¶1(dissenting)—I respectfully dissent. For the reasons which follow, I believe the affidavit failed to present facts sufficient for a magistrate to determine the inherent credibility or reliability of the informant.
¶2The fourth amendment to the United States Constitution and article 1, section 7 of the Washington State Constitution are the fundamental provisions by which the primary rights of citizens are protected under our constitutional scheme. These rights are among our most cherished, yet they are among "the most difficult to protect. Since the officers are themselves the chief invaders, there is no enforcement outside of court." Brinegar v. United States, 338 U.S. 160, 181, 93 L. Ed. 1879, 69 S. Ct. 1302, 1313 (Jackson, J., dissenting), reh'g denied, 338 U.S. 839, 94 L. Ed. 513, 70 S. Ct. 31 (1949). The recurring polestar and fundamental theme is that the constitutional mandate of article 1, section 7 requires the interposing of a neutral magistrate between the officer and the citizen's right to privacy. The magistrate must be presented with facts so that he, the magistrate, may determine that probable cause exists for issuing the warrant. State v. Jackson, 102 Wn.2d 432, 436-37, 688 P.2d 136 (1984); see, e.g., State v. Woodall, 100 Wn.2d 74, 75, 666 P.2d 364 (1983); State v. Fisher, 96 Wn.2d 962, 965, 639 P.2d 743, cert. denied, 457 U.S. 1137, 73 L. Ed. 2d 1355, 102 S. Ct. 2967 (1982); State v. Partin, 88 Wn.2d 899, 901, 567 P.2d 1136 (1977); State v. Walcott, 72 Wn.2d 959, 961, 435 P.2d 994 (1967), cert. denied, 393 U.S. 890, 21 L. Ed. 2d 169, 89 S. Ct. 211 (1968).
¶3In applying the 2-prong Aguilar-Spinelli test, the *8majority concludes, erroneously I believe, that the affidavit satisfies the second, "veracity", prong. This prong requires that the affidavit set forth sufficient facts and circumstances so the magistrate can determine the informant is credible or that his information is reliable. Jackson, at 443; Woodall, at 76; Fisher, at 965. Some factors relevant to the veracity prong and necessary to an adequate elaboration are: the length of time the officer has known and dealt with the informer, see, e.g., Draper v. United States, 358 U.S. 307, 3 L. Ed. 2d 327, 79 S. Ct. 329 (1959) (6 months); the number of tips received, see, e.g., McCray v. Illinois, 386 U.S. 300, 18 L. Ed. 2d 62, 87 S. Ct. 1056 (15 times), reh'g denied, 386 U.S. 1042, 18 L. Ed. 2d 616, 87 S. Ct. 1474 (1967); the character of the information received, see, e.g., State v. Partin, 88 Wn.2d 899, 567 P.2d 1136 (1977) (information led to two arrests and convictions); State v. Lodge, 42 Wn. App. 380, 711 P.2d 1078 (1985) (10 arrests and convictions); or, that the declaration of informant was against his interests. United States v. Harris, 403 U.S. 573, 29 L. Ed. 2d 723, 91 S. Ct. 2075 (1971); Lodge.
¶4The statement in this affidavit, that the informant has provided verifiable information and assistance in the past, does provide some minimal ground for believing the informant. But, standing alone and unaccompanied by any specifics, this is not enough for the magistrate to make an independent evaluation of the informant's credibility. First, we do not know the type of information that has been verified in the past. This alone is fatal to the affidavit because "[m]erely verifying 'innocuous details', commonly known facts or easily predictable events should not suffice to remedy a deficiency in . . . [the] veracity prong." Jackson, at 438 (quoting United States v. Montgomery, 554 F.2d 754, 757-58 (5th Cir. 1977)); see also Spinelli v. United States, 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584, 588 (1969); 1 W. LaFave, Search and Seizure § 3.3(f), at 554 (1978 & Supp. 1985); Rebell, The Undisclosed Informant and the Fourth Amendment: A Search for Meaningful Standards, 81 Yale L.J. 703, 715-20 (1972); Kamisar, Gates, "Probable
¶5*9Cause," "Good Faith," and Beyond, 69 Iowa L. Rev. 551, 558 (1984). Unless we know the type of information provided in the past, the magistrate is merely rubber-stamping a mechanical recital of past reliability.
¶6Second, we do not know the use to which the information was put or the length of time which had elapsed since the information was furnished. The highly generalized recital here only hints at a consistent history of reliability, but is indeed highly ambiguous. Instances of inaccurate or unverifiable information may have outnumbered instances where the information proved correct.
¶7Accordingly, this case is like Woodall, where the affidavit presented no underlying facts by which the judicial officer could independently determine the informant's reliability. Like the affidavit in Woodall, which stated the informant is a "reliable informant who has proven to be reliable in the past", the affidavit here is a mere conclusion of the affiant which could mean a number of things, depending upon the nature of the facts verified in the past. Woodall, at 75.
¶8This case is distinguishable from Fisher, the majority's linchpin for finding the affidavit sufficient to determine the informant's credibility, where the affidavit stated the informant had provided information "proven to be true and correct." The affidavit also stated the informant had made two controlled buys from the residence later searched. Such prior use of the informant has consistently been held to establish a sufficient track record establishing an informant's credibility. See, e.g., State v. Maddasion, 130 Ariz. 306, 636 P.2d 84 (1981); Ritacca v. Kenosha Cy. Court, 91 Wis. 2d 72, 280 N.W.2d 751 (1979); but see State v. Fisher, supraat 971 n.l (Utter, J., dissenting). After viewing the affidavit "as a whole", and "reviewing the totality of the affidavit", the court in Fisherfound facts sufficient for the magistrate to conclude the informant was reliable. Fisher, at 966. Hence, Fisheris a case in which some corroboration, the controlled buys, bolsters the potential reliability of the informant. In cases in which some corroboration is evident, it is possible "a less elaborate showing of personal reliabil*10ity might suffice." Comment, Informer's Word as the Basis for Probable Cause in the Federal Courts, 53 Calif. L. Rev. 840, 847 (1965). It stands to reason that where, as in this case, the warrant is based on the informer's information alone, "a stronger showing on reliability should be required." Comment, supra at 847.
¶9Consequently, unlike Fisher, the affidavit here contained no corroborating evidence supporting the highly generalized recital of reliability. The magistrate did not have sufficient facts from which he could "judge for himself both the probable credibility of the informant and the reliability of his information". United States v. Harris, 403 U.S. 573, 588, 29 L. Ed. 2d 723, 91 S. Ct. 2075 (1971) (Harlan, J., dissenting). Hence, the majority rationale would appear to necessitate some form of ESP to evaluate the probable credibility and reliability of the informant.
¶10Unless the magistrate makes his independent evaluation on all the known facts, the magistrate tends to become the tool of police interests. Although the police are honest and their aims worthy, history shows they are not appropriate guardians of the privacy which article 1, section 7 protects. In the last analysis, only the courts can be such a guardian.
¶11Review denied by Supreme Court May 6, 1986.