*1 v. RUGENDORF UNITED STATES. February Argued 30, No. 223. 1964. Decided March 1964. Julius argued Lucius Echeles petitioner. the cause for him With on the briefs were Melvin B. Lewis and W. Howard Minn.
David C. argued Acheson the cause for the United States. With him on the brief were Solicitor General Cox, Attorney Miller, Assistant General Frank Goodman Philip R. Monahan. opinion Mr. Justice Clark delivered the the Court. Following was convicted of jury, *2 1 violating con- by knowingly receiving, § 18 U. S. C. 2315 cealing storing and fur pieces, pieces 81 stolen fur having transported in and hav- been interstate commerce a ing exceeding Appeals of $5,000. value The Court despite petitioner's sustained the conviction objections that support the evidence was not ver- sufficient dict; garments the fur that should been have excluded from authority evidence because were seized of a search warrant supported by affidavit; a deficient and the names of that certain confidential informants referred the affidavit should have been disclosed. 316 F. 2d granted 589. We certiorari, 375 U. and S. affirm the judgment.
I. The search warrant under attack by was issued strength States Commissioner on an affi- davit dated 22, 1962, signed March and Marlin Moore, Special Agent a of the Federal Investigation. Bureau of The affidavit stated that Moore had reason to believe approximately that jackets, 80 fur stoles and in a taken burglary Mountain Brook, Alabama, and worth about $40,000, were concealed of a single basement family residence in Chicago. West Jarvis Avenue
1 18 U. S. C. §2315: receives, conceals, stores, barters, disposes
“Whoever sells, or any goods, wares, merchandise, money or securities, or of the value $5,000 more, pledges accepts security or or or for a loan wares, goods, merchandise, securities, $500 or or of the value of or more, moving as, part of, or which are a or which constitute inter foreign knowing state or commerce, stolen, the same been to have unlawfully converted, taken; . or . . . . $10,000 imprisoned be fined not more than
“Shall not more than years, ten or both.” allegation with statements supported
Moore Agent Birmingham, Paarmann, Special L. Dean that on informed Moore Alabama, FBI, Office February mink, otter, and beaver stoles 10, 1962, 82 full-length approximately no worth jackets (but coats), Alabama, $42,044, Brook, were stolen Mountain informant who 16, 1962, on March confidential Moore past had furnished reliable information in the told approximately 75 during previous week he saw (but no mink, jackets otter and beaver stoles full-length coats) in the the home Sam- Avenue, Chicago. uel at 3117 West Jarvis The labels had been removed and the informant told the furs were stolen. *3 supported allegation
Moore further the with the fol- lowing Special Agent FBI statements: McCormick a advised affiant informant whom confidential FBI found be reliable the had to told McCormick that others, of Chicago, Frank committed the Schweihs robbery; Alabama McCormick told the affiant Chicago on March James 1, po- or about Kelleher, officer, lice said to McCormick “that he saw FRANK SCHWEIHS at RUGGENDORF BROTHERS [sic] managed MEAT MARKET, SAMUEL RUGGEN- . . ; further, Agent DORF . McCORMICK ad- [sic] vised affiant that another confidential informant who has furnished reliable information to the Federal Bureau of in Investigation past the told McCORMICK that LEO was a RUGGENDORF fence FRANK [sic] SCHWEIHS; that SAMUEL RUGGENDORF [sic] LEO RUGGENDORF’S brother and associated [sic] in the meat business with his brother.”
The affidavit also stated that FBI another Special Agent, Oitzinger, J. J. told the affiant another con- fidential who had supplied the FBI with reli- in past able information Oitzinger advised that Frank accom- Panzica and Mike Condic were Schweihs, Tony proceeds of of their burglars disposed who plished Rugendorf. burglaries through Leo checking the alleged that, the affidavit Finally, at 3117 West description of the furs seen informant’s bur- only reported Avenue, Jarvis affiant found months previous six glary States one and value was the description of that involving furs Brook, Mountain Alabama. occurring at affidavit, based on this Pursuant to the search warrant were found made and 81 furs search was of Fifty-nine these residence. 22, in Brook and the other been stolen Mountain trial court heard trial, Louisiana. Prior to Shreveport, (e) under Rule testimony petitioner’s motion, Procedure,2 suppress to the Federal Rules Criminal denied furs as evidence. The trial court use of the seized legal sufficiency challenged insofar as it the motion ruling on the truthfulness of affidavit, but reserved hearing was held During the another trial, the affidavit. suppress and the aspect of motion on the reserved require was a motion denied. Also denied motion was confidential names the Government disclose the to in affidavit. informants referred
II. *4 warrant. validity of the search Petitioner attacks passed directly This has on the extent Court never (e) Rules of Criminal Procedure: Rule 41 of the Federal Property Suppress A and to Evidence. “Motion Return .of may person aggrieved search and seizure move the an unlawful property district in which the was seized for district court for the property suppress evidence and to for the use as the return of (4) anything ground there was not obtained on the ... so believing grounds probable the existence of the on which the cause for warrant was issued may permit such examination when the
which court allega- and when is valid on its face search warrant underlying “probable affidavit establish tions of the purpose for the this deci- cause”; however, assuming, may opinion we are of the sion, made, that such attack be contends the search warrant here is valid. Petitioner probable only cause did not exist because the relevant recitations in the affidavit were the one informant’s in petitioner’s that he saw the furs statements However, and he was told that were stolen. including description furs, the informant’s detailed Agent Paar- type, closely Special number and resembled description of furs stolen in Alabama. The mann’s burglary report affiant records and found the checked burglary Alabama to be the recent one in the United involving description States number that In addi- informant saw basement. alleged Rugen- tion, the affidavit that Leo Samuel pro- dorf were and that Leo was a fence for brothers Although of the who burglars. fessional one informants gave information added, incorrectly, the la'tter that Sam- Rugendorf uel was associated with Leo in meat there was direct information from another business,3 nothing FBI that Leo was a fence, prove was shown to this untrue. The factual inaccu- depended upon by petitioner destroy racies probable e., cause—i. allegations in the affidavit that manager Rugendorf Brothers Market Meat and that he associated with his brother Leo in only peripheral relevancy meat business —were of showing cause, being not probable and, per- within the knowledge affiant, go sonal did integrity of the affidavit. fact, petitioner In terminated business association with his with Brothers
brother Leo and Meat Market in 1952.
533 for the was substantial basis believe that there We probably conclude that stolen furs Commissioner to As required. more basement. No the 271 S. we said in Jones v. United U. (1960): basis hearsay may .. . . that be the
“We conclude so say cannot there was for a warrant. We hearsay . . . that accepting little basis for might ... He improperly. Commissioner acted and withheld have found the affidavit insufficient basis for warrant. But there was substantial his probably present him to conclude that narcotics were apartment, in the and that is sufficient.” withholding also Petitioner contends ground of the informants was a sufficient to re- identities Jones, supra, quire suppression the evidence. But an hearsay we said that “as does not render affidavit alone required need not have insufficient, Commissioner long ... ... so there produced informants to be At crediting hearsay.” was a substantial basis for only challenges veracity 272. Petitioner’s affidavit are the two inaccurate facts mentioned above. petitioner was the erroneous statements that Since and was manager Brothers Meat Market with Leo in meat business those were not associated fail to show was in affiant,4 affiant any misrepresentations faith or made bad that he securing Commissioner warrant. alleged The affidavit that McCormick told the affiant that Police petitioner manager Rugen Kelleher told him that
Officer was the dorf Brothers Meat Market and that a confidential informant told that Leo and McCormick were associated the meat busi did not ness. Kelleher testified that he so inform McCormick. The hospital operation trial, latter was in the for an at the time of but sought deposition postponement requested was not nor present. enable him to be
III. the name he was entitled to also asserts that Petitioner base- furs in his seeing the reported informer who on merits. at trial the defend himself in order to ment court nor in trial raised the properly claim was not This here. must be denied accordingly, upon there, and, passed during the to and the other prior two occasions—once On suppress motion to the evi- urged his petitioner trial — “factual contending that there were furs, dence as to the warrant. the search supporting in the affidavit errors” on merits— motion —not support in of this solely was names. all of the informants’ requested new trial: motion for by petitioner’s clear This is made overruling defendant’s court erred in “9. The the names of the government to reveal for the motion necessary to information was when such informers in pursu- defendant rights of the the constitutional (Emphasis the evidence.” suppress motion to ing his added.) successful, if which, entirely suppression,
He relied Failing this, petitioner the case. have ended would in the Court time, reply first in his brief asserted, for the who single saw that the name of Appeals suppression hearing for the and for vital both the informant alone knew trial, because the defense persons with other than the “participated whether he Appar- placing the furs in the basement. defendant” bring an the facts of the case attempt ently this States, 353 53 (1957), Roviaro v. United U. within S. played prominent direct the informant where participant very with the accused, as the sole part, was convicted. But there was for which latter offense an intimation of such a situation even at the necessity depends for disclosure “the here. taking circumstances each into consid- particular case, pos- possible eration the crime defenses, charged, significance and other testimony, sible the informer’s relevant 62. did not factors.” U. S. Petitioner develop any such criteria with reference merits of contrary, case. On the careful examination whole record shows that requested the informers’ names his attack on supporting affidavit Having search warrant. develop failed to criteria of necessitating Roviaro disclosure on the merits, cannot say on this record that of the informant was name *7 necessary to All petitioner’s his defense. demands identification of the during informants were made hearings on the motion to and suppress related to were that motion.5 petitioner’s Never did counsel indicate how the informants’ testimony could help establish petitioner’s innocence. do
Nor we believe the trial in refusing court erred to 'have the Government disclose the exact date during preceding the week March 16 when the informant saw the 5 during It was hearing prior peti on the motion to trial that Pearce, tioner cited United States 318; v. 275 F. 2d Giordenello v. States, 480; U. S. and Roviaro v. United 353 U. S. 53. His is, counsel said: “That Giordinella states that the de [sic] right fendant has hearing to have such suppression]. Pierce [on and right Roviera hearing [sic] state have a in [sic] advance to demand the names of the informers if the names are essential to the prosecution defense of in petition the defendant suppress his (Emphasis supplied.) evidence." hearing And on the second when the Government offered again urged the furs evidence he motion, jury, the absence introducing showing evidence the “factual arguing errors” in the motion, peti affidavit. On tioner’s.,counsel said: “Here is what says, Pierce here [sic] says: what United States v. Roviera ‘When it is demonstrated [sic] to the Court that it is essential to the rights, defendant’s constitu rights, tional given information be to him so that he can test validity affidavit,’ given then it must Clearly be to him.” suppression his reliance on Roviaro for purposes, which was the sole reason for cited, entirely misplaced. which it was to see
furs in the basement. is difficult petitioner’s defense, how that date could useful be since the crucial date in the was March indictment any no indication that knowl- there is the informant edge occurring events on that date. Petitioner’s theory if date, may is that he can find out the be able he away to show and his from that he wife home at time when furs, thereby creating the informant saw the an inference else let someone did not know of the furs. However, particular help date could not have of material been petitioner, away both he and his wife were from home a major portion nearly every day during period in question.
IV. sufficiency As to the it evidence, undisputed that 81 furs were found in peti- stolen the basement of tioner’s home. The furs were hanging along a closet with a piece admittedly fur Rugendorf. owned Mrs. Petitioner’s defense was that placed the furs were in the his knowledge closet without while he and his wife were vacationing in Florida and that neither nor his wife looked into closet after their return until the officers *8 executed the search on warrant March 22. Petitioner’s petitioner’s brother Leo, sister, son and a neighbor his all had keys to his petitioner house. Both and his wife pointed guilty to Leo party, but neither Leo nor keys other relatives who had were called as witnesses. The who was neighbor, called testify, to denied putting the furs in the or permitting any person other to key. use the early
As as 1896 this Court with such dealt situations. In Wilson United v. S. 613, U. Chief Justice “ Fuller held a unanimous that [possession Court crime, fruits of recently after its commission, justifies the inference that the possession is guilty possession, and, though only jade prima may evidence guilt, be of con- trolling weight explained unless by the circumstances or for in way accounted some consistent with innocence.” At 619. Here, it was stipulated 59 of the furs found petitioner’s basement were stolen from a fur store in Mountain Brook, Alabama, February 10, 1962. They were found opening closet off a regularly used recreation room. In the same closet was Rugen- Mrs. piece. dorf’s fur Leo Rugendorf, brother, was a known goods receiver of stolen and was seen at the Rugendorfs home while the Florida. Petitioner testified at that Leo key had borrowed a before petitioner went Florida, and that yet Leo had not re- turned In agent it. rebuttal an FBI testified peti- him key tioner told that Leo returned the soon after the petitioner returned from Florida. In respects some other testimony of both and his wife conflicted testimony with the rebuttal FBI agents. Appar- ently jury simply did explanation not believe the petitioner and wife. may jury’s be credu- lity was far; perhaps stretched too the failure of the or, defense to call Leo kinsmen, other given keys whom home, appeared strange, especially so, neighbor since the was called to testify about his use of a In key. prima event facie case stipulation made out presence in petitioner’s say home. We cannot this was insufficient.
Affirmed. with whom Justice, Mr. Justice Douglas, Chief Goldberg and Mr. Justice con- Mr. Justice Brennan cur, dissenting. prior presentation by
Just prosecution *9 trial, its first counsel for petitioner witness re- informers mentioned or names of the the name quested warrant: the search S.U. Roviaro v. United States [353
“Mr. Echeles: as author- which is cited our Seventh Circuit 53], informants, that if the for this states ity proposition, necessary to of the informants are if the names of the defend- proper presentation or proper defense warrant, then in attacking search case ant’s must be to the de- given it justice the interest give has no not to Government reason fendant. Roviaro, controlling and that is law. said it, our opinion me how in the names “Let demonstrate necessary.” are the informants why of one argue then on to disclosure went Counsel to his to suppress. informant’s name was essential motion stating: shifted to another attack Then he suggest “7 would
necessary to because he takes if defendant it will that Sam stand demonstrate it, I nothing possibly falsity, to do with but perhaps pretty be a suggest would would they ought for the good Government, witness witness, pretty to hide the that he would not to want much a case for the Government. make out [Italics added.] I your rely upon event, Honor,
“In rely our I 2d, upon v. 275 F. Circuit. Pearce, States And rely v. 53. I States, Roviaro United S.U. v. United 357 U. S. Giordenello being proper procedure trying get I am here, your Honor.” say wholly that this motion impossible to related
It is the search warrant. is true that Pearce and quash Giordenello involved such motions. But Roviaro did not. *10 viz., presented Rather it the same this case presents, issue whether the must privilege,” S., 59, “informer’s U. give way the interests the defense the accused. prosecutor objected, saying if the Govern- “that ment is to of any they might reveal the name informants probably be and would be killed.” The trial judge denied motion and the started. trial During request the trial for repeated, counsel “I petitioner saying that information defend my need to your Honor.” if defendant, defect, any, may Whatever have been present appear his first did motion not time. For now he plainly addressing himself to the again the merits. request Once was denied.
It is requests obvious that these made not to challenge sufficiency of the affidavit as a basis warrant, search guilt but also use on the issue viz., knowing possession goods. of stolen innocence— by The issue was considered the Court of Appeals,* 316 592; F. 2d and 589, do same. should and Petitioner his wife were in Florida on vacation February between 4, 17 and March 1962. Before majority * The states that the demand for as it disclosure related properly defense on the merits “was not raised in the trial court passed upon there, and, nor accordingly, must be denied here.” Ante, excerpts reproduced at 534. But amply the trial above rebut as it contention relates Appeals trial. And the Court expressly said: point remaining
“The
raised
defendant as error is the refusal of
require
the trial court to
the disclosure of the
name of
informer.
The defendant
relies on
Roviaro v. United
As Roviaro challenge did involve a to the suffi- ciency presented of a search warrant. the issue this ease does. requesting One citing authority disclosure obviously Roviaro as seeking bring himself within the situation to which the Roviaro applicable. rule is brother Leo—an admitted Chicago petitioner’s
left see him: goods to his house to “fence” for stolen —came mail, to look after the going asked who was “Leo told everything else clean the sidewalks would do it. Leo Jerry Leo his son said every morning and stated Jerry open had to the store every day why and so got down a little later that he *11 bring in the mail. him watch the house not let gave keys. his brother Accordingly, he the 1962, day, February 17, “From until that had not seen or talked day of the time trial] [the key.” Leo; nor Leo returned the to his brother key during to house brother, the had one the Leo, son, neighbor His his and a petitioner’s sister, absence. criminal, a keys. also had Since one of these was known personally informant had in the base- been since of petitioner’s pertinency inquiry home, ment informant’s becomes obvious. name Speaking of the “informer’s we said in privilege,” purpose Roviaro v. United 353 U. S. 59: “The privilege protection is furtherance and public law priv- interest effective enforcement. The ilege recognizes obligation of citizens to communicate knowledge of their commission of to law- crimes and, preserving enforcement officials their anonymity, encourages to perform obligation.” them
But there privilege give are times when the way. must Roviaro, In put exceptions one of those in these words: “Where the disclosure of an informer’s identity, or of the communication, contents his helpful relevant and defense, to the of an accused, is essential a fair deter- mination of a cause, privilege give way. must In may these situations require court and, disclosure if the withholds Government the information, dismiss the Id., action.” at 60-61. imagine present
It is case than the difficult clearer application exception. one for of that The Solicitor General seeks conclusion to avoid that by saying though might even the informant disclose who stole furs and how defendant’s reached the light “this would not basement, necessarily have cast the issue of knowledge.” The Solicitor argues General also highly conjectural it is identification of person who admitted the informant materially to the would question basement illuminate the petitioner’s knowledge. have, however, We case only proof implicating where the discovery defendant was furs his basement. keys stolen Four hands outsiders, house were one of whom had a criminal trafficking record for in stolen goods; the stolen may reached defendant’s during have absence remained there without his knowledge. His proof would be defense that someone without his knowledge put them there. person Who that was, *12 placed when the furs in he what his moti- basement, placing vations were in the furs there, what his relations with the defendant what connections had with were, the stolen questions go articles —these very heart of the defense. Roviaro would, require therefore, exercise of sound discretion disclosure of the informant. Unless allow that of leeway, amount we can rest uneasy in thought that we are helping send an innocent man prison. Court does not up face crucial because, issue
with due it takes Baron respect, approach Parke when examining the record, motions made, the excep- tions taken; it proper concludes talismanic words not were used request when the for the informant’s name was made. belongs But attitude to an ancient regime, not to the one we administer (b) under Rule of the Federal Rules of Criminal (see Procedure Silber v. provides: which “Plain U. S. 717), affecting rights may
errors defects substantial be although they brought noticed to the attention (1) of the court.” (d)(2) Our Rule 40 same Enough effect. has been said to show that the issue was squarely squarely passed raised in the trial court and if it Appeals. arguendo the Court But is assumed point was not squarely raised, few clearer cases for applying (b) Rule 52 have in recent least appeared, years.