Draper v. United States

PETITIONER:James Draper
RESPONDENT:United States
LOCATION:Union Station

DOCKET NO.: 136
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 358 US 307 (1959)
ARGUED: Dec 11, 1958
DECIDED: Jan 26, 1959
GRANTED: Jun 30, 1958

ADVOCATES:
Leonard B. Sand – for the respondent
Osmond K. Fraenkel – for the petitioner

Facts of the case

John Marsh, a federal narcotics agent, was stationed in Denver and regularly worked with James Hereford, a paid informant. On September 3, 1956, Hereford told Marsh that James Draper had recently moved to Denver and was dealing drugs. Four days later, Hereford informed Marsh that Draper had gone to Chicago to pick up heroin and would be returning by train on either the morning of September 8 or 9. Hereford also provided a detailed description of Draper and the bag he would likely be carrying. On September 9, Marsh and a Denver police agent saw a person exactly matching that description exit a train from Chicago. Marsh and the police officer stopped him and arrested him. In his pocket they found two envelopes containing heroin, and they found a syringe in his bag.

Before his trial, Draper moved to suppress the evidence of the drugs and the syringe as having been secured through an unlawful search and seizure. The district court dismissed the motion after finding that the officers had probable cause to arrest Draper without a warrant and therefore the evidence was the fruit of a lawful search. Draper was tried and convicted of knowingly concealing and transporting drugs. The U.S. Court of Appeals for the Second District affirmed.

Question

Does knowledge provided by an informant give the police probable cause under the Fourth Amendment to arrest and search a suspect?

Hugo L. Black:

Number 136, Draper against the United States.

Mr. Fraenkel.

Osmond K. Fraenkel:

May it please the Court.

This is a federal narcotics conviction here on the question with respect to the admissibility of evidence seized at the time of an arrest without warrant.

The case depends therefore upon the issue whether or not the arresting agent had probably case to make the arrest.

The arrest was made in the railroad station in Denver.

A few days after the arresting agent had received information from an informer, whose identity was disclosed at the trial, the informer in the mean time having conveniently died so that his identity was easily disclosed.

The informer had done this.

He had telephoned the agent saying Draper is a peddler.

Nothing happened after that.

No attempt was made to shuttle Draper.

Few days later the informer calls up again and he says, “Draper has gone to Chicago and will come back in a day or two with narcotics.”

A description of Draper was given to the agent.

Nothing was done then in any attempt to check on Draper’s movements in Chicago.

But the agents, a whole group of them went to the railroad station on each of the succeeding days and watched trains as they came in from Chicago.

And on the second of the two days, they saw a man who answered the description which had been given.

They approached him — or one of the agents approached him, asking his name, the agent testified that he gave a certain name which later turned out not to be his, they then placed him under arrest, searched him and found the heroin.

A motion was timely made to suppress.

The evidence so seized was denied.

The conviction affirmed, with a strong dissent this Court granted certiorari.

Now we contended that this was an improper arrest.

That the agent acted on hearsay that the hearsay was conclusory and more over that there was not even information given to the agent that a crime had in fact been committed but merely information that it was expected that a crime was going to be committed.

The court below recognized that the information given by the informer would not have justified the arrest, the agent at the trial on the appearance to suppress did not testify whether he had enquired of the informer, what basis the informer had for the statements made.

Was he asked that question?

Osmond K. Fraenkel:

He was not asked by anyone.

By either side?

Osmond K. Fraenkel:

By either side.

The government makes some suggestion in its brief here that the defendant should have asked the question but we submit that that is wholly an — out of the question.

The government was in possession of the facts.

If any inquiry had been made by the agent of the informer it was the government’s duty to bring out the facts.

Osmond K. Fraenkel:

I don’t think the defendant was under any obligation whatever to cross-examine on the subject.

The government’s case was simply inadequate in its own presentation of its evidence.

There was no reason why the defendant should anyway seek — supplement the government’s case.

Now, the suggestion is made however by the court below and by the government that the information obtained was corroborated.

Could I ask you this question, supposing the arresting officers after going to the station, observing this man answering the description, instead of arresting, had then gone before a United States Commissioner and made out an affidavit containing facts to prove given to the — for the warrant (Inaudible)

Osmond K. Fraenkel:

I say no.

It may well be that if they had done that at the time and the informer had also gone before the magistrate, the informer might have been able to supplement the conclusory information which he had given and therefore a warrant might have issued.

But I submit that on the mere statement which the agent could have made, there would be no probably cause.

Your position then is that the — the warrant has been obtained, it couldn’t have been obtained on this information because it was hearsay, was it?

Osmond K. Fraenkel:

Because it was — not merely because it was hearsay.

I am reluctant to insist that under no circumstances could hearsay justify an arrest because I can conceive of circumstances.

And this Court has permitted in the case of moving automobiles.

I can conceive of circumstances as in hot pursuit for instance where a bystander — commission of a crime follows the escaping perpetrator of the crime and then tells an officer, “This man shot somebody.

Arrest him.”

Supposing in that —

Osmond K. Fraenkel:

But —

— one other (Inaudible) had narcotics in his possession, would that have been all right?

Osmond K. Fraenkel:

No.

It would not be all right in my opinion in this particular case because the charge — the arrest here was based on the assumption that he was returning from Chicago with narcotics in his possession at that time.

Now — and a warrant might have been obtained on the basis of the informer’s knowledge that an offense had been committed in the past which might justify prosecution, yes.

But here, that wasn’t the basis of the arrest.

And the inference which the government asks this Court to draw was that from the mere circumstance that the informer had given a description which fitted a particular individual and that individual came from a train which had started in Chicago.

And I think I have been somewhat swept away by some of the government’s arguments because I noticed in rereading my reply brief that I sort of assumed that this defendant had been in Chicago.But of course there is nothing to justify that inference.

The mere fact that a train comes from a place doesn’t indicate the person on the train came from the point of origin of the train.

But their argument is the mere fact that he was on a train from Chicago and answered the description justified the inference that while in Chicago he had violated the law.And I say that cannot be done.

Now, many cases have been cited by both sides in lower courts, which are all over the place.

They can’t be reconciled basically.

Some of them can be distinguished on the basis of particular facts in the case.

But I think it will be found that the better reason of all the cases go on the basis that the Second Circuit merely in the case last cited in the government — by the government, at the end of its own brief, namely from where there is information obtained, the agents have a duty to do something and in that particular case after receiving information of pretty much the same kind this was received here, the agents didn’t jump in and make an immediate arrest.

They followed the man.

Osmond K. Fraenkel:

They shadowed him to such a point that the man became aware of the fact that he was being shadowed.

And on a particular occasion when the shadowing continued, made that awareness evident, in other words showed a consciousness of guilt as in for instance in the Husty case decided by this Court also cited by the government.

The element of consciousness of guilt was involved because there, when the agents approached a car, the people in it started to run away.

Now, in such situations where the arresting agents do something to justify an inference that a crime is being committed the arrest maybe a valid one.

But I say that here, where the agents did nothing, you cannot draw any comfort from the circumstances that the individual answered the description, because obviously you never would have an arrest of a person unknown to agents unless somebody was able to give a description, and say at what place he was likely to be.

And if from that mere mechanical fact which has no relation to the commission of crime, whatever, it is proper to draw an inference that a crime has been committed merely because somebody tells an agent that a crime is going to be committed, then I suggest our liberties are pretty far gone.

And it seems to me that this case, without going into the basic question of hearsay, can rest on the proposition, that where information is obtained, it is the duty of the officer to whom the information is given in the first place to ascertain the basis on which the informant gives that information, has that information, and to testify either before a magistrate when seeking a warrant or before a court when the validity of the arrest is in question, to testify with regard to those circumstances.

So, that the magistrate or the court can determine whether that testimony is sufficient, those details are sufficient, to justify an inference in a commission of crime.

And in that respect it seems to me this case is very similar to the Giordenello case decided by this Court in the last term, where information was held insufficient, because conclusory only.

So I say here the probable cause is insufficient, because based only on conclusions, and this case I submit is even stronger than the other one, because in at least in Giordenello, the statement of the complaint was positive that a crime had been committed.

Whereas here this record can be searched in vain for any information given to the arresting officer, that a crime had been committed, all that is claimed is that the informer said he is going to Chicago to buy heroin, and that was several days before he returned.

The agents might have made up to check, they made no efforts.

We submit therefore that the evidence was — the arrest was illegal, that the arrest is illegal, the evidence was improperly received.

Obviously without that evidence, the procession of the heroin, the conviction could not stand.

Then the Giordenello case which (Inaudible) there’s no question whether you could get an arrest warrant (Inaudible)

Osmond K. Fraenkel:

That’s right, but I would say this.

It maybe one thing to permit an arrest warrant on hearsay.

It’s quite a different matter to justify an arrest without a warrant on hearsay.

Do you think you got to have more probable cause to —

Osmond K. Fraenkel:

Yes.

— ask without a warrant or with that warrant, whatever —

Osmond K. Fraenkel:

Realistically yes.

And I think that what was said by Mr. Justice Jackson in the Johnson case which I quote, which dealt with search warrants rather than arrest warrants, bears on the issue, because it was the purpose of the Fourth Amendment to require officers of the law who Mr. Justice Jackson quite appropriately described as often being engaged in the competitive business of ferreting out crime.

To have regard for the rights of citizen, and therefore not to act on their own judgment, but to submit facts to the magistrate for his determination.

Now, we — I recognize as I said before, that this Court has carved out exceptions as in the case of moving vehicles, and I should suppose that they might carve out a similar exception in the case of hot pursuit, to justify an arrest on hearsay, simply because under such circumstances, no opportunity exists to do anything else.

While the government tries that analogize this, because of the ease with which narcotics can been disposed of, I think that’s an oversimplification.

Obviously a person who is — as is suggested here by the informer, engaged in the business of peddling doesn’t do it just once.

And good police work might have enabled the government by watching him to have caught him as was done in many of the other cases.

After all, the (Inaudible) conviction was reversed because good police work didn’t operate.

The FBI jumped in too fast and arrested too soon, and here too, they jumped in too fast, although it wasn’t the FBI.

Osmond K. Fraenkel:

Yes sir.

William J. Brennan, Jr.:

Suppose the government agents had in fact accompanied him, unknown to him on the train, if he went to Chicago, assume that he did, and then lost track of him in Chicago, happened to pick him up again on the train coming back and then everything else had happen here in fact happened.

Osmond K. Fraenkel:

I would say that would be insufficient because a man can go to Chicago even with an evil intent.

William J. Brennan, Jr.:

In other words you have — you’re suggesting I gather is that before there may be an arrest of probable cause there must be some conduct on his part observed by the agents from which reasonably it may be inferred that he’s committed a crime?

Osmond K. Fraenkel:

I — I would prefer that to be the rule, it’s not necessary in this case.

William J. Brennan, Jr.:

Well how far short — how far — I know that.

I’m trying to see —

Osmond K. Fraenkel:

Well —

William J. Brennan, Jr.:

— whether it is you think the rule should be, how far short of that?

Osmond K. Fraenkel:

I think that should be the rule Mr. Justice Brennan.

But I recognized that that may be putting an unnecessary hobble.

I therefore say that for the purposes of this case, we need not go into that —

William J. Brennan, Jr.:

I —

Osmond K. Fraenkel:

We can —

William J. Brennan, Jr.:

I want to stay out of this case for a moment.

Osmond K. Fraenkel:

Yes.

Well —

William J. Brennan, Jr.:

How much more than the circumstances I have put to you of following him on the train to Chicago, now what more beyond that, I suggested earlier they lost him in Chicago and picked him up again coming back on the train, faced into his destination and everything else happened that happened here.

Osmond K. Fraenkel:

I said that’s — that is in itself is a wholly innocent picture.

William J. Brennan, Jr.:

All right, then how (Voice Overlap) —

Osmond K. Fraenkel:

Many men go to Chicago and come back, more —

William J. Brennan, Jr.:

Much more than — what should have happened in Chicago, they should not have lost him let’s say, they saw him stop at some place, and he came out and they followed him back to the train, would that be enough?

Osmond K. Fraenkel:

If they — I don’t think it would be enough to justify the arrest of a person merely because he was seen going even into a place known to be a purveyor of narcotics —

William J. Brennan, Jr.:

Well, then I —

Osmond K. Fraenkel:

— for the first time.

William J. Brennan, Jr.:

Then I come back to this then, somehow you want — you want him to do something from which reasonably that an inference may be drawn, that he has done something criminal.

Osmond K. Fraenkel:

That’s right.

Now I will — I will say, as I said a moment ago, it maybe that it is enough, although I hope this Court does not so decide, that they have information.

For instance, let me — this much I would concede.

If a government agent, a narcotics agent in Chicago, had been present at the time a purchase was made, and had informed the government agent in Denver, that might be considered sufficient on the theory that —

William J. Brennan, Jr.:

(Inaudible)

Osmond K. Fraenkel:

— which is a theory that the — curiously enough Mr. Hoover operates on in justifying wiretapping by agents of the FBI, with the approval I believe of several members of this Court who have been one time or another Attorneys General, on the theory that the FBI is in that respect a unit.

Therefore, divulgence between members of that unit doesn’t come within the law.

They could be argued that members of the narcotics bureau, the agents are in that respect a unit, so the information given acknowledge the facts, from one to another —

William J. Brennan, Jr.:

Based on actual observation.

Osmond K. Fraenkel:

Based on actual observation would be sufficient.

Tom C. Clark:

Of course, if they arrested him in Chicago, isn’t it?

In Chicago —

Osmond K. Fraenkel:

Well —

Tom C. Clark:

— they then would have arrest him.

Osmond K. Fraenkel:

They could have — he could have arrested him in Chicago.

Tom C. Clark:

Why would they (Voice Overlap) —

Osmond K. Fraenkel:

— expect of course the crime here was also transportation.

Perhaps they wanted ordered to get him on that, I don’t know.

Tom C. Clark:

(Inaudible)

Osmond K. Fraenkel:

In any case, I suggest that here, you have an extreme case where there was nothing to support the inference that a crime had been in fact committed, and that being so, the arrest was improper.

Leonard B. Sand:

May it please the Court.

If I may, I would like to go into the facts of this case in somewhat more detail.

And I’d like to begin with the relationship between the arresting agent and the informer.

To indicate that this was not a casual relationship, this was not the case of an anonymous telephone call or — although record indicates a telephone call of any sort.

The informant in this case had for a period of six months furnished information to agent Marsh, which agent Marsh, the arresting officer, had personally corroborated and in each instance had found that the information was reliable.

And so here the source of the information is a source of proven reliability.

On September 3rd, 1956, the informer told agent Marsh that the petitioner was living at a certain address in Denver and was peddling heroine, was then and there engaged in the illicit narcotic traffic, was presently engaged in narcotic dealings.

Thereafter on September 7th and I — I have reference to the — page eight of the record, on September 7th, the informant told the agent, that on the day before, the day before petitioner had gone to Chicago and would return either the following day, the 8th of September or the 9th of September.

And so, while it maybe very well to speculate that the petitioner should have been followed to Chicago, the first information that the government had was after he had already gone to Chicago, it was not possible under this information to — to reach him in Chicago.

The informant indicated that he gone to Chicago by train, as he was going to bring back approximately three ounces of heroine, that he would return to Denver either on the morning of the 8th of September or the morning of the 9th of September also by train, that he was wearing a light colored raincoat and then continues with a very precise description of — of petitioner.

It has been suggested that the information that was received, it was conclusory, government respectfully submits that the information received was in very great detail.

Thereafter the law enforcement agents placed the railroad station under surveillance and on the morning of the 9th of September, which was one of the dates when the informant said the petitioner would return, he did in fact return.

He met the exact physical description down to the last bit of wearing apparel, which had been supplied by the informer, he was in fact carrying a tanned zipper bag, as the informer said he would, and he was arrested.

He gave a name which was immediately proven to be false.

Leonard B. Sand:

He was clutching in his pocket, he was clutching his hands in his raincoat, his hand was removed, there were glossy envelopes in his hand.

This was an arrest which took place in daylight in a public.

There is no — no question here of entering into a private dwelling.

There is no question here of the scope of a — of a search.

The reasonableness —

Hugo L. Black:

(Inaudible) they discovered that the name was false.

How was that?

Leonard B. Sand:

Well, I — I have referenced to the bottom of the page nine of the record and the testimony is that agent Marsh told him that he was under arrest.

And the first thing I asked him, “What’s your name?”

And he said, “Karl Francis.”

I said, “Do you have any identification on you?”

Either he produced his (Inaudible) or I removed it from his pocket and then the (Inaudible) I found, I had James Draper.

Petitioner says that it is relevant here that the information that was received from the informer was hearsay.

We submit that whether information is hearsay or not, whether it would be technically admissible at a trial, is not the key consideration.

The rule of hearsay grew up in the context of an advisory proceeding.

It was design to afford an ample opportunity for cross-examination, usually before a jury, so passing upon on the ultimate question of innocence or guilt.

It has no application in an ex parte proceeding.

And a determination of probable cause, whether made by a magistrate or made by an arresting officer, is an ex parte proceeding.

There — the rule shouldn’t — the rule of hearsay should not be applied in the context of probable cause, because the reason for the rule to provide cross-examination does not exist.

The question should be not is this hearsay, but is this reasonably trustworthy information.

This Court in the Brinegar case, attempted a definition of probable cause and on page 11 of the government’s brief we quote that definition.”

Probable cause exist, this Court said, where the facts and circumstances within there the officers’ knowledge and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution, in the belief that an offence has been or is being committed.”

Personal knowledge or of which they have reasonably trustworthy information.

And we suggest that, that is the test, not whether it’s hearsay or not, whether it’s reasonably trustworthy and reasonable prudent men in their everyday lives, on many, many occasions rely on what they believe is reasonably trustworthy hearsay.

And of course this Court held in the Costello case that a grand jury can return an indictment with the serious consequences that that has, based solely on hearsay.

Judge Hastie said in the — in United States against Bianco, case which is similar to this and which we cite in our brief.

That what is reasonable is a total judgment and I think that that puts the matter very well, a total judgment, all the circumstances must be considered.

Was this an anonymous tip on the telephone or was this information which came from somebody whose reliability you have reason to believe in because you have checked with in the past.

Was the information inherently creditable?

Did it — did it have the earmarks of being derived from personal information?

Leonard B. Sand:

Was it detailed?

Was it specific?

Could it be, and was it corroborated?

Petitioners — the petitioner states that a defect here is of the source of the informant’s information was not disclosed and that that is a crucial factor.

If the agent asks the informant how do you know this and receives a reply, the quality of that is still no greater, rises to no higher dignity than the credibility of the informant, if for some mischievous motive, this was all a fabrication, the informant could as easily fabricate a — a source of the information.

The other means by which the reliability of the information can be checked is externally by an attempt to corroborate and that is what occurred in this case.

Now, of course the danger where the source is not disclosed is perhaps this is mere — mere rumor or gossip.

I think there are three things in this case which indicate that the information supplied by the informer was not of such a nature.

They are the fact that in the past this information had always proved reliable.

The very nature of the information itself as set forth at page eight and nine of the record, that the precise detail as to the — as to the time and the mode of dress, and the fact that that prior to the time, the agents made the arrest, they corroborated the fact that Draper got off the train which came from Chicago on the morning of the 9th of September, attired precisely as — as the informant said he would be attired and carrying the tanned zipper bag.

Now, it is true as petitioner urges and as the dissenting judge below pointed out, that everything which the agents observed, which served as corroboration, was in and of itself innocent, that every aspect were isolated and considered in and of itself, it would be consistent with innocence.

But we submit that, that is not the approach, which should be taken and a question of probable cause, but when we should look to the totality of the circumstances and with —

(Inaudible)

Leonard B. Sand:

A period of six months, that’s on page 10 of the record.

He had been a special employee I believe about six months.

Had he refurnished information to you before?

Did you corroborate that information?

Yes.

I found that this information was always reliable.

The Court of Appeals for the District of Columbia in the second Second Rising case said that that alone would be enough where the information came from an informant how had in the past have proven reliable.

We don’t think it’s significant that the agents could not observe by looking at Draper the fact that he was carrying heroin, of course they could.

Had he been a bootlegger or somebody carrying burglary tools or something of that sort where the nature of the crime is such that bulky objects are used, why — why then perhaps there would have been that corroboration also.

The nature of the crime — the fact that it’s narcotics we think is a fact which enters into the — into the total picture.And that where every other detail supplied by the informant proves accurate reasonably prudent man might suppose that the ultimate fact, the fact not observable from a distance that he was carrying heroin would also prove — prove accurate.

We —

Potter Stewart:

Are you not suggesting, are you that we make a special rule for narcotics basically?

Leonard B. Sand:

I think that that the rule should be in every case, the totality of the circumstances and I think that one of the circum — so that it might be that with respect to certain circumstances you might require — the courts might require that there be some other indication.

Potter Stewart:

You’re suggesting that the — one of the factors in the total picture might be the invisibility of the commission of the crime even while it’s being committed, is that it?

Leonard B. Sand:

Yes.

And the — and the Second Circuit have said just that.

Judge Learned Hand said that.

Leonard B. Sand:

I’m — I am not certain whether it’s Learned Hand, it’s a decision of the Second Circuit, it’s the Kancso case we cited on page 36.

Standards which might be reasonable for the apprehension of bank robbers might not be reasonable for the arrest of narcotics.

I would like to deal also with the fact that the information received by the informer was, as petitioner describes it, with respect to a future crime.

I note that the first information received was that Draper was peddling heroin in Denver, but this then was to be a step in furtherance of his peddling narcotics in Denver in which he was already engaged.

This was not a prediction that somebody was going to enter the narcotic traffic.

This was a statement that he was going to take some step pursuant to this illegal activity.

We don’t think the fact that this related to a future event, rendered it so inherently improbable that it could not be the basis of probable cause.

We think it demonstrates that there was not a prior opportunity to get a search warrant, to get an arrest warrant.

The first occasion on which the officers knew that — and had corroborated the fact that Draper was committing or had been committing a crime was when they observed him in the railroad station, so there was no question here of whether there was ample opportunity to have obtained a warrant because there was no such opportunity.

When information is received by law enforcement officer that X has narcotics in his house on 12th street, the possibility then and there present information, the possibility always existed by the time officers will get to 12th street, the narcotics may have been disposed off.

So here, it is possible that Draper may not have in fact gone all the way to Chicago or may have been unsuccessful in his attempt to get the narcotics.

These things we think show that there was not proof beyond a reasonable doubt with mathematical certainty but that’s not — not the requirement of probable cause.

Again if I may in Brinegar, this Court said in language which appears at page 15 of the government’s brief, “In dealing with probable cause, however, as the very name implies, we deal with probabilities.

These are not technical.

They are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.”

And we submit that reasonably, reasonable and prudent men would have believed that when all the other information supplied by this informant whose information from the past had always proved reliable was corroborated that the final and ultimate fact that he was carrying heroin that enough — there was enough reason to believe that that too would be corroborated and to make the arrest.

Finally, we emphasized that in the totality of the circumstances which must be considered in judging the reasonableness of the conduct, again the fact that this was an arrest in daylight in a public place.

It may very well be that the — that the quantum of evidence which police officers must have before they may enter a private dwelling, the extent of the invasion of the privacy must be considered in balance and in regard to the quantum of information they have.

And here this was a day light arrest in a public place, the search was only of the person, of the defendant and of the bag which was in his immediate physical control.

Both courts below have found on these facts that probable cause existed and those concurrent findings we submit should be affirmed by this Court.

Osmond K. Fraenkel:

I haven’t — I can make three brief observation, in the first place insofar as –-

Hugo L. Black:

Over to that — to that place where we can hear you.

Osmond K. Fraenkel:

Oh, I am sorry.

Insofar as the government may suggest that the Draper’s giving of a fictitious name has any bearing on the validity of the arrest, I want to call Your Honor’s attention to the testimony of the arresting officer at page 9 of the record which clearly indicates the arrest occurred before the questioning.

So the fact is out of the case.

Insofar as it is suggested that there was no opportunity to get a warrant of arrest, I submit that if the informant who presumably had some information which was reliable and if he didn’t, certainly this arrest was unjustified.

If the informant on the basis of that information that Draper had committed a crime in the past, had gone before a magistrate, a warrant could have issued and they could had that warrant the time when Draper arrived to Chicago, not based on the purchase in Chicago but based on the alleged offenses previously committed.

And finally the suggestion is that a warrant couldn’t be obtained here because the heroin might have disappeared.

On the analogy of the search warrant can be obtained on information that during lives in a home although by the time they get there it may be gone.

I don’t see the relevance of that analogy.

Osmond K. Fraenkel:

The validity of the search warrant would be tested on the basis of the information disclosed to the magistrate who issued search warrant and the fact that circumstances might change that were irrelevant.

So here, this arrest must be based on the — must be justified on the basis of the information which the arresting officer disclosed to the Court at the time of the hearing, not on the basis of what might have been disclosed to a magistrate at sometime by other people or even on the basis of what the agent might have had in the back of his head which he didn’t disclose.

And it is suggested — well, it would have been easy for the informer to invent a story if this was malicious.

I say it’s an agent’s duty to press an informant for detail because details sometimes disclose their own weakness or the malice of the informant.

And if an agent is under a duty to require a disclosure by the informant he is under a like duty to disclose what he knows to the Court.

In no other way can the question of probable cause really be tried out, because what the government is asking here is that it’s enough for agent to get up in Court and say, an informant on whom I relied told me that this man was – had done — violated the criminal law at some unspecified time in the past and was going to violate it again in some — in the future so I arrest him.

I say that is not proper.

And you think the burden of proof is (Inaudible)

Osmond K. Fraenkel:

We moved it to press and we put our defendant on — we did — (Inaudible) conclude the case that time.

The defendant was put on the stand, testified that the arrest was out — without warrant.

Then the burden of going forward with the evidence shifts to the government to justify that arrest on the basis of probable cause.

And if the government having knowledge of facts doesn’t disclose those facts, it certainly not the defendant’s obligation to attempt to bring them out.

We submit, we suspect that the government didn’t have the facts disclosed, that the agent in this case didn’t ask the informer the basis of his knowledge if he had any, or his information had came from someone else.

But we can’t — we don’t know.

In any case we do say that no arrest should be sustained unless the agent requires the informant to give the basis of his information and discloses to the Court what he has learned.

(Inaudible)

Osmond K. Fraenkel:

Well, that can be read into the record, but it’s not necessary conclusion.

After all he may have felt — he may have wanted to put — make it clear from the cross-examination that hearsay was alone was involved.

But the rest was made clear by the government testimony.

I don’t think he needed to go (Inaudible).

Hugo L. Black:

The informant’s name was given, was he involved?

Osmond K. Fraenkel:

No.

No, he had died.

Hugo L. Black:

Before that he had died?

Osmond K. Fraenkel:

Right.