United States v. Ventresca

PETITIONER:United States
RESPONDENT:Ventresca
LOCATION:United States Post Office and Courthouse

DOCKET NO.: 28
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the First Circuit

CITATION: 380 US 102 (1965)
ARGUED: Jan 18, 1965 / Jan 19, 1965
DECIDED: Mar 01, 1965

Facts of the case

Question

  • Oral Argument – January 18, 1965
  • Audio Transcription for Oral Argument – January 18, 1965 in United States v. Ventresca

    Audio Transcription for Oral Argument – January 19, 1965 in United States v. Ventresca

    Earl Warren:

    United States Petitioner versus Giacomo Ventresca.

    Mr. McCann.

    Matthew R. McCann:

    Yes sir.

    Mr. Chief Justice and may it please the Court.

    My name is Matthew McCann and I’m a lawyer in Worcester, Massachusetts, and I represent the defendant in this action, Mr. Giacomo Ventresca.

    Very briefly so that you will know what happened here, I have a trial practice and this man was referred to me for purposes of handling his trial.

    He was arrested for possession of an illegal distill in the home or rather in a cellar of his house at 148 1/2 Coburn Avenue.

    That house is a couple of miles from where my office is located and what happened here was that a search warrant was sought for on August 30, 1961 to search the house.

    That affidavit — that a search warrant was bottomed on an affidavit, which is the principal issue or the central issue in this case.

    On September 1, the search was made and the distill was seized in the cellar of the house.

    It was done about quarter of nine in the morning.

    Mr. Ventresca and his wife and family were still in their pajamas.

    The federal officers entered under authority of the search warrant, went into the cellar, seized and apprehended distill and destroyed the contraband they found there.

    And quite collaterally went up to the second floor and rifled the contents of the bureau drawer and the top of the bureau and took the wallet out of the man’s pants pocket, which were hanging on the closet door and alike and so, I filed a motion to suppress the evidence and have it returned.

    Potter Stewart:

    During that collateral of activities, that evidence was returned with it.

    Matthew R. McCann:

    That was returned.

    Potter Stewart:

    They were returned, weren’t they?

    Matthew R. McCann:

    That was returned.

    Potter Stewart:

    Well, that’s no longer in the case.

    Matthew R. McCann:

    No longer in the case.

    So that those extraneous matters – items, which should not have been seized, matters of evidence rather than matters of crime were returned, but I lost the motion hearing on the matter of the hearsay affidavit, which I thought it to be and the case proceeded to trial.

    I tried the case in the Federal District Court of Boston and I lost it and the man was given a jail sentence and a fine.

    I took an appeal to the Circuit Court for the First Circuit.

    And the three court, three-judge bench sustained my appeal and reversed the sentence, reversed the judgment on a split decision two to one.

    Judge Hartigan deciding in the favor of the defendant.

    Judge Woodbury filed a dissent and Judge Aldrich filed a concurring opinion, which really — when you read it was more of a dissent to the dissent.

    Then the government requested and was granted certiorari and we are now here.

    Now, the affidavit was looked at yesterday, but since it is the central issue in the case, I think it would be well to start off today again simply by looking at the two key paragraphs.

    This affidavit was really a sandwich type in the sense that it had an introductory paragraph, a short one and a concluding paragraph, which was a short one.

    And then sandwiched in between the beginning and the end were two and a quarter pages of typed material, single space on legal sized paper, many, many facts were cited, sandwiched in between the beginning and the end, but without any specification or identification as you know from yesterday’s argument as to who saw what or whether the people who gave the information to the affiant themselves saw what were reported.

    Arthur J. Goldberg:

    Mr. McCann – with in reference to that, could you turn to the record, page 7, the first paragraph about the smelling the odor of fermenting mash, and then the next to the last paragraph on page 8.

    Now, is it not apparent that those two paragraphs that these are investigators who smelled the mash?

    Matthew R. McCann:

    Yes.

    Arthur J. Goldberg:

    And isn’t the putting all the rest of the affidavit aside, why under long line of decisions, would that not be sufficient?

    Matthew R. McCann:

    It has been held in cases that a smell of mash by a person who knows the smell would be sufficient to sustain an affidavit, but at least in those cases, it was clear or rather in those cases, they identified the person who smelled the mash or in our brief we have the Monnette case cited and the Johnson case, which was cited by my brother yesterday, and it was the affiant who smelled the mash.

    Now —

    Arthur J. Goldberg:

    [Inaudible]

    Matthew R. McCann:

    Yes —

    Arthur J. Goldberg:

    — in relation to [Inaudible]

    Matthew R. McCann:

    No but —

    Arthur J. Goldberg:

    [Inaudible]

    Matthew R. McCann:

    Yes.

    But you have to put together then and allow first a hearsay affidavit and secondly, a hearsay affidavit involving only the smell of mash and as Judge Aldrich said in his opinion in the Circuit Court, “If we’re going to go on smell and smell alone, then we have to pay some attention to the guidelines laid down in the Johnson case, find out who it was, who smelled the item, what the circumstances were.”

    I beg your pardon Mr. Clark?

    Tom C. Clark:

    It could be a hearsay affidavit in some charity, would it, he said that he personally acknowledged some of the facts, but didn’t say which one.

    Matthew R. McCann:

    Well, we don’t know in this affidavit, whether the affiant knew anything that was substantial or that went to the merits of the probable cause as the Court in Boston said, probably the only thing the affiant knew was the defendant’s address or the color of the defendant’s automobile.

    And in fact, I think the government has conceded Mr. Justice Clark that this affidavit can only fairly be looked upon as a total hearsay, since the affiant didn’t make it clear just what it was he saw if he any thing.

    William J. Brennan, Jr.:

    Well Mr. McCann, those paragraphs that said not merely investigators smelled the odor of mash, but investigators by experience, hired the affiant known to be reliable to smell the odor of mash.

    Would the case be different?

    Matthew R. McCann:

    I think it might be, Mr. Justice Brennan.

    If an affidavit were so drawn and it was clear that it was intended to rely on the smell and smell alone, and attention was focused on that one issue.

    And there was some substantiation of some lateral support to what the hearsay was that was in the affidavit or there was some reason why the names of the informers could not be disclosed.

    That maybe true but —

    William J. Brennan, Jr.:

    Well under Jones, would all those things have to be true or would it not have been enough?

    Matthew R. McCann:

    Yes.

    If I may discuss the Jones case, in that case, Didone was the affiant and the affidavit is spelled out on the footnote.

    And he relied on hearsay insofar as that item was concerned, which went to the probable cause, the existence of narcotics in someone’s apartment.

    But your bench five years ago in that case went on to say that there was some substantiation beyond the hearsay.

    Didone personally knew things too when he put them in the affidavit.

    He knew that these people had a narcotics record and he said so in the affidavit.

    Matthew R. McCann:

    They admitted to him, use of narcotics.

    They had admitted, shown him needle marks in their arms, and that was in the affidavit in the Jones case.

    So your Court went on to say that hearsay does not disqualify an affidavit, but I don’t read the Jones case and many courts do not, as opening the way to a hearsay affidavit.

    I think there maybe some confusion on the circuits and in the District Courts and in the State Courts as a result of the wording of the Jones case as to just what you meant by some substantiation giving credit to the hearsay.

    Some courts I think have thought since the Jones decision that now hearsay affidavits are okay or rather affidavits, which aren’t affidavits at all are okay.

    William J. Brennan, Jr.:

    Well, are you suggesting Mr. McCann, in fact you are right that it would not be enough, for example, to say I was told this by X.

    X is someone who had previously given me information.

    I found that information to be reliable, and that’s all what the affidavit said.

    Are you suggesting that may not be enough?

    Matthew R. McCann:

    Well, you had more than that in the Jones case, Mr. Justice Brennan.

    William J. Brennan, Jr.:

    So you aren’t –-

    Matthew R. McCann:

    And that maybe enough if we probe a little more deeply into who the informer is.

    Now —

    Tom C. Clark:

    Why are you requiring [Inaudible]

    Matthew R. McCann:

    Well, I think I’m only requiring, Mr. Justice Clark, compliance with the Fourth Amendment and Rule 41, which requires that not only that the evidence and that these facts, but did someone say so, and did he say so under oath.

    And we are not dealing here with rules of prohibative evidence.

    That was said in the Jones case that this is not a matter of whether we believe this evidence to be believable or credible.

    It’s how far beyond the Fourth Amendment requirement of an affidavit can we go.

    An affidavit means that he has sworn that what he said is the truth, and he knows it.

    Now the Jones case watered down the Fourth Amendment just a little bit, and I believe it’s a good law and it said that there are instances in these affidavits where some hearsay can creep in.

    Let’s not open wide the gates so this man can prepare an affidavit as a pro forma matter and sweep off the top of the desk and then just comply with the Fourth Amendment by signing it at the bottom and taking an oath as the Head of an Administrative Governmental office could do and as Mr. Mazaka may have done in this case, we just don’t know.

    Arthur J. Goldberg:

    [Inaudible]

    Matthew R. McCann:

    I do.

    [Inaudible]

    Well I —

    Arthur J. Goldberg:

    [Inaudible]

    Matthew R. McCann:

    I cited the Aguilar case on page 17.

    I was happy to read the decision that was my way.

    I think if you sustain — if you held the affidavit insufficient in the Aguilar case, you should do so here, because that was an affidavit that permitted hearsay upon hearsay as Mr. Chief Justice Warren indicated yesterday as a possibility, what we sometimes call totem pole hearsay.

    That affidavit in the Aguilar case said for all that appears, the source here nearly suspected, believed, or concluded that there were narcotics in petitioner’s possession.

    Matthew R. McCann:

    The magistrate here certainly could not judge for himself, he felt the persuasiveness of the fact.

    It contained — the affidavit contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein.

    It does not even contain an affirmative allegation that the affiant’s unidentified source spoke with personal knowledge, and that’s another quarrel I have with this affidavit, that not only is it hearsay, it’s conceivably totem pole hearsay, and therefore not an affidavit at all.

    Tom C. Clark:

    [Inaudible] didn’t he?

    [Inaudible] not only lifted.

    Matthew R. McCann:

    On those two isolated instances called out of two and one quarter pages Mr. Justice Clark, you are correct.

    When we look at this affidavit as a whole, it’s anonymous and it’s faceless.

    But we can nitpick through it if we choose and as Mr. Justice Aldrich said in Boston, “We can cart in a barrow-load of pay dirt and place it before the magistrate or the court and say you pan out if you will a possible nugget or two.”

    But that is not a substantial compliance with the Fourth Amendment in the opinion of Judge Aldrich of the Boston bench, nor do I think so either.

    Coming back to Mr. Goldberg’s question, sure, we can find if we search a couple of items in here, which if standing alone and which if made themselves the substance of this affidavit might qualify it.

    But should we do that?

    Hugo L. Black:

    But perhaps the magistrate who read the affidavit there in person saw the officer and knew all about it, perhaps he was then correct or not as you said.

    Matthew R. McCann:

    Perhaps, he was and perhaps he wasn’t, Mr. Justice Clark, and that’s what we don’t know.

    In other words —

    Hugo L. Black:

    He didn’t have more technicality in the affidavit, but you would have to have a lawyer almost [Inaudible]

    Matthew R. McCann:

    I don’t think it requires a lawyer to include the names of the people who saw all these things.

    Somebody did a good job here in gathering facts.

    Somebody did a careful job in typing two and one quarter pages, single spaced, a recitation of facts, and I don’t think that it’s a hyper-technical requirement as the government’s brief says to include the name.

    In other words —

    Tom C. Clark:

    The search could have been made here without a warrant on the basis of the facts that were set forth in this affidavit?

    Matthew R. McCann:

    I don’t think so.

    Tom C. Clark:

    You don’t think so?

    Matthew R. McCann:

    I don’t think so.

    No.

    Tom C. Clark:

    If investigators — if investigators were walking up and down and had somebody under observation and the smelled mash and heard noises inside the premises and did it on two separate occasions, would that have constituted probable cause for a search?

    Matthew R. McCann:

    Yes.

    Well, probably because I know the facts of the case, I might — maybe why I say no, 148 1/2 Coburn Avenue was in a backyard of what we call a three-decker in Massachusetts.

    I think they would have been taking the law into their own hands, if they had done that.

    When we talk about these investigators smelling mash and can that be the basis to search, invade and search someone’s house just to smell, we should look at all of the circumstances and as Judge Aldrich said in his dissenting opinion, “Let’s look at them”, and that’s what the Johnson case says and Judge Aldrich said, it’s nothing to do with this case.

    I can always remember the investigator who said he could smell the mash coming from the fourth floor of the six storey building while he was on the sidewalk.

    Matthew R. McCann:

    Now suppose that were the case here, would that justify a search for this man’s home?

    I would say no.

    Hugo L. Black:

    Where was this, in the building or the basement?

    Matthew R. McCann:

    This was in the basement.

    Yes.

    Potter Stewart:

    Well, that’s what the Johnson case says, isn’t it, that —

    Matthew R. McCann:

    Yes, we should look at all the circumstances.

    Potter Stewart:

    Well and it also says that it implies that if — if there had been a search warrant secured in that case, there would have been no question about the constitutionality of the search that the — there was no emergency in that case as apparently, there was no emergency here, and the Johnson case stands for the proposition that the question of probable cause ordinarily is to be decided by a magistrate when he issues the warrant.

    Matthew R. McCann:

    Yes.

    Potter Stewart:

    The probable cause is the only issue here, isn’t it?

    Matthew R. McCann:

    Yes.

    The issue was the sufficiency of affidavit and if the affidavit is insufficient then there is no probable cause.

    So it comes down to an issue of probable cause.

    Potter Stewart:

    I mean if there is — if there is — in the present posture of the case any question with respect to any other aspects of the warrant.

    Matthew R. McCann:

    No, I’m not —

    Potter Stewart:

    It’s not the place or property –-

    Matthew R. McCann:

    No, there is no longer any question raised here as to whether or not all these facts, if they are true and if somebody took an oath to their existence would constitute probable cause.

    Coming back to — I’d like to discuss just a second the Jones case and then go again to this particular affidavit, but when I said there maybe some confusion as to the application of the Jones rule, which I think is good law and should stand, the Ramirez case in the Second Circuit, I think had a pretty good statement in it.

    And the Ramirez case was calling attention to what I’m calling attention to now, that if you water down the Fourth Amendment and Rule 41, so as to allow the introduction of some hearsay in these affidavits and specifically, if you allow that hearsay to go to the root of the subject matter, then in Jones you said there still must be a substantial basis for crediting the hearsay and what did your court mean when you said that?

    And the Ramirez case says that the Jones case has now established that an affidavit consisting primarily of hearsay information maybe sufficient to support the issuance of a search warrant.

    However, the requirement that the affiant shall have personal knowledge still exists.

    Now, Mazaka had no personal knowledge in this case that we know of, that went to the heart of the affidavit.

    And the Ramirez case went on to say for under Jones the affiant must not only believe the hearsay report, but in all likelihood the affiant must further demonstrate that his informant has established a reputation for reliability so as to be worthy of belief.

    And this Second Circuit case goes on to say again, in addition, Jones may require that the affidavit includes some factual information independently corroborative of the hearsay report.

    Now if we agree that this was a total hearsay affidavit, then we come to the inevitable conclusion that there is nothing in it that is independently corroborative of that that is hearsay.

    [Inaudible]

    Matthew R. McCann:

    That was argued in the Boston hearing and there isn’t — not much stress is put on that in the government’s brief before this Court, and I don’t think so, Mr. Justice Harlan.

    That would be like saying that here is a statement, which is really not an affidavit.

    This man probably didn’t know these things, but if he says a lot, the very weight and the preponderance of all these facts in and of themselves is in some way conclusive.

    That would be saying that a one-page affidavit, which does not comply with the rule should be discarded, but a ten-page affidavit would suffice.

    Matthew R. McCann:

    In other words, it would be a test of bigness.

    If you have 10 pages of facts that may or may not be true, unless you know they are true and that someone is willing to stand up and be counted and raise his right hand and say and take an oath, then I don’t think it makes any difference whether it’s one-page or 100 pages of facts, because I don’t think the bigness of the affidavit is the test.

    I think the test is the Fourth Amendment and Rule 41.

    Arthur J. Goldberg:

    [Inaudible]

    Matthew R. McCann:

    Well, when we are trying to decide how far from the literal wording of the Fourth Amendment we can go, then when we are faced with that problem, we are faced with this.

    Number one, this affiant said he got this information from other people so it’s hearsay.

    Other investigators –-

    Other investigators with a capital I, which means nothing to me – a person who knows nothing about the internal —

    Arthur J. Goldberg:

    [Inaudible]

    Matthew R. McCann:

    Yes, and there was a lot that was made —

    Arthur J. Goldberg:

    [Inaudible]

    Matthew R. McCann:

    Yes.

    Arthur J. Goldberg:

    [Inaudible]

    Matthew R. McCann:

    Yes, so we have hearsay.

    So that’s one problem, who reported to me orally the results of their observations and their investigations.

    So now we have hearsay piled on hearsay.

    And I think the problem in this affidavit is not with anyone quarrel I would have with it, but the sum total of all of the quarrels that I have with it.

    This is an anonymous and a faceless document.

    And Mr. Justice — Justice Douglas in his dissent in the Jones case I think pointed out this particular fear here.

    That if we look at the Jones decision in its true dimensions then we are opening the gates to a faceless or a unanimous document.

    There probably is nothing wrong in an affidavit in requiring that the name of the man who saw these things be included.

    If we know who it was, who’s responsible, who’s willing to stand up and be counted, then we have some comfort or a magistrate has some comfort, because he may know the man, he’s looking at him perhaps in granting the search warrant.

    Arthur J. Goldberg:

    [Inaudible]

    Matthew R. McCann:

    If we knew who they were and if we knew that they saw what they reported rather than getting what they got from some other people or from some office file or from some tipster or informer, or from some anonymous telephone call, if all of those problems where it could be excluded from this affidavit, then this would be an affidavit.

    Without them, I fear that it’s not an affidavit.

    I think that, I can’t argue or even research this case or write this brief or argue the decision without always going back in my own mind to the why of this thing, why do we require an affidavit?

    It seems to me that we’re looking for some responsibility somewhere.

    Mr. Justice Stewart yesterday read from the decision in Stanford versus Texas and explained at length the purposes of the Fourth Amendment, and why it was written into the Constitution shortly after the ratification of the document.

    It seems to me that we’ve got to have somebody who says, “I am an affiant.

    I plight my faith,” which is what affidavit means, “I saw these things and insofar as I didn’t see them, I’ve got some basis for believing in the truth of what was reported to me.”

    Matthew R. McCann:

    If we don’t do that, then we have nobody responsible to turn to.

    Now that would be academic and that would be moot I suppose in this case or in many cases where the search turns out to be successful because in a sense for success of the search retroactively proves the affiant to have been correct.

    But we should look of course at the possibility or at the case where the search is not successful and there are unsuccessful searches and then we go back and look at the affidavit as we could in this case and we would go to Mr. Mazaka and we would say, “We did what you wanted us to do.

    We tore the house as under as in Boston recently.

    We ripped up the patio in the backyard with a steam shovel, but we didn’t find the stolen mail money.”

    And you’d go back and look at the affidavit and to out who it was who signed it and Mr. Mazaka could say, “Don’t ask me.

    I didn’t say in here that I saw anything” and then you could say, “Well, Mr. Mazaka, who was it that told you these things that resulted in the government tearing this man’s house apart stick-by-stick, rifle through the back pocket of his pants when he wasn’t in them” and Mr. Mazaka would have to say “Government investigators with a capital I”, and that’s meaningless to me.

    Then you would say, “Mr. Mazaka, who were they?

    They are superior and the treasury department would like to talk with them.” Well, I don’t remember anymore.

    It would be a possible answer.

    Another possible answer would be, well I don’t’ want to give you their names or they might get in trouble.

    So we look at this affidavit as it stands before the search.

    Tom C. Clark:

    Did you try to get their names?

    Matthew R. McCann:

    I could if Your Honor please when the trial is on.

    Tom C. Clark:

    But, did you try?

    Matthew R. McCann:

    No, because I didn’t feel I needed too.

    If the search is successful and results in an indictment, then we have the right to search, to apply on motion for the names and for the statements, but if the search is unsuccessful, Mr. Justice Clark, there was never any trial.

    There was never any case.

    There was never any forum for filing a motion, but I don’t think the burden of getting the names into the affidavit should be on the defendant.

    Tom C. Clark:

    Do you think this is different from a typical informer to say that, to gain information from one who they thought was reliable?

    Matthew R. McCann:

    I do.

    I think it’s much better to have the information come from a government employee or from a police officer.

    Tom C. Clark:

    The records of the department, if possible, they reflect the former investigation of it.

    Do they not?

    Matthew R. McCann:

    I couldn’t quite hear you, Mr. Justice.

    Tom C. Clark:

    I said the records of the Alcohol department would reflect who was on that investigation.

    Matthew R. McCann:

    I would think they would.

    Tom C. Clark:

    It shouldn’t be any trouble in you getting their names if you wanted to?

    Matthew R. McCann:

    No, but I think these cases are of general application and if you sustain this affidavit, you are clearing the way for faceless affidavits in all states of the union, in police departments of the lowest type as well as of the highest type, in state agencies and in federal agencies.

    And if this affidavit is sustained, then it would be possible for the Head of the Office merely to take out the contents of the file and put it all in one document and then say, of course, we must have an affidavit here, so I as the Head of the Office will be the one to take the oath?

    Tom C. Clark:

    But the Court has sustained again and again that it will obtain [Inaudible] this informant —

    Matthew R. McCann:

    Yes.

    Tom C. Clark:

    But it’s required upon application that his name be disclosed in certain cases.

    Matthew R. McCann:

    Yes sir.

    Tom C. Clark:

    So, that evidently is a practice that’s well expanded.

    Matthew R. McCann:

    I think that the Jones case controls and if you — if it’s based upon information supplied by an informer, there must be something else in there that is not hearsay that will give substantiation in the words of this very Court to the hearsay that is in the affidavit and I agree that information can come from an informer provided there is something else in there to give some substantiation.

    Arthur J. Goldberg:

    Mr. McCann, if we strike down on this affidavit, what would ever be the incentive on the part of the police to get a warrant?

    Wouldn’t they be much better off acting without a warrant, than justifying it on showing of a probable cause?

    Matthew R. McCann:

    I don’t think we should be discouraged, Mr. Justice Goldberg by problems of the police department.

    I think all they would have to do, would be to find out who was it, who uncovered these facts, and who — and put his name in it, so that the magistrate would be able to decide for himself whether this affidavit contains probable cause and not the police department.

    Otherwise, a police officer can come in known to the magistrate and say, “Don’t worry Mr. Magistrate, I know what I’m talking about”.

    I don’t think it’s an unfair burden on the police department or an investigating agency to have them include the names of the people and by names, I don’t mean – we’re not talking about names, it’s identity we want, it’s responsibility we want.

    It isn’t the names so much of what the man’s name is, it’s who he is.

    Now, the government has said –

    William J. Brennan, Jr.:

    How do you identify who he is?

    Matthew R. McCann:

    Well, I think the important thing Mr. Justice Brennan in asking that his name be included is that not that his name is John or Robert, but that the affidavit not to be anonymous, that somebody be responsible for it.

    Tom C. Clark:

    Well, I agree with you.

    I think when you said [Inaudible] of an informant.

    Matthew R. McCann:

    Yes.

    Tom C. Clark:

    Of known reliability, because I’m the one that believes an investigator’s general rule is to [Inaudible] of the people.

    Matthew R. McCann:

    There are cases Mr. Justice Clark let’s say that police departments are not the champions of neutrality between prosecutions and the defendants.

    I agree.

    Tom C. Clark:

    Frankly, I have been in this for a long time where I came into Court and I – the overwhelming number of cases that came to my attention where there were honest, upright, reliable people.

    Matthew R. McCann:

    And I would think so, and I would certainly want to think so, but there would be the chance of it going the other way, unless the police have to identify themselves and stand up and be counted.

    Hugo L. Black:

    You wouldn’t [Inaudible]

    Matthew R. McCann:

    No, it would not.

    Hugo L. Black:

    Well, I understood you just said a lot of [Inaudible] had to be somebody who swears to it who knows the fact.

    Matthew R. McCann:

    Well, there has to be an eyewitness at some level, Mr. Justice Black in the sense that the man who signs the affidavit or who makes known the information has to get it somehow whether by the five senses.

    It must be – he must – he has to see, smell, touch or feel in order to — to sign an affidavit, he must know what he’s talking about.

    William J. Brennan, Jr.:

    Well is that to say, Mr. McCann, if they’ve been already added here in each of these paragraphs, investigators Smith and Jones, that would be enough.

    Matthew R. McCann:

    Saw this thing —

    William J. Brennan, Jr.:

    That’s what — everything that’s in those two paragraphs —

    Matthew R. McCann:

    Then I think so —

    William J. Brennan, Jr.:

    -– Added to it, investigators Smith and Jones.

    Matthew R. McCann:

    Yes, because that would have done two things, it would have made somebody responsible and identified them, and it would have shown that we did not have totem pole hearsay here or hearsay on hearsay or that — that the information stemmed from a government employee who is reliable, yes.

    William J. Brennan, Jr.:

    Well, how does that follow?

    You’re merely saying that investigators Smith and Jones, that that would qualify the affidavit.

    Smith and Jones maybe —

    Matthew R. McCann:

    Well, I’m supposing that there would be other, that there would be the substantiation called for by Jones that these people —

    William J. Brennan, Jr.:

    Then just Smith and Jones.

    Matthew R. McCann:

    — would not be enough —

    William J. Brennan, Jr.:

    Would not be enough.

    Matthew R. McCann:

    No, no.

    I’m assuming also that you would have that added factor, you generally do that these people are reliable in some way.

    They just didn’t join the department yesterday.

    They have no part as an interest here, things of that sort.

    Tom C. Clark:

    So that’s with that is?

    They have been in department 20 years.

    Matthew R. McCann:

    I think it would help if Your Honor please, where an affidavit has as many problems as I see in this one.

    So in short, I subscribe to the rule of the Jones case that asks for some substantiation.

    I think this affidavit does not have any and I would respectfully request that the decision of the First Circuit be affirmed.

    Thank you very much.