California, United States of America
The following excerpt is from Rodriguez v. Superior Court, 199 Cal.App.3d 1453, 245 Cal.Rptr. 617 (Cal. App. 1988):
However, even applying the totality-of-the-circumstances approach to the instant case, we conclude that the affidavit here is not sufficient to establish probable cause that would sustain the magistrate's decision to issue a search warrant. The statement that, within two days prior to preparation of the affidavit, a confidential informant was at petitioners' residence when heroin was sold from the residence is nothing more than "a mere conclusory statement that gives the magistrate virtually no basis at all for making a judgment regarding probable cause." ( Illinois v. Gates, supra, 462 U.S. at p. 239, 103 S.Ct. at p. 2333.) The statement contained no facts that might establish the basis of the confidential informant's knowledge. It does not indicate the informant was in the house; it states only he was at the residence. It reflects no facts upon which the informant, and consequently the affiant, could conclude heroin was being sold. No substance was observed or smelled, no bindle or other forms of packaging were noted, no exchange of drugs for money was observed.
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