Federal Law: Search Warrants, Illegal Search and Seizure
Reasonable Suspicion and Probable Cause
In order for a search warrant to be issued the 4th amendment to the U.S. Constitution requires police to make a showing of probable cause.
There has to be probable cause (reasonable suspicion) to believe that the items relating to criminal activity are present, or are reasonably likely to be present at the place to be searched. In other words the information available to the police would have to lead a person of reasonable caution to believe that items relating to the crime being investigated would be there.
Basis for Obtaining a Search Warrant
In order for a judge or magistrate to sign off on a warrant the police have to set forth a substantial basis for their belief. This basis of knowledge must be set forth and satisfied by the two-pronged Aguilar-Spinelli test. There has to be a substantial basis for believing that a connection exists between the criminal activity (drug dealing), the items to be seized (drugs) and the home or car to be searched.
Whether the police information is based on an informant or anonymous tip or from a police officer’s direct knowledge the two-pronged Aguilar-Spinelli test adopted by the Massachusetts Supreme Court, requires that the magistrate or judge that signs off on the warrant be informed of the credibility of the informant (veracity test) and the basis of his knowledge (basis of knowledge test).
Basis of Knowledge
This test is concerned with how the police officer, confidential informant or citizen witness came across the information he asserts to be true. First-hand knowledge from personal observations that sets forth facts with specific details is usually sufficient to satisfy the basis of knowledge test. So personal knowledge of facts detailed with specificity is all that is required, and if either one of these elements is lacking then the basis of knowledge requirement can’t be satisfied.
Where the information provided by the informant is based on a rumor or something someone else said then basis of knowledge can be called into question. On the other hand, if the information is so specific and detailed the magistrate or judge presented with the warrant may presume that the information must have come from first-hand observations even though the affidavit/petition for the warrant fails to disclose whether the information is in fact based on first-hand knowledge.
The police must set forth the credibility of the source of the information for the magistrate or judge signing off on the warrant. If the information provided is from a police officer’s direct knowledge its credibility and reliability will be presumed. Information provided by a named citizen is also presumed to be credible and reliable because they are said to be uninterested parties with no reason to lie. An unidentified citizen on the other hand will be treated as an anonymous informant.
Confidential informants present a unique situation. Since they aren’t the police force or a disinterred citizen their credibility won’t automatically be presumed. The police will have to take extra measures in order to sure up the confidential informants’ credibility.
The credibility of a confidential informant can be satisfied in any number of ways. For example if the informant has provided information in the past that has led to arrests and convictions. However, a tip that has only led to one past arrest won’t be sufficient on its own. But where several tips in the past have led to several arrests, credibility may be presumed. Just because a confidential informant provides detailed and specific information it doesn’t mean that he is a credible source, as anyone could just makeup and add details to sure up their credibility.
Independent corroboration by the police of the details provided by a confidential informant may be enough to sure up the credibility of a confidential informant. Police corroboration can take the form of a controlled buy (police arranging a drug buy between the defendant and the confidential informant, or undercover cop, where they monitor the buy and verify that a drug transaction was committed), or by confirming the details of the informant tip through investigation and surveillance of facts or patterns of behavior that are consistent with the informant tip.
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