Return to Syllabus
SEARCHES PROBABLE CAUSE AND WARRANTS
The Concept of Probable Cause
The Fourth Amendment guarantees the right to be secure in one's person, home, papers, and effects against unreasonable searches and seizures by government agents. Only unreasonable searches and seizures are restricted while searches and seizures pursuant to a valid warrant are presumed reasonable. A search warrant issued by a judge or magistrate upon a finding of probable cause permits a search and seizure of specifically described and located property by law enforcement officials. As with most rules, exceptions exist to the general necessity of the use of a warrant and, in some situations, even the need for probable cause.
Probable cause to search requires that a police officer of reasonable caution possess objective facts from which a reasonable person would conclude that seizable items may be in a particular place or on a particular person. The standard of belief must be more than a mere hunch, but falls far short of proof beyond a reasonable doubt. Probable cause is based on an objective standard and not on the subjective belief of the particular police officer.
Requirement of a Warrant
To conduct a legal search, absent some well-defined exception, a search warrant from a neutral and detached judicial official is required under the dictates of the Fourth Amendment. The police officer who desires to obtain a search warrant must prepare an affidavit for a search warrant in which the officer states the facts which the officer believes constitutes probable cause. Within the affidavit are the sources of information and the reasons why the officer believes that probable cause exists. If an informant's information must be utilized to establish probable cause, the reliability and believability of the informant must be made clear to the judge or magistrate. Where the judge concurs in the judgment of probable cause, the judge will sign a court order known as a search warrant.
Sources of Probable Cause
For cases in which the finding of probable cause rests on information from an informant, the Court developed a "two-pronged test" to determine whether an informant's information was sufficient to establish probable cause for a search. See Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v. United States, 394 U.S. 410 (1969). The first prong of the Aguilar test required that police prove that the informant was a reliable or believable witness. The officer needs to support the conclusion that the informant was credible or reliable by the use of objective facts. Proof of the first portion of the test could be made by the use of a prior "track record" of reliable information or by police corroboration of some of the witness' information. The second prong required that police offer facts which demonstrated that the informant possessed a basis from which one could conclude that probable cause existed. In other words, the affidavit must set forth facts which, if believed, constitute probable cause. The police officer must include underlying circumstances which would allow the judicial official to independently judge the validity of the informant's conclusions.
The Court overruled the Aguilar "two-pronged test" in Illinois v. Gates, 367 U.S. 213 (1983), where the "totality of the circumstances" test was adopted to judge the value of an informant's information. Under the totality of the circumstances approach a judge must look at the information offered by the informant and consider all relevant information, including the truthfulness of the informant in reaching a decision concerning probable cause. The Court felt that the old "two-pronged test" improperly focused the judicial officer's attention on the informant's veracity or believability and his basis of knowledge rather than the factual and practical considerations of probable cause. As the Court noted in Gates, under the totality of the circumstances analysis, "a deficiency in one (prong) may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other (prong), or by some other indicia of reliability." The net result of Gates is that a judicial officer may look at all the evidence pointing toward probable cause, without having to satisfy a rigid mechanical standard. An informant's evidence may be validated by the person's past record as an informant, by the extensive detail of the evidence and the surrounding circumstances, and/or any corroboration of the details by police.
In a large number of cases, the evidence presented to the judicial official comes from the personal observation of police officers. Since courts assume that a sworn affidavit from a police officer contains true information, the problems associated with the use of informants do not arise. The judge need only consider the information contained within the affidavit to make an informed judgement concerning the existence of probable cause. If the judge determines from the affidavit that probable cause exists, the judge will sign the warrant authorizing the search of particularly described premises or person.
A warrant is a specific type of court order which requires persons in control of the particular premises to allow the search to be conducted. There is no right to lawfully resist the execution of a search warrant, but there is no duty to affirmatively assist the officers. When the warrant has been completely executed, the officer gives to the person in control of premises a list or inventory of items seized. If no one is present, the inventory list is attached to the building or structure which has been searched.
Warrants are not required for abandoned property or for property over which no one has a legitimate expectation of privacy. In California v. Greenwood, 486 U.S. 35 (1988), the Court approved a warrantless police search of trash Cans which had been placed near the street for municipal pick up. Greenwood's neighbors complained to police that a high level of vehicle and pedestrian traffic existed around the residence. Since the descriptions of persons entering and quickly leaving Greenwood's home indicated the possibility of drug sales, the police arranged for the trash hauler to pick up Greenwood's refuse in an empty truck and to hand the contents to the police. Analysis of the truck's contents clearly indicated the presence and use of illegal drugs at the residence.
The police used the trash evidence as part of the basis for developing probable cause to search the residence which was the source of the trash. A judge issued a search warrant and the resulting search disclosed the presence of illegal drugs. The Supreme Court of the United States approved the warrantless search of the trash on the theory that the act of placing the trash for pick up indicated that the occupants no longer had any objectively reasonable Fourth Amendment expectation of privacy which society was prepared to recognize as reasonable.
In other contexts, the Fourth Amendment has been judicially construed to have application but not to require a warrant. Warrantless drug testing of transportation workers, especially railroad and airline employees, may be required. Probable cause to believe that an employee is drug impaired is not required according to Skinner v. Railway Labor Executives' Association, 489 U.S. 602 (1989). The Court used a balancing test to weigh the need for the testing against the infringement of the Fourth Amendment rights of the employees. Due to compelling interest of the government in having unimpaired individuals operating the nation's transportation system, the privacy interests of employees must give way to government dictates.
Developing Probable Cause for a Search
ILLINOIS v. GATES, Supreme Court of the United States (1983), 462 U.S. 213, 103 S.Ct. 2317
FACTS:
The police of Bloomingdale, Illinois received an unsolicited and anonymous letter which contained statements alleging that the defendants-respondents were engaged in the selling of drugs and that they possessed a quantity of drugs in their dwelling. The letter contained the information that the spouse of Lance Gates would normally drive the family automobile to Florida to be loaded with drugs and Lance would normally fly down to drive it back to Illinois. The letter noted that a trip was soon to take place and gave the precise date of the trip. The writer included information that the pair bragged about drug selling, never having to work, and making their money from drug pushers.
The police made some preliminary inquiries, contacted an informant, and discovered that Lance Gates had an airplane reservation to Florida near the date mentioned in the anonymous letter. Bloomingdale police contacted the Drug Enforcement Administration which monitored some of the conduct of Lance Gates. Numerous facts mentioned in the letter received corroboration by state and federal agents.
On the basis of the anonymous letter, the information from the informant of the Bloomingdale police, and corroborative information from the Drug Enforcement Administration, the Bloomingdale police obtained a search warrant for both the home of Lance and Susan Gates and their automobile. The resulting search produced marijuana and other contraband in the home and the automobile.
The grand jury indicted Lance and Susan Gates for violation of state drug laws. Prior to trial the Gates' successfully filed a motion to suppress evidence seized during this search. The Illinois Supreme Court affirmed the decisions of lower state courts granting the motion.
PROCEDURAL QUESTION:
Shall the two-pronged test developed under Aguilar and Spinelli be abandoned in favor of a "totality of the circumstances" test to determine probable cause where the basis for probable cause includes information from an informant?
HELD: Yes.
RATIONALE:
Justice REHNQUIST delivered the opinion of the Court.
We granted certiorari to consider the application of the Fourth Amendment to a magistrate's issuance of a search warrant on the basis of a partially corroborated anonymous informant's tip.
* * *
We. . . conclude that the Illinois Supreme Court read the requirements of our Fourth Amendment decisions too restrictively.
* * *
A chronological statement of events usefully introduces the issues at stake. Bloomingdale, Ill., is a suburb or Chicago located in DuPage County. On May 3, 1978, the Bloomingdale Police Department received by mail an anonymous handwritten letter which read as follows:
"This letter is to inform you that you have a couple in your town who strictly make their living on selling drugs. They are Sue and Lance Gates, they live on Greenway, off Bloomingdale Rd. in the condominiums. Most of their buys are done in Florida. Sue his wife drives their car to Florida, where she leaves it to be loaded up with drugs, then Lance flys down and drives it back. Sue flys back after she drops the car off in Florida. May 3 she is driving down there again and Lance will be flying down in a few days to drive it back. At the time Lance drives the car back he has the trunk loaded with over $100,000.00 in drugs. Presently they have over $100,000.00 worth of drugs in their basement.
They brag about the fact they never have to work, and make their entire living on pushers.
I guarantee if you watch them carefully you will make a big catch. They are friends with some big drug dealers, who visit their house often.
Lance & Susan Gates
Greenway
in Condominiums
The letter was referred by the Chief of Police of the Bloomingdale Police Department to Detective Mader, who decided to pursue the tip. Mader learned from the office of the Illinois Secretary of State, that an Illinois driver's license had been issued to one Lance Gates, residing at a stated address in Bloomingdale. He contacted a confidential informant, whose examination of certain financial records revealed a more recent address for the Gates, and he also learned from a police officer assigned to O'Hare Airport that "L. Gates" had made a reservation on Eastern Airlines flight 245 to West Palm Beach, Fla., scheduled to depart from Chicago on May 5 at 4:15 p.m.
Mader then made arrangements with an agent of the Drug Enforcement Administration for surveillance of the May 5 Eastern Airlines flight. The agent later reported to Mader that Gates had boarded the flight, and that federal agents in Florida had observed him arrive in West Palm Beach and take a taxi to the nearby Holiday Inn. They also reported that Gates went to a room registered to one Susan Gates and that, at 7:00 a.m. the next morning, Gates and an unidentified woman left the motel in a Mercury bearing Illinois license plates and drove northbound on an interstate frequently used by travelers to the Chicago area. In addition, the DEA agent informed Mader that the license plate number on the Mercury was registered to a Hornet station wagon owned by Gates. The agent also advised Mader that the driving time between West Palm Beach and Bloomingdale was approximately 22 to 24 hours.
Mader signed an affidavit setting forth the foregoing facts, and submitted it to a judge of the Circuit Court of DuPage County, together with a copy of the anonymous letter. The judge of the court thereupon issued a search warrant for the Gates' residence and their automobile. The judge, in deciding to issue a warrant, could have determined that the modus operandi of the Gates had been substantially corroborated As the anonymous letter predicted Lance Gates had flown from Chicago to West Palm Beach late in the afternoon of May 5the, had checked into a hotel room registered in the name of his wife, and, at 7:00 a.m. the following morning, had headed north, accompanied by an unidentified woman, out of West Palm Beach on an interstate highway used by travelers from South Florida to Chicago in an automobile bearing a license plate issued to him.
At 5:15 a.m. on March 7th, only 36 hours after he had flown out of Chicago, Lance Gates, and his wife, returned to their home in Bloomingdale, driving the car in which they had left West Palm Beach some 22 hours earlier. The Bloomingdale police were awaiting them, searched the trunk of the Mercury, and uncovered approximately 350 pounds of marijuana. A search of the Gates' home revealed marijuana, weapons, and other contraband. The Illinois Circuit Court ordered suppression of all these items, on the ground that the affidavit submitted to the Circuit Judge failed to support the necessary determination of probable cause to believe that the Gates' automobile and home contained the contraband in question. This decision was affirmed in turn by the Illinois Appellate Court and by a divided vote of the Supreme Court of Illinois.
The Illinois Supreme Court concluded - and we are inclined to agree - that, standing alone, the anonymous letter sent to the Bloomingdale Police Department would not provide the basis for a magistrate's determination that there was probable cause to believe contraband would be found in the Gates' car and home. The letter provides virtually nothing from which one might conclude that its author is either honest or his information reliable; likewise, the letter gives absolutely no indication of the basis for the writer's predictions regarding the Gates' criminal activities. Something more was required, then, before a magistrate could conclude that there was probable cause to believe that contraband would be found in the Gates' home and car. See Aguilar v. Texas, 378 U.S. 108, 109, n.1 (1964); Nathanson v. United States, 190 U.S. 41 (1933).
The Illinois Supreme Court also properly recognized that Detective Mader's affidavit might be capable of supplementing the anonymous letter with information sufficient to permit a determination of probable cause. (Citation omitted.) In holding that the affidavit in fact did not contain sufficient additional information to sustain a determination of probable cause, the Illinois court applied a "two-pronged test," derived from our decision in Spinelli v. United States, 393 U.S. 410 (1969). The Illinois Supreme Court, like some others, apparently understood Spinelli as requiring that the anonymous letter satisfy each of two independent requirements before it could be relied on . . . According to this view, the letter, as supplemented by Mader's affidavit, first had to adequately reveal the "basis of knowledge" of the letter writer - the particular means by which he came by the information given in his report. Second, it had to provide facts sufficiently establishing either the "veracity" of the affiant's informant, or, alternatively, the "reliability" of the informant's report in this articular case.
* * *
We agree with the Illinois Supreme Court that an informant's "veracity," "reliability" and "basis of knowledge" are all highly relevant in determining the value of his report. We do not agree, however, that these elements should be understood as entirely separate and independent requirements to be rigidly exacted in every case, which the opinion of the Supreme Court of Illinois would imply. Rather, as detailed below, they should be understood simply as closely intertwined issues that may usefully illuminate the common-sense, practical question whether there is "probable cause" to believe that contraband or evidence is located in a particular place.
* * *
As these comments illustrate, probable cause is a fluid concept - turning on the assessment of probabilities in particular actual contexts - not readily, or even usefully, reduced to a neat set of legal rules. Informants' tips doubtless come in many shapes and sizes from many different types of persons. As we said in Adams v. Williams, 407 U.S. 143, 147 (1972), "Informants' tips, like all other clues and evidence coming to a policeman on the scene may vary greatly in their value and reliability." Rigid legal rules are ill-suited to an area of such diversity. "One simple rule will not cover every situation."
Moreover, the "two-pronged test" directs analysis into two largely independent channels - the informant's "veracity" or "reliability" and his "basis of knowledge." There are persuasive arguments against according these two elements such independent status. Instead, they 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 of reliability. (Citations omitted.)
* * *
We also have recognized that affidavits "are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleading have no proper place in this area." [Citation omitted.] Likewise, search and arrest warrants long have been issued by persons who are neither lawyers nor judges, and who certainly do remain abreast of each judicial refinement of the nature of "probable cause." See Shadwick v. City of Tampa, 407 U.S. 345, 348-350 (1972). The rigorous inquiry into the Spinelli decision cannot be reconciled with the fact that many warrants are - quite properly, ... issued on the basis of nontechnical, common-sense judgments of laymen applying a standard less demanding than those used in more formal legal proceedings. Likewise, given the informal, often hurried, context in which it must be applied, the "built-in subtleties," Stanley v. State, 313 A.2d 847, 860 (Md. App. 1974), of the "two-pronged test" are particularly unlikely to assist magistrates in determining probable cause.
* * *
Finally, the direction taken by decisions following Spinelli poorly serves "the most basic function of any government": "to provide for the security of the individual and of his property." Miranda v. Arizona, 384 U.S. 436, 539 (1966) (WHITE, J., dissenting). The strictures that inevitably accompany the "two-pronged test" cannot avoid seriously impeding the task of law enforcement. ... If, as the Illinois Supreme Court apparently thought, that test must be rigorously applied in every case, anonymous tips would be of greatly diminished value in police work. Ordinary citizens, like ordinary witnesses, . . . generally do not provide extensive recitations of the basis of their everyday observations. Likewise, as the Illinois Supreme Court observed in this case, the veracity of persons supplying anonymous tips is by hypothesis largely unknown, and unknowable. As a result, anonymous tips seldom could survive a rigorous application of either of the Spinelli prongs. Yet, such tips, particularly when supplemented by independent police investigation, frequently contribute to the solution of otherwise "perfect crimes." While a conscientious assessment of the basis for crediting such tips is required by the Fourth Amendment, a standard that leaves virtually no place for anonymous citizen informants is not.
For all these reasons, we conclude that it is wiser to abandon the "two-pronged test" established by our decisions in Aguilar and Spinelli. In its place we reaffirm the totality of the circumstances analysis that traditionally has informed probable cause determinations. (Citations omitted.) The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, 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. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for. . . conclud[ing]" that probable cause existed. (Citation omitted.) We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli.
Reversed.
Notes
1. The police officers in Aguilar v. Texas 378 U.S. 108 (1964), mentioned in the main case, obtained a warrant based on defective affidavit in which they swore that they had "received reliable information from a credible person and do believe that heroin, marijuana, barbiturates" were located within a residence. The Court noted that the officers failed to state facts or circumstances from which the magistrate could have independently concluded that probable cause existed and they neglected to offer any evidence which could have given credibility to the informant's conclusion that drugs were located in a particular place.
2. Five years after Aguilar, the Court affirmed its decision in Spinelli v. United States, 393 U.S. 410 (1969), where officers investigating interstate gambling relied partially on information supplied by an informant. In preparing the affidavit for a search warrant for Spinelli's apartment, the officers neglected to state facts which could have permitted the magistrate to conclude that the informant was reliable. On the face of the affidavit the officers should have noted why they concluded that the informant should have been believed. In overturning the warrant, the Court held that the officers failed to state facts which would lead one to believe that probable cause existed and failed to state facts which supported the reliability of the informant.
3. While Gates eliminated the strict adherence to the "two-pronged" test, some jurisdictions still appeared to follow the old Aguilar rule. In Massachusetts v. Upton, 466 U.S. 727 (1984), the Court reaffirmed its decision in Gates in which it abandoned the two-pronged test of Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969). According to the Upton Court, the reliability of an informant and the existence of probable cause depends on an analysis of the "totality of circumstances."
Prior to Gates, the Fourth Amendment was understood by many courts to require strict satisfaction of a "two-pronged test" whenever an [informant helps supply probable cause]. . . . in the particular case. The Massachusetts court apparently viewed Gates as merely adding a new wrinkle to this two-pronged test: where an informant's veracity and/or basis of knowledge are not sufficiently clear, substantial corroboration of the tip may save an otherwise invalid warrant.
"We do not view the Gates opinion as decreeing a standardless `totality of the circumstances' test. The informant's veracity and basis of his knowledge are still important but, where the tip is adequately corroborated, they are not elements indispensable [sic] to finding of probable cause. It seems that, in a given case, the corroboration may be so strong as to satisfy probable cause in the absence of any other showing of the informant's `veracity' and any direct statement of the `basis of [his] knowledge.'" Ibid.
* * *
We think that the Supreme Judicial Court of Massachusetts misunderstood our decision in Gates. We did not merely refine or qualify the "two-pronged test." We rejected it as hypertechnical and divorced from "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Brinegar v. United States, 338 U.S. 160 (1949). Our statement on that score was explicit. "[W]e conclude that it is wiser to abandon the `two-pronged test' established by our decisions in Aguilar and Spinelli. In its place we reaffirm the totality of the circumstances analysis that traditionally has informed probable cause determinations. Gates, supra, at 2332. This "totality of the circumstances" analysis is more in keeping with the "practical, common-sense decision" demanded of the magistrate. Ibid.
Go to the Top of this Document