Spinelli v. United States

PETITIONER:William Spinelli
RESPONDENT:United States
LOCATION:apartment

DOCKET NO.: 8
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 393 US 410 (1969)
ARGUED: Oct 16, 1968 / Oct 17, 1968
DECIDED: Jan 27, 1969

Facts of the case

Agents of the Federal Bureau of Investigation (FBI) applied for, and were issued, a search warrant to assist in uncovering evidence of defendant William Spinelli conducting illegal gambling activities. In the affidavit required for the warrant application, the FBI agents stated the defendant was known to “local law enforcement officials as a bookmaker.” The FBI related in the affidavit that agents had tracked defendant Spinelli for five days, and that on four of the days, Spinelli was seen crossing into St. Louis, MO, entering an apartment at 1108 Indian Circle Drive. Finally, the agents offered that they “had been informed by a confidential reliable informant that William Spinelli is operating a handbook and accepting wagers and disseminating wagering information by means of the telephones which have been assigned the numbers WYdown 4-0029 and WYdown 4-0136.”

Question

Did the affidavit included in the warrant application afford probable cause sufficient to issue the search warrant?

Earl Warren:

Number 8, William Spinelli, petitioner versus the United States.

Mr. Baris you may continue with the argument.

Irl B. Baris:

Mr. Chief Justice and may it please the Court.

Yesterday afternoon, I was asked a question I believe by Mr. Justice Fortas and the press of the recess I did not get a chance to complete my question related to the information which I feel is necessary to be included in an affidavit for a search warrant and with particular reference to the previous reliability of the informant.

I have here a handbook on the Law of Search and Seizure to be distinguished of course from the handbook about which we’re kind of talking in this particular case.

This is a legal handbook, I would say.

This was published very recently by the government and I note that on page four, for instance, these are instructions to law enforcement officers as to what should be included in an affidavit.

And they say specifically on page four, and where the informant is undisclosed, you can back up the other person’s thrustworthiness by showing prior dealings with him which were reliable to backup your belief that the information he is now giving you is reliable.

At the end of the book, there are several examples of what should be included in affidavits then three of them, I think are particularly noteworthy because they are — these examples are based upon information by a reliable informant and in the first one it says, informant has given me reliable information on narcotic sales five times within the last four months.

Example number two says informant has provided reliable information about robberies on two occasions during the last three months and example number five says a reliable informant, who has given reliable information on narcotics offenses on three occasions within the last two months.

Now I have also would like to draw the Court’s attention to the various cases decided by this Court in which there have been information supplied by informants and I think that in each of those cases where the search warrant has been sustained, there is substantially more than was included in the affidavit that we have in the instant case and then those in which the search warrant was not sustained, we have a comparable situation.

For example in the McCray case, which was not a search warrant case, but was an arrest without a search warrant, one of the officers testified in support of his probable cause that he had received information from the undisclosed informant on 15 or 16 occasions in the past which resulted in numerous arrests and convictions.

A second officer said that he had received information from his informant on 20 to 25 occasions.

In the Reagan case, which was a per curiam decision of this Court, involving a search warrant in which the search warrant was held to be not good, it merely stated that information from sources believed to be reliable which I consider to be very comparable to what we have here where they set a confidential, reliable informant.

In the Ventresca case, a search warrant case in which the search warrant was proved, there was no informant involved but only government investigators and I think the government investigators are in a different category from an undisclosed informant.

In the Beck case, not a search warrant but in which the arrest and the subsequent search was held to be invalid, the officer had information but there was nothing said in his testimony concerning the credibility of the informant.

In the Aguilar case, the search warrant, the application said reliable information from a credible person, which I think is practically what we have in this case, again the search warrant was held to be not good.

In the Rugendorf case, involving a search warrant, there were three informants and as to each of them it says, whom the FBI had found to be reliable or who have furnished reliable information to the Federal Bureau of Investigation in the past or who had supplied the FBI with reliable information in the past.

In the Kerr case, not a search warrant case but involving probable cause on arrest, the informant had previously given information leading to at least three arrests.

In the Jones case, the second Jones case, the 362 US, the informant gave information on previous occasions which was correct.

That case was reversed on other grounds although the search warrant was sustained in that case.

And in the Draper case which was relied upon heavily by the majority opinion of the Court of Appeals in this case and which is relied upon by the government in their brief, there was a special employee of the FBI who had been serving for six months and who gave the information which was found to be — and had previously given information which was found to be reliable.

Upon the authority of those cases, it is my contention that merely to say that the informant is a reliable, confidential informant, does not satisfy the requirements of the probable cause, requirement of the Fourth Amendment.

In addition to the other reasons which we have alleged and indicated in our brief, and which we discussed yesterday, I feel also that the search warrant here was improper because the affidavit did not relate the time when the alleged informant gave this information to the government nor when he allegedly obtained this information.

There is a case of the United States Court of Appeals of the First Circuit, the Rosencrams case cited in our brief, which says that merely the use of the present tense is not sufficient for these purposes.

Earl Warren:

What was the lapse of time here in this case?

Irl B. Baris:

Well your honor, there was nothing said in the affidavit itself and of course, I think the cases hold it that one must, on appeal, govern it by what is in the affidavit.

It merely said in the present tense the Federal Bureau of Investigation has received information.

Now at the hearing on the motion to suppress, there was some testimony that the information had been given in the early part of August, it was no more specific than that.

The search warrant was applied for on the 18th of August and was executed on that date.

Irl B. Baris:

We have also indicated two other points in our brief, one with reference to the fact that more items were seized than the search warrant required.

The Court of Appeals seemed to justify the seizure of a pencil-sharp narrow radio and adding machine, watch, eyeglasses, all under the general heading of gambling paraphernalia.

We feel that to allow any seizure on the ground of gambling paraphernalia makes it a general warrant and is improper.

In fact, we were in the anomalous situation that they seized—the search warrant provided for the seizure of two telephones, they seized five and I suppose the government’s contention is the two telephones are two telephones but the other three telephones were not telephones but gambling paraphernalia.

Now with reference to a final point that we have brought up in our brief, and that is with reference to the execution of the search warrant.

The facts in this case are that immediately after the agents received the search warrant, they apparently went back to their office for certain mechanical equipments and walkie-talkies apparently and then went out to the scene of the search.

But instead of breaking into the premises or obtaining entrance into the premises, they went to an apartment next door and waited from 4:55 in the afternoon until 7:05 in the afternoon, a period of two hours and 10 minutes.

They — so far as the record shows, did nothing during that period of time except to wait and when the petitioner exited from the subject apartment, they then came out of the apartment next door and — which was right across the hall in fact, and immediately placed the petitioner under arrest and then, by virtue of a key, was they obtained from his possession, went into the subject premises.

It is our belief that this is not forth with execution of a search warrant as is required by Rule 4 that forthwith means, under these circumstances, immediately.

We believe that of course there is the provision in Rule 4 that a search warrant must be executed within a period of 10 days after it’s issued, otherwise is it loses its validity.

But our position is that where the officers have the search warrant, were at the premises, had everything available to them for getting into the premises including the right under Section 3109 to break the doors, that they should have executed it forthwith.

Now the Court of Appeals decision has indicated that it was incumbent upon petitioner to show some prejudice resulting from this delay.

We have found no case which directly is in point with this particular proposition, except as mentioned in the concurring opinion of Judge Bazelon in the Mitchell case which we have cited in our brief.

But it is our position —

Are you implying — do you claim that this delay of case, the officer do not rely on a search warrant but on the search instead of an arrest?

Irl B. Baris:

Your honor, I don’t know that they have not attempted to justify it on that basis throughout this case, I think that perhaps they were giving themselves an opportunity to do so if the government decided to do that on the basis that the search warrant would be held invalid.

Perhaps, I’m merely speculating as to the government’s position.

Perhaps, they’re giving themselves an ace in the hole, so to speak, that if the search warrant were declared to be invalid, then they would have, as an alternative the question of an arrest and a search incidental to the arrest.

Did they make a return on the warrant?

Irl B. Baris:

Yes they did make a return on the warrant.

It is our position therefore that the search was not executed forthwith and that the burden is not upon the petitioner to show prejudice because the burden is not on the position to show prejudice, in an instance where, for instance under the Marin case, I believe it is that in which — no the Wong Tai case, in which, under Section 3109, where the defendant was not required to show prejudice because the officers fail to identify themselves before making the entry into the premises.

I have reserved the balance of my time for rebuttal if the Court please?

Earl Warren:

Mr. Connoly?

Joseph J. Connoly:

Mr. Chief Justice and may it please the Court.

The issue in this case is whether the United States commissioner, reasonably found, on the facts contained in this affidavit, that there is probable cause to search apartment 1108 Indian Circle Drive.

Petitioner’s argument proceeds by separating at each statement in the affidavit and showing wherein that statement fails to supply certain information, which also would be relevant to the commissioners finding the probable cause.

By adding up the alleged deficiencies, petitioner concludes that there was no probable cause.

But that analysis is not fully responsive to the question here.

The primary inquiry is not what the affidavit did not contain, but what it did contain.

Whether there were enough facts on which the commissioner could make his own independent judgment of the grounds for a search, and whether tat judgment on the affidavit taken as a whole, was reasonable.

Joseph J. Connoly:

Cause for reversal lies not in whether a judge were on review, would not have issued the warrant because of the absence of certain particular information, but whether there was such a complete lack of information that that the Commissioner’s apparent finding was nothing more than a rubber stamp for the police.

Petitioner’s counsel is discussed what the affidavit did not contain, but I would like to say it out briefly what it did contain.

It stated that the FBI had received information from a confidential, reliable informant, that petitioner was operating a handbook and accepting wagering information over two specified telephone numbers, way down 40029 and way down 40136.

It stated the petitioner is known to Agent Bender, who was the affiant, to other federal agents and to local police as a bookmaker and as a gambler.

It also showed the results of the agent’s own investigation, to corroborate the information which had been received.

It said that the telephone company record showed that both telephone specified by the informant, were in operation and that both of them were located in apartment F, at 1108 Indian Circle Drive, under the name of Grace Hagen.

It showed the petitioner had been under surveillance by the FBI during the three weeks preceding the application for the warrant.

When the four consecutive business days he was followed, he drove from Illinois into St. Louis in the early morning, and then roughly at the same time every afternoon, he drove out to Olivette, Missouri, a suburb some 30 minutes drive from downtown St. Louis and went to apartment F at 1108 Indian Circle Drive.

The apartment whiched contain the two telephones specified by the informant.

This affidavit answered the commissioner’s hypothetical question, what makes you think that there is bookmaking going on in apartment F?

Agent Bender replied, “Because I received specific information from a reliable informant about a bookmaking operation by an individual whom I know to be a bookmaker.

And because I verified that information by my own investigation and by the observations of petitioner’s conduct.”

Earl Warren:

What was it about is going to a place in another community every morning and zapping in another place on the way of fact a man going to his own apartment, what is there of an incriminating nature in that?

Joseph J. Connoly:

Well, Mr. Justice, the affidavit first of all didn’t set, Mr. Chief Justice, the affidavit didn’t say that the apartment at 1108 Indian Circle Drive was his apartment.

From the face of the affidavit, it appears that he lived in Illinois, came over to St. Louis —

Earl Warren:

Well his apartment, to whether he lived there —

Joseph J. Connoly:

Well the only —

Earl Warren:

But what is there incriminating about that?

Joseph J. Connoly:

Well, the incriminating aspect of it Mr. Chief Justice is that that apartment contained the two telephones specified by the informant, that he was a known bookmaker, and that a known bookmaker making regular visits to an apartment with two telephones, itself provide some suspicion.

Now I’m not saying that that conduct, that observed conduct by itself would be at all sufficient to satisfy probable cause.

But what it did do was it corroborated the information which was received from the informant that he is carrying on a handbook operation by the use of the two telephones in his apartment.

Very much the way, Draper’s conduct in the Draper case corroborated Hereford’s information.

Hereford said that Draper would be coming in on a train, either one of two days, I think September 8th or September 9th, Hereford described the way Draper would be dressed and said that he would be carrying a tan zipper bag.

Well on the second day that the agents were waiting in the railroad station, a man came out, fitting the description that Hereford had given of Draper, walking hardly and carrying a tan zipper bag.

And the Court held, that with all the other information that Hereford had given, corroborated by the agent’s investigation, there was probable cause to believe that the incriminating accusation i.e. that Draper was carrying narcotics, also would be corroborated.

Earl Warren:

Was there anything incriminating about having two telephones in an apartment?

Joseph J. Connoly:

There’s certainly nothing which would give probable cause —

Earl Warren:

Well then don’t you go back then to just this simple fact, it is alleged that a confidential informant have told the affiant that this man was operating a book there.

Don’t you get back to that?

These other things in and of themselves not being incriminating, do you not get back to that one fact to support your affidavit.

Joseph J. Connoly:

Mr. Chief Justice, petitioner correctly points out that it is sufficient that the finding of probable cause does depend upon their being adequate assurance of thrustworthiness of the hearsay information.

Now in Jones versus the United States, this Court held that a valid affidavit may be issued in the basis of information supplied by an unnamed person as long as there is a reasonable basis for corroborating the hearsay.

And in the Jones case, the Court found the reasonable basis for corroborating the hearsay.

In the officer’s statement that the informant have previously given accurate information, that his story was corroborated by other sources of information, and that the suspect to the informant’s tip was known by the police to be a user of narcotics.

Petitioner relies heavily on the Aguilar case, a subsequent case in which the Court considered the sufficiency of the affidavit which presume to rely on hearsay information.

I say presume to rely hearsay information because there’s a world of difference between this case and the Aguilar case.

The Aguilar case, in fact did not tell us — the affidavit in the Aguilar case did not say exactly what information had been received in the informant.

The affidavit began that the police have reason to believe and do believe that Aguilar kept narcotics in his house.

And then it went on to say that the officers have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics are being kept for sale at Aguilar’s house.

Earl Warren:

In what sense is that different from your allegation?

Joseph J. Connoly:

It’s critically different Mr. Chief Justice because there is nothing in the Aguilar affidavit that says what information was given to the police.

It said that the officer say they had received reliable information from a credible person.

Earl Warren:

To what effect?

Joseph J. Connoly:

And do — it didn’t say that, and do believe.

From all that appears in the affidavit in Aguilar, it differed from the defective affidavits in Nathanson and Giordenello.

Only in the sense that the officer’s own belief was supported some extent by the fact that they had received undisclosed information from an unnamed person.

That was the only real difference between the affidavit in Aguilar and the defective documents in those two cases.

Earl Warren:

Do you feel that it would be a burden on the government to require them to put something in their affidavit as to the reason for the belief that this was a confidential employee.

Joseph J. Connoly:

Reliable informant?

Earl Warren:

Reliable informant rather.

Joseph J. Connoly:

No Mr. Chief Justice, I don’t believe it would be a burden on the government.

The Court’s approval in Aguilar, of the affidavit in Jones indicates that the test of Aguilar with respect to the informant’s general reliability may be satisfied by a statement which says that the informant had provided information on one previous occasion.

That’s not a great burden on the government Mr. Chief Justice but I think at this point I’d like to point out that the government believes —

Earl Warren:

As a matter of fact, the government, according to that article that counsel read, actually tells each people to do that, doesn’t it?

Joseph J. Connoly:

Yes it does.

Earl Warren:

Why don’t you stay with it, it says that they do it?

Joseph J. Connoly:

Well Mr. Chief Justice, to go back to perhaps the source of the statement in the handy guide to legal search and seizure is that the requirement in Aguilar, that there be some underlying circumstances to justify believing the informer was generally reliable.

I believe it’s misconstrued by a petitioner.

There’s nothing in the Aguilar case which tells —

Earl Warren:

When he talks about the Aguilar case there, he’s talking about your own bulletin. (Voice Overlap)

Earl Warren:

That challenges people what they are to put in these search warrants.

Joseph J. Connoly:

All right I’ll take off from my own bulletin.

Suppose that the informer is not an informer with whom the agents have had any prior dealings at all Mr. Chief Justice.

Earl Warren:

Couldn’t he say that he’s a businessman in the community who has good reputation and a resident and this man has told him that this is true, this is investigated and he knows that his word is reliable and so forth?

Joseph J. Connoly:

They could put that in, Mr. Chief Justice although if they’re — I think rarely would be situations in which a businessman or a bank president or someone like that be giving information about a gambling place.

Earl Warren:

Why do you say that?

Joseph J. Connoly:

But suppose they just don’t know.

Earl Warren:

Why do you say that?

That a good citizen and a businessman might not do such a thing?

Suppose he had an apartment in the same building and he didn’t want gamblers to be in there and he told the police that he knew that there was a gambling operation there, would that be normal?

Joseph J. Connoly:

No Mr. Chief Justice, I think that would be — I was particularly thinking about —

Hugo L. Black:

Do you think it would be normal for him to do that publicly or do you think he’s in connection to be to do that and say, but don’t get me mixed up in it.

Joseph J. Connoly:

Well there’s certainly —

Hugo L. Black:

With reference to a group of gamlers.

Joseph J. Connoly:

Mr. Justice I think that there would be a very natural reservation for the individual to place himself, certainly to place himself in a position where adverse action may be taken against him by the criminal element.

But, in Mr. Chief Justice, I think you’re absolutely correct about the circumstances in which a citizen might see a bookmaking operation going on next door and report it to the police.

In some manner, I was particularly thinking about the type of information that was supplied in this case which was really, it was insider information, it was business information, not the type of information that one could take out just by observation.

But again getting back to what this handbook says, Aguilar does suggest that there must be some underlying circumstance for believing the informer’s reliability.

Byron R. White:

Well I take it you feel that the thrust of Aguilar is only to verify or to support the thrustworthiness of the informer in the sense of his honesty.

Joseph J. Connoly:

No, I certainly don’t.

I think that’s petitioner’s position.

My feeling about Aguilar in this whole stream of cases —

Byron R. White:

But you say underlying circumstances to show that the informer is reliable.

If that were the only thrust of Aguilar, I suppose an experienced police officer that a judge knew was — or at least he thought was a very honest man, because that’s all that was necessary.

He could just take a policeman statement that there is gambling in a certain address, period.

But that wouldn’t be sufficient, would it?

Joseph J. Connoly:

Mr. Justice White, I was going to go on to say that petitioner has indicated that he thinks that’s the thrust of Aguilar.

Byron R. White:

So part of Aguilar tested is not just that the fellow is telling them —

Joseph J. Connoly:

It’s the reliability of the information.

That’s the —

Byron R. White:

Now tell me what is there in this information that would justify an inference that there was gambling going on.

Now let’s assume, let’s just assume that the thrustworthiness of the informer has been adequately proved by the police think he’s reliable and they say he’s reliable but now, where are the facts that will justify an inference that there was an illegal activity going on at a certain address?

Joseph J. Connoly:

Well the facts are that the — the information says that an illegal business is being conducted through the use of two specific telephones.

Byron R. White:

Well I know, I know it but you know that that isn’t enough just to say Aguilar says you have to have the underlying circumstances from which you deduce that there’s gambling going on.

Now what are those?

Two telephones.

Joseph J. Connoly:

I’m not sure if I understand the justices’ question.

Hugo L. Black:

Isn’t that a relevant circumstance that the two telephones among others?

Byron R. White:

Quite relevant.

Joseph J. Connoly:

Are you —

Byron R. White:

Quite relevant from what facts do you deduce, or is it reasonable to conclude that there’s gambling going on to that address?

Joseph J. Connoly:

Because the informant has said that gambling is going on through the use of two telephones, because the two telephones are both an operation and that both at this address.

Byron R. White:

Yes, but it’s that statement that gambing which —

Joseph J. Connoly:

All right, if the Justice is —

Byron R. White:

— for which he has some underlying circumstances.

Joseph J. Connoly:

If the Justice is referring to the statement in Aguilar which says that there must be some showing of the underlying circumstances on which the informant based his statement —

Is that the part of Aguilar that the Justice is referring to?

Byron R. White:

I’m talking about the part of Aguilar that refers to underlying circumstances, yes.

Joseph J. Connoly:

Well we — we admit that there is nothing in this affidavits which meets that particular requirement of the Aguilar formula.

But in response to your question, I would like to say two things, the first case is that Aguilar itself established the basis for a material distinction between this case and Aguilar.

In footnote 1 of Aguilar, the Court said that where there is — if the magistrate had been informed that the fact is also the surveillance, that would be and entirely different case.

And we think we have an entirely different case here.

The implication of that statement in footnote 1 —

Byron R. White:

Do you think read is all if necessary then, is that the police somehow support the veracity of the informer?

Joseph J. Connoly:

Well it’s not so —

Byron R. White:

I think if that’s what you’re arguing, that as long as some of his information has been verified, that proves that he’s a reliable person and therefore we may accept his blank statement that there is gambling going on without any —

Joseph J. Connoly:

Well Mr. Justice —

Byron R. White:

— reason for — without any explanations of why he thought gambling going on.

Joseph J. Connoly:

Well, the first place, that’s what the footnote 1 in Aguilar seems to say that can be done because in no sense, or in very, very few situations, I can’t think of any right now, can a surveillance supply the deficiency which we’re talking about right now.

That is if the affidavit doesn’t tell you how the informant got his information.

Joseph J. Connoly:

Nothing in your surveillance is going to tell you how to inform he got his information.

Now the other thing that I’d like to say —

Byron R. White:

What is so difficult, there must be some practical reason for the government not saying in their affidavit, well the informant said he saw gambling or some other circumstance.

Joseph J. Connoly:

There is nothing, Mr. Justice White, there is nothing in Aguilar which suggests that the only satisfactory showing of the underlying circumstances in which the informant gained his information was from personal observation.

Byron R. White:

I agree with that.

Joseph J. Connoly:

So in the decision —

Byron R. White:

I know but is there some reason why the government doesn’t, in the counter affidavit say what the source of the informant’s information is?

Do you think that —

Joseph J. Connoly:

Well just as

Byron R. White:

— that would surface him too much?

Joseph J. Connoly:

Just as in the cases in which the government chooses not to identify the informant by name, there is some risk that the circumstances in which the informant gained his information will serve to identify him and that there may be recriminations against him.

But to go on with our discussion, I’d also like to point out that the information in this case, that is the intrinsic facts of the hearsay information deserve some way, they’re not merely an empty vessel that are given probative value when we buy the corroborating testimony.

The informant told the agents the type of gambling activity petitioner was carrying on, the way it was being conducted and the specific telephone numbers that were being used.

Now, from our reading of Aguilar, we believe that the primary concern which prompted the Court to require some of the underlying circumstances surrounding the informant’s acquisition of his knowledge, was the concern that an individual’s unfounded or ill-founded suspicion could be in doubt with the appearance of fact merely because that individual appeared in the affidavit as a reliable informant rather than is the affiant himself.

And we think that that risk is substantially reduced in this case because the details of the information showed a working familiarity with the way petitioner carried on his business.

The details greatly reduced the risk that the information was the product of the informant’s own mere suspicion.

Potter Stewart:

Mr. Connoly, getting back to the actual circumstances, again these premises were in a residential apartment house, were they?

Joseph J. Connoly:

They were in a two-storey, eight-unit garden-type apartment.

Potter Stewart:

Two-storey, eight-unit garden-type apartment.

And these premises were not actually used for residence purposes, were they?

Joseph J. Connoly:

No sir, it was petitioner’s bookmaking operation.

Potter Stewart:

There was no furniture in there even for — so they could be —

Joseph J. Connoly:

Well there was a meager amount of furniture.

Potter Stewart:

But no residential guys, no furniture, is that correct?

Joseph J. Connoly:

That’s right.

Potter Stewart:

Now was that known to the police before they entered the premises?

Joseph J. Connoly:

It does not appear from the affidavit.

My recollection is that there is no testimony which shows that they knew that in the case.

They did conduct an investigation around the apartment building and they made arrangements with the man who had the apartment across the hall but the record doesn’t show exactly at the time of the search what they knew.

Hugo L. Black:

Do you put in your interest in the relieance of the fact that the commissioner and six experienced judges of the Court of Appeals held that this affidavit did show an outcome?

Joseph J. Connoly:

Yes Mr. Justice, we certainly do.

We think that the policies which the Court announced in Ventresca are that where the commissioner can make an independent determination on the basis of the facts in this affidavit and that where his finding is not clearly unreasonable that the finding a probable cause should not be set aside.

We place great emphasis on it.

Hugo L. Black:

I presume you would agree that this is a question of a guilt or innocence of the man.

It didn’t show us guilt beyond a reasonable doubt, wouldn’t you?

Joseph J. Connoly:

Yes Mr. Justice.

Hugo L. Black:

What you’re saying is probable cause and that was held by the commission and six experienced judges.

Do you think this Court has enigmatic capacity to determine whether it showed probable cause that there were six judges.

Joseph J. Connoly:

Well no Mr. Justice —

Hugo L. Black:

They have authority to overrule them.

Is there anything to indicate that we are wiser than they are and determine what is the probable cause?

Joseph J. Connoly:

No, Mr. Justice, the Court is consistently taking the position that it is not the function of an appellate Court to review de novo.

The finding of probable cause.

The Court has taken the position that it will look to essentially the types of information upon which a commissioner reasonably can rely in making a finding a probable cause.

Well, it’s our job to establish standards, isn’t it?

Joseph J. Connoly:

Yes sir.

And so there is to it when after — anybody.

We’re just saying whether it’s constitutional standards if that’s the word to satisfy.

Joseph J. Connoly:

Then we believe that the standards were met in this case because the commissioner relied upon types of information which this Court has specifically approved.

Could I just add something Mr. Connoly?

Does the record show how experienced is so fine?

Was he actually — the agent an old timer?

Was he a new man or?

Joseph J. Connoly:

Mr. Justice, the record does not show exactly how many years experience Agent Bender had.

Agent Bradley, who was the agent who dealt with the informant on a regular basis for two years was an FBI agent with 18 years experience.

And I’m not sure from the circumstances whether Agent Bender was the senior agent in the investigation, he certainly seemed to be in charge of the operation.

He may be more experienced or he just might have had a —

Which one was the affiant?

Joseph J. Connoly:

The affiant was Agent Bender.

Hugo L. Black:

That while the record, as I understand it, can it be escaped here by us to find it with regular standards or anything else that we are not overruling the judgment of the commissioner adn the six judges of the circuit Court of Appeals on the question of what is sufficient to show a problem solved.

Joseph J. Connoly:

I suppose that that would be the operation of the Court’s decision.

Hugo L. Black:

I don’t see how helps the case?

Joseph J. Connoly:

— reversing — reversing the judgment of the Court of Appeals.

Abe Fortas:

Mr. Connoly I complement you on —

Joseph J. Connoly:

I’m sorry sir?

Abe Fortas:

I want to complement you on your handling of those questions.

Joseph J. Connoly:

Thank you sir.

Abe Fortas:

May I call your attention to page 27 of the record, the opinion below.

In that list, the Court’s understanding of what the affidavit says, are you in agreement that that is a fair summary of the affidavit and so far as it relates to the question of probable cause?

Joseph J. Connoly:

Well Mr. Justice, without quivering with some details, I tell you you’re talking about the listing at the bottom of page 27?

Abe Fortas:

That’s right, yes.

Joseph J. Connoly:

The affidavit did not — I’m not quibbling with minor details in it.

The affidavit did not say that the apartment was not petitioner’s home but it can reasonably be inferred, we believe from the affidavit that it was not his home.

In order for it to be his home, he somehow would have had to have gotten over the East St. Louis, Illinois in the morning then to come back through that way and the agents — there is nothing in the affidavit —

Abe Fortas:

Well it wouldn’t be any point and all this was —

Joseph J. Connoly:

That’s right.

Abe Fortas:

Silly — apparently sillier recital about the petitioner’s premise except for the purpose of showing that he went to this apartment as if it were a place of work.

Is that your inference from it that I’d say he’d go there every morning as if he were employed there.

Joseph J. Connoly:

Yes sir.

Abe Fortas:

As if it were not his home.

Joseph J. Connoly:

Yes sir.

Potter Stewart:

Well it’s implied at least on page 5 of your brief that they — that whether or not they knew that it was anybody’s residence over there in Missouri, they certainly knew it was not his residence because on the fourth line on page five you say stating the facts, they saw him depart in the late morning from his residence in East St. Louis, Illinois, and drive to St. Louis, Missouri and in the afternoon in an apartment building and so on.

Joseph J. Connoly:

Yes Mr. Justice, those are the facts.

Now the only reason that I was hedging is that the affidavit picked him up, not at his home but as he was starting across the east side of the bridge into St. Louis in the morning so I have, in order to defend the affidavit, I have to infer that the apartment F was not home but that his home was where he came from in the morning that is in St. Louis, Illinois.

Potter Stewart:

The references on page five of your brief to pages 58, 59 and 70, 71, that’s the original record rather than the appendix.

Joseph J. Connoly:

Yes Mr. Justice, that’s his —

Potter Stewart:

Thank you.

Joseph J. Connoly:

If the Court please, I’d like to try to tie up our argument with respect to this efficiency of the affidavit and the thrustworthiness of hearsay by referring to the policies annunciated by this Court in United States versus Ventresca.

The Court’s opinion, written by Mr. Justice Goldberg, who was the author of the opinion in Aguilar, stated that where an affidavit sets out facts on which the magistrate can make an independent determination of the grounds for a search.

The Court should not set aside the magistrate’s finding of probable cause by interpreting the affidavit in a hyper technical, rather than a common sense manner.

Joseph J. Connoly:

The Court recognized in Ventresca, as it did in Jones, that in the circumstances in which affidavits are normally drafted by policemen in the midst of a criminal investigation and without legal assistance if the affidavit is bound to leave some questions unanswered.

The affidavit here does not answer all the questions which might have occurred to the commissioner.

He would have been more confident in his finding if he had been told to the extent to which the informant had provided accurate information of the past.

He may have been curious as to whether the agents had been able to determine the volume of calls to the two telephones or whether there really was a Grace Hagen for other questions.

But the teaching of Ventresca is that the affidavit’s failure to supply certain facts is fatal only if it undermines the reasonableness of the inferences which may be drawn from the facts which the affidavit does continue, or put it another way, only if the inference is rest to heavily on the officer’s good faith, rather than the magistrate’s own independent judgment.

The critical issue in this case is the thrustworthiness of the hearsay.

The corroborating information of the affidavit provided a basis in which the commissioner defined the hearsay thrustworthy without relying on the agent’s good faith.

The reasonableness of that finding is not undermined by the defects which petitioner alleges.

The court in Ventresca also cautioned that a grudging where negative attitude by reviewing boards to award warrants, will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

The concern which prompted that statement, I believe is illustrated by the facts of this case.

We believe that Agent Bender did have at least a reasonable option to decide whether to go get a search warrant or to go in on the basis of the information he had without a warrant.

Abe Fortas:

The affidavit here does show a surveillance by the FBI, does it not?

Joseph J. Connoly:

It does.

Abe Fortas:

In Aguilar, there was no surveillance by the FBI shown by the affidavits, right?

Joseph J. Connoly:

The affidavits showed no surveillance and of course —

Abe Fortas:

And the Court in footnote one know what you have referred did emphasize that point.

Joseph J. Connoly:

Yes sir it did.

Earl Warren:

Well the surveillance in and of itself mean anything in the affidavit of that kind?

Suppose they have it under surveillance for a month and don’t see a thing, does that prove anything that they have it under surveillance?

Joseph J. Connoly:

No, Mr Justice.

I believe in footnote one in Aguilar said, if the facts and results of such a surveillance had been presented to the magistrate, it would have been a different case.

Certainly, in so far as any indication of illegal activity, the existence of a surveillance is not meaningful.

But in this case, the existence of a surveillance is meaningful, particularly with reference to whether the informant was a reliable informant.

We submit that the commissioner was justified in relying on the fact that on the basis of the information which the FBI received from the informant, the instituted the three weeks of surveillance involving numerous agents.

Certainly the FBI does not act injudiciously with its time.

And this is an indication of the credence which they placed in this informant’s information.

Thank you.

Byron R. White:

Mr. Connoly, I take it that you do agree that this one man to the Aguilar test was added to the percentage of –.

Maybe the magistrate says that the magistrate must be informed with some of the with some of the undersigned — from which the informant includes that the narcotics before they return to him —

Joseph J. Connoly:

That’s right Mr. Justice.

Joseph J. Connoly:

We believe that that certainly is —

Byron R. White:

— efficient in and then that was fast in this case?

Joseph J. Connoly:

The affidavit doesn’t —

Byron R. White:

Because it certainly is that in this plain case that the affidavit is good, but in a different way that the informant becomes credible to rely on?

Joseph J. Connoly:

But we think that the affidavit is good on the basis of the whole — that the policy is of the entire line of cases in this area.

Byron R. White:

And you hardly — you would suggest that that first branh, if you call it, would overrule Draper?

Joseph J. Connoly:

Oh yes, it would certainly overrule Draper.

Thank you very much.

Hugo L. Black:

The commissioner was entitled to find that this was a reliable informant, is just the same as if you’d said he was a banker or a preacher?

The affidavit stated that, didn’t it?

Joseph J. Connoly:

Mr. Justice, we believe that the commissioner found that the hearsay information was thrustworthy and that was the important finding.

Hugo L. Black:

What I ask for is, was he not entitled to find that the information it had came from a reliable informer based on the oath of the officer.

Joseph J. Connoly:

Mr. Justice I don’t think that that position could be squared with Aguilar.

Hugo L. Black:

Did what?

Joseph J. Connoly:

I don’t believe that that position, if we took that position.

I don’t believe we could square it with Aguilar.

Hugo L. Black:

Oh you think Aguilar said something different?

Joseph J. Connoly:

Well I really think that —

Hugo L. Black:

You think it requires the commissioner to ignore the oath of the officer that his information came from a reliable source and go into detail in order to prove that the reliability of the matter?

Joseph J. Connoly:

Well, Mr. Justice in the particular circumstances in which the particular facts of Aguilar, that is a case where the reliability, the thrustworthiness of the information could only be determined by two things.

One —

Hugo L. Black:

By what?

Joseph J. Connoly:

By two things.

One, whether it came from a reliable person and two, the circumstances in which that person obtained the information.

There were no other surveillance, there was no indication of knowledge on the part of the agents, there wasn’t anything else.

And I think that the —

Hugo L. Black:

Except that he said in — and that he was a reliable informant.

Why isn’t that just as good as swearing that he is a minister of the gospel?

Joseph J. Connoly:

Because —

Hugo L. Black:

Why you have to go into detail any more than to say it if you know he’s reliable at least in a preliminary thing like a search warrant?

Joseph J. Connoly:

Well, I think that the government would have difficulty maintaining that position because —

Hugo L. Black:

You think it will have difficulty in maintaining it before the Court or do you think it would have difficulty in maintaining it as a matter of common sense?

Joseph J. Connoly:

Well we think certainly as a matter of common sense that is something which we can find supportable in very, very many cases.

But the Giordenello-Aguilar line of cases does suggest that the Court will require something more of the officers than merely their statement.

Hugo L. Black:

And affidavit, that the witnesses rely upon?

Do you think it require something more swearing under oath that the information came in person to the FBI knows to be reliable?

Joseph J. Connoly:

Yes Mr. Justice Black, at least in a circumstance where there is nothing but the hearsay information which was the particular facts in Aguilar and limiting it to that.

At least in that case, we believe that —

Hugo L. Black:

Where was this all of it, the hearsay information?

Joseph J. Connoly:

Well I know it sir, I mean —

Hugo L. Black:

Was all of it hearsay, all the information given to the commissioner a hearsay?

Joseph J. Connoly:

Not in this case, no.

Hugo L. Black:

Because I’m talking about this case.

Joseph J. Connoly:

No, no, not in this —

Hugo L. Black:

I’m not talking about Aguilar, I meant this case.

It was not.

Joseph J. Connoly:

No it was not hearsay.

Thank you Mr. Chief Justice.

Earl Warren:

Mr. Baris.

Irl B. Baris:

Mr. Chief Justice and may it please the Court.

I would like to say first of all, with reference to the question posed by Mr. Justice Black concerning the commissioner’s acceptance of the affidavit as being sufficient.

I believed that if the commissioner merely accepts what the affidavit says, then he is becoming as was indicated to use a language of the Aguilar case a rubber stamp for the police.

I think the commissioner must —

Hugo L. Black:

Why would it be a rubber stamp, that’s a witness?

These are witnesses to facts and he accepts it.

Irl B. Baris:

He is basing it upon a hearsay statement.

Hugo L. Black:

All information?

Irl B. Baris:

The information which came from the informant was hearsay, Mr. Justice Black, and the question about the reliability was merely a conclusary statement that he is a reliable informant.

Hugo L. Black:

Well why didn’t you have a conclusary statement in providing an affidavit to show probable cause?

Irl B. Baris:

I read the —

Hugo L. Black:

— of that to go out and get evidence to support everything that’s in it like it went into trial?

Irl B. Baris:

Well I read the Aguilar case is saying that there must be some underlying circumstances to show the reliability of the informant.

Hugo L. Black:

How much?

Irl B. Baris:

I think that an indication is in the handy guide of the government that the informant has given previous information on three occasions over the past two months would be satisfactory.

Byron R. White:

Is that enough?

Is this — had said this information comes from the same information comes from an informant.

We’ve had 20 successful experience with which to rely to.

Would that be alright to charge him?

Irl B. Baris:

I think that under those circumstances it would be all right, Mr. Justice White.

I cannot draw a line of distinction and I’m sure this Court —

I beg your pardon?

Byron R. White:

— that you’re not in this stuff when you might say “Let’s just settle the — performance.”

Irl B. Baris:

That’s right.

It was just the conclusion on the part of the affiant that he was a reliable informant.

He did not say on what he based this question of reliability and I think that there must be some indication as was indicated in the McCray case where they justified probable cause by a number of arrests.

Byron R. White:

Whats was — what about Draber?

Irl B. Baris:

In Draper, with reference to reliability, the individual was an employee of the government who had been supplying reliable information over a period of six months and on that basis, the Court has held him, I will recognize the propriety of that decision and that respect that he was a reliable informant.

But the background of the informant was included in the information that was given here, it was not included in the information given to the commissioner.

Byron R. White:

Well, do you think if the — as far as you’re concerned with being logical if a policeman made an affidavit saying that an informant believes that reliable which brings with, with last year 50 times.”

Except those gamblings going on with a certain guess, period.

Irl B. Baris:

With reference to the question of reliability, I would think that that affidavit would be sustained by the cases that we have.

Byron R. White:

So a warrant would issue on that affidavit?

Irl B. Baris:

I would say that there must be more to corroborate what the informant said.

I’ve been discussing with you, if you please, Your Honor, the question of the reliability of the informant himself.

Now I believe, contrary to what Mr. Connoly said, as far as my position is concerned, I think that Aguilar says more than just, there must be a substantiation of the reliability of the informant.

I think there must, in addition be substantiation of the reliability of his information.

I think that that’s the second thrust of the Aguilar case and in the hypothesis that you posed, that there was nothing indicating the corroboration of what he said.

And I fee l also that there was nothing to corroborate the conclusion on the part of the informant in this particular instance that a handbook was being operated and I don’t think that the surveillance, Mr. Justice Fortas as sufficient.

Abe Fortas:

Well you, what do you do about footnote 1 in Aguilar at number one and number two?

You don’t contend, do you that this is as clear a case for your purposes as Aguilar.

Abe Fortas:

Aguilar was just a very brief statement that a confidential informant had furnished information, that’s all and here it’s arguably and a way there is other information.

Irl B. Baris:

Well, if Your Honor please in —

Abe Fortas:

Do you take the position that this is as clear a case as Aguilar?

Irl B. Baris:

Yes I do your honor, not just because I am an advocate in this position but I do feel it for this reason that there is absolutely, in this affidavit as I read it, no corroboration whatsoever about the ultimate conclusion of the informant that a handbook was being operated.

Now bear in mind that in Aguilar, what we have is an allegation by an informant of the commission of a federal offense, to with the possession of narcotics.

Here, the only thing that the informant said is an allegation of the commission of a state offense, the operation of a handbook.

There are other elements to the federal offense that is the traveling.

The surveillance was not corroborative of anything that the informant said.

Now, getting back to footnote 1 of Aguilar, if the surveillance were to include indications that the petitioner had been followed and he stopped and he met a different people and money was seen to be exchanged and notes were seen to be made and other information was dispensed, then that surveillance would be corroborative of the federal offense.

But I looked at the surveillance indicated in this affidavit as attempting to supply one element of a federal offense, the interstate travel.

The informant’s information —

Abe Fortas:

Well what actually — what actually happened here, as stated by the government on page four of its brief, that is not said out in the affidavit, but the government says that what actually happened is that agents in another apartment overheard a bookmaking operation being conducted over telephones in the apartment in question here and they alleged that this was not assisted by any mechanical amplification, somebody had very good ears I guess.

Irl B. Baris:

They said there were no carpets in the apartment.

Abe Fortas:

And — yes.

And then thereafter they conducted a surveillance for about three weeks, surveillance of the petitioner for about three weeks.

Now what the affidavit does here is to pick up the point of surveillance and talks about the interstate features of petitioner’s activities and it shows surveillance in the interstate activities and then it has the information on it about the telephones, may or may not be meaningful.

The reputation of the petitioner which may or may not be meaningful and that’s about some in substance of it but whatever that may add up to in one’s mind, it certainly a great deal more I should think than the naked allegation and the search for naked statement and the search for it in Aguilar.

Irl B. Baris:

Well I compare Aguilar with this case on the basis of the meet of the informant’s information.

The informant in Aguilar and the informant here was the only indication of any illegal conduct on the part of the defendant in each of those cases.

I would say that the other information about his travels is certainly not illegal, unless it’s combined with other illegal conduct.

But, we have a situation where what the informant said was merely a state violation and did not supply all the elements of the alleged federal offense.

The other elements of the alleged federal offense came in from the surveillance showing his interstate travel.

But there was nothing to tie those two in as part of a federal offense and nothing to tie to corroborate the surveillance on the one hand and the informant’s information on the other hand.

They were completely disjointed.

Abe Fortas:

Well it comes down, I suppose it comes down to a question of how strict the standards for a probable cause in an affidavit must be on the constitution in order to justify the issue and serve a search warrant with perhaps does this case present a problem that is more difficult than Aguilar?

Irl B. Baris:

Yes I will agree with you, Your Honor on that.

Abe Fortas:

You’ll agree with that, won’t you?

Irl B. Baris:

Yes I will.

As I said before, as an advocate I must take a strong position but I will agree that this case does involve an extension perhaps of the Aguilar rule but in my view, based upon Aguilar and the other cases, this is a logical extension of the rule of the Aguilar case.

Hugo L. Black:

May I ask you one other question?

Irl B. Baris:

Yes Your Honor.

Hugo L. Black:

Suppose the defendant had been put on trial and the government had put the informer on the stand and there had been a challenge to his reliability and character, could the government have all put particular instances of the past to show that he had been truthful?

Irl B. Baris:

I would think that on the question of admissibility of such evidence at the trial, it would not be admissible.

Hugo L. Black:

It would not be admissible because that’s not the way you prove reliability and character.

You prove it by statement of somebody who knows you.

This fellow said he knew it and and that he knew him to be a reliable man.

Irl B. Baris:

Of course —

Hugo L. Black:

That would have been sufficient on the trial, wouldn’t it?

Irl B. Baris:

At the trial, if that became an issue, yes sir.

Hugo L. Black:

But it requires more that’s your probable cause?

Irl B. Baris:

Well, in this instance I might point out that the man who made the affidavit had not had any contact with his alleged reliable informant.

His contact was with another agent who in turn communicated —

Hugo L. Black:

Well frequently that’s true when you go to approve character reputation.

What you have here is whether the government, in order to show probable cause when it has somebody to testify, receive this, the man who has a good character, character being reliable whether it’s necessary for the government to go further in a probable cause case than it would in a trial case.

Irl B. Baris:

I believe the government is under that requirement Your Honor because I think —

Hugo L. Black:

I think that’s right.

Irl B. Baris:

I think on the issue of probable cause, there is a more basic issue than what appears at the trial.

There is a more basic issue —

Hugo L. Black:

The basic issue is guilt or innocence, isn’t it?

That’s what I thought about criminal law.

Irl B. Baris:

At the trial it is, Your Honor, but I think that in the commissioner states, the basic issue is one of probable cause.

Earl Warren:

Very well.