                                                 Supreme Court

                                                 No. 2013-278-C.A.
                                                 (P2/12-1962A)


    State                     :

     v.                       :

Ray Burgess.                  :




NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island,
250 Benefit Street, Providence, Rhode Island 02903, at Telephone
222-3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
                                                                  Supreme Court

                                                                  No. 2013-278-C.A.
                                                                  (P2/12-1962A)
                                                                (Concurrence begins on Page 16)


                   State                      :

                     v.                       :

               Ray Burgess.                   :


              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                         OPINION

       Justice Goldberg, for the Court. The defendant, Ray Burgess, stands convicted of one

count of possession of cocaine. On appeal, he argues that the trial justice erred in denying his

motion to suppress physical evidence seized and statements he made following an unlawful

arrest. We agree and, therefore, vacate his conviction.

                                        Facts and Travel

       On October 26, 2011, during the course of a traffic stop, Rhode Island State Police

Officer Brian Macera (Det. Macera)1 discovered that the passenger of the stopped vehicle was

the subject of an outstanding warrant.2 We shall refer to this passenger as the confidential

informant. Before the traffic stop, the confidential informant was unknown to Det. Macera. In

the hopes of avoiding arrest, the confidential informant told Det. Macera that a clean-shaven

African American male with short-cropped hair and a thin build was distributing crack cocaine in

1
 At the time of the events giving rise to defendant’s arrest, Det. Macera was a trooper and had
yet to become a detective.
2
  Although we glean the facts of this case primarily from Det. Macera’s testimony at the
suppression hearing, his testimony that the confidential informant was a passenger in a stopped
vehicle and the subject of a warrant occurred at trial, after the motion to suppress was denied.
                                               -1-
the vicinity of Providence and Cranston. The confidential informant identified this drug dealer

only by his nickname, “CJ.” Detective Macera also was informed that CJ drove a blue Mercury

vehicle with unknown Rhode Island registration plates. Finally, the confidential informant told

Det. Macera that CJ either was at or would soon arrive at the Royal Buffet restaurant in

Cranston, where he would be found in possession of crack cocaine.3              Armed with this

information, Det. Macera contacted his supervisor, who, in turn, contacted the Rhode Island

State Police High Intensity Drug Trafficking Area Task Force (task force).

       Later that day, Det. Macera, the confidential informant, and several members of the task

force proceeded to a Cranston shopping plaza in which the Royal Buffet is located. Detective

Macera testified at the suppression hearing that “surveillance was set up at the Royal Buffet,” but

it is evident from his testimony that the “surveillance” consisted of nothing more than

establishing a police perimeter around the shopping plaza and waiting for CJ to emerge. No

attempt was made to locate a blue Mercury vehicle in the shopping plaza’s parking lot because of

the “large amount of vehicles” in the plaza.



3
  The record is unclear whether CJ was at the Royal Buffet at the time the confidential informant
relayed the tip to Det. Macera. At the suppression hearing, Det. Macera testified that the
confidential informant told him that CJ “was presently at the Royal Buffet * * * in possession of
crack cocaine.” At trial, Det. Macera similarly testified that “the [confidential informant] told
me that the suspect was eating at the Royal Buffet” and that “[t]he confidential informant
advised me that [CJ] had cocaine on his person at the time at a specific restaurant.” Likewise,
Det. Macera read a portion of his police report while on the witness stand in which he stated:
“[The confidential informant] advised that the subject was presently eating at the Royal
Buffet * * *.” Elsewhere in his trial testimony, however, Det. Macera testified that, between
approximately 3 p.m. and 3:30 p.m. that day, the confidential informant called CJ while in State
Police custody and, after the phone call, informed the officer that CJ would be at the Royal
Buffet at approximately 4 p.m. Detective Macera made no mention of this phone call during the
suppression hearing, and he acknowledged at trial that he had not included this detail in his
police report. During Det. Macera’s trial testimony, defense counsel’s efforts to discover more
information about the phone call and how the confidential informant knew the information that
was related to Det. Macera were thwarted by the state’s successful objections.


                                               -2-
       When defendant—who Det. Macera testified matched the physical description of CJ

provided by the confidential informant—exited the Royal Buffet, the confidential informant

identified him as CJ. The defendant immediately was taken into custody. According to Det.

Macera, he and his colleagues “surrounded” defendant,4 had him place his hands on a vehicle,5

and conducted a pat-down search. During the course of the pat-down of defendant’s outer

clothing for weapons, Det. Macera felt a “bulge” in defendant’s front pocket; Det. Macera

reached into defendant’s pocket to remove the material, which turned out to be $62 in cash.

Detective Macera read defendant his Miranda rights and explained that he was suspected of

selling drugs. At first, defendant told the officers that he was not in possession of any drugs.

       During this encounter, after he had been “surrounded” by police officers, defendant

“appeared [to Det. Macera] to be very nervous”; “his body was trembling,” and he “would not

make eye contact” with the officer. When Det. Macera asked defendant about the odor of burnt

marijuana that he detected, defendant admitted that he had smoked that substance earlier that

day. Detective Macera informed defendant that a State Police K-9 unit was en route to the scene.

Faced with this prospect, defendant lowered his head and said, “It’s in my pocket.” A search of

the waistband of defendant’s jacket revealed two bags of suspected crack cocaine. After the

discovery of the contraband, defendant identified his vehicle: a blue Chevrolet Impala with

Rhode Island license plates. Detective Macera testified that defendant’s vehicle is similar to the

vehicle described by the confidential informant. In consideration of the assistance provided to



4
  On appeal, the state concedes that defendant was under arrest when he was surrounded by the
officers. We accept this concession. In doing so, we express no opinion as to whether the facts
of this case would, absent the state’s concession, justify the conclusion that defendant was under
arrest at the time that he was first approached by the officers.
5
  The placement of defendant’s hands during the pat-down is gleaned from Det. Macera’s trial
testimony.
                                                -3-
law enforcement, the confidential informant was not charged with any crime, and the record is

silent about what, if anything, happened with respect to the outstanding warrant or why it was

issued.6

       The defendant, on the other hand, was charged with one count of possession of cocaine.

He moved to suppress the two bags of crack cocaine and his statements to Det. Macera, arguing

that he was arrested without probable cause and that the subsequent search of his jacket violated

the state and federal constitutions. After a suppression hearing, the trial justice denied the

motion, concluding that police had probable cause to arrest defendant. In reaching his probable-

cause determination, the trial justice relied on the following evidence from the suppression

hearing: Det. Macera’s testimony that he smelled the odor of burnt marijuana when questioning

defendant; defendant’s nervous behavior and incriminating statement that “[i]t’s in my pocket”;

the “surveillance” that occurred at the Royal Buffet before defendant was apprehended; and the

match between defendant’s appearance and the description given by the confidential informant.

       After trial, a jury convicted defendant of the charged offense, and the trial justice

sentenced him to two years of probation. The defendant timely appealed.




6
  At oral argument, the state disclosed that, in exchange for the information provided to Det.
Macera, the confidential informant was not presented on the outstanding warrant. We are
troubled by this revelation. Compliance with the commands of a warrant is not a matter of police
discretion. The General Assembly has mandated that:

               “Whenever any judge of any court shall issue his or her warrant against
       any person for failure to appear or comply with a court order, or for failure to
       make payment of a court ordered fine, civil assessment, or order of restitution, the
       judge may direct the warrant to each and all sheriffs and deputy sheriffs, the
       warrant squad, or any peace officer as defined in [G.L. 1956 §] 12-7-21,
       [including members of the State Police, see § 12-7-21(1),] requiring them to
       apprehend the person and bring him or her before the court to be dealt with
       according to law; and the officers shall obey and execute the warrant * * *.” G.L.
       1956 § 12-6-7.1(a), as amended by P.L. 2008, ch. 326, § 1 (emphases added).
                                              -4-
                                       Standard of Review

       Our review of the grant or denial of a motion to suppress is multifaceted. We defer to the

trial justice’s findings of historical fact unless clearly erroneous, but we review de novo the

ultimate question of whether probable cause exists. See State v. Chum, 54 A.3d 455, 460 (R.I.

2012); State v. Casas, 900 A.2d 1120, 1129 (R.I. 2006); see also Ornelas v. United States, 517

U.S. 690, 691, 699 (1996).

                                             Analysis

       Before embarking on our analysis, we reiterate that the state has conceded on appeal that,

from the moment he was surrounded by the officers in the parking lot of the Royal Buffet,

defendant was under arrest. This circumstance alters the factual landscape upon which the

probable-cause determination so heavily depends.7 A valid arrest must be supported by probable

cause at its inception; information—however incriminating it might be—that is discovered after

a suspect is arrested cannot be used to establish the existence of probable cause. See State v.

Ortiz, 824 A.2d 473, 480 (R.I. 2003) (“Rhode Island case law indicates that the existence of

probable cause at the time of arrest determines its legality. * * * ‘[P]robable cause * * * must not

be derived from evidence that a subsequent search might disclose.’” (quoting State v. Kryla, 742

A.2d 1178, 1182 (R.I. 1999))); In re John N., 463 A.2d 174, 178 (R.I. 1983) (“It is axiomatic that

the legality of an arrest is determined by the existence of probable cause at the time of the arrest

and not by what a subsequent search may disclose.”); see also United States v. Di Re, 332 U.S.




7
  The state’s concession also delineates the scope of our review. As a result of the concession,
the only issue before us is whether the arrest was supported by probable cause. We therefore
need not consider whether defendant’s initial encounter with police constituted a brief
investigatory stop instead of an arrest, or, if it did, whether such a stop was supported by
reasonable suspicion. See State v. Casas, 900 A.2d 1120, 1131 (R.I. 2006).
                                               -5-
581, 595 (1948) (“[A] search is not to be made legal by what it turns up. In law it is good or bad

when it starts and does not change character from its success.”).

       In this case, several of the facts relied upon by the trial justice came to light after the

point in time at which the state concedes defendant was arrested. The trial justice’s conclusion

that probable cause existed was grounded, in part, on Det. Macera’s testimony that he smelled

the odor of burnt marijuana while questioning defendant after providing him with Miranda

warnings and defendant’s nervous behavior and incriminating statement that “[i]t’s in my

pocket.” Detective Macera discovered this evidence, however, only after he and several other

officers “surrounded” defendant and, as the state concedes, arrested him in the parking lot of the

Royal Buffet. Similarly, police did not learn that defendant drove a blue Chevrolet Impala with

Rhode Island license plates or that defendant had $62 in cash and two bags of crack cocaine on

his person until after they arrested him. Thus, the only pre-arrest evidence that might support

probable cause to arrest defendant consists of the confidential informant’s tip, the “surveillance”

conducted by the officers in the shopping plaza before defendant exited the Royal Buffet, and the

consistency between defendant’s physical appearance and the confidential informant’s

description of CJ. To its credit, the state does not rely on any of the post-arrest evidence, but

instead argues that probable cause existed at the time of defendant’s arrest.         We are not

convinced.

       Probable cause to arrest a suspect exists when “the facts and circumstances within * * *

[the officers’] knowledge and of which they had reasonably trustworthy information [are]

sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has

been or is being committed” and that the suspect is the perpetrator. Chum, 54 A.3d at 462

(quoting State v. Flores, 996 A.2d 156, 161 (R.I. 2010)); see also Ortiz, 824 A.2d at 480.



                                               -6-
Because “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,” we

must carefully examine the totality of the circumstances in determining whether probable cause

exists. Illinois v. Gates, 462 U.S. 213, 232 (1983); see also id. at 230-31, 238.

       This fluidity extends to probable-cause determinations involving informants’ tips.

“Informants’ tips, like all other clues and evidence coming to a policeman on the scene, may

vary greatly in their value and reliability.” Gates, 462 U.S. at 232 (quoting Adams v. Williams,

407 U.S. 143, 147 (1972)). Thus, courts no longer analyze an informant’s tip by artificially

compartmentalizing the informant’s veracity or reliability, on the one hand, and his or her basis

of knowledge, on the other. See id. at 230, 233. Instead, we examine all relevant considerations

surrounding the tip and any other relevant factors of the case in the familiar totality-of-the-

circumstances analysis. See id. at 230-31, 233. In this analysis, “an informant’s veracity,

reliability, and basis of knowledge remain highly relevant.” State v. Cosme, 57 A.3d 295, 303

(R.I. 2012) (quoting State v. King, 693 A.2d 658, 661 (R.I. 1997)); see also Gates, 462 U.S. at

230. “[A] deficiency in one [of these three aspects of an informant’s tip] may be compensated

for, in determining the overall reliability of a tip, by a strong showing as to [another aspect], or

by some other indicia of reliability.” Gates, 462 U.S. at 233. Additionally, “corroboration of

details of an informant’s tip by independent police work” can strengthen the argument for

probable cause in a particular case. Id. at 241; see also Cosme, 57 A.3d at 303. Indeed,

independent police investigation can carry the day in a probable-cause determination. Cf. State

v. Keohane, 814 A.2d 327, 328, 330, 330-31 (R.I. 2003) (concluding that police had reasonable

suspicion—and explaining that “any suspicions * * * approached the level of probable cause”—

to stop a van where police were informed by an anonymous tip that the defendant “would be



                                                -7-
traveling to Providence in a van to purchase heroin” that would be sold in Woonsocket, and

police corroborated the tip by observing the defendant, accompanied by “a known heroin user,”

drive to Providence in a van, “approach a group of males,” and then “proceed[] back to

Woonsocket, following the pattern predicted by the tipster,” driving in an erratic manner).

       In examining the totality of the circumstances in this case, we conclude that, because of

the combined effect of several aspects of the tip and the accompanying failure of the police to

corroborate any information provided by the confidential informant, there was no probable cause

to arrest this defendant. We begin by examining the tip itself. For starters, the confidential

informant had not previously provided information to Det. Macera. Although past experience

between an informant and police is by no means required, see State v. Ricci, 472 A.2d 291, 297

(R.I. 1984) (explaining that “[f]irst-time informants can be found to be reliable”), it is a factor

that, when present, increases the likelihood that the informant’s information is reliable and

truthful on the occasion under review. See, e.g., Draper v. United States, 358 U.S. 307, 309,

312-13, 313 (1959) (tip from informant who was a “‘special employee’ of the Bureau of

Narcotics” for six months when tip was made and who had given “accurate and reliable”

information in the past; court concluded that, in these circumstances, the officer “would have

been derelict in his duties had he not pursued [the tip]”).

       To be sure, the confidential informant hardly was anonymous to police; he or she8 was in

State Police custody as a result of an outstanding warrant at the time the tip was given and when

defendant was arrested.      The state argues that this circumstance bolsters the confidential

informant’s reliability because an untruthful tip would have resulted in negative consequences

8
  The record is unclear on whether the confidential informant was male or female. At the
suppression hearing, Det. Macera used both male and female pronouns to describe the
confidential informant. For efficiency, we shall employ the male pronoun.


                                                -8-
for the confidential informant. It is true that an informant’s statement against his or her penal

interest may, in some circumstances, be deemed credible. See United States v. Harris, 403 U.S.

573, 583-84 (1971) (plurality op.); State v. Read, 416 A.2d 684, 689 (R.I. 1980). Such a

statement generally arises after the informant has been caught in the act. In this case, however,

the confidential informant did not make a statement against his penal interest, as was the case in

Read, upon which the state relies. See Read, 416 A.2d at 686-87, 689 (informant admitted to

purchasing marijuana from the address that police later searched pursuant to a search warrant);

see also Harris, 403 U.S. at 575-76, 583 (informant admitted to purchasing illicit whiskey from

address controlled by the defendant); United States v. Tyler, 238 F.3d 1036, 1038-39 (8th Cir.

2001) (informant identified the defendant as his supplier of drugs); State v. Grossi, 588 A.2d

607, 608 (R.I. 1991) (informant implicated himself in a drug-smuggling ring involving the

defendant); State v. Germano, 559 A.2d 1031, 1035 (R.I. 1989) (informant admitted to

purchasing cocaine from the defendant). Unlike the informants in the above-cited cases, the

confidential informant did not admit to purchasing crack cocaine from defendant or that he was

involved in defendant’s drug-dealing operations.9

       The statement-against-penal-interest concept is closely tied to the informant’s basis of

knowledge, another relevant consideration in the totality-of-the-circumstances analysis. See

Gates, 462 U.S. at 230-31; Cosme, 57 A.3d at 303. In all of the above-cited cases, each

informant’s statement against penal interest established his basis of knowledge; having admitted

9
  To the extent that the state is suggesting that the fact that Det. Macera knew the confidential
informant’s identity supports a finding that the tip was reliable because it is a misdemeanor to
falsely report a crime to police, see G.L. 1956 § 11-32-2; cf. Adams v. Williams, 407 U.S. 143,
146-47 (1972), we note that the mere fact that police know the identity of the informant is not
alone a sufficient basis to find probable cause on the basis of the tip, see United States v. Koerth,
312 F.3d 862, 867-68 (7th Cir. 2002) (concluding that affidavit submitted in support of search-
warrant application failed to furnish probable cause notwithstanding facts that informant’s
identity was known, he was in police custody, and he made a statement against penal interest).
                                                -9-
to committing a crime, the informant necessarily had personal knowledge of the place,

instrumentalities, or persons involved in that criminal activity. See, e.g., Harris, 403 U.S. at 575-

76, 578-79 (informant’s sworn tip that the defendant sold illicit whiskey at a particular address

was based on informant’s purchase of illicit whiskey at that address); Grossi, 588 A.2d at 608

(informant’s tip that the defendant was involved in a drug-smuggling ring was based on

informant’s own involvement in that operation); Germano, 559 A.2d at 1033, 1035 (informant’s

tip that the defendant was selling cocaine out of his home was based, in part, on informant’s own

purchase of cocaine from the defendant; informant also had visited the defendant’s home on

numerous occasions and observed the defendant sell cocaine); Read, 416 A.2d at 686

(informant’s tip that marijuana was located at a particular address was based on informant’s

purchase of marijuana at that location earlier that evening); see also Tyler, 238 F.3d at 1038-39

(informant’s tip that the defendant was a drug dealer was based, in part, on informant’s own

purchase of drugs from the defendant); cf. Ricci, 472 A.2d at 293, 296-97 (informant’s tip that

the defendant was in possession of stolen earrings was based on the fact that the defendant gave

informant a sample of the stolen earrings, and informant confirmed with the victim of the theft

that the earrings were stolen). In stark contrast to these cases, there is no evidence in this record

to suggest that the confidential informant had personal knowledge that defendant was engaged in

the trafficking of crack cocaine.10 All we know about the confidential informant is that he was

the subject of an outstanding warrant issued for reasons not disclosed by the record.



10
   We pause to note that the confidential informant’s basis of knowledge cannot be inferred from
Det. Macera’s subsequent testimony at trial that the confidential informant called defendant
while in State Police custody. When defense counsel asked Det. Macera how the confidential
informant knew that defendant was in possession of cocaine, the state objected, and the trial
justice sustained the objection. Had the state possessed information concerning the confidential
informant’s basis of knowledge, it should have presented that evidence during the suppression
hearing.
                                               - 10 -
       Finally, the type of detail provided by the confidential informant further undermines the

value of this tip in the totality-of-the-circumstances appraisal. Apart from the assertion that

defendant was in possession of crack cocaine (which may or may not have been based on the

confidential informant’s personal knowledge), the tip boils down to an accurate characterization

of defendant’s physical appearance, a technically incorrect, albeit close, description of

defendant’s vehicle, and a correct statement of the restaurant at which defendant either was or

would soon be dining, see supra note 3. Although verifiable, the first two components of the

tip—the description of defendant and his car—have no bearing on the reliability of the

informant’s assertion that defendant was engaged in criminal activity. As the United States

Supreme Court explained in the related context of a stop-and-frisk based on a tip from an

anonymous informant:

                       “An accurate description of a subject’s readily observable
               location and appearance is of course reliable in this limited sense:
               It will help the police correctly identify the person whom the
               tipster means to accuse. Such a tip, however, does not show that
               the tipster has knowledge of concealed criminal activity. The
               reasonable suspicion here at issue requires that a tip be reliable in
               its assertion of illegality, not just in its tendency to identify a
               determinate person.” Florida v. J.L., 529 U.S. 266, 272 (2000).

Cf. Alabama v. White, 496 U.S. 325, 332 (1990) (“The fact that the officers found a car precisely

matching the [anonymous] caller’s description in front of the 235 building is an example of [an

‘easily obtained fact[ or] condition[] existing at the time of the tip’]. Anyone could have

‘predicted’ that fact because it was a condition presumably existing at the time of the call.”

(quoting Gates, 462 U.S. at 245)).

       The tip in this case failed to provide predictive detail from which police could assess the

informant’s claims that he had knowledge of defendant’s criminal conduct. The state disputes

this conclusion, arguing that the tip contained predictive information because the confidential

                                              - 11 -
informant “called [defendant] to confirm that he would be dining at the Royal Buffet sometime

around 4:00 p.m.” We are unpersuaded. At the outset, we note that the record is unclear on

whether defendant was already at the Royal Buffet or instead on his way there at the time of the

tip. See supra note 3. This uncertainty is caused by the state’s failure to elicit testimony

concerning the telephone call during the suppression hearing. Instead, this information made its

debut during defense counsel’s cross-examination of Det. Macera at trial, and the state

successfully objected to several attempts by defense counsel to explore the details of this call.

       In any event, even had the tip contained information regarding defendant’s future plans to

visit the Royal Buffet, this lone detail pales in comparison to the predictive information provided

by the confidential informants in the cases cited by the state. See, e.g., Draper, 358 U.S. at 309-

10 (tip—given by an informant who was a paid employee of the Bureau of Narcotics and had

provided reliable information in the past—indicated that the defendant had gone to Chicago the

day before and would return to Denver by train either the next day or the day after, accurately

described the precise clothing the defendant would be wearing and the tan zipper bag that he

would be carrying, and correctly stated that the defendant “habitually” walked very quickly);

United States v. Miller, 925 F.2d 695, 697 (4th Cir. 1991) (Powell, J.) (informant’s tip indicated

that the defendant—a picture of whom the informant identified—would be traveling by bus and

arriving on one of two days later that week; informant also accurately described the precise

clothing that the defendant would be wearing and a tote bag that she would be carrying); cf.

Keohane, 814 A.2d at 330 (concluding that anonymous tip was “sufficiently detailed, and

thereafter corroborated, to warrant an experienced detective to become reasonably suspicious of

[the defendant’s] behavior” where “[t]he tip provided details of where [the defendant] lived, the




                                               - 12 -
type of vehicle he would be driving, and the itinerary and alleged purpose of his travel to and

from Providence”).

       For these reasons, we conclude that the tip in this case, standing alone, failed to provide

probable cause to arrest defendant. This conclusion, however, does not end the analysis because

an informant’s tip that alone does not furnish probable cause can be shored up by independent

police investigation. See Gates, 462 U.S. at 241; Cosme, 57 A.3d at 303. The state contends

that police corroborated the details of the confidential informant’s tip. We disagree with this

assertion.

       The “surveillance” referred to by Det. Macera consisted of establishing a police perimeter

at the shopping plaza and confirming that the confidential informant recognized defendant. The

police did not even attempt to corroborate the confidential informant’s description of defendant’s

vehicle, having summarily deemed such an endeavor impractical because of the large number of

vehicles in the parking lot; nor is there any evidence that they performed a records check. We

conclude, on the basis of this record, that the efforts of the police in this case, even when

combined with the tip, fell short of what was necessary to establish probable cause to arrest. Cf.

Casas, 900 A.2d at 1132 (remarking, in the course of expressing doubt as to whether reasonable

suspicion existed to justify vehicle stop, that “little, if any, informant information was confirmed

before the stop,” notwithstanding four or five surveillance efforts by police).

       In the final analysis, the state has not presented this Court with—and our independent

research has not unearthed—any case in which probable cause to arrest a suspect was found

based on a tip from a first-time informant who has merely been detained on an outstanding

warrant, where the tip is devoid of predictive detail and fails to indicate the informant’s basis of

knowledge of the alleged criminal activity, and police undertake no effort to corroborate or



                                               - 13 -
independently investigate such a bare-bones tip. Instead, the cases cited by the state are readily

distinguishable. For example, in Draper, 358 U.S. at 309, the tip came from an informant who

“had been engaged as a ‘special employee’ of the Bureau of Narcotics * * * for about six

months, and from time to time [had given] information to Marsh,” the federal narcotics agent

who arrested the defendant, and “Marsh had always found the information given by [the

informant] to be accurate and reliable.” See also id. at 310. The Court explained that, because

the tip “[came] from one employed for that purpose and whose information had always been

found accurate and reliable, it is clear that Marsh would have been derelict in his duties had he

not pursued it.” Id. at 313. The established reliability of the informant in Draper stands in stark

contrast to the circumstances of this case, which involve a first-time informant who neither made

a statement against his penal interest nor revealed his basis of knowledge.

       Moreover, the tip in Draper contained predictions relating to specific details that the

officer corroborated. The informant predicted that the defendant would arrive in Denver from

Chicago by train on one of two consecutive mornings; the informant also told Marsh that the

defendant would be “wearing a light[-]colored raincoat, brown slacks[,] and black shoes,” and

that he would be walking at a rapid pace while carrying a tan zipper bag. Draper, 358 U.S. at

309 & n.2.    Two days later, Marsh observed the defendant, “wearing the precise clothing

described by [the informant]” and “carrying a tan zipper bag,” disembark from an incoming

Chicago train and quickly walk towards the exit of the train station. Id. at 309, 310. As the

Supreme Court explained:

               “Marsh had personally verified every facet of the information
               given him by [the informant] except whether [the defendant] had
               accomplished his mission and had the three ounces of heroin on his
               person or in his bag. And surely, with every other bit of [the
               informant’s] information being thus personally verified, Marsh had
               ‘reasonable grounds’ to believe that the remaining unverified bit of

                                              - 14 -
               [the informant’s] information—that [the defendant] would have the
               heroin with him—was likewise true.” Id. at 313.

       Another case cited by the state, Miller, 925 F.2d at 697, involved an informant who

similarly predicted specific details. The informant told Patrick, the investigator who ultimately

made the arrest, that the defendant, whose identity the informant confirmed by identifying her

picture, “would be bringing a shipment of drugs [by bus] from New York City” on one of two

consecutive days. Id. Two days later, the informant confirmed that the defendant’s bus would

be arriving later that day and that the defendant “would be wearing blue jeans and a blouse” and

“carrying a brown tote bag with a shoulder strap.” Id. Later that day, Patrick observed the

defendant, wearing the clothing the informant had predicted and carrying the brown shoulder

bag, disembark from a bus arriving from New York City. Id. In this case, by contrast, the tip did

not contain a prediction of the kind of specific detail related by the tips in Draper and Miller, and

police did not even attempt to corroborate the readily verifiable detail concerning defendant’s

vehicle or learn to whom it was registered.

       Additionally, this case is distinguishable from Miller for another significant reason:

police in this case had no prior knowledge that defendant was a drug dealer. In Miller, 925 F.2d

at 697, Patrick had arrested the defendant for a drug offense about a year earlier. The court

explained that prior knowledge of the defendant’s involvement in the narcotics trade, when

coupled with Patrick’s substantial corroboration of the predictive detail related in the tip,

“pointed towards the tip’s reliability.” Id. at 700; see also id. at 699-700. The factor of

independent knowledge of a defendant’s previous involvement in drug trafficking was also

present in Tyler, another case relied upon by the state. In that case, the police “found that [the

informant’s] account matched [the defendant’s] known reputation as a drug dealer.” Tyler, 238

F.3d at 1038. Moreover, the informant initially made contact with police when they arrested him

                                               - 15 -
for possession of drugs. Id. at 1039. Caught red-handed, the informant identified his source of

the drugs—the defendant—and added that “he had purchased drugs from [the defendant] on

‘numerous occasions’ over the previous year.” Id. The court concluded that “[the informant’s]

disclosures were presumptively credible because they were made against his penal interest.” Id.

Unlike in Tyler, the confidential informant in this case neither made a statement against his penal

interest nor revealed how he knew about defendant’s criminal activity.

       In sum, we hold that the defendant’s arrest was not supported by probable cause. We

emphasize that no one feature of this case compels this conclusion. Instead, after conducting the

requisite totality-of-the-circumstances analysis, we are of the opinion that the facts and

circumstances were not sufficient to “warrant a man of reasonable caution in the belief that an

offense ha[d] been or [was] being committed” and that the defendant was the perpetrator. Chum,

54 A.3d at 462 (quoting Flores, 996 A.2d at 161); see Ortiz, 824 A.2d at 480. The defendant’s

motion to suppress the evidence seized and his statements to police should have been granted.

                                            Conclusion

       For these reasons, we vacate the judgment of conviction. The papers may be remanded

to the Superior Court.



       Justice Robinson, concurring. After a considerable amount of time spent reviewing the

pertinent cases and in applying their teachings to the facts of the instant case, I have decided that

I am able in good conscience to concur in the result reached by the majority. I consider this to be

an extraordinarily close case—one in which the “correct” answer was by no means apparent at

the outset. What in the end convinced me that probable cause was lacking is the fact that, after

considering the other factors in a totality of the circumstances review, I was struck by the reality



                                               - 16 -
that there is no indication in the record before us that the first-time informant advised the police

of the basis for his or her assertion that the defendant would be at the Royal Buffet in possession

of crack cocaine.




                                               - 17 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        State v. Ray Burgess.

CASE NO:              No. 2013-278-C.A.
                      (P2/12-1962A)

COURT:                Supreme Court

DATE OPINION FILED: April 29, 2016

JUSTICES:             Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:           Associate Justice Maureen McKenna Goldberg

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice William E. Carnes, Jr.

ATTORNEYS ON APPEAL:

                      For State: Jane M. McSoley
                                 Department of Attorney General

                      For Defendant: Angela M. Yingling
                                     Office of the Public Defender
