State v. Thompson

LEVINE, Justice,

concurring specially.

I join in the majority opinion authored by the Chief Justice and write specially only to direct attention to the caveat, contained in footnote 5 of the majority opinion, that we have not yet adopted either United States v. Leon or Illinois v. Gates. Although the *373 footnote serves as a red flag, it may not alert the color blind.

United States v. Leon, 468 U.S. -, 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984), was released contemporaneously with the decisions of the two trial courts in this case. As a result neither party addressed Leon in the proceedings below and the trial courts did not consider the case when reaching their respective conclusions.

The issue of the application of Leon to this case is thus not yet ripe for review by this Court and any decision in this regard would be tantamount to rendering an advisory opinion, an action we are not authorized to take. City of Minot v. Central Ave. News, Inc., 325 N.W.2d 243 (N.D.1982).

The majority opinion has precedential value therefore only insofar as it addresses the probable cause standard set forth in Aguilar v. Texas, 378 U.S.. 108, 84 S.Ct. 1509 , 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410 , 89 S.Ct. 584 , 21 L.Ed.2d 637 (1969), which has been our State’s benchmark in this area since State v. Dove, 182 N.W.2d 297 (N.D.1970).

Gates concluded the Aguilar-Spinelli test was unduly rigid and encouraged excessive dissection of informants’ tips. Gates, 103 S.Ct. at 2230. In place of the Aguilar-Spinelli rules, Gates adopted a “totality of the circumstances” approach where “the task of the issuing magistrate is simply to make a practical, common sense decision whether ... there is a fair probability that contraband or evidence of a crime will be found at a particular place.” Gates, 103 S.Ct. at 2332.

North Dakota’s Aguilar-Spinelli guidelines do not appear to have been applied in a “hypertechnical” or “unduly rigid” manner, our magistrates seemingly making “practical, common sense decisions” in issuing warrants. See, Gates, 103 S.Ct. at 2350-2351, White, J., concurring. See also, e.g., State v. Ronngren, 361 N.W.2d 224 (N.D.1985). State v. Klosterman, 317 N.W.2d 796 (N.D.1982) State v. Spoke Com., University Ctr., Etc., 270 N.W.2d 339 (N.D.1978); State v. Mertens, 268 N.W.2d 446 (N.D.1978); Therefore, resort to Gates may be akin to summoning the repairman to fix what “ain’t broke.”

Underlying the Aguilar-Spinelli test is the basic belief that the determination of probable cause to issue a warrant must be made by a magistrate and not by law enforcement officers who seek warrants. To perform this constitutionally prescribed function, a magistrate must be provided an affidavit containing the underlying circumstances for the officer’s conclusion that the informant was credible and the information reliable. This process enables the magistrate to exercise an informed, independent judgment about the persuasiveness of the facts relied upon by the officer to show probable cause. Spinelli, 393 U.S. at 412 -lb, 89 S.Ct. at 586-89 ; Aguilar, 378 U.S. at 110-115 , 84 S.Ct. at 1115-14 , as found in State v. Jackson, 102 Wash.2d 432 , 688 P.2d 136 (1984). Nor does this approach preclude examining, in a practical and realistic fashion rather than hypertechnically, affidavits executed in support of a search warrant. State v. Klosterman, supra at 801 .

For our purposes Gates may represent an unwise 1 evisceration of the Aguilar-Spinelli probable cause standard which has well served North Dakota in effectuating the safeguards contained in Article I, § 8, of the North Dakota Constitution, which Article states;

“The rights of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall be issued but upon probable cause, supported by oath or affirmation, particularly describing the place to *374 be searched and the persons or things to be seized.”

We may provide the citizens of our State, as a matter of State constitutional law, greater protection in interpreting Article I, § 8 than the safeguards guaranteed in the Federal Constitution. City of Bismarck v. Altevogt, 353 N.W.2d 760 (N.D.1984); State v. Stockert, 245 N.W.2d 266 (N.D.1976); State v. Matthews, 216 N.W.2d 90 (N.D.1974). 2 Other jurisdictions have rejected the Gates “totality of the circumstances” approach and retained the Aguilar-Spinelli rules as appropriate under their respective state constitutions. Commonwealth v. Upton, 394 Mass. 363 , 476 N.E.2d 548 (1985); State v. Jackson, 102 Wash.2d 432 , 688 P.2d 136 (1984); People v. Kershaw, 147 Cal.App.3d 750 , 195 Cal. Rptr. 311 (1983) (prior to the amendment of the State Constitution by Proposition 8). The reasoning of these states will warrant our careful consideration in the future when we decide whether or not to follow the United States Supreme Court’s lead in abandoning the well-established protections against unreasonable searches and seizures offered by Aguilar-Spinelli.

GIERKE, J., concurs.

. Other jurisdictions and legal scholars have engaged in extensive criticism of Gates. See Commonwealth v. Upton, 394 Mass. 363 , 476 N.E.2d 548 (1985); State v. Jackson, 102 Wash.2d 432 , 688 P.2d 136 (1984); People v. Kershaw, 147 Cal.App.3d 750 , 195 Cal.Rptr. 311 (1983); Kami-sar, Gates, "Probable Cause”, "Good Faith”, And Beyond, 69 Iowa L.R. 551 (1984); 1 W. LaFave, Search and Seizure, § 3.3 (Supp.1984).

. This is true even when the North Dakota constitutional provisions contain phraseology similar to the United States Constitution. See, e.g., State v. Newman, 696 P.2d 856 (Idaho 1985).