3d at p. 765.) The question whether the informant was a “citizen informant” was irrelevant to issuance of the search warrant.
In the course of its decision in Haflich the court in dictum remarked that unless the informant is someone whose name is synonymous with truthfulness the informant’s name adds nothing to his reliability. (Id., at p. 768.) This comment misses the point. It is not important whether the informant’s name turns out to be John Paul II or Joe Isuzu. The mere fact the person makes her identity known to the police is an indication of her honesty. (People v. Kershaw, supra, 147 Cal.App.3d at p. 756.) So too is the fact by doing so she subjects herself to criminal liability if the story is fabricated. (Illinois v. Gates, supra, 462 U.S. at p. 233 [76 L.Ed.2d at p. 545].) Furthermore, by identifying himself the informant gives the police the opportunity to check on matters affecting his credibility. (Kershaw, supra, 147 Cal.App.3d at p. 756.)
The majority argues even though the informants’ identities were unknown to the police there was another indication in the affidavit the informants were citizen informants: the informants’ observations were “consistent with observations of concerned neighbors rather than participants in criminal activities.” (Maj. opn. at p. 148.) I disagree. The observations are consistent with observations that might be made by either a concerned neighbor or a participant in criminal activity. The informants reported: (1) heavy traffic to and from defendant’s residence; (2) seeing defendant and an unidentified man hiding and retrieving something from the hubcaps of vehicles in defendant’s driveway; (3) seeing an unidentified man hide two plastic bags containing a white powdery substance under his armpits. None of these observations are limited by their nature to things that only a “concerned neighbor” could have observed. They might just as well be the observations of a rival drug dealer or other customers of defendant. Indeed, as far as the magistrate knew, the “observations” of informants I and III [160]may have been nothing more than the report of barroom gossip or the imaginings of a skillful liar. (See 1 LaFave, Search and Seizure (2d ed. 1987) pp. 672, 682.)
The purported personal observations of an anonymous tipster are not enough to establish probable cause for a search. In Gates, the police received an anonymous letter purporting to describe the Gateses’ criminal conduct in a way that indicated the writer obtained the information from the Gates themselves or someone they trusted. (462 U.S. at p. 246 [76 L.Ed.2d at p. 553].) Nevertheless, the court found the letter “standing alone . . . would not provide the basis for a magistrate’s determination [of probable cause]. The letter provides virtually nothing from which one might conclude that its author is either honest or his information reliable; . . . Something more was required, . . .” (Id., at p. 227 [76 L.Ed.2d at p. 541].) The “something more” of course was independent corroboration of the informant’s story. (Id., at p. 246 [76 L.Ed.2d at p. 553].)
In the case before us, as in Gates, there is virtually nothing from which one might conclude informant I or III, individually, was honest or reliable. Accordingly, independent corroboration was required.
III. An Anonymous Informant Cannot Make a Declaration Against Penal Interest.
The majority opinion asserts the credibility of informants II and IV is established by their admissions they purchased cocaine from defendant at his residence and used the cocaine. According to the majority, “Such statements are against their penal interests and are an indication of their veracity.” (Maj. opn. at p. 149.) But this inference is not warranted where, as here, the informers are anonymous.
The reason why declarations against penal interest are considered an indication of credibility is because “rational people are unlikely to make false statements against their own penal interests.” (People v. Campa (1984) 36 Cal.3d 870, 882 [206 Cal.Rptr. 114, 686 P.2d 634].) But this rationale presupposes the police know the identity of the person making the declaration. The rationale breaks down in a situation, as here, where the declarant is an anonymous telephone caller. Surely a person runs no risk of arrest in making an anonymous confession to a crime. In Harris, both the majority and dissent recognized that if declarations against penal interest were to be used to establish the informant’s credibility the informant must be known to the police. (United States v. Harris (1970) 403 U.S. 573, 584-585, 594 [29 L.Ed.2d 723, 734-735]). The court noted “[t]he police . . . almost certainly knew [the informant’s] name” (id., at p. 585 [29 L.Ed.2d at p. 734]) and had [161]“a sworn verbal statement” from the informant. (Id., at p. 575 [29 L.Ed.2d at p. 729].) Thus, the informant’s statement was undoubtedly against his penal interest. Neither of these factors are present in the case before us. Our case is much closer to State v. Mabrey (1976) 140 Ga.App. 577 [231 S.E.2d 461] in which the court held an anonymous admission of participation in the crime under investigation did not establish the informant’s credibility. “We fail to see how there can be even an implicit showing of reliability in anonymous admissions of criminality.” (Id., at p. 463.)
IV. We Cannot Afford the Risk of Allowing Allegations So General and Conclusionary They Would Permit Searches Premised Solely on the Uncorroborated Statements of Anonymous Informants.
The real vice of the majority opinion is the risk it creates that future searches will be premised solely on uncorroborated, anonymous tips. The allegations in the instant affidavit were so general and so conclusionary as to the nature of the informants that a reviewing magistrate would have no reasonable basis for concluding these were informants whose identities were known rather than being anonymous tipsters. For reasons explained earlier, such allegations as were set forth in the affidavit are as consistent with an unknown anonymous informant as with one whose name, address, and identity the officer had in his possession.
A conclusionary characterization that the officer received information from a “confidential citizen informant” is no more sufficient than one he received information from a “confidential reliable informant.” In either case it takes more. It takes factual allegations allowing the neutral magistrate to verify that the conclusionary label the officer placed on the informant is indeed true.
Admittedly, the officer testified at the first suppression hearing that he did have the names and addresses of the informants “in his notes” and would produce those notes at the second hearing. At the second hearing, however, the officer had to concede he had not been able to locate those notes nor to recall the names of the informants. In any event, assuming the officer actually knew the identity of the informants at the time he went to the magistrate that would still not cure the deficiency in the affidavit used to procure this search warrant. The validity of a search warrant must be based not on what the officers knew but on what they conveyed to the neutral magistrate. “Under the cases of this Court, an otherwise insufficient affidavit cannot be rehabilitated by testimony concerning information possessed by the affiant when he sought the warrant but not disclosed to the issuing magistrate. ... A contrary rule would, of course, render the [162]warrant requirements of the Fourth Amendment meaningless.” (Whiteley v. Warden (1971) 401 U.S. 560, 565, fn. 8 [28 L.Ed.2d 306, 311, 91 S.Ct. 1031]. See also People v. Superior Court (1981) 30 Cal.3d 193 [178 Cal.Rptr. 334, 636 P.2d 23]; 2 LaFave, supra, § 4.3(a) and authorities cited therein.)
We cannot allow searches to be premised on affidavits so general and conclusionary that the neutral magistrate cannot reasonably determine whether the informants are known to the police or are merely anonymous tipsters. Otherwise we invite searches premised solely on unsubstantiated anonymous tips not just those premised on informants whose identity and reliability are known to the police. Here the allegations were so general and conclusionary that virtually the first question out of the trial judge’s mouth after reading the affidavit was whether the officer actually knew the identity of the informants. He found the allegations in the affidavit woefully inadequate to make that determination. The court’s next questions pursued the issue—since the officer testified he knew the informants’ identities why didn’t he say so in the affidavit.
The instant case happens to have involved informants whose identities evidently were known to the police and who turned out to be accurate, well-motivated people whose information netted a narcotics trafficker. However, the majority opinion approves an affidavit so general and conclusionary that a search warrant can now be supported by four—and perhaps three or two—uncorroborated, anonymous tips.
Think how easy it would be for four people—or maybe three or even two—to activate a police invasion of an innocent person’s home. (Indeed Rich Little or a lesser impersonator could create probable cause all by himself.) The conspirators could be motivated by animosity or merriment. Whatever the reason, all they would have to do is call the police at different times and whisper similar yet independent sounding accusations about what was going on at their innocent target’s house. Or they might send anonymous letters or employ a combination of letters and phone calls. One could claim to be a fellow criminal associated somehow in the target’s alleged crimes. Another could tell a story as a casual passerby presenting all the attributes of a classic citizen informant.
There would be no need for the police to check out the information the tipsters supplied even though, by definition, the officers would have no ability to appraise the veracity of the tipsters themselves. For, under the majority opinion in the instant case, the informants would be self-validating. Moreover, the majority opinion does not require any allegations establishing the officers knew the informants’ identity or, if not, that they had independently corroborated the informants’ information. Hence the police [163]who received what in fact were malicious and inaccurate anonymous tips could innocently submit an affidavit identical in language and substance to the one submitted in the instant case and expect it would be found sufficient to support a search warrant.
In a world where this is possible, none can be safe from their enemies or pranksters even in the supposed privacy of their own homes. I do not welcome such a world and therefore respectfully decline to do anything which might lead to its creation. In my opinion, this court should have advised law enforcement officers in no uncertain terms of two propositions. First, uncorroborated anonymous tips cannot by themselves supply enough probable cause to support a search warrant. Second, search warrant affidavits must recite facts affirmatively establishing whether the officers know the identity of their informants. Only if affidavits are held to this standard can we be safe from unreasonable, unfounded, and sometimes maliciously motivated searches of our homes.
Respondent’s petition for review by the Supreme Court was denied November 16, 1989. Mosk, J., and Broussard, J., were of the opinion that the petition should be granted.