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1971 U. Ill. L.F. 405 (1971)
A Dilemma for Defense Counsel: Spinelli-Harris Search Warrants and the Possibility of Police Perjury

handle is hein.journals/unilllr1971 and id is 415 raw text is: A DILEMMA FOR DEFENSE COUNSEL: SPINELLI-HARRIS SEARCH WARRANTS AND THE POSSIBILITY OF POLICE PERJURY Joseph D. Grano* I. INTRODUCTION ALTHOUGH MOST SEARCHES AND SEIZURES occur without warrants,' many, especially searches of houses2 by special units of the police force such as the narcotics and vice units, usually are made pursuant to search warrants.' In these cases, the first steps in the or- ganizational flow of the criminal justice process are taken when a police officer presents to a magistrate an affidavit in support of a search war- rant and the magistrate determines that probable cause exists to make the search. Because most narcotics and vice offenses involve neither unwilling victims nor innocent bystanders, the probable cause for the issuance of these search warrants is usually based on the reports of po- lice spies, stool pigeons, and agents provocateur-all more commonly * Assistant Professor of Law, University of Detroit School of Law. A.B. 1965, J.D. 1968, Temple University; LL.M. 1970, University of Illinois. 1. F. GRAHAM, THE SELF-INFLICTED WOUND 204, 347 n.204 (1970); L. TIFFANY, D. MCIN'rYR, & D. ROTENBERG, DETECTION OF CRIME 99-101 (1967). Arrest war- rants are even more infrequently used. See, e.g., W. LAFAVE, ARREST: THE DECISION To TAKE A SUSPECT INTO CUSTODY 379 (1965). Because most police searches come within the exceptions to the warrant require- ment, the Supreme Court's recent re-emphasis of that requirement and its careful ex- plication and delimitation of the exceptions are unlikely to affect significantly cur- rent police practices. See Coolidge v. New Hampshire, 403 U.S. 443, 453-82, 91 S. Ct. 2022, 2031-46 (1971) (listing and applying exceptions); Vale v. Louisiana, 399 U.S. 30, 34-35, 90 S. Ct. 1969, 1971-73 (1970) (listing exceptions); Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 2040 (1969) (narrowly restricting the scope of a search incident to arrest). For an argument that the Court's warrant requirement has stood the fourth amendment on its head from an historical viewpoint see T. TAYLOR, Two STUDIES IN CONSTITUTIONAL INTERPRETATION 44-46 (1969). 2. See Vale v. Louisiana, 399 U.S. 30, 33-35, 90 S. Ct. 1969, 1972-73 (1970) (narrowly limiting the search of a house without a warrant). In Coolidge v. New Hampshire, 403 U.S. 433, 480-81, 91 S. Ct. 2022, 2045-46 (1971), although leaving the question unresolved, five Justices strongly hinted that a house may not lawfully be entered without a warrant even to make an arrest. Cf. Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970). 3. See L. TIFFANY, D. MCINTYRE, & D. ROTENBURG, supra note 1, at 103-04. The author's personal experience as an assistant district attorney in Philadelphia, Pennsylvania, also supports the statement.

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