New technologies inspire clever criminals, requiring more advanced law enforcement crime fighting methodologies. This “circle of life” inevitably includes post-arrest motions questioning the existence of “probable cause” to arrest and/or search1 by criminal defense attorneys duty-bound to zealously defend their clients. Their arguments usually include the application of long-established legal rules to challenge these new government investigative methodologies. One such rule is the so-called Aguilar-Spinelli test, which has been asserted in an attempt to undermine search engine evidence used in search warrant applications.

‘Aguilar-Spinelli’ Test

In Aguilar v. Texas, 378 U.S. 108 (1964), a local Texas judge issued a warrant to search for narcotics in defendant’s home based on an affidavits filed by two city police officers reciting that they were based on reliable information from a credible person that narcotics were being kept at defendant’s premises for illegal sale and use. The affidavit provided no further information concerning either the undisclosed informant or the reliability of the information. The warrant was issued, a search was conducted, and the narcotics evidence was seized and later admitted at the trial, at which defendant was found guilty of possessing heroin. The U.S. Supreme Court reversed the conviction, finding the warrant defective as the affidavit in support was inadequate for two reasons: First, the application failed to set forth any of the underlying circumstances necessary to enable the issuing justice to independently assess the informant’s conclusion that the narcotics were where he said they were (first prong of the test); and second, that the affiant-officers did not support their claim that their informant was credible or his information reliable (the second prong of the test).

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