Under Tennessee law, a search warrant may not be issued unless probable cause is found by a neutral and detached magistrate. What is probable cause? Well, it’s always going to be a case-by-case basis. According to Tennessee cases, articulating, or describing, probable cause is not possible. However, it is sufficient to say that probable cause is more than a mere suspicion, but less than absolute certainty.
Recently, the Tennessee Supreme Court overruled prior Tennessee law regarding the information that needs to be presented to a magistrate in order for an agent of the government to apply for a search warrant. Oftentimes, an affidavit in support of a search warrant contains information provided by a “criminal informant.” Because of the source of the information, Tennessee courts previously looked very closely to ensure the “criminal informant” was, or is, reliable. Tennessee courts previously adopted a test known as the “Aguilar-Spinelli” test. Under this test, the affidavit in support of the search warrant, which is presented to the neutral and detached magistrate, must include facts from which the magistrate may determine an informant's “basis of knowledge” and “veracity” or credibility, and if the information provided fails to establish either prong, corroborating evidence may make up the deficit. In other words, it must be shown the criminal informant is reliable. Otherwise, the agent is going to have to provide separate, additional information to “make-up” for the lack of information from the unreliable informant.
Tennessee law changed on April 5, 2017. Now, the critical question is no longer was the criminal informant reliable. In State v. Tuttle, 515 SW2d 382 (Tenn.2017), the Tennessee Supreme Court adopted a new test for determining the basis for probable cause when a magistrate is presented with an affidavit in support of a search warrant. The reliability of the informant is now only one consideration the magistrate, and reviewing courts, look at when determining whether there was sufficient information (probable cause) in support of the issuance of a search warrant. The new test weighs much more in favor of the government than the accused. Under the new test, the magistrate must now only determine if, given all of the circumstances presented in the search warrant affidavit, including the veracity and basis of knowledge of an informant, whether there is a “fair probability” that contraband, or illegal substances, will be found in a particular place. This test is known as the “totality-of-circumstances” test. In short, the reliability of the informant now carries much less weight and all information now is seemingly given equal weight when determining probable cause under the totality-of-circumstances.
If an individual is charged with a criminal offense following the execution of a search warrant, it is critical to retain an experienced criminal defense attorney. Oftentimes, the government utilizes numerous resources prior to the application for and execution of a search warrant. Every fact of a particular case matters. No two cases are alike. If you or someone you know has been charged with a criminal offense following the execution of a search warrant, call Murfreesboro criminal defense attorneys at Parkerson Santel PLLC at 615-956-7938.