Petitioner was convicted of knowingly concealing stolen fur
garments in violation of 18 U.S. C. § 2315. The stolen furs were
found in the basement of his home pursuant to a search warrant
issued on the strength of an affidavit factually inaccurate in two
respects and based partly on hearsay statements of confidential
informants. Petitioner's motion to suppress the introduction in
evidence of the seized furs was denied by the trial court.
Held:
1. The search warrant was valid as long as it provided a
substantial basis to support the conclusion that the stolen goods
were probably in petitioner's basement. Pp.
376 U. S.
531-533.
(a) Factual inaccuracies, not going to the integrity of the
affidavit, do not destroy probable cause for a search. Pp.
376 U. S.
532-533.
(b) Hearsay, if it provides sufficient evidence of probable
cause, justifies the issuance of a search warrant.
Jones v.
United States, 362 U. S. 257,
followed. P.
376 U. S.
533.
2. Petitioner's claim that he was entitled to the informant's
name in order to defend himself at the trial must be rejected where
first raised in petitioner's reply brief on appeal, his previous
request having been confined to support of his motion to suppress
the evidence. Pp.
376 U. S.
534-536.
3. The evidence was sufficient to support the verdict. Pp.
376 U. S.
536-537.
316 F.2d 589, affirmed.
Page 376 U. S. 529
MR. JUSTICE CLARK delivered the opinion of the Court.
Following a trial by jury, petitioner was convicted of violating
18 U.S.C. § 2315 [
Footnote 1]
by knowingly receiving, concealing and storing 81 stolen fur
pieces, the fur pieces having been transported in interstate
commerce and having a value exceeding $5,000. The Court of Appeals
sustained the conviction despite petitioner's objections that the
evidence was not sufficient to support the verdict; that the fur
garments should have been excluded from evidence because they were
seized on the authority of a search warrant supported by a
deficient affidavit; and that the names of certain confidential
informants referred to in the affidavit should have been disclosed.
316 F.2d 589. We granted certiorari, 375 U.S. 812, and affirm the
judgment.
I
The search warrant under attack was issued by the United States
Commissioner on the strength of an affidavit dated March 22, 1962,
and signed by Marlin Moore, a Special Agent of the Federal Bureau
of Investigation. The affidavit stated that Moore had reason to
believe that approximately 80 fur stoles and jackets, taken in a
burglary in Mountain Brook, Alabama, and worth about $40,000, were
concealed in the basement of a single family residence at 3117 West
Jarvis Avenue in Chicago.
Page 376 U. S. 530
Moore supported this allegation with statements that L. Dean
Paarmann, a Special Agent of the Birmingham, Alabama, Office of the
FBI, informed Moore that on February 10, 1962, 82 mink, otter, and
beaver stoles and jackets (but no full-length coats), worth
approximately $42,044, were stolen in Mountain Brook, Alabama, and
that, on March 16, 1962, a confidential informant who had furnished
reliable information in the past told Moore that, during the
previous week, he saw approximately 75 to 80 mink, otter and beaver
stoles and jackets (but no full-length coats) in the basement of
the home of Samuel Rugendorf at 3117 West Jarvis Avenue, Chicago.
The labels had been removed, and the informant was told that the
furs were stolen.
Moore further supported the allegation with the following
statements: FBI Special Agent McCormick advised affiant that a
confidential informant whom the FBI had found to be reliable told
McCormick that Frank Schweihs of Chicago, and others, committed the
Alabama robbery; McCormick told the affiant that, on or about March
1, 1962, James Kelleher, a Chicago police officer, said to
McCormick "that he saw FRANK SCHWEIHS at RUGGENDORF [
sic]
BROTHERS MEAT MARKET, managed by SAMUEL RUGGENDORF [
sic] .
. . ;" further, Agent McCORMICK advised this affiant that another
confidential informant who has furnished reliable information to
the Federal Bureau of Investigation in the past told McCORMICK that
LEO RUGGENDORF [
sic] was a fence for FRANK SCHWEIHS; that
SAMUEL RUGGENDORF [
sic] was LEO RUGGENDORF's
[
sic] brother, and was associated in the meat business
with his brother.
The affidavit also stated that another FBI Special Agent, J. J.
Oitzinger, told the affiant that another confidential informant who
had supplied the FBI with reliable information in the past advised
Oitzinger that Frank
Page 376 U. S. 531
Schweihs, Tony Panzica, and Mike Condic were accomplished
burglars who disposed of the proceeds of their burglaries through
Leo Rugendorf.
Finally, the affidavit alleged that, upon checking the
informant's description of the furs seen at 3117 West Jarvis
Avenue, affiant found that the only reported burglary in the United
States in the previous six months involving furs of that
description and value was the one occurring at Mountain Brook,
Alabama.
Pursuant to the search warrant based on this affidavit, a search
was made and 81 furs were found in the basement of petitioner's
residence. Fifty-nine of these furs had been stolen in Mountain
Brook, and the other 22, in Shreveport, Louisiana. Prior to trial,
the trial court heard testimony on petitioner's motion, under Rule
41(e) of the Federal Rules of Criminal Procedure, [
Footnote 2] to suppress the use of the seized
furs as evidence. The trial court denied the motion insofar as it
challenged the legal sufficiency of the affidavit, but reserved
ruling on the truthfulness of the affidavit. During the trial,
another hearing was held on the reserved aspect of the motion to
suppress, and the motion was denied. Also denied was a motion to
require the Government to disclose the names of the confidential
informants referred to in the affidavit.
II
Petitioner attacks the validity of the search warrant. This
Court has never passed directly on the extent to
Page 376 U. S. 532
which a court may permit such examination when the search
warrant is valid on its face and when the allegations of the
underlying affidavit establish "probable cause"; however, assuming,
for the purpose of this decision, that such attack may be made, we
are of the opinion that the search warrant here is valid.
Petitioner contends that probable cause did not exist, because the
only relevant recitations in the affidavit were the one informant's
statements that he saw the furs in petitioner's basement and that
he was told that they were stolen. However, the informant's
detailed description of the furs, including number and type,
closely resembled Special Agent Paarmann's description of the furs
stolen in Alabama. The affiant checked the burglary report records
and found the Alabama burglary to be the only recent one in the
United States involving furs of the description and number that the
informant saw in petitioner's basement. In addition, the affidavit
alleged that Leo and Samuel Rugendorf were brothers, and that Leo
was a fence for professional burglars. Although one of the
informations who gave the latter information added, incorrectly,
that Samuel Rugendorf was associated with Leo in the meat business,
[
Footnote 3] there was direct
information from another informant of the FBI that Leo was a fence,
and nothing was shown to prove this untrue. The factual
inaccuracies depended upon by petitioner to destroy probable cause
--
i.e., the allegations in the affidavit that petitioner
was the manager of Rugendorf Brothers Meat Market and that he was
associated with his brother Leo in the meat business -- were of
only peripheral relevancy to the showing of probable cause, and,
not being within the personal knowledge of the affiant, did not go
to the integrity of the affidavit.
Page 376 U. S. 533
We believe that there was substantial basis for the Commissioner
to conclude that stolen furs were probably in the petitioner's
basement. No more is required. As we said in
Jones v. United
States, 362 U. S. 257,
362 U. S. 271
(1960):
"We conclude . . . that hearsay may be the basis for a warrant.
We cannot say that there was so little basis for accepting the
hearsay . . . that the Commissioner acted improperly. . . . 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."
Petitioner also contends that the withholding of the identities
of the informants was a sufficient ground to require suppression of
the evidence. But, in
Jones, supra, we said that,
"as hearsay alone does not render an affidavit insufficient, the
Commissioner need not have required the informants . . . to be
produced . . . so long as there was a substantial basis for
crediting the hearsay."
At
362 U. S. 272.
Petitioner's only challenges to the veracity of the affidavit are
the two inaccurate facts mentioned above. Since the erroneous
statements that petitioner was the manager of Rugendorf Brothers
Meat Market and was associated with Leo in the meat business were
not those of the affiant, [
Footnote
4] they fail to show that the affiant was in bad faith or that
he made any misrepresentations to the Commissioner in securing the
warrant.
Page 376 U. S. 534
III
Petitioner also asserts that he was entitled to the name of the
informer who reported seeing the furs in his basement in order to
defend himself at trial on the merits. This claim was not properly
raised in the trial court nor passed upon there, and, accordingly,
must be denied here. On two occasions -- once prior to and the
other during the trial -- petitioner urged his motion to suppress
the evidence as to the furs, contending that there were "factual
errors" in the affidavit supporting the search warrant. It was
solely in support of this motion -- not on the merits -- that
petitioner requested all of the informants' names. This is made
clear by petitioner's motion for new trial:
"9. The court erred in overruling the defendant's motion for the
government to reveal the names of the informers when such
information was necessary to the constitutional rights of the
defendant
in pursuing his motion to suppress the
evidence."
(Emphasis added.) He relied entirely on suppression, which, if
successful, would have ended the case. Failing in this, petitioner
asserted, for the first time, in his reply brief in the Court of
Appeals that the name of the single informant who saw the furs was
vital both for the suppression hearing and for the defense at
trial, because the informant alone knew whether he "participated
with persons other than the defendant" in placing the furs in the
basement. Apparently this was an attempt to bring the facts of the
case within
Roviaro v. United States, 353 U. S.
53 (1957), where the informant had played a direct and
prominent part, as the sole participant with the accused, in the
very offense for which the latter was convicted. But there was not
even an intimation of such a situation at the trial here. The
necessity for disclosure depends upon
"the particular circumstances of each case, taking into
consideration
Page 376 U. S. 535
the crime charged, the possible defenses, the possible
significance of the informer's testimony, and other relevant
factors."
353 U. S. 353 U.S.
53,
353 U. S. 62.
Petitioner did not develop any such criteria with reference to the
merits of the case. On the contrary, a careful examination of the
whole record shows that he requested the informers' names only in
his attack on the affidavit supporting the search warrant. Having
failed to develop the criteria of
Roviaro necessitating
disclosure on the merits, we cannot say on this record that the
name of the informant was necessary to his defense. All
petitioner's demands for identification of the informants were made
during the hearings on the motion to suppress, and were related to
that motion. [
Footnote 5] Never
did petitioner's counsel indicate how the informants' testimony
could help establish petitioner's innocence.
Nor do we believe that the trial court erred in refusing to have
the Government disclose the exact date during the week preceding
March 16 when the informant saw the
Page 376 U. S. 536
furs in the petitioner's basement. It is difficult to see how
that date could be useful to petitioner's defense, since the
crucial date in the indictment was March 22, and there is no
indication that the informant had any knowledge of any events
occurring on that date. Petitioner's theory is that, if he can find
out the date, he may be able to show that he and his wife were away
from home at the time when the informant saw the furs, thereby
creating an inference that someone else let the informant in and
that petitioner did not know of the furs. However, the particular
date could not have been of material help to petitioner, as both he
and his wife were away from home a major portion of nearly every
day during the period in question.
IV
As to the sufficiency of the evidence, it was undisputed that 81
stolen furs were found in the basement of petitioner's home. The
furs were hanging in a closet along with a fur piece admittedly
owned by Mrs. Rugendorf. Petitioner's defense was that the furs
were placed in the closet without his knowledge while he and his
wife were vacationing in Florida, and that neither he nor his wife
looked into the closet after their return until the officers
executed the search warrant on March 22. Petitioner's brother Leo,
petitioner's sister, his son, and a neighbor all had keys to his
house. Both petitioner and his wife pointed to Leo as the guilty
party, but neither Leo nor the other relatives who had keys were
called as witnesses. The neighbor, who was called to testify,
denied putting the furs in the basement or permitting any other
person to use the key.
As early as 1896, this Court dealt with such situations. In
Wilson v. United States, 162 U. S. 613,
Chief Justice Fuller held for a unanimous Court that
"[p]ossession of the fruits of crime, recently after its
commission, justifies the inference that the possession is guilty
possession, and,
Page 376 U. S. 537
though only
prima facie evidence of guilt, may be of
controlling weight unless explained by the circumstances or
accounted for in some way consistent with innocence."
At
162 U. S. 619.
Here, it was stipulated that 59 of the furs found in the
petitioner's basement were stolen from a fur store in Mountain
Brook, Alabama, on February 10, 1962. They were found in a closet
opening off a regularly used recreation room. In the same closet
was Mrs. Rugendorf's fur piece. Leo Rugendorf, petitioner's
brother, was a known receiver of stolen goods, and was seen at the
home while the Rugendorfs were in Florida. Petitioner testified at
trial that Leo had borrowed a key before petitioner went to
Florida, and that Leo had not yet returned it. In rebuttal, an FBI
agent testified that petitioner told him that Leo returned the key
soon after the petitioner returned from Florida. In some other
respects, the testimony of both petitioner and his wife conflicted
with the rebuttal testimony of the FBI agents. Apparently the jury
simply did not believe the explanation of petitioner and his wife.
It may be that the jury's credulity was stretched too far; or
perhaps the failure of the defense to call Leo Rugendorf and the
other kinsmen, to whom they had given keys to the home, appeared
strange, especially so since the neighbor was called to testify
about his use of a key. In any event, a
prima facie case
was made out by the stipulation and the presence of the furs in
petitioner's home. We cannot say that this was insufficient.
Affirmed.
[
Footnote 1]
18 U.S.C. § 2315:
"Whoever receives, conceals, stores, barters, sells, or disposes
of any goods, wares, or merchandise, securities, or money of the
value of $5,000 or more, or pledges or accepts as security for a
loan any goods, wares, or merchandise, or securities, of the value
of $500 or more, moving as, or which are a part of, or which
constitute interstate or foreign commerce, knowing the same to have
been stolen, unlawfully converted, or taken; . . ."
"
* * * *"
"Shall be fined not more than $10,000 or imprisoned not more
than ten years, or both."
[
Footnote 2]
Rule 41(e) of the Federal Rules of Criminal Procedure:
"
Motion for Return of Property and to Suppress
Evidence. 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 the
use as evidence anything so obtained on the ground that . . . (4)
there was not probable cause for believing the existence of the
grounds on which the warrant was issued. . . ."
[
Footnote 3]
In fact, petitioner terminated his business association with his
brother Leo and with Rugendorf Brothers Meat Market in 1952.
[
Footnote 4]
The affidavit alleged that McCormick told the affiant that
Police Officer Kelleher told him that petitioner was the manager of
Rugendorf Brothers Meat Market and that a confidential informant
told McCormick that Leo and petitioner were associated in the meat
business. Kelleher testified that he did not so inform McCormick.
The latter was in the hospital for an operation at the time of
trial, but his deposition was not sought, nor any postponement
requested to enable him to be present.
[
Footnote 5]
It was during the hearing on the motion prior to trial that
petitioner cited
United States v. Pearce, 275 F.2d 318;
Giordenello v. United States, 357 U.
S. 480; and
Roviaro v. United States,
353 U. S. 53. His
counsel said:
"That is, Giordinella [
sic] states that the defendant
has a right to have such hearing (on suppression). Pierce
[
sic] and Roviera [
sic] state we have a right in
advance of the hearing to demand the names of the informers if the
names are essential to the defense of the defendant
in the
prosecution of his petition to suppress the evidence."
(Emphasis supplied.) And, on the second hearing, when the
Government offered the furs in evidence, he again urged his motion,
in the absence of the jury, introducing evidence showing the
"factual errors" in the affidavit. On arguing the motion,
petitioner's counsel said:
"Here is what Pierce [
sic] says, and here is what
United States v. Roviera [
sic] says: 'When it is
demonstrated to the Court that it is essential to the defendant's
rights, constitutional rights, that information be given to him so
that he can test the validity of the affidavit,' then it must be
given to him."
Clearly his reliance on
Roviaro for suppression
purposes, which was the sole reason for which it was cited, was
entirely misplaced.
MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE, MR. JUSTICE
BRENNAN and MR. JUSTICE GOLDBERG concur, dissenting.
Just prior to the presentation by the prosecution of its first
witness at the trial, counsel for petitioner requested
Page 376 U. S. 538
the name or names of the informers mentioned in the search
warrant:
"Mr. Echeles:
Roviaro v. United States
[
353 U.S.
53], which is cited by our Seventh Circuit as authority for
this proposition, states that, if the informants, if the names of
the informants are necessary to a proper defense or a proper
presentation of the defendant's case in attacking the search
warrant, then, in the interest of justice, it must be given to the
defendant. The government has no reason not to give it, said
Roviaro, and that is the controlling law."
"Let me demonstrate how, in our opinion, the names of the
informants are necessary."
Counsel then went on to argue why disclosure of one informant's
name was essential to his motion to suppress. Then he shifted to
another attack, stating:
"
I would suggest that not only is this informant necessary
to the defendant because, if he takes the stand, it will
demonstrate that Sam Rugendorf had nothing to do with it, or
possibly his falsity, but I would suggest that perhaps he would be
a pretty good witness for the Government, that they ought not to
want to hide the witness, that he would pretty much make out a case
for the Government. [Italics added.]"
"In any event, your Honor, I rely upon
United States v.
Pearce, 275 F.2d, our Circuit. I rely upon
Roviaro v.
United States, 353 U. S. 53. And I rely upon
Giordenello v. United States, 357 U. S.
480, as being the proper procedure that I am trying to
get here, your Honor."
It is impossible to say that this motion related wholly to quash
the search warrant. It is true that
Pearce and
Giordenello involved such motions. But
Roviaro
did not.
Page 376 U. S. 539
Rather, it presented the same issue this case presents,
viz., whether the "informer's privilege," 353 U.S. at
353 U. S. 59,
must give way in the interests of the defense of the accused.
The prosecutor objected, saying "that, if the Government is to
reveal the name of any informants, they might be and probably would
be killed."
The trial judge denied the motion, and the trial started. During
the trial, the request was repeated, counsel for petitioner saying
"I need that information to defend my defendant, your Honor."
Whatever defect, if any, may have been present in his first motion
did not appear this time. For now he was plainly addressing himself
to the trial on the merits. Once again his request was denied.
It is obvious that these requests were made not only to
challenge the sufficiency of the affidavit as a basis of the search
warrant, but also for use on the issue of guilt or innocence --
viz., knowing possession of stolen goods. The issue was
considered by the Court of Appeals,
*
316 F.2d 589, 592; and we should do the same.
Petitioner and his wife were in Florida on vacation between
February 17 and March 4, 1962. Before they
Page 376 U. S. 540
left Chicago, petitioner's brother Leo -- an admitted "fence"
for stolen goods -- came to his house to see him:
"Leo asked who was going to look after the mail, clean the
sidewalks and everything else, and he told Leo that his son Jerry
would do it. Leo said that Jerry had to open the store every
morning, and stated that he got down a little later every day, and
so why not let him watch the house and bring in the mail.
Accordingly, he gave his brother the keys."
"From that day, on February 17, 1962, until this day [the time
of the trial], he had not seen or talked to his brother Leo; nor
had Leo returned the key."
Leo, the brother, had one key to the house during petitioner's
absence. His sister, his son, and a neighbor also had keys. Since
one of these was a known criminal, and since the informant had
personally been in the basement of petitioner's home, the
pertinency of the inquiry as to the informant's name becomes
obvious.
Speaking of the "informer's privilege," we said in
Roviaro
v. United States, 353 U. S. 53,
353 U. S.
59:
"The purpose of the privilege is the furtherance and protection
of the public interest in effective law enforcement. The privilege
recognizes the obligation of citizens to communicate their
knowledge of the commission of crimes to law enforcement officials
and, by preserving their anonymity, encourages them to perform that
obligation."
But there are times when the privilege must give way. In
Roviaro, we put one of those exceptions in these
words:
"Where the disclosure of an informer's identity, or of the
contents of his communication, is relevant and helpful to the
defense of an accused, or is essential to a fair determination of a
cause, the privilege must give way. In these situations, the trial
court may require disclosure and, if the Government withholds the
information, dismiss the action."
Id. at
353 U. S.
60-61.
Page 376 U. S. 541
It is difficult to imagine a clearer case than the present one
for application of that exception.
The Solicitor General seeks to avoid that conclusion by saying
that, even though the informant might disclose who stole the furs
and how they reached the defendant's basement, "this would not
necessarily have cast light upon the issue of petitioner's
knowledge." The Solicitor General also argues that it is highly
conjectural that identification of the person who admitted the
informant to the basement would materially illuminate the question
of petitioner's knowledge. We have, however, a case where the only
proof implicating defendant was discovery of the stolen furs in his
basement. Four keys to the house were in the hands of outsiders,
one of whom had a criminal record for trafficking in stolen goods;
the stolen furs may have reached defendant's basement during his
absence and remained there without his knowledge. His only defense
would be proof that someone, without his knowledge, put them there.
Who that person was, when he placed the furs in the basement, what
his motivations were in placing the furs there, what his relations
with the defendant were, what connections he had with the stolen
articles -- these questions go to the very heart of the defense.
Roviaro would, therefore, require, in the exercise of
sound discretion, disclosure of the informant. Unless we allow that
amount of leeway, we can only rest uneasy in the thought that we
are helping send an innocent man to prison.
The Court does not face up to this crucial issue because, with
due respect, it takes a Baron Parke approach when examining the
record, the motions made, and the exceptions taken, and it
concludes that the proper talismanic words were not used when the
request for the informant's name was made. But that attitude
belongs to an ancient regime, not to the one we administer under
Rule 52(b) of the Federal Rules of Criminal procedure
(
See Silber v.
Page 376 U. S. 542
United States, 370 U. S. 717),
which provides: "Plain errors or defects affecting substantial
rights may be noticed although they were not brought to the
attention of the court." Our Rule 40(1)(d)(2) is to the same
effect. Enough has been said to show that the issue was squarely
raised in the trial court and squarely passed upon by the Court of
Appeals. But if it is assumed
arguendo that the point was
not squarely raised, few clearer cases for applying Rule 52(b) have
appeared at least in recent years.
* The majority states that the demand for disclosure as it
related to a defense on the merits "was not properly raised in the
trial court nor passed upon there, and, accordingly, must be denied
here."
Ante at
376 U. S. 534.
But the trial excerpts reproduced above amply rebut that contention
as it relates to the trial. And the Court of Appeals expressly
said:
"The remaining point raised by defendant as error is the refusal
of the trial court to require the disclosure of the name of the
informer. The defendant relies on
Roviaro v. United
States, 353 U. S. 53."
316 F.2d 589, 592.
As already noted, Roviaro did not involve a challenge to the
sufficiency of a search warrant. It presented the issue this case
does. One requesting disclosure and citing Roviaro as authority
obviously is seeking to bring himself within the situation to which
the Roviaro rule is applicable.