*1 v. ILLINOIS. McCRAY January 10-11, Argued March No. 159. 1967. Decided argued petitioner. cause for Eugene Pincham R. Adam, Charles Evins on the briefs were Sam B. himWith Strayhom. E. Earl *2 Illi- Attorney O’Toole, General of John J. Assistant him the respondent. for With on the cause nois, argued Clark, Attorney and General, William G. brief were Michael, Attorney A. Assistant General. Richard E. Lynch, General, C. Attorney William Thomas Younger Attorney General, Evelle James, and J. Assistant as California, for the amicus curiae. filed a brief State opinion delivered the the Court. Mr. Justice Stewart Chicago, arrested in on Illinois, The was petitioner for January possession of narcotics. morning Chicago officers who the arrest a police The made found containing person on his was package heroin and he possession. for its Prior to unlawful trial he filed indicted a to suppress against him, motion the heroin as evidence it in claiming acquired had an unlawful search and seizure in of the Fourth and Four- violation Ohio, teenth Mapp Amendments. See 643. hearing, After a the court motion, denied the petitioner was subsequently convicted the evidence of the heroin the arresting officers had found in possession. The judgment was conviction affirmed Supreme Illinois,1 granted Court of and wé certiorari petitioner’s claim the hearing on his consider suppress motion to constitutionally defective.2 The petitioner’s arrest occurred near the intersection of 49th Street and Calumet Avenue at about seven in the morning. hearing At the on the motion to suppress, he that up testified until a half hour before he was arrested he had been at “a friend’s house” about a block away, E. 1 33 2d, Ill.

210N. 2d 2 384 U.S. had “walked house he friend’s leaving the after that, Park,” South 48th 48th .and lady from Avenue, and Calumet “[t]he Street 49th approached he alley.” of through the “The going me stopped Officers for ame search warrant “did not show said, ficers,” said my arrest.” He or an arrest warrant my person him the narcotics then and found the officers searched identify the “friend” did question.3 petitioner as a “lady,” appeared and neither them witness. officers then testified. Officer Jackson he and two fellow

stated that officers had had conversa- tion morning January with an informant police car. The their unmarked officer said that with, informant had told them that petitioner, whom *3 was acquainted, selling “was narcotics had and Jackson narcotics on his person and that he be could found-in the vicinity of 47th and Calumet at this particular time.”. Jackson said that he and his fellow officers drove to that vicinity in police the car and that they when spotted the (cid:127) petitioner, the pointed informant him out and then departed on foot. Jackson stated that the officers observed petitioner the walking with a woman, then separating from her and' meeting briefly with a man, then proceeding alone, and finally, after seeing police the car, “hurriedly walking] between two buildings.” “At this point,” Jackson testified, “my partner myself got and out of the car and informed him we had information he had narcotics on his placed person, him in police the vehicle at this point.” Jackson stated that the officers then searched 3 The weather was cold,” “real petitioner and the testified he “had on three coats.” In order to conduct search, the the required petitioner officers the to remove some of his clothing, but petitioner’s even the version of the circumstances of the search did any not disclose remotely conduct akin to that condemned Court, this in California, Rochin v. 342 U. S. 165. a cigarette package. found the heroin petitioner the and with acquainted testified that had been Jackson during this that approximately year, informant the for information with him period supplied the informant had “fifteen, least,” sixteen times at narcotics about activities be accurate the and had that proved information had cross- convictions. On resulted numerous arrests examination, the specific was even more Jackson previous reliability, giving the names informant’s people who had been convicted of narcotics violations as the of information the had supplied. result informant When Jackson the for name and asked informant’s address, the objection for State objected, counsel and the was sustained by the court.4

Officer the gave Arnold same account substantially search, arrest petitioner’s circumstances stating that informant had told petitioner selling “was narcotics and had narcotics on his

4“Q. gave you What name this informant this information? Engerman:

“Mr. Objection, Your Honor. “The Court: your objection. State the record the reasons for “Mr. testimony Engerman: Judge, based of the officer so far they had this year, for approximately used informant he has with individual, public, worked this in the interest I see no why reason officer should forced disclose name of the harm informant, to cause jeopardy to an individual cooperated who has City Chicago police. with have a problem tremendous If are *4 narcotics. not able withhold the name of get they will not be able informant They informants. willing to risk are their lives their names become known.

“In the, City interest of and the law enforcement of this community, I feel the officer should not be forced to reveal the name People informant. I also And cite vs. Durr.

“The Court: I will sustain that. Q.

“Mr. Adam: Where does this informant live? Engerman: Objection, your

“Mr. Honor, same basis.

“The Court: Sustained.” vicinity of 47th and Calumet.” in the now

person he had observed testified, [the “said Arnold informant, meaning people, to various selling narcotics petitioner] area of 47th and Calumet.” in the addicts, various informant known the that he had testified Arnold him given informant had years,” two “roughly “20 or and times,” narcotics concerning information Arnold convictions. information had resulted for the informant’s too was on cross-examination asked were address, objections questions and name and these by sustained the court. ,upon

There can be the basis of the circum doubt, Arnold, stances related Officers Jackson and there cause to sustain arrest incidental States, search in this case. United Draper v. Ohio, the situation in Beck Unlike S.U.

89, each spec this case described with ificity actually “what the informer said, why the thought officer the information was credible.” 379 S.,U. testimony at 97. of each of the officers informed of the “underlying court from circumstances which the informant concluded that the narcotics were where he they were, claimed and some of the underlying circum stances from which officer concluded that the inform ” ant . . . was ‘credible’ or his information ‘reliable.’ Aguilar Texas, S. 108, U. 114. See United States Ventresca, 380 U. S. 102. Upon the basis of those along circumstances, with the officers’ personal . observa of the petitioner, tions. fully court was justified in holding that at the time the officers made the arrest “the facts and circumstances within their knowledge they and of which had reasonably trustworthy informa tion were sufficient to warrant a prudent in believ man ing that the petitioner had committed or was committing Brinegar offense. v. United States, 338 U. S. 160, 175-176;Henry v. United States, 361 U. S. 98, 102.” Beck

305 claim, how- Ohio, petitioner’s It is the supra, 91. v. testimony fully sworn the officers’ though that even ever, for the arrest and cause finding supported - violated the Constitu- nonetheless state court search, the petitioner’s ques- objections to it sustained tion when cannot of the informant. We as to the tions . agree. the informant’s

In the officers withhold permitting Illinois law. following well-settled the court was identity, guilt but, here, innocence, or When the issue not for or search, an arrest question probable-cause need Supreme Illinois has held that invariably required an informant’s disclose the trial sub- judge convinced, evidence in open mitted subject cross-examination, court and rely good the officers did faith credible supplied by information This a reliable informant.5 Illinois evidentiary rule is consistent with law of many other States.6 In California, Legislature the State in 1965 enacted a adopting statute just such a rule cases like the one before us: any preliminary hearing,

“[I]n trial, criminal other criminal proceeding, for any violation of provi- sion of Division 10 (commencing 11000) with Section of the Health Safety Code, evidence of informa- 5People Durr, v. 28 308, Ill. 2d 192 379; People N. E. 2d v. Nettles, 52, 34 Ill. 2d 536; 213 N. People Connie, E. 2d v. 34 2d Ill. 353, 280; 215 People N. E. 2d Freeman, v. 362, 34 Ill. 2d 215 N. E. People 206; Miller, 2d 527, v. 34 Ill. 2d 216 N. E. 2d 793. Cf. People Pitts, v. 26 395, Ill. People 2d 186 357; Parren, N. 2dE. v. 572, 24 Ill. 2d 182 N. E. 2d 662. 6 Cookson, State v. (Mo. 361 S. Sup. Ct.); W. 2d 683 Simmons v. State, 587, 198 487; People Tenn. 281 S. Coffey, W. 2d v. 12 N. Y. 2d 191 N. 2d People E. 263. But see Malinsky, 15 N. 2dY. 86, 209 N. Liban, E. 2d 694. Stelloh Cf. 21 119, 124 Wis. 2d N. W. 101; State, 2d Baker (Fla. 2d App.); So. Boles, State v. N. C. 97 S. 2d E. by a confiden- officer peace ato

tion communicated *6 witness to not a material informant, who tial of the offense the accused or innocence of guilt of reason- issue shall be admissible charged, re- without arrest or search to make an cause able the informant or of that name quiring satisfied, magistrate if or judge be disclosed court, out of produced open in evidence upon based of that such information jury, presence in from a reliable informant and his dis- received such California require cretion does not disclosure.” 1042 (c).7 § Code Evid. reasoning Supreme in Jersey Court of New evidentiary

judicially adopting the same basic rule was instructively expressed Chief in Justice Weintraub Burnett, State 39: N. J. A. 2d “If a may defendant upon insist disclosure of the informant order test the of the truth officer’s that is an there or as informant to what statement the informant related as to the informant’s re- liability, we can be sure that every defendant will demand He has nothing disclosure. to lose prize may be the suppression of damaging if evidence the State cannot afford to reveal its source, as is so often the case. And since there is way to test the good faith of a defendant who presses the demand, we must assume the routine demand would have to be routinely granted. The result would be that the State could use the informant’s information only as present In case California helpful has filed brief, amicus advising us that validity provision of this is now before the Supreme Court Martin Superior California. (LA 29078). The statute was modify enacted to that court’s decision Priestly Superior Court, 50 Cal. 2d 812, 330 P. 2d 39. See also City Ford v. Jackson, 153 Miss. 121 So. 278. only gather ade- search it could and could a lead from the apart cause evidence quate Perhaps approach would informant’s data. investigatorial we doubt sharpen techniques, but to cope be enough talent and time there would wp accept Rather upon with crime that basis. part society’s the informer is a vital premise protecting defensive arsenal. basic rule rests that belief. dealing “We must remember also that we are not charge the trial the criminal itself. There the need for a truthful outweighs society’s verdict privilege. need the informer Here, however, *7 the accused seeks to very avoid the truth. purpose of a to suppress escape motion is to inculpatory of thrust in hand, evidence not because probative its force is by diluted in the least the mode (cid:127)of seizure, but rather as a sanction to compel en- forcement officers to respect the constitutional se- curity all of us under the Fourth Amendment. Smith, State 37 N. J. (1962). If motion to suppress is denied, defendant will still be judged upon the untarnished truth.

“The Fourth Amendment is judicial served passes mind upon the existence cause. Where the issue is upon an application submitted for a warrant, the magistrate is trusted to evaluate parte credibility of the affiant in an ex proceed- ing. As we havé said, magistrate is concerned, not with whether the informant lied, with but (cid:127) whether the affiant is truthful his recitation of what he was told. If the magistrate doubts .the credibility of the , affiant, he may require that It seems even produced. identified

informant is sufficient equally approach same us - is to warrant, was without search where who judge entirely with rest it should say, that he whether to decide suppress motion hears in order to the such disclosure informant needs witness.” is a believable the officer whether to decide 2d, 43-45. A. 385-388, 201 J., at 42 N. is no doné have her States sister Illinois and

What priv- testimonial a well-established recognize more than Professor law of evidence. to the long familiar ilege, of testi- as an advocate enthusiastic not known Wigmore, privilege has generally,8 described privileges monial in these words: prin- . on . . fundamental genuine privilege,

“A recognized must be for the ciple , . . . government persons supplying information concerning commission crimes. Communica- ought encouragement. kind to receive tions this discouraged They are if the informer’s Whether an informer disclosed. motivated good citizenship, promise leniency or prospect of pecuniary reward, will usually condition cooperation on an of anonymity assurance pro- —to himself his family tect from harm, preclude *8 adverse social reactions and avoid risk of defamation or prosecution malicious actions against him. The government has also an interest in non- disclosure of the identity of its informers. Law enforcement officers depend often upon professional informers to furnish them with a flow of information criminal about activities. Revelation of the dual played role such by persons ends their usefulness 8 Wigmore, 8 See Evidence (McNaughton §2192 1961). rev.

309 discourages others from government to the relationship. entering into a like well privilege has this government “That cannot be established, questioned.” and its soundness omitted.) Wigmore, § Evidence 2374 (Footnotes 8 1961), (McNaughton rev.

In the of evidence in criminal federal courts rules governed “by the principles trials are the common law they may be interpreted the courts of the United light in experience.” States of reason and This Court, has therefore, defining the ultimate task scope to be accorded to the various common law eviden- tiary privileges in the trial of federal criminal See cases. States, Hawkins v. United 358 U. S. 74. This is a task which is quite different, course, from the responsibility adjudication. constitutional In the exercise of this supervisory jurisdiction years the Court had occasion 10 States, Roviaro United in ago, give S.U. thorough aspect consideration to one of the informer’s privilege, privilege having itself long been recognized in the judicial system.10 federal

The Ruviaro case involved the privilege, not at a preliminary hearing to determine cause arrest search, at but the trial itself where the fundamental, issue was the one of or guilt. innocence petitioner there had been brought to trial a two- count federal charging indictment sale and transporta- tion of According narcotics. prosecution’s to the evi- dence, the informer had been. an active participant He “had taken a crime. part material bringing possession about drugs of certain by the accused, present had been with the accused the occurrence of Rule Fed. Rules Crim. Proc. States, 10 SeeScher United re Quarles 251; In & Butler, Vogel 532; Gruaz, 110 U. S. *9 be a to crime, might material witness as alleged

the drugs the knowingly transported the accused whether court nonetheless at 55. trial charged.” S.,U. to compel prosecution motion to a defense deniéd identity. informer’s disclose the of a an trial where, held that actual This Court case, federal criminal rele- identity of an ...

“the disclosure an helpful accused, the defense of to vant to of a cause, a fair determination is essential situations give way. must In these privilege and, may require court disclosure trial information, withholds the dismiss the Government action. ... respect believe rule with

“We fixed justifiable. is one that problem disclosure is protecting balancing public interest calls for against right the individual’s flow of information proper his defense. Whether a balance prepare depend nondisclosure erroneous must on the renders into case, taking each particular circumstances possible the crime de- consideration charged, significance possible of the informer’s fenses, S., factors.” testimony, and other relevant U. omitted.) (Footnotes 60-61, opinion carefully then par- The Court’s reviewed trial, pointing of Roviaro’s ticular circumstances out that “possible testimony was highly the informer’s rele- “might that he ,” entrap- . . have disclosed . vant “might thrown ,” upon petitioner’s . have doubt ment . . package ,” “might, or on the . . . petitioner’s possible knowledge lack of have testified package ‘transported’ that he ...,” the contents was the and that the “informer sole other participant, *10 in accused, charged.” S., than the the transaction 353 U. “that, at 63-64. The concluded under these Court cir-. court error in cumstances, prejudicial trial committed permitting Government identity withhold the its employee repeated undercover in the face of demands by the accused for his disclosure.” 353 IT. 65. S., at

What Roviaro thus makes clear this was Court unwilling impose any absolute rule requiring disclosure of an informer’s even in formulating evidentiary rules for federal criminal Much trials. less has Court approached ever the formulation a federal evidentiary rule of-compulsory disclosure where the issue the pre liminary one guilt and or cause, innocence is at Indeed, stake. we repeatedly not have made clear need not federal disclose an informer’s iden tity applying in or arrest search warrant. As was Ventresca, said in United States v. 108, 380 U. S. 102, we “recognized have that ‘an may affidavit based hearsay information and need not reflect the per direct sonal observations of long so as magistrate affiant/ is ‘informed of some of underlying circumstances’ supporting the affiant’s, conclusions and his belief that ‘whose identity any informant need dis involved ’ closed ... “credible” his information “reliable.” Aguilar Texas, supra, v. (Emphasis added.) 114.” States, Jones v. United See also 271-272; 362 257, States, Rugendorf United v. 376 U. S. 528, 533.11 And 11 applied Some federal courts have rule of same nondisclosure in both warrant nonwarrant Smith States, cases. United App. 833; U. C. States, S. D. 358 F. 2d Jones v. United 326 F. (C. 2d Cir.), denied, 956; A. 9th cert. 377 U. S. United States v. Pickup, (C. Cir.). One Ford Ranchero 265 F. 2d 21 10th A. courts, distinguished however, Other federal have between these two required classes cases have the identification of informants in Robinson, nonwarrant cases. United States (C. 325 F. 2d 391 A. Cir.); States, (C, Cir.). 2d Cochran v. United 291 F. 2d 633 A. 8th States, (C. Cir.). Cf. Wilson United 59 F. 2d 390 A. 3d See point out that taken occasion Term we have just this of informers would virtually the use prohibiting a rule of the in enforcement Government” “severely hamper the States, Lewis v. United narcotics laws. power to

In of its sum, the exercise cases for federal criminal evidentiary rules formulate that an consistently has declined to hold criminal always in a federal be disclosed need hearing to determine trial, preliminary let alone we now or search. Yet are probable cause for an arrest compels hold Constitution somehow asked to *11 from law privilege its Illinois to abolish the informer’s of the informer’s evidence, require of and to disclosure -preliminary hearing in where it every such in appears that the officers made the arrest search by informer upon supplied they facts had reliance argument upon based the reason trust. Due to in as the Basis for Probable Cause the Comment, Informer’s Word (1965). Courts, L. Rev. 840 Federal 53 Calif. drawing of federal courts In distinction some the have relied this States, v. United dictum in Roviaro

upon 53, S. 61: U. a involving scope of federal cases this limitation the “Most the privilege legality the have arisen where the of a search of is in and the communications of an informer without a warrant issue probable to cause. In these are claimed establish cases the Govern- required ment has been to disclose of the informant apart there from his unless was sufficient evidence confidential communication.” Roviaro, probable quoted in

Since was cause issue there clearly Indeed, necessary for statement was decision. an absolute for rule of disclosure cause determinations would conflict upon which the Roviaro case-by-case approach decision Moreover, precedent upon which this was based. dictum was support. States, United only Scher grounded furnishes dubious only 305 U. S. cited, decision this Court which was judge’s arresting to order the trial affirmed officers reveal refusal information'. the source their Amendment,

Process Clause of the Fourteenth right of confrontation, applicable the Sixth Amendment through to the States Amendment. Fourteenth for Texas, no support Pointer v. We find in petitioner’s position either of those constitutional provisions. open in arresting testified, officers this case

court, fully and in what informer precise detail as to why told them and as to reason to they had believe trustworthy. information was Each officer was under oath. Each was cross-examination. subjected searching telling The judge obviously satisfied each was truth, reason the discretion exercised upon him law by conferred the established of Illinois to respect privilege. the informer’s

Nothing in the Due Clause Process Fourteenth Amendment a requires judge state in every court such committing are hearing- assume the “To take perjury. step quite beyond such would be pale proper this Court’s function in our federal It system. wholly unjustifiable would be encroach- upon. this ment the. constitutional power promulgate own States to their rules evidence ... Texas, their own state . . . .” Spencer courts 568-569. *12 petitioner explain does not precisely hotf he thinks right Sixth Amendment to cross- confrontation and examination was by recognition violated the Illinois’ privilege informer’s this case. If the claim is that the Sixth by the State violated produc- Amendment ing testify against informer to the petitioner, then repeat we no more need than the Court’s answer to ago claim a few weeks in Cooper v. California: -presents “Petitioner also the contention here that was unconstitutionally deprived right to against a him, confront witness because the State him. testify against informant did not produce - absolutely devoid we consider This contention Ante, 68, p. n. merit.”. petitioner bemay the claim that the hand,

On the- other right Amendment deprived of his Sixth cross- their themselves, because examine the But upheld. identity was refusal to reveal the witness argument from this it would follow n a assert constitutionally cross-examination could ever against com- including privilege privilege, testimonial by the Constitu- guaranteed pulsory self-incrimination Sixth Amendment given never tion itself.. haveWe. now. do so construction, we decline such

Affirmed. Justice, Douc&as, MR. Justice whom Chief concur, Brennan Justice Fortas Mr. Justice" and Mr. dissenting. question concern-

We have here a Fourth Amendment ing a crime police of an If validity arrest. see being culprit. they committed can of course seize the person fleeing If a can crime, police the scene of stop him. there are cases pursuit” And “hot other instances of cause when can' make an normally But an arrest made arrest. should be only on a by magistrate showing warrant issued a- on a “probable cause, supported by affirmation,” oath required by the Fourth Amendment. At least since Mapp Ohio, as much States are bound provisions those as is the Federal Government. But the Fourth they Amendment could fashion the rule for arrests that "the now approves. With all deference, the requirements of the Fourth Amendment now make that conclusion unconstitutional.

No warrant for the petitioner arrest of was obtained in this The police; case. of going instead magistrate to a *13 making showing cause” on their “probable based They, informant’s on own. rather than tip-off, acted their the magistrate, “probable became the arbiters of cause.” process approval The Court’s rewrites effectively the Fourth Amendment. States, 61,

In Roviaro v. United we held 53, U. S. that where a search on the without warrant made basis communications of an informer the. Gov “probable claims the had cause,” ernment dis normally closure of the identity of the informant required. In no other can show an way the defense “probable By absence of Mapp reason of v. .cause.” Ohio, that rule supra, applicable is now to the States. Ohio,

In 89, Beck 96, v. we said: “An arrest bypasses without a warrant the safe- guards objective provided by predetermination of probable cause, and far substitutes instead the less procedure reliable of an justification after-the-event 'for the too search, likely subtly arrest in- by the familiar shortcomings hindsight fluenced judgment.” weighted

For reason we have arrests with wárrants than heavily more arrests without warrants. See Ventresca, 102, United States 'through 380 U. S. 106. Only testimony anyone than other .can persuasiveness officers determine “the of the facts . . .' to Aguilar relied show cause.” Texas, 378 U. S. 108, 113.1 Without that disclosure neither we nor lower can courts ever know whether “probable there was cause” the arrest. Under present decision we leave the Fourth Amendment exclu sively custody police. in the As stated Mr. Durr, dissenting People Justice Schaefer 28 Ill. 318, 2d 192 N. E. 2d 379, 384, unless policeman is disclosed the informer “the himself eon- 1Quoting States, from Giordenello v. United *14 That validity own arrest.” of his

clusively determines California Supreme view of the was the Court, 2d 812, 818, 330 P. Cal. 2d Priestly Superior 39, 43: giving the defend- disclosure and

“Only by requiring contrary impeach- or to present opportunity ant an testimony of the officer’s ing as to truth evidence on the in- of his and the reliance reasonableness a fair former can the make determination court riot requirement of the Such does unreason- issue. to law discourage of information ably the free flow . impede or law enforce- otherwise enforcement compel independent Actually ment. effect is to its given by an investigations to information verify or establish informer to uncover other facts that to make an arrest search.” reasonable cause way reliability determine Old There is produced at trial Reliable, informer, unless he is produced, is the Fourth and cross-examined. Unless tender entrusted mercies Amendment today encourage arrests and police.2 What we do The whole momentum searches without warrants. in precisely be criminal law administration should Amendment, is to remain direction, the Fourth opposite emergency cases, force. rare and it Except a vital findings magistrates “probable to make the requires be mindful of its command cause.”' should We interposed be between mind should judicial We should also mindful citizen. “dis- and the suppression, than relevant materials closure, rather ordinarily proper administration of promotes criminal States, Dennis v. United justice.” 870. to misrepresent It unknown for the officer is not his connection, knowledge informer, of the allegedly reliability, or the information obtained from the informer. Pearce, g., 275 F. 2d See, United States e.