#24858-a-RWS 

2009 SD 11

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, 

v. 

DOUGLAS DEAN GILMORE, Defendant and Appellant. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE SECOND JUDICIAL CIRCUIT 

MINNEHAHA COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE JOSEPH NEILES 

Judge 

* * * * 

LAWRENCE E. LONG 

Attorney General 

STEVEN R. BLAIR 

Assistant Attorney General 

Pierre, South Dakota Attorneys for plaintiff 

and appellee. 

STEVE COWAN 

Minnehaha County Public 

 Defender’s Office 

Sioux Falls, South Dakota Attorneys for defendant 

 and appellant. 

* * * * 

CONSIDERED ON BRIEFS 

ON JANUARY 12, 2009 

 OPINION FILED 02/25/09
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SABERS, Retired Justice. 

[¶1.] Douglas Gilmore appeals the denial of a motion to suppress evidence 

seized pursuant to a search warrant, arguing the search warrant was issued on 

insufficient probable cause. We affirm. 

FACTS 

[¶2.] On March 21, 2007, a “cooperating individual” (CI)1 contacted the 

Minnehaha County Sheriff’s Department and disclosed that he relapsed by using 

methamphetamine (meth) the previous weekend. In an attempt to remove any 

future temptation, the CI informed Detective Walsh, Detective Duprey, and 

Lieutenant Vandekamp of the residences at which he purchased meth the week 

prior. One of the residences was 4606 W. 16th Place in Sioux Falls. The CI 

indicated that the individual living at this residence from whom he purchased the 

meth was named “Doug.” Law enforcement corroborated the information, 

conducted surveillance of the residence, and researched other information relating 

to Doug. Thereafter, Detective Walsh swore to an affidavit to secure a search 

warrant for the residence. The affidavit, in pertinent part, stated: 

2. The CI directed your Affiant to 4606 W. 16th Place, the 

residence of “Doug,” from whom the CI had purchased 1 gram of 

crystal methamphetamine for $120 on 03/19/2007. The CI 

described “Doug” as an older white male who didn’t have a 

license or a vehicle. The CI stated that the CI’s impression was 

that “Doug” might possibly have a drug connection in Colorado. 

Det. Duprey noted a yellow bicycle on the porch. 

3. In checking the utilities account for 4606 W. 16th Place, your 

Affiant discovered that the account holder is Douglas D. 

1. The CI, whose name was not disclosed in the affidavit, was not an 

anonymous source as law enforcement was aware of his name. 
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Gilmore. According to local police files, Douglas Dean Gilmore 

has the same phone number (605-571-7502) provided by the 

utility company, and a “Doug Gilmore” has telephoned 911 from 

this address. 

4. On 03/23/2007, at approximately 1700 hours, Det. Duprey and 

your Affiant conducted surveillance of 4606 W. 16th Place. A 

vehicle was parked in the driveway with Colorado license plate 

258FGF, registered to Nathan Greer. Your Affiant observed a 

tall white male exit the residence and retrieve an object from the 

vehicle. He then returned to the residence. Upon returning to 

the detective bureau, your Affiant found that Greer has an 

active arrest warrant for possession of drug paraphernalia, and 

your Affiant identified a photograph of Greer as the subject seen 

at the residence. 

5. At approximately 1800 hours, your Affiant continued 

surveillance of the residence. Your Affiant observed Gilmore 

depart the trailer court on a yellow bicycle and pedal east on 

12th Street. Your Affiant recognized Gilmore from a driver’s 

license photograph. Between then and 2000 hours, Gilmore 

returned after a short term trip. 

6. Your Affiant and Det. Duprey returned to 4606 W. 16th Place at 

approximately 2000 hours. A vehicle with South Dakota license 

plate 1VV876, a green Dodge minivan registered to Linda 

Mitzel, was parked in front of the residence. Mitzel [is] a known 

methamphetamine user and distributor who has convictions for 

distribution of a controlled substance and possession of a 

controlled substance. She has been charged with 9 felony 

narcotics offenses since 1995. 

7. After approximately 20 minutes, Mitzel and a male, later 

identified as Jack Irvin Benney, exited the residence and left in 

the van. After committing a traffic violation (illegal right turn), 

the van was pulled over. Benney was eventually arrested for a 

warrant. During the stop your Affiant observed Mitzel making 

furtive movements in the front passenger seat of the van.2

2. At the suppression hearing, Detective Walsh admitted to telling local police 

to “find a reason to stop the van.” The driver, Benney, provided that reason 

by failing to signal when changing lanes. Nothing illegal was seized as a 

result of this search of the van, which involved use of a drug dog, but these 

facts were not included in Detective Walsh’s affidavit. 
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8. Gilmore has been associated with major drug dealers in the past 

three years. In 2006, Aaron Pope, who has pled guilty to federal 

narcotics violations, stated that one of his customers was 

Douglas Gilmore. Pope provided Gilmore’s phone number 

(which matches the telephone number in paragraph 3). Some of 

their transactions took place at Gilmore’s trailer, including one 

in which Pope obtained 1⁄2 pound of methamphetamine from his 

source. Between 12/11/2005 and 01/16/2006, Pope and Gilmore 

called each other approximately 150 times. 

9. In 2006, Gilmore also had a number of telephone calls to 

Christina Cline, a methamphetamine distributor who pled 

guilty in federal court to conspiracy to distribute 

methamphetamine; Melissa Koenen, a known 

methamphetamine distributor; and Eric Lamont, a known 

methamphetamine distributor who has pled guilty to 

distribution of [a] controlled substance.3

10. In 2005, Gerald Roby, who pled guilty to federal narcotics 

charges, stated that one of his customers was Douglas Gilmore. 

11.Gilmore has an active arrest warrant for a traffic violation. 

12.Based on the aforementioned facts, your Affiant respectfully 

requests that a search warrant be issued for Gilmore, Douglas 

Dean, DOB: 12/06/1954, and his urine; and 4604 W. 16th Place, 

Sioux Falls, Minnehaha County, South Dakota; and unattached 

outbuilding; and any and all persons present at the time of 

execution of this warrant. 

13.Your Affiant has observed short term traffic at the residence, 

and the CI in paragraph 1 stated that the CI had purchased 

crystal methamphetamine from Gilmore at the residence. Your 

Affiant knows that narcotics distributors will often have 

customers come to their residence to purchase the drugs, and 

that subjects found in a drug house will often have evidence of 

drug activity on their person including paraphernalia, drugs, 

and money. 

3. Detective Walsh testified to personal knowledge of these events from working 

on the particular cases. 
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[¶3.] On March 28, 2007, Circuit Court Judge William Srstka issued a 

search warrant based upon Detective Walsh’s affidavit. A search of the residence 

that same night resulted in the seizure of drug paraphernalia commonly connected 

to the distribution and/or ingestion of both marijuana and meth, some of which 

contained marijuana and/or meth residue. The search also produced a syringe 

containing meth and eleven Temazepam pills.4

[¶4.] Subsequently, Gilmore was charged with and indicted for two counts of 

possession of a controlled drug or substance in violation of SDCL 22-42-5, one count 

of possession of two ounces or less of marijuana in violation of SDCL 22-42-6, and 

one count of possession or use of drug paraphernalia in violation of SDCL 22-42A-3. 

Gilmore pleaded not guilty at his May 31, 2007 arraignment. 

[¶5.] Gilmore moved to suppress the evidence collected during the search. 

The suppression hearing came before Circuit Court Judge Joseph Neiles on 

November 1, 2007. In addition to the information set forth in his affidavit, 

Detective Walsh testified that the CI had not previously been used by law 

enforcement as an informant, the CI was not paid for the information provided, and 

to Detective Walsh’s knowledge, the CI had no criminal or drug history beyond 

some traffic offenses. Benney and Mitzel also testified, both indicating that they 

were not involved with any drug activity at the Gilmore residence, and that their 

visit to Gilmore’s residence on March 23, 2007 lasted roughly an hour, rather than 

20 minutes as stated in Detective Walsh’s affidavit. Judge Neiles determined that 

4. Temazepam, which is a benzodiazepine, is a Schedule IV controlled substance 

according to SDCL 34-20B-25.
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Detective Walsh failed to substantiate the claims in his affidavit regarding shortterm traffic at Gilmore’s residence.5 He concluded, independent of that 

information, the search was lawful and that the affidavit in support of the search 

warrant established probable cause for the search. 

[¶6.] A bench trial occurred on December 19, 2007, before Judge Neiles. 

During trial, the State disclosed the CI has a criminal record, including a 2003 

conviction for second degree burglary in California. Furthermore, the CI was 

currently wanted in California for first degree burglary, forgery, and counterfeiting. 

Nevertheless, Judge Neiles accepted a stipulation6 entered into by the parties and 

found Gilmore guilty of one count of possession of a controlled drug or substance 

and dismissed the other charges. Gilmore was sentenced to ten years in the state 

penitentiary, with all ten years suspended on several conditions, including 30 

months probation and 180 days in jail with credit for three days. Gilmore appeals, 

raising the following issue: 

Whether Detective Walsh’s affidavit in support of the search 

warrant was sufficient to establish probable cause for the search 

of Gilmore’s home. 

STANDARD OF REVIEW 

[¶7.] This Court recently reiterated the standard of review for this issue: 

5. Judge Neiles declined to accept Detective Walsh’s conclusion that there was 

short-term traffic at Gilmore’s residence. The conclusion was based on two 

vehicles seen at the residence, for both of which the total lengths of their 

stays were unknown because surveillance commenced after the vehicles 

arrived. 

6. The parties stipulated that Gilmore was in possession of methamphetamine 

at the time the search warrant was executed. 
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When considering the sufficiency of evidence supporting a 

search warrant we are required to “look ‘at the totality of the 

circumstances to decide if there was at least a “substantial 

basis” for the issuing judge’s finding of probable cause.’” 

[O]ur inquiry is limited to determining whether the 

information provided to the issuing court in the 

warrant application was sufficient for the judge to 

make a “‘common sense’ determination that there 

was a ‘fair probability’ that the evidence would be 

found on the person or at the place to be searched.” 

On review, we are limited to an examination of the 

facts as contained within the four corners of the 

affidavit. Furthermore, we review the issuing 

court’s probable cause determination independently 

of any conclusion reached by the judge in the 

suppression hearing. 

State v. Dubois, 2008 SD 15, ¶10, 746 NW2d 197, 202 (quoting State v. Helland, 

2005 SD 121, ¶12, 707 NW2d 262, 268) (internal citations omitted). It is not the 

duty of this Court to review the lower court’s probable cause determination de novo, 

but rather to examine the court’s decision with “great deference.” Id. ¶11, 746 

NW2d 202-03 (citing Helland, 2005 SD 121, ¶17, 707 NW2d at 269); see also State 

v. Raveydts, 2004 SD 134, ¶8, 691 NW2d 290, 293; State v. Jackson, 2000 SD 113, 

¶9, 616 NW2d 412, 416. This Court must “‘draw every reasonable inference 

possible in support of the issuing court’s determination of probable cause to support 

the warrant.’” Dubois, 2008 SD 15, ¶11, 746 NW2d at 203 (quoting Helland, 2005 

SD 121, ¶17, 707 NW2d at 269). 

[¶8.] Whether Detective Walsh’s affidavit in support of the 

search warrant was sufficient to establish probable cause 

for the search of Gilmore’s home. 

[¶9.] Gilmore’s argument that the affidavit lacked sufficient evidence to 

establish probable cause is based on three premises. First, the affidavit omitted a 
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prior criminal conviction and current criminal charges on the CI’s record. Second, 

law enforcement failed to sufficiently corroborate the CI’s information. Third, the 

trial court incorrectly concluded that the CI made statements against interest by 

disclosing the names of the individuals from whom meth was purchased the week 

prior. These errors, Gilmore argues, resulted in a search warrant not supported by 

probable cause. 

[¶10.] In the landmark case of Illinois v. Gates, 462 US 213, 103 SCt 2317, 

76 LEd2d 527 (1983), the United States Supreme Court was confronted with a 

situation in which law enforcement received an anonymous letter informing them of 

the defendants’ drug operation stationed in their home. The letter further provided 

explicit detail regarding a future trip the defendants would be making to obtain 

more drugs. These facts placed before the Court the issue whether probable cause 

for a search warrant can be based on an anonymous tip. In holding in the 

affirmative, the Supreme Court abandoned the two-pronged test derived from 

Aguilar v. Texas, 378 US 108, 84 SCt 1509, 12 LEd2d 723 (1964), and Spinelli v. 

United States, 393 US 410, 89 SCt 584, 21 LEd2d 637 (1969), for determining 

whether an informant’s tip establishes probable cause to support a search warrant. 

The first prong of the Aguilar-Spinelli test examined the informant’s “basis of 

knowledge,” which required information about how the informant knew that 

evidence of illegal activity may be found in the premises to be searched. The 

strongest “basis of knowledge” information is firsthand, personal knowledge. The 

second prong focused on the informant’s “veracity,” or information supporting the 

reasons the informant should be believed. This prong is met with information 
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supporting the informant’s “credibility” (tipster track record), or, in the alternative, 

“reliability” (statement against penal interest). 

[¶11.] Over the years, the lower courts misinterpreted Aguilar and Spinelli, 

causing a rigid, compartmentalized two-pronged test to evolve. The Gates Court 

noted its discomfort with the newly-evolved test and explained that although “an 

informant’s ‘veracity,’ ‘reliability’ and ‘basis of knowledge’ are all highly relevant in 

determining the value of his report[,] . . . these elements should [not] be understood 

as entirely separate and independent requirements to be rigidly exacted in every 

case[.]” Gates, 462 US at 230, 103 SCt at 2328. “Rather,” the Court continued, 

“they should be understood simply as closely intertwined issues that may usefully 

illuminate the commonsense, practical question whether there is ‘probable cause’ to 

believe that contraband or evidence is located in a particular place.” Id. 

[¶12.] The two-pronged Aguilar-Spinelli test was replaced by the totality of 

the circumstances approach, which the Court found to be “far more consistent with 

[its] prior treatment of probable cause[.]” Id. at 230-31, 103 SCt at 2328. Under 

this approach, the Court recognized that “probable cause is a fluid concept – turning 

on the assessment of probabilities in particular factual contexts – not readily, or 

even usefully, reduced to a neat set of legal rules.” Id. at 232, 103 SCt at 2329. 

South Dakota precedent specifies that “‘[t]he standard of probable cause for the 

issuance of a search warrant is a showing of probability of criminal activity.’” 

Dubois, 2008 SD 15, ¶11, 746 NW2d at 202 (quoting Helland, 2005 SD 121, ¶16, 

707 NW2d at 269) (emphasis in original). 
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1. Alleged flaws in affidavit 

 (i) Insufficient corroboration 

[¶13.] Gilmore first alleges two flaws in the affidavit sworn to the issuing 

court: first, failure by law enforcement to sufficiently corroborate the information 

provided by the CI, and second, omission of the CI’s criminal history and current 

charges stemming from California. On March 21, 2007, the CI informed law 

enforcement of the following information: (1) On March 19, 2007, the CI personally 

purchased one gram of crystal meth for $120 from an older white male named 

“Doug,” who resides in a trailer house located at 4606 W. 16th Place in Sioux Falls; 

(2) “Doug” used a bicycle rather than an automobile as a means of transportation; 

and (3) “Doug” may have a drug connection in Colorado. 

[¶14.] Detective Walsh corroborated most of this information. Gilmore 

complains about the manner of corroboration. Without citing any supporting 

authority, Gilmore argues that Detective Walsh should have: (1) requested the CI 

to identify Gilmore in person; (2) performed a trash pull to match Gilmore’s name 

with the address; and (3) included information in the affidavit regarding 

investigations into the other tips provided by the CI. We disagree. 

[¶15.] Detective Walsh determined that, according to the utility records, 

Gilmore was the account holder for the residence located at the given address. 

Furthermore, the telephone number provided by the utility company matched the 

telephone number registered to Gilmore as indicated in law enforcement files. In 

addition, Gilmore, the telephone number, and the address were all linked using 911 

records. There was also a bicycle located on the porch of the residence. During a 
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period of surveillance, Detective Walsh witnessed a man riding the bicycle and, 

based upon a driver’s license photo, identified the rider as Gilmore. Lastly, 

Detective Walsh witnessed a vehicle with Colorado plates parked in front of 

Gilmore’s residence. Upon investigating, he determined that the vehicle belonged 

to Greer, an individual with an active arrest warrant for possession of drug 

paraphernalia. 

[¶16.] The one piece of information that could not be absolutely verified, 

because it occurred in the past, was the firsthand drug transaction in which the CI 

participated. Corroboration of an informant’s tip by independent police work 

undoubtedly strengthens the value of the information. Gates, 462 US at 241, 103 

SCt at 2334. However, not every piece of information provided by an informant 

requires corroboration. “‘Because an informant is right about some things, he is 

more probably right about other facts . . . .’” Gates, 462 US at 244, 103 SCt at 2335 

(quoting Spinelli, 393 US at 427, 89 SCt at 594 (White, J., concurring)). Gilmore 

claims that law enforcement should have conducted a controlled buy to substantiate 

the CI’s tip; however, he cites no authority requiring the same. Detective Walsh 

nonetheless set forth in his affidavit several occurrences in which Gilmore 

previously associated with individuals convicted of drug crimes as well as instances 

in which Gilmore was currently associating with individuals known to be drug users 

and/or distributors. “To say that this coincidence of information was sufficient to 

support a reasonable belief of the officers that [Gilmore was involved in drugrelated criminal activity] is to indulge in understatement.” Ker v. California, 374 

US 23, 36, 83 SCt 1623, 1631, 10 LEd2d 726 (1963). 
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[¶17.] In State v. Raveydts, we held that verifying license plate numbers on 

vehicles parked outside an alleged drug dealer’s residence, in addition to an 

informant’s firsthand observation of wrongdoing, is sufficient corroboration if the 

license plate numbers belong to persons known to be involved in illegal drug 

activity. 2004 SD 134, ¶¶12-14, 691 NW2d at 295-96. Corroboration by “personal 

‘surveillance [or] observation of unusual civilian or vehicular traffic at the address’” 

is not essential to a probable cause determination. See id. As explained, Detective 

Walsh did more than required under Raveydts. 

[¶18.] It is recognized that Detective Walsh’s corroboration focused on 

innocent facts. But “[c]ombinations of lawful and suspicious circumstances may 

lead to a justifiable inference of criminal activity.” State v. Belmontes, 2000 SD 

115, ¶31, 615 NW2d 634, 642 (Konenkamp, J., concurring in result) (“[I]nnocent 

behavior frequently will provide the basis for a showing of probable cause; to 

require otherwise would be to sub silentio impose a drastically more rigorous 

definition of probable cause than the security of our citizens demands.” (quoting 

Gates, 462 US at 243 n13, 103 SCt at 2335 n13)). Therefore, the corroboration 

sufficiently ensured the reliability of the information supplied by the CI. 

 (ii) Criminal history omissions

[¶19.] Gilmore next contends that the affidavit was flawed because aspects of 

the CI’s criminal history were intentionally omitted therein. However, probable 

cause is not automatically vitiated just because an affidavit fails to include the 

informant’s criminal record. Dubois, 2008 SD 15, ¶13, 746 NW2d at 203 (citation 

omitted). Rather, “‘[a]n affidavit . . . purported to contain recklessly and 
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intentionally misleading information or material omissions is reviewed under the 

two-part analysis in Franks v. Delaware, 438 US 154, 98 SCt 2674, 57 LEd2d 667 

(1978).’” Id. (quoting Helland, 2005 SD 121, ¶32, 707 NW2d at 273). “‘First, 

[Gilmore] must show by a preponderance of the evidence that a . . . statement 

knowingly and intentionally, or with reckless disregard for the truth was [omitted] . 

. . by the affiant in the warrant affidavit.’ Second, [Gilmore] must establish the 

omitted fact would have defeated probable cause.” Id.

[¶20.] Gilmore failed to address this test in his brief, but rather insisted that 

the omission of the CI’s criminal history required rigorous scrutiny of the CI’s tip. 

We continue to adhere to the two-part test stated above. The affidavit was silent as 

to the CI’s 2003 second degree burglary conviction in California, and regarding 

current charges in California of first degree burglary, forgery, and counterfeiting. 

We are unable to locate any evidence in the record indicating that the omission was 

either knowing and intentional or a reckless disregard for the truth. Because the 

first prong is not met, we need not reach the second prong. Even if we did reach the 

second prong, we do not believe inclusion of the CI’s conviction and outstanding 

charges would have changed the determination. Therefore, under the Franks test, 

Gilmore’s argument fails. 
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2. Alleged flaws in Judge Neiles’s analysis 

[¶21.] Gilmore’s last attack is based on the claim of error in Judge Neiles’s 

analysis and conclusion that probable cause existed for Judge Srstka to issue the 

warrant.7 In the memorandum opinion, Judge Neiles stated in part: 

Review of the affidavit reveals that police had information from 

a known informant, not an anonymous tipster, and that 

information was specific as to the location to be searched and 

the drugs to be found. The tip was an admission against 

interest, in that the tipster was admit[ing] to a felony drug 

offense as part of the information provided. 

 Defense counsel spends some time talking about the test 

to be applied in evaluating informant tips, citing Illinois v. 

Gates[.] However, counsel misstates when he claims “[i]n the 

present case, the detective knew full well that he needed to 

corroborate the statements of his anonymous informant.” 

Unlike Gates, where police had received a letter from an 

unknown tipster about drug trafficking, here the police knew the 

name of the person that was providing the information. He or 

she was not anonymous. As pointed out in Gates, “if an 

unquestionably honest citizen comes forward with a report of 

criminal activity – which if fabricated would subject him to 

criminal liability – we have found rigorous scrutiny of the basis 

of his knowledge unnecessary. ([C]itations omitted[.]) 

Conversely, even if we entertain some doubt as to an informant’s 

motives, his explicit and detailed description of alleged 

wrongdoing, along with a statement that the event was observed 

firsthand, entitles his tip to greater weight than might 

otherwise be the case.” Clearly the facts here fall squarely 

under this standard. The tipster here was perhaps not the 

“unquestionably honest citizen” mentioned in Gates (he or she 

was a drug user that had ‘slipped’), the explicit and detailed 

description of the sale of the drugs, the address, the name of the 

owner, the risk of criminal prosecution for making a false 

7. To support his position, Gilmore cites State v. Sweedland, 2006 SD 77, 721 

NW2d 409, in which we reversed the lower court’s finding of probable cause 

for a vehicle search. However, that determination was based on many factors 

notably absent in this case, including the fact that the informant lacked 

firsthand knowledge of the alleged criminal drug activity and, similarly, the 

informant was unable to provide an explicit and detailed account of the event. 

Id. ¶23, 721 NW2d at 415. 
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statement to police all add up to the police and ultimately, the 

court, giving his tip greater credence [than] it might otherwise 

have been allotted. Then, when added to this tip is the 

information, some of it going back a couple of years, of the 

defendant’s long association with drug transactions, and his 

recent association with persons known by the police to be 

involved in the recent past with drug transactions, all add up to 

probable cause to justify the issuance of the warrant. 

[¶22.] Gilmore’s primary argument rests on the premise that because the 

circuit court wrongly concluded the CI’s statements regarding the drug purchase 

from Gilmore were statements against interest, the court placed undue weight on 

the veracity prong of its analysis. Statements against interest are generally 

accorded greater weight because they implicate the informant in criminal activity. 

Gilmore asserts, however, that these were not statements against interest because 

purchasing drugs, unlike possessing or ingesting drugs, is not illegal in South 

Dakota.8 Gilmore’s argument is flawed in three basic respects. First, nowhere in 

the memorandum opinion does Judge Neiles specifically state that the statement 

against interest was limited to the purchase of drugs. Rather, he broadly states, 

“The tip was an admission against interest, in that the tipster . . . admitted to a 

felony drug offense as part of the information provided.” (Emphasis added.) That 

leads to the second point. Gilmore fails to recognize that the CI reported to law 

enforcement not only a purchase of meth from Gilmore, but also that the CI 

relapsed on the drug. The CI’s relapse implies violations of South Dakota statutes 

by possessing and ingesting a controlled substance. See SDCL 22-42-5, 22-42-15. 

8. Gilmore does not acknowledge that the CI’s purchase and possession of the 

meth from Doug was simultaneous. 
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The CI also could have been prosecuted for a false report, if that were the case. The 

Supreme Court recognized: 

[I]f an unquestionably honest citizen comes forward with a 

report of criminal activity – which if fabricated would subject 

him to criminal liability – we have found rigorous scrutiny of the 

basis of his knowledge unnecessary. Conversely, even if we 

entertain some doubt as to an informant’s motives, his explicit 

and detailed description of alleged wrongdoing, along with a 

statement that the event was observed first-hand, entitles his 

tip to greater weight than might otherwise be the case. 

Gates, 462 US at 233-34, 103 SCt at 2330 (internal citation omitted). No one claims 

the CI is an “unquestionably honest citizen,” given his admitted drug relapse. 

However, the CI provided an explicit and detailed description of Gilmore’s 

wrongdoing – an older individual named “Doug,” who lived in a trailer house located 

at 4606 W. 16th Place in Sioux Falls, sold the CI one gram of crystal meth for $120 

on March 19, 2007 – and because the CI was the buyer, the CI observed the event 

firsthand. Therefore, under Gates, the CI’s tip is entitled to greater weight. 

[¶23.] Gilmore’s argument is flawed in a third respect in that strict 

adherence to the two-prong Aguilar-Spinelli test is no longer required. The Gates

Court explained: 

[T]he “two-pronged test” directs analysis into two largely 

independent channels – the informant’s “veracity” or “reliability” 

and his “basis of knowledge.” There are persuasive arguments 

against according these two elements such independent status. 

Instead, they are better understood as relevant considerations in 

the totality-of-the-circumstances analysis that traditionally has 

guided probable cause determinations: a deficiency in one may 

be compensated for, in determining the overall reliability of a 

tip, by a strong showing as to the other, or by some other indicia 

of reliability. 
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Id. at 233, 103 SCt at 2329. Thus, if the information supporting the “basis of 

knowledge” prong is strong, the “veracity” prong need not be as well supported. 

Along the same lines mentioned above, the CI witnessed and actively participated 

in the criminal activity firsthand. Therefore, the “basis of knowledge” prong is 

supported by the best evidence available: firsthand knowledge. Even if we agreed 

with Gilmore’s claim that the circuit court put too much weight on the veracity 

prong because it wrongly concluded that the purchase of an illegal substance is a 

violation of state law, we still fail to arrive at the conclusion that the affidavit was 

insufficient in establishing probable cause. 

[¶24.] In Raveydts, we borrowed language from Gates in identifying two 

elements crucial to the probable cause inquiry when an informant’s tip was 

involved. 2004 SD 134, ¶11, 691 NW2d at 295. “First, an ‘explicit and detailed 

description of alleged wrongdoing, along with a statement that the event was 

observed firsthand, entitles [the informant’s] tip to greater weight than might 

otherwise be the case.’” Id. (quoting Gates, 462 US at 234, 103 SCt at 2330). 

“Second, the extent to which the tip is corroborated by the officer’s own 

investigation is important.” Id. ¶12 (citing Gates, 462 US at 244, 103 SCt at 2335). 

Both of these elements are met here. As mentioned before, the tip was explicit, 

detailed, and witnessed firsthand. Therefore, any deficiency in the “veracity” prong 

is compensated by the strong firsthand knowledge of the CI. Secondly, there was 

sufficient corroboration of the information by law enforcement thereby ensuring its 

reliability. Therefore, under our deferential standard of review, Judge Neiles’s 

determination was appropriate. 
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CONCLUSION 

[¶25.] “‘In dealing with probable cause, . . . as the very name implies, we deal 

with probabilities. These are not technical; they are the factual and practical 

considerations of everyday life on which reasonable and prudent men, not legal 

technicians, act.’” Gates, 462 US at 231, 103 SCt at 2328 (quoting Brinegar v. 

United States, 338 US 160, 175, 69 SCt 1302, 1310, 93 LEd 1879 (1949)). We hold 

that the information set forth in the four corners of the affidavit established a “fair 

probability” that it was more likely than not that evidence of illegal drug activity 

would be found in Gilmore’s residence. 

[¶26.] We affirm. 

[¶27.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and 

MEIERHENRY, Justices, concur.