Langham v. State , 1990 Okla. Crim. App. LEXIS 12 ( 1990 )

PARKS, Presiding Judge,

concurring in result:

While I concur in the majority’s ultimate disposition of this case, I cannot concur in abandoning the Aguilar-Spinelli standard as it applies to state constitutional attacks upon search warrant affidavits. This Court has acknowledged that Article II, § 30, of the Oklahoma Constitution was derived from the United States Constitution’s Fourth Amendment and that United States Supreme Court decisions regarding the Fourth Amendment are considered highly persuasive in interpreting Article II, § 30. See Long v. State, 706 P.2d 915, 917 (Okl.Cr.1985). However, it is also well established that state courts, as the final interpreters of state law, may impose higher standards on searches and seizures than those required by the federal Constitution, even if the state constitutional provision is similar to the Fourth Amendment. Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730, 734 (1967). See also Turner v. City of Lawton, 733 P.2d 375, 381 (Okl.1986).

[The] Aguilar and Spinelli [standards] preserve the role of magistrates as independent arbiters of probable cause, insure greater accuracy in probable-cause determinations, and advance the substantive value of precluding findings of probable cause, and attendant intrusions, based on anything less than information from an honest or credible person who has acquired his information in a reliable way. Neither the standards nor their effects are inconsistent with a “practical, nontechnical” conception of probable cause. Once a magistrate has determined that he has information before him that he can reasonably say has been obtained in a reliable way by a credible person, he has ample room to use his common sense and to apply a practical, nontechnical conception of probable cause.

Illinois v. Gates, 462 U.S. 213, 287, 103 S.Ct. 2317, 2358, 76 L.Ed.2d 527 (1983) (Brennan and Marshall, JJ., dissenting). The Gates standard “provides no assurances that magistrates, rather than the police, or informants, will make determinations of probable cause; imposes no structure on magistrates’ probable-cause inquires; and invites the possibility that intrusions may be justified on less than reliable information from an honest or credible person....” Id. 462 U.S. at 291, 103 S.Ct. at 2360. In short, the Aguilar-Spinelli test affords greater protection to individuals’ rights against unreasonable searches and seizures, through a practicably structured inquiry, than does the “totality of the circumstances” rule enunciated in Gates. Accordingly, I dissent to the abandonment of this Court’s long-standing precedent of applying the Aguilar-Spinelli standard to state constitutional attacks upon search warrant affidavits.