1. While petitioner was in an apartment which he testified later
was not his, but that of a friend who permitted him to use it, the
apartment was searched by federal officers armed with a search
warrant, narcotics were found and seized, and petitioner was
arrested and charged with violating the narcotics laws. He moved to
suppress the evidence so seized on the ground that the search was
illegal.
Held: Petitioner was a "person aggrieved" within
the meaning of Rule 41 (e) of the Federal Rules of Criminal
Procedure, and he had standing to make the motion under that Rule.
Pp.
362 U. S.
260-267.
2. Issuance of the search warrant here involved was based solely
on an affidavit by a federal narcotics officer reciting that: (1)
he had received information from an unnamed informer that
petitioner and another person were involved in illicit narcotics
traffic and kept a supply of heroin on hand in the apartment and
that the informer had purchased narcotics from them in the
apartment; (2) information previously received from this informer
had been correct; (3) the same information had been received from
other sources; (4) petitioner and his associate were known to be
drug addicts; and (5) the affiant believed that illicit drugs were
being secreted in the apartment by petitioner and another person.
Held: This was sufficient evidence of probable cause to
justify issuance of the search warrant. Pp.
362 U. S.
267-272.
3. Without having done so in the District Court, petitioner
attacked in the Court of Appeals the legality of the search, on the
ground that the warrant was not executed in conformity with 18
U.S.C. § 3109. The Court of Appeals fully considered the claim, and
rejected it. The Government did not contend that the issue was not
properly before this Court.
Held: The question is open to
decision by this Court, but it cannot be resolved satisfactorily on
the record. Therefore, the judgment of the Court of Appeals
sustaining petitioner's conviction is vacated, and the case is
remanded to the District Court to consider this issue. Pp.
362 U. S.
272-273.
104 U.S. App. D. C. 345, 262 F.2d 234, judgment vacated and case
remanded.
Page 362 U. S. 258
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
This is a prosecution for violation of federal narcotics laws.
In the first count of a two-count indictment, petitioner was
charged with having "purchased, sold, dispensed and distributed"
narcotics in violation of 26 U.S.C. § 4704(a), that is, not in or
from the "original stamped package." In the second count,
petitioner was charged under 21 U.S.C. § 174, with having
"facilitated the concealment and sale of" the same narcotics,
knowing them to have been imported illegally into the United
States. Petitioner was found guilty on both counts, and sentenced
to seven years' imprisonment. The Court of Appeals, one judge
dissenting, affirmed the conviction. 104 U.S.App.D.C. 345, 262 F.2d
234. Since the case presented important questions in the
administration of criminal justice, more particularly a defendant's
standing to challenge the legality of a search in the circumstances
of this case, as well as the legality of the particular search
should standing be established, we granted certiorari. 359 U.S.
988.
Both statutory provisions under which petitioner was prosecuted
permit conviction upon proof of the defendant's possession of
narcotics, and, in the case of 26 U.S.C. § 4704(a), of the absence
of the appropriate stamps. Possession was the basis of the
Government's case against petitioner. The evidence against him may
be briefly summarized. He was arrested in an apartment in the
District of Columbia by federal narcotics officers, who
Page 362 U. S. 259
were executing warrant to search for narcotics. Those officers
found narcotics, without appropriate stamps, and narcotics
paraphernalia in a bird's nest in an awning just outside a window
in the apartment. Another officer, stationed outside the building,
had a short time before seen petitioner put his hand on the awning.
Upon the discovery of the narcotics and the paraphernalia,
petitioner had admitted to the officers that some of these were his
and that he was living in the apartment.
Prior to trial, petitioner duly moved to suppress the evidence
obtained through the execution of the search warrant on the ground
that the warrant had been issued without a showing of probable
cause. The Government challenged petitioner's standing to make this
motion because petitioner alleged neither ownership of the seized
articles nor an interest in the apartment greater than that of an
"invitee or guest." The District Court agreed to take evidence on
the issue of petitioner's standing. Only petitioner gave evidence.
On direct examination, he testified that the apartment belonged to
a friend, Evans, who had given him the use of it, and a key, with
which petitioner had admitted himself on the day of the arrest. On
cross-examination, petitioner testified that he had a suit and
shirt at the apartment, that his home was elsewhere, that he paid
nothing for the use of the apartment, that Evans had let him use it
"as a friend," that he had slept there "maybe a night," and that,
at the time of the search, Evans had been away in Philadelphia for
about five days.
Solely on the basis of petitioner's lack of standing to make it,
the district judge denied petitioner's motion to suppress. When the
case came on for trial before a different judge, the motion to
suppress was renewed and was denied on the basis of the prior
ruling. An unsuccessful objection was made when the seized items
were offered in evidence at the trial.
Page 362 U. S. 260
In affirming petitioner's conviction, the Court of Appeals
agreed with the District Court that petitioner lacked standing, but
proceeded to rule that, even if it were to find that petitioner had
standing, it would hold the evidence to have been lawfully
received. A challenge to the search which petitioner had not made
in the District Court, namely, that the method of executing the
warrant had been illegal, was considered by the Court of Appeals
and rejected, while the contention petitioner had made below, that
there had been insufficient cause to issue the warrant, was
rejected without discussion.
The issue of petitioner's standing is to be decided with
reference to Rule 41(e) of the Federal Rules of Criminal Procedure.
This is a statutory direction governing the suppression of evidence
acquired in violation of the conditions validating a search. It is
desirable to set forth the Rule.
"A person aggrieved by an unlawful search and seizure may move
the district court for the district in which the property was
seized for the return of the property and to suppress for use as
evidence anything so obtained on the ground that (1) the property
was illegally seized without warrant, or (2) the warrant is
insufficient on its face, or (3) property seized is not that
described in the warrant, or (4) there was not probable cause for
believing the existence of the grounds on which the warrant was
issued, or (5) the warrant was illegally executed. The judge shall
receive evidence on any issue of fact necessary to the decision of
the motion. If the motion is granted, the property shall be
restored unless otherwise subject to lawful detention, and it shall
not be admissible in evidence at any hearing or trial. The motion
to suppress evidence may also be made in the district where the
trial is to be had. The motion shall be made before trial or
hearing unless opportunity
Page 362 U. S. 261
therefor did not exist or the defendant was not aware of the
grounds for the motion, but the court in its discretion may
entertain the motion at the trial or hearing."
In order to qualify as a "person aggrieved by an unlawful search
and seizure," one must have been a victim of a search or seizure,
one against whom the search was directed, as distinguished from one
who claims prejudice only through the use of evidence gathered as a
consequence of a search or seizure directed at someone else. Rule
41(e) applies the general principle that a party will not be heard
to claim a constitutional protection unless he "belongs to the
class for whose sake the constitutional protection is given."
Hatch v. Reardon, 204 U. S. 152,
204 U. S. 160.
The restrictions upon searches and seizures were obviously designed
for protection against official invasion of privacy and the
security of property. They are not exclusionary provisions against
the admission of kinds of evidence deemed inherently unreliable or
prejudicial. The exclusion in federal trials of evidence otherwise
competent but gathered by federal officials in violation of the
Fourth Amendment is a means for making effective the protection of
privacy.
Ordinarily, then, it is entirely proper to require of one who
seeks to challenge the legality of a search as the basis for
suppressing relevant evidence that he allege, and if the allegation
be disputed that he establish, that he himself was the victim of an
invasion of privacy. But prosecutions like this one have presented
a special problem. To establish "standing," Courts of Appeals have
generally required that the movant claim either to have owned or
possessed the seized property or to have had a substantial
possessory interest in the premises searched. Since narcotics
charges like those in the present indictment may be established
through proof solely of possession of narcotics, a defendant
seeking to comply with what has
Page 362 U. S. 262
been the conventional standing requirement has been forced to
allege facts the proof of which would tend, if indeed not be
sufficient, to convict him. At the least, such a defendant has been
placed in the criminally tendentious position of explaining his
possession of the premises. He has been faced not only with the
chance that the allegations made on the motion to suppress may be
used against him at the trial, although that they may is by no
means an inevitable holding, but also with the encouragement that
he perjure himself if he seeks to establish "standing" while
maintaining a defense to the charge of possession.
The dilemma that has thus been created for defendants in cases
like this has been pointedly put by Judge Learned Hand:
"Men may wince at admitting that they were the owners, or in
possession, of contraband property; may wish at one to secure the
remedies of a possessor, and avoid the perils of the part; but
equivocation will not serve. If they come as victims, they must
take on that role, with enough detail to cast them without
question. The petitioners at bar shrank from that predicament; but
they were obliged to choose one horn of the dilemma."
Connolly v. Medalie, 58 F.2d 629, 630. Following this
holding, several Courts of Appeals have pinioned a defendant within
this dilemma.
See, e.g., Scoggins v. United States, 92
U.S.App.D.C. 29, 30, 202 F.2d 211, 212;
United States v.
Eversole, 209 F.2d 766, 768;
Accardo v. United
States, 101 U.S.App.D.C. 162, 163-164, 247 F.2d 568, 569-570;
Grainger v. United States, 158 F.2d 236. A District Court
has held otherwise.
United States v. Dean, 50 F.2d 905,
906. The Government urges us to follow the body of Court of
Appeals' decisions and to rule that the lower
Page 362 U. S. 263
courts, including the courts below, have been right in barring a
defendant in a case like this from challenging a search because of
his failure, when making his motion to suppress, to allege either
that he owned or possessed the property seized or that he had a
possessory interest in the premises searched greater than the
interest of an "invitee or guest."
Judge Hand's dilemma is not inescapable. It presupposes
requirements of "standing" which we do not find compelling. Two
separate lines of thought effectively sustain defendant's standing
in this case. (1) The same element in this prosecution which has
caused a dilemma,
i.e., that possession both convicts and
confers standing, eliminates any necessity for a preliminary
showing of an interest in the premises searched or the property
seized, which ordinarily is required when standing is challenged.
(2) Even were this not a prosecution turning on illicit possession,
the legally requisite interest in the premises was here satisfied,
for it need not be as extensive a property interest as was required
by the courts below.
As to the first ground, we are persuaded by this consideration:
to hold to the contrary, that is, to hold that petitioner's failure
to acknowledge interest in the narcotics or the premises prevented
his attack upon the search, would be to permit the Government to
have the advantage of contradictory positions as a basis for
conviction. Petitioner's conviction flows from his possession of
the narcotics at the time of the search. Yet the fruits of that
search, upon which the conviction depends, were admitted into
evidence on the ground that petitioner did not have possession of
the narcotics at that time. The prosecution here thus subjected the
defendant to the penalties meted out to one in lawless possession
while refusing him the remedies designed for one in that situation.
It is not consonant with the amenities, to put it mildly, of the
administration of criminal justice to sanction
Page 362 U. S. 264
such squarely contradictory assertions of power by the
Government. The possession on the basis of which petitioner is to
be and was convicted suffices to give him standing under any fair
and rational conception of the requirements of Rule 41(e).
The Government's argument to the contrary essentially invokes
elegantia juris. In the interest of normal procedural
orderliness, a motion to suppress, under Rule 41(e), must be made
prior to trial, if the defendant then has knowledge of the grounds
on which to base the motion. The Government argues that the
defendant therefore must establish his standing to suppress the
evidence at that time through affirmative allegations, and may not
wait to rest standing upon the Government's case at the trial. This
provision of Rule 41(e), requiring the motion to suppress to be
made before trial, is a crystallization of decisions of this Court
requiring that procedure, and is designed to eliminate from the
trial disputes over police conduct not immediately relevant to the
question of guilt.
See Nardone v. United States,
308 U. S. 338,
308 U. S.
341-342;
Segurola v. United States,
275 U. S. 106,
275 U. S.
111-112;
Agnello v. United States, 269 U. S.
20,
269 U. S. 34;
Adams v. New York, 192 U. S. 585. As
codified, the rule is not a rigid one, for, under Rule 41(e), "the
court, in its discretion, may entertain the motion (to suppress) at
the trial or hearing." This qualification proves that we are
dealing with carrying out an important social policy, and not a
narrow, finicky procedural requirement. This underlying policy
likewise precludes application of the Rule so as to compel the
injustice of an internally inconsistent conviction. In cases where
the indictment itself charges possession, the defendant in a very
real sense is revealed as a "person aggrieved by an unlawful search
and seizure" upon a motion to suppress evidence prior to trial.
Rule 41(e) should not be applied to allow the Government to deprive
the defendant of standing to bring a motion
Page 362 U. S. 265
to suppress by framing the indictment in general terms, while
prosecuting for possession. [
Footnote 1]
As a second ground sustaining "standing" here, we hold that
petitioner's testimony on the motion to suppress made out a
sufficient interest in the premises to establish him as a "person
aggrieved" by their search. That testimony established that, at the
time of the search, petitioner was present in the apartment with
the permission of Evans, whose apartment it was. The Government
asserts that such an interest is insufficient to give standing. The
Government does not contend that only ownership of the premises may
confer standing. It would draw distinctions among various classes
of possessors, deeming some, such as "guests" and "invitees" with
only the "use" of the premises, to have too "tenuous" an interest
although concededly having "some measure of control" through their
"temporary presence," while conceding that others, who in a
"realistic sense, have dominion of the apartment" or who are
"domiciled" there, have standing. Petitioner, it is insisted, by
his own testimony falls in the former class.
While this Court has never passed upon the interest in the
searched premises necessary to maintain a motion to suppress, the
Government's argument closely follows the prevailing view in the
lower courts. They have denied standing to "guests" and "invitees"
(
e.g., Gaskins v. United States, 95 U.S.App.D.C. 34, 35,
218 F.2d 47, 48;
Gibson v. United States, 80 U.S.App.D.C.
81, 84, 149 F.2d 381, 384;
In re Nassetta, 125 F.2d 924;
Jones v. United States, 104 U.S.App.D.C. 345, 262 F.2d
234),
Page 362 U. S. 266
and employees, who, though in "control" or "occupancy," lacked
"possession" (
e.g., Connolly v. Medalie, 58 F.2d 629, 630;
United States v. Conoscente, 63 F.2d 811). The necessary
quantum of interest has been distinguished as being, variously,
"ownership in or right to possession of the premises" (
e.g.,
Jeffers v. United States, 88 U.S.App.D.C. 58, 61, 187 F.2d
498, 501,
affirmed, Jeffers v. United States, 342 U. S.
48), the interest of a "lessee or licensee" (
United
States v. De Bousi, 32 F.2d
902, 903), or of one with "dominion" (
McMillan v. United
States, 26 F.2d 58, 60;
Steeber v. United States, 198
F.2d 615, 617, 33 A.L.R.2d 1425). We do not lightly depart from
this course of decisions by the lower courts. We are persuaded,
however, that it is unnecessary and ill-advised to import into the
law surrounding the constitutional right to be free from
unreasonable searches and seizures subtle distinctions, developed
and refined by the common law in evolving the body of private
properly law which, more than almost any other branch of law, has
been shaped by distinctions whose validity is largely historical.
Even in the area from which they derive, due consideration has led
to the discarding of these distinctions in the homeland of the
common law.
See Occupiers' Liability Act, 1957, 5 and 6
Eliz. 2, c. 31, carrying out Law Reform Committee, Third Report,
Cmd. 9305. Distinctions such as those between "lessee," "licensee,"
"invitee" and "guest," often only of gossamer strength, ought not
to be determinative in fashioning procedures ultimately referable
to constitutional safeguards.
We rejected such distinctions as inappropriate to the law of
maritime torts in
Kermarec v. Compagnie Generale,
358 U. S. 625,
358 U. S.
630-632. We found there to be a duty of ordinary care to
one rightfully on the ship, regardless of whether he was a
"licensee," rather than an "invitee."
"For the admiralty law at this late date to import such
conceptual distinctions would be foreign to its traditions
Page 362 U. S. 267
of simplicity and practicality."
358 U.S. at
358 U. S. 631.
A fortiori, we ought not to bow to them in the fair
administration of the criminal law. To do so would not comport with
our justly proud claim of the procedural protections accorded to
those charged with crime. No just interest of the Government in the
effective and rigorous enforcement of the criminal law will be
hampered by recognizing that anyone legitimately on premises where
a search occurs may challenge its legality by way of a motion to
suppress, when its fruits are proposed to be used against him. This
would, of course, not avail those who, by virtue of their wrongful
presence, cannot invoke the privacy of the premises searched. As
petitioner's testimony established Evans' consent to his presence
in the apartment, he was entitled to have the merits of his motion
to suppress adjudicated.
We come to consider the grounds upon which the search is alleged
to have been illegal. The attack which was made in the District
Court was one of lack of probable cause for issuing the search
warrant. The question raised is whether sufficient evidence to
establish probable cause to search was put before the Commissioner
by the officer, Didone, who applied for the warrant. The sole
evidence upon which the warrant was issued was an affidavit signed
by Didone. Both parties urge us to decide the question here,
without remanding it to the District Court which, because it found
lack of standing, did not pass on it. We think it appropriate to
decide the question.
The affidavit is set out in the margin. [
Footnote 2] Didone was a member of the Narcotic Squad
in the District of Columbia.
Page 362 U. S. 268
His affidavit claimed no direct knowledge of the presence of
narcotics in the apartment. He swore that, on the day before making
the affidavit, he had been given information, by one unnamed, that
petitioner and another "were involved in the illicit narcotic
traffic" and "kept a ready supply of heroin on hand" in the
apartment. He swore that his informant claimed to have purchased
narcotics at the apartment from petitioner and another "on many
occasions," the last of which had been the day before the warrant
was applied for. Didone swore that his informant "has given
information to the undersigned on previous occasion and which was
correct," that "[t]his same
Page 362 U. S. 269
information" regarding petitioner had been given the narcotic
squad by "other sources of information," and that the petitioner
and the other implicated by the informant had admitted being users
of narcotics. On this, basis Didone founded his oath that he
believed "that there is now illicit narcotic drugs being secreated
[
sic] in the above apartment by Cecil Jones."
This affidavit was, it is claimed, insufficient to establish
probable cause because it did not set forth the affiant's personal
observations regarding the presence of narcotics in the apartment,
but rested wholly on hearsay. We held in
Nathanson v. United
States, 290 U. S. 41, that
an affidavit does not establish probable cause which merely states
the affiant's belief that there is cause to search, without stating
facts upon which that belief is based.
A fortiori this is
true of an affidavit which states only the belief of one not the
affiant. That is not, however, this case. The question here is
whether an affidavit which sets out personal observations relating
to the existence of cause to search is to be deemed insufficient by
virtue of the fact that it sets out not the affiant's observations,
but those of another. An affidavit is not to be deemed insufficient
on that score so long as a substantial basis for crediting the
hearsay is presented.
In testing the sufficiency of probable cause for an officer's
action even without a warrant, we have held that he may rely upon
information received through an informant, rather than upon his
direct observations, so long as the informant's statement is
reasonably corroborated by other matters within the officer's
knowledge.
Draper v. United States, 358 U.
S. 307. We there upheld an arrest without a warrant
solely upon an informant's statement that the defendant was
peddling narcotics, as corroborated by the fact that the
informant's description of the defendant's appearance, and of where
he would be on a given morning (matters in themselves totally
Page 362 U. S. 270
innocuous) agreed with the officer's observations. We rejected
the contention that an officer may act without a warrant only when
his basis for acting would be competent evidence upon a trial to
prove defendant's guilt. Quoting from
Brinegar v. United
States, 338 U. S. 160,
338 U. S. 172,
we said that such a contention
"goes much too far in confusing and disregarding the difference
between what is required to prove guilt in a criminal case and what
is required to show probable cause for arrest or search. . . .
There is a large difference between the two things to be proved
(guilt and probable cause) . . . and therefore a like difference in
the quanta and modes of proof required to establish them."
358 U.S. at
358 U. S.
311-312. The dictum to the contrary in
Grau v.
United States, 287 U. S. 124,
287 U. S. 128,
was expressly rejected in
Draper. 358 U.S. at
358 U. S. 312,
note 4.
See also Judge Learned Hand in
United States
v. Heitner, 149 F.2d 105, 106.
What we have ruled in the case of an officer who acts without a
warrant governs our decision here. If an officer may act upon
probable cause without a warrant when the only incriminating
evidence in his possession is hearsay, it would be incongruous to
hold that such evidence presented in an affidavit is insufficient
basis for a warrant. If evidence of a more judicially competent or
persuasive character than would have justified on officer in acting
on his own without a warrant must be presented when a warrant is
sought, warrants could seldom legitimatize police conduct, and
resort to them would ultimately be discouraged. Due regard for the
safeguards governing arrests and searches counsels the contrary. In
a doubtful case, when the officer does not have clearly convincing
evidence of the immediate need to search, it is most important that
resort be had to a warrant, so that the evidence in the possession
of the police may be weighed by an independent judicial officer,
whose decision, not that
Page 362 U. S. 271
of the police, may govern whether liberty or privacy is to be
invaded.
We conclude, therefore, that hearsay may be the basis for a
warrant. We cannot say that there was so little basis for accepting
the hearsay here that the Commissioner acted improperly. The
Commissioner need not have been convinced of the presence of
narcotics in the apartment. He might have found the affidavit
insufficient and withheld his warrant. But there was substantial
basis for him to conclude that narcotics were probably present in
the apartment, and that is sufficient. It is not suggested that the
Commissioner doubted Didone's word. Thus, we may assume that Didone
had the day before been told, by one who claimed to have bought
narcotics there, that petitioner was selling narcotics in the
apartment. Had that been all, it might not have been enough; but
Didone swore to a basis for accepting the informant's story. The
informant had previously given accurate information. His story was
corroborated by other sources of information. And petitioner was
known by the police to be a user of narcotics. 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.
Petitioner argues that the warrant was defective because
Didone's informants were not produced, because his affidavit did
not even state their names, and Didone did not undertake and swear
to the results of his own independent investigation of the claims
made by his informants. If the objections raised were that Didone
had misrepresented to the Commissioner his basis for seeking a
warrant, these matters might be relevant. Such a charge is not
made. All we are here asked to decide is
Page 362 U. S. 272
whether the Commissioner acted properly, not whether Didone did.
We have decided that, as hearsay alone does not render an affidavit
insufficient, the Commissioner need not have required the
informants or their affidavits to be produced, or that Didone have
personally made inquiries about the apartment, so long as there was
a substantial basis for crediting the hearsay.
In the Court of Appeals, petitioner presented an additional
attack upon the legality of the search, namely, that the warrant
was not executed in conformity with 18 U.S.C. § 3109. [
Footnote 3] Since petitioner did not,
with ample opportunity to do so, make this claim in the District
Court, we should not ordinarily consider it here had the Court of
Appeals refused for that reason to entertain it. The Court of
Appeals, however, fully considered the claim and rejected it; nor
does the Government contend that it is not properly before us. In
these circumstances, we hold that the question of the legality of
the execution of the search warrant under 18 U.S.C. § 3109, is open
for our decision.
Unlike the claim of lack of probable cause, this contention is
not one which can satisfactorily be resolved upon the record before
us. As
Miller v. United States, 357 U.
S. 301, demonstrated, a claim under 18 U.S.C. § 3109,
depends upon the particular circumstances surrounding the execution
of the warrant. The trial revealed a direct conflict in testimony
on this matter. We cannot yield to the Government's suggestion that
we ignore that conflict and consider the question on the version of
the warrant's execution given at the trial most favorable to the
prosecution. We therefore vacate the
Page 362 U. S. 273
decision of the Court of Appeals and remand the case to the
District Court to consider petitioner's contention under 18 U.S.C.
§ 3109, in light of our decision that petitioner had standing to
make it.
Vacated and remanded.
[
Footnote 1]
Ordinarily, the Government should choose between opposing a
motion to suppress made before trial and basing the case upon
possession, but, if necessary, the District Court's discretion to
hear the motion to suppress during trial may be invoked. The
Government must, in any case, not permit a conviction to be
obtained on the basis of possession without the merits of a duly
made motion to suppress having been considered.
[
Footnote 2]
"Affidavit in Support of a U.S. Commissioners Search Warrant for
Premises 1436 Meridian Place, N.W., Washington, D.C., apartment 36,
including window spaces of said apartment. Occupied by Cecil Jones
and Earline Richardson."
"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."
"Both the aforementioned persons are 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 Cecil Jones and Earline Richardson, 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 by Cecil Jones and Earline Richardson."
"Det. Thomas Didone, Jr., Narcotic Squad, MPDC"
"Subscribed and sworn to before me this 21 day of August,
1957."
"James F. Splain, U.S. Commissioner, D.C."
[
Footnote 3]
"The officer may break open any outer or inner door or window of
a house, or any part of a house, or anything therein, to execute a
search warrant, if, after notice of his authority and purpose, he
is refused admittance or when necessary to liberate himself or a
person aiding him in the execution of the warrant."
(104 U.S.App.D.C. 345, 262 F.2d 237.)
MR. JUSTICE DOUGLAS.
I join the part of the opinion which holds that petitioner had
"standing" to challenge the legality of the search. But I dissent
from the ruling that there was "probable cause" for issuance of the
warrant. The view that there was "probable cause" finds some
support in
Draper v. United States, 358 U.
S. 307. But my dissent in
Draper gives, I
think, the true dimensions of the problem. This is an age where
faceless informers have been reintroduced into our society in
alarming ways. Sometimes their anonymity is defended on the ground
that revelation of their names would ruin counter-espionage or
cripple an underground network of agents. Yet I think, in these
Fourth Amendment cases, the duty of the magistrate is nondelegable.
It is not sufficient that the police think there is cause for an
invasion of the privacy of the home. The judicial officer must also
be convinced; and to him the police must go except for emergency
situations. The magistrate should know the evidence on which the
police propose to act. Unless that is the requirement, unless the
magistrate makes his independent judgment on all the known facts,
then he tends to become merely the tool of police interests. Though
the police are honest and their aims worthy, history shows they are
not appropriate guardians of the privacy which the Fourth Amendment
protects.