Criminal Procedure - Outline Part 5

If informant admits to being involved in criminal activity → makes informant more reliable

1. 1st hand knowledge
2. Why admit if didn’t happen

Big question: How do you know?

Aguilar/Spinelli 2-prong test: PUT GATES TEST ON EXAM -- NOT THIS ONE.

• Material from an informant had to meet 2 separate prongs before it would constitute probable cause for a warrant.
  1. Basis of knowledge → must have facts showing the particular means by which the informant came upon the information which he supplied to the police
  2. Veracity/reliability → had to be evidence (usually in the form of an affidavit from the officer seeking the warrant) that the informant was a reliable witness (either b/c he had been reliable in the past, or b/c there was special reasons to believe that his information in this particular case was reliable)
     1. Credibility of the informant
     2. Reliability of the information
• A/S was a rigid test; must satisfy both prongs.
• ONLY apply when hearsay source (as part of Gates test)

Drug-Sniffing Dogs and Probable Cause

• Florida v. Harris (2013) → The reliability of a dog as an “informant” is to be determined by the Gates Totality of the Circumstances Rule – if a dog has satisfactorily performed in an odor-detection training course, that fact alone will typically allow the dog’s alert to constitute probable cause

Illinois v. Gates (1983) → Overruled the Aguilar/Spinelli 2-prong test; so long as a neutral magistrate can reasonably determine that, based on the informant’s information and all other available facts (i.e., the totality of the circumstances), there is probable cause to believe that a search or arrest is justified, he may issue the warrant

• The A/S 2-prong test isn’t completely gone, but rather it should be treated as “relevant considerations in the totality of the circumstances analysis that traditionally has guided probable cause determinations.”
  • The direct consequence of the holding in Gates is that a strong showing on one of the prongs can in effect make up for an inadequate showing on the other one
• NEW/MODERN RULE: a "totality of the circumstances" approach.
  • But A/S not gone completely… just circumstances of new test.
  • Must be more than bare conclusions
    • Common sense/practical decision
• Key to Gates = corroboration!
  • Corroboration of aspects of the informant’s story may be combined w/ the story itself, in determining whether there is probable cause – this is especially likely to be the case where (as in Gates):
    1. the informant’s identity is not known to the police; and
    2. the corroboration is of the future actions of third parties that are not ordinarily not easily predicted
       • In Gates, the fact that the informant correctly predicted that Gates would fly to FL sometime shortly after May 3^rd, and that he would drive the family car back again immediately thereafter, justified a magistrate in concluding that it was “not unlikely” that the informant also had access to reliable info about Gates
  • What do police do with tip?
  • Future event prediction = important factor
• Standard of review of magistrate’s PC determination: a "substantial basis for concluding" that a search would uncover evidence of wrongdoing
  • Deferential to magistrate
  • Problem with old de novo standard was that officers were not motivated to get warrants
  • If warrantless search, no deference given to officer PC determination
  • Review 4 corners of affidavit, not the hearing.
  • ONE exception: challenging truthfulness if think officer lied to judge to get warrant
    • “Franks Hearing”

Franks v. Delaware (1978) → The 4^th Amendment requires that warrants that are founded on probable cause must be “supported by Oath of Affirmation.” – therefore, a defendant may challenge the truthfulness of statements made under oath in an affidavit supporting a warrant under limited circumstances

• “Where the defendant makes a substantial preliminary showing that a false statement knowing and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, the 4^th Amendment requires that a hearing be held at the defendant’s request.”
• “In the event that at that hearing the allegation f perjury or reckless disregard is established by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.”
  • Steps:
    1. Defendant makes “substantial preliminary showing” that affidavit contained:
       1. False information/statement; and
       2. knowing and intentionally, or reckless disregard for truth, included
    2. If shown → Franks Hearing
    3. Judge redacts the alleged false info from the warrant
    4. Judge determines if probable cause exists without the alleged false info
    5. Affidavit could still stand or warrant is voided

• What Can Be Searched During a Search Warrant