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[T] People v. Ventura5/6/2004
d the manner in which it was acquired. The Magistrate should also consider the experience and expertise of the officers involved and the extent to which the information has been verified. Further attention should be given to the nature of the crime and the exigencies, if any, involved. In sum, the Magistrate must evaluate the search warrant application consistent with these and other considerations which evince reliability.
"Where it appears that the Magistrate has conducted such a measured and comprehensive examination into the basis for the warrant, the factual determination as to probable cause will, of itself, constitute a suitable makeweight when the warrant is challenged. (People v. Williams, 20 N.Y.2d 388, 283 N.Y.S.2d 169, 229 N.E.2d 839; Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726). By the same token, where the Magistrate merely acts as a rubber stamp the validity of the warrant will be suspect.
"Our strong, yet qualified, preference for warrants bespeaks an aversion to the existence of unchecked and unlimited power in the hands of those employed to enforce laws. However, where a search warrant has been obtained the dangers of unbridled power are minimized."
Application of Aguilar/Spinelli
Judge Edward M. Horey of the County Court, Cattarangus County, New York concluded that New York is seemingly in a state of flux as to whether it is following the Aguilar/Spinelli tests or whether it is following the "totality of circumstances" test of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). While this Court need not look to the "totality of circumstances" test to find that there was probable cause for the issuance of a warrant, Judge Horey's analysis is useful. For example, Aguilar/Spinelli would apply to information obtained from confidential informants. Here we have neighbors, some apparently making anonymous calls to the Building Department. The probable cause involves building violations and not crimes. Under Illinois v. Gates, supra, part of the "totality of circumstances" test would have to do with the severity of the alleged criminal activity. Judge Horey wrote:
"It appears that the leading cases are 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) and more recently Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
"The Aguilar and Spinelli cases attempted to develop a test to guide magistrates in determining when the information of an informant was sufficient to furnish probable cause for the issuance of a search warrant. A two pronged test has evolved. The first prong dealt with the basis of the informant's knowledge; the second dealt with the reliability and credibility of the informant. In 1983 as a consequence of the decision in Illinois v. Gates, 103 S.Ct. 2317 the prior Aguilar-Spinelli test was replaced by a test commonly referred to as the "totality of circumstances" test.
"Cornell Law Review, Vo. 7, January 1985 states of the decision of Illinois v. Gates:
'Gates does more than replace the two-pronged tests with a simpler, more practical standard; it drastically expands the opportunity for police to use less than reliable information as a basis for warrants * * * he Fourth Amendment sometimes collides with law enforcement interests by limiting the use of suspicious but useful information as a basis for warrants.'
"There appears to be considerable doubt as to whether the New York Appellate Courts have either adopted or rejected the more lenient test determined in Illinois v. Gates.
"In People v. Simon,
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