5.1 General Considerations

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

5.1 GENERAL CONSIDERATIONS

5.101 Pervasive Themes. Despite attempts by judges and scholars to forge a single and understandable theory of the Fourth Amendment to the United States Constitution, there are still numerous, often contradictory views of its purposes and values. The following discussion reflects these disagreements.

There are several basic Fourth Amendment themes that have hindered the Supreme Court's attempts to articulate the amendment's purposes and values. The first difficulty arises because the Fourth Amendment provides for the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" in one clause and goes on in the second clause to provide that "no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized." Reconciliation of the two clauses has proved troublesome. Which clause states the controlling principle? Are searches and seizures to be judged in the first instance by whether a warrant was obtained? Or, instead, is the controlling issue whether the search and seizure was reasonable? For a number of years, the Supreme Court has accepted the view that searches and seizures are presumptively invalid without a warrant unless they fall within certain "well-delineated" exceptions. However, a number of recent decisions suggest that the general rule previously described has lost some of its force. Instead, certain members of the Supreme Court have advocated a "reasonableness" approach to the solution of all Fourth Amendment questions. The adherents of this philosophy argue that the existence or nonexistence of a warrant in a particular case should simply be one factor in judging the reasonableness of a search.

A second major source of difficulty for the Supreme Court has been to determine what remedy to apply once a Fourth Amendment violation is found. Since 1914, the Supreme Court has adhered to the position that evidence obtained in violation of the Fourth Amendment must be excluded at trial. This "exclusionary" rule was made applicable to the states in 1961. The major problem with the exclusionary rule arises because the Fourth Amendment

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is silent on the question of the remedy. Whether the exclusionary rule is viewed as constitutionally mandated or as a judicially created rule of evidence has been debated among jurists and scholars, and the resolution of this issue has had a significant impact on the current debate about a "good faith" exception to the rule. Moreover, regardless of the source of the exclusionary rule, there has been basic disagreement about its purposes. Is it based on "deterrence" or is it designed to insulate the judiciary from the "taint" of dealing with evidence obtained in violation of the amendment? The answer to these questions has influenced decisions about the scope of the exclusionary rule.

5.102 The Concept of Probable Cause.

A. In General. With a few exceptions, ¹ a search and seizure of private property may not be undertaken except upon probable cause to believe that seizable objects are located at the place to be searched. ² The requirement of probable cause applies equally to searches under a warrant and to those without a warrant, although some cases suggest that when a search is made under a warrant, reviewing courts will accept evidence of a less judicially competent or persuasive character than would have justified an officer in acting without a warrant. ³

The term "probable cause" in simple terms means information sufficient to justify a person of "reasonable caution in the belief" that seizable items are located in the place to be searched. ⁴ In determining the existence of probable cause, the Supreme Court has admonished courts to approach the problem from the perspective of a reasonable person: "[W]e deal with probabilities . . . [the] factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." ⁵ Thus, the information

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required to establish probable cause clearly need not constitute a prima facie case. ⁶ Implementation of the "common sense" approach to the issue of probable cause is most clearly reflected in the holdings that hearsay may be used. ⁷

Probable cause turns only on objective facts, not on the subjective opinion of the officer. "[T]he fact that the officer does not have the state of mind which is hypothecated by the reasons which provide legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." ⁸

Probable cause cannot be based on "aggregate bits and pieces of information from among myriad officers." ⁹ Instead, the instructing officer alone must have sufficient information to justify an arrest or search in order for the acting officer to benefit from the collective-knowledge doctrine. ¹⁰

Finally, in examining the sufficiency of the information used to support probable cause for a search under a warrant, the allegations in the affidavit must be considered as a whole rather than paragraph by paragraph. The fact that no one paragraph is sufficient to establish probable cause does not render the affidavit insufficient. ¹¹

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B. Searches Under a Warrant. The problem of establishing probable cause for issuing a warrant, as opposed to finding probable cause sufficient to justify a warrantless search, is made more difficult by the fact that the information used to support the showing of probable cause must be submitted under oath to a neutral and independent magistrate. The magis-trate—not the affiant, the affiant's informant, or the person seeking the warrant—must be convinced that the facts presented establish probable cause. ¹² Thus, mere affirmation in the affidavit that items subject to seizure are located in the area to be searched, without any statement of adequate supporting facts, is insufficient. ¹³

The problem of establishing probable cause for issuing a warrant is further complicated by the question of whether the affidavit may be supplemented by oral statements made under oath at the time the affidavit is considered. Although the Virginia Code provides that no search warrant may be issued unless authorized by an affidavit, the term "affidavit" means statements made under oath or affirmation and preserved verbatim. ¹⁴ Thus, the issuing magistrate apparently can consider both the information provided in a written affidavit and any additional information submitted orally as long as the information provided orally, under oath, is preserved verbatim.

5.103 Establishing Probable Cause: Use of Hearsay.

A. In General. The most difficult problems associated with the concept of probable cause arise in cases where hearsay information is used in whole or in part to support the finding of probable cause. The problems discussed in this paragraph are equally applicable to searches under a warrant as to searches without a warrant. The only difference between searches under a warrant and those without a warrant is that, in the case of a search under a warrant, the issuing magistrate must make an evaluation of the sufficiency of the hearsay as part of the probable cause determination at the time the warrant is issued.

The information presented to the magistrate must allow the magistrate to judge whether there is probable cause to believe that items subject to seizure are located in the area to be searched. When the information presented includes information provided by a third party other than the affiant,

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the magistrate must be given sufficient information to judge the adequacy of the factual premise furnished by the source to support the source's assertion that the items sought will be found in the place to be searched. In addition, when the information used to support the finding of probable cause comes from a third party, the magistrate also must be given sufficient information to evaluate the credibility of the source. ¹⁵

B. The Gates "Totality of the Circumstances" Standard. The 1983 Supreme Court decision, Illinois v. Gates, ¹⁶ substantially revised the method for evaluating the use of hearsay to establish probable cause. The Gates decision held that rigid application of the two-pronged test of Aguilar ¹⁷ and Spinelli ¹⁸ is not required when hearsay is used in whole or in part to establish probable cause. Instead, probable cause is to be determined on the basis of the totality of the circumstances; that is, given all the circumstances, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a "fair probability" that contraband or evidence of a crime will be found in a particular place. The Gates decision, however, does not hold that when hearsay is used, the informant's "veracity" and "basis of knowledge" are wholly irrelevant; rather, Gates holds that they are merely "relevant considerations" in the totality of circumstances. A deficiency in one, for example, may be compensated for by a strong showing as to the other or by some other indicia of reliability, such as...