The Fourth Amendment does not by its terms require a prior warrant for searches and seizures; it merely prohibits searches and seizures that are "unreasonable." What it explicitly states regarding warrants is by way of limitation upon their issuance rather than requirement of their use. See Wakely v. Hart, 6 Binney 316, 318 (Pa. 1814). For the warrant was a means of insulating officials from personal liability assessed by colonial juries. An officer who searched or seized without a warrant did so at his own risk; he would be liable for trespass, including exemplary damages, unless the jury found that his action was "reasonable." Amar, The Bill of Rights as a Constitution, 100 Yale L. J. 1131, 1178-1180 (1991); Huckle v. Money, 2 Wils. 205, 95 Eng. Rep. 768 (K. B. 1763). If, however, the officer acted pursuant to a proper warrant, he would be absolutely immune. See Bell v. Clapp, 10 Johns. 263 (N. Y. 1813); 4 W. Blackstone, Commentaries 288 (1769). By restricting the issuance of warrants, 582*582 the Framers endeavored to preserve the jury's role in regulating searches and seizures. Amar, supra; Posner, Rethinking the Fourth Amendment, 1981 S. Ct. Rev. 49, 72-73; see also T. Taylor, Two Studies in Constitutional Interpretation 41 (1969).
Although the Fourth Amendment does not explicitly impose the requirement of a warrant, it is of course textually possible to consider that implicit within the requirement of reasonableness. For some years after the (still continuing) explosion in Fourth Amendment litigation that followed our announcement of the exclusionary rule in Weeks v. United States, 232 U. S. 383 (1914), our jurisprudence lurched back and forth between imposing a categorical warrant requirement and looking to reasonableness alone. (The opinions preferring a warrant involved searches of structures.) Compare Harris v. United States, 331 U. S. 145 (1947), with Johnson v. United States, 333 U. S. 10 (1948); compare Trupiano v. United States, 334 U. S. 699 (1948), with United States v. Rabinowitz, 339 U. S. 56 (1950). See generally Chimel v. California, 395 U. S. 752 (1969). By the late 1960's, the preference for a warrant had won out, at least rhetorically. See Chimel; Coolidge v. New Hampshire, 403 U. S. 443 (1971).
The victory was illusory. Even before today's decision, the "warrant requirement" had become so riddled with exceptions that it was basically unrecognizable. In 1985, one commentator cataloged nearly 20 such exceptions, including "searches incident to arrest . . . automobile searches . . . border searches . . . administrative searches of regulated businesses. . . exigent circumstances . . . search[es] incident to nonarrest when there is probable cause to arrest . . . boat boarding for document checks . . . welfare searches . . . inventory searches . . . airport searches . . . school search[es]. . . ." Bradley, Two Models of the Fourth Amendment, 83 Mich. L. Rev. 1468, 1473-1474 (footnotes omitted). Since then, we have added at least two more. California v. Carney, 471 583*583 U. S. 386 (1985) (searches of mobile homes); O'Connor v. Ortega, 480 U. S. 709 (1987) (searches of offices of government employees). Our intricate body of law regarding "reasonable expectation of privacy" has been developed largely as a means of creating these exceptions, enabling a search to be denominated not a Fourth Amendment "search" and therefore not subject to the general warrant requirement. Cf. id., at 729 (SCALIA, J., concurring in judgment).
Warrantless searches and seizures are considered unreasonable per se unless they come within one of the few specifically established and well-delineated exceptions to the warrant requirement.
stating that police may conduct search of vehicle "without a warrant if their search is supported by probable cause
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often …
- in State v. Edman, 2005
OBTAINING A SEARCH WARRANT: CONSTITUTIONAL PREREQUISITES-DEMONSTRATING PROBABLE CAUSE
A search warrant must be supported by probable cause, based on facts sufficient to establish a reasonable inference that criminal activity is occurring or contraband may be found at a specific location. U.S. CONST. amend. IV; CONST. art. I, § 7; CrR 2.3(c); State v. Cole, 128 Wash.2d 262, 286, 906 P.2d 925 (1995). We review de novo a magistrate's determination as to whether probable cause supports a search warrant. In re Det. of Petersen, 145 Wash.2d 789, 799-800, 42 P.3d 952 (2002).
Here, the affidavit for the warrant to search the basement apartment was based on information from a confidential informant. To establish probable cause based on an informant's tip, the magistrate must apply the two prongs of the Aguilar-Spinelli test, determining whether the affidavit establishes (1) the basis for the informant's information and (2) the basis for the officer's conclusion that the informant was credible. Cole, 128 Wash.2d at 287, 906 P.2d 925 (citing Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964)); State v. Jackson, 102 Wash.2d 432, 436-37, 688 P.2d 136 (1984). Both prongs of the test must be established. Cole, 128 Wash.2d at 287, 906 P.2d 925. However, independent police investigation that corroborates the tip may cure a deficiency in either or both prongs. Id.; Jackson, 102 Wash.2d at 438, 688 P.2d 136. Mr. Boyer challenges both the veracity of the informant and the basis of the informant's information.
… Finally, we find insufficient independent police investigation to support the missing elements of the Aguilar-Spinelli test. Jackson, 102 Wash.2d at 438, 688 P.2d 136. Corroborating evidence must point to criminal activity along the lines suggested by the informant.
We hold that Const. art. 1, § 7 requires that, in evaluating the existence of probable cause in relation to informants' tips, the affidavit in support of the warrant must establish the basis of information and credibility of the informant. See Spinelli v. United States, 393 U.S. 410, 21 L.Ed.2d 637, 89 S.Ct. 584 (1969); Aguilar v. Texas, 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509 (1964). We find that the affidavits and independent investigatory corroboration satisfy these requirements and the warrant was thus valid. The convictions are affirmed.
The veracity prong is usually satisfied by showing that the informant has a " `track record'"of providing accurate information to the police.
- in State v. Olds, 2012 and 16 similar citations
"*** In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused's criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's …
- in McKoy v. Commonwealth, 1971
In Clark, our Supreme Court provided an overview of the evolution of the probable cause standard.
Prior to 1983, in order to establish probable cause for the issuance of a search warrant based on information received from a confidential informant, an affidavit of probable cause had to satisfy a two-part test [, the Augilar [Aguilar]-Spinelli test]. The test required the affiant to set forth 1) the basis of the informant's knowledge; and 2) facts sufficient to establish an informant's veracity or reliability. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). In 1983, the U.S. Supreme Court abandoned this "two-part" test and adopted a "totality of the circumstances" test. Illinois v. Gates, 462 U.S. 213, 233, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).[[3]] The Court held that the Aguilar-Spinelli factors were no longer rigid, independent requirements that had to be satisfied, but instead, were merely relevant factors among the totality of circumstances necessary to show probable cause." Id.
Id. at 1286-87 (emphasis added) (footnote omitted). Under Gates, "probable cause is a fluid concept that turns on the assessment of probabilities in factual contexts that are `not readily, or even usefully, reduced to a neat set of legal rules.'" Id. at 1287-88; see also Rapak, 138 A.3d at 671. A totality of the circumstances analysis "permits a balanced assessment of relative weights of all the various indicia of reliability or unreliability of an informant's tip." Clark, 28 A.3d at 1288. Accordingly, "a CI's veracity and basis of knowledge are but factors among the totality of circumstances" to be considered. Id. Therefore, post-Gates, "an informant's tip may constitute probable cause where police independently corroborate the tip, or where the informant has provided accurate information of criminal activity in the past, or where the informant himself participated in the criminal activity." Id. (citations omitted) (emphasis in original). An affidavit of probable cause is reviewed "in its entirety, giving significance to each piece of information and balancing the relative weights of all the various indicia of reliability (and unreliability) attending the tip." Commonwealth v. Wallace, 615 Pa. 395, 42 A.3d 1040, 1048-49 (2012) (quoting Massachusetts v. Upton, 466 U.S. 727, 732, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984)). Therefore,
[i]f, for example, a particular informant is known for the unusual reliability of his predictions of certain types of criminal activities in the locality, his failure, in a particular case, to thoroughly set forth the basis of his knowledge surely should not serve as an absolute bar to a finding of probable cause based on his tip. Likewise, 1091*1091 if an unquestionably honest citizen comes forward with a report of criminal activity — which if fabricated would subject him to criminal liability — we have found rigorous scrutiny of the basis of his knowledge unnecessary. Conversely, even if we entertain some doubt as to an informant's motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles his tip to greater weight than might otherwise be the case.
Id. at 1051 (emphasis added) (quoting Gates, 462 U.S. at 233-34, 103 S.Ct. 2317 (citations and footnote omitted in original)).
The fluidity of the totality of the circumstances test under Gates does not hamstring an issuing authority from finding probable cause to issue a search warrant by insisting upon rigid criteria. Rather, an issuing authority may find that probable cause exists for a search warrant based upon whatever is presented in an affidavit of probable cause, so long as what is presented contains sufficient indicia of reliability to demonstrate there is a fair probability that contraband or evidence of a crime will be found in a particular place. See Lyons, 79 A.3d at 1065. Corroboration of a confidential informant's information, although very useful, is no longer always required to satisfy the dictates of probable cause. See Commonwealth v. Jones, 542 Pa. 418, 668 A.2d 114, 117 (1995). "The suppression or exclusion of evidence is a `most extreme remedy' that can be justified only when it is necessary to vindicate fundamental rights or to correct or deter police abuse." Commonwealth v. Huntington, 924 A.2d 1252, 1259 (Pa. Super. 2007) (citing Commonwealth v. Dennis, 421 Pa.Super. 600, 618 A.2d 972, 981 (1992)).
involving informant's veracity or reliability and his basis of knowledge, "are better understood as relevant considerations in the totality of circumstances analysis that traditionally has guided probable cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia …
A probable cause determination is " `a practical, common-sense decision whether, given all the circumstances... there is a fair probability that contraband or evidence of a crime will be found in a particular place.'"Id
- in United States v. MILEIKIS, 2021
In evaluating whether evidence should be admitted under either the independent source or the inevitable discovery doctrines, courts should keep in mind the underlying question: "whether, granting establishment of the primary illegality, [the evidence has] been come at by the exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963); United States v. Buchanon, 72 F.3d 1217, 1226 (6th Cir.1995).
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The independent source doctrine requires courts to admit evidence "if the government can show that it was discovered through sources `wholly independent of any constitutional violation.'" United States v. Leake, 95 F.3d 409, 412 (6th Cir. 1996) (quoting Nix v. Williams, 467 U.S. 431, 433 (1984)). The doctrine's rationale is that "police who carry out a search that they should not have carried out should be put in the same, but no worse, position than they would have been absent any error or misconduct." United States v. Jenkins, 396 F.3d 751, 758 (6th Cir. 2005) (emphasis in original). The doctrine can apply in situations, where, as here, officers initiate a warrantless entry/search of a premises and later obtain a valid search warrant for said premises.
In order to establish that the doctrine applies to a warrant based on both legally and illegally obtained information, the Government must show, by a preponderance of the evidence, that: (1) the initial search did not prompt officers to seek a warrant for the second search; and (2) that a neutral magistrate would have issued the search warrant even if not presented with the information obtained from the illegal search. United States v. Williams, 656 Fed. App'x 751, 754 (6th Cir. 2016) (citing Jenkins, 396 F.3d at 758, 761)).
The first showing is a fact-based inquiry that requires the Court to assess the record. Id. (citing Murray v. United States, 487 U.S. 533, 540 n.2 (1988)). An officer's testimony as to whether the illegal search led police to seek a warrant can be probative as to this issue. Id. However, "[w]here the facts render [officer] assurances implausible, the independent source doctrine will not apply." Id. (quoting Murray, 487 U.S. at 540 n. 2)).
- in US v. Hudson, 2017 a
"This court reviews a district court's decision on a motion to suppress under two standards. `Findings of fact are upheld unless clearly erroneous, while conclusions of law are reviewed de novo.'" United States v. Jenkins, 396 F.3d 751, 757 (6th Cir. 2005) (quoting United States v. Leake, 95 F.3d 409, 416 (6th Cir. 1996)). "This court views the evidence in the light most likely to support the district court's decision." United States v. McPhearson, 469 F.3d 518, 523 (6th Cir. 2006) (citation and quotation omitted). "A factual finding is clearly erroneous when, although there may be evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. Blair, 524 F.3d 740, 747 (6th Cir. 2008) (citation and quotation omitted).
- in US v. Master, 2010
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A search warrant is a warrant issued by the competent authority authorizing a police officer to search a specified place for evidence even without the occupant’s consent. A search warrant is generally required for a Fourth Amendment search, subject to a few exceptions. In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court held that searches conducted outside the judicial process, without prior approval are prohibited under the Fourth Amendment, with a few detailed exceptions
The Fourth Amendment of the United States Constitution restricts the government from authorizing unreasonable searches and seizures. The Amendment reads:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Only judges and magistrates may issue search warrants. In Coolidge v. Hampshire, 403 U.S. 443 (1971), the Supreme Court held that a warrant must be issued by a "neutral and detached" judge capable of determining whether probable cause exists. To obtain a warrant, law enforcement officers must show that there is probable cause to believe a search is justified. Officers must support this showing with sworn statements (affidavits), and must describe in particularity the place they will search and the items they will seize. In Groh v. Ramirez, 540 U.S. 551 (2004), the Court held that a warrant that lacks accurate information as to what will be searched is improper, and that a search which happens pursuant to that warrant is unlawful and violates the Fourth Amendment.
In Illinois v. Gates, 462 U.S. 213 (1983), the Supreme Court held that when deciding whether to issue the warrant, a judge must must consider the totality of the circumstances, including an informant's veracity, reliability, and basis of knowledge.
When issuing a search warrant, the judge may restrict how and when the police conduct the search. In Zurcher v. Stanford Daily, 436 U.S. 547 (1978), the Supreme Court allowed the police to search a student newspaper. The newspaper was not implicated in any criminal activity, but police suspected it had photographic evidence of the identities of demonstrators who assaulted police officers. However, some jurisdictions responded by passing laws restricting or forbidding these kinds of searches, such as when California's legislature created CA Penal Code § 1524.
When determining whether the actual search violates the Fourth Amendment, courts will use a reasonableness test. Warrantless police conduct may comply with the Fourth Amendment, provided that the conduct is reasonable under the circumstances. In Maryland v. Garrison, 480 U.S. 79 (1987), the warrant indicated that “the third floor apartment” was to be searched. Howevere, there were two apartments on the third floor. As such, the search of both apartments was considered reasonable.
The Supreme Court has also created some exceptions to the warrant requirement. This is seen in the hot pursuit exception (as established in Warden v. Hayden, 387 US. 294 (1967)), and the automobile exception (as demonstrated in Caroll v. United States, 267 U.S. 132 (1925), but narrowed in Arizona v. Gant, 556 U.S. 332 (2009)).
Similarly, the Supreme Court has established that searches which are incident to the warranted search do not necessarily violate the Fourth Amendment. In Michigan v. Summers, 452 U.S. 692 (1981), the Court held that a warrant--based on probable cause--to search for contraband also implicitly grants the police to detain the occupants of the premises during the search. Additionally, when determining whether to apply the exclusionary rule in light of police deviations from warrant restrictions, courts consider whether the actual search was unreasonable.
Normally, law enforcement officers executing a search warrant may not immediately force their way into a residence. Instead, they must first knock and announce their identity and intent. Then, they must wait a reasonable amount of time to allow an occupant to open the door. Only after waiting may the police force entry. This “knock-and-announce rule” is one of the factors a court must consider in its reasonableness test, as stated in Wilson v. Arkansas, 514 U.S. 927 (1995).
Police may disregard the knock-and-announce rule when it is reasonable to do so. In Richards v. Wisconsin, 520 U.S. 358 (1997), the Supreme Court held that a no-knock entry is justified when, under the circumstances, knocking and announcing their presence "would be dangerous or futile, or that it would inhibit the effective investigation of the crime."
An anticipatory warrant grants police officers a warrant that becomes valid after some future triggering condition occurs. Courts reserve these types of warrants for situations in which police have probable cause that at some future time evidence in a particular location will become available. In United States v. Grubbs, 547 U.S. 90 (2006), the Supreme Court upheld anticipatory warrants, holding that a warrant need not set out the conditions that trigger it, only the place to be searched and the persons or things to be searched for.
Police officers may obtain warrants to seize and search electronic storage media or electronically stored information. Since December 1, 2009, Rule 41 of the Federal Rules of Criminal Procedure governs these searches. The rules allow officers to copy seized material for later review. The new version of Rule 41 governing these searches also allows police officers to plant tracking devices on persons or property.
Generally, only under special circumstances may police officers execute search warrants at night. Different jurisdictions use different definitions of “nighttime.” For example, federal law enforcement officers must normally start searches between 6:00 a.m. and 10:00 p.m. See Rule 41 of the Federal Rules of Criminal Procedure. In practice, the special circumstances exception applies most frequently in drug cases.
When conducting a search, police may only search the places and people listed on the search warrant, and may only search for the sought-after evidence. Accordingly, officers may only search places where they might reasonably find the evidence. For example, officers searching for a rifle may not look in a small jewelry box.
Search warrants may authorize police to search specific, named people found at the targeted location. However, officers executing a search warrant may detain anyone present during the search. Furthermore, if officers find sufficient evidence to arrest someone present, they may arrest and search that person, even if the person was not listed on the warrant. (See "Incidental Searches" above).
Rule 41(f)(1) of the Federal Rules of Criminal Procedure discusses the federal requirements for returning a warrant. Most jurisdictions impose additional post-search procedural safeguards. For example, many jurisdictions require officers to return a copy of the search warrant to the judge after executing it. This return copy must include information about the search, including a list of what was seized. Similarly, most jurisdictions require officers to give a receipt for seized property.
For more on search warrants, see this University of Florida Law Review article, this Cornell Law Review article, and this Harvard Law Review article,
Criminal Procedure—Search Warrants—The Totality of the Circumstances Test for Determination of Probable Cause isCircumstances Test for Determination of Probable Cause is Adopted-PDF
Fourth Amendment - Totality of the Circumstances Approach to Probable Cause Based on Informant's Tips - Illinois v Gates, 103 s Ct 2317 (1983)
Abstract
The Aguilar-Spinelli test requires the police to The Aguilar-Spinelli test requires the police to inform a magistrate of the circumstances supporting the informant's allegation of criminal activity. It further requires the police to demonstrate that the informant is credible or that his information is reliable. In 'Gates,' Justice Rehnquist, in speaking for the majority, stated that the totality-of-the-circumstances test is more consistent with the Court's prior treatment of probable cause than the Aguilar-Spinelli test. Although rigid, the Aguilar-Spinelli standards assisted magistrates' determinations of probable cause by ensuring warrants were issued only on the basis of reliable informant information. The totality-of-circumstances test requires magistrates to consider all the information in the affidavit, including the informer's reliability, credibility, and basis of knowledge. The test, however, provides no practical guidance on the relative weights to be assigned to any of these considerations. The 'Gates' decision also held that 'innocent' activity (as opposed to law-breaking activity) by the suspects can corroborate informant information to establish the probable cause sufficient for a search warrant. To establish probable cause, corroborated details should involve criminal activity, since the informant may have willfully or mistakenly interpreted the innocent activity as a sign of nonexistent, unobserved criminal activity. A total of 103 footnotes are provided.
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Warrantless Searches Dependent on Probable Cause
Warrantless Searches Not Dependent on Probable Cause
Special Needs Doctrine