Aguilar v. Texas/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.'

The search warrant was issued.

In executing the warrant, the local police, along with federal officers, announced at petitioner's door that they 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 overru ed and the evidence admitted. Petitioner was convicted of illegal possession of heroin and sentenced to serve 20 years in the state penitentiary. 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, 84 S.Ct. 86, 11 L.Ed.2d 48.

In Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, 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., 374 U.S. at 33, 83 S.Ct. at 1630. 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 of officers *  *  * who may happen to make arrests.' United States v. Lefkowitz, 285 U.S. 452, 464, 52 S.Ct. 420, 423, 76 L.Ed. 877: 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, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436. Under such a rule 'resort to (warrants) would ultimately be discouraged.' Jones v. United States, 362 U.S. 257, 270, 80 S.Ct. 725, 736, 4 L.Ed.2d 697. 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., 362 U.S. at 271, 80 S.Ct. at 736. 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, 333 U.S. at 13-14,      68 S.Ct. at

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.

In Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159, 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., 290 U.S. at 44, 54 S.Ct. at 12. The Court, noting that the affidavit 'went upon a mere affirmation of suspicio and belief without any statement of adequate supporting facts,' id., 290 U.S. at 46, 54 S.Ct. at 13 (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., 290 U.S. at 47,      54 S.Ct. at 13. (Emphasis added.)

The Court, in Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 applied this rule to an affidavit similar to that relied upon here. Affiant in that case swore that petitioner 'did receive, conceal, etc., narcotic drugs * *  * with knowledge of unlawful importation *  *  * .' Id., 357 U.S. at 481, 78 S.Ct. at 1247. 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 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, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436. 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 486, 78 S.Ct., at 1250.

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 possession. The magistrate here certainly could not 'judge for himself the persuasiveness of the facts relied on * *  * to show probable cause.' 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, 80 S.Ct. 725, 4 L.Ed.2d 697, 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, 84 S.Ct. 825, was 'credible' or his information 'reliable.' Otherwise, '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 486, 78 S.Ct. at 1250; Johnson v. United States, supra, 333 U.S. at 14, 68 S.Ct. at 369, 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 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.