UNITED STATES v. HARRIS
No. 30
Supreme Court of the United States
Argued March 23, 1971—Decided June 28, 1971
403 U.S. 573
Beatrice Rosenberg argued the cause for the United States. With her on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Richard B. Stone, and Mervyn Hamburg.
Steven M. Umin, by appointment of the Court, 400 U. S. 955, argued the cause and filed a brief for respondent.
Frank G. Carrington, Jr., and Alan S. Ganz filed a brief for Americans for Effective Law Enforcement, Inc., as amicus curiae urging reversal.
MR. CHIEF JUSTICE BURGER announced the judgment of the Court and an opinion in which MR. JUSTICE BLACK and MR. JUSTICE BLACKMUN join, and in Part I of which
We granted certiorari in this case to consider the recurring question of what showing is constitutionally necessary to satisfy a magistrate that there is a substantial basis for crediting the report of an informant known to the police, but not identified to the magistrate, who purports to relate his personal knowledge of criminal activity.
In 1967 a federal tax investigator and a local constablе entered the premises of respondent Harris, pursuant to a search warrant issued by a federal magistrate, and seized jugs of whiskey upon which the federal tax had not been paid. The warrant had been issued solely on the basis of the investigator‘s affidavit, which recited the following:
“Roosevelt Harris has had a reputation with me for over 4 years as being a trafficker of nontaxpaid distilled spirits, and over this period I have received numerous information [sic] from all types of persons as to his activities. Constable Howard Johnson located a sizeable stash of illicit whiskey in an abandoned house under Harris’ control during this period of time. This date, I have received information from a person who fears for their [sic] life and property should their name be revealed. I have interviewed this person, found this person to be a prudent person, and have, under a sworn verbal statement, gained the following informatiоn: This person has personal knowledge of and has purchased illicit whiskey from within the residence described, for a period of more than 2 years, and most recently within the past 2 weeks, has knowledge of a person who purchased illicit whiskey within the past two days from the house, has personal knowledge that the illicit whiskey is consumed by purchasers in the outbuilding known as and utilized as
the ‘dance hall,’ and has seen Roosevelt Harris go to the other outbuilding, located about 50 yards from the residence, on numerous occasions, to obtain the whiskey for this person and other persons.”
Respondent was subsequently charged with possession of nontaxpaid liquor, in violation of
The Court of Appeals relied on Aguilar v. Texas, 378 U. S. 108 (1964), in which we held that an affidavit based solely on the hearsay report of an unidentified informant must set forth “some of the underlying circumstances from which the officer concluded that the informant . . . was ‘credible’ or his information ‘reliable.‘” Id., at 114. It concluded that the affidavit was insufficient because no information was presented to enable the magistrate to evaluate the informant‘s reliability or trustworthiness. The court noted the absence of any allegation that the informant was a “truthful” person, but only an allegation that the informant was “prudent.” Having found the informant‘s tip inadequate under Aguilar, the Court of Appeals, relying on Spinelli v. United States, 393 U. S. 410 (1969), looked to the remaining allegations of the affidavit to determine whether they provided independent corroboration of the informant. The Court of Appeals held that the constable‘s prior discovery of a cache on respondent‘s property within the previous four years was too remote, and,
For the reasons stated below, we reverse the judgment of the Court of Appeals and reinstate the judgment of conviction.
I
In evaluating the showing of probable cause necessary to support a search warrant, against the Fourth Amendment‘s prohibition of unreasonable searches and seizures, we would do well to heed the sound admonition of United States v. Ventresca, 380 U. S. 102 (1965):
“[T]he Fourth Amendment‘s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court‘s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tеsted and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.” 380 U. S., at 108.
Aguilar in no way departed from these sound principles. There a warrant was issued on nothing more than an affidavit reciting:
“Affiants have received reliable information from a credible person and do believe that heroin, mari-
juana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law.” 378 U. S., at 109.
The affidavit, therefore, contained none of the underlying “facts or circumstances” from which the magistrate could find probable cause. Nathanson v. United States, 290 U. S. 41, 47 (1933). On the contrary, the affidavit was a “mere affirmation of suspicion and belief” (Nathanson, supra, at 46) and gained nothing by the incorporation by reference of the informant‘s unsupported belief. See Aguilar, supra, at 114 n. 4.
Significantly, the Court in Aguilar cited with approval the affidavit upheld in Jones v. United States, 362 U. S. 257 (1960). That affidavit read in pertinent part as follows:
“In the late afternoon of Tuesday, August 20, 1957, I, Detective Thomas Didone, Jr. received information that Cecil Jones and Earline Richardson were involved in the illicit narcotic traffic and that they kept a ready supply of heroin on hand in the above mentioned apartment. The source of information also relates that the two aforementioned persons kept these same narcotics either on their person, under a pillow, on a dresser or on a window ledge in said apartment. The source of information goes on to relate thаt on many occasions the source of information has gone to said apartment and purchased narcotic drugs from the above mentioned persons and that the narcotics were secreted [sic] in the above mentioned places. The last time being August 20, 1957.” Id., at 267-268, n. 2.
The substance of the tip, held sufficient in Jones; closely parallels that here held insufficient by the Court
The Court of Appeals seems to have believed, however, that there was no substantial basis for believing that the tip was truthful. Indeed, it emphasized that the affiant had never alleged that the informant was truthful, but only “prudent,” a word that “signifies that he is circumspect in the conduct of his affairs, but reveals nothing about his credibility.” 412 F. 2d, at 797-798. Such a construction of the affidavit is the very sort оf hypertechnicality—the “elaborate specificity once exacted under common law“—condemned by this Court in Ventresca. A policeman‘s affidavit “should not be judged as an entry in an essay contest,” Spinelli, supra, at 438 (Fortas, J., dissenting), but, rather, must be judged by the facts it contains. While a bare statement by an affiant that he believed the informant to be truthful would not, in itself, provide a factual basis for crediting the report of an unnamed informant, we conclude that the affidavit in the present case contains an ample factual basis for believing the informant which, when coupled
II
In determining what quantum of information is necessary to support a belief that an unidentified informant‘s information is truthful, Jones v. United States, supra, is a suitable benchmark. The affidavit in Jones recounted the tip of an anonymous informant, who claimed to have recently purchased narcotics from the defendant at his apartment, and described the apartment in some detail. After reciting the substance of the tip the affiant swore as follows:
“Both the aforementioned persons are familiar to the undersigned and other members of the Narcotic Squad. Both have admitted to the use of narcotic drugs and display needle marks as evidence of same.
“This same information, regarding the illicit narcotic traffic, conducted by [the defendant] has been given to the undersigned and to other officers of the narcotic squad by other sources of information.
“Because the source of information mentioned in the opening paragraph has given information to the undersigned on previous occasion and which was correct, and because this same information is given by other sources does believe that there is now illicit narcotic drugs being secreted [sic] in the above apartment....” Id., at 268 n. 2.
Mr. Justice Frankfurter, writing for the Court in Jones, upheld the warrant. Although the information in the affidavit was almost entirely hearsay, he concluded that
“Corroboration through other sources of information reduced the chances of a reckless or prevaricating tale; that petitioner was a known user of narcotics made the charge against him much less subject to scepticism than would be such a charge against one without such a history.” Id., at 271.
Aguilar сannot be read as questioning the “substantial basis” approach of Jones. And unless Jones has somehow, without acknowledgment, been overruled by Spinelli, there would be no basis whatever for a holding that the affidavit in the present case is wanting. The affidavit in the present case, like that in Jones, contained a substantial basis for crediting the hearsay. Both affidavits purport to relate the personal observations of the informant—a factor that clearly distinguishes Spinelli, in which the affidavit failed to explain how the informant came by his information. Both recite prior events within the affiant‘s own knowledge—the needle marks in Jones and Constable Johnson‘s prior seizure in the present case—indicating that the defendant had previously trafficked in contraband. These prior events again distinguish Spinelli, in which no facts were supplied to support the assertion that Spinelli was “known . . . as a bookmaker, an associate of bookmakers, a gambler, and an associate of gamblers.” Spinelli, supra, at 422.
To be sure there is no averment in the prеsent affidavit, as there was in Jones, that the informant had previously given “correct information,” but this Court in Jones never suggested that an averment of previous reliability was
We cannot conclude that a policeman‘s knowledge of a suspect‘s reputation—something that policemen frequently know and a factor that impressed such a “legal technician” as Mr. Justice Frankfurter—is not a “practical consideration of everyday life” upon which an officer (or a magistrate) may properly rely in assessing the reliability of an informant‘s tip. To the extent that Spinelli prohibits the use of such probative information, it has no support in our prior cases, logic, or experience and we decline to apply it to preclude a magistrate from relying on a law enforcement officer‘s knowledge of a suspect‘s reputation.
III
Quite apart from the affiant‘s own knowledge of respondent‘s activities, there was an additional reason for crediting the informant‘s tip. Here the warrant‘s affidavit recited extrajudicial statements of a declarant, who feared for his life and safety if his identity was revealed, that over the past two years he had many times and recently purchased “illicit whiskey.” These statements were against the informant‘s penal interest, for he thereby admitted major elements of an offense under the Internal Revenue Code.
Common sense in the important daily affairs of life would induce a prudent and disinterested observer to credit these statements. People do not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions. Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility—sufficient at least to support a finding of probable cause to search. That the informant may be paid or promised a “break” does
It may be that this informant‘s out-of-court declarations would not be admissible at respondent‘s trial under Donnelly v. United States, 228 U. S. 243 (1913), or under Bruton v. United States, 391 U. S. 123 (1968). But Donnelly‘s implication that statements against penal interest are without value and per se inadmissible has been widely criticized; see the dissenting opinion of Mr. Justice Holmes in Donnelly, supra, at 277; 5 J. Wigmore, Evidence § 1477 (3d ed. 1940), and has been partially rejected in Rule 804 of the Proposed Rules of Evidence for the District Courts and Magistrates. More important, the issue in warrant proceedings is not guilt beyond reasonable doubt but probable cause for believing the occurrence of a crime and the secreting of evidence in specific premises. See Brinegar v. United States, supra, at 173. Whether or not Donnelly is to survive as a rule of evidence in federal trials, it should not be extended to warrant proceedings to prevent magistrates from crediting, in all circumstances, statements of a declarant containing admissions of criminal conduct. As for Bruton, that case rested on the Confrontation Clause of the Sixth Amendment which seems inapposite to ex parte search warrant proceedings under the Fourth Amendment.
It will not do to say that warrants may not issue on uncorroborated hearsay. This only avoids the issue of whether there is reason for crediting the out-of-court statement. Nor is it especially significant that neither
Reversed.
MR. JUSTICE STEWART joins in Part I of THE CHIEF JUSTICE‘S opinion and in the judgment of the Court.
MR. JUSTICE WHITE agrees with Part III of THE CHIEF JUSTICE‘S opinion and has concluded that the affidavit, considered as a whole, was sufficient to support issuance of the warrant. He therefore concurs in the judgment of rеversal.
MR. JUSTICE BLACK, concurring.
While I join the opinion of THE CHIEF JUSTICE which distinguishes this case from Aguilar v. Texas, 378 U. S. 108 (1964), and Spinelli v. United States, 393 U. S. 410 (1969), I would go further and overrule those two cases and wipe their holdings from the books for the reasons, among others, set forth in the dissent of Mr. Justice Clark in Aguilar, which I joined, and my dissent in Spinelli.
MR. JUSTICE BLACKMUN, concurring.
I join the opinion of THE CHIEF JUSTICE and the judgment of the Court, but I add a personal comment in order to make very clear my posture as to Spinelli v. United States, 393 U. S. 410 (1969), cited in several places in that opinion. I was a member of the 6-2 majority of the United States Court of Appeals for the Eighth Circuit in Spinelli v. United States, 382 F. 2d 871 (1967), which this Court by a 5-3 vote reversed, with the pivotal Justice concluding his con-
MR. JUSTICE HARLAN, with whom MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR. JUSTICE MARSHALL join, dissenting.
This case presents the question of how our decisions in Aguilar v. Texas, 378 U. S. 108 (1964), and Spinelli v. United States, 393 U. S. 410 (1969), apply where magistrates in issuing search warrants are faced with the task of assessing the probable credibility of unidentified informants who purport to describe criminal activity of which they have personal knowledge, and where it does not appear that such informants have previously supplied accurate information to law enforcement officers.
I cannot agree that the affidavit here at issue provided a sufficient basis for an independent determination, by a neutral judicial officer, that probable cause existed. Accordingly, I would affirm the judgment of the Court of Appeals. Five members of this Court, however, for four separately expressed reasons, have concluded that the judgment below must be reversed. Some of the theories employed by those voting to reverse are wholly unlike any of the grounds urged by the Government.
Where, as in this case, the affiant states under oath that he has been informed of the existence of certain criminal activity, but has not observed that activity himself, a magistrate in discharging his duty to make an independent assessment of probable cause can properly issue a search warrant only if he concludes that: (a) the knowledge attributed to the informant, if true, would be sufficient to establish probable cause; (b) the affiant is likely relating truthfully what the informer said; and (c) it is reasonably likely that the informer‘s description of criminal behavior accurately reflects reality.1
In the case before us, no one maintains that the magistrate‘s judgment as to elements (a) and (b) was not properly supported. Plainly the information set forth in the affidavit, if entitled to credit, establishes probable cause. And the magistrate was certainly entitled to rely on the agent‘s official status, his personal observation of the agent, and the oath administered to him by the magistrate in cоncluding that the affiant‘s assertions as to what he had been told by the informer were credible.
The final component of the probable cause equation, here involved, is that it must appear reasonably likely that the informer‘s claim that criminal conduct has occurred or is occurring is probably accurate. Our
The parties are in agreement with these principles and have not urged that they be re-examined. Indeed, I think these precepts follow ineluctably from the constitutional command that “no Warrants shall issue, but upon probable cause.” Whether, in this case, either of
II
Although the Court of Appeals did not address itself to this contention, respondent claims that the affidavit is insufficient to establish the reliability of the evidence upon which the informant based his conclusions. Of course, most of these data come from alleged direct personal observation of the informant, surely a sufficient basis upon which to predicate a finding of reliability under any test. However, respondent stresses that the allegation of direct observation of the criminal activity does not necessarily purport to embrace a period less than two weeks prior to the issuance of the search warrant. Moreover, the reliability of the source of the information that a purchase was made “within the past two days” is not established and, it is argued, the other information was too stale to support the issuance of a warrant.
This argument is premised upon an overly technical view of the affidavit. The informant is said to have personally bought illegal whiskey from respondent “within the past 2 weeks,” which could well include a point in time quite close to the issuance of the warrant. More importantly, the totality of the tip evidently reveals that the informer purported to describe an ongoing operation which he claimed he had personally observed over the course of two years. Giving due deference to the magistrate‘s determination of probable cause and reading the affidavit “in a commonsense and realistic fashion,” United States v. Ventresca, 380 U. S. 102, 108 (1965), I must conclude that the affidavit sets forth sufficient data to permit a magistrate to determine that, if the informer was likely telling the truth, information adequate to support a finding of probable cause was likely obtained in a reliable fashion.
I turn, then, to what the parties have treated as the crux of the controversy before us. Respondent contends, and the Court of Appeals so held, that the affidavit does not sufficiently sеt forth facts and circumstances from which the magistrate might properly have concluded that the informant, in purporting to detail his personal observation, was probably telling the truth. Conversely, the Government principally argues that two factors, singly or in combination, provided a factual basis for the magistrate‘s judgment that the tip was credible. First, the agent stated that he had “interviewed this person [and] found this person to be a prudent person.” Second, the informant described the criminal activity in some detail and from his own personal knowledge.3
A
The Government‘s first contention misconceives the basic thrust of this Court‘s decisions in the Nathanson, Giordenello, Aguilar, Spinelli, and Whiteley cases, supra. The central proposition common to each of these decisions is that the determination of probable cause is to be made by the magistrate, not the affiant. That the agent-affiant determined the informer to be prudent cannot be a basis for sustaining this warrant unless magistrates аre entitled to delegate their responsibilities to law enforcement officials. Nathanson held that an affidavit
B
Nor do I think this void is filled by the fact that the informant claimed to speak from his personal knowledge.
This is not to say, however, that I think the fact of asserted personal observation can never play a role in determining whether that observation actually took place. I can perceive at least two ways in which, in circum-
Additionally, it might be of significance that the informant had given a more than ordinarily detailed description of the suspect‘s criminal activities. Although this would be more probative of the reliability of the information, it might also permissibly lead a magistrate, in an otherwise close case, to credit the accuracy of the account as well. I do not believe, however, that in this instance the relatively meager allegations of this character are, standing alone, enough to satisfy the credibility requirement essential to the sufficiency of this probable-causе affidavit. Reading this aspect of the affidavit in a not unduly circumspect manner, the allegations are of a character that would readily occur to a person prone to fabricate. To hold that this aspect of the affidavit, without more, would enable “a man of reasonable caution,” Berger v. New York, 388 U. S. 41, 55 (1967), to conclude that there was adequate reason to believe the informant credible would open the door to the acceptance of little more than florid affidavits as justifying the issuance of search warrants.
Some members of the Court would reverse the judgment below on the grounds that the magistrate might properly have credited the informant‘s assertions because they confessed to the commission of a crime. This rationale is advanced notwithstanding the Government‘s failure even to suggest it.
Had this argument been pressed upon us, I would find it difficult to accept. First, the analogy to the hearsаy exception is quite tenuous. The federal rule, although it is often criticized, is that declarations against penal interest do not fall within this exception. Donnelly v. United States, 228 U. S. 243 (1913). Moreover, because it has been thought that such statements should be relied upon by factfinders only when necessity justifies it, the rule universally requires a showing that the declarant cannot be produced personally before the trier of fact, C. McCormick, Evidence §§ 253, 257 (1954), an element not shown to be present here. See Part V, infra. Finally, we have not found any instance of the application of this rule where the witness declined to reveal to the trier of fact the identity of the declarant, presumably because without this knowledge it cannot be readily assumed that the declarant might have had reason to suspect the use of the statement would do him harm. Thus, while strict rules of evidence certainly do not govern magistrates’ assessments of probable cause, it would require a rather extensive relaxation of them to permit reliance on this factor. And these rules cannot be completely relaxed, of course, since the basic thrust of Spinelli, Aguilar, Nathanson, Whiteley, and Giordenello, supra, is to prohibit the issuance of warrants upon mere uncorroborated hearsay. The simple statement by an affiant that an unspecified individual told the affiant that he and another had committed a
Secondly, the rationale for this exception to the hearsay rule is that the fact that the declaration was against the speaker‘s self-interest tends to indicate that its substance is accurate. 5 J. Wigmore, Evidence § 1457 (3d ed. 1940). But where the declarant is also a police informant it seems at least as plausible to assume, without further enlightenment either as to the Government‘s general practice or as to the particulаr facts of this case, that the declarant-confidant at least believed he would receive absolution from prosecution for his confessed crime in return for his statement. (This, of course, would not be an objection where the declarant is not also the informant. See Spinelli, supra, at 425 (WHITE, J., concurring).) Thus, some showing that the informant did not possess illusions of immunity might well be essential.
Thirdly, the effect of adopting such a rule would be to encourage the Government to prefer as informants participants in criminal enterprises rather than ordinary citizens, a goal the Government specifically eschews in its brief in this case upon the explicit premise that such persons are often less reliable than those who obey the law. Brief for the United States 14.
In short, I am inclined to the view, although I would not decide the question here, that magistrates may not properly predicate a determination that an unnamed confidant is credible uрon the bare fact that by giving information he also confessed to having committed a crime. More importantly at this juncture, it seems to me quite clear that no such rule should be injected into our federal jurisprudence in the absence of any representation by the Government that the factual assumptions underlying it do, indeed, comport with reality, and in the face of the Government‘s apparent explicit assertion, in this very
IV
Finally, it is argued that even if the tip plus the affiant‘s assertion that the informant was “prudent” did not provide a reasonable basis for the magistrate‘s conclusion that the cоnfidant was credible, two other factors would have sufficed. First, at some time in the past four or more years, in an abandoned house “under Harris’ control,” the local constable had located “a sizeable stash of illicit whiskey.” While an assertion of “prior events within the affiant‘s own knowledge . . . indicating that the defendant had previously trafficked in contraband,” ante, at 581, admittedly did not appear in the affidavit held insufficient in Spinelli, this hardly distinguishes that case in any purposeful manner. Surely, it cannot seriously be suggested that, once an individual has been convicted of bootlegging, any anonymous phone caller who states he has just personally witnessed another illicit sale (up to four years later) by that individual provides federal agents with probable cause to search the suspect‘s home. I can only conclude that this argument is a makeweight, intended to avoid the necessity of calling for an outright overruling of Spinelli.
Secondly, the сlaim is made that a magistrate could conclude the confidant here was credible because the agent had “received numerous information from all types of persons as to [respondent‘s] activities.” To rely on this factor alone, of course, is flatly inconsistent with Spinelli, where we held that “the allegation that Spinelli was ‘known’ to the affiant and to other federal and local
Nevertheless, the contention is advanced that this aspect of Spinelli had “no support in our prior cases, logic, or experience,” ante, at 583, and thus should be discarded. However; Nathanson held that “[m]ere affirmance of belief or suspicion is not enough” to establish probable cause for issuance of a warrant to search a private dwelling. 290 U. S., at 47. It is argued that Nathanson “was limited to holding that reputation, standing alone, was insufficient.” Ante, at 582. But this is the precise problem here—only the respondent‘s reputation has been seriously invoked to establish the credibility of the informant, an element of probable cause entirely severable from the requirement that the confidant‘s source be reliable. See Parts I and III of this opinion.
A narrower view of Nathanson is said to be confirmed by reading Brinegar v. United States, 338 U. S. 160 (1949), to have “held proper the assertion of the searching officer that he had previously arrested the defendant for a similar offense and that the defendant had a reputation for hauling liquor.” Ante, at 582. But Brinegar itself was very carefully limited to situations involving the arrest of those driving moving vehicles, 338 U. S., at 174, 176–177, a problem that has typically been treated as sui generis by this Court. Further, the Court in Brinegar specifically held the arrest valid “[w]holly apart from [the agent‘s] knowledge that [the suspect] bore the general reputation of being engaged in liquor running.” Id., at 170. While it is true that Jones v. United States, 362 U. S. 257, 271 (1960), cites the fact that the in-
Thus, I conclude that Spinelli and Nathanson, without contradiction, stand for the proposition that the magistrate could not establish the likely veracity of the unidentified informant on the grounds that his story coincided, in unspecified particulars, with rumors circulated by unknown third parties. I am not certain what is meant by the claim that such a rule of law is illogical. It would, indeed, be illogical to argue that the agent could not have relied upon information as to respondent‘s reputation that he deemed credible and reliable in concluding that the informant had likely told the truth. But it was not the agent‘s task to determine whether a search warrant should issue. This was the magistrate‘s responsibility. As to the magistrate, I confess that I do not comprеhend, where the issue is whether the confidant is to be believed, how the agent‘s assertion that he had “received numerous information from all types of persons as to [respondent‘s] activities,” can, as a matter of logic or experience, be accurately described as other than “a bald and unilluminating assertion of suspicion.” It is, at best, a conclusory statement that respondent had a deserved reputation as a dealer in illicit whiskey. The Fourth Amendment, I repeat, requires that such conclusions be drawn, from the underlying facts and circumstances, by the magistrate, not the agent.
V
The Government has earnestly protested that the result below, if permitted to stand, will seriously hamper the
I do not, however, share the Government‘s concern that a judgment of affirmance would have such a constricting-effect on legitimate federal law enforcement. For example, it would sеem that such informers could often be brought before the magistrate where he could assess their credibility for himself. We cannot assume that the ordinary law-abiding citizen has qualms about this sort of cooperation with law enforcement officers. And I do not understand the Government to be asserting
Beyond these considerations, I do not understand why a federal agent, who has determined a confidant to be “reliable,” “credible,” or “prudent” cannot lay before the magistrate the grounds upon which he based that judgment. I would not hold that a magistrate‘s determination that an informer is “prudent” is insufficient to support the issuance of a warrant. To the contrary, I would only insist that this judgment be that of the magistrate, not the law enforcement officer who seeks the warrant. Without violating the confidences of his source, the agent surely could describe for the magistrate such things as the informer‘s general background, employment, personal attributes that enable him to observe and relate accurately, position in the community, reputation with others, personal connection with the suspect, any circumstances which suggest the probable absence of any motivation to falsify, the apparent motivation for supplying the information, the presence or absence of a criminal record or association with known criminals, and the like.
VI
This affidavit is barren of anything that enabled the magistrate to judge for himself of the credibility of the informant. We should not countenance the issuance of a search warrant by a federal magistrate upon no more evidence than that presented here. A person who has not been shown to possess any of the common attributes of credibility, whose name cannot be disclosed to a magistrate, and whose information has not been corroborated is precisely the sort of informant whose tip should not be the sole basis for the issuance of a warrant, if the constitutional command that “no Warrants shall issue, but
For these reasons, I dissent.