Schmid v. State ( 1980 )

BOOCHEVER, Justice,

concurring.

I fail to see the need of disaffirming our prior decisions that police corroborate incriminating facts to establish the reliability of information used to obtain a search warrant. In this case, it seems to me that under our former test there was adequate incriminating information supplied to justify the issuance of the search warrant. I think that the detection of the odor of marijuana was an incriminating fact that could be considered. In the valid arrest of the defendant, the suitcases were taken into custody. Schmid had no constitutionally cognizable right to the inviolability of the aromatic molecules which surrounded his luggage. State v. Goodley, 381 So.2d 1180 (Fla.App.1980). The detection of the odor of marijuana as well as the fact that Schmid was traveling under an assumed name constituted corroboration of incriminating facts. We therefore need not decide whether innocent corroborating facts alone are sufficient.

Since the majority does reach that issue, I shall briefly set forth my views. I do not think that a hard line rule should be established one way or the other as to whether incriminating facts should be required. Professor LaFave seems to indicate that the circumstances surrounding the informant and the information should control as opposed to a specific requirement that in all cases corroboration be by incriminating evidence. At the same time, he states that corroboration of a few innocent and easily predictable events should not suffice.¹ I agree.

1 . Professor LaFave states:

Although it cannot be said absolutely that no corroboration but that described previously will ever suffice to show veracity, particularly in light of the less than helpful treatment of this particular issue by the Supreme Court, courts should be most reluctant to accept lesser degrees of corroboration as sufficient. Certainly corroboration of a very few innocent and easily predictable events should not suffice. Thus, when a first-time informer said he had seen defendant in possession of marijuana and that defendant was with a certain companion in a two-tone green Ford pickup, as in Rushing v. State, an officer who saw defendant with that person and in that vehicle did not have grounds to arrest. Whether corroboration of a longer list of innocent facts permits a different result is not easy to say, but it has been forcefully argued that the “number of facts criterion is as unsuitable here as it is in the self-verifying detail context.” We have previously concluded that the giving of a detailed story does not establish veracity, the reason being that a prevaricating informer could just as well tell an elaborate lie, and it might also be argued that truthfulness is likewise not shown by the corroboration of many of the innocent facts in the informant’s tale. But the two situations are not identical, for the latter instance at least eliminates the possibility that the informant has created the entire story out of the whole cloth. The judgment to be made is easily stated but not easily accomplished: when does verification of part of the informant’s story make it sufficiently likely the entire story is true that it is reasonable to act upon what the informant said?

1 W. LaFave, Search and Seizure § 3.3, at 560-61 (1978) (footnotes omitted).