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Topic: HLS 6000 DF2 Assignment: Legal Issues in Homeland Security
WEEK TWO DISCUSSION QUESTION
This week we looked at Constitutional protections, in particular the 4th Amendment, which protects us from unreasonable searches and seizures. I asked that you read 2 cases, Illinois v. Gates from the U.S. Supreme Court and Commonwealth v. Upton from the Massachusetts Supreme Judicial Court (which would hear cases under the Massachusetts Articles of Declaration, the state Constitution).
For a warrant to issue, a Judge or Magistrate must find, by credible evidence, probable cause, which is defined as facts and circumstances which would allow a reasonable and prudent person to conclude that a crime has, is, or is about to be committed.
In the Gates case, the US Supreme Court overturned the “two-prong Aguilar/Spinelli Test. That test required an Officer to show the basis of the knowledge (Aguilar) and the reliability of the informant (Spinelli). Both “prongs” had to be met, and may be supported by additional investigative work. Gates uses a “totality of the circumstances test”, which seems to be less technical, and more a common sense test.
Massachusetts retained the more restrictive test, ruling under the Upton Case (it is called Upton II), requiring anyone seeking a search warrant to show the 2 prong technical test of reliability and basis of information. The Gates test of “totality of the evidence” applies to federal officers, even within Massachusetts.
As we look at the legal issues in homeland security, and in specific the need for warrants for anything from data requests to criminal investigations, my question is:
Which is the better standard in your opinion? The technical Aguilar/Spinelli test which requires an affiant to set forth the background for the warrant request, or the “totality of the circumstances” test of Gates?
Consider in your post whether you believe there is a tradeoff between security and right to privacy. Please keep in mind I am not looking for a law school answer, just your thoughts on whether its better to be technical or look at everything.
HLS 6000 DF2 Studentâ€™s Name: Professorâ€™s Name: Course Title: Date: In criminal law, dealing with informants is quite a controversial subject since their information must be verifiable and their knowledge put to test in order to know their reliability status in any case. This controversy has not spared the United States courts either as can be seen in the Aguilar-Spinelli and Gates tests of whether an individual is free (or not) from warrants of searches and seizur