RESPONDENT: United States
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."
Did the affidavit included in the warrant application afford probable cause sufficient to issue the search warrant?
Media for Spinelli v. United StatesAudio Transcription for Oral Argument - October 16, 1968 in Spinelli v. United States
Audio Transcription for Oral Argument - October 17, 1968 in Spinelli v. United States
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.
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.