Following receipt of information from an informer, two Chicago
policemen made a warrantless arrest of the petitioner for
possessing narcotics. At the pretrial hearing on petitioner's
motion to suppress the evidence which was found on his person, the
officers testified that: the informant had told them that
petitioner "was selling narcotics and had narcotics on his person"
and the area where petitioner could then be found; they found him
in that vicinity; after pointing petitioner out, the informant
departed; they arrested petitioner and searched him in their
vehicle and found the narcotics on his person. The officers also
testified that, during the one to two years, respectively, that
they had known the informant, he had frequently furnished accurate
information about narcotics activities which had led to many
convictions. Petitioner requested the informant's identity, and the
State, relying on the testimonial privilege under Illinois law
against such disclosure, objected. The State's objections were
sustained, petitioner's motion to suppress was denied, and he was
thereafter convicted upon the basis of the evidence seized. The
judgment of conviction was affirmed by the State Supreme Court,
which held the arrest lawful and not vitiated by the application of
the "informer's privilege."
Held:
1. Upon the basis of the circumstances related by the officers,
they had probable cause to make the arrest and the search
incidental thereto. P.
386 U. S.
304.
2. A state court is under no absolute duty under either the Due
Process Clause of the Fourteenth Amendment or under the Sixth
Amendment as incorporated therein to require disclosure of an
informer's identity at a pretrial hearing held for the purpose of
determining only the question of probable cause for an arrest or
search where, as here, there was ample evidence in an open and
adversary proceeding that the informer was known to the officers to
be reliable and that they made the arrest in good faith upon the
information he supplied. Pp.
386 U. S.
305-314.
33 Ill. 2d
66,
210 N.E.2d
161, affirmed.
Page 386 U. S. 301
MR. JUSTICE STEWART delivered the opinion the Court.
The petitioner was arrested in Chicago, Illinois, on the morning
of January 16, 1964, for possession of narcotics. The Chicago
police officers who made the arrest found a package containing
heroin on his person, and he was indicted for its unlawful
possession. Prior to trial, he filed a motion to suppress the
heroin as evidence against him, claiming that the police had
acquired it in an unlawful search and seizure in violation of the
Fourth and Fourteenth Amendments.
See Mapp v. Ohio,
367 U. S. 643.
After a hearing, the court denied the motion, and the petitioner
was subsequently convicted upon the evidence of the heroin the
arresting officers had found in his possession. The judgment of
conviction was affirmed by the Supreme Court of Illinois, [
Footnote 1] and we granted certiorari
to consider the petitioner's claim that the hearing on his motion
to suppress was constitutionally defective. [
Footnote 2]
The petitioner's arrest occurred near the intersection of 49th
Street and Calumet Avenue at about seven in the morning. At the
hearing on the motion to suppress, he testified that, up until a
half hour before he was arrested, he had been at "a friend's house"
about a block away,
Page 386 U. S. 302
that, after leaving the friend's house, he had "walked with a
lady from 48th to 48th and South Park," and that, as he approached
49th Street and Calumet Avenue, "[t]he Officers stopped me going
through the alley." "The officers," he said, "did not show me a
search warrant for my person or an arrest warrant for my arrest."
He said the officers then searched him and found the narcotics in
question. [
Footnote 3] The
petitioner did not identify the "friend" or the "lady," and neither
of them appeared as a witness.
The arresting offices then testified. Officer Jackson stated
that he and two fellow officers had had a conversation with an
informant on the morning of January 16 in their unmarked police
car. The officer said that the informant had told them that the
petitioner, with whom Jackson was acquainted,
"was selling narcotics, and had narcotics on his person, and
that he could be found in the vicinity of 47th and Calumet at this
particular time."
Jackson said that he and his fellow officers drove to that
vicinity in the police car and that, when they spotted the
petitioner, the informant pointed him out and then departed on
foot. Jackson stated that the officers observed the petitioner
walking with a woman, then separating from her and meeting briefly
with a man, then proceeding alone, and finally, after seeing the
police car, "hurriedly walk[ing] between two buildings." "At this
point," Jackson testified,
"my partner and myself got out of the car and informed him we
had information he had narcotics on his person, placed him in the
police vehicle at this point."
Jackson stated that the officers then searched
Page 386 U. S. 303
the petitioner and found the heroin in a cigarette package.
Jackson testified that he had been acquainted with the informant
for approximately a year, that, during this period, the informant
had supplied him with information about narcotics activities
"fifteen, sixteen times at least," that the information had proved
to be accurate and had resulted in numerous arrests and conviction.
On cross-examination, Jackson was even more specific as to the
informant's previous reliability, giving the names of people who
had been convicted of narcotics violation as the result of
information the informant had supplied. When Jackson was asked for
the informant's name and address, counsel for the State objected,
and the objection was sustained by the court. [
Footnote 4]
Officer Arnold gave substantially the same account of the
circumstances of the petitioner's arrest and search, stating that
the informant had told the officers that the petitioner "was
selling narcotics and had narcotics on his
Page 386 U. S. 304
person now in the vicinity of 47th and Calumet." The informant,
Arnold testified, "said he had observed [the petitioner] selling
narcotics to various people, meaning various addicts, in the area
of 47th and Calumet." Arnold testified that he had known the
informant "roughly two years," that the informant had given him
information concerning narcotics "20 or 25 times," and that the
information had resulted in convictions. Arnold too was asked on
cross-examination for the informant's name and address, and
objections to these questions were sustained by the court.
There can be no doubt, upon the basis of the circumstances
related by Officers Jackson and Arnold, that there was probable
cause to sustain the arrest and incidental search in this case.
Draper v. United States, 358 U. S. 307.
Unlike the situation in
Beck v. Ohio, 379 U. S.
89, each of the officers in this case described with
specificity "what the informer actually said, and why the officer
thought the information was credible." 379 U.S. at
379 U. S. 97.
The testimony of each of the officers informed the court 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 . . . was 'credible' or his information 'reliable.'"
Aguilar v. Texas, 378 U. S. 108,
378 U. S. 114.
See United States v. Ventresca, 380 U.
S. 102. Upon the basis of those circumstances, along
with the officers' personal observations of the petitioner, the
court was fully justified in holding that, at the time the officers
made the arrest,
"the facts and circumstances within their knowledge and of which
they had reasonably trustworthy information were sufficient to
warrant a prudent man in believing that the petitioner had
committed or was committing an offense.
Brinegar v. United
States, 33 U. S. 160,
33 U. S.
175-176;
Henry v. United States, 361 U. S.
98,
361 U. S. 102."
Beck
Page 386 U. S. 305
v. Ohio, supra, at
379 U. S. 91. It
is the petitioner's claim, however, that, even though the officers'
sworn testimony fully supported a finding of probable cause for the
arrest and search, the state court nonetheless violated the
Constitution when it sustained objections to the petitioner's
questions a to the identity of the informant. We cannot agree.
In permitting the officers to withhold the informant's identity,
the court was following well settled Illinois law. When the issue
is not guilt or innocence, but, as here, the question of probable
cause for an arrest or search, the Illinois Supreme Court has held
that police officer need not invariably be required to disclose an
informant's identity if the trial judge is convinced, by evidence
submitted in open court and subject to cross-examination, that the
officers did rely in good faith upon credible information supplied
by a reliable informant. [
Footnote
5] This Illinois evidentiary rule is consistent with the law of
many other States. [
Footnote 6]
In California, the State Legislature in 1965 enacted a statute
adopting just such a rule for cases like the one before us:
"[I]n any preliminary hearing, criminal trial, or other criminal
proceeding, for violation of any provision of Division 10
(commencing with Section 11000) of the Health and Safety Code,
evidence of information
Page 386 U. S. 306
communicated to a peace officer by a confidential informant, who
is not a material witness to the guilt or innocence of the accused
of the offense charged, shall be admissible on the issue of
reasonable cause to make an arrest or search without requiring that
the name or identity of the informant be disclosed if the judge or
magistrate is satisfied, based upon evidence produced in open
court, out of the presence of the jury, that such information was
received from a reliable informant and in his discretion does not
require such disclosure."
California Evid.Code § 1042(c). [
Footnote 7]
The reasoning of the Supreme Court of New Jersey in judicially
adopting the same basic evidentiary rule was instructively
expressed by Chief Justice Weintraub in
State v. Burnett,
42 N.J. 377, 201 A.2d 39:
"If a defendant may insist upon disclosure of the informant in
order to test the truth of the officer's statement that there is an
informant or as to what the informant related or as to the
informant's reliability, we can be sure that every defendant will
demand disclosure. He has nothing to lose, and the prize may be the
suppression of damaging evidence if the State cannot afford to
reveal its source, as is so often the case. And since there is no
way to test the good faith of a defendant who presses the demand,
we must assume the routine demand would have to be routinely
granted. The result would be that the State could use the
informant's information only as
Page 386 U. S. 307
a lead, and could search only if it could gather adequate
evidence of probable cause apart from the informant's data. Perhaps
that approach would sharpen investigatorial techniques, but we
doubt that there would be enough talent and time to cope with crime
upon that basis. Rather, we accept the premise that the informer is
a vital part of society's defensive arsenal. The basic rule
protecting his identity rests upon that belief."
"
* * * *"
"We must remember also that we are not dealing with the trial of
the criminal charge itself. There, the need for a truthful verdict
outweighs society's need for the informer privilege. Here, however,
the accused seeks to avoid the truth. The very purpose of a motion
to suppress is to escape the inculpatory thrust of evidence in
hand, not because its probative force is diluted in the least by
the mode of seizure, but rather as a sanction to compel enforcement
officer to respect the constitutional security of all of us under
the Fourth Amendment.
State v. Smith, 37 N.J. 481, 486
(1962). If the motion to suppress is denied, defendant will still
be judged upon the untarnished truth."
"
* * * *"
"The Fourth Amendment is served if a judicial mind passes upon
the existence of probable cause. Where the issue is submitted upon
an application for a warrant, the magistrate is trusted to evaluate
the credibility of the affiant in an
ex parte proceeding.
As we have said, the magistrate is concerned not with whether the
informant lied, but with whether the affiant is truthful in his
recitation of what he was told. If the magistrate doubts the
credibility of the affiant, he may require that the
Page 386 U. S. 308
informant be identified or even produced. It seems to us that
the same approach is equally sufficient where the search was
without a warrant, that is to say, that it should rest entirely
with the judge who hears the motion to suppress to decide whether
he needs such disclosure as to the informant in order to decide
whether the officer is a believable witness."
42 N.J. at 385-388, 201 A.2d at 435.
What Illinois and her sister States have done is no more than
recognize a well established testimonial privilege, long familiar
to the law of evidence. Professor Wigmore, not known as an
enthusiastic advocate of testimonial privileges generally,
[
Footnote 8] has described that
privilege in these words:
"A genuine privilege, on . . . fundamental principle . . . ,
must be recognized for the
identity of persons supplying the
government with information concerning the commission of
crimes. Communications of this kind ought to receive
encouragement. They are discouraged if the informer's identity is
disclosed. Whether an informer is motivated by good citizenship,
promise of leniency or prospect of pecuniary reward, he will
usually condition his cooperation on an assurance of anonymity --
to protect himself and his family from harm, to preclude adverse
social reactions, and to avoid the risk of defamation or malicious
prosecution actions against him. The government also has an
interest in nondisclosure of the identity of its informers. Law
enforcement officers often depend upon professional informers to
furnish them with a flow of information about criminal activities.
Revelation of the dual role played by such persons ends their
usefulness
Page 386 U. S. 309
to the government and discourages others from entering into a
like relationship."
"That the government has this privilege is well established, and
its soundness cannot be questioned."
(Footnotes omitted.) 8 Wigmore, Evidence § 2374 (McNaughton
rev.1961).
In the federal courts, the rules of evidence in criminal trial
are governed "by the principles of the common law as they may be
interpreted by the courts of the United States in the light of
reason and experience." [
Footnote
9] This Court, therefore, has the ultimate task of defining the
scope to be accorded to the various common law evidentiary
privileges in the trial of federal criminal cases.
See Hawkins
v. United States, 358 U. S. 74. This
is a task which is quite different, of course, from the
responsibility of constitutional adjudication. In the exercise of
this supervisory jurisdiction, the Court had occasion 10 years ago,
in
Roviaro v. United States, 353 U. S.
53, to give thorough consideration to one aspect of the
informer's privilege, the privilege itself having long been
recognized in the federal judicial system. [
Footnote 10]
The
Roviaro case involved the informer's privilege not
at a preliminary hearing to determine probable cause for an arrest
or search, but at the trial itself, where the issue was the
fundamental one of innocence or guilt. The petitioner there had
been brought to trial upon a two-count federal indictment charging
sale and transportation of narcotics. According to the
prosecution's evidence, the informer had been an active participant
in the crime. He
"had taken a material part in bringing about the possession of
certain drugs by the accused, had been present with the accused at
the occurrence of
Page 386 U. S. 310
the alleged crime, and might be a material witness as to whether
the accused knowingly transported the drugs as charged."
353 U.S. at
353 U. S. 55.
The trial court nonetheless denied a defense motion to compel the
prosecution to disclose the informer's identity.
This Court held that, where, in an actual trial of a federal
criminal case,
"the disclosure of an informer's identity . . . 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. . .
."
"
* * * *"
"We believe that no fixed rule with respect to disclosure is
justifiable. The problem is one that calls for balancing the public
interest in protecting the flow of information against the
individual's right to prepare his defense. Whether a proper balance
renders nondisclosure erroneous must depend on the particular
circumstances of each case, taking into consideration the crime
charged, the possible defenses, the possible significance of the
informer's testimony, and other relevant factors."
353 U.S. at
353 U. S. 60-61,
62. (Footnotes omitted.)
The Court's opinion then carefully reviewed the particular
circumstances of Roviaro's trial, pointing out that the informer's
"possible testimony was highly relevant . . . ," that he "might
have disclosed an entrapment . . . ," "might have thrown doubt upon
petitioner's identity or on the identity of the package . . . ,"
"might have testified to petitioner's possible lack of knowledge of
the contents of the package that he
transported' . . . ," and
that the "informer was the sole participant, other
Page 386 U. S.
311
than the accused, in the transaction charged." 353 U.S. at
353 U. S. 63-64.
The Court concluded
"that, under these circumstances, the trial court committed
prejudicial error in permitting the Government to withhold the
identity of its undercover employee in the face of repeated demands
by the accused for his disclosure."
353 U.S. at
353 U. S.
65.
What
Roviaro thus makes clear is that this Court was
unwilling to impose any absolute rule requiring disclosure of an
informer's identity even in formulating evidentiary rules for
federal criminal trials. Much less has the Court ever approached
the formulation of a federal evidentiary rule of compulsory
disclosure where the issue is the preliminary one of probable
cause, and guilt or innocence is not at stake. Indeed, we have
repeatedly made clear that federal officers need not disclose an
informer's identity in applying for an arrest or search warrant. As
was said in
United States v. Ventresca, 380 U.
S. 102,
380 U. S. 108,
we have
"recognized that "an affidavit may be based on hearsay
information, and need not reflect the direct personal observations
of the affiant," so long as the magistrate is "informed of some of
the underlying circumstances" supporting the affiant's conclusions
and his belief that any informant involved "
whose identity need
not be disclosed, . . . was
credible,' or his information
`reliable.'" Aguilar v. Texas, supra, at 278 U. S.
114."
(Emphasis added.)
See also Jones v. United States,
362 U. S. 257,
362 U. S.
271-272;
Rugendorf v. United States,
376 U. S. 528,
376 U. S. 533.
[
Footnote 11] And
Page 386 U. S. 312
just this Term, we have taken occasion to point out that a rule
virtually prohibiting the use of informers would "severely hamper
the Government" in enforcement of the narcotics laws.
Lewis v.
United States, 385 U. S. 206,
385 U. S.
210.
In sum, the Court, in the exercise of its power to formulate
evidentiary rules for federal criminal cases, has consistently
declined to hold that an informer's identity need always be
disclosed in a federal criminal trial, let alone in a preliminary
hearing to determine probable cause for an arrest or search. Yet we
are now asked to hold that the Constitution somehow compels
Illinois to abolish the informer's privilege from its law of
evidence, and to require disclosure of the informer's identity in
every such preliminary hearing where it appears that the officers
made the arrest or search in reliance upon facts supplied by an
informer they had reason to trust. The argument is based upon the
Due
Page 386 U. S. 313
Process Clause of the Fourteenth Amendment, and upon the Sixth
Amendment right of confrontation, applicable to the States through
the Fourteenth Amendment.
Pointer v. Texas, 380 U.
S. 400. We find no support for the petitioner's position
in either of those constitutional provisions.
The arresting officers in this case testified, in open court,
fully and in precise detail as to what the informer told them and
as to why they had reason to believe his information was
trustworthy. Each officer was under oath. Each was subjected to
searching cross-examination. The judge was obviously satisfied that
each was telling the truth, and, for that reason, he exercised the
discretion conferred upon him by the established law of Illinois to
respect the informer's privilege.
Nothing in the Due Process Clause of the Fourteenth Amendment
requires a state court judge in every such hearing to assume the
arresting officers are committing perjury.
"To take such a step would be quite beyond the pale of this
Court's proper function in our federal system. It would be a wholly
unjustifiable encroachment by this Court upon the constitutional
power of States to promulgate their own rules of evidence . . . in
their own state courts. . . ."
Spencer v. Texas, 385 U. S. 554,
385 U. S.
568-569.
The petitioner does not explain precisely how he thinks his
Sixth Amendment right to confrontation and cross-examination was
violated by Illinois' recognition of the informer's privilege in
this case. If the claim is that the State violated the Sixth
Amendment by not producing the informer to testify against the
petitioner, then we need no more than repeat the Court's answer to
that claim a few weeks ago in
Cooper v. California:
"Petitioner also presents the contention here that he was
unconstitutionally deprived of the right to confront a witness
against him, because the State
Page 386 U. S. 314
did not produce the informant to testify against him. This
contention we consider absolutely devoid of merit."
Ante, p.
386 U. S. 58, at
386 U. S. 62, n.
2. On the other hand, the claim may be that the petitioner was
deprived of his Sixth Amendment right to cross-examine the
arresting officers themselves because their refusal to reveal the
informer's identity was upheld. But it would follow from this
argument that no witness on cross-examination could ever
constitutionally assert a testimonial privilege, including the
privilege against compulsory self-incrimination guaranteed by the
Constitution itself. We have never given the Sixth Amendment such a
construction, and we decline to do so now.
Affirmed.
[
Footnote 1]
33 Ill. 2d
66,
210 N.E.2d
161.
[
Footnote 2]
384 U.S. 949.
[
Footnote 3]
The weather was "real cold," and the petitioner testified he
"had on three coats." In order to conduct the search, the arresting
officers required the petitioner to remove some of his clothing,
but even the petitioner's version of the circumstances of the
search did not disclose any conduct remotely akin to that condemned
by this Court in
Rochin v. California, 342 U.
S. 165.
[
Footnote 4]
"Q. What is the name of this informant that gave you this
information?"
"Mr. Engerman: Objection, Your Honor."
"The Court: State for the record the reasons for your
objection."
"Mr. Engerman: Judge, based upon the testimony of the officer so
far that they had used this informant for approximately a year, he
has worked with this individual, in the interest of the public, I
see no reason why the officer should be forced to disclose the name
of the informant, to cause harm or jeopardy to an individual who
has cooperated with the police. The City of Chicago have a
tremendous problem with narcotics. If the police are not able to
withhold the name of the informant, they will not be able to get
informants. They are not willing to risk their lives if their names
become known."
"In the interest of the City and the law enforcement of this
community, I feel the officer should not be forced to reveal the
name of the informant. And I also cite
People vs.
Durr."
"The Court: I will sustain that."
"Mr. Adam: Q. Where does this informant live?"
"Mr. Engerman: Objection, your Honor, same basis."
"The Court: Sustained."
[
Footnote 5]
People v. Durr, 28 Ill. 2d
308,
192 N.E.2d
379;
People v. Nettles, 34 Ill. 2d
52,
213 N.E.2d
536;
People v. Connie, 34 Ill. 2d
353,
215 N.E.2d
280;
People v. Freeman, 34 Ill. 2d
362, 215 N.E.2d 20B;
People v. Miller, 34 Ill. 2d
527,
216 N.E.2d
793.
Cf. People v. Pitts, 26 Ill. 2d
395,
186 N.E.2d
357;
People v. Parren, 24 Ill. 2d
572,
182 N.E.2d
662.
[
Footnote 6]
State v. Cookson, 361 3. W.2d 683 (Mo.Sup.Ct.);
Simmons v. State, 198 Tenn. 587,
281
S.W.2d 487;
People v. Coffey, 12 N.Y.2d 443, 191
N.E.2d 263.
But see People v. Malinsky, 15 N.Y.2d 86, 209
N.E.2d 694.
Cf. Stelloh v. Liban, 21 Wis.2d 119, 124
N.W.2d 101;
Baker v. State, 150 So. 2d 729 (Fla. App.);
State v. Boles, 246 N.C. 83,
97 S.E.2d
476.
[
Footnote 7]
In the present case, California has filed a helpful
amicus brief, advising us that the validity of this
provision is now before the Supreme Court of California.
Martin
v. Superior Court (LA 29078). The statute was enacted to
modify that court's decision in
Priestly v. Superior
Court, 50 Cal. 2d
812, 330 P.2d 39.
See also Ford v. City of Jackson,
153 Miss. 616, 121 So. 278.
[
Footnote 8]
See 8 Wigmore, Evidence § 2192 (McNaughton
rev.1961).
[
Footnote 9]
Rule 26, Fed.Rules Crim.Proc.
[
Footnote 10]
See Scher v. United States, 305 U.
S. 251;
In re Quarles & Butler,
158 U. S. 532;
Vogel v. Gruaz, 110 U. S. 311.
[
Footnote 11]
Some federal courts have applied the same rule of nondisclosure
in both warrant and nonwarrant cases.
Smith v. United
States, 123 U.S.App.D.C. 202, 358 F.2d 833;
Jones v.
United States, 326 F.2d 124 (C.A. 9th Cir.),
cert.
denied, 377 U.S. 956;
United States v. One 1957 Ford
Ranchero Pickup, 265 F.2d 21 (C.A. 10th Cir.). Other federal
courts, however, have distinguished between these two classes of
cases, and have required the identification of informants in
nonwarrant cases.
United States v. Robinson, 325 F.2d 391
(C.A.2d Cir.);
Cochran v. United States, 291 F.2d 633
(C.A. 8th Cir.).
Cf. Wilson v. United States, 59 F.2d 390
(C.A.3d Cir.).
See Comment, Informer's Word as the Basis
for Probable Cause in the Federal Courts, 53 Calif.L.Rev. 840
(1965).
In drawing this distinction, some of the federal courts have
relied upon a dictum in
Roviaro v. United States,
353 U. S. 53,
353 U. S.
61:
"Most of the federal cases involving this limitation on the
scope of the informer's privilege have arisen where the legality of
a search without a warrant is in issue and the communications of an
informer are claimed to establish probable cause. In these cases,
the Government has been required to disclose the identity of the
informant unless there was sufficient evidence apart from his
confidential communication."
Since there was no probable cause issue in
Roviaro, the
quoted statement was clearly not necessary for decision. Indeed, an
absolute rule of disclosure for probable cause determinations would
conflict with the case-by-case approach upon which the
Roviaro decision was based. Moreover, the precedent upon
which this dictum was grounded furnishes only dubious support.
Scher v. United States, 305 U. S. 251, the
only decision of this Court which was cited, affirmed the trial
judge's
refusal to order arresting officers to reveal the
source of their information.
MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE, MR. JUSTICE
BRENNAN and MR. JUSTICE FORTAS concur, dissenting.
We have here a Fourth Amendment question concerning the validity
of an arrest. If the police see a crime being committed, they can,
of course, seize the culprit. If a person is fleeing the scene of a
crime, the police can stop him. And there are the cases of "hot
pursuit" and other instances of probable cause when the police can
make an arrest. But normally an arrest should be made only on a
warrant issued by a magistrate on a showing of "probable cause,
supported by oath or affirmation," as required by the Fourth
Amendment. At least since
Mapp v. Ohio, 367 U.
S. 643, the States are as much bound by those provisions
as is the Federal Government. But for the Fourth Amendment, they
could fashion the rule for arrests that the Court now approves.
With all deference, the requirements of the Fourth Amendment now
make that conclusion unconstitutional.
No warrant for the arrest of petitioner was obtained in this
case. The police, instead of going to a magistrate
Page 386 U. S. 315
and making a showing of "probable cause" based on their
informant's tip-off, acted on their own. They, rather than the
magistrate, became the arbiters of "probable cause." The Court's
approval of that process effectively rewrites the Fourth
Amendment.
In
Roviaro v. United States, 353 U. S.
53,
353 U. S. 61, we
held that, where a search without a warrant is made on the basis of
communications of an informer and the Government claims the police
had "probable cause," disclosure of the identity of the informant
is normally required. In no other way can the defense show an
absence of "probable cause." By reason of
Mapp v. Ohio,
supra, that rule is now applicable to the States.
In
Beck v. Ohio, 379 U. S. 89,
379 U. S. 96, we
said:
"An arrest without a warrant bypasses the safeguards provided by
an objective predetermination of probable cause, and substitutes
instead the far less reliable procedure of an after-the-event
justification for the arrest or search, too likely to be subtly
influenced by the familiar shortcomings of hindsight judgment."
For that reason, we have weighted arrests with warrants more
heavily than arrests without warrants.
See United States v.
Ventresca, 380 U. S. 102,
380 U. S. 106.
Only through the informer's testimony can anyone other than the
arresting officers determine "the persuasiveness of the facts
relied on . . . to show probable cause."
Aguilar v. Texas,
378 U. S. 108,
378 U. S. 113.
[
Footnote 2/1] Without that
disclosure, neither we nor the lower courts can ever know whether
there was "probable cause" for the arrest. Under the present
decision, we leave the Fourth Amendment exclusively in the custody
of the police. As stated by Mr. Justice Schaefer, dissenting in
People v. Durr, 28 Ill. 2d
308, 318,
192 N.E.2d
379,
384, unless
the identity of the informer is disclosed "the policeman himself
conclusively
Page 386 U. S. 316
determines the validity of his own arrest." That was the view of
the Supreme Court of California in
Priestly v. Superior
Court, 50 Cal. 2d
812, 818, 330 P.2d 39, 43:
"Only by requiring disclosure and giving the defendant an
opportunity to present contrary or impeaching evidence as to the
truth of the officer's testimony and the reasonableness of his
reliance on the informer can the court make a fair determination of
the issue. Such a requirement does not unreasonably discourage the
free flow of information to law enforcement officers or otherwise
impede law enforcement. Actually, its effect is to compel
independent investigations to verify information given by an
informer or to uncover other facts that establish reasonable cause
to make an arrest or search."
There is no way to determine the reliability of Old Reliable,
the informer, unless he is produced at the trial and
cross-examined. Unless he is produced, the Fourth Amendment is
entrusted to the tender mercies of the police. [
Footnote 2/2] What we do today is to encourage
arrests and searches without warrants. The whole momentum of
criminal law administration should be in precisely the opposite
direction if the Fourth Amendment is to remain a vital force.
Except in rare and emergency cases, it requires magistrates to make
the findings of "probable cause." We should be mindful of its
command that a judicial mind should be interposed between the
police and the citizen. We should also be mindful that "disclosure,
rather than suppression, of relevant materials ordinarily promotes
the proper administration of criminal justice."
Dennis v.
United States, 384 U. S. 855,
384 U. S.
870.
[
Footnote 2/1]
Quoting from
Giordenello v. United States, 357 U.
S. 480,
357 U. S.
486.
[
Footnote 2/2]
It is not unknown for the arresting officer to misrepresent his
connection with the informer, his knowledge of the informer's
reliability, or the information allegedly obtained from the
informer.
See, e.g., United States v. Pearce, 275 F.2d
318, 322.