The Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution require that the issuance of a search warrant be based upon a determination of probable cause. Probable cause is established when an affidavit supporting a search warrant provides sufficient facts for a reasonable person to conclude there is a probability the defendant is involved in the criminal activity.
For an informant’s tip (which must be set forth in an affidavit) to create probable cause for a search warrant to issue, the officer’s affidavit must set forth some of the underlying circumstances from which the informant drew his conclusion so that a magistrate can independently evaluate the reliability of the manner in which the informant acquired his information. The affidavit must set forth some of the underlying circumstances from which the officer concluded that the informant was credible or his information reliable. The warrant affidavit must provide the informant’s basis of knowledge and indicate the reason its deemed reliable. The law enforcement officer writing the affidavit may not deliberately or recklessly misstate or omit facts.
There is a basic belief that the determination of probable cause to issue a warrant must be made by a magistrate, not law enforcement officers who seek warrants. To ensure a magistrate is not merely a “rubber stamp,” the affidavit must inform him (or her) of the underlying circumstances which lead the officer to conclude that the informant was credible and obtained the information in a reliable way. Some of the factors the court will look at in determining the reliability of the informant is whether there was evidence of a controlled buy (in a drug case), whether the informant is currently charged with a crime and expecting a reduction in the charge for providing testimony (an informant trying to win favorable treatment in his own case will usually strengthen the motivation to tell the truth because the informant knows his/her own fate will be affected by the ability of law enforcement officials to rely on his information), and the informant’s track record. Additionally, the court may consider law enforcement’s corroboration giving substance and truth to the informant’s report of criminal activity.
When police receive information from an uninvolved witness or victim of a crime, the necessary showing of credibility is relaxed. Where the informant is an ordinary citizen rather than a criminal or professional informant and his or her identity is revealed to the magistrate, the informant’s detailed description of the underlying circumstances of the crime observed may provide an indication of the informant’s reliability sufficient to satisfy both the “reliability” and the “basis of knowledge” prongs.
Federal courts deem “veracity” (accuracy/truthfulness) and “basis of knowledge” relevant, but hold the view that both are non- essential. A deficiency on either of these prongs may be compensated for by a strong showing on the other prong. Federal courts look at what is known as the “totality of the circumstances”. Under the totality of circumstances analysis the veracity and basis of knowledge elements are considered only relevant considerations. The two prongs (veracity and basis of knowledge) have an independent status and they are analytically severable. The Washington State Supreme Court views “veracity” and “basis of knowledge” as the appropriate test and continues to be the basis on which a warrant would be tested under article I, section 7 of the Washington Constitution. The court will however look at the totality of the circumstances by considering the facts set forth in the affidavit to determine whether the reliability and basis of knowledge of the informant was satisfied. A single fact in an affidavit, when viewed by itself, may not constitute probable cause but, when read together with other facts stated in the document, the affidavit may satisfy the requirement for evidence necessary to establish probable cause.
A controlled buy, if properly executed, is one way to provide the facts and circumstances necessary to satisfy both prongs of the “reliability” and “basis of knowledge” test for probable cause. If the informant goes in with no illegal drugs and comes out with illegal drugs, his assertion that drugs were available is proven, and his reliability confirmed. A properly executed controlled buy requires some level of police surveillance, but does not require that officers see the actual exchange of marked bills for drugs. The search and surveillance conducted in a controlled buy remove much of the informant’s opportunity to fabricate.
Whether probable cause is established is a legal conclusion. The courts give great latitude to the magistrate’s determination of probable cause, and will only disturb its decision to issue a warrant where there is an abuse of discretion. A magistrate is entitled to draw reasonable inferences from the facts and circumstances set forth in the supporting affidavit, with “reasonableness” being the general standard. Doubts concerning the existence of probable cause are generally resolved in favor of issuing the search warrant.
Clark W Fridley
Attorney at Law
4400 NE 77th Ave., Suite 275
Vancouver, WA. 98662