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Criminal Procedure
Stetson University School of Law
Rose, Charles H.

CRIMINAL PROCEDURE

Probable Cause

– Fourth Amendment:
o “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.”
§ First Clause (Reasonableness Clause): Provision granting protection from unreasonable search and seizures.
§ Second Clause (Warrant Clause): Spoke to the General Warrants and the Writs of Assistance. Such warrants must be founded upon probable cause and must provide ample and sufficient description.
o If there is a warrant, analysis should be done under the Warrant Clause
o If there is no warrant, evaluation of the police action must be done under the Reasonableness Clause.
o Probable cause is a necessary component of each of the analyses under both of the clauses.

– United States v. Draper (U.S. 1959)
o Facts: A federal narcotics agent had been engaged in an information relationship with a special employee, who would provide the agent with information about drug trafficking. The special employee told the agent that the defendant had gone to Chicago by train and would be returning in a specific timeframe bringing with him three ounces of heroin. He described his appearance, his gait, and what he would be carrying. The agent went to the train station and observed the defendant exactly as the special agent had provided.
o The Court held that Brinegar v. United States allowed the agent to rely on the hearsay evidence to support that probable cause existed. Therefore, the police and the courts may rely on hearsay when determining whether probable cause exists.
§ Definition of “Probable Cause” from Brinegar: “Probable cause exits where the facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.”
o The Court also held that the agent had, prior to the search and seizure, verified every element of the information provided by the special employee, except for the possession of the heroin. This, therefore, provided enough facts and knowledge to allow the agent to reasonably believe that the defendant was carrying heroin.
o The information provided to the agent was reliable in this case because the special employee had been working with the agent for months, had previously been reliable, and the information was actually corroborated (all but the carrying of the heroin).
o This case demonstrates what the Court will accept in regards to the quality and quantity of evidence that must be provided in order for a warrantless search and seizure to comport with the Fourth Amendment.
o Dissent (Douglas):
§ He believed that the majority decision conflicts with the letter and spirit of the Fourth Amendment. According to Douglas, the agent acted solely on the special employee’s word, which is not enough. He believed that it was only after the arrest and search were made that there was any evidence known to the officers that a crime was in the process of being committed.

– State v. Hills (La. 2002)
o Facts: An individual was arrested for selling cocaine. He provided information about an individual (the defendant) selling larger amounts of cocaine in an apartment above the street. He then described the clothing the defendant was wearing and motioned to where he was located.
o The court held that the circumstances established by the information from the individual was sufficiently reliable to provide probable cause to the police to arrest and defendant. The court emphasized that the individual had nothing to gain by fabricating the story and that he would only injure himself further by lying to the cops.

– United States v. Florez (Introduction to Dog Sniffs) (N.M. 1994)
o Probable cause can be provided by dog sniffs. However, the analysis is the same for dogs as it is for human informants. The question is whether the source and the information provided by the source is reliable.
o In this case, the court held that the prosecution did not provide the requisite information to establish the dog’s credibility. Such credibility could have been established by adequate and comprehensive records on the dog, including results of controlled alerts made in training and results from actual alerts in the field. Either the records themselves could be admitted or the trainer that kept the records could testify as to the dog’s credibility.

– Aguilar v. Texas (U.S. 1964)
o Facts: Two police officers applied for a warrant to search for narcotics by submitting an affidavit that stated that reliable information from a credible person indicated that drugs could be found on the premises owned by the defendant.
o The issue on appeal dealt with the adequacy of the affidavit and whether it could provide the required probable cause for the magistrate to issue the warrant.
o Because this is a warrant case, the case should be analyzed under the Warrant Clause, which requires that probable cause support the issuance of the warrant.
o The Court reasoned that the magistrate should not have issued the warrant.
o Warrants are preferred over the lone actions of the police. Great deference should be given to the rulings of the magistrate judge, and courts should sustain the judicial determination so long as there was a substantial basis for the magistrate to conclude that drugs were present. The magistrates must be “neutral and detached” when analyzing whether the underlying circumstances present probable cause.
o In this case, the police provided the magistrate with nothing that would allow the magistrate to exercise his independent judgment on whether there was probable

n the letter would transpire. Therefore, those courts excluded the evidence arising from the warrant’s execution.
o The Court noted several examples of how courts took the two-prong test from Aguilar and Spinelli and created a strict rule. The court criticizes this evolution, which required circumstances to be provided to the judge to support both prongs.
o The Court rejected the two-prong test and adopted the Totality of the Circumstances Test.
§ Totality of the Circumstances Test: An informant’s veracity, reliability, and basis of knowledge should be understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical questions of whether there is probable cause. The absence of one or more of these three important factors will not necessarily preclude a finding of probable cause because the overall circumstances may provide enough information for probable cause to exist.
o Applying this totality of the circumstances test, the Court held that probable cause existed because of the facts obtained from the independent investigation, which corroborated the information in the anonymous letter. The letter suggested that the author knew of the defendants’ and their drug trafficking habits because he or she not only described past activities but also provided predictions that were, in fact, verified. This provided the indicia of reliability as to the informant.
o The case specifically alters the requirement of probable cause with respect to confidential informants.
o While the opinion rejects the strict two-prong test, the case does not overrule the decision of Aguilar and Spinelli. It embraced the factors considered in those cases and imported them into the new approach. It held that the issuances of the warrants in those cases would be valid under the new approach.
o Dissent (Brennan, Marshall):
§ The two-prong test should be preserved. However, even under the new totality of the circumstances approach, there was no probable cause to search the house because there was no information in the affidavit that would allow one to believe that the informant was in the house and knew when the money and drugs would be present in the residence. Furthermore, the letter contained an inaccuracy as to the transportation of the drugs, which undermined the informant’s credibility.
§ McCoun supports this reasoning.