The affidavit given by police officers to obtain a state search
warrant stated that:
"Affiants have received reliable information from a credible
person and do believe that heroin . . . and other narcotics . . .
are being kept at the above described premises for the purpose of
sale and use contrary to the provisions of the law."
The affidavit provided no further information concerning either
the undisclosed informant or the reliability of the information.
The warrant was issued, a search made, and the evidence obtained
was admitted at the trial at which petitioner was found guilty of
possessing heroin.
Held:
1. The standard of reasonableness for obtaining a search warrant
is the same under the Fourth and the Fourteenth Amendments.
Ker
v. California, 374 U. S. 23,
followed. P.
378 U. S.
110.
2. Although an affidavit supporting a search warrant may be
based on hearsay information and need not reflect the direct
personal observations of the affiant, the magistrate must be
informed of some of the underlying circumstances relied on by the
person providing the information and some of the underlying
circumstances from which the affiant concluded that the informant,
whose identity was not disclosed, was creditable or his information
reliable.
Giordenello v. United States, 357 U.
S. 480, followed. Pp.
378 U. S.
110-115.
172 Tex.Cr.R. 629, 631,
362
S.W.2d 111, 112, reversed and remanded.
Page 378 U. S. 109
MR. JUSTICE GOLDBERG delivered the opinion of the Court.
This case presents questions concerning the constitutional
requirements for obtaining a state search warrant.
Two Houston police officers applied to a local Justice of the
Peace for a warrant to search for narcotics in petitioner's home.
In support of their application, the officers submitted an
affidavit which, in relevant part, recited that:
"Affiants have received reliable information from a credible
person and do believe that heroin, marijuana, 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. [
Footnote 1]"
The search warrant was issued.
In executing the warrant, the local police, along with federal
officers, announced at petitioner's door that they
Page 378 U. S. 110
were police with a warrant. Upon hearing a commotion within the
house, the officers forced their way into the house and seized
petitioner in the act of attempting to dispose of a packet of
narcotics.
At his trial in the state court, petitioner, through his
attorney, objected to the introduction of evidence obtained as a
result of the execution of the warrant. The objections were
overruled, and the evidence admitted. Petitioner was convicted of
illegal possession of heroin, and sentenced to serve 20 years in
the state penitentiary. [
Footnote
2] On appeal to the Texas Court of Criminal Appeals, the
conviction was affirmed, 172 Tex.Cr.R. 629,
362
S.W.2d 111,
affirmance upheld on rehearing, 172
Tex.Cr.R. 631, 362 S.W.2d 112. We granted a writ of certiorari to
consider the important constitutional questions involved. 375 U.S.
812.
In
Ker v. California, 374 U. S. 23, we
held that the Fourth "Amendment's proscriptions are enforced
against the States through the Fourteenth Amendment," and that "the
standard of reasonableness is the same under the Fourth and
Fourteenth Amendments."
Id. at
374 U. S. 33.
Although
Ker involved a search without a warrant, that
case must certainly be read as holding that the standard for
obtaining a search warrant is likewise "the same under the Fourth
and Fourteenth Amendments."
An evaluation of the constitutionality of a search warrant
should begin with the rule that
"the informed and deliberate determinations of magistrates
empowered to issue warrants . . . are to be preferred over the
hurried action
Page 378 U. S. 111
of officers . . . who may happen to make arrests."
United States v. Lefkowitz, 285 U.
S. 452,
285 U. S. 464:
The reasons for this rule go to the foundations of the Fourth
Amendment. A contrary rule
"that evidence sufficient to support a magistrate's
disinterested determination to issue a search warrant will justify
the officers in making a search without a warrant would reduce the
Amendment to a nullity and leave the people's homes secure only in
the discretion of police officers."
Johnson v. United States, 333 U. S.
10,
333 U. S. 14.
Under such a rule, "resort to (warrants) would ultimately be
discouraged."
Jones v. United States, 362 U.
S. 257,
362 U. S. 270.
Thus, when a search is based upon a magistrate's, rather than a
police officer's, determination of probable cause, the reviewing
courts will accept evidence of a less "judicially competent or
persuasive character than would have justified an officer in acting
on his own without a warrant,"
ibid., and will sustain the
judicial determination so long as "there was substantial basis for
[the magistrate] to conclude that narcotics were probably present .
. . ."
Id. at
362 U. S. 271.
As so well stated by Mr. Justice Jackson:
"The point of the Fourth Amendment which often is not grasped by
zealous officers is not that it denies law enforcement the support
of the usual inferences which reasonable men draw from evidence.
Its protection consists in requiring that those inferences be drawn
by a neutral and detached magistrate instead of being judged by the
officer engaged in the often competitive enterprise of ferreting
out crime."
Johnson v. United States, supra, at
333 U. S.
13-14.
Although the reviewing court will pay substantial deference to
judicial determinations of probable cause, the court must still
insist that the magistrate perform his "neutral and detached"
function, and not serve merely as a rubber stamp for the
police.
Page 378 U. S. 112
In
Nathanson v. United States, 290 U. S.
41, a warrant was issued upon the sworn allegation that
the affiant "has cause to suspect and does believe" that certain
merchandise was in a specified location.
Id. at
290 U. S. 44.
The Court, noting that the affidavit "went upon a mere affirmation
of suspicion and belief,
without any statement of adequate
supporting facts,"
id. at
290 U. S. 46
(emphasis added), announced the following rule:
"Under the Fourth Amendment, an officer may not properly issue a
warrant to search a private dwelling unless he can find probable
cause therefore from
facts or circumstances presented to
him under oath or affirmation. Mere affirmance of belief or
suspicion is not enough."
Id. at
290 U. S. 47.
(Emphasis added.)
The Court in
Giordenello v. United States, 357 U.
S. 480, applied this rule to an affidavit similar to
that relied upon here. [
Footnote
3] Affiant in that case swore that petitioner "did receive,
conceal, etc., narcotic drugs . . . with knowledge of unlawful
importation . . . ."
Id. at
357 U. S. 481.
The Court announced the guiding principles to be:
"that the inferences from the facts which lead to the complaint
'[must] be drawn by a neutral and detached
Page 378 U. S. 113
magistrate instead of being judged by the officer engaged in the
often competitive enterprise of ferreting out crime.'
Johnson
v. United States, 333 U. S. 10,
333 U. S.
14. The purpose of the complaint, then, is to enable the
appropriate magistrate . . . to determine whether the 'probable
cause' required to support a warrant exists. The Commissioner must
judge for himself the persuasiveness of the facts relied on by a
complaining officer to show probable cause. He should not accept
without question the complainant's mere conclusion . . . ."
357 U.S. at
357 U. S.
486.
The Court, applying these principles to the complaint in that
case, stated that:
"it is clear that it does not pass muster because it does not
provide any basis for the Commissioner's determination . . . that
probable cause existed. The complaint contains no affirmative
allegation that the affiant spoke with personal knowledge of the
matters contained therein; it does not indicate any sources for the
complainant's belief; and it does not set forth any other
sufficient basis upon which a finding of probable cause could be
made."
Ibid.
The vice in the present affidavit is at least as great as in
Nathanson and
Giordenello. Here, the "mere
conclusion" that petitioner possessed narcotics was not even that
of the affiant himself; it was that of an unidentified informant.
The affidavit here not only "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." For all that appears, the source here merely
suspected, believed or concluded that there were narcotics in
petitioner's
Page 378 U. S. 114
possession. [
Footnote 4] The
magistrate here certainly could not "judge for himself the
persuasiveness of the facts relied on . . . to show probable case."
He necessarily accepted "without question" the informant's
"suspicion," "belief," or "mere conclusion."
Although an affidavit may be based on hearsay information, and
need not reflect the direct personal observations of the affiant,
Jones v. United States, 362 U. S. 257, the
magistrate must be informed of some of the underlying circumstances
from which the informant concluded that the narcotics were where he
claimed they were, and some of the underlying circumstances from
which the officer concluded that the informant, whose identity need
not be disclosed,
see Rugendorf v. United States,
376 U. S. 528, was
"credible" or his information "reliable." [
Footnote 5] Otherwise,
Page 378 U. S. 115
"the inferences from the facts which lead to the complaint" will
be drawn not "by a neutral and detached magistrate," as the
Constitution requires, but, instead, by a police officer "engaged
in the often competitive enterprise of ferreting out crime,"
Giordenello v. United States, supra, 357 U.S. at
357 U. S. 486;
Johnson v. United States, supra, at
333 U. S. 14,
or, as in this case, by an unidentified informant.
We conclude, therefore, that the search warrant should not have
been issued, because the affidavit did not provide a sufficient
basis for a finding of probable cause, and that
Page 378 U. S. 116
the evidence obtained as a result of the search warrant was
inadmissible in petitioner's trial.
The judgment of the Texas Court of Criminal Appeals is reversed,
and the case remanded for proceedings not inconsistent with this
opinion.
Reversed and remanded.
[
Footnote 1]
The record does not reveal, nor is it claimed, that any other
information was brought to the attention of the Justice of the
Peace. It is elementary that, in passing on the validity of a
warrant, the reviewing court may consider
only information
brought to the magistrate's attention.
Giordenello v. United
States, 357 U. S. 480, 79
C.J.S. Searches and Seizures � 74, p. 872 (collecting cases). In
Giordenello, the Government pointed out that the officer
who obtained the warrant "had kept petitioner under surveillance
for about one month prior to the arrest." The Court, of course,
ignored this evidence, since it had not been brought to the
magistrate's attention. The fact that the police may have kept
petitioner's house under surveillance is thus completely irrelevant
in this case, for, in applying for the warrant, the police did not
mention any surveillance. Moreover, there is no evidence in the
record that a surveillance was actually set up on petitioner's
house. Officer Strickland merely testified that "we
wanted
to set up surveillance on the house." If the fact and results of
such a surveillance had been appropriately presented to the
magistrate, this would, of course, present an entirely different
case.
[
Footnote 2]
Petitioner was also indicted on charges of conspiring to violate
the federal narcotics laws. Act of February 9, 1909, c. 100, 35
Stat. 614, § 2, as amended, 21 U.S.C. § 174; Internal Revenue Code
of 1954, § 7237(b), as amended, 26 U.S.C. § 7237(b). He was found
not guilty by the jury. His codefendants were found guilty, and
their convictions affirmed on appeal.
Garcia v. United
States, 315 F.2d 679.
[
Footnote 3]
In
Giordenello, although this Court construed the
requirement of "probable cause" contained in Rule 4 of the Federal
Rules of Criminal Procedure, it did so "in light of the
constitutional" requirement of probable cause which that Rule
implements.
Id. at
357 U. S. 485.
The case also involved an arrest warrant, rather than a search
warrant, but the Court said:
"The language of the Fourth Amendment, that '. . . no Warrants
shall issue, but upon probable cause . . . ,' of course applies to
arrest, as well as search warrants."
Id. at
357 U. S.
485-486.
See Ex parte
Burford, 3 Cranch 448;
McGrain v.
Daugherty, 273 U. S. 135,
273 U. S.
154-157. The principles announced in
Giordenello derived, therefore, from the Fourth Amendment,
and not from our supervisory power.
Compare Jencks v. United
States, 353 U. S. 657.
Accordingly, under
Ker v. California, 374 U. S.
23, they may properly guide our determination of
"probable cause" under the Fourteenth Amendment.
[
Footnote 4]
To approve this affidavit would open the door to easy
circumvention of the rule announced in
Nathanson and
Giordenello. A police officer who arrived at the
"suspicion," "belief," or "mere conclusion" that narcotics were in
someone's possession could not obtain a warrant. But he could
convey this conclusion to another police officer, who could then
secure the warrant by swearing that he had "received reliable
information from a credible person" that the narcotics were in
someone's possession.
[
Footnote 5]
Such an affidavit was sustained by this Court in
Jones v.
United States, 362 U. S. 257. The
affidavit in that case reads as follows:
"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., Narcotics Squad, MPDC."
"Subscribed and sworn to before me this 21 day of August,
1957."
"James F. Splain, U.S. Commissioner, D.C."
Id. at
362 U. S.
267-268, n. 2.
Compare, e.g., Hernandez v. People, 385 P.2d 996,
where the Supreme Court of Colorado, accepting a confession of
error by the State Attorney General, held that a search warrant
similar to the one here in issue violated the Fourth Amendment. The
court said:
"Before the issuing magistrate can properly perform his official
function, he must be apprised of the underlying facts and
circumstances which show that there is probable cause . . . ."
Id. at ___, 385 P.2d at 999.
MR. JUSTICE HARLAN, concurring.
But for
Ker v. California, 374 U. S.
23, I would have voted to affirm the judgment of the
Texas court. Given
Ker, I cannot escape the conclusion
that to do so would tend to "relax Fourth Amendment standards . . .
in derogation of law enforcement standards in the
federal
system . . ." (my concurring opinion in
Ker, supra, at
374 U. S. 45-46,
emphasis added). Contrary to what is suggested in the dissenting
opinion of my Brother CLARK in the present case (
post, p.
378 U. S. 118,
note 1), the standards laid down in
Giordenello v. United
States, 357 U. S. 480,
did, in my view, reflect constitutional requirements. Being
unwilling to relax those standards for federal prosecutions, I
concur in the opinion of the Court.
MR. JUSTICE CLARK, whom MR. JUSTICE BLACK and MR. JUSTICE
STEWART join, dissenting.
First, it is well to point out the information upon which the
search warrant in question was based: about January 1, 1960,
Officers Strickland and Rogers from the narcotics division of the
Houston Police Department received reliable information from a
credible person that petitioner Aguilar had heroin and other
narcotic drugs and narcotic paraphernalia in his possession at his
residence, 509 Pinckney Street, Houston, Texas; after receiving
this information, the officers, the record indicates, kept the
premises of petitioner under surveillance for about a week.
On January 8, 1960, the two officers applied for a search
warrant and executed an affidavit before a justice
Page 378 U. S. 117
of the peace in which they alleged under oath that petitioner's
residence at 509 Pinckney Street
"is a place where we each have reason to believe and do believe
that [Aguilar] . . . has in his possession therein narcotic drugs .
. . for the purpose of the unlawful sale thereof, and where such
narcotic drugs are unlawfully sold."
In addition and in support of their belief, the officers
included in the affidavit the further allegation that they
"have received reliable information from a credible person and
do believe that heroin . . . and other narcotics and narcotic
paraphernalia are being kept at . . . [petitioner's] premises for
the purpose of sale and use contrary to the provisions of the
law."
Upon executing the warrant issued on the strength of this
affidavit, the officers knocked on the door of Aguilar's house.
Someone inside asked who was there, and the officers replied that
they were police and that they had a search warrant. At this, they
heard someone "scuffle and start to run inside of the house." The
officers entered and pursued the petitioner, who ran into a back
bathroom. Petitioner threw a packet of heroin into the commode, but
an officer retrieved the packet before it could be flushed down the
drain.
I
At trial, petitioner objected to the introduction into evidence
of the heroin obtained through execution of the search warrant on
the ground that the affidavit was "nothing more than hearsay." The
Court holds the affidavit insufficient and sets aside the
conviction on the basis of two cases, neither of which is
controlling.
First is
Nathanson v. United States, 290 U. S.
41 (1933). In that case, the affidavit stated that the
affiant had "cause to suspect and [did] believe that certain
merchandise" was on the premises described. There was nothing in
Nathanson, either in the affidavit or in the other proof
introduced at trial, to suggest that any facts
Page 378 U. S. 118
had been brought out to support a reasonable belief or even a
suspicion. Accordingly, the Court held that "[m]ere affirmance of
belief or suspicion is not enough." At
290 U. S. 47. But
in Fourth Amendment cases, findings of reasonableness or of
probable cause necessarily rest on the facts and circumstances of
each particular case. In
Aguilar, the affidavit was based
not only on "affirmance of belief," but, in addition, upon
"
reliable information from a credible person" plus a
week's surveillance by the affiants. (Emphasis supplied.)
Nathanson is, therefore, not apposite.
The second case the Court relies on is
Giordenello v. United
States, 357 U. S. 480
(1958). There, the affidavit alleged that "Giordenello did receive,
conceal, etc., narcotic drugs, to-wit, heroin hydrochloride with
knowledge of unlawful importation . . . ." The opinion of the
Court, by MR. JUSTICE HARLAN, after discussing Rules 3 and 4 of the
Federal Rules of Criminal Procedure, held that the defect in the
complaint was that it "does not provide any basis for the
Commissioner's determination under Rule 4 that probable cause
existed." At
357 U. S. 486.
The dissent in the case, in commenting on the Court's holding that
the complaint was invalid, said: "The Court does not strike down
this complaint directly on the Fourth Amendment, but merely on an
extension of Rule 4." At
357 U. S. 491.
Since
Giordenello was a federal case, decided under our
supervisory powers (Rules 3 and 4 of the Federal Rules of Criminal
Procedure), it does not control here. [
Footnote 2/1] As we said in
Ker v. California,
374 U. S. 23,
374 U. S.
33,
"the demands of our federal system compel us to distinguish
between evidence held inadmissible because of our supervisory
powers over federal courts and
Page 378 U. S. 119
that held inadmissible because prohibited by the United States
Constitution."
Even if
Giordenello was rested on the Constitution, it
would not be controlling here because of the significant
differences in the facts of the two cases. In
Giordenello,
the Court said:
"The complaint . . . does not indicate any sources for the
complainant's belief, and it does not set forth any
other
sufficient basis upon which a finding of probable cause could be
made."
357 U.S. at
357 U. S. 486.
(Emphasis supplied.) Here, in Aguilar's case, the affidavit did
allege a source for the complainant's belief,
i.e.,
"reliable information from a credible person . . . that heroin . .
. and other narcotics . . . are being kept" in petitioner's
premises "for the purpose of sale and use contrary to the
provisions of the law." This takes the affidavit here entirely
outside the
Giordenello holding. In
Giordenello,
no source of information was stated, whereas here there was a
reliable one. The affidavit thus shows "probable cause" within the
meaning of the Fourth Amendment, as that Amendment was interpreted
by this Court in
Draper v. United States, 358 U.
S. 307 (1959), where it was contended that the
information given by an informant to an officer was inadmissible
because it was hearsay. The Court in
Draper held that
petitioner was "entirely in error.
Brinegar v. United
States . . . has settled the question the other way." At
358 U. S. 311.
In the following year, this was reaffirmed in
Jones v. United
States, 362 U. S. 257,
362 U. S. 271
(1960): "We conclude therefore that hearsay may be the basis for a
warrant." [
Footnote 2/2]
Page 378 U. S. 120
Furthermore, in the case of
Rugendorf v. United States,
decided only this Term, we held an affidavit good based on
information that an informer had seen certain furs in Rugendorf's
basement.
376 U. S. 376 U.S.
528. In the
Aguilar affidavit, the informer told the
officers that narcotics were actually "kept at the above described
premises for the purpose of sale . . . ." The Court seems to hold
that what the informed says is the test of his reliability. I
submit that this has nothing to do with it. The officer's
experience with the informer is the test, and, here, the two
officers swore that the informer was credible and the information
reliable. At the hearing on the motion to suppress, Officer
Strickland testified that he delayed getting the search warrant for
a week in order to "set up surveillance on the house." The
informant's statement, Officer Strickland said, was "the first
information" received, and was only "some of" that which supported
the application for the warrant. The totality of the circumstances
upon which the officer relied is certainly pertinent to the
validity of the warrant.
See the use of such testimony in
Giordenello, supra, at
357 U. S. 485,
357 U. S. 486.
And, just as in that case, there is nothing in the record here to
show what the officers verbally told the magistrate. The
surveillance of Aguilar's house, which is confirmed by the State's
brief, apparently gave the officers further evidence upon which
they based their personal belief. Hence, the affidavit here is a
far cry from "suspicion" or "affirmance of belief." It was based on
reliable information from a credible informant plus personal
surveillance by the officers.
Furthermore, the Courts of Appeals have often approved
affidavits similar to the one here.
See, e.g., United States v.
Eisner, 297 F.2d 595 (C.A.6th Cir.);
Evans v. United
States, 242 F.2d 534 (C.A.6th Cir.);
United States v.
Ramirez, 279 F.2d 712, 715 (C.A.2d Cir.) (dictum); and
United States v. Meeks, 313 F.2d 464
Page 378 U. S. 121
(C.A.6th Cir.). We denied certiorari in
Eisner, 369
U.S. 859, although the affidavit there stated only that
"[i]nformation has been obtained by S. A. Clifford Anderson . . .
which he believes to be reliable . . . ," 297 F.2d at 596, and in
Evans, 353 U.S. 976, where the affiant was a man who "came
to the headquarters of the federal liquor law enforcement officers
and stated that he wished to give information . . . ," 242 F.2d at
535.
In summary, the information must be more than mere wholly
unsupported suspicion but less than "would justify condemnation,"
as Chief Justice Marshall said in
Locke v.
United States, 7 Cranch 339,
11 U. S. 348
(1813). As Chief Justice Taft said in
Carroll v. United
States, 267 U. S. 132,
267 U. S. 162
(1925): probable cause exists where
"the facts and circumstances within their [the officers']
knowledge and of which they had reasonably trustworthy information
[are] . . . sufficient in themselves to warrant a man of reasonable
caution in the belief that"
an offense has been or is being committed. And as Mr. Justice
Rutledge so well stated in
Brinegar v. United States,
338 U. S. 160,
338 U. S. 176
(1949):
"These long-prevailing standards seek to safeguard citizens from
rash and unreasonable interferences with privacy and from unfounded
charges of crime. They also seek to give fair leeway for enforcing
the law in the community's protection. Because many situations
which confront officers in the course of executing their duties are
more or less ambiguous, room must be allowed for some mistakes on
their part. But the mistakes must be those of reasonable men,
acting on facts leading sensibly to their conclusions of
probability. The rule of probable cause is a practical,
nontechnical conception affording the best compromise that has been
found for accommodating these often opposing interests.
Page 378 U. S. 122
Requiring more would unduly hamper law enforcement. To allow
less would be to leave law-abiding citizens at the mercy of the
officers' whim or caprice."
Believing that the Court has substituted a rigid, academic
formula for the unrigid standards of reasonableness and "probable
cause" laid down by the Fourth Amendment itself -- a substitution
of technicality for practicality -- and believing that the Court's
holding will tend to obstruct the administration of criminal
justice throughout the country, I respectfully dissent.
[
Footnote 2/1]
MR. JUSTICE BLACK, who joined the Court's opinion in
Giordenello, joins this dissent on the basis of his belief
that
Giordenello was based on Rule 4, and not on the less
exacting requirements of the Fourth Amendment.
[
Footnote 2/2]
The affidavit in
Jones was more detailed, including a
statement of where the heroin might be found,
viz., "on
their person, under a pillow, on a dresser or on a window ledge in
said apartment." But this detail adds nothing to the reliability of
the information furnished. Likewise, the allegation in
Jones that the informer had "on previous occasion" given
information "which was correct" was contained in substance in the
Aguilar affidavit.