1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0157P (6th Cir.)File Name: 00a0157p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________UNITEDSTATES OFAMERICA,Plaintiff-Appellee,v.KENNETHEUGENEALLEN,Defendant-Appellant.;>1No. 96-6313Appeal from the United States District Courtfor the Eastern District of Tennessee at Chattanooga.No. 96-00023—Curtis L. Collier, District Judge.Argued: December 8, 1999Decided and Filed: May 4, 2000Before: MARTIN, Chief Judge; MERRITT, RYAN,BOGGS, NORRIS, SUHRHEINRICH, SILER,BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY,and GILMAN, Circuit Judges._________________COUNSELARGUED:David Ness, FEDERAL DEFENDERSERVICES OF EASTERN TENNESSEE, INC.,Chattanooga, Tennessee, for Appellant. David P. Folmar, Jr.,ASSISTANT UNITED STATES ATTORNEY, Knoxville,Tennessee, for Appellee.ON BRIEF:Deirdra J. Brown,2United States v. AllenNo. 96-6313FEDERAL DEFENDER SERVICES OF EASTERNTENNESSEE, INC., Chattanooga, Tennessee, Leah J.Prewitt, FEDERAL DEFENDER SERVICES, Knoxville,Tennessee, for Appellant. David P. Folmar, Jr., ASSISTANTUNITED STATES ATTORNEY, Knoxville, Tennessee, PaulW. Laymon, Jr., ASSISTANT UNITED STATESATTORNEY, Chattanooga, Tennessee, for Appellee.BOGGS, J., delivered the opinion of the court, in whichMERRITT, RYAN, NORRIS, SUHRHEINRICH, SILER,BATCHELDER, and DAUGHTREY, JJ., joined. GILMAN,J. (pp. 13-16), delivered a separate opinion concurring in thejudgment, in which MARTIN, C. J., joined. CLAY, J.(pp. 17-33), delivered a separate dissenting opinion, in whichMOORE and COLE, JJ., joined._________________OPINION_________________BOGGS, Circuit Judge. Kenneth Eugene Allen pled guiltyto an indictment charging him with possession of crackcocaine and an illegal firearm, after his motion to suppressevidence seized pursuant to a warrant issued on an allegedlyinsufficient affidavit was denied by the district court. Heappealed that denial. A panel of this court ruled that theaffidavit was insufficient to provide probable cause for thewarrant, and reversed his conviction.United States v. Allen,168 F.3d 293 (6th Cir. 1999). We granted a rehearingenbanc, and now hold that an affidavit based upon personalobservation of criminal activity by a confidential informantwho has been named to the magistrate and who, as theaffidavit avers, has provided reliable information to the policein the past about criminal activity, though without furtherspecificity as to the type of such activity, can be sufficient fora magistrate to find probable cause to issue a warrant. Weaffirm the district court’s denial of Allen’s motion to suppressevidence, and Allen’s subsequent conviction.No. 96-6313United States v. Allen3IOn October 11, 1995, Detective Gary Lomenick of theChattanooga Police Department received a tip from aconfidential informant (“CI”) that a man called Red Dog,residing at 910 North Market Street, was in possession ofcocaine. Red Dog was familiar to other officers, though notto Lomenick, as someone known to be involved with drugs,named Kenneth Allen. Based on the CI’s information,Lomenick sought and obtained a search warrant that sameday. The affidavit read in full as follows:I, Gary Lomenick, a duly sworn Chattanooga PoliceOfficer, hereby apply for a search warrant and make oathas follows:1. I am a sworn Chattanooga Police Officer with theNarcotics Division, where I have been assigned for over15 years, and a commissioned Special Deputy Sheriff forHamilton County, Tennessee.2. On the 11th day of October 1995 I Gary Lomenickreceived information from an informant, a responsibleand credible citizen of the county and state, who I knowto be a responsible and credible citizen because, I haveknown said informant for 5 years and said informant hasgiven me information about individuals involved incriminal activity in the past that has proven to be reliable.Said informants’s name whom I have this day disclosedto the Judge to whom this application is made, that [sic]John Doe (Alias) Red Dog who resides in or occupiesand is in possession of the following described premises910 North Market Street, apartment directly underneathcarport located in Chattanooga, Hamilton CountyTennessee, unlawfully has in his possession on saidpremises legend and/or narcotic drugs including Cocainein violation of law made and provided in such cases.3. On the 11th day of October 1995 said informantadvised me that said informant was on the premises ofthe said John Doe (Alias) Red Dog located at 910 North4United States v. AllenNo. 96-6313Market Street, apartment directly underneath carportwithin seventy-two hours prior to our conversation onOctober 11th, 1995 and while there saw Cocaine inpossession of the said John Doe (Alias) Red Dog[.]WHEREFORE, as such officer acting in performanceof my duty in the premises I pray that the Court issue awarrant authorizing the search of the said John Doe(Alias) Red Dog and the premises located at 910 NorthMarket Street, apartment directly underneath the carport,for said legend and/or narcotic drugs including Cocaineand that such search be made either by day or by night.Id. at 296-97.Lomenick executed the warrant that day, with a team ofother officers. When they approached the building, Allen,who was on a porch, saw them and fled inside. The officersgave chase. As Allen ran past a closet, the police heard a loudthump, and shortly thereafter found a 9-mm pistol on the floorof the closet. Allen left a trail of crack cocaine rocks behindhim as he fled. When he was apprehended, more rocks ofcrack were found in his pockets, totaling 9.3 grams in all.Allen was indicted on March 12, 1996. He was chargedwith (1) possession of cocaine base with intent to distribute,in violation of 21 U.S.C. § 841; (2) possession of a firearm inconnection with a drug offense, in violation of 18 U.S.C.§ 924(c); and (3) possession of a firearm by a convicted felon,in violation of 18 U.S.C. § 922(g). In a motion filed on April18, 1996, he moved to suppress the evidence as illegallyseized, alleging that the indictment was based on aninsufficient affidavit, one that did not provide probable cause,since it did not claim or detail any expertise or previousreliability innarcoticscontexts on the part of the CI. Thedistrict court referred the motion to a magistrate judge for areport and recommendation, which was filed May 15, 1996,and which recommended the motion’s denial. Thisrecommendation was adopted by the district court in an orderfiled May 31, 1996. Allen pled guilty to counts (1) and (2)pursuant to a plea agreement entered on June 14, 1996, andNo. 96-6313United States v. Allen33the warrant was applied for and issued prior to theWeaverdecision.SeeUnited States v. Weaver,99 F.3d 1372 (6th Cir. 1998).WeaversimplyinterpretedLeonand applied it to the facts of the case before it;Weavercertainly did not – and in fact could not – change the exceptions to thegood faith provision as articulated by the Supreme Court.See id. at1380-81;see also supranote 1. BeforeWeaverwas decided, and indeed untilthe Supreme Court states otherwise, an officer cannot have a good faithbelief in a warrant that is based upon nothing more than a bare bonesaffidavit. This isLeon’scommand, notWeaver’s, and it is the premiseupon which Lomenick was acting at the time he applied for the warrant,as well as the premise upon which his actions are judged.529, 532 (5th Cir. 1986) (finding that the case fell underLeon’sthird exception because an officer could not obtain awarrant based upon a bare bones affidavit, and then rely uponthe same bare bones affidavit to justify his alleged good faithbelief in the warrant).Indeed,Leonwas not intended to make a mockery of theFourth Amendment’s warrant requirement, but theconcurrence usesLeonexactly for that purpose today, andfulfills Justice Stevens’ prophetic concern regarding thepotential for abuse underLeon’s good faith exception: “Underthe . . . new rule, even when the police know their warrantapplication is probably insufficient, they retain an incentive tosubmit it to a magistrate, on the chance that he may take thebait. No longer must they hesitate and seek additionalevidence in doubtful cases.”Leon,468 U.S. at 974 (Stevens,J., concurring in part and dissenting in part).Accordingly, for the above stated reasons, I would reversethe district court’s order denying Defendant’s motion tosuppress the evidence because the affidavit submitted insupport of the warrant was nothing more than a ratification ofthe bare bones assertion of a reliable informant – which wasunsupported by any police corroboration or other indicia ofreliability – and therefore failed to establish probable cause.32United States v. AllenNo. 96-63134Likewise, because I believe that there is nothing to indicate thatLomenick held a good faith belief that the warrant was validly issuedbased upon the bare bones affidavit, I think it of little consequence thatfalls squarely within the third exception toLeon’sgood faithprovision – that the affidavit was so lacking in indicia ofprobable cause as to render official belief in its existenceentirely unreasonable, or that the warrant application wassupported by nothing more than a bare bones affidavit – sothat any doubt about the illegality of the search is put to rest.Id.at 914-15, 923. If the concurrence was correct in itsapplication ofLeonunder these facts, then any officer couldobtain a warrant on the bare, generalized assertions of aninformant secure in the knowledge that even if the warrantwas held invalid for a lack of probable cause, the searchwould be saved by nothing more than the officer’salleged“good faith.” Surely every officer seeking a warrantinherently makes such an allegation; however,Leonexpresslystates that more is needed for the good faith exception toapply --i.e.,there must be evidence that the officer had anobjective good faith belief.Seeid.It is precisely the lack ofobjectiveevidence to support afinding of good faith necessary to save the search that takesthis case out ofLeon’sreach. Although the concurrenceagrees that the warrant was not supported by probable causebecause “in the absence of greater specificity, the specialjudge who issued the warrant in this case could not have hada substantial basis for concluding that a search of Allen’sresidence would uncover any illegal drugs,” it goes on to holdthatLeonapplies to save the illegal search because Lomenickheld a good faith belief that the warrant was valid, withoutany further support for this declaration. I believe that onecannot legally or logically agree that the affidavit was sowoefully lacking in any indicia of specificity that it failed toprovide the magistrate with a substantial basis to concludethat probable cause existed to allow the warrant to issue, andyet conclude that based upon the same woefully lackingaffidavit, Lomenick’s belief in the warrant’s existence wasreasonable.4See, e.g., United States v. Barrington,806 F.2dNo. 96-6313United States v. Allen5was sentenced to sixteen years and three months in prison.He had reserved his right to appeal, and an appeal to this courtensued.IIOur review of the sufficiency of an affidavit underlying asearch warrant follows, as it must, the principles laid down bythe Supreme Court inIllinois v. Gates, 462 U.S. 213 (1983).There, the Court rejected the rigid tests that had evolved aslower courts attempted to implement earlier Supreme Courtdecisions, in favor of a “totality of the circumstances”approach.Id.at 230-31 (abandoning the inflexible two-parttest developed in the light ofAguilar v. Texas, 378 U.S. 108(1964), andSpinelliv. United States,393 U.S. 410 (1969)).The Court explained its deviation from the earlier approach inthis way:“[V]eracity,” “reliability” and “basis of knowledge” areall highly relevant in determining the value of [a CI’s]report. We do not agree, however, that these elementsshould be understood as entirely separate andindependent requirements to be rigidly exacted in everycase . . . . Rather, . . . they should be understood simplyas closely intertwined issues that may usefully illuminatethe commonsense, practical question whether there is“probable cause” to believe that contraband or evidenceis located in a particular place.Id.at 230.Gatesalso guides our deference to the issuing magistrate’sdetermination of probable cause: “line-by-line scrutiny [of anunderlying affidavit is] . . . inappropriate in reviewing [a]magistrate[’s] decisions.”Id.at 246 n.14. The Courtemphasized in that case that it had “repeatedly said that afterthe-fact scrutiny by courts of the sufficiency of an affidavitshould not take the form of de novo review.”Id. at 236. Itsoundly rejected “[a] grudging or negative attitude byreviewing courts toward warrants”Ibid. (quotingUnitedStates v. Ventresca, 380 U.S. 102, 108 (1965)). Rather,6United States v. AllenNo. 96-6313reviewing courts are to accord the magistrate’s determination“great deference”Ibid. (quotingSpinelli, 393 U.S. at 419).The Court stressed that a hypertechnical critique of warrantswould only, in the end, encourage warrantless searches,undermining the very Fourth Amendment right such anapproach would seek to protect. Instead, it reaffirmed thetraditional standard:Reflecting this preference for the warrant process, thetraditional standard for review of an issuing magistrate’sprobable cause determination has been that so long as themagistrate had a “substantial basis for . . . conclud[ing]”that a search would uncover evidence of wrongdoing, theFourth Amendment requires no more.Ibid. (quotingJones v. United States, 362 U.S. 257, 271(1960)). This circuit has long held that an issuingmagistrate’s discretion should only be reversed if it wasarbitrarily exercised.See United States v. Swihart, 554 F.2d264, 267-68 (6th Cir. 1977).TheAllenpanel examined for guidance three decisions ofthis court, formulated in the light ofGates. These are:United States v. Pelham, 801 F.2d 875 (1986);United Statesv. Finch, 998 F.2d 349 (1993); andUnited States v. Weaver,99 F.3d 1372 (1996). But as the dissent inAllenpointed out,these cases themselves, particularly the last, would appear toyield an inconsistent standard; the hope was accordinglyexpressed that this court, sittingen banc, would “clarify thelaw in this circuit regarding the necessary requirements for theissuance of a search warrant based on uncorroboratedinformation from an informant.” 168 F.3d at 308 (Gilman, J.,concurring in part and dissenting in part).Pelhamheld that an affidavit naming an informant, andstating that the informant had personally observed marijuanabeing stored and sold on certain premises in the immediatepast, provided a “substantial basis” for believing that a searchwould uncover evidence of criminal activity there, andtherefore was sufficient for a magistrate to find that probablecause existed for a warrant to issue.No. 96-6313United States v. Allen31was lacking in specificity and detail, and was not corroboratedby independent police investigation. As emphasized above,the particularized inquiry under a totality of the circumstancesas prescribed byGatesis not limited to those instances wherethe informant was anonymous.III.My opinion should not be mistaken as a call to return to therigid mandates ofAguilarandSpinelli. To the contrary, theSupreme Court has made clear that the factors required bythese decisions best lend themselves to a probable causeanalysis when they are balanced and weighed in light of thetotality of the circumstances.Gates,462 U.S. at 230-31. TheCourt has also directed that the credibility and persuasivenessof one factor can compensate for the lack of the other in orderto support a finding of probable cause.Id.at 238-39.However, with equal force the Court has commanded thatboththe veracity or reliability of the informant as well as thebasis for knowledge of the tip must be weighed andconsidered,see id.at 230-31; contrariwise, the rule espousedby the majority today allows for a warrant to issue basedsimply upon a generalized assertion regarding the reliabilityof the informant. Such a result finds no support inGatesandsurely no support in the history of the Fourth Amendment.Under the majority’s approach, the Fourth Amendment’swarrant requirement is eviscerated, and now amounts to littlemore than an inconsequential formality and a mere “form ofwords.”See Silverthorne Lumber Co. v. United States,251U.S. 385, 392 (1920). As a result, the citizens in this circuitcannot rest easily or feel secure in their homes againstunreasonable searches and seizures.On a final note, I disagree with the concurrence that theillegal search is saved by the good faith exception to thewarrant requirement as enunciated inUnited States v. Leon,468 U.S. 897 (1984). Like its hyperbolic “apocalypticsentiments” language, the concurring opinion’s belief that“Lomenick ‘acted in objective good faith’ when he relied onthe warrant” as set forth inLeon,is unfounded. This case30United States v. AllenNo. 96-6313considered the totality of the circumstances to provide therequisite particularity for the warrant to issue. In the instantcase, however, the majority makes probable cause afaitaccomplionce the informant’s tip is considered. It is notcoincidental or a mere slip of the pen that the majority citesno authority for its sweeping declaration.However, support for my position is well-steeped not onlyinGates, but also in the Supreme Court’s decision inAlabama v. White,496 U.S. 325, 330 (1990), wherethe Courtarticulated the standard for “reasonable suspicion.”Specifically, the Court found that although “reasonablesuspicion is a less demanding standard than probable cause[,]. . . like probable cause, [reasonable suspicion] is dependentuponboththe content of information possessed by policeandits degree of reliability.Both factors – quantity and quality– are considered in the ‘totality of the circumstances – thewhole picture.’”See id.(emphasis added) (quotingUnitedStates v. Cortez,449 U.S. 411, 417 (1981));see also Floridav. J.L., ___U.S.___,No. 98-1993, 2000 WL 309131 (Mar.28, 2000). It logically follows that if reasonable suspicion, astandard less demanding than probable cause, cannot be foundwithout a consideration of both the quantity and quality of theinformation provided, surely probable cause cannot be foundwithout a consideration of both of these factors.Furthermore, the majority makes a futile attempt todistinguish those cases where the affidavits were found to beinsufficient to establish probable cause, solely on the basisthat the informant was anonymous or that the affidavit waslacking as to the informant’s reliability.See Ante(citingUnited States v. Reddrick,90 F.3d 1276, 1280 (7th Cir.1996);United States v. Leake,998 F.2d 1359, 1365 (6th Cir1993);United States v. Gibson,928 F.2d 250, 253 (8th Cir.1991);United States v. Mendonsa,989 F.2d 366, 369 (9thCir. 1993)). In my opinion, these cases are indistinguishablefrom the case at hand andsupportmy position, as well as theposition of theunanimousAllenpanel, that the affidavit failedto provide a substantial basis to believe that Defendant wasengaged in the criminal activity alleged because the affidavitNo. 96-6313United States v. Allen71A contrary approach, taken by the Illinois courts, was used by theSupreme Court as an example of the folly to which rigid application of the“two-prong” test can lead.SeeGates, 462 U.S. at 235 n.9 (citing Peoplev. Palanza, 55 Ill. App. 3d 1028, 371 N.E.2d 687 (Ill. App.1978)(holding a warrant invalid because “[t]here is no indication as to how theinformant or for that matter any other person could tell whether a whitesubstance was cocaine and not some other substance such as sugar orsalt.”)).Finchupheld the sufficiency of an affidavit to establishprobable cause, against challenges both that the informant’sreported observation of cocaine on the premises wasspeculative, since he couldn’t “know” the substance wascocaine, and that the affidavit was merely conclusory.Rejecting these contentions, the court inFinchpointed outthat, given the informant’s stated experience and pastreliability in drug cases, the informant could reasonably beassumed to be familiar with cocaine and able to identify it byobservation,1and that an affidavit setting out the reasons fora belief, as opposed to merely stating a belief, is notconclusory. 998 F.2d at 352. Such is the case here.InWeaver, a panel of this court weighed the sufficiency ofan affidavit used to obtain a warrant to search the residence ofGary Weaver for marijuana believed to be held there inquantity for distribution. The CI, after providing an initial tipbased on hearsay, was furnished with $100 and instructed togo to Weaver’s house and make a buy. He did so, informingthe police of his purchase of a half-ounce of marijuana fromWeaver, and of his belief (though without personalobservation) that Weaver was growing marijuana at home.The resulting affidavit indicated that the CI, unnamed in theaffidavit but named to the magistrate, was known to bereliable, having provided information about drug activity inthe past, and that he had personally observed marijuana inWeaver’s house. (The affidavit did not mention the halfounce drug sale, for which the police did not intend to chargeWeaver.) The officers who subsequently searched the housefound a quarter-ounce of marijuana, for which Weaver wasnot prosecuted; nor was he prosecuted for the misdemeanor8United States v. AllenNo. 96-6313sale to the CI. But the police also found several rifles, andWeaver, a convicted felon, was charged with unlawfullypossessing them.In finding the affidavit insufficient to establish probablecause for the warrant to issue, reversing the district court, theWeaverpanel noted that the stated purpose of the search wasto find evidence of suspected drug dealing; yet the affidavititself had contained no information about the purchase the CIwas supposed to have attempted, nor about the quantity ofmarijuana he observed, nor any other facts which wouldsupport a belief that drugs were being held in the house forsale. As this court observed ofWeaverin another case, whatwas lacking in theWeaveraffidavit was any indication ofprobable cause to suspect drugtrafficking, the offense forwhich the warrant was expressly being sought.See UnitedStates v. Smith, 182 F.3d 473, 480 (6th Cir. 1999). But thatwas not in itself fatal, since an affidavit need only provideprobable cause to believe a search will uncover evidence ofsome wrongdoing, without need for further specificity.SeeUnited States v. Anderson, 923 F.2d 450, 457 (6th Cir. 1991)(holding “that knowledge of the precise crime committed isnot necessary to a finding of probable cause provided thatprobable cause exists showing that a crime was committed bythe defendants”). What was finally fatal in theWeaveraffidavit was its lack of probable cause to believe anymarijuana previously observed by the CI would be left to bediscovered by a search, for there was no mention of thequantity of drugs observed. Nor was there any attempt to notebehavior indicating ongoing sales.AsWeaverpointed out, in an effort to keep secret theidentity of a CI, the affidavit had been stripped of almost allparticularity, and been reduced to “bare bones,” with littleadded to the boilerplate language kept on file. In thatsituation, the panel held that other particularized facts, notidentifying the CI, but obtained, for example, through policesurveillance, should have been adduced to buttress the CI’sinformation, if preserving his identity prevented the affidavitfrom going into further detail.See Weaver, 99 F.3d at 1378.No. 96-6313United States v. Allen29not enough without any meaningful follow up by the police.Id.at 55. In Judge Merritt’s opinion, to hold otherwise“reduced the castle to a hovel where the state may presumethat marijuana is grown” or other contraband is kept.Id.at55. The same holds true in the case at hand. Contrary to themajority’s holding today, the fact that the informant is knownto the officer and has provided reliable information in the pastdoes nota fortiorimake the second factor irrelevant or endthe inquiry.Indeed, nowhere inGatesis there support for the majority’ssweeping holding. Although it is true that the informant inGateswas anonymous, the pronouncements made thereinregarding the relevant inquiry into whether the informationreceived by an informant provides a substantial basis fordetermining probable cause were not limited to the casewhere the informant was anonymous. The Court easily couldhave held that the balancing of reliability and basis ofknowledge under a totality of the circumstances is limited tothose instances where the informant was unknown or had notprovided reliable information in the past. However, theSupreme Court did no such thing. The only qualifier that wasplaced upon the instance where a “particular informant isknown for the unusual reliability of his predictions of certaintypes of criminal activities in a locality” is that theinformant’s “failure . . . to thoroughly set forth the basis of hisknowledge surely should not serve as an absolute bar to afinding of probable cause based on his tip.”Id.at 233. Themajority’s holding that “[a]n affidavit based upon personalobservation of criminal activity by a confidential informantwho has been named to the magistrate and who, as the affiantavers, has provided reliable information to the police in thepast about criminal activity, though without further specificityas to the type of such activity, can be sufficient for amagistrate to find probable cause to issue a warrant[,]”convolutes the pronouncement inGates.In other words, theSupreme Court inGatesheld that a tip lacking in detail orspecificity from a known confidential informant should notprove an absolute bar to finding probable cause, because otherindicia of reliability (the basis for knowledge) would be28United States v. AllenNo. 96-6313requirement is not a factor to be assumed or a meretechnicality; it is an express constitutional command.See,e.g., Ybarra v. Illinois,444 U.S. 85, 92 (1979);Lo-Ji Sales,Inc. v. New York,442 U.S. 319 (1979);Marron v. UnitedStates,275 U.S. 192, 196 (1927).This affidavit lacked anyindicia of basis of knowledge, and the magistrate simplyratified the bare bones assertions made in the affidavit whenhe issued this warrant, contrary to the Supreme Court’scommand under the Fourth Amendment.See Gates, 462 U.S.at 239. As stated, the fact that the informant was known andreliable is not enough, by itself, to provide a substantial basisto the issuing magistrate that Defendant was engaged in thecriminal activity alleged.See, e.g., United States v. McNatt,931 F.2d 251, 253 (4th Cir. 1991) (finding that theinformation provided by the known, reliable informant wassufficient to establish probable cause underGatesbecause theinformation was specific in nature and corroborated by thepolice).In a case from this circuit where the converse was true –i.e., the affidavit while being rich in detail was from ananonymous tip in which minimal corroborative efforts weretaken by the police – one panel member disagreed with themajority that the affidavit supported a finding of probablecause.See United States v. Sonagere,30 F.3d 51, 55 (6th Cir.1994) (Merritt, J., dissenting). Judge Merritt noted that “ifdetail is all that is needed to support a search warrant, theFourth Amendment will no longer be any constraint or checkon the issuance of search warrants. Any ‘detailed’information, uncorroborated by the police, from virtually anyunknown, unreliable source, would support issuance of asearch warrant.”See id.Judge Merritt disagreed with themajority that the specific nature of the tip was sufficient tocompensate for the fact that the information source had neverbeen used before and that the affidavit failed to provide anyindication of the reliability of the source; however, he foundit “[e]ven more troubling [that] the officers did nothing tocorroborate any of the information or develop independentinformation that might supplement that of the informationsource.”Id.at 54. The fact that the tip was rich in detail wasNo. 96-6313United States v. Allen9Weaver’s holding that the uncorroborated search warrantwas defective is limited to the facts of that case.Weaverdoesnot support the general propositions that a CI’s informationmust always be independently corroborated by police, or thatan affidavit must in every case set out and justify a CI’sexpertise in identifying the particularities of the criminalactivity alleged, propositions we reject for the reasons thatfollow.IIIIn applyingGatesto the circumstances before it, theAllenpanel referred to the “totality of the circumstances” approachof that decision as a “test,” and then applied this “test’ in atwo-factor analysis, indicating that a CI’s information wouldgain significant weight when supported by (1) explicit anddetailed description gleaned from first-hand observation, and(2) independent investigative corroboration.Allen, 168 F.3dat 298. No doubt this is so, but the question is whether thesefactors are requirements, both of which must be satisfied tocomply with the Fourth Amendment’s bar againstunreasonable searches and seizures.SeeU.S. Const. amend.IV. As the Court observed inGates, tests and prongs have anunfortunate tendency to develop a life of their own, and tendto draw more attention to their individual characteristics thanto the totality of the circumstances.SeeGates, 462 U.S. at230 n.5 (criticising “[t]he entirely independent character thattheSpinelliprongs have assumed”). That is what hashappened here.The majority of the panel that heard Allen’s appeal to thiscourt criticized the affidavit on four grounds. First, it is notspecific as to the type or amount of cocaine observed in theresidence to be searched. Second, facts bearing on theinformant’s familiarity with the appearance of cocaine are notprovided. Third, especially in the light of the secondobjection, independent police corroboration is lacking.Fourth, the text was largely prefabricated boilerplate,supposedly encouraging the lack of specificity alreadycomplained of.See Allen, 168 F.3d at 302.10United States v. AllenNo. 96-6313These complaints do not call for individual rebuttal. Theaffidavit is judged on the adequacy of what it does contain,not on what it lacks, or on what a critic might say should havebeen added. It is the totality of the circumstances thatpersuade us that the affidavit in the instant case was, in fact,not merely “conclusory and ‘bare bones’” in nature butsufficient. The panel wrote: “the affidavit failed to provideany facts about the informant’s knowledge or familiarity withthe appearance of cocaine. Instead, the affidavit merely statedthat the tips of ‘criminal activity’ provided by the informantin the past have ‘proven to be reliable.’”Ibid. But in fact, theaffidavit states under oath that the affiant, DetectiveLomenick, has known the CI for five years, that Lomenick hasbeen assigned to the Narcotics Division for fifteen years, andthat “said informant has given me [Lomenick] informationabout individuals involved in criminal activity in the past thathas proven to be reliable.”Id.at 296. It is obvious on theface of the affidavit that such information in the past mostlikely concerned narcotics. Affidavits are not required to usemagic words, nor does what is obvious in context need to bespelled out; if a CI saw guns, he is not required to explainhow he knew what a gun looks like. Nor is an affidavitrequired to present proof that would without questionwithstand rigorous cross-examination. Clearly, this CI’s pastexperience with the drug trade was reflected anew in thecircumstances of this case. Taken as a whole, the affidavitprovided sufficient facts from which the magistrate coulddraw an independent conclusion as to the probability(certainty isnotrequired) of what it alleged a search woulddisclose. There was nothing arbitrary about a conclusion that,in this case, probable cause existed.SinceGates, affidavits have been found insufficient forvarious deficiencies, none of them exhibited here. Forexample, a merely conclusory statement of the affiant’s beliefin an informant’s past credibility, unsupported by furtherdetail, failed to pass muster in the Seventh Circuit.SeeUnited States v. Reddrick, 90 F.3d 1276, 1280 (7th Cir. 1996).That result complies withGates’s requirement that theinformation presented to the magistrate in the affidavit beNo. 96-6313United States v. Allen27drugs without compromising their case or a potentialconviction. Here, any indicia of corroboration by Lomenicksuch as minimal surveillance of Defendant’s residence todetermine a pattern of drug activity, or simply asking for moredetails from the informant would have assisted in providingthe magistrate a more particularized basis for determiningprobable cause. However, Lomenick failed to so much asprovide a statement that he had dealt with this informant inrelation to Lomenick’s duties as a narcotics officer, or thatthis informant had provided information which had led tonarcotics convictions in the past.The majority engages in speculation or conjecture in orderto supply the requisite indicia of reliability to this affidavitwhen it assumes, without more, that Lomenick’s dealing withthe informant involved narcotics. (“It is obvious on the faceof the affidavit that such information in the past most likelyconcerned narcotics.”) The majority bases thisassumptiononthe fact that Lomenick has worked in the narcotics divisionfor fifteen years and has known the confidential informant forfive years – not because of any information derived from theaffidavit itself. It is well known that criminal activityassociated with illegal narcotics also includes a bevy of othercriminality such as prostitution, gambling, illegal firearms,burglary, and various other illegal means to finance drugoperations and use. As such, without more specificityconcerning the type of information this informant hadprovided in the past, it is impossible to determine “on the faceof the affidavit” whether Lomenick’s past dealings with thisinformant directly involved illegal narcotics transactions, orwhether his dealings with this informant dealt with othertypes of criminal activity.Gatescommands a reviewing court to weigh and balancethe evidence presented before it;Gatesdoes not command --and indeed could not legally command under the FourthAmendment -- that a reviewing court compensate fordeficiencies in the affidavit by engaging in speculation orconjecture.SeeU.S.CONST.amend. IV;Gates, 462 U.S. at230-31. Contrary to the majority’s assertion, the specificity26United States v. AllenNo. 96-63133The majority seems to imply that theAllenpanel argued that policeinvestigation and corroboration are necessary in every case in order for awarrant to issue; however, theAllenpanel made no such argument and Imake no such averment here. Rather, as stated inGates, policecorroboration becomes valuable and particularly significant when the tipprovided by the informant lacks detail and specificity sufficient to complywith the particularity requirement of the Fourth Amendment.SeeGates,462 U.S. at 243-44. In fact, theAllenpanel began its analysis by statingthat “[t]his case asks us to decide whether the affidavit presented toSpecial Judge McColpin set forth sufficient particularized facts for thejudge to find a substantial basis for probable cause to issue the searchwarrant . . . .”See United States v. Allen, 168 F.3d at 297. It is the lackof specificity of the informant’s tip coupled with the lack of anycorroboration by the police that should have been fatal to the affidavithere, as theAllenpanel found.had provided reliable information regardingnarcoticsin thepast; it failed to provide any information as to where thecocaine was being stored or sold; and it failed to indicate theamount of cocaine that was allegedly seen or any basis as towhy the informant had reason to believe that the substancewhich he allegedly observed was cocaine. As such, theaffidavit failed to provide a substantial basis that cocainewould likely be found in Defendant’s possession on thepremises some seventy-two hours later.See United States v.McKinney, 143 F.3d 325, 328 (7th Cir. 1998) (noting that “[a]search warrant should not issue except on probable cause thatevidence of a crime iscurrentlylocated at aparticularplace”(emphasis added)).Moreover, the affidavit failed to indicate any corroboratingefforts by the police which, as stated by theAllenpanel, mayhave changed the outcome here.3The majority’s concern fordetectives conducting surveillance in crack-riddenneighborhoods or for investigative measures addingadditional time for the “highly mobile” drug operations torelocate, are unfounded and completely unsupported by therecord. Drug interdiction officers such as Lomenick aretrained to carry out such tasks as surveying suspectedresidences in crack-ridden neighborhoods, and determiningthe pattern of activity of those suspected of dealing in illegalNo. 96-6313United States v. Allen11sufficient to allow “that official” to assess probable causeindependently, and not merely to rubber-stamp the affiant’sconclusion.See Gates, 462 U.S. at 239.This court has upheld a district court’s finding that noprobable cause existed when a warrant was issued based onan affidavit whose information came from an anonymous tipsparse in detail and wholly uncorroborated by the police.SeeUnited States v. Leake, 998 F.2d 1359, 1365 (6th Cir. 1993).The Eighth Circuit also found no probable cause provided byan affidavit also based on an anonymous tip, albeit one rich inparticulars, where police investigation corroborated onlyinnocent details and found nothing suspicious.See UnitedStates v. Gibson, 928 F.2d 250, 253 (8th Cir. 1991). TheNinth Circuit invalidated a warrant under very similarcircumstances.See United States v. Mendonsa, 989 F.2d366, 369 (9th Cir. 1993). These cases rightly insisted uponsubstantial independent police corroboration, because of theabsence of any indicia of the informants’ reliability.Gateshad turned on precisely such a question, and emphasized theneed for corroboration in those circumstances.See462 U.S.at 244.That is not a factor here. The CI was not anonymous, butpersonally known to the detective who swore the affidavit,and who revealed the CI’s name to the magistrate. The CI’sreliability in criminal matters in which the detective wasinvolved had extended over a five-year period. Theinformation alleged was of direct personal observation ofcriminal activity. Corroboration is not a necessity in such acase. A requirement that information from such a CI shouldinvariably have to be personally corroborated by furtherpolice investigation would aid lawbreakers, as detectives triedto conduct surveillance in crack-ridden neighborhoodswithout themselves being detected and their suspects alerted.Moreover, the additional time thus added to the process bymandating an independent police investigation following aCI’s contact would provide a further advantage to drugdealers’ already highly mobile, hit-and-run operations. Wedecline to handicap the state in that way.12United States v. AllenNo. 96-6313Nevertheless, a caveat is in order. Police should be awarethat failure to corroborate all that can easily be corroboratedincurs two dangers. The first is to risk that a warrant will notissue where it should. The second is to risk the loss, at trialor on appeal, of what has been gained with effort in the field.But while better investigative work is preferable to merelyadequate investigation, it is not the constitutional measure ofprobable cause.At bottom, we return to the basics of the FourthAmendment: is there “probable cause” to believe thatevidence of a crime will be found in the search? We hold thatwhere a known person, named to the magistrate, to whosereliability an officer attests with some detail, states that he hasseen a particular crime and particular evidence, in the recentpast, a neutral and detached magistratemaybelieve thatevidence of a crime will be found. There is, of course, noguaranteethat the evidence will still be there, but themagistrate may determine that such a probability exists. Thisholding requires evidence sufficient to provide a basis for thatjudgment. It cannot properly be characterized, in the dissent’sterms, as “driv[ing] a stake through the very heart of theFourth Amendment” or “mak[ing] a mockery of the FourthAmendment’s warrant requirement.” Such a descriptioncannot be used “in the extreme acceptance of th[os]e word[s]without some risk of terminological inexactitude,” to employChurchill’s phrase.See1 Winston S. Churchill,HisComplete Speeches 1897-1963562 (Robert Rhodes James,ed.).IVFor the foregoing reasons the judgment of the district courtisAFFIRMED.No. 96-6313United States v. Allen25Said differently, the affidavits submitted inAguilarandNathansonwere insufficient to allow the issuing magistrateto determine probable cause because they lacked reliableinformation; the magistrate’s determination otherwise wouldhave improperly been “a mere ratification of the bareconclusions of others.”Gates, 462 U.S. at 239. Although theinformation may have been attested to as being “reliable,” itlacked any indicia of specificity or corroboration. Indeed, theAguilarCourt found that had the police made some efforts atcorroborating the “reliable” informant’s tip, “an entirelydifferent case” would have been presented.See Aguilar, 378U.S. at 109 n.1.The value of corroborative police efforts was alsoemphasized inGates.Specifically, the Court found twofactors significant in allowing a reviewing court to assesswhether an informant’s tip provides a substantial basis toconstitute probable cause. First, an “explicit and detaileddescription of alleged wrongdoing, along with a statementthat the event was observed firsthand, entitles [theinformant’s] tip to greater weight that might otherwise be thecase.”Gates,462 U.S. at 234. Second, the extent to whichthe tip is corroborated by the police officer’s owninvestigation is significant.Id.at 244.Despite these clear directives from the Court that both thereliability as well as the basis of knowledge of the informationmust be considered in light of the totality of the circumstancesto insure that a warrant does not issue based upon the barebones conclusions of others, the majority today holds that awarrant may issue based upon the averment made by areliable informant, regardless of the lack of specificity orindependent corroboration. The warrant at issue simplyaverred that 1) the affiant had known the informant for fiveyears and that the informant had provided information in thepast that had proven to be reliable; 2) that the informant’sname was provided to the magistrate; and 3) that informanthad seen Defendant in possession of cocaine at Defendant’shome approximately seventy-two hours prior to informing theaffiant. The affidavit lacked any indication that this informant24United States v. AllenNo. 96-6313the officer attest “with some detail” as to the informant’s reliability.Instead, the magistrate was simply provided with a general assertion madeby an informant, whom Lomenick had known for five years and who hadprovided information regarding “criminal activity” in the past, thatDefendant was in possession of “legend and/ or narcotic drugs includingCocaine” on his premises. As discussed more fullyinfrain this dissent,this generalized assertion fails to pass constitutional muster under theFourth Amendment – and indeed fails even under the majority’s holdingas expressed in Section III – because it lacks specificity and particularityas to the quantity or location of the illegal drugs, or as to why thisinformant had a basis of knowledge for making his assertion, especiallywhere Lomenick did nothing to corroborate the tip. Furthermore, I find itof no consequence that a magistrate is provided with the name of theinformant, particularly in this case where there is nothing in the record tosuggest that the informant’s name was of any meaning to the magistrate --i.e., the name had no bearing in establishing a substantial basis to believethat criminal activity was afoot (probable cause). To borrow fromShakespeare, “What’s in a name! that which we call [an informant] Byany other name would smell as [unreliable.]”SeeWILLIAMSHAKESPEARETHECOMPLETEWORKS,ROMEO ANDJULIETact 2, sc. 1, 254(Dorset Press1988).In fact, theGatesCourt provided examples of cases which“illustrate[d] the limits beyond which a magistrate may notventure in issuing a warrant.” 462 U.S. at 239. Included inthese examples were those instances when the warrant wasbased upon a “wholly conclusory statement” which providedthe magistrate with no basis at all for making an informedjudgment. One such example was in the case ofAguilarwhere an officer’s statement that “[a]ffiants have receivedreliable information from a credible person and do believethat heroin” is stored in the home, was found to beinsufficient to provide the magistrate with probable cause toissue the warrant.See Id.(quotingAguilar,378 U.S. at 109).Likewise, inNathanson v. United States, the Supreme Courtfound that the affiant’s sworn statement that “‘he has cause tosuspect and does believe that’ liquor illegally brought into theUnited States is located on certain premises” was notsufficient because it was merely a wholly conclusorystatement which failed to provide the magistrate with asubstantial basis upon which to issue the warrant.See462U.S. at 239 (quotingNathanson, 290 U.S. 41, 44 (1933)).No. 96-6313United States v. Allen13_____________________CONCURRENCE_____________________RONALD LEE GILMAN, Circuit Judge, concurring in thejudgment. Although I agree with the majority’s ultimateconclusion that the district court did not err in denyingAllen’s motion to suppress, I write separately because myreasoning is not based on the validity of the warrant itself, butrather on the good faith exception to the warrant requirementas established byUnited States v. Leon, 468 U.S. 897 (1984).I agree with the dissent’s position that the warrant in thiscase was deficient, but do not share its somewhat apocalypticsentiments. The key language of the underlying affidavitsimply stated that “[defendant] . . . unlawfully has in hispossession on said premises legend and/or narcotic drugsincluding Cocaine” and that the informant “while there sawCocaine in possession of the said [defendant] . . . .” Noinformation was provided as to quantity, storing, or selling.Based on the information provided, the informant may haveobserved nothing more than Allen possessing one or tworocks of crack cocaine, which could have been quicklyconsumed. Thus, in the absence of greater specificity, thespecial judge who issued the warrant in this case could nothave had a substantial basis for concluding that a search ofAllen’s residence would uncover any illegal drugs.SeeIllinois v. Gates, 462 U.S. 213, 230-31 (1983) (adopting the“totality of the circumstances” test as the controlling standardin determining probable cause for search warrants).I therefore agree with the dissent’s conclusion that therewas an absence of probable cause to support the issuance ofthe search warrant in question.See Zurcher v. The StanfordDaily, 436 U.S. 547, 556-57 n.6 (1978) (quoting withapproval the following statement: “Search warrants may beissued only by a neutral and detached judicial officer, upon ashowing of probable cause—that is, reasonable grounds tobelieve—that criminally related objects are in the place which14United States v. AllenNo. 96-6313the warrant authorizes to be searched,at the time when thesearch is authorized to be conducted.”) (emphasis added);United States v. McKinney, 143 F.3d 325, 328 (7th Cir. 1998)(“A search warrant should not issue except on probable causethat evidence of a crime is currently located at a particularplace.”);United States v. Finch, 998 F.2d 349, 352 (6th Cir.1993) (“Probable cause for the issuance of a search warrant isdefined in terms of whether the affidavit sets out facts andcircumstances which indicate a fair probability that evidenceof a crimewill be located on the premises of the proposedsearch.”) (citation and internal quotation marks omitted)(emphasis added).Despite these deficiencies, however, I believe thatDetective Lomenick “acted in objective good faith” when herelied on the warrant.Leon, 468 U.S. at 908. InLeon, theSupreme Court held that the exclusionary rule does not “barthe admission of evidence seized in reasonable, good-faithreliance on a search warrant that is subsequently held to bedefective.”Id.at 905. The proper test of an officer’s goodfaith is “whether a reasonably well trained officer would haveknown that the search was illegal despite the magistrate’sauthorization.”Id.at 922 n.23. Here, Lomenick presented aneutral judicial officer with an affidavit stating that he hadinformation about the presence of illegal drugs at a specificlocation from a reliable informant that was based on recent,personal observation.After examining the warrant under the microscope of closelegal analysis, I agree with the dissent’s conclusion that theunderlying affidavit lacked sufficient specificity to passconstitutional muster. I cannot further conclude, however,that the affidavit at issue was “so lacking in indicia ofprobable cause as to render official belief in its existenceentirely unreasonable.”Leon, 468 U.S. at 923 (citations andinternal quotation marks omitted);see also United States v.Cardall, 773 F.2d 1128, 1133 (10th Cir. 1985) (“Courtscannot make the good faith of an officer turn upon whetherhis reliance on a warrant was misplaced. It is only when theNo. 96-6313United States v. Allen232The majority’s holding as articulated in the last paragraph of SectionIII of the opinion does not change my position. I specifically note thedichotomy between the holding set forth by the majority in the firstparagraph of the opinion, and its holding – rephrased in response to thisdissent – set forth in Section III. Which is to say, the majority retreatssomewhat from its holding as set forth at the outset of the opinion in anapparent attempt to compensate for its failure to account for theparticularity requirement of the Fourth Amendment.Juxtaposing the phraseology of the holdings is helpful to illustrate mypoint. In the first paragraph of the opinion, the majority holds that “anaffidavit based upon personal observation of criminal activity by aconfidential informant who has been named to the magistrate and who, asthe affidavit avers, has provided reliable information to the police in thepast about criminal activity, though without further specificity as to thetype of such activity, can be sufficient for a magistrate to find probablecause to issue a warrant.” In the last paragraph of Section III, themajority attempts to strengthen the probable cause standard set forth in itsholding, when it states that “[w]e hold that where a known person, namedto the magistrate, to whose reliability an officer attests with some detail,states that he has seen a particular crime and particular evidence, in therecent past, a neutral and detached magistratemaybelieve that evidenceof a crime will be found.” Simply by adding the words “particular” and“detail” to its holding as couched in Section III, does not thereby renderthe majority’s reasoning and result compatible withGatesorconstitutional under the Fourth Amendment. Even when its additionalrhetoric is taken into account, the majority’s position is no stronger at theend of Section III than it was at the outset of its opinion.In fact, the majority’s holding as articulated in Section III only servesto undermine its conclusion that the warrant in this case was supported byprobable cause. The magistrate in this case wasnotprovided with a basisof knowledge of “aparticularcrime” and“particularevidence,” nor didbasis of knowledge of the tip. Although it is true that adeficiency in one of the prongs may be compensated by thestrength of the other prong, it is equally as true that both the“reliability” as well as the “basis of knowledge” prongsshould nonetheless be considered.See Gates,462 U.S. at238-39. The majority’s relaxed standard for finding probablecause is not supported byGatesand indeed fails to heed theSupreme Court’s mandate that “courts must continue toconscientiously review the sufficiency of affidavits on whichwarrants are issued” in order to insure that a magistrate doesnot abdicate his duty by issuing warrants based upon the “barebones” conclusions of others.2Id.at 239.22United States v. AllenNo. 96-6313balanced assessment of the relative weights of all thevarious indicia of reliability (and unreliability) attendingan informant’s tip, the “two-pronged test” hasencouraged an excessively technical dissection ofinformants’ tips with undue attention being focused onisolated issues that cannot sensibly be divorced from theother facts presented to the magistrate.Id.at 233-34 (citations and footnotes omitted; emphasisadded).In short, the Court inGatesabandoned the rigid “twoprong” test and in its place, reaffirmed the traditional totalityof the circumstances approach, holding that the elements ofthe two prong test are relevant factors to be balanced in lightof all of the information provided:The task of the reviewing magistrate is simply to make apractical, common-sense decision whether, given all thecircumstances set forth in the affidavit before him,including the “veracity” and “basis of knowledge” ofpersons supplying hearsay information, there is a fairprobability that contraband or evidence of a crime will befound in a particular place. And the duty of a reviewingcourt is simply to ensure that the magistrate had a“substantial basis for . . . conclud[ing]” that probablecause existed.Id.at 238-39 (citations omitted).II.The flaw in the majority’s holding in the case at hand liesin its failure to comply withGates’command to consider thetotality of the circumstances; instead, the majority relaxes theprobable cause requirement to a degree unsupported byGates,and allows for a warrant to issue based simply upon theaverment that the informant “has provided reliableinformation in the past about criminal activity . . . without thefurther specificity as to the type of such activity . . . .” Inother words, the majority’s holding fails to account for theNo. 96-6313United States v. Allen15reliance waswholly unwarrantedthat good faith is absent.”)(emphasis added).The dissent contends that, were my view to be adopted,“any officer could obtain a warrant on the bare, generalizedassertions of an informant secure in the knowledge that evenif the warrant was held invalid for a lack of probable cause,the search would be saved by nothing more than the officer’salleged‘good faith.’” I find this contention to be withoutmerit. As the Supreme Court inLeonemphasized, “thestandard of reasonableness . . . is anobjectiveone.”Id.at 919n.20 (emphasis added). Thus, the determination of whetherthe good faith exception applies in a particular case does notdepend on the subjective beliefs of the officers involved.SeeUnited States v. Maggitt, 778 F.2d 1029, 1035 n.3 (5th Cir.1985) (“Because theLeonstandard is objective, the testimonyof the agent who prepared the affidavit . . . is not particularlyrelevant.”);United States v. Gant, 759 F.2d 484, 487-88 (5thCir. 1985) (“[T]he determination of good faith will ordinarilydepend on an examination of the affidavit by the reviewingcourt.”).Furthermore, the warrant was applied for and issued priorto this court’s decision inUnited States v. Weaver, 99 F.3d1372 (6th Cir. 1998), in which a panel of this court held thatthe search warrant in question was defective primarilybecause the officer’s affidavit did not provide any “underlyingfactual circumstances to support the informant’s knowledgeregarding distribution, nor the detective’s own ‘belief’ that. . . quantities of marijuana were present ‘for the purpose orwith the intention of unlawful possession, sale ortransportation,’ or even that marijuana would be on thepremises when the warrant was executed.”Id.at 1378.Because theWeaverdecision—with its clear mandate that theunderlying affidavit must include specific informationconcerning the quantity, storing, or selling of illegaldrugs—was handed downafterthe judicial officer in this caseissued the warrant, it was all the more reasonable for anofficer such as Lomenick to have formed an objective goodfaith belief that the information supplied by the informant was16United States v. AllenNo. 96-6313sufficient under the authority ofUnited States v. Pelham, 801F.2d 875 (6th Cir. 1986), andUnited States v. Finch, 998 F.2d349 (6th Cir. 1993).The dissent characterizes this fact as having “littleconsequence” because “Weaversimply interpretedLeonandapplied it to the facts before it;Weavercertainly did not—andin fact could not—change the exceptions to the good faithprovision as articulated by the Supreme Court.” Thesearguments, however, do not diminish my point that an officershould not be expected to predict that warrant practicessimilar to what the courts have found acceptable in the pastwill subsequently fail to withstand the analysis of evolvinglegal decisions.Although not dispositive, it is also telling that the questionof whether the warrant in this case was defective hasgenerated significant debate among the judges of this court.See Leon, 468 U.S. at 926 (“The affidavit . . . providedevidence sufficient to create disagreement among thoughtfuland competent judges as to the existence of probable cause.”);United States v. Taxacher, 902 F.2d 867, 872 (11th Cir. 1990)(noting that the Supreme Court’s observation inLeon—thatreasonable jurists had disagreed on the issue—was “intendedto bolster the Court’s holding that the officer had actedreasonably under the circumstances”).In sum, I conclude that even though the affidavit in thiscase did not provide enough detail to establish probablecause, it was sufficient to fit within the “good faith” exceptionofLeon. The dissent apparently believes that Lomenick’sactions amount to “flagrant misconduct” (United States v.Hove, 848 F.2d 137, 141 (9th Cir. 1988)) and therefore the“extreme sanction” (Leon, 468 U.S. at 916, 926) of exclusionshould be imposed. Because I disagree, I would affirm thedenial of Allen’s motion to suppress, albeit for reasons otherthan those set forth by the majority.No. 96-6313United States v. Allen21“reliability” and “basis of knowledge” of the informant–] independent status. Instead, they are better understoodas relevant considerations in the totality of circumstancesanalysis that traditionally has guided probable causedeterminations: a deficiency in one may be compensatedfor, in determining the overall reliability of a tip, by astrong showing as to the other, or by some other indiciaof reliability.Id.at 232-33(citations, footnotes, and internal quotationmarks omitted).By way of example, the Court then emphasized thebalancing approach not only of the informants’ “veracity” or“reliability” and “basis of knowledge,” but the totality of thecircumstances in general.Gates,462 U.S. at 233. In doingso, the Court expressly provided a hypothetical scenario ofwhat the majority holds today as being decisively sufficientregarding the informant and the information he or she has soprovided, as well as other scenarios, noting that each scenarioshould beassessed under the totality of the circumstances todetermine whether the information provided establishedprobable cause.If, for example, a particular informant is known for theunusual reliability of his predictions of certain types ofcriminal activities in a locality, his failure, in aparticular case, to thoroughly set forth the basis of hisknowledge surely should not serve as an absolute bar toa finding of probable cause based on his tip.Likewise,if an unquestionably honest citizen comes forward witha report of criminal activity – which if fabricated wouldsubject him to criminal liability – we have found rigorousscrutiny of the basis of knowledge unnecessary.Conversely, even if we entertain some doubt as to aninformant’s motives, his explicit and detailed descriptionof alleged wrongdoing, along with a statement that theevent was observed first-hand, entitles his tip to greaterweight than might otherwise be the case. Unlike atotality of circumstances analysis, which permits a20United States v. AllenNo. 96-6313knowledge” – are all highly relevant. However, the Courtwent on to opine that these elements should not “beunderstood as entirely separate and independent requirementsto be rigidly exacted in every case [as they had been appliedby lower courts]. Rather, . . . they should be understoodsimply as closely intertwined issues that may usefullyilluminate the commonsense, practical question whether thereis ‘probable cause’ to believe that contraband or evidence islocated in a certain place.”See Gates,462 U.S. at 230.The Court found this “totality of the circumstancesapproach . . . far more consistent with prior treatment ofprobable cause than . . . any rigid demand that specific ‘tests’be satisfied by every informant’s tip.”Gates,462 U.S. 230-31. Moreover, the Court reasoned that the less rigid approachwas in concert with the dynamic nature of probable cause asbeing a “‘practical, nontechnical conception.’”Id.at 231(quotingBrinegar v. United States, 338 U.S. 160, 176(1949)). The Court embraced its earlier teachings regardingprobable cause as dealing in “probabilities.”Id.Theseprobabilities “‘are not technical; they are the factual andpractical considerations of everyday life on which reasonableand prudent men, not legal technicians, act.’”Id.(quotingBrinegar, 338 U.S. at 175). The Court further opined asfollows:[P]robable cause is a fluid concept – turning on theassessment of probabilities in particular factual contexts– not readily, or even usefully, reduced to a neat set oflegal rules. Informant’s tips doubtless come in manyshapes and sizes from many different types ofpersons. . . . Informants’ tips, like all other clues andevidence coming to a policeman on the scene may varygreatly in their value and reliability. Rigid legal rules areill-suited to an area of such diversity. One simple rulewill not cover every situation.* * *There are persuasive arguments against according [theelements of the “two-pronged test” – “veracity” orNo. 96-6313United States v. Allen17_______________DISSENT_______________CLAY, Circuit Judge, dissenting. Because I believe thatthe majority’s holding relaxes the standard upon which awarrant may issue to a point unsupported by FourthAmendment jurisprudence, and indeed unsupported by theletter and spirit of the Fourth Amendment itself, I respectfullydissent. As a result of today’s holding, any tip provided by aninformant who has provided reliable information to the policein the past is sufficient to constitute probable cause for thewarrant to issue, irrespective of the bare, generalized natureof the information provided and without any corroboration bythe police. This result strips away the protection that isafforded to all citizens -- both innocent and guilty alike -- tobe free from legally unsupportable and hence unreasonablesearches and seizures, and is at variance with the meaning ofprobable cause as envisioned by the drafters of theAmendment.Although I disagree with the majority’s decision to affirmthe district court’s order denying Defendant’s motion tosuppress the evidence, I am most troubled by the far reachingeffects of the majority’s opinion which drive a stake throughthe very heart of the Fourth Amendment. It is for this reasonthat while I address the matter at hand, I pay particularattention to the devastating impact that this decision has onFourth Amendment jurisprudence in this circuit as a whole.I.The Fourth Amendment provides:The right of the people to be secure in their persons,houses, papers, and effects against unreasonable searchesand seizures, shall not be violated, and no Warrants shallissue, but upon probable cause, supported by Oath oraffirmation, and particularly describing the place to besearched, and the persons or things to be seized.18United States v. AllenNo. 96-6313U.S.CONST.amend. IV. It was argued when the Constitutionand Bill of Rights were being adopted that a provisionproviding against searches and seizures unsupported byevidence of wrongdoing was needed to prevent generalwarrants from issuing:[G]eneral warrants, by which an officer may searchsuspected places, without evidence of the commission ofa fact, or seize any person without evidence of his crime,ought to be prohibited. As these are admitted, any manmay be seized, any property may be taken, in the mostarbitrary manner, without evidence or reason. Everything most sacred may be searched and ransacked by thestrong hand of power.See3 JONATHANELLIOT, THEDEBATES OF THESEVERALSTATECONVENTIONS,ON THEADOPTION OF THEFEDERALCONSTITUTION588 (2d ed. J.B. Lippincott Comp. 1831)(comments of Patrick Henry). Hence, the requirement that awarrant be supported by specific evidence of criminal activitybefore being issued is deeply rooted in our history. Moreover,the Framers of the Bill of Rights carefully sought to define theprecise conditions under which government agents couldsearch private property so that citizens would not be at themercy of those agents for the protection of their privacy. Assuch, the express language of the Fourth Amendment must beheeded, and the particularized nature of the oath oraffirmation made in support of the warrant as required by theAmendment cannot be considered a mere technicality.The quantum of evidence or information required tosupport the issuance of a warrant – i.e., the requirements ofthe particularized inquiry to establish probable cause – haslong been debated in the courts, especially when the warrantis based upon hearsay information from an informant. Thejurisprudential evolution concerning the requirements for theissuance of warrants reached its peak in the seminal case ofIllinois v. Gates,462 U.S. 213 (1983). The cases from ourcircuit applying the standards set forth inGatesspan a widerange of holdings which the majority claims has given rise toNo. 96-6313United States v. Allen191Cases from this circuit may indeed be looked to for guidancenonetheless. TheAllenpanel considered the cases ofUnited States v.Pelham,801 F.2d 875 (1986),United States v. Finch,998 F.2d 349(1993), andUnited States v. Weaver, 99 F.3d 1372 (1996) for guidance.However, theAllenpanel also found that any apparent inconsistenciesbetween these decisions were due to the nature of probable cause and thefact that various factors must be weighed and balanced when determiningwhether sufficient evidence was presented by the affiant in order toprovide a substantial basis for determining whether criminal activity wasafoot.See United States v. Allen,168 F.3d 293, 299 (6th Cir.),rehearingen banc granted, judgment vacated by United States v. Allen,179 F.3d1002 (6th Cir. 1999). It is this very weighing and balancing of factorsthat the majority opinion now finds unnecessary, contrary to SupremeCourt precedent. As a result, the majority’s opinion does not “clarify thelaw in this circuit” as it claims to do in response to the invitation extendedby theAllenpanel’s dissent; instead, the majority’s opinion derogates thelaw as dictated by the Supreme Court.confusion as to the appropriate standards for determiningprobable cause as well as their proper application. However,I disagree that the various holdings have led to confusion asto the proper standards or their application. Any arguableinconsistencies in cases from this circuit are not the result ofconfusion as to the standards or their application in probablecause analysis, but rather a function of the fluid nature ofprobable cause.1See id.at 231. With that said, I focus upontheGatesdecision itself in this dissent because it provides thebenchmark for probable cause analysis. As will be illustrated,the majority opinion is at odds with the Supreme Court’smandates regarding a reviewing court’s determination ofwhether a warrant is supported by probable cause, andtherefore sets a dangerous and unfounded precedent in thiscircuit.InGates, the Supreme Court examined its earlier decisionsinAguilar v. Texas,378 U.S. 108 (1964) andSpinelliv.United States,393 U.S. 410 (1969) and rejected the strictinterpretation that had been given these decisions byreviewing courts. Specifically, the Court acknowledged thatthe elements of the “two pronged test” established in thesedecisions regarding the value that should be afforded to aninformant’s tip – “veracity” or “reliability” and “basis of