Search Warrants, Hearsay and Probable Cause-the Supreme Court Rewrites the Rules

JurisdictionUnited States,Federal
CitationVol. 12 No. 8 Pg. 1250
Publication year1983
12 Colo.Law. 1250
Colorado Lawyer

1983, August, Pg. 1250. Search Warrants, Hearsay and Probable Cause-The Supreme Court Rewrites the Rules


Vol. 12, No. 8, Pg. 1250

Search Warrants, Hearsay and Probable Cause---The Supreme Court Rewrites the Rules
by Jonathan L. Olom

"With apologies to all," the U.S. Supreme Court recently side-stepped the controversial question of whether or not to carve out a "good faith exception" to the exclusionary rule.(fn1) Instead, the court attempted to pacify the critics of search-and-seizure law by gutting the traditional rules which are applied to determine the validity of search warrants based on hearsay.

In Illinois v. Gates,(fn2) the court overruled the seminal Fourth Amendment cases which led to the development of the familiar "Aguilar-Spinelli"(fn3) standards for judging the validity of search warrants. Under the previous standards, clear rules were set down for analyzing the quality of the hearsay which makes up the bulk of many affidavits in support of search warrants. Now the courts will be called upon to determine the legality of search warrants pursuant to the "totality of the circumstances."

This represents a major departure from past practice and the development of a new constitutional doctrine. The Gates case is worthy of close examination. Since the case was decided under the U.S. Constitution, the Colorado courts must now consider whether to follow Gates in interpreting the state constitutional provisions respecting search and seizure.

This author believes that Gates is bad law, and that an examination of the Gates case, as well as a review of the development of the Aguilar-Spinelli standards, may help in understanding the necessity for maintaining these standards under the Colorado Constitution.(fn4)

The Facts in Gates

In the spring of 1978, the Blooming-dale Police Department received an anonymous hand-written letter which accused Sue and Lance Gates of being drug dealers.(fn5) The letter stated that their modus operandi was for Susan to drive their car to Florida to pick up drugs and for Lance to fly to Florida and drive the car back. The letter stated that such a deal was in progress.

Police officers followed up and learned that an "L. Gates" had made a reservation on a flight to West Palm Beach. The ensuing surveillance ascertained that Gates was in fact on the flight to Florida and that, upon arrival, he proceeded to a room registered to Susan Gates. The next morning, he left with an unidentified woman in a car bearing Illinois license plates and they were last seen driving north.

Based on this information, police officers obtained a search warrant for the Gates' residence and automobile. When the car arrived at the residence, the officers arrested the Gates' and searched their house. The car contained approximately 350 pounds of marijuana and the home contained additional marijuana, weapons and other contraband.

Every Illinois court which passed on this warrant held it to be deficient.(fn6) As the Illinois Supreme Court summed up, the anonymous letter did not "contain any statement showing that the information was acquired through first-hand or personal knowledge of the informant," and "there was simply no basis on which either (the police officer) or the magistrate could conclude that the anonymous person was credible."(fn7) What little corroboration was present was viewed as innocent activity.

The members of the U.S. Supreme court split on their approach to the issues. Five justices resolved the problem by scuttling the Aguilar-Spinelli test and upheld the warrant under the new "totality of the circumstances" standard.(fn8) Justice White, objecting to the dispatch of the Aguilar-Spinelli rules to the jurisprudential afterlife, felt that the warrant was valid under traditional standards.(fn9) Justices Brennan and Marshall dissented from the adoption of the new standards, believing that the warrant would be invalid under any test.(fn10) Justices Brennan and Stevens also opined that the warrant for the house was invalid,(fn11) but that the search of the vehicle should be reconsidered in light of the recent case of United States v. Ross.(fn12)

The majority opinion gives little guidance in resolving the question of what exactly constitutes an analytic framework for applying the "totality of the circumstances" test. Although...

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