Does a magistrate have to make a practical, common-sense decision whether there is a fair probability that contraband or evidence of crime would be found in a particular place?

California, United States of America


The following excerpt is from People v. Malburg, B223580 (Cal. App. 2011):

make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, . . . there [wa]s a fair probability that contraband or evidence of a crime w[ould] be found in a particular place.' Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). Moreover, in recognition that 'affidavits are normally drafted by nonlawyers in the midst and haste of a criminal investigation,' the magistrate had no ground to insist that the materials submitted to him met any '[t]echnical requirements of elaborate specificity." Gates, 462 U.S. at 235, 103 S.Ct. at 2330 (internal quotation marks and citation omitted)." (U. S. v. Kaechele, supra, 466 F.Supp.2d at pp. 878-879.)

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