*1 STATES. v. UNITED SPINELLI January 1969. 16-17, 1968. Decided Argued October 8. No. *2 Irl B. Baris argued the cause and filed a for brief petitioner.
Joseph J. Connolly argued the cause the United States, pro hac vice. With him on the brief were Solicitor Griswold, General Assistant Attorney General Vinson, Beatrice Rosenberg, and Sidney M. Glazer.
Mb. Justice Harlan delivered opinion Court.
William Spinelli was convicted under 18 U. C. S. 19521 of traveling to i Louis, St. Missouri, from nearby Illinois suburb with the intention of conducting gambling activities proscribed by Missouri law. See Mo. Rev. § Stat. 563.360 (1959). every At appropriate stage in the proceedings in the lower courts, petitioner challenged the constitutionality of the warrant which authorized the FBI search that uncovered the evidence necessary for his conviction. At each stage, Spinelli’s challenge was treated ain different way. At a pretrial suppression hearing, the United States District Court for the Eastern District Missouri held that Spinelli 1 The portion relevant of the statute reads: “(a) Whoever travels in or foreign interstate commerce or uses any facility in interstate . . . commerce . . . with intent to— “(3) otherwise promote, manage, establish, carry on any . . . unlawful activity, and performs thereafter or attempts perform any of specified the acts in subparagraphs (1), (2), (3), shall be fined not more $10,000 than imprisoned or for not more than years, five or both. “(b) As used this section activity’ ‘unlawful (1) any means enterprise business involving gambling ... violation of the laws of the State in they which are or committed of the United States . .. .” objection. Amendment a Fourth to raise standing lacked for the Appeals of the Court panel A unanimous ground, Court’s rejected the District Eighth Circuit issued the warrant holding further majority rehearing, en banc After an cause. without affirmed the warrant sustained Appeals Court F. 2d 871. of six to two. 382 by a vote conviction reflect dissenting opinions en banc majority and Both the we apply principles effort to a most conscientious Texas, (1964), S. 108 Aguilar v. 378 U. announced have whose basic characteristics to a factual situation in recent warrant cases. all uncommon search not been at Aguilar principles Believing it desirable granted certiorari, we explicated, should be further to the being question writ later limited S. our U. *3 validity of the search and seizure.2 of the constitutional follow we reverse. 391 933. For reasons that U. S. upon In warrant had issued Aguilar, search they who swore that police affidavit of officers person information from a credible “received reliable had being illegally that narcotics were and do believe” stored premises. the the recognizing on described While cause can be requirement constitutional hearsay information, satisfied this Court held the 2 agree Appeals Spinelli standing with the Court of has We to his Fourth Amendment claim. The issue arises because at raise apartment Spinelli FBI the time the searched the in which was alleged conducting bookmaking operation, petitioner to be his premises. Instead, agents was not on the did not execute their apartment, search warrant until was seen to leave lock door, hallway. point, petitioner enter the At ar rested, key apartment him, to the was demanded of and the petitioner plainly standing search commenced. Since would have if apartment, he had been arrested Jones inside the v. United (1960), agents preferred 362 U. S. it cannot matter that the delay petitioner stepped hallway espe the arrest until into the — cially only managed gain entry apartment when the FBI into the by requiring petitioner key. to surrender his affidavit inadequate two reasons. First, applica- tion failed to set forth any of the “underlying circum- stances” necessary to enable the magistrate independently to judge of the validity of the informant’s conclusion that the narcotics were where he they said were. Second, the affiant-officers not attempt did to support their claim “ their informant was 'credible’ or his information ” 'reliable.’ The Government is, however, quite right in saying that FBI affidavit the present case is more ample than Aguilar. Not only does it contain a report from an anonymous informant, but it also con- tains a report of an independent FBI investigation which is said to corroborate the informant’s tip. We are, then, required to delineate the manner in Aguilar’s which two- pronged test should applied in these circumstances.
In essence, the affidavit, reproduced in full in the Appendix to this opinion, contained the following allegations:3
1. The FBI had kept track Spinelli’s movements on days five during the month of August 1965. On four of these occasions, Spinelli was seen crossing one of two bridges leading from Illinois into St. Louis, Missouri, between 11 a. m. and p. 12:15 m. On four of the five days, Spinelli was also seen parking his car a lot used by residents of an apartment house at 1108 Indian Circle Drive in St. Louis, between p. 3:30 m. and 4:45 p. m.4 *4 3 is, It of course, of consequence no agents that the might have had additional information which could have been given to the Com missioner. “It elementary is in that passing on validity the of a warrant, the reviewing may only court consider information brought to the magistrate’s Aguilar Texas, attention.” v. 108, U. S. 1 (emphasis n. original). Since the Government argue does not that whatever additional agents may information the possessed have was provide sufficient to probable cause arrest, thereby the justi fying the well, resultant search as we need question. not consider that 4 No report was Spinelli’s made as to movements during period between his arrival St. Louis at noon and his arrival at the parking i—i seen to and followed further day, Spinelli one
On building. in the apartment a particular enter revealed company telephone with the An check 2. FBI telephones listed two contained apartment this carrying Hagen, and of Grace P. the name under 4-0136. 4-0029 and WYdown WYdown numbers Spinelli is that “William application stated 3. The enforcement federal law and to this affiant known to bookmaker, a agents as agents and local law enforcement an associate gambler, a and bookmakers, of associate gamblers.” “has been in- stated that FBI Finally, it was 4. that William informant by a reliable confidential formed wagers accepting a handbook operating and Spinelli is by means disseminating wagering information assigned the numbers have telephones which been 4-0136.” 4-0029 and WYdown WYdown mentioned, item be no last question There can place tip, has a fundamental the informant’s detailing cause it, probable application. Without in this warrant reflect The first two items be established. could Spinelli’s activity and data. innocent-seeming entry and his apartment building from the to and travels hardly could apartment on one particular occasion into and there bespeaking gambling activity; taken as apartment containing about an surely nothing unusual indulges telephones. Many a householder separate two luxury. Finally, allegation in this petty himself to the affiant and to other federal “known” Spinelli was and an gambler law enforcement officers local is but a bald and gamblers unilluminating associate weight is entitled to no suspicion assertion Nathanson magistrate’s decision. appraising (1933). 290 U. S. fact, In the evidence at trial indicated in the late afternoon. lot frequented during the offices of his stockbroker period.
So much indeed the Government does not deny.
Rather, following the reasoning of the Court of Appeals,
the Government claims that
tip
informant’s
gives
a suspicious color to the FBI’s reports detailing Spinelli’s
innocent-seeming
conduct and that,
conversely,
FBI’s
surveillance
corroborates
the informant’s
tip,
thereby entitling it to more weight.
It is
true,
course,
the magistrate is obligated to render a judgment
based upon a common-sense
reading
the entire affi-
davit. United States v. Ventresca,
The report informer’s must first be against measured Aguilar’s standards so that probative its value can be assessed. If tip is found inadequate Aguilar, under the other allegations which corroborate the information contained in the hearsay report should then be consid- ered. At this stage as well, however, standards enunciated Aguilar must inform the magistrate’s de- cision. He must ask: Can fairly be said the tip, even when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which pass would Aguilar’s tests without independent corrobo- Aguilar ration? at relevant this stage of the inquiry as well because the tests it establishes designed were implement the long-standing principle cause must be determined by a “neutral and detached magistrate,” and not by “the officer engaged in the often competitive enterprise of out ferreting crime.” Johnson v. United 333 U. S. 14 (1948). A magistrate cannot said to have properly his discharged constitu- tional if duty he on relies an informer’s tip which —even *6 reliable as one not as partially corroborated —is when alone. standing when Aguilar’s requirements passes which case, we first present principles to the Applying these tip when informer’s to be the weight given consider the It affidavit. from the rest of the apart it is considered it without not credit could is clear that a Commissioner the affi- Though function. abdicating his constitutional he offered “reliable,” his confidant was ant swore that of this conclusion. support in no reason magistrate the Aguilar’s the fact that important more is Perhaps even not con- tip The does not been satisfied. other test has underlying circum- statement of the tain a sufficient Spinelli informer concluded that from which the stances operation. We are not told bookmaking running was his information —it is FBI’s source received how the personally observed the informant alleged that placed a bet with him. he had ever at work or that information by informant came the Moreover, if the were explain why did not his sources indirectly, he States, v. United Jaben 381 U. S. reliable. Cf. the detailing of a statement In the absence (1965). gathered, the information was manner which tip describe the accused’s important that especially activity magis- in sufficient detail criminal something on more may relying that he is trate know circulating rumor the under- than casual substantial an merely based on individual’s or an accusation world reputation. general Draper by the informant provided
The detail
provides a suitable
(1959),
Nor do we believe patent Aguilar doubts *7 raises as the report’s reliability adequately are resolved by a consideration of allegations the detailing the FBI’s independent investigative efforts. At most, these alle- gations indicated Spinelli that have could used the tele- phones specified by the informant for purpose. some by This cannot itself be support said to both the infer- ence that the informer generally was trustworthy and that he had charge made his against Spinelli on the basis information in a way. obtained reliable Once Draper provides again, comparison. relevant Inde- pendent police work in that case corroborated much more than one small detail that provided by had been the There, informant. the police, upon the meeting inbound Denver train on the morning second specified by informer Hereford, saw a man whose dress corresponded precisely to Hereford’s detailed description. It was then apparent that the informant fabricating had been report not his out cloth; report of whole since the was of sort which the in experience may common recognized having been Draper question While involved the police whether the had probable cause for an arrest warrant, analysis required without a the question for an answer to basically is similar to that demanded magistrate of a when he considers whether a search warrant should issue. clear that perfectly way, it in a reliable
obtained established. had been cause probable the inform- case present in the then, conclude, We extent indi- to the corroborated when tip ant’s —even finding for a the basis provide not sufficient to cated —was say tip the was so not to This is cause. in have counted properly could insubstantial it needed some Rather, determination. magistrate’s parts of the to the other we look support. When further alleged which nothing find we however, application, inform- by suspicions engendered permit would a crime was judgment into a ripen report ant’s seen, the already As we have committed. being probably FBI’s surveillance detailing allegations company records telephone investigation of and its by when taken criminal conduct suggestion of no contain an with aura of they are not endowed themselves —and tip. Nor do we of the informer’s virtue suspicion color when take on sinister reports FBI’s that the find bookmaking knowledge light common read premises from telephone over carried on often purposes. normal ostensibly perfectly used others a situation carry weight would argument an Such of tele- number contain unusual premises which *8 McCray activity observed, v. is cf. or abnormal phones not Illinois, it does fit 300, (1967), 302 but 386 U. S. is All present.6 of these factors where neither this case the flat statement considered is remains to be gambler. as a to the FBI and others was “known” is police suspicion of not simple as a assertion just But magistrate’s finding prob- of basis for a a sufficient itself may give do not believe it be used to cause, we able 6 telephones in containing uninstalled was found A box three execution of the search warrant. but after apartment,
419 additional weight allegations that would otherwise be insufficient.
The affidavit, then, falls short of the standards set forth in Aguilar, Draper, our other decisions that give content to the notion of probable In cause.7 hold- ing as we have done, we do not from retreat the estab- lished propositions that only the probability, prima facie showing, activity criminal stand- ard probable cause, Ohio, Beck v. 89, 379 U. S. 96 (1964); probable affidavits of cause are tested by much less rigorous standards than those governing admissibility evidence at trial, Illinois, McCray v. 386 U. 300, S. 311 (1967); in probable judging cause issuing magistrates are not to be confined by nig- gardly or by limitations restrictions on the use of their sense, common Ventresca, States v. 380 U. S. 108 102, (1965); and that their determination of prob- able cause paid should great deference by reviewing courts, Jones v. United 362 257, U. S. 270-271 (1960). But we cannot sustain this warrant without diluting important safeguards that assure that the judg- ment of a judicial disinterested officer will interpose itself between police and the citizenry.8 7In those cases which this Court has found cause established, showing made was much more substantial than the one Thus, made here. in United Ventresca, States v. 380 U. S. (1965), agents FBI repeated observed deliveries of loads sugar 60-pound bags, smelled the odor of fermenting mash, and “ heard ‘sounds similar to that of a pump motor or a coming from the direction of Again, Ventresca’s McCray house.” Illinois, U. S. 303-304 (1967), the reported informant McCray “ selling ‘was narcotics and had person narcotics on his now in the ” vicinity of 47th and Calumet.’ When police arrived at the intersection, they McCray observed engaging in various suspicious activities. S., 386 U. at 302. 8 In the view have case, we taken of this it unnecessary becomes to decide whether the search properly warrant was executed, or sufficiently whether things described the that were seized. *9 Appeals reversed of the Court judgment
The pro- for further remanded to that court and the case is opinion. with ceedings consistent
It ordered. sois in the considera- part took no Justice Marshall Me. tion or decision of this case. THE OF COURT.
APPENDIX TO OPINION Support Warrant. of Search Affidavit sworn, depose and duly Bender, being L. I, Robert Federal Bureau of the Special Agent I say that am a make as such am authorized Investigation, and seizures. searches m., 11:44 a. 6, 1965, approximately at August
That on of the by Agent an Spinelli was observed William 1964 Ford driving a Investigation Federal Bureau of HC3-649, onto the Eastern license convertible, Missouri from East leading St. Bridge of the Veterans approach Louis, Missouri. Illinois, to Louis, St. 11:16 11, 1965, approximately at August
That on Agent was observed m., Spinelli William a. Ford driving a 1964 Investigation Bureau of the Federal the Eastern HC3-649, license onto convertible, Missouri Louis, from East St. leading Eads approach Bridge Missouri. Illinois, Louis, to St. August 11, 11:18 a. m. on approximately at
Further, the aforesaid 1965, driving William observed approach of the Eads from the Western Ford convertible Louis, Missouri. Bridge into St. on approximately p. August 4:40 m.
Further, at convertible, bearing the aforesaid Ford I observed HC3-649, parked parking lot used license Missouri Apartments, ap- of The Chieftain Manor residents block east of 1108 Indian Circle Drive. one proximately 12:07 approximately p. m., at 12, 1965, August On *10 William. Spinelli was observed by an Agent of the Fed- eral of Bureau Investigation driving the aforesaid 1964 Ford convertible onto the Eastern approach Veterans Bridge from East Louis, St. Illinois, in the direction of St. Louis, Missouri.
Further, on 12, August 1965, at 3:46 approximately p. Im., observed Spinelli William driving aforesaid 1964 Ford convertible onto the parking used by lot residents of The Chieftain Manor Apartments approxi- mately one block east of 1108 Indian Circle Drive.
Further, on August 12, at 3:49 approximately p. m., Spinelli William was observed by an Agent of the Federal Bureau of Investigation entering front entrance of the two-story apartment building located at 1108 Indian Circle Drive, this building being one of The Chieftain Manor Apartments. August
On 13, 1965, at approximately 11:08 m., a. William Spinelli was observed by an Agent of the Fed- eral Bureau Investigation driving the aforesaid Ford convertible onto the Eastern approach of Eads Bridge from East St. Louis, Illinois, heading towards St. Louis, Missouri.
Further, on August 13, 1965, at 11:11 approximately Im., a. observed Spinelli William driving aforesaid Ford convertible from the Western approach of the Eads Bridge into St. Louis, Missouri.
Further, on August 13, 1965, at approximately 3:45 p. Im., observed Spijielli William driving the aforesaid 1964 Ford convertible onto the parking area by used residents The Chieftain Manor Apartments, park- said ing area being approximately one block from 1108 Indian Circle Drive.
Further, on August 13, 1965, at approximately 3:55 p. m., William was observed an Agent the Federal Bureau Investigation entering the corner apartment located on the second floor in the south- corner, west known as Apartment F, of the two-story 1108 Indian known and numbered as apartment building Circle Drive. m., I p. 3:22 approximately at August 16,
On Ford the aforesaid Spinelli driving observed William lot used the residents parking convertible onto the one Apartments approximately of The Manor Chieftain Indian Circle Drive. block east of 1108 of the F. B. I. observed William Further, Agent from the aforesaid Ford convertible Spinelli alight at 1108 apartment building walk toward the located *11 Indian Circle Drive. Bell Telephone
The records of the Com- Southwestern located in telephones reflect there are two pany apartment on the second floor the southwest corner located at 1108 Indian Circle apartment building Hagen. the name of Grace P. The numbers Drive under Telephone Bell rec- Company listed in the Southwestern telephones ords for the aforesaid are WYdown 4-0029 and WYdown 4-0136. Spinelli is known to this and to federal
William affiant and local law enforcement agents agents law enforcement bookmakers, an associate of bookmaker, gambler, as a of gamblers. and an associate Bureau of has been in- Investigation The Federal by a confidential reliable informant that William formed handbook and operating accepting wagers disseminating wagering information means of telephones assigned which have been the numbers 4-0029 and WYdown WYdown 4-0136. Bender, L.
/s/Robert Robert Bender, L.
Special Federal Agent, Bureau of Investigation. to before me 18th day and sworn
Subscribed Louis, at Missouri. St. August, William O’Toole. R.
/s/ Mr. Justice White, concurring.
An investigator’s affidavit that he has seen gambling equipment being moved into a house at a specified address will support the issuance of a search warrant. The oath affirms honesty of the statement and negatives the lie or imagination. Personal observation attests to the facts asserted —that there is gambling equipment on the premises at the named address.
But if the officer simply avers, without more, there is gambling paraphernalia on certain premises, the warrant should not issue, even though belief of the officer is an honest one, as evidenced his oath, and even though magistrate knows him to experi- be an enced, intelligent officer who has been reliable in the past. This much was settled in Nathanson v. United States, 290 U. 41S. (1933), where the Court held insuf- ficient an officer’s affidavit he swearing had cause to believe that there was illegal liquor on the premises for which the warrant was sought. The unsupported asser- tion or belief of the officer does not satisfy the require- ment of probable cause. Jones States, United U. S. 269 (1960); Grau v. 287 U. S. *12 124 (1932); Byars v. United States, 273 U. S. 29 (1927).
What is missing Nathanson and like cases is a state- ment of the basis for the affiant’s believing the con- facts tained in the good affidavit —the “cause” which the officer in Nathanson said he had. If an officer swears that there is gambling equipment at a certain address, the possibilities are (1) that he has seen the equipment; (2) that he has perceived observed or facts from which presence the equipment the may reasonably in- be ferred; and (3) that he has obtained the information from someone else. If (1) is true, the affidavit is good. But in the (2), affidavit is insufficient unless per- the ceived facts are given, for it is the magistrate, not the 424 cause. probable the existence judge to
officer, who is v. Giordenello (1964); Texas, 108 378 U. S. Aguilar v. v. Johnson (1958); 480, States, 357 U. S. United respect With (1948). S. 333 U. no war- hearsay, is information the officer’s (3), where crediting for cause good absent issue rant should more, without asserting, an affidavit Because hearsay. ad- particular aat equipment gambling the location of the any observation personal not claim dress does likelihood of the and because officer, by the facts party, third unidentified from came an information the unacceptable. type are affidavits of officer states if issue the warrant the should Neither apart- in a particular equipment gambling is there informant, from an comes information that his ment and informant honesty of unnamed, since or named Nor would are unknown. report his basis and the of- by the supplied completely be missing elements relia- often furnished has informant oath that ficer’s honesty to the This attests past. information ble Texas, supra, requires Aguilar informant, but of the from ob- come the information more —did something it from in turn receive informant or did the servation, in- believing the facts for additional Absent another? than no better stands his assertion report, formant’s if Indeed, effect. the same officer to the oath magistrate known officer, of an affidavit gambling experienced, stating be honest unaccepta- building certain is located equipment from statement if similar be quixotic would ble, it probable found to furnish were informant honest made both should be strong argument can A cause. Amendment, but under the Fourth under acceptable informant reliability of the past The neither is. our cases his believing cause for more furnish can no *13 current report than can previous experience with the officer himself.
If the affidavit rests on hearsay informant’s re- —an port is necessary Aguilar under is one of two —what things: the informant declare (1) must either that he has himself perceived seen or or fact facts asserted; (2) or his information is there hearsay, but is good reason for believing perhaps of the usual one it— grounds for crediting hearsay The first information. presents few problems: the report, although since hearsay, purports to be first-hand observation, remaining doubt on centers the honesty of the informant, worry and that dissipated by the previous officer’s experience with the informant. The other basis for the in- accepting report formant’s is more complicated. But for ex- if, ample, the informer’s hearsay comes from one of the actors in the crime in the nature of admission against interest, affidavit giving this information should be held sufficient.
I am inclined agree the majority with there are special limited circumstances which an “honest” report, informant’s if sufficiently will in detailed, effect verify itself —that is, the magistrate when confronted with such detail could reasonably infer the inform- ant had gained his information way. reliable See ante, at 417. may Detailed information sometimes im- ply that the informant himself has observed the facts. Suppose an informant with whom an officer has had satis- factory experience states that there is gambling equip- ment in the living room of specified apartment and de- scribes in equipment detail itself but also the appointments and furnishings the apartment. Detail like if this, true at all, on personal must rest observation either of the informant or of someone If else. the lat- ter, we honesty nothing know the third person’s or *14 report. wholly a false making may be sources; he inform- facts it was the on these that arguable it is But for informa- facts, the the perceived who has himself ant day-to- subject casual, usually not the is reported tion is honest and informant Because the day conversation. the there is facts, he viewed that has probable is of a warrant. for issuance probable cause Draper v. United special circumstances in the too So information kind of (1959), S. 307 358 U. a ahead of generally not sent informant by the related who are inti- city except to those in a arrival person’s arrangements for making careful with mately connected honest, as some- informant, posited The meeting him. likely from very one reported facts, how had the The of them or as one himself. plan, in the actors a could have been is that warrant suggestion majority’s I report. on informer’s am obtained based if it although quite plain it seems that agree, to inclined that easily inferred from the affidavit may so the facts or has them observed informant has himself harm come possible in the no could event, from actor thereby effect, that remov- a statement to requiring from which arise in recurring questions ing the difficult and such situations. proceed on Draper itself this basis. course,
Of did pointed that when the saw Instead, Court out officer specified dressed person getting time, off the train at as the had conducting precisely himself informant and respect pos- fact with but the critical predicted, all verified had then sessing narcotics been had believe grounds” the officer “reasonable reason Draper carrying Unquestion- narcotics. also time, dress, gait of arrival re- ably, verification honesty of the had not informant —he inforced story. if made-up But what stands Draper reported of the tenth and critical the existence fact for is is made sufficiently to justify the issuance of a warrant by nine verifying other facts from coming the same source, have my doubts about that case.
In the first place, the proposition is not that the tenth fact may be logically inferred from the other nine or the tenth is usually fact found conjunction with the other nine. No one would suggest just anyone getting off the 10:30 train dressed Draper was, with *15 a brisk walk and carrying zipper bag, should be arrested for carrying narcotics. The thrust of Draper is not that the verified facts have independent significance with re- spect to proof of the tenth. The argument instead re- lates to the reliability of the source: because an inform- ant is right about some things, he is more probably right about other facts, usually the critical, unverified facts.
But the Court’s cases rejected have already for Fourth purposes Amendment the notion past that the reliability of an is officer sufficient reason for believing his current assertions. Nor would it suffice, if suppose, a reliable informant states there is gambling equipment in Apart- ment 607 and proceeds then to describe in Apart- detail ment 201, a description which is verified before applying for the warrant. He was right about 201, but hardly him makes more believable about the equipment in 607. But if what he states that there are narcotics locked in a safe in Apartment 300, which is described in detail, apartment and the manager verifies everything but contents of the safe? I doubt that the report about the narcotics is made appreciably more believable by the The verification. informant could still have got- ten his information concerning the safe from others about whom nothing is known or could have pres- inferred the ence narcotics from which circumstances a magistrate would find unacceptable.
The tension Draper between and the Nathanson- Aguilar line of cases is evident from the course followed report that the it is held First, majority opinion. by the two tele- using Spinelli informant from a reliable gambling to conduct numbers specified with phones aas circles police reputation Spinelli’s plus business This is cause. up not add does gambler in- Nathanson: Aguilar and with consistent wholly ob- personally had he whether not reveal formant did if the and, another from them facts or heard served presented. hearsay was crediting no latter, basis of such says, facts, as were the Harlan Nor Justice Mr. be obtainable normally would they a nature himself. informant observation personal by the informant’s stop with however, did police, The the existence they established Independently, report. them located numbers having given phones two regularly was which house apartment in an lit- There remained his home. away from frequenting phones, using the Spinelli was but question tle not for the use was inference that a fair had informant The purposes. for business domestic but *16 spe- his Since gambling. involved business the claimed with phones two using about information cific allega- not his did verified, been had numbers particular more sufficiently thereby become gambling tion about any given to be principle is Draper if the believable the so, particularly since I think would scope at all? was which verified the informant from information to but was material information irrelevant neutral, dif- phones with allegation: two gambling the proving home away from apartment used an ferent numbers bookmaking, like operation, in an business use indicates a Draper ap- The needed. are multiple phones where of warrant the issuance a justify reasonably would proach had some aware- police the since particularly case, in this how- majority, The activities. past Spinelli’s of ness that embracing Draper, confines seemingly while ever, reconsideration Pending full-scale case to its own facts. Nathanson- hand, or of the case, of that on the one the opinion Aguilar join on the the other, cases a reversal, especially the since judgment and Court produce equally divided Court. vote to affirm would Black, dissenting. Me. Justice Texas, Aguilar In decision in my view, this Court’s decision enough. That (1964), S. 108 was bad U. hear- the very elevating magistrate’s went far toward full-fledged warrant to a ing issuance a search forward to be trial, brought where witnesses must But not con- personally alleged. attest to all the facts Aguilar expands tent the this, today with Court proportions. course, Of would almost unbelievable eyewit- presentation if strengthen probable-cause defendant com- testify they nesses could saw the It would still if these wit- stronger mit crime. be explain in nesses could detail nature sensual on their “conclusion” perceptions they which based they defendant and person had seen was the responsible they he was for the events observed. Nothing requires in our Constitution, however, degree certainty with and facts be established before a can specificity policeman with such elaborate magistrate to conduct authorized disinterested be carefully limited search. provides The Fourth Amendment that “no Warrants upon probable cause, supported shall but Oath issue, affirmation, particularly describing place or persons things or In searched, to be seized.” *17 a was supported by this case search warrant issued describing the particularly place oath and to be searched things supporting the to be seized. The oath was included of it is full text pages and the printed three The magistrate, opinion. to the Court’s Appendix in an forth suffi- set held the information properly, I think the defendant cause” that “probable facts to show cient Court of of the Six members violating the law. was sufficient to affidavit was the agreed also Appeals today of this Court majority A probable cause. show all of these magistrate and however, the holds, their they substitute doing so, In wrong. were judges and the magistrate local opinion for that own banc factual conclusion reject the en judges, circuit the based judgment and reverse Eighth of Circuit the any in such I cannot join conclusion. upon that factual vital to the administration of an issue so disposition I vigorously as and dissent can. justice, given magis- the my the affidavit repeat belief that show cause ample than trate was more meticulously out guilt. The affidavit set petitioner’s following: to show the facts sufficient to and com- going had been shown petitioner 1. The two apartment room in an which contained from a ing person. of another telephones listed under the name was apartment in record indicates that Nothing could type and luxurious which large of that “petty be a occupied by person a whom it would with different luxury” separate telephones, to have two person who numbers, both listed under name did not live there. parked car petitioner’s
2. The had been observed apartment’s was, course, lot. This fact parking showing petitioner was ex- highly relevant enterprise located interested some which was tremely apartment. in the informed reliable informant The FBI had been
3. accepting wagering information petitioner particular telephones located in the telephones —the *18 apartment the defendant had been repeatedly visiting. Unless Court, going beyond requirements of the Fourth Amendment, wishes to require magistrates to hold before trials issuing warrants, it is not necessary— as the Court holds —to have the affiant explain “the underlying circumstances from which the informer concluded that Spinelli was running a bookmaking operation.” Ante, at 416. petitioner
4. The known by was federal and local law enforcement agents as a bookmaker and an associate of gamblers. I cannot agree with the Court knowledge only a “bald unilluminating assertion of suspicion that is entitled to no weight in appraising the magistrate’s Ante, decision.” at 414. Although the statement is hearsay might not be admissible in a regular trial, everyone knows, unless he eyes shuts his to the of life, realities this is a relevant fact which, together with other might circumstances, indicate a factual probability that gambling is taking place.
The foregoing facts should be enough to constitute probable cause for anyone who does not believe that the toway obtain a search warrant prove is to beyond a reasonable doubt that a defendant is guilty. Even Aguilar, on which the Court relies, support cannot result, contrary at least as that decision was written be- today’s fore massive escalation of Aguilar it. In Court with dealt an affidavit that only: stated
“Affiants have received reliable information from person credible and do believe that heroin . . and. other narcotics and narcotic paraphernalia are being kept at the above premises described pur- for the pose of sale and use contrary provisions to the the law.” 378 U. atS., 109.
The Court over held, the dissent of Mr. Justice Clark, Mr. Stewart, and myself, that this unsupported Justice of an conclusion unidentified informant provided no basis for the magistrate independent make an judgment to the persuasiveness upon of the facts show relied Here, course, cause. we have much more, Aguilar Court in and the was careful to point out that additional information of presented the kind in the affi- *19 before highly davit us now would be relevant: “If the fact and of such a results surveillance had appropriately presented been to the this magistrate, would, course, present entirely different case.” S., 378 at n. U. 1. present
In the case even the two-judge minority of the court below recognized, Court recognize seems to today, this additional information took the case beyond Aguilar. the rule of Six of the other circuit judges disagreed with the two dissenting judges, finding that all together circumstances considered could support a judgment reasonable gambling probably taking I place. fully agree carefully with this con- opinion sidered of the court below. regret
I say I today’s to consider decision an inde departure fensible from the principles of our former cases. years Less ago than four we reaffirmed these in principles United States Ventresca, v. 380 102, 108 (1965): U. S.
“If teachings of the Court’s cases are to be followed and the constitutional policy affi- served, davits for search warrants . . . be tested must and interpreted by magistrates and in a courts common- sense and realistic . fashion. . . Technical require- ments elaborate specificity once exacted under pleadings common law proper have no place in this area.” Husty
See also United States, 282 U. S. 694, 700-701 (1931).
Departures of this kind responsible are for consider- able uneasiness in our lower courts, I and say must I
433 Judge Gibson by deeply am troubled statements court below: after decision “I disturbed decision am, indeed, bur- increasingly technical place of our courts which I am disturbed law enforcement officials. upon dens relentlessly chip appear decisions that by these police narrowing area of effective away at the ever Aguilar, holdings I operation. believe (1964) Rugendorf v. S. U. of individuals protect privacy are sufficient I hastily intrusions, and do from conceived on issu- requirements limitations think the expanded ance of search warrants should approach- setting up requirements over-technical plead- of common law ing pitfalls the now discarded increasingly technical if we become ings. Moreover, upon police rigid officers, our demands *20 and easy for criminals to increasingly make it fear we signifi- I unpunished. feel the operate, detected but beyond state present its cant movement law to law dangerous and unwarranted, unneeded, efficiency.” (Dissenting panel from enforcement opinion.) in a view Appeals of this case took sensible
The Court wholeheartedly I would Amendment, of Fourth affirm its decision. for
Mapp Ohio, 1961, 367 decided in held 643, v. U. S. Fourth Amendment and the ex- the first time that rule of Weeks v. 383 232 U. S. clusionary applicable to the That Amend- (1914) are now States. issued provides ment that search warrants shall not be probable cause. The existence of cause probable without for of factual matter that calls the determination is a immediately While no are factual statistics question. probable of cause to issue search available, questions 434 in involved are doubtless to make arrests
warrants and All of those courts. of cases state thousands many reviewable potentially are now cases state probable-cause impossible course, physically It of is, by this Court. in all or even to review the evidence this Court Consequently, cases. of those percentage substantial accept most inevitably we must not, desirable or whether particularly when, courts, of the state findings of the fact appellate both the trial and case, here in a federal as way. It cannot decided the facts the same courts have of the Court trial and six members judge that the be said evi- finding error in from flagrant committed Appeals probable cause to issue magistrate had dence that It seems to me that this Court warrant here. the search justice itself and the administration would best serve of the two courts below. judgment by accepting and much all, they lawyers judges, too are After affairs of life than we practical, everyday to the closer are.
Notwithstanding contrary, the Court’s belief to the holding does, Court does: think that propositions that “retreat from the established prima showing, and not a facie probability, activity probable is the standard of cause, criminal Ohio, (1964); 96 that affidavits Beck v. U. S. rigorous cause are tested much less probable governing admissibility than those standards McCray Illinois, 386 trial, at U. S. of evidence cause (1967); judging *21 by nig- issuing magistrates are not to be confined by limitations or restrictions on the use of gardly Ventresca, sense, United States v. 380 their common (1965); and that determination 102, S. 108 their U. paid great by cause should deference States, Jones v. reviewing courts, United S.U. Ante, (I960).” 270-271 at 419. In fact, I believe the Court is moving rapidly, through complex analyses obfuscatory language, toward the holding magistrate no can issue a warrant unless according to some unknown standard of proof he can be persuaded that the suspect defendant is actually guilty of a crime. I would affirm this conviction. Fortas,
Mr. Justice dissenting. My Brother opinion for the Court Harlan’s is ani- mated a conviction which share that security “[t]he of one’s privacy against arbitrary intrusion police is at the core the Fourth —which Amendment— is basic to a free society.” Colorado, 338 U. S. Wolf 25, 27 (1949).
mayWe well upon insist a sympathetic and even an indulgent view of the latitude which must be accorded police for performance of their vital task; but only a or foolish careless people will deduce from this that the public welfare requires or permits police to dis- regard the restraints on their actions which historic struggles for freedom have developed for protection of liberty and dignity of against citizens arbitrary state power.
As Justice Jackson (dissenting) stated in Brinegar v. 338 U. S. 180-181 (1949): provisions
“[The of the Fourth are Amendment] not mere rights second-class but belong in the cata- log of indispensable freedoms. Among deprivations of rights, none sois effective in cowing population, crushing spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among people possessed of many admirable qual- ities deprived but of these rights to know that *22 436 self- and dignity and deteriorates personality
human pos- and homes, persons where disappear reliance search unheralded to hour any subject at are sessions police.” by the and seizure that requires protection this that us teaches History1 interposed between officer be judicial of a judgment the and target, appointed their of pursuit hot police, the judge must officer judicial the citizen;2 the be must his judgment rubber-stamp; merely demon to adequate facts reliable judicially upon based probability the by justified the search strate this as or, of or instruments fruits yield the will crime — of its evidence tangible recently ruled, has Court aof requirement the to exceptions The commission.3 narrowly restricted4 always been have warrant search of the awareness long-standing of Court’s because in the judgment magistrate’s the role of fundamental individual between balance proper of a preservation United Trupiano v. power. See and state freedom (1948). 700 States, 699, U. S. 334 of ob- necessity not with deals, decision Today’s difficult with search, but prior to a warrant taining made must be showing of the the nature problem 1 as day night, or door, whether knock at “The solely on the authority law but search, without prelude to commentary his of recent did not need police, authority of the human conception of with inconsistent tory condemned documents constitutional history and the basic in the enshrined rights 25, Colorado, 28 U. S. 338 v. peoples.''’ English-speaking Wolf 56, 69-70 Rabinowitz, S.U. 339 States v. (1949). See United respect to with generally dissenting). See J., (Frankfurter, (1950) History and Lasson, The N. Amendment history Fourth States United to the Amendment Fourth Development (1937). Constitution 2 (1948). States, S. 13-14 U. 333 Johnson v. United See 3 (1967). Hayden, U. S. 294 387 v. Warden 4 (1958); Warden 493, 499 U. S. 357 Jones v. See opinion). (1967) (concurring Hayden, S. 387 U.
before the magistrate justify his issuance of a search warrant. While I do not subscribe to the criticism of *23 majority expressed by my Brother Black in dissent, respect believe —with all the majority inis error —that in holding that the affidavit supporting in the warrant this case is constitutionally inadequate.
The is affidavit unusually long In fact, detailed. it many recites so minute and developed detailed facts in the course of the investigation of Spinelli that its sub- stance is somewhat obscured. It paradoxical is this that very fullness of the may affidavit be the source of the constitutional infirmity that the majority finds. Stated in language more direct and less circumstantial than that used agent FBI who executed the affidavit, it sets forth that the FBI has been informed Spinelli that is accepting wagers by means of telephones numbered WY 4^0029 and WY 4-0136; Spinelli that is to known agent the affiant and to law agencies enforcement as a bookmaker; telephones that numbered WY 4-0029 and WY 4-0136 are located in certain apartment; that placed under surveillance and his observed movements were such as to show his use of that apartment and to indicate that he frequented apart- on a ment regular basis.
Aguilar Texas, S. 108 U. (1964), holds that the reference in an affidavit to information described only as received from “a confidential reliable informant,” standing is alone, adequate not basis for issuance of a search warrant. The majority agrees that the affi- “FBI davit in the present case is more ample than that Aguilar,” but concludes that it is nevertheless constitu- tionally inadequate. The majority states pres- ent affidavit fails to meet the “two-pronged test” of Aguilar (a) because does set forth the basis for the assertion that the informer is (b) “reliable” and it fails to state the “underlying circumstances” upon which the engaged Spinelli was conclusion based his informant bookmaking. refer- its however, acknowledges, majority The not be understood test” should “two-pronged to a ence respects in these deficient an affidavit meaning that warrant. search support a inadequate necessarily which may be attested circumstances facts and Other needed cause the evidence supply will statement general warrant. On the search support facts I believe such is that difference Our agreed. we are case, in this present are and circumstances conclusion. opposite at the majority arrives case, if, recognized Aguilar expressly story had the informant’s conclusory report of affidavit’s of ... sur- fact and results by “the supplemented been *24 entirely present an course, would, veillance . .. present n. In the at 1. S., 378 U. different case.” relevant showed it, I the affidavit as view case, pur- probative weight to some surveillance, entitled also addi- warrant, but of a issuance search poses reli- significance adequate facts of tional, specific numbers, telephone using two ability: for book- being used by an “informant” identified telephones these illegal operations; in his making, Spinelli, and that apartment; in an identified were apartment. Cer- bookmaker,5 frequented a known enough. this is tainly, not be as an judged affidavit should policeman’s A 6 essay It is not “abracadabra.” in an contest.
entry 5 not, standing reputation alone would Although Spinelli’s reputation justify search, held that such a course, this Court has subject scepticism may report “much less make the informer’s history.” charge against one without such than would such a (1960). Jones 271 v. 362 U. S. 6 Hill, (1967) (dissent) Time, 374, 418 Inc. S. See U. instructions). (relating jury
As majority recognizes, policeman’s affidavit entitled to common-sense evaluation. So I viewed, con clude the judgment of Appeals Court for the Eighth Circuit should be affirmed.
Mb. Justice Stewakt, dissenting. For substantially the by my reasons stated Brothers Black I believe the warrant in this case was Fobtas, supported by a showing sufficient of probable cause. would therefore affirm the judgment.