Wednesday, November 26, 2014

Which test is better, the two-pronged test or the totality of the circumstances test?

While this is a matter of opinion, I would argue that the
totality of circumstances test is superior.  The reason for this is that the
two-pronged, Aguilar-Spinelli Test is too restrictive.


With
the two-pronged test, the police must show that they have good reason to believe the
allegation made by a tipster.  If they cannot, they must prove through investigation
that some of the allegations are true.  If they cannot do either of these things, they
must not be given a search warrant.  By contrast, the totality of circumstances test
asks the judge to decide if there is a "fair probablity" that evidence of crime will be
found if a warrant is issued.


I would argue that the
two-pronged test is too limiting.  We know that many people are very reluctant to get
involved in criminal matters.  They do not want their names to be known lest their
identities become known to the criminals, for example.  Because of this, many tips the
police receive are anonymous.  This makes it very difficult to satisfy the two-pronged
test in large number of instances.  A fair-minded judge, applying the totality of
circumstances test, is sufficient protection for the rights of accused
people.

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