DE: Failure to corroborate the CI’s tale was fatal to showing of probable cause; corroborating obvious no help

Failure to corroborate the CI’s tale was fatal to the attempted showing of probable cause. Verifying the obvious isn’t much help. McKinney v. State, 2014 Del. LEXIS 601 (December 18, 2014):

In LeGrande v. State, we held that a tip from a confidential informant was not sufficiently corroborated to establish probable cause because police had not found evidence to confirm the informant’s assertion that illegal activity had occurred or was occurring. We explained that:

“An accurate description of a subject’s readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.”

Accordingly, we found that because there was “no corroboration by independent police work of the anonymous tipster’s assertion of illegality … the totality of the circumstances did not provide the issuing magistrate a substantial basis for concluding there was probable cause ….”

McKinney argues that our holding in Legrande is applicable to the facts of this case and should be followed. We agree. We find that the Superior Court erred by failing to grant McKinney’s motion to suppress. Under the totality of circumstances, the search warrant affidavit did not show probable cause. As in Legrande, the police in this case corroborated the accused’s identity but failed to corroborate the CI’s knowledge of concealed criminal activity. Specifically, the police failed to corroborate the CI’s claim that anyone was selling drugs from McKinney’s apartment. Further, the affidavit submitted by Mitchell did not show whether the CI in this case had ever previously given reliable information to police. Nor did the affidavit indicate how or why the CI contacted police. Although this Court has found that the reliability of an informant increases when the informant meets with police face-to-face, the State has failed to point to any case in which a tip delivered in person was deemed sufficient to establish probable cause without some independent corroboration of the alleged illegal activity. (footnotes omitted)