McCray v. Illinois

PETITIONER:McCray
RESPONDENT:Illinois
LOCATION:Bellmawr, New Jersey Police Department

DOCKET NO.: 159
DECIDED BY: Warren Court (1965-1967)
LOWER COURT:

CITATION: 386 US 300 (1967)
ARGUED: Jan 10, 1967 / Jan 11, 1967
DECIDED: Mar 20, 1967

Facts of the case

Question

Audio Transcription for Oral Argument – January 11, 1967 in McCray v. Illinois

Earl Warren:

George McCray, Petitioner versus Illinois.

Mr. O’Toole, you may continue your argument.

John J. O’Toole:

Mr. Chief Justice, and may it please the Court.

Yesterday we established that the federal rule regarding the reduction of an informant in the area of narcotics at the present time is that there must be a balancing of the rights, that is the rights of the people and the rights of the individual and in relation to its constitutional guarantees.

And that in the recent federal decisions that in this area that disclosure of the name or the identity of the informant has not been required where the crime is merely that of possession and the individual that is the informant did not actively participate in the crime itself.

Going to the rights of the people and the need we have for nondisclosure here, I’m sure —

Earl Warren:

Mr. O’Toole, may I ask you, do you have a case in — directly in point on the facts such as this on which you rely?

John J. O’Toole:

No Your Honor, there is no case directly on point, the federal jurisdiction that would — that we could use to resolve this question.

It is only by dicta that we have drawn out this reasoning.

What about the Robinson case or the (Inaudible) case?

John J. O’Toole:

Your Honor, I’m — I could not speak authoritatively on that, it’s exactly — there are cases in the federal system, in the Courts of Appeals which after the decision in Roviaro have come to this conclusion and have interpreted the decision of this Court to me that there need not to be disclosure when we have a nonparticipant informant in a crime of possession.

There are several cases.

I believe we cited seven on page 13 of our brief here Your Honor.

As to the rights of the people and in this situation, there’s a need that their rights to be protected here or there is a necessity for informants.

This Court has ordered in many occasions that significant percentages of arrest are based upon information supplied by informants.

And more important I think is the crime itself here, in any crime which involves vice, gambling or narcotics.

We do not have complaining witnesses as we know in a robbery case or a crime of that nature.

We have willing participants.

There is no complaining witness.

I think it was Mr. Chief Justice Clark who noted in a dissent recently that informants are almost necessary when it comes to this type of crime because we must fetter out the criminal through subterraneous methods and before we have no complaint made by any citizen, the victim here is a willing victim and I think that this crime should be viewed in that way.

If we are required to disclose the name and the identity of an informant in this situation, the effects would be to negate the usefulness of informants in general.

The individual informant in any given situation would be faced with retaliation and this is been noted by courts of all jurisdictions as death sometimes follows and there would be no doubt that we would lose the effectiveness of this one informant.

We would lose the effectiveness of all informants for no one would be willing to come forth with information and place their life on the line to speak and there’s no doubt that this would happen.

Earl Warren:

Well, Mr. O’Toole, isn’t there another answer to that law without disclosing the informant?

Now, yesterday I understood you to say that with the — if we set aside this statement supposedly made by the informant to the officer, there would not have been probable cause shown in this case.

Now, is it — and in those circumstances, is it too much to ask for the Government that they prove their probable cause independently of this statement that was made to them by the informant if they’re unwilling to produce the informant?

John J. O’Toole:

Your Honor, I would say this, that the Government and the people have a right too and has taken interest in the situation calls for a balancing.

If — may I say this, that here we are presenting two diametrically opposed views, one, where the Government says, absolutely no disclosure and the petitioner is saying, full disclosure.

Perhaps there’s something that lies between that.

However, I don’t feel that we should talk about that today because there is a case pending here for certiorari on the middle ground and in camera hearing but there are other methods also.

John J. O’Toole:

There could be opposed arrest check before a magistrate immediately after the individual is booked.

But that isn’t in issue here but the one thing that the State of Illinois is concerned is and I’m sure all states in the Federal Government concerned in is that we do not want to go to the extreme that requires complete and full disclosure.

There are other means that lie between the two if that is what the Court requires but that if full disclosure is required that we are going to lose the effectiveness of informants and informants are necessary in this willing victim type of crime that we have here today.

Abe Fortas:

Mr. O’Toole, do you know whether the federal or state governments frequently use informant has witnesses in these trials?

John J. O’Toole:

I cannot speak for other jurisdictions, I was — the State’s Attorney’s Office in Cook County usually does not use informants as witnesses.

Abe Fortas:

But sometimes you do?

John J. O’Toole:

I imagine that it has been done Your Honor.

Abe Fortas:

Is the life span of an informant that is to say the times very not as biological lifespan but is work lifespan as an informant pretty restrictive?

John J. O’Toole:

Well, in the —

Abe Fortas:

That is to say I have — it’s been my understanding but informers very quickly wear out effectiveness in the narcotics trade after awhile the narcotics community becomes aware that so and so is an informer.

Would you — do you have any impression the — as to that any information you could give us?

John J. O’Toole:

I couldn’t answer your question Mr. Justice Fortas in a — on average of two or three years but there is no doubt that their effectiveness does wear out when they do — become known to some elements in the community.

If I may digress for —

Abe Fortas:

Do you think that the work span is about two or three years that is to say the time during what your man can operate as an informer?

John J. O’Toole:

I think that would be a first statement (Voice Overlap) —

Abe Fortas:

About two or three years and after that they’ve got to look for other employment, don’t they?

Suppose they are trying to expand their lifespan —

John J. O’Toole:

Well, I think it would help Your Honor.

I know Mr. — I mean (Voice Overlap) —

Abe Fortas:

At the present time — just at the present time however you don’t disclose the identity of informers do you in cases of this sort?

John J. O’Toole:

It has not been the policy in Illinois to disclose.

Judge Kenneth Wint (ph) of the —

Hugo L. Black:

on the —

John J. O’Toole:

Excuse me.

Hugo L. Black:

— on the trial?

John J. O’Toole:

Excuse me Your Honor.

Hugo L. Black:

You draw in distinction between the right of a defendant at the trial on the merits (Voice Overlap)?

John J. O’Toole:

Yes Your Honor I was going to get to that.

We noticed in the Rugendorf case that the majority there talked about the situation and again by dicta because it was not directly in issue inferred that this disclosure in the Roviaro decision should be applied to a trial on the merits where as this is a preliminary hearing on probable cause.

We do have to admit however that it is not clear at the present time whether it does or does not apply to a preliminary hearing and probable cause.

John J. O’Toole:

We would like to see it apply —

William O. Douglas:

Was the Robinson case in — was the Robinson case on the merits or was it on a motion?

John J. O’Toole:

I believe the Robinson case was on the merits Your Honor.

Earl Warren:

Mr. O’Toole, if in this case the motion had been made on the trial, it would be a situation in a different, the legal (Voice Overlap) —

John J. O’Toole:

Not in the State of Illinois Your Honor.

Well, Mr. Chief Justice Warren —

Hugo L. Black:

Why wouldn’t —

John J. O’Toole:

— not in the State of Illinois.

Hugo L. Black:

Why wouldn’t it?

John J. O’Toole:

In the State of Illinois?

Hugo L. Black:

By different —

John J. O’Toole:

Excuse me.

Hugo L. Black:

Because I’m concern.

John J. O’Toole:

Mr. Justice Black, in the State of Illinois at the present time the law is that we are not required to disclose under these circumstances whether it be on preliminary hearing or on a trial on the merits.

Hugo L. Black:

Oh, I see.

You say, that the cases up today, you’re arguing it on that same basis?

John J. O’Toole:

Yes Your Honor.

Hugo L. Black:

But you aren’t — I wouldn’t think that you would admit you had to by different trial and on the merits trying the man for his life or liberty, trying the right to arrest him.

John J. O’Toole:

Well, I think that the disclosure should be required where it is necessary whether our facts which are necessary.

The dissent the Rugendorf case there pointed out three reasons why they thought that disclosure should be required on the trial.

In that case, it was merely constructive possession.

The individual was tried upon having stolen first which are found in his basement, he was not there, it was only constructive possession.

The second thing is four people had access to that basement.

One of whom who had been a prior convicted felon.

And the third thing is that there was a real possibility that he had been out of town at the time.

And that based upon this factual element which could be brought out, it was required there or so the dissent said that the disclosure we made because he could clarify — the informant clarify these points.

But we don’t have the situation here.

What do we have?

The informant.

What could he tell?

John J. O’Toole:

He could say, one, I exist.

The second thing is that — excuse me, is that I saw him selling narcotics at 47th and Calumet at five minutes to seven at — the next day.

Now, that would be the totality of his statement.

Now, if we go the issue in which was pressed very hard by the petitioner that we’ve got to go to this extreme because police lie.

Well, now if we do have this reputable policeman and certainly their — all men are not all good, all men are not all evil but we do have them.

But I think it’s a very small percentage.

But if we do have unscrupulous police officer, isn’t just as likely that if he is required to bring forward someone he can bring forward some other informant and tell him what to say.

We have that possibility.

I hope the Court does not build a rule which requires complete disclosure in all cases in this unwilling victim situation based on the possibility that there are some police officers who are unscrupulous because they could carry it one step further and bring in “X” who wasn’t even present and say, “Yes, I was the informer and yes, I saw the petitioner is selling narcotics at 7:00 in the morning”.

Do you have a rule in Illinois that is comparable to the California statute, California law?

John J. O’Toole:

Your Honor, we go beyond the California statute.

We do not require disclosure whether it be in a warrant, nonwarrant case or whether it is a preliminary hearing or on trial on the merits.

In this situation in the narcotics traffic where we have the test of possession and the nonparticipating informant, I think Illinois follows the rule laid down in Roviaro.

I think that’s exactly the position we take and have taken consistently since People versus Durr approximately 1962 or 1963.

Earl Warren:

Well, Mr. O’Toole, if we agree with you, is there any law, any necessity of a police officer going to a magistrate for a warrant, search warrant if he is willing to testify without being able — without being required to produce the informer that he received a tip to the effect that this man was a law violator.

Is there any further requirement of the — of a search warrant?

John J. O’Toole:

Mr. Chief Justice, I certainly think there is.

I think each case has to be viewed on its own circumstance.

This Court in Draper held that it was — well, it didn’t hold directly but in that case, there was an arrest without a warrant which there was a two-day time span and the in — the police officers did not apply for a warrant and that improbable cause has found a lie in that case.

Now, in this case, we have a position where the police officers came in to the information approximately five or 10 minutes to seven, the arrest was made at 7:00.

They had no time in which to apply for a warrant.

This is a situation that was impossible.

This individual was working the street.

If the arrest was not made at that time, the officers had to determine if they have probable cause in their own mind according to the rule of law and that if they did apply for a search warrant he wouldn’t have been at 47th and Calumet selling narcotics.

Byron R. White:

So, are we talking about search warrants?

John J. O’Toole:

Your Honor, I think —

Byron R. White:

We’re talking about arrest warrants, aren’t we?

John J. O’Toole:

We’re talking about arrest warrant.

Byron R. White:

Then what — what statement is — what Court — what the case in this Court justifies a search without a warrant with or without probable cause?

John J. O’Toole:

Oh, I agree with you Your Honor.

John J. O’Toole:

We are talking about arrest warrants and if I did say search warrants please excuse me, I meant arrest warrants.

As we have said what the petitioner alleges here is that police are unreliable and they’ve also interject the fact that if we allege a factual dispute then we have to have an open hearing.

If we allow this to stand to the position of a factual dispute raised or a factual allegation raised to the feet, the nondisclosure privilege of the Government, we’re just going to negate the entire matter.

Thank you very much.