Probable Cause and Common Sense: A Reply to the Critics of Illinois v. Gates

Part I of this article reviews Gates’s actual holding. Although one can view much of the Court’s more interesting discussion of the two-pronged test as dicta, the majority and dissenters clearly did not regard it as such. The majority and dissenters disagreed, however, not only over the appropriate hearsay test but, more fundamentally, over the nature of probable cause itself. I will argue that one must resolve this more basic disagreement before properly addressing the hearsay issue.

Part II examines probable cause from an historical perspective. In this part, I attempt to demonstrate that both the English common law and the early American views of probable cause were considerably less demanding than that of the Gates dissenters. Part III then argues that the historical conception of probable cause comports with sound policy and common sense. Part III also outlines the ingredients of a commonsense approach to probable cause issues and discusses the ramifications of this approach for the issue of judicial review.

Part IV returns to the issue of hearsay. Here I maintain that Gates correctly abandoned the two-pronged test, for under that test probable cause became a more demanding concept than history or common sense warranted. I argue that although the Spinelli test in the abstract may have reflected a commonsense attitude toward hearsay, it proved defective by failing in certain concrete situations to yield either the analysis or the result of a less structured commonsense approach. By rigidly requiring the same degree of trustworthiness in all circumstances, the test relied too much on logic and not enough on experience to decide what the reasonably cautious police officer would and should do under the circumstances.

The article concludes with a short postscript describing my overall approach to fourth amendment analysis.