I know poly results can't be used in actual trial, but can results be mentioned and/or considered in arrest/search warrant affidavits? While inadmissible in determining ultimate guilt/innocence, can they be used to develop PC in affidavits?

TIA

I would think that a polygraph could be used to establish probable cause. People in law enforcement reasonably rely upon such tests and you're only trying to prove PC, not proof beyond a reasonable doubt.

Closest Texas case I could find was Smith v. State, 2003 WL 21221734 at *1-2 (Tex.App.-San Antonio May 28, 2003, no pet.) (not published) ("Smith claims the complaint filed against her was based solely on an inadmissible polygraph examination and was, therefore, defective. Polygraph evidence is not admissible in Texas for any purpose in a criminal proceeding. Nehery v. State, 692 S.W.2d 686, 700 (Tex. Crim. App. 1985); Easley v. State, 986 S.W.2d 264, 269 (Tex.App.-San Antonio 1998, no pet.). Although a polygraph test is not admissible for any use at trial, investigating officers may reasonably consider the test results in determining whether there is probable cause to believe the appellant has committed a theft. See Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Johnson v.. State, 751 S.W.2d 926, 929 (Tex.App.-Houston [1st Dist.] 1988, pet. ref'd). *2 In the present case, the State did not introduce evidence of Smith's polygraph exam at trial. Instead, the test results served as only one factor used to determine whether there was probable cause to arrest and charge Smith. Therefore, we overrule Smith's second issue.")

A couple of more on point out-of state cases are State v. Clark, 24 P.3d 1006 (Wash. 2001)(Although polygraph results are not admissible at trial unless stringent conditions have been met, such evidence may be considered in a magistrate's determination of probable cause to issue search warrant); Bennett v. City of Grand Prairie, Texas, 883 F.2d 400 (5th Cir.1989) (it was not error for a magistrate to consider an affidavit referring to polygraph results, along with other evidence, to determine whether there was probable cause to issue an arrest warrant).

A couple of cases have held that inclusion of polygraph evidence in an affidavit will not render the search warrant invalid. State v. Henry, 947 P.2d 1020 (Kan. 1997) ("When deciding **1028 if the totality of the circumstances supports a finding of probable cause, inclusion of facts pertaining to a polygraph test will not invalidate the issuance of a search warrant."); Com. v. Donahue, 723 N.E.2d 25, 29 n.1 (Mass. 2000).

Thanks for quick thorough reponse.