Rugendorf v. United States

PETITIONER:Rugendorf
RESPONDENT:United States
LOCATION:Georgia General Assembly

DOCKET NO.: 223
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 376 US 528 (1964)
ARGUED: Feb 27, 1964
DECIDED: Mar 30, 1964

Facts of the case

Question

Audio Transcription for Oral Argument – February 27, 1964 in Rugendorf v. United States

Earl Warren:

Number 223, Samuel Joseph Rugendorf, Petitioner, versus United States.

Julius Lucius Echeles:

Mr. —

Earl Warren:

Mr. Echeles.

Julius Lucius Echeles:

Mr. Chief Justice, Honorable Members of this Court.

Your Honors granted a writ of certiorari to review a — an affirmance in the Seventh Circuit Court of Appeals which held first that the name of a confidential informant in a — an affidavit for a search warrant, need never be disclosed in a proceeding in which the defendant requires disclosure because he is asserting his rights under the Fourth Amendment of the Constitution and second, said the Court of Appeals for the Seventh Circuit, “In any event, such disclosure need never be made unless the defendant can show that the informant was present at the time of the commission of the offense and indeed that he was the moving party in the commission of the offense.

Those are difficult and disturbing questions here for the — this Court to decide.

It is as disturbing the conviction as I have ever encountered.

For not only is the continuing viability of the Fourth Amendment to the Constitution at state here in the decision of the Seventh Circuit, but the petitioner himself stands burdened by a conviction for which he has received a sentence of 10 years imprisonment.

On the product of conjecture which is a word used by the Government in its brief, conjecture as to whether or not the informant might have helped him to exonerate himself from the accusation of the Government.

A third issue is at state here because the grant of certiorari was not limited to the points raised in the petition and that is under the circumstances here, was there sufficient evidence upon which to predicate the conviction, a conviction of possession of stolen property moving in interstate commerce, knowing the same to have been stolen.

(Inaudible) the grant wasn’t limited to the question in the — in the petition, what (Voice Overlap) —

Julius Lucius Echeles:

The grant was limited to the questions in the petition that these are the three —

Oh was.

I thought you said it was not.

Julius Lucius Echeles:

Yes, these are the three questions.

One of the questions was the sufficiency of the evidence.

Coming to the last point first, whether or not, under circumstances such as here, there was sufficient evidence to sustain the connection.

The facts are rather simple and essentially are not in dispute between the Government and the petitioner.

Petitioner was 55 years of age, married, lived with his wife in a family owned home.

He and his wife owned a home on the north side of Chicago.

He owned a grocery store and a meat market and his hours of activity were from 5:30 in the morning when he got up until about 7:30 or 8:30 at night when he came home.

On a day in question, March 22, 1962, the FBI agents in the execution of a search warrant previously obtained from a Commissioner in Chicago, executing a search warrant, went to the basement of the home of the Rugendorfs and in closets in the basement, found 81 furs which were subsequently identified as having been stolen in two burglaries.

One in Shreveport, Louisiana in December of 1961 and the other in Mountain Brook, Alabama in January of 1961.

Based on those facts and those facts alone, Rugendorf was convicted because furs were found in his home, in the basement in his home.

There was no evidence that Rugendorf himself knew of the existence of furs.

There was no evidence by the Government that he as much suspicioned the existence of the stolen furs in his basement.

The affidavit in support of the search warrant obtained by an FBI affiant revealed that Sam Rugendorf, petitioner here, had a brother, Leo Rugendorf.

And that from the facts as brought out both in the hearing on the motion to suppress the evidence and in the affidavit itself that Leo Rugendorf, brother of Sam, was a known fence, receiver of stolen property and that he, Leo, was associated with certain known thieves identified in the affidavit.

And that these thieves were the ones, according to the confidential informants, who had committed the burglaries in Alabama and in Mountain Brook, but not a word either in the affidavit or during the trial or during the hearing on the motions to suppress the evidence that Sam Rugendorf had knowledge of the existence of the furs.

Therefore, the Government’s theory was that Rugendorf was guilty because he was in constructive possession of the furs.

Julius Lucius Echeles:

But even if one is in constructive possession of stolen property, the next fact has to be decided from naked constructive possession of stolen property thus, knowledge of the stolen content of those items become chargeable to the constructive possessor by inference.

There is no single case decided by this Court which decides that constructive possession gives rise to a further inference that the possessor posses them knowing the same to have been stolen.

There is one case in the Court of Appeals, Russo, which we cite, which states that under circumstances such as this, he cannot pile the inference upon the inference and the presumption upon the presumption, and that conclude guilty knowledge.

With respect to the other matters raised in the petition, the Court of Appeals has taken some dicta in Roviaro case, in this Court’s Roviaro case, which apparently is interpreted differently by different circuits, the Ninth Circuit in Costello, interpreted Roviaro as requiring disclosure of confidential informant were unnecessary in a proceeding attacking the search warrant.

The Fourth Circuit, the Winding case followed by the Seventh Circuit in this case, decided that in the proceeding where the Fourth Amendment is the issue, where constitutional rights of a defendant under the Fourth Amendment are at stake that he may not obtain the benefit of disclosure even where disclosure would be helpful and relevant to the defense and even where the disclosure is essential to a fair determination of the cause.

As to that aspect of the case, that is a case and that is a point, a first impression before this Court, Roviaro did not decide that point at all and some of the Courts of Appeals have gone off on dicta in the case.

Roviaro was a factual situation in which a — in a narcotic case, the so-called informant was with, according to the Government, was with the seller of narcotics to a police officer.

There was no issue in the Roviaro case of search warrant, of demand in a motion to suppress the evidence and there is no case decided by this Court previous to Roviaro which has it.

And as I say, the several circuits have a different play.

I see no reason why it is less important when one asserts his right under the Fourth Amendment to the Constitution.

And then according to the Seventh Circuit — according to the Fourth Circuit, cannot get information helpful in showing the invalidity of the search warrant than it — then it is, if he needs that information which is essential to his case in chief.

Because then the Courts of Appeals are downgrading the viability, the effectiveness of the Fourth Amendment to the Constitution.

What they are saying is that you may not try to show invalidity in a search warrant because the Government’s privilege to secrete the name of the informer is more important.

Well, that poses a difficult question and a difficult situation for a defendant who as in the — in this instance claimed at the trial, claimed at the time of his arrest, claimed at the trial, claimed in the Court of Appeals, complete innocence, complete absence of any connection with any of the details of the crime.

He only owned a house in which there were furs found in the basement.

(Inaudible)

Julius Lucius Echeles:

He was at his store, working in his store on the south side of Chicago.

The raid was made, that is the entry into the house, pursuant to the search warrant was made around 5:00 or 5:15 p.m. on March 22, 1962.

By some telephone calls and some signals, the FBI raiders called their office who contacted agents in the field who were then on their automobiles and then the two agents went to — not the place where Sam Rugendorf owned his store, but went to another store, Rugendorf Brothers Meat Market, which in the affidavit was alleged to have been managed by Sam.

That information was false, we demonstrated and that information allegedly came from a confidential informant previously known to have been informed.

The agents did not find Sam Rugendorf at the Rugendorf Brothers Meat Market where it was alleged in the affidavit.

He was the manager, excuse me, but ascertained that he owned the store some miles distance about two or two and a half miles away, they went to the store and they arrested Sam Rugendorf at about 6:00 or 6:15 p.m. on that night.

He was at work.

He denied any knowledge, acquaintanceship or connection with the furs.

He expressed surprise, indignant surprise.

The — and that is the only connection that the Government has made with Sam Rugendorf that he had a consanguinary relationship with his brother, and that the old law of blood tincture, the old English law of blood tincture, has now come to play in this case because Sam is hoist in this conviction only because he was Leo’s brother.

How did the furs come to be in the basement?

That is conjectural.

That is one of the reasons we wanted to have the identity of the confidential informant.

The evidence shows without contradiction by the Government that Sam and his wife, Belle, went to Florida on a vacation on February the 17th, 1962.

Julius Lucius Echeles:

They lived in the house alone.

They gave their key, that is Sam gave his key, to a neighbor two doors down a pharmacist by the name of Rosen, he gave the key to this house to his sister, he gave the key to his house to his son and gave the key to his house upon request to Leo Rugendorf, his brother, for the purpose of watching the house in their absence, cleaning the walk from snow, observing that the house is taken cared of, keeping the heat up in the two weeks absence.

Sam Rugendorf and his wife returned to Chicago on March the 4, 1962, came to the house.

He testified that he’d never went into the basement during — between the time of March 4, 1962, they returned to Chicago and the time of his arrest on March 22, 1962 because he had no reason to go into the basement.

He testified without contradiction that the house was heated by gas, that the thermostats controlling the gas heat was in the living room and he had no reason to go into the basement that is hours in taking care of the store, consumed seven days of his week.

Potter Stewart:

So what are you addressing this discussion to, to the insufficiency of the evidence of the criminal trial?

Julius Lucius Echeles:

Well, I have finished that phase of it to the necessity.

I now address myself to Your Honors, to the necessity and requirement that Sam had in obtaining some information from the informant in order to aid him in presenting to the jury, facts to show his innocence or facts to show reasonable doubt or facts to show the seeds of innocence, facts to show seeds of substantial doubt and we even challenged the trial courts, Mr. Justice, that if the informant came forward, it might even aid the Government in proof of guilt against Sam, but Sam was now worried about, he having consummate belief in his innocence.

Potter Stewart:

What — what bothers me a little bit is this and it’s maybe that I don’t fully understand the scope and thrust of your argument.

But it seems to me that there are two basic and separate points here, one is the — one is the question of whether or not there was probable cause and a valid warrant to conduct the search and the search was made and did in fact disclose that there were 81 stolen fur coats in this man’s house.

That — that face of the case involves a set of issues.

The validity of the warrant, the question of probable cause and — and also the basic issue of whether or not the identity of the informant should have been disclosed.

But then quite a different and separate issue, it seems to me, as the probative value of the facts that these fur coats had been found in this man’s house in his prosecution at the criminal trial and as — I have difficulty when you mix them all up because it seem — but it seems to me quite discrete issues.

Julius Lucius Echeles:

Relating only then to the sufficiency of the search warrant and to the requirement and the necessity for the informant to disprove the efficacy of the search warrant, the following where the facts disclosed in the hearing on the motion to suppress the evidence.

There were in the affidavit a number of items set out by the agent affiant as attending to disclose to the Commissioner issuing the warrant that there were reasonable grounds for the issuance of the warrant.

Upon hearing, it was demonstrated that facts which the agent affiant allegedly got from his confidential informant previously known to have been reliable to him, were false in some respects.

It was shown to have been false that when the agent informant said that he received information that Sam Rugendorf was the manager of Rugendorf Brothers Meat Market that that information was false.

It was false in another and even more important respect.

Agent Moore, the affiant agent, stated that he received information from Agent McCormick naming his informant this time that Agent McCormick told him that a Chicago police officer, Kelleher, told him that Sam Rugendorf managed — that Sam Rugendorf managed the Rugendorf Brothers Meat Market.

That was false because Officer Kelleher took the stand, if this Court please and said that he did not tell Agent McCormick that Sam Rugendorf managed the — the store.

Well, if those facts were false and there were no other facts of which Sam Rugendorf could dispose were false, that is, he did not contend that there was no burglary in Alabama or Louisiana.

He did not contend that the furs were not transported.

He had no knowledge of that.

As a matter of fact, the only alleged corroboration within the agent affiant’s knowledge that he said he had, was proven to be weakened by virtue of the fact that he, the agent affiant said, within the last six months prior to the — he’s making the affidavit, all burglaries of furs in the United States over the amount of $5000 are reported to the FBI and he reviewed the files of the FBI and he discovered that there was only one burglary in the United States fitting the description of furs.

The fact remains that at the trial, there were two such burglaries fitting the description, the one in Shreveport, Louisiana and the one in Mountain Brook, Alabama.

However, Your Honor, the informer issue is not limited to the search warrant issue alone.

That is, Your Honor, is right.

I’m sort of arguing and the arguments do overlap into the issue whether or not the informant identity and information that we might have obtained from the informant was necessary in the defense in chief because information from the informant certainly would have been helpful, relevant.

It certainly it would have been necessary to a fair determination of the issues in this cause.

The language used —

(Inaudible)

Julius Lucius Echeles:

We first demanded knowledge of the identity with the opening of the trial before any evidence was presented.

William J. Brennan, Jr.:

Not at the motion to suppress?

Julius Lucius Echeles:

This was the — this was the manner by which the Court decided the motion to suppress should be heard.

Before — we presented the written motion to suppress the evidence in advance of the trial in accordance with the rules.

Preliminary to any decision by the trial judge as to when we should have the hearing on the motion to suppress, demand was made for the informant.

That’s on page 13 of the transcript, Mr. Justice Brennan.

At — at the very beginning of the trial, in advance of the prosecution presenting any evidence, we made a demand upon the Government for the names of the informers.

And we stated that the names of the informants are necessary to a proper defense or a proper presentation of the defendant’s case in attacking the search warrant.

Then followed the long colloquy between the Court and defense counsel with respect to the necessity for the revelation of the confidential informant and the only reason, the only reason advanced by the Government in the trial was not that revelation of identity was not necessary or relevant, that was not the reason that they gave.

The reason that the Government gave and the only reason articulated throughout the trial was that, revelation of the informant might possibly lead to the informant’s demise.

The trial —

William J. Brennan, Jr.:

Do I understand now that the — there was an independent proceeding on the motion to suppress?

Julius Lucius Echeles:

Yes, Your Honor.

William J. Brennan, Jr.:

And was that conclusion of that proceeding of the trial judge denied the application for names of the informant?

Julius Lucius Echeles:

The trial — no, Your Honor, he did it in advance of the trial when demand was made, he denied, —

William J. Brennan, Jr.:

I — I’m —

Julius Lucius Echeles:

He did it again — yes, Your Honor.

He did it during the motion to suppress the evidence.

He denied the demands.

He did it in both instances.

The procedure by which the trial judge adapted, he decided to hear the evidence in chief first and to withhold the hearing on the motion to suppress the evidence until the Government presented the evidence.

So after the jury was selected, Agent Moore testified without too much cross-examination or any, that he executed the search warrant, that he found the furs.

Then the Government made its offer into evidence of the 81 furs.

There was an objection on the ground that it was obtained illegally in violation of the Fourth Amendment and then the hearing was held on the motion to suppress outside the presence of the jury.

It was during that motion that demand for the informants was renewed and renewed repeatedly, renewed as vigorously as a defense counsel can until the judge foreclosed any further questioning and stated that he foreclosed further questioning.

Now, why was it necessary to have the — the informant?

Because under circumstances such as these, where Sam Rugendorf was innocent or claimed innocence and has no knowledge of the activities of an informant, it becomes more difficult, it becomes practically an impossible task to require him to demonstrate as the Court of Appeals opined that he must demonstrate that the informants — thank you.

Earl Warren:

Mr. Echeles, you may continue.

Julius Lucius Echeles:

May it please the Court.

Julius Lucius Echeles:

The dicta that I referred to in Roviaro was really unwritten, unspoken dicta.

I do not mean by another dicta in language of Roviaro because Roviaro only had, for consideration, the determination of whether or not, disclosure of informant is required under those factual situations.

Search warrant was not involved.

The Courts of Appeals have taken off because search warrant was not involved to determine that only when it is necessary and relevant to the defense in the case was disclosure compelled and that is what I meant to say although I stated it rather badly.

The Government in this case has shifted its position with respect to the demand for the relevant information of the informant at every level of this case.

In the trial court, the only reason the Government came for failure to disclose is not that the information would not be either relevant or helpful or necessary for a fair consideration of the case, but because the information might possibly lead to the death of the informant.

On the Court of Appeals’ level, the brief written by the Government stated that, “It is only where it is essential to the individual’s right to prepare his defense that we’re entitled to the information.”

They abandoned their early position.

Before this Court, in its brief, the Government has taken a third position shifting again, stating that it abandoned its earlier contention that disclosure is appropriate only where the — the — the informant is first proven to have been the moving party in the commission of offense and participated in the offense.

They abandoned the — the contention that information may not be disclosed only where it is relevant to an impeachment of the search warrant under the Fourth Amendment of the Constitution.

They now say that the defendant must demonstrate fraud in the warrant.

They don’t say they we’re not entitled to it at all but we — but if we demonstrate fraud, we might possibly get the information.

They, then in this Court, suggest that no fraud was committed upon the magistrate because the magistrate heard from policeman A who said he got it from policeman B and if even policeman B was lying, that didn’t make policeman A affiant agent of the liar necessarily and with respect to the final contention of the Government, they state that — and they abandoned all of the positions and they state that under Roviaro, the defendant Rugendorf, might have been entitled to relevant information about the informant had we presented that information properly in the trial court.

Well, we presented it as repeatedly and as vigorously and as forcefully as we could until we were foreclosed from the trial court because we said if we have the name of the informant, we suggested that the trial court, it will probably prove Rugendorf’s innocence.

What better demand the demonstration we can make where Rugendorf was not shown anywhere to have any connection with the crime, anywhere along the line, I do not know.

I would —

Arthur J. Goldberg:

(Inaudible)

Julius Lucius Echeles:

No, they do not abandon that.

They include that and they add others.

They shift position because part of their brief states that one of the privileges of the Government is to protect its informant from possible harm.

But I think that — in our brief we answer in the Piemonte case where the Government insisted on information from an individual from the penitentiary who said, “My life is in danger.

The lives of my children are in danger.

The life of my wife is in danger.

I cannot give you the information.”

The Government nonetheless put him in jail for 18 months because he wouldn’t give information and the Court of Appeals for the Seventh Circuit there and this Court held that it is a citizen’s right and duty to come forward where the — where the Government needed it.

Well, equal standing under the law, the defendant needed, in this case, he didn’t get it.

Byron R. White:

Could I ask the question please?

Putting aside for the moment the matter of the usefulness of the informant’s name for purposes of the trial, I’m talking only about the probable cause matter.

I take that your position is that if you — what the — if the defendant suggests that the officer who gave the affidavit was not in good faith or was lying that in — in any situation like that, you’re entitled to the informant’s name?

Julius Lucius Echeles:

We — yes, Your Honor.

Julius Lucius Echeles:

We were entitled to the informant’s name to determine whether one, a confidential informant even existed, whether that confidential informant was a confidential informant previously known to have been reliable.

We have no tests.

Byron R. White:

Or I take in it that that — what this may — you’re suggesting and there should be no informant’s privilege in connection with a — a probable cause.

Julius Lucius Echeles:

No, Your Honor, we don’t —

Byron R. White:

But all you have to do in any case, to say, we suggest that the officer really presented a phony affidavit and that’s all you have to suggest and you’re entitled to the informant’s name to prove that he wasn’t — to prove that he — was or was not lying.

Julius Lucius Echeles:

But Mr. Justice White, in this case, we demonstrated factual falsities upon the hearing.

Byron R. White:

Yes, but not on the part of the — not on the part of the officer who gave the affidavit.

Julius Lucius Echeles:

Yes, Your Honor.

He said that he got the information — he said that he got the information from a confidential informant who gave it to an FBI man who said to him, the affiant that Sam Rugendorf for example was the manager, the Government trivializes that and says it’s a peripheral fact but it’s upon those facts that the Government relies for corroboration.

They say that these are the corroborative facts that the affiant had which takes them into Jones versus the United States.

Byron R. White:

Well, then — well, then you don’t suggest that just the — what you say is that you must first demonstrate some factual inaccuracies in the affidavit before you’re entitled to the informant’s name as a matter of court?

Julius Lucius Echeles:

I think this Court might well consider that informant’s identity should be revealed if an issue was raised in Fourth Amendment cases because otherwise, what protection does —

Byron R. White:

So there should be no informant’s privilege in Fourth Amendment cases?

Julius Lucius Echeles:

No, I — it’s difficult to answer Your Honor.

I don’t want to do a way and I don’t — and we don’t propose that this Court do a way necessarily with the informer’s privilege.

The Government may choose not to prosecute.

The Government has chosen in other cases but not prosecute.

Byron R. White:

I understand, I understand.

But now, how about the trial?

Aren’t — isn’t your position about to say and about the trial in any case where the Government says a confidential informant says, “He saw something or did something, or heard something, you could make — a defendant could make precisely the claim you’re making here, that we don’t know who he was and consequently we don’t know whether he was a participant in the crime or not and consequently he may, very well may know facts about this case pertinent to our defense.”

Isn’t that — isn’t that just about is here?

Julius Lucius Echeles:

Not precisely Your Honor because in this case, the Government presented an — an affidavit in which they said that the informant was in the home of the defendant.

Wouldn’t it be relevant and helpful to the defendant to know how he got into his home by trespass?

That is the Government’s position was that this informant has intimate detailed knowledge of this alleged crime.

He was in the defendant’s basement, he said on a certain date, within a week prior to March 16th, somewhere between that time.

Doesn’t that fact then suggest the necessity for the revelation of that informant under —

Byron R. White:

Well until you know the name — until you know the name, you don’t know whether he was a confederate or — or not, do you?

Julius Lucius Echeles:

We don’t know whether he even existed, Your Honor.

And I — and I respectfully refer, Your Honor in the Court to United States versus Pearce where the affiant agent gave an identical —

Byron R. White:

But this isn’t — this isn’t relevant to your — to your use of the trial points.

Julius Lucius Echeles:

No, that would not be relevant to use at trial.

That would be relevant on — on the suppression of the search warrant.

But for use on trial, where — where the Government moves forward and said under oath that this informant was in the basement, it would be helpful for Sam to know if the informant would say, “I didn’t get in with Sam, I got in with Leo or somebody else or maybe I got in with the connivance of the FBI.

Maybe I violated your rights by trespassing at the time when you were not there.”

We don’t know.

It’s conjectural as the Government suggests.

But it’s upon this conjecture that we are left in the dark and it’s upon this conjecture that we need.

A cross-examiner is never able to determine what facts he can get from and adverse witness until he cross-examines.

We need the informant for the defense.

Byron R. White:

Certainly, it’s true that the — that the confidential informant whoever he might be, his information might be completely irrelevant to your defense.

Julius Lucius Echeles:

But not under the posture of this case wherein —

Byron R. White:

I mean it were either — there are very — let’s assume that the neighbor lady — assume the informant was the neighbor who had a key to the house while Rugendorfs were away and she just said, “I was a little nosey and — and looked on his closet, in the basement.”

Now if that’s what you found out when you — when you were given the informant’s name, it probably wouldn’t be very useful for that.

Julius Lucius Echeles:

It might be, Your Honor.

It might be useful to learn when she came into the house and with whom and where was Sam at the time.

It might be helpful to develop facts to show to the jury that Sam was not involved in the case, that there was a reasonable doubt whether or not he possessed them within the meaning of the law because all the Government relied upon this case, Your Honor, was constructive possession not actual possession and not actual knowledge.

And what if these were a wiretap case?

What if the information came to the Government by means of wiretap and that’s a potentiality and that’s a possibility.

Byron R. White:

It’s a possibility, I should think.

Julius Lucius Echeles:

Yes, but we have no means of knowing until we get the identity of the informant, subpoena the informant and ask questions of the informant.

Byron R. White:

If this would be true — this would be true in every informant’s case.

Julius Lucius Echeles:

Respectfully, I would say no —

Byron R. White:

Wouldn’t be true?

Julius Lucius Echeles:

I can envision many cases.

And let us say a man is going to rob a bank and tells somebody he’s going to rob —

Byron R. White:

Well, can you think of a case where there’s a confidential informant has — has resulted in the arrest of a man that — that you couldn’t say exactly what you’re saying here?

Julius Lucius Echeles:

Yes, very simply.

Let us say someone tells me there, yes —

Byron R. White:

So that is in — in connection with the preparation for trial in any case —

Julius Lucius Echeles:

Yes sir.

Byron R. White:

— you need the name of the informant.

Julius Lucius Echeles:

Yes, Your Honor.

Supposing somebody tells me that he’s going to rob a bank tomorrow at 8 p.m. and I advise the authorities and the authorities are there with police and they wait until this man goes in to rob a bank.

Essential to his defense is not the name or the identity of the informant because he is caught in the act.

Byron R. White:

So you don’t purport to be able to distinguish between one case and another insofar as — as when you need a confidential informant or not?

In all of cases, you would — you —

Julius Lucius Echeles:

No, Your Honor.

Byron R. White:

— you need to know the name at trial.

Julius Lucius Echeles:

No, Your Honor.

I thought I just demonstrated a very short factual situation whereby the name of the informant would not be immaterial to the defense of an individual who is going to rob a bank and is caught in the act of robbing a bank and that information that he’s going to commit the act comes from a confidential informant.

Thank you, Your Honor.

Earl Warren:

(Inaudible)

Julius Lucius Echeles:

Thank you Your Honor.

Earl Warren:

(Inaudible)

Julius Lucius Echeles:

Thank you very much Your Honor.

Earl Warren:

(Inaudible)

David C. Acheson:

Thank you Mr. Chief Justice.

Mr. Chief Justice, may it please the Court.

The petitioner’s attack on the probable cause in the affidavit underlying the warrant has narrowed, if the Court please, to the very particular allegation that falsity was discovered in the affidavit, in the representation that an officer, Kelleher, told the affiant that the petitioner in the case was the manager of a meat market going by the name of Rugendorf Brothers.

I think we can pass quickly over the point that the information was quite immaterial to probable cause.

Indeed, 10 years earlier, the information had been accurate.

Petitioner had, in fact, been the manager of the meat market with his brother some 10 years earlier, and it’s understandable that this reputation might still exist among confidential sources in Chicago.

Arthur J. Goldberg:

(Inaudible)

David C. Acheson:

Mr. Justice Goldberg, it would.

At page 17 of the record, in the testimony of Officer Kelleher, it appears that he did in fact tell McCormick that he saw Schweihs at the meat market.

Earl Warren:

(Inaudible) accept this one man for knowingly receiving stolen goods.

David C. Acheson:

No, Mr. Chief Justice.

Earl Warren:

(Inaudible)

David C. Acheson:

At least not in this case, it was a proceeding against a single defendant and whether at a later or earlier time, there had been a prosecution or might still be one, I — I can’t say.But in the circumstances surrounding this case, there was this sole defendant.

Now the affidavit, if the Court please, at page 7 of the record, is quite ambiguous on the point whether the agent McCormick originated the statement that petitioner had been the manager of the Meat Market or whether McCormick merely relayed the information from Officer Kelleher.

David C. Acheson:

The affidavit doesn’t make it at all clear which was the case.

The sources of clarification of that, of course, would have been the Officer Kelleher, who did testify on the hearing on the motion to suppress and the Officer McCormick, who is either the originator or the channel of that information.

Now, it’s noteworthy that Officer McCormick did not testify, Special Agent McCormick did not testify.

He was, at the time of the trial, in the hospital as the record shows at page 18, but the Court might note that from June 4th when the motion to suppress evidence was filed until the first week in July when the trial began, there was an opportunity, a month’s opportunity to take the deposition of McCormick, confront him with the fact and obtain clarification of the fact that appears in the affidavit.

I think it’s further significant that when of — Agent Moore was on the witness stand, Agent Moore was not asked on examination by petitioner whether McCormick originated the information or whether McCormick truly said that the information came from Kelleher and therefore, it can’t be said that Officer Moore lied in the affidavit.

There are two hypotheses which were left entirely open by petitioner which are as consistent with the text of the affidavit as the notion that Officer Kelleher originated this information himself.

Now, the extremely insubstantial claim that this type of inaccurate information perhaps shown after the fact to be incorrect in a minor respect, the claim at that time of a — an error in an affidavit, is ground for disclosure of a confidential informant.

Raises in the most serious way, we submit, the question what is the weight of the quality of the public policy behind the confidentiality of an informant.

I don’t think the petitioner would dispute.

Certainly, I think it lies within the common knowledge of all of us that professional criminals operate in secrecy.

Certainly, the narcotic rings and stolen property rings, gamblers, the more serious type of organized professional crime that we’re familiar — we’re familiar with, not only requires secrecy but secrecy indeed is characteristic of their operations.

And the law can’t effectively check these operations without penetrating in some way, this cloak of secrecy that they wrapped themselves in.

It is here of course, that the function of the confidential source becomes important.

The very great weight placed on these sources by former Attorney General Jackson.

The discussion of the uses of confidential informants and they’re necessity in obtaining confidential information from inside a criminal conspiracy fully discussed in Harney and Cross, the book cited in our brief, make it clear that indeed the — the rather modern and impressive laboratory methods of crime detection don’t hold a great deal of weight in comparison with the value of confidential source.

The information that comes from inside of the conspiracy is of course much more timely, much more important than the information that comes from examining a human hair under a microscope.

If — if these facts are accepted and I think our common knowledge has to reinforce them, it follows that confidentiality is important to the continuity of the confidential source is a channel of information.

It isn’t just a matter if the Court please, of the safety and the life of a confidential informant.

The more cold-blooded and perhaps more serious aspect, the continuity of the information that comes from this source is a matter of the most urgent importance.

(Inaudible) if a United States Commissioner with or without good reasons had known — not to design a search warrant unless the Government produces its confidential informant and I can examine them in camera.

David C. Acheson:

The examination in camera, if the Court please, is a particularly risky type of compromise of the problem.

I think on the surface, it’s a — it’s a pleasing and perhaps seemingly acceptable compromise.

(Inaudible)

David C. Acheson:

Oh I quite understand Mr. Justice Harlan, as I — as I don’t have to tell you, Mr. Justice Harlan, the U.S. courthouse and — and — and the bailiffs, the marshals, the secretaries, the elevator operators are not all screened for their, what you might call “Top Secret Security.”

I think it’s quite improbable that a confidential informant could come to the office of the U.S. Commissioner in a U.S. courthouse, there be examined and leave the courthouse without a functionary or newspaper reporter or a defense counsel perhaps in another case, seeing him, knowing who he was and — and being aware of the fact that he was there.

Quite able, I would judge, to guess the purpose for his being there.

(Inaudible) is if there’s an absolute privilege, absolute informant’s privilege in this area subject to the qualification that if you can show on the — from the affidavit on its face if there’s something wrong?

David C. Acheson:

My position Mr. Justice Harlan would be that if the public policy behind confidentiality is to have any weight at all, there must be some preliminary factual showing of the bad faith of the affiant or some reason perhaps outside of the four corners of the affidavit.

Some reason to think that he is lying in the affidavit.

Preliminary showings are — are not unknown to the criminal procedure.

David C. Acheson:

They’re required before a — for example a motion to require pre-trial inspection of documents is granted under Rule 17 before a grand jury transcript is available under Rule 6.

There are many instances where preliminary showings are precondition of — of the relief that the defendant asks.

It seems to me this could easily be such a case.

Earl Warren:

(Inaudible) Mr. Acheson to — to determine what is probable cause, what isn’t and whether there should be a search warrant rather than to a magistrate?

David C. Acheson:

Not in the case of a search warrant, a search with a warrant Mr. Chief Justice, search such as this was.

The police officer must specify the property that he is searching for, specify very precisely, its whereabouts in terms that would make impossible for him to invent facts on a hunch and hope that the property that he found would confirm his hunch.

The United States Commissioner’s manual —

Earl Warren:

Would that follow — would that follow in all cases?

For instance, a — a common knowledge, let’s say that there’s a bootlegging joint in existence and people generally speak about it and I suppose it be nine chances out of 10 that a man would be right if — if he made an affidavit that — that he knew that there was liquor in there.

Would that justify an officer and just — just saying, “Well, I have information and along the search warrant, you get a search warrant on that thing without disclosing who it is or whether he had purchased there or not to —

David C. Acheson:

Well, Mr. — Mr. Chief Justice, of course a case can be imagined such as that?

Earl Warren:

Well, that is — that would be a very common one, wouldn’t it?

David C. Acheson:

I — I should think it — it would not be common respectfully that the agent would knowingly falsify a fact.

Earl Warren:

I guess I’ll — I guess I was a prosecutor in a different day when that was a common thing —

David C. Acheson:

I should —

Earl Warren:

— in prohibition days.

David C. Acheson:

I should think that the value of the preliminary screening of a warrant which is accomplished by a U.S. Commissioner is a very valuable protection of the person whose premises are being searched.

Earl Warren:

Well, but here you — here you, let them use a second and third hand — a second and third hand hearsay and the Commissioner doesn’t see any of these — any of these people.

All he gets is this affidavit from the police officer and second and third hand hearsay and he issues — issues a warrant.

And there is no informant name to talk.

David C. Acheson:

That is right, Mr. Chief Justice, but in circumstances such as this, there is and of course, this Court has said, there must be present reason to credit the hearsay.

Now, where there is reason to credit the hearsay as — as here for example, the statement on page 8 of the record, that the affiant had personally examined the records.

Earl Warren:

Where is that?

David C. Acheson:

At the bottom of page 8 of the printed transcript.

Earl Warren:

Yes.

David C. Acheson:

That he had examined the records in the FBI files regarding fur robberies for the past six months.

Now, this is indeed a kind of personal knowledge on the part of the affiant.

He has surely some reason to credit the information he finds in the FBI files and here, he’s done a personal investigation of the records.

Earl Warren:

And how — how does that connect up with — with these particular garments?

David C. Acheson:

It connects in this way, Mr. Chief Justice, the description contained in the files according to this affidavit, is the only description that he can find in the files which matches the description of the first seen by the confidential informant in the premises that they searched.

David C. Acheson:

Now, that’s a — that’s a pretty reliable corroboration of the hearsay unless one assumes that the agent will be lying whenever he set forth such a fact.

Earl Warren:

Well, is that — is that a corroboration of the fact that these furs are to be found in the — in the home of this man?

I don’t see their corroborative value of it.

David C. Acheson:

But now, the — he says that the only burglary totaling over $5000, containing a similar description of the first described by the informant, which were the first scene of the house of the petitioner.

Earl Warren:

Yes, but — but at the time he made this affidavit, they hadn’t — they didn’t know what was in that basement.

David C. Acheson:

Oh, the informant had indeed reported prior to the making of this affidavit.

Earl Warren:

Well, but I — I still don’t see how the — the investigation of the reports of the Federal Investigation would tie that particular robbery to this particular defendant.

David C. Acheson:

Because, Mr. Chief Justice, the furs in the petitioner’s house were seen on — between March 9th and March 15th.

This affidavit was executed on March 22nd.

Earl Warren:

I see.

David C. Acheson:

The reference to the first described by the informant is of course, to the first scene some ten days earlier —

Earl Warren:

I see your point.

David C. Acheson:

— by the informant in the petitioner’s home.

Earl Warren:

I see your point, yes.

David C. Acheson:

Before we leave this point, if the Court please and in partial answer to Mr. Justice Harlan’s question, as recently as January 28th, the New York Daily News carried a rather shocking story of an informant who — who left the courthouse in Chicago where he was giving information in a state jurisdiction on an insurance fraud.

And as he stepped in his car to drive away, there was an explosion under the hood which hurled him out of the car and there is a photograph and quite a story about his informer role, the injury he suffered and the probable source of the bombing.

This is illustrative, I think, of the fact that the confidential source leads a rather hazardous life.

He parts with information only on the condition that the Government will preserve his confidentiality.

The very trial judge in this case at page 129 of the original trial transcript referred to the common occurrence of retaliation and violence against witnesses in Chicago at or about the time of this trial.

And —

Earl Warren:

(Inaudible) case that counsel cited though, isn’t somewhat apropos.

It is not decisive but apropos.

But the one where — where a man who is known to — who had been convicted with a narcotic offense is being a part of a large conspiracy was in the penitentiary and under sentence.

And the Government called him to the witness stand and he claimed the Fifth Amendment privilege, the Government says, “Well, we grant you immunity.”

And he said, “Well, If I squeal being in this penitentiary, my life isn’t worth anything.

And the judge said, “Well, it doesn’t make any difference.

You’re a citizen and as a duty of a citizen to come through in — in the courtroom and — and give all the evidence that he has to bring about the justice.”

And he sentenced him to jail for I think, it was a year and a half or two years and this Court held, “Yes, that’s right, you have to — you have to do that.

You have to testify because the duty of every good citizen to testify.”

Now, why isn’t that incumbent on the Government also, to do that with an informer in a situation like this, where his testimony might clear this man of this crime?

David C. Acheson:

Mr. Chief Justice, in the case you described, the Piemonte case I believe.

Earl Warren:

Yes, that — that’s right.

David C. Acheson:

The convict was known.

Earl Warren:

The what?

David C. Acheson:

The convict, Piemonte, was known.

That is, he had been through a trial, people knew who he was, people knew what bracket he was connected with.

People indeed with whom he had worked, his confederates, prior confederates undoubtedly knew what he knew.

Earl Warren:

Yes, but he —

David C. Acheson:

So he wasn’t constitutionally —

Earl Warren:

But he had kept his mouth shut and had gone to the penitentiary for 15 or 20 years.

Perhaps, in order to avoid being killed and then Government said, “You must testify now and take the chance of getting — getting killed because that’s the responsibility of every good citizen.”

David C. Acheson:

The — the question there, Mr. Chief Justice, was whether an informant who is known, who was already been disclosed, must come to court and tell what he knows.

The question we are talking about is whether an informant who is not disclosed.

The underworld doesn’t know who he is.

They have no way of knowing what he knows whether he must reveal his identity.

Earl Warren:

I — I realize that there’s a difference in the two cases that I — I said so, but, some of (Voice Overlap) —

(Inaudible)

William O. Douglas:

The question wasn’t raised at the trial.

David C. Acheson:

That’s a partial answer Mr. Justice Douglas but the petitioner was not in a petition — the position, Mr. Justice Goldberg, of casting about helplessly to find some way of proving his innocence, as petitioner’s counsel would have you believe.

The evidence show, the record at page 30, that there were four people who had keys to the petitioner’s home.

Now, if a plant or if a perjurious Government agent had entered the house through any of those who had keys to plant the furs in the basement, putting aside the possibility that petitioner or petitioner’s wife would let — let them in.

Presumably, one of these four people who had keys would’ve been the ones to admit a stranger.

Now, none of those people who had keys, not one was called to the witness stand by the petitioner except the neighbor, Mr. Roskin and he wasn’t asked whether he admitted anybody to the house.

He was only asked whether he put the furs there himself, which of course, he denied.

Arthur J. Goldberg:

(Inaudible)

David C. Acheson:

Well not at all, Mr. Justice Goldberg, here where the three relatives who had keys.

If his hypothesis is — is correct, presumably one of those three or four, counting Mr. Roskin, would be called to the stand and he might say, “Yes, I remember about two weeks ago, Thursday, I admitted someone and it looks like that man in the courtroom back there and he had a lot of big white bags with him.”

Now, perhaps a wild guess, but no effort was made to defend himself by the petitioner through any of these witnesses who would’ve been in the best position of anybody to have admitted a third party.

Arthur J. Goldberg:

(Inaudible)

David C. Acheson:

Oh, not necessarily, Mr. Justice Goldberg.

Arthur J. Goldberg:

(Inaudible)

David C. Acheson:

Quite understandable that one would open a door to let in what the seemingly a laundryman, who would carry four white bags to the basement and not pry, not examine them, not open them, not of any way of knowing that their contents were furs.

Now on the road, the arrow point —

(Inaudible) this is represented by your office for example, in effective law enforcement as ways in this area, the individual rights that admittedly as a matter of analysis that are stated here.

David C. Acheson:

Mr. Justice Harlan, our position is that there must be a careful balance based on the circumstances of each case.

(Inaudible)

David C. Acheson:

It’s a three-way balance, if the Court please.

How many search warrants did your office issued here, any idea?

David C. Acheson:

Which — which office, Mr. Justice?

The United States Attorney General.

David C. Acheson:

In this — in this District?

Oh I would assume two a week.

And there are — are they — is the informer — are the — is the informer type of affidavit a usual or unusual —

David C. Acheson:

It is —

— aspect.

David C. Acheson:

— almost in narcotics cases, it’s almost the unexceptionable rule, in other types of cases, it varies.

Now, the balance I speak of, if the Court please, is a three-way balance.

Society has need of the confidential information.

The informant surely has need of his life.

The defendant of course, may — may need in a particular case the information to attack the veracity of the affiant.

But the only way to make this balance without erasing the public interest and confidentiality or without erasing the defendant’s interest in making his claim on a motion to suppress, is to require some reason to suspect or to attack the veracity of the affiant beyond merely, the claim that, man is presumably wicked and the only way one can make a defense on a motion to suppress is to call him a liar, call the affiant a liar and expose the informant to prove it.

Arthur J. Goldberg:

(Inaudible)

David C. Acheson:

Well, 10 years make a difference but, Mr. Justice Goldberg, it’s vital to emphasize that this was not a warrant of arrest which might have made the identity of Leo Rugendorf pertinent to the guilt of the petitioner.

This was not a warrant of arrest.

The likely guilt or innocence of petitioner was absolutely immaterial to a search warrant.

The only question in the affidavit for a search warrant was whether what appeared to be stolen property, was located in petitioner’s home.

Arthur J. Goldberg:

(Inaudible)

David C. Acheson:

Well, if Your Honor please, I think the only pertinence of the meat market information was relative to — to the question of where they might find him that the time came to arrest him.

It was information that, in effect, provided a business address for the petitioner and nothing more.

Arthur J. Goldberg:

(Inaudible)

David C. Acheson:

Well —

Arthur J. Goldberg:

(Inaudible)

David C. Acheson:

Well, on a search warrant now, just the search warrant, it is immaterial whether it’s a plant or not.

You get a search warrant out to go to the premises and recover the property.

Now at the trial, the evidence is to whether it’s a plant should come out and would be timely and there, Mr. Justice Goldberg, it is absolutely incomprehensible by the four people with keys, the three relatives with keys, were not called to testify if petitioner’s hypothesis is true to make the plant story out.

Arthur J. Goldberg:

(Inaudible)

David C. Acheson:

If you credit the information that the furs were seen there that everything else is immaterial.

Potter Stewart:

Actually Mr. Acheson and I guess that’s just what you just now suggested, that the — the last two paragraphs of the affidavit are — would be sufficient to support a search warrant, wouldn’t they not?

David C. Acheson:

I believe so, Mr. Justice Stewart.

That’s right.

The —

Potter Stewart:

But I had this detail in the earlier part.

David C. Acheson:

The — the remainder was an attempt to have out of excessive caution, corroborating information.

Potter Stewart:

And if the last two paragraphs would be sufficient to support a valid search warrant and if the inaccuracies in the earlier paragraphs had nothing to do with the fairness of the trial, then those inaccuracy just drop out of the case, don’t they?

David C. Acheson:

Right, absolutely.

William J. Brennan, Jr.:

(Inaudible) that the very question if the affiant as to the earlier statements, you’d know they dropped out of the state out of the case.

David C. Acheson:

Mr. Just —

William J. Brennan, Jr.:

If those statements are proved unreliable then at least doesn’t the question raised whether the last two paragraphs may not also be unreliable.

David C. Acheson:

Oh, Mr. Justice Brennan, as in the Jones case, the reason to credit to hearsay is advanced in this affidavit.

The fact that other informants tie the suspects in the robbery, the fact that the first were, indeed, seen in petitioner’s house, the — whether or not petitioner was manager of the Meat Market, doesn’t go to the last — the crucial paragraph.

William J. Brennan, Jr.:

I agree it hasn’t — I agree it hasn’t but if he was not, my suggestion is, may it not go to the credibility of the last two paragraphs?

David C. Acheson:

It not (Voice Overlap) —

William J. Brennan, Jr.:

And at least justify an insistence that since there is a possibility that they two are not to be credited, that the informant ought to be produced.

David C. Acheson:

Mr. Justice, I think what you say would — would be precisely right except for the fact, and this is important, that it is — the — the — the affidavit seems to say either — on page 7, either that Kelleher provided the manager information or that McCormick provided, quite ambiguous.

Now, there’s no basis to suspect this part of the affidavit until you exhaust what McCormick knows.

McCormick might have been the one who provide this information.

William J. Brennan, Jr.:

Oh I think (Voice Overlap) —

David C. Acheson:

He was never — he was never examined.

William J. Brennan, Jr.:

I think that’s reasonable and a good answer.

That’s to say that there’s nothing enough — enough here to question the credibility to be given the last two paragraphs in the circumstances but I should be thinking it follow that maybe because there is a paragraph standing alone that if credited, would support the —

David C. Acheson:

Oh, we don’t claim that at all, Mr. Justice.

William J. Brennan, Jr.:

Well, perhaps I misunderstood you.

I thought — I thought (Inaudible)

Hugo L. Black:

— the sufficiency of the probable cause is to be determined by other evidence taken later that you go on the face of the affidavit of probable cause?

David C. Acheson:

We go on the face of the affidavit, of course.

It — it can’t be justified by evidence, the property later recovered.

Byron R. White:

But — Mr. Acheson, if there’s an evidence of the hearings to suppress that the agent said that an informer had told him something when as a matter of fact, the informant had not told him something.

It’s not whether the facts of the informant said they’re true or false.

The fact is that the agent misstated what the informant told him.

That’s what’s wrong — that is involved in this case.

It’s not only that there are factual inaccuracies but the — that the affiant said that an informant had told him something that he didn’t.

David C. Acheson:

Well —

Byron R. White:

Isn’t that true?

David C. Acheson:

As regards the meat market information, it did not come from an informant —

Byron R. White:

Yes.

David C. Acheson:

— but according to the affidavit from Kelleher, a police officer —

Byron R. White:

Yes, but that —

David C. Acheson:

— and through McCormick.

Byron R. White:

But the — the — the affidavit is inaccurate and that — and that the agent said, he had learned it from a certain source and that he had not learned it from a certain sources.

Isn’t that true?

David C. Acheson:

Now, the agent didn’t say that, Mr. Justice White.

William J. Brennan, Jr.:

No but didn’t Kelleher testified with (Voice Overlap) —

David C. Acheson:

He said he did not originally —

William J. Brennan, Jr.:

He had not told somebody something?

David C. Acheson:

That’s right.

William J. Brennan, Jr.:

Yes, so to that extent, when the affiant says that Kelleher told you that’s not true, is it?

Byron R. White:

So it’s a matter over and above where there’s a factual inaccuracy and what the — what — what the — what an informant might have said that I think would be recurring.

David C. Acheson:

But if McCormick had testified and had said, “I told Moore that petitioner was the manager of this Meat Market, then his affidavit would be substantially correct.

Byron R. White:

But it isn’t.

That isn’t what happened.

David C. Acheson:

No.

Byron R. White:

And you’re saying — the question is — when you answer Mr. Justice Black that you — that you stand on the face of the affidavit, certainly as it regards the — if this petitioner had — had been able to show that the — that the — that the agent lied, knowingly lied substantially in the affidavit, I suppose the — you would conceive that they might be entitled to the name of the informant.

David C. Acheson:

Fairly.

Hugo L. Black:

(Inaudible)

David C. Acheson:

I think if the affiant had been —

Hugo L. Black:

Do you try out the truthfulness of the facts sworn to and warrant affidavit, you try out the truthfulness of those facts in order to determine whether the warrant was good.

David C. Acheson:

Had the bad faith of the affiant been shown, Mr. Justice Black, as in the Pearce case, I think the Government would have to concede that the underlying probable cause was demolished.

But that isn’t what happened.

Hugo L. Black:

You can see that that justifies on separate court trial to determine whether or not the statements was made in an affidavit were true?

David C. Acheson:

Yes, there is reason to think that the affiant did lie then we — I — I would agree that that in question can be explored on a hearing on a motion to suppress evidence.

But there has to be some preliminary factual basis to think that that happened.

William J. Brennan, Jr.:

When you go on this part as to say is that — as to say that what would put this burden on the Government or destroy underlying — probable cause, would not be the truth or falsity of the things allegedly said by the informant, but whether in fact the informant had said those things to the affiant, isn’t that it?

David C. Acheson:

No, Mr. Justice.

William J. Brennan, Jr.:

To go beyond that?

David C. Acheson:

The — the — we claim that what would demol — the only thing that would demolish the probable cause would be a showing of bad faith, subjective lying by the affiant.

William J. Brennan, Jr.:

Well, that’s what I’m suggesting that the affiant lied when he said that Keller — Kelleher told him the story, whatever the story.

David C. Acheson:

If that had been preliminarily shown —

William J. Brennan, Jr.:

Yes.

David C. Acheson:

— then of course a full expo — exploration of that on —

William J. Brennan, Jr.:

But this does not involve the truth or falsity of the thing said to have been told him, namely, that he saw somebody in the meat market.

David C. Acheson:

No, because he has to go by the best information it gets, whatever that sorts.

William J. Brennan, Jr.:

Mr. —

Hugo L. Black:

(Inaudible) Pearce, you just said —

David C. Acheson:

Pearce, United States against Pearce in Sixth Circuit.

Hugo L. Black:

Control this —

David C. Acheson:

Cited in our brief.

It doesn’t control us, Mr. Justice Black.

Hugo L. Black:

What I mean the principle of law stated and as I understood you to say.

David C. Acheson:

No, Mr. Justice Black.

I say that had there been a showing of a lie by the affiant, then we would agree as the dicta indicate in the — in the Pearce case that the probable cause would collapse.

David C. Acheson:

But of course the Pearce case doesn’t hold that there should be a disclosure of the informer because that question was never presented.

Hugo L. Black:

I wasn’t (Voice Overlap) that.

I was talking about whether you can try out the facts, disputed facts to see whether or not the facts alleged upon which an affiant based his conclusions were true or false.

David C. Acheson:

Well, you can try out whether the affiant believe they were true or false because the probable cause relates only to what is the — the subjective accuracy and good faith of his affidavit.

I — I don’t think you can shake the probable cause by showing after the fact that the information that came to him was inaccurate.

Arthur J. Goldberg:

(Inaudible)

David C. Acheson:

Mr. Justice Goldberg, the furs were found or proven to have been hanging on individual wire of hangers unconcealed behind closet doors that were not locked to double door closet in the petitioner’s basement.

Bags, large white bags were found both in the closet and on the floor outside the closet.

Petitioner’s wife picked the fur out from among those hanging in the closet, claimed it as her own.

There was evidence that —

Earl Warren:

When did she pick it up, you mean after the search or at the time?

David C. Acheson:

At — at the time of the search, Mr. Chief Justice.

Earl Warren:

At the time of the search, yes.

Yes.

David C. Acheson:

The —

Arthur J. Goldberg:

(Inaudible)

David C. Acheson:

That’s right but her first statement was that it belonged to her.

The brother, Leo, returned the key.

Some — some evidence showed, although there’s dispute about that, some week or 10 days before the search took place, it was evidenced that petitioner’s wife used the basement after they’re returned from their vacation on March 4th.

From then to a time of the search, used it by doing laundry there, consumable goods were stored on closet shelves there, the basement showed the signs of — of use.

The reliability, the — the credibility of both petitioner and petitioner’s wife when they denied knowledge of the furs hanging there, was severely shaken we submit by the testimony of Agent Lee, Agent Moore, and U.S. — Assistant U.S. Attorney Monahan, a large volume of conflicts of evidence were developed in their testimonies — between their testimony and petitioner and petitioner’s wife, which went that certainly to the credibility of petitioner and of petitioner’s wife.

The instructions to the jury are very clear that this is a case involving circumstantial evidence, that the jury may consider circumstantial evidence, the usual instruction, this appears at page 575 of the original trial transcript.

That a — an inference of knowledge, of the stolen character of goods is permissible from proof of their possession, another instruction going to what is possession and joint possession between petitioner and petitioner’s wife of the premises where the furs were found.

All constructing the basis for permissible jury inference that possession was in fact had by petitioner of the stolen goods and of course since he had it and there is no explanation of how he had it, by him, a number of uncapped channels of — of witnesses that he must have known they were stolen.

That was the case, certainly lying well within the cases under Section 2315.

(Inaudible)

David C. Acheson:

Yes, he did at some length, Mr. Justice Harlan.

Byron R. White:

(Inaudible) the defendant has to make when there’s been a confidential information used for a search warrant.

What kind of a showing does he have to make before he’s entitled to that name because it would be useful at the trial?

David C. Acheson:

Well, —

Byron R. White:

Now, on this particular case, you can — you can imagine that — that if that — the confidential informant was a participant in the crime or was a colleague of the — of the — of the — of the thieves or one of those thieves themselves that — that the defendant might very easily had used that confidential informant to show that the defendant wasn’t involved in it at all?

David C. Acheson:

Well, if I may suggest one or two types of showings, the showing that —

Byron R. White:

Well, first a — why in this case wouldn’t the name — wouldn’t the informant be useful to the defendant in his — in connection with his defense?

David C. Acheson:

Because the indictment, Mr. Justice White, charges possessions on or about March 22nd.

That was the day of the search.

The informant’s only knowledge, we all agree, was knowledge between March 9th and March 15th, some 10 days prior.

No testimony at the trial suggested any transaction, conversation, interview, physical presence or anything else at the time of the crime between the petitioner and the confidential informant.

Now, all of these cases were used at the trial, justifies disclosure or in cases where the Government agents get on the stand.

And they say, “We saw defendant go into a house with in the informant X.

When informant X came out of the house, we searched him and found narcotics in his pocket.

Who is informant X?

So we can’t carry it to say and that the philosophy is that if the Government puts into evidence transactions with the informant to convict the petitioner and by gully, they have to put the petition — the — the informant on the stand, so the petitioner can defend himself.

In this case, there was no hint of any incriminating transaction, conversation or as I say, even physical juxta position between the petitioner and the informant in the case.

Earl Warren:

(Inaudible) who it was?

David C. Acheson:

None that would go to the crime of possession charged on or about March 22nd.

The informant —

Earl Warren:

Suppose it his — suppose it was his brother who — who was inlaid with the burglars and — and who did what those first in that house while he was away — the petitioner was away in — in Florida.

And suppose the brother was a man who — who is the informant, wouldn’t that have been a great importance to this petitioner to know that his brother was the one who had made the — had made the affidavit or given the information for the affidavit?

David C. Acheson:

Well, if the issue —

Earl Warren:

Wouldn’t that have helped him to get an acquittal?

David C. Acheson:

Mr. Chief Justice, I honestly don’t think so and the reason I don’t think so is this, petitioner was not charged with receiving stolen goods or stealing goods.

Actually the — I think, the term receiving is in the statute but the — the theory of the prosecution was that he had criminal possession of stolen goods.

Earl Warren:

But is there any evidence in the record to show that he was ever in that basement from the time he came back from Florida?

David C. Acheson:

Only the — no direct evidence.

There are circumstantial evidences.

Earl Warren:

What circumstantial evidence that he was in there?

David C. Acheson:

Well, none that he was there himself.

Circumstantial evidence that he must have known was there —

Earl Warren:

Why?

David C. Acheson:

Because he came through — his wife’s use of the basement’s articles, jointly — jointly owned by both of them.

Earl Warren:

Why would the chief charge — why would the chief charge them with — would it if she was the one who — who had the knowledge?

David C. Acheson:

I — I don’t know that answer to that question, Mr. Chief Justice.

Earl Warren:

Well then, if you’re going — if you’re not going to do that, don’t you have to tie it up to him in some personal way?

Can you rely on the fact that his wife knew it therefore, he must know it?

David C. Acheson:

Well, the fact that his wife used the basement the fact that the information that she must’ve had about the bags and about furs would, in all probability have come to him and the fact that his testimony was shaken by a tax on his credibility on rebuttal have all laid the basis for a permissible jury inference.

Earl Warren:

Well, what — what was that evidence that shook his credibility?

David C. Acheson:

Well, he testified to — I think the best condensation is abusive conduct by the FBI agents who arrested him.

Earl Warren:

I beg pardon?

David C. Acheson:

He testified to abusive conduct by the FBI agents who arrested him.

Two of the agents, particularly the one arresting agent, denied all of those.

His wife similarly made charges of — of statements, concessions and conduct against other agents and those agents denied that in terms that collaborated each other rather persuasively.

I think clearly the question of their incredibility as witnesses, was submitted to the jury.

Hugo L. Black:

I would like to get — so as I’m not to get fairly — yet fairly understand what concession the Government is making.

Of course, when there is an arrest without a warrant, taken before magistrate, the judge has to hear the facts, listen to testimony and get the facts and get evidence.

Constitutional provision, however, is that it shall not be made without a warrant by magistrate.

Now, when Costello, we held that you could not go behind the facts in indictment to try out the issues to where the grand jury should have indicted.

Are you conceding here that when a warrant is issued by a magistrate upon facts that are alleged that the defendant can go behind that reviewed to see whether or not the magistrate had the power to do that are and on the other hand, here evidenced, new evidence?

A motion is challenge — challenging the sufficiency of the affidavit in here, evidence to determine whether the man who made the affidavit testified truthfully or falsely.

David C. Acheson:

There — there is a warrant Mr. Justice Black and a motion to suppress.

Hugo L. Black:

That’s right, based on an affidavit.

David C. Acheson:

And on the hearing, a witness comes forth and he testifies to facts which make it probable or at least, reasonably inferable that the affiant lied let us say or had knew that what he was saying was — was inaccurate on the substantial way.

Hugo L. Black:

Alright, let’s suppose he did.

Let’s suppose — let’s suppose (Voice Overlap) —

David C. Acheson:

Now, another circumstances I — I —

Hugo L. Black:

What — what will the Government say then?

David C. Acheson:

I don’t think the Government would take the position that nevertheless the — the probable cause will stand although they can see the affiant —

Hugo L. Black:

But suppose, I’m talking about the warrant.

David C. Acheson:

Well, of course it rests upon probably cause.

Hugo L. Black:

Yes, it rest upon probably cause on affidavit of probable cause —

David C. Acheson:

That’s right.

Hugo L. Black:

— satisfactory to the magistrate.

David C. Acheson:

No.

Hugo L. Black:

Had this Court ever held, it maybe it has, I was looking into brief.

Had this Court ever held that you can try out anew to determine differently to the magistrate on the affidavit given there that in reality there was no probable cause?

David C. Acheson:

Well, in the Jones case certainly, the Court suggested that if a serious attack were made on a good faith of the affiant, there would be a basis there to disclose the informant.

Now, disclosing —

Hugo L. Black:

I’m not talking about disclosing with that informant.

David C. Acheson:

Well on — but the next — the next step is what you’re talking about Mr. Justice Black, there’s no point in disclosing the informant unless the informant is then permitted to do contradict the facts stated by the affiant.

Hugo L. Black:

Well, are you conceding from that that there is a right to have a trial in advance of the trial, in order to determine whether the magistrate should’ve denied that on the ground that he has more facts, he would’ve known that the man was testifying?

David C. Acheson:

No, we’re — we’re saying —

Hugo L. Black:

As I understand it, I’m asking you this because as I understand it, the general rule is, in most of states —

David C. Acheson:

Yes.

Hugo L. Black:

— and I don’t know that we’ve passed on it that the sufficiency of the warrant issued by the magistrate is determined not be what the actual truth is with reference to it, but whether taking that as true which the magistrate accepted as true, that name of the affidavit, that was probable cause to issue the warrant.

Otherwise, you’d have two-trial such as we said in Costello would not be committed — permitted in connection with the attacking an indictment.

David C. Acheson:

Well, Your Honor, of course, there are hearings on motions to suppress everyday.

Hugo L. Black:

That’s right.

David C. Acheson:

Now, all we’re saying is that —

Hugo L. Black:

The different kinds of motion to suppress.

David C. Acheson:

We — we wouldn’t —

Hugo L. Black:

Their motions to suppress, where there has been no warrant issued, no affidavit made.

David C. Acheson:

Right.

Hugo L. Black:

And maybe their motions to suppress everyday.

But that doesn’t answer the inquiry that I have in mind.

That’s why I was trying to find if the Government thought it was answered.

David C. Acheson:

On — on a hearing — in a hearing on a motion to suppress evidence, we would certainly not take the position that evidence is barred from the hearing going to the subjective good faith and truthfulness of the affiant.

Hugo L. Black:

Well, has this Court held that?

David C. Acheson:

Unless I say, I think the necessary suggested, Jones —

Hugo L. Black:

I’m not talking about necessary suggested.

David C. Acheson:

I’m not aware of any —

Hugo L. Black:

It’s a very important statement you’re making with reference to the law.

Hugo L. Black:

Maybe the courts held it.

David C. Acheson:

I’m not aware of a case in which it’s been squarely held.

Simple — simple case or extreme case, you would say though that motion to suppress with a defendant to come in to show that the affiant had told other agent, who is making this affidavit would lie and he said that he was informed, (Inaudible)?

David C. Acheson:

Yes, that’s it Your Honor.

I — I think it would be an unconscionable —

As I understand you to say that the inquiry is not to prove that simply because as a matter of constitutional law, it is a probable cause satisfied (Inaudible).

David C. Acheson:

That’s right and as a matter of the self-respect of the prosecutor.

William J. Brennan, Jr.:

In other words, you would not take the act, you would take the situation as Mr. Justice Black is suggesting that some states do but you can’t go behind the affidavit that the magistrate acted upon but if the affiant lied in anything he said, you prosecute him for perjury.

But you go beyond that you’ve — you’ve said it, that if you had proved that the affiant lied, that maybe a basis for find — a holding that probable cause collapsed.

David C. Acheson:

Yes, I think another way of putting it is that we can’t — there can’t be a conclusive presumption that the Commissioner is the guarantor of the good faith and the truthfulness of all affiants.

Byron R. White:

You don’t suggest that all you have to do is — is to say that the affiant was lying and then you’re entitled to the confidential informant.

David C. Acheson:

Oh no —

Byron R. White:

You have to prove it first.

David C. Acheson:

No, no.

Well, when you talk about —

Byron R. White:

Independent evidence.

David C. Acheson:

Disclosing the informant, you then introduce a brand new public policy that has to be weighed against the interest in disclosing, which wouldn’t arise if you were just bringing out perfectly open testimony that the affiant lied.

Hugo L. Black:

(Inaudible) under which for this preliminary part of the prosecution, the search warrant shall not be issued and that arrest shall not be made.

It — it then go to the merits of the trial.

It goes to the merits of whether or not you can — you can charge him with an offense and arrest him or have a search warrant.

And that it might — it has been argued and as I think, the rule is the motion of state.

If the constitutional provision authorizes that, it doesn’t mean that the action of the magistrate so far as that preliminary conduct is concerned, is final.

And you are saying it on the basis that you think that’s unconscionable, I understood you to say that it could be challenged but where are you cases?

Do we have any cases that have said this —

David C. Acheson:

I’m not —

Hugo L. Black:

— that has been decided.

David C. Acheson:

I’m not aware of any Mr. Justice, but I don’t think and here are perhaps, I take exception with Your Honor, I don’t think that the suggestion in Jones should be ignored because what’s — what’s the purpose of — of the confidential informant unless it looks towards some attack on the underlying probable cause.

Hugo L. Black:

Well, the purpose of it is to try to safeguard against the risk and system has been provided, whereby affidavit — upon affidavit, a magistrate will have the authority to decide that question.

That’s — that’s the purpose of it.

And if he’s decided it and it maybe true that I’m not — I have not said that I would not so hold, it maybe true that you can by reason of making it to this degree or that degree wrong, I doubted it, that’s right if we should draw degree then I think that it’s open challenge, it ought to be open to challenge and let it be tried over, but it — that’s a lot of delay but that’s alright, if that’s what the — what — what the law intended.

David C. Acheson:

I wanted to be clearly understood, Mr. Justice Black, that I am not speaking of the case where the evidence you suggest is provided by a confidential informant.

Hugo L. Black:

Well, I was not — I can’t draw that distinction about confidential informant myself.

The — the question in my mind is whether the protection offered by the Fifth Amendment — by — by the Amendment which provide to get against unreasonable searches and seizures intended to provide the system whereby the magistrate has a duty, expressed duty, the — have something proven to his — that it did give probable cause.

That’s a preliminary step in a prosecution.

And whether that’s to be thrown off, to be tried in every — to — to challenge every search warrant and every warrant on the ground, well if this man didn’t testify the truth to the magistrate or whether his judgment about that is final so far as the issues of the warrant is concerned.

You see, when you get them that — that — that’s required as we said, Costello would be to challenge the indictment, open up warrant of arrest in order to have a trial on that issue again or you’ll never positively get to the trial of your case.

Earl Warren:

Mr. Echeles.

Julius Lucius Echeles:

I’ll try to do it within five minutes.

To answer Mr. Justice Black’s question, was there a case decided by this Court in which this Court determined that a hearing on the truth or falsity of a warrant was proper at a hearing, we refer Your Honor to Giordenello versus United States, 357 U.S. 480.

And it is my belief in that case that Your Honors held that a hearing on the truth of — on the truth or falsity of the warrant is appropriate after arrest.

With respect to the Chief Justice’s question, whether or not anyone was prosecuted, I did not in my original argument, make any comment on — on it because it was — it holds the record, but I state to this Court without further contradiction that nobody else to this date was arrested or prosecuted whether somebody will be or not, it’s something which I have no knowledge.

May I come to Pearce, that’s a Seventh Circuit case from which this case arises, that’s 275 F.2d, in that case, the affiant to get a search warrant was an FBI agent, he said under oath, “I received information from a confidential informant previously known to me to be reliable.”

He didn’t even say that he got it second hand removed as the agent said of this case.

The trial judge there in the District Court of Chicago, as distinguished from the trial judge here in the District of Chicago, permitted under Giordenello, a hearing on the validity of the search warrants.

The following facts occurred.

The affiant agent revealed that he did not get the information from a confidential informant previously known to him to — previously known to him to have been reliable.

He got it from his superior in Chicago.

His superior in Chicago got it from a parallel individual, a comparable FBI agent in Portland, Oregon or Seattle, Washington I forget.

And that that individual got it from an agent who got it from the confidential inform — informant who was named John Pearce, the brother of the defendant in that case.

John Pearce was then brought to court, the confidential informant, and he testified under oath that he did not speak to any agent until September 9 of the particular year in question, but the affidavit asserted facts known to the affiant on September 7, two days before the affiant agent was alleged under oath, to have spoken to a series of agents who got their information from an informant.

The confidential informant in that case, was not a confidential informant.

He did not exist according to the affidavit and he never before in his life gave information to the agent and the information alleged by the affiant that he gave was incorrect in the affiant.

Now, how would Pearce be reversed in the Court of Appeals for the Seventh Circuit, unless the trial judge there permitted what the trial judge here did not permit?

Where is the defendant going to go?

What can he do to demonstrate the falsity of the affidavit?

His abilities, his powers nowhere equal, we don’t come close to the power and the magnitude that the Government has to protect an informant, for example or to reveal information.

All we can do is do our best on the basis of the affidavit that we had and on the basis of the affidavit that we had in this case, we demonstrated within those areas within our power falsity of an importance.

The Government has attempted to trivialize it in every brief they have said, when the affiant gave information so-called, to the affiant agent, the confidential informant said that he saw one of the — one of the burglars swish in the Meat Market managed by Rugendorf.

The Government now asserts to this Court, that’s trivial.

Presumably, the Government prepared that affidavit in the hopes that that is corroborative — that is corroborative of the final conclusion to issue the search warrant against Sam Rugendorf.

Julius Lucius Echeles:

And as Mr. Justice Brennan —

(Inaudible)

Julius Lucius Echeles:

First, of the — of the affiant, stated that — that an informant has advised him that Sam Rugendorf was the manager of Rugendorf Brothers Meat Market.

That was not so.

The affiant —

(Inaudible)

Julius Lucius Echeles:

— that Sam Rugendorf managed the Meat Market —

(Inaudible)

Julius Lucius Echeles:

No, Your Honor.

(Inaudible)

Julius Lucius Echeles:

Respectfully no, Your Honor.

If we can show that — if we can show that the affiant is putting into the information incorrect information, supposing Your Honor — supposing, Mr. Justice Harlan, there were no affiant.

(Inaudible)

Julius Lucius Echeles:

I’m sorry, confidential informant.

Supposing —

(Inaudible)

Julius Lucius Echeles:

— we can’t —

(Inaudible)

Julius Lucius Echeles:

Well, we demonstrated that Agent McCormick, who is alleged by the affiant to have told Policeman Kelleher that Sam Rugendorf managed the Meat Market, was incorrect.

Now, we’re accused of not bring again Agent McCormick who I advised the Court, we were told the day before is in the hospital for an operation from which I may now advice the Court that this is the course of the record too, he never recovered.

He died of cancer.

Hugo L. Black:

(Inaudible) the one which you referred?

Julius Lucius Echeles:

The Giordenello?

Hugo L. Black:

Yes, I have just read it and I —

Julius Lucius Echeles:

Yes, Your Honor.

Hugo L. Black:

I read it quite differently.

Julius Lucius Echeles:

No, Your Honor, I don’t.

I assume that that might have answered Your Honor’s question.

The Seventh Circuit —

Hugo L. Black:

If you can find any, would you send them in too.

Julius Lucius Echeles:

Yes, Your Honor.

Yes sir, I thank the Court.