NCJ Number
94423
Journal
Washington and Lee Law Review Volume: 41 Issue: 1 Dated: (Winter 1984) Pages: 327-346
Date Published
1984
Length
20 pages
Annotation
The Supreme Court's recent decision in Illinois v. Gates clarified the standard for determining probable cause based on informants' tips. However, the Court's 'totality of circumstances' test for determining probable cause should never have replaced its severability analysis.
Abstract
In Aguilar v. Texas, the Court developed a two-prong test for determining probable cause based on informants' tips. The first prong required that the affidavit provide facts demonstrating the informant's basis of knowledge in obtaining the information. The second prong, the veracity prong, pertained to the truthfulness of affidavits based on informants' tips by requiring the affiant to offer additional facts establishing the credibility of the informant or the reliability of his information. A major interpretative difficulty of the test for courts was whether a magistrate must sever the test's two prongs or evaluate the veracity and basis of knowledge of the informant interdependently by an assessment of the 'totality of the circumstances.' In Gates, the Supreme Court held that the totality of the circumstances analysis was the proper test for probable cause determinations involving informants' tips, reasoning that this analysis more properly adhered to common sense principles for determining probable cause by avoiding rigid determinations. However, this classification may result in unreasonable, albeit court-approved intrusions of persons and private property by police. The totality analysis permits a magistrate to find probable cause when under the severability analysis a warrant could not be issued because evidence in the affidavit was inadequate to support on the Aguilar prongs. Also, courts following the totality analysis have misinterpreted the rationale in Draper v. United States by allowing police corroboration to support a finding of probable cause. The Gates court's adoption of the totality analysis increases the potential for an overly permissive standard of probable cause. Giving the magistrate wide discretionary powers further intensifies the potential for unreasonable searches and seizures. Footnotes are supplied.