Student Review:

      In order for the police to search or arrest an individual, they must have probable cause to do so.  One way to obtain information is from an informant's report.  The question to satisfy the requirement of probable cause is whether the information is reasonably trustworthy.  In 1969, the Supreme Court in Spinelli v. United States established a two part test for determining the trustworthiness of an informant's report.  First the informant had to be credible, and the informant also must have gleaned his information in a reliable way.  The analysis of the two factors were independent, and informants must satisfy both to be reasonable.  A change from this approach occurred in 1983 with the decision in Illinois v. Gates that eliminated the two part test for a common sense test based on the totality of the circumstances.  Rather than relying on the separate prongs of analysis, Gates takes into consideration all of the circumstances to determine reasonableness.
      In Illinois v. Gates, the police received an anonymous letter that stated Lance and Sue Gates would be heading to Florida to transport $100,000 in drugs.  The letter gave the dates of the trip and the travel plans of the couple, as well as the tip that there was also $100,000 worth of drugs in the Gates' home.  The police found Lance's plane reservation, observed him at the airport, and saw him travelling back to Illinois.  The police searched the car and the home and found drugs.  At their trial, the court stated the search was conducted without probable cause. Instead of relying on the earlier two-pronged test, the Supreme Court's analysis created a new test that examined the entire circumstances of the search.  The court emphasized that other facts in the letter (fly to Florida, drive to Illinois) and the letter's specific details were correct, lending to its veracity.
      In light of the new test for reasonableness, Grano explores what type of certainty probable cause requires.  He finds that the majority of the Gates court finds that there must only be a substantial possibility or suspicion of criminal activity.  On the otherhand, Justice Stevens in dissent incorrectly expresses that any possibility of an innocent explanation for behavior is enough to eliminate probable cause.  Instead, Grano believes that probable cause only requires a substantial chance of criminal activity.  This approach to probable cause has historically been accepted in both English and early American history.  English statutes and court decisions relied only upon a need for a reasonable basis for suspicion to make an arrest or search.  Likewise, early American court decisions equated probable cause with reasonable cause.
      Not only is the substantial possibility of criminal activity the historical approach to probable cause, common sense also requires such a standard.  If the measure was instead a standard of more probable than not, the community would suffer at the attempt to provide only for individual rights.  Instead, community interests need to be balanced against the individual.  This community model approach permits some sacrifice of individual rights for the good of the community.
Factors to take into consideration to establish probable cause would include the strength of the government's interest, whether the information is available by less intrusive means, the need for immediate action, and the nature of the intrusion.  On appeal, the finding of probable cause should only be challenged on whether the magistrate had a substantial basis for her finding.  Thus, rather than only allowing a narrow view based on the two-pronged test, the Gates inquiry allows for a more flexible and complete approach to the concept of probable cause.

Article Summary by: Corrie Noir
Wake Forest University School of Law 1999