concurring specially.
I agree with Justice Levine that the search warrant meets the test set forth in Aguilar v. State of 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 (1929). In light of that conclusion, it may not appear necessary to consider whether or not to adopt the totality-of-the-circumstances test set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); nevertheless, I concur in the opinion written for the court by Justice Gierke if only to finally determine the issue of whether we will or will not adopt Gates, an issue which we have left open [State v. Thompson, 369 N.W.2d 363 (N.D.1985) ], and which, until it is settled, is sure to continue to take the time and paper of brief writers and the time of this court on each occasion in which the validity of a search warrant is at issue.
Were I given to “handwringing” I might also concur with Justice Levine that we should not stray too far from our construction of Aguilar and Spinelli. But, just as she is concerned with the unnecessary handwringing by the United States Supreme Court in Gates, at least insofar as North Dakota is concerned, so, too, do I believe her concern for the lack of protection for our North Dakota residents under Gates is unnecessary. I agree that we have never applied Aguilar and Spinelli hypertechnically. In State v. Thompson, in which the majority opinion discussed, but did not adopt, the “good-faith exception” of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), I observed, in a special concurrence, that “our application of that exclusion will be little different from the ‘totality of the circumstances’ standard of review of Gates, ...” State v. Thompson, 369 N.W.2d at 375 (VandeWalle, J., concurring specially). So, too, I conclude that our application of the totality-of-the-circumstances test of Gates will not result in any significant dilution of the rights of our citizens.
I do not concede we are abandoning Aguilar-Spinelli for some amorphous standard. Rather, I interpret the adoption of Gates to simply confirm our past practice of a “common-sense interpretation” of the entire evidence presented to the magistrate [State v. Ronngren, 361 N.W.2d 224, 230 (N.D.1985) ]. Such a posture will serve as notice to advocates who continue to cite to us the cases from those jurisdictions which do apply Aguilar-Spinelli hyper-technically, while at the same time serving as notice to law enforcement that it is not free to stray far from our previous interpretation and application of Aguilar-Spinelli. Although the Aguilar-Spinelli guidelines are lauded for their “predictability and stability” and are referred to as “clearly expressed and clearly reviewable,” it is apparent that they are far from “bright-line” standards, for if they were we could not have adopted a “common-sense” approach while other jurisdictions have adopted more technical applications. The number of pages written concerning the applications of the guidelines belies any precise predictability, clarity of expression, or the ease of review. Rather, as we have already stated, “Whether or not *217probable cause exists depends on the facts and circumstances of each case, ...” State v. Berger, 285 N.W.2d 533, 536 (N.D.1979).
Finally, as Justice Levine candidly admits, the language of our State Constitution, Article I, Section 8, does not significantly differ from the Fourth Amendment language of the United States Constitution. It seems enigmatic to, on the one hand, observe that the history of our State Constitution reveals an intention to make its provisions of basic rights broader than those in the Federal Constitution and, on the other hand, recognize that prior to Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), evidence obtained through a search and seizure without legal justification was admissible if it tended to prove that the defendant committed an offense. State v. Lacy, 55 N.D. 83, 212 N.W. 442 (1927).
Although I agree we need not merely echo the United States Supreme Court in applying our own constitutional provisions which are identical to the Federal Constitution, I cannot agree that the interpretation and application of those provisions should merely reflect the philosophy or views of the particular justices who happen to be sitting at the time the issue of the application and interpretation of our State Constitution is raised.