United States v. Harris

403 U.S. 573, 91 S. Ct. 2075, 29 L. Ed. 2d 723, 1971 U.S. LEXIS 18

Opinions

Mr. Chief Justice Burger

announced the judgment of the Court and an opinion in which Mr.- Justice Black and Mr. Justice Blackmun join, and in Part I of which Mr. Justice Stewart joins, and in Part III of which Mr. Justice White joins.

We granted certiorari in this case to consider the recurring question of what showing is constitutionally necessary to satisfy a magistrate that there is a substantial basis for crediting the report of an informant known to the police, but not identified to the magistrate, who purports to relate his personal knowledge of criminal activity.

In 1967 a federal tax investigator and a local constable entered the premises of respondent Harris, pursuant to a search warrant issued by a federal magistrate, and seized jugs of whiskey upon which the federal tax had not been paid. The warrant had been issued solely on the-basis of the investigator’s affidavit, which recited the following: •

“Roosevelt Harris has had a reputation with me for over 4 years • as being a trafficker of nontaxpaid distilled spirits, and over this period I have received numerous information [sic] from all types of persons as to his activities. Constable Howard Johnson located a sizeable stash of illicit whiskey in an abandoned house under Harris’ control during this period of time. This date, I have received information from a person who fears for their [sic] life and property should their name be revealed. I have interviewed this person, found this person to be a prudent person, and have, under • a sworn verbal statement, gained the following information: This person has personal knowledge of and has purchased illicit whiskey from within the residence described, for a period of more than 2 years, and most recently within the past 2 weeks, has knowledge of a person who purchased illicit whiskey within the past two days from the house, has personal knowledge that the illicit whiskey is consumed by purchasers in the outbuilding known as and utilized as the 'dance hall/ and has seen Roosevelt Harris go to the other outbuilding, located about 50 yards from the residence, on numerous occasions, to obtain the whiskey for this person and other persons.”

Respondent was subsequently charged with possession of nontaxpaid liquor, in violation of 26 U. S. C. § 5205 (a)(2). His pretrial motion to suppress the seized evidence on the ground that the affidavit was insufficient to establish probable cause was overruled, and he was convicted after a jury trial and sentenced to two years’ imprisonment. The Court of Appeals for the Sixth Circuit reversed the conviction, holding that the information in the affidavit was insufficient to enable the magistrate to assess the informant’s reliability and trustworthiness. 412 F. 2d 796, 797 (1969).

The Court of Appeals relied on Aguilar v. Texas, 378 U. S. 108 (1964), in which we held that an affidavit based solely • on the hearsay report of an unidentified informant must set forth “some of the underlying circumstances from which the officer concluded that the informant . . . was 'credible’ or his information 'reliable.’ ” Id., at 114. It concluded that the affidavit was insufficient because no information was presented to enable the magistrate to evaluate the informant’s reliability or trustworthiness. The court noted the absence of any allegation that the informant was a “truthful” person, but only an allegation that the informant was “prudent.” Having found the informant’s tip inadequate under Aguilar, the Court of Appeals, relying on Spinelli v. United States, 393 U. S. 410 (1969), looked to, the remaining allegations of the affidavit to determine whether they provided independent corroboration of the informant. The Court of Appeals held that the constable’s prior discovery of a cache on respondent’s property within the previous four years was too remote, and, citing certain language from Spmelli, it gave no weight whatever to the assertion that respondent had a general reputation known to the officer as a trafficker in illegal whiskey.

For the reasons stated below, we reverse the judgment of the Court of Appeals and reinstate the judgment of conviction.

I'

In evaluating the showing of probable cause necessary to support a search warrant, against the Fourth Amendment’s prohibition of unreasonable searches and seizures, we would do well to heed the sound admonition of United States v. Ventresca, 380 U. S. 102 (1965):

“ [T]he Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.” 380 U. S., at 108.

Aguilar in no way departed from these sound principles. There a warrant was issued on nothing more than an affidavit reciting:

“Affiants have received reliable information from a credible person and do believe that heroin, map- juana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises' for the purpose of sale and use contrary to the provisions of the law.” 378 U. S., at 109.

The affidavit, therefore, contained none of the underlying “facts or circumstances” from which the mag’«trate could find probable cause. Nathanson v. United States, 290 U. S. 41, 47 (1933). On the contrary, the affidavit was a “mere affirmation of suspicion and belief” (Nathanson, supra, at 46) and gained nothing by the incorporation by reference of the informant’s unsupported belief. See Aguilar, supra, at 114 n. 4.

Significantly, the Court in Aguilar cited with approval the affidavit upheld in Jones v. United States, 362 U. S. 257 (1960). That affidavit read in pertinent part as follows:

“In the late afternoon of Tuesday, August 20, 1957, I, Detective Thomas Didone, Jr. received information that'Cecil Jones and Earline Richardson were involved in the illicit narcotic traffic and that they kept a ready supply of heroin on hand in the above mentioned apartment. The source of information also relates that the two aforementioned persons kept these same narcotics either on their person, under a pillow, on a dresser or on a window ledge in said apartment. The source of information goes on to relate that on many occasions the source of information has gone to said apartment and purchased narcotic drugs from the above mentioned persons and that the narcotics were secreated [sic] in the above mentioned places. The last time being August 20, 1957.” Id., at 267-268, n. 2.

The substance of the tip, held sufficient in Jones; closely parallels that here held insufficient by the Court of Appeals. Both recount personal and recent

Footnotes

•

* obsérva-tions by an unidentified informant of criminal activity, factors showing that the information had been gained in a reliable manner, and serving to distinguish both tips from that held' insufficient in Spinelli, supra, in which the affidavit failed to explain how the informant came by his information. Spinelli, supra, at 416.

The Court of Appeals seems to have believed, however, that there was no substantial basis for believing that the tip was truthful. Indeed, it emphasized that the affiant had never alleged that the informant was truthful, but only "prudent,” a word that “signifies that he is circumspect in the conduct of his affairs, but reveals nothing about his credibility.” 412 F. 2d, at 797-798. Such a construction of the affidavit is the very sort of hypertechnicality — the “elaborate specificity once exacted under common law” — condemned by this Court in Ven-tresca. A policeman’s affidavit “should not be judged as an entry in an essay contest,” Spinelli, supra, at 438 (Fortas, J., dissenting), but, rather, must be judged by the facts it contains. While a bare statement by an affiant that he believed the informant to be truthful would not, in itself, provide a factual basis for crediting the report of an unnamed informant, we conclude that the affidavit in the present case contains an ample factual basis for believing the informant which, when coupled with affiant’s own knowledge of' the respondent’s background, afforded a basis upon which a magistrate could reasonably issue a-warrant. The accusation by the informant was-plainly a declaration against interest since it could readily warrant a prosecution and could sustain a conviction against the informant himself. This will be developed in Part III.

II

In determining what quantum of information is necessary to support a belief that ah unidentified informant’s information is truthful, Jones v. United States, supra, is a suitable benchmark. The affidavit in Jones recounted the tip' of an anonymous informant, who claimed to have recently purchased narcotics from the defendant at his apartment, and described the apartment in some detail. After reciting the substance of the tip the affiant swore as follows:

“Both the aforementioned persons aré familiar to the undersigned and other members of the Narcotic Squad. Both have admitted to the use of narcotic drugs and display needle marks as evidence of same.

“This same information, regarding the illicit narcotic traffic, conducted by [the defendant] has been given to the undersigned and to other officers. of the narcotic squad by other sources of information.

“Because the source of information mentioned in the opening paragraph has given information to the undersigned on previous occasion and which was correct, and because this same information is given by other sources does believe that there is now illicit narcotic drugs being secreated [sic] in the above apartment . . . .” Id., at 268 n. 2.

Mr. Justice Frankfurter, writing for the Court in Jones, upheld the warrant. . Although the information in the affidavit was almost entirely hearsay, he concluded that there was' “substantial basis” for crediting the hearsay. The informant had previously given accurate information; his story was corroborated by “other sources” (albeit unnamed); additionally the defendant was known to the police as a user of narcotics. Justice Frankfurtér emphasized the last two of these factors:

“Corroboration through other sources of information reduced the chances of a reckless or prevaricating tale; that petitioner was a known user of narcotics made the charge against him much less subject to scepticism than would be such a charge against one without such a history.” Id., at 271.

Aguilar cannot be read as questioning the “substantial basis” approach of Jones. And unless Jones has somehow, without acknowledgment, been overruled by Spinelli, there would be no basis whatever for a holding that the affidavit in the present case is wanting. The affidavit in the present cáse, like that in Jones,- contained a substantial basis for crediting the hearsay. Both affidavits purport to relate the personal observations of the informant — a factor that clearly distinguishes Spinelli, in which the affidavit failed to explain how the informant came by his information. Both recite prior events within the affiant’s own knowledge — the needle marks in Jones and Constable Johnson’s prior seizure in the present case — indicating that the defendant had previously trafficked in contraband. These prior events again distinguish Spinelli, in which no facts were supplied to support the assertion that Spinelli was “known ... as a bookmaker, an associate of bookmakers, a gambler, and an associate of gamblers.” Spinelli, supra, at 422.

To be sure there is no averment in the-present affidavit, as.there was in Jones, that the informant had previously given “correct information,” but this Court in Jones never suggested that an averment of previous reliability was necessary. Indeed, when the inquiry is, as it always must, be in determining probable cause, whether the informant’s present information is truthful or reliable, it is curious, at the very least, that Mr. Justice Harlan would place such stress on vague attributes of “general background, employment . . . position in the community . . . .” (Post, at 600.) Were it not for some language in Spinelli, it is doubtful that any of these reputation attributes of the informant could be said to reveal any more about his present reliability than is afforded by the support of the officer’s personal knowledge of the suspect. In Spinelli, however, the Court rejected as entitled to no weight the “bald and unilluminating” assertion that the suspect was known to the affiant as a gambler. 393 U. S., at 414. For this proposition the Court relied on Nathanson v. United States, 290 U. S. 41 (1933). But a careful examination of Nathanson shows that the Spinelli opinion did not fully reflect' the critical points of what Nathanson held since it was limited to holding that reputation, standing alone, was insufficient; it surely did not hold it irrelevant when supported by other information. This reading of Nathanson is confirmed by Brinegar v. United States, 338 U. S. 160 (1949), in which the Court, in sustaining a finding of probable cause for a warrantless arrest, held proper the assertion of the searching officer that he had previously arrested the defendant for a similar offense and that the defendant had a reputation for hauling liquor. Such evidence would rarely be admissible at trial, but the Court took pains to emphasize the very different functions of criminal trials and preliminary determinations of probable cause. Trials are necessarily surrounded with evi-dentiary rules “developed to safeguard men from dubious and unjust convictions.” Id., at 174. But before the trial we deal only with probabilities that “are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Brinegar, supra, at 175.

We cannot conclude that a policeman’s knowledge of a suspect’s reputation- — something that policemen frequently know and a factor that impressed such a “legal technician” as Mr. Justice Frankfurter — is not a “practical consideration of everyday life” upon which an officer (or a magistrate) may properly rely in assessing the reliability of an informant’s tip. To the-extent that Spinelli prohibits the use of such probative information, it has no support in our prior cases, logic, or experience and we decline to apply it to preclude a magistrate from relying on a law enforcement officer’s knowledge ~of a suspect’s reputation.

Ill

Quite apart from the affiant’s own knowledge of respondent’s activities, there was an additional reason for crediting the informant’s tip. Here the warrant’s affidavit recited extrajudicial statements of a declarant, who feared for his life and safety if his identity was revealed, that over the past two years he had many times and recently purchased “illicit whiskey.” These statements were against the informant’s penal interest, for he thereby admitted major elements of an offense under the Internal Revenue Code. Section 5205 (a)(2), Title 26, United States Code, proscribes the sale, purchase, or possession of unstamped liquor.

Common sense in the important daily affairs of life would induce a prudent and disinterested observer to credit these statements. People do not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions. Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility — sufficient at least to support a finding of probable cause to search. That the informant may be paid or promised a “break” does not eliminate the residual risk and opprobrium of having admitted criminal conduct. Concededly admissions of crime do not always lend credibility to contemporaneous or later accusations of another. . But here the informant’s admission that over a long period and currently he had been buying illicit liquor on certain premises, itself and without more, implicated that property and furnished probable cause to search.

It may be that this informant’s out-of-cóurt declarations would not be admissible at respondent’s trial under Donnelly v. United States, 228 U. S. 243 (1913), or under Bruton v. United States, 391 U. S. 123 (1968). But Donnelly’s implication that statements against penal interest are without value and per se inadmissible hap been widely criticized; see the dissenting opinion of Mr. Justice Holmes in Donnelly, supra, at 277; 5 J. Wigmore, Evidence § 1477 (3d ed. 1940), and has been partially rejected in Rule 804 of the Proposed Rules of Evidence for the District Courts and Magistrates. More important, the issue in warrant proceedings is not guilt beyond reasonable doubt but probable cause for believing the occurrence of a crime and the secreting of evidence in specific premises. See Brinegar v. United States, supra, at 173. Whether or not Donnelly is to survive .as a rule of evidence in federal trials, it should not be extended to warrant proceedings to prevent magistrates from crediting, in all circumstances, statements of a declarant containing admissions of criminal conduct. As for Bruton, that case rested on the Confrontation Clause of the Sixth Amendment which seems inapposite to ex parte search warrant proceedings under the Fourth Amendment.

It will not do to say that warrants may not issue on uncorroborated hearsay. This only avoids the issue of whether there is reason for crediting the out'-of-court statement. Nor is it especially significant that neither the name nor the person of the informant was produced before the magistrate. The police themselves almost certainly knew his name, the truth of . the affidavit is not in issue, and McCray v. Illinois, 386 U. S. 300 (1967), disposed of the claim that the informant must be produced whenever the defendant so demands.

Reversed.

Mr. Justice Stewart joins in Part I of The Chief Justice’s opinion and in the judgment of the Court.

Mr. Justice White agrees with Part III of The Chief Justice’s opinion and has concluded that the affidavit, considered as a whole, was sufficient to support issuance of the warrant. He therefore concurs in the judgment of reversal.

We reject the contention of respondent that the informant’s observations were too stale to establish probable cause at the time the warrant was issued. The informant reported having purchased whiskey from respondent “within, the past 2 weeks,” which could well include purchases up to the date of the affidavit. Moreover, these recent purchases were part of a history of purchases over a two-year period. It was certainly reasonable for a magistrate, concerned only with a balancing'of probabilities, to conclude that there was a reasonable basis for a search.