Beck v. Ohio/Dissent Harlan

Mr. Justice HARLAN, dissenting.

Judge Zimmerman of the Supreme Court of Ohio stated as a fact, 'Information was given to the police by an informer that defendant would be in a certain locality at a certain time pursuing his unlawful activities. He was found in that locality, as predicted, driving an automobile.' 175 Ohio St. 73, 74, 191 N.E.2d 825, 827. I regard this as the crucial point in the case, for if the informant did give the police that information, the fact of its occurrence would sufficiently indicate the informant's reliability to provide a basis for petitioner's arrest, Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. It is this Court's function, therefore, to determine whether the State's finding is adequately supportable. In doing so it is essential to consider what are the appropriate standards of appellate review.

Generally 'our inquiry clearly is limited to a study of the undisputed portions of the record.' Thomas v. Arizona, 356 U.S. 390, 402, 78 S.Ct. 885, 892, 2 L.Ed.2d 863. '(T)here has been complete agreement that any conflict in testimony as to what actually led to a contested confession (or to a contested arrest) is not this Court's concern. Such conflict comes here authoritatively resolved by the State's adjudication.' Watts v. Indiana, 338 U.S. 49, 51-52, 69 S.Ct. 1347, 1348-1349, 93 L.Ed. 1801. See also, Gallegos v. Nebraska, 342 U.S. 55, 60-61, 72 S.Ct. 141, 144-145, 96 L.Ed. 86; Haley v. Ohio, 332 U.S. 596, 597-598, 68 S.Ct. 302, 303, 92 L.Ed. 224. It is equally clear that in cases involving asserted violations of constitutional rights the Court is free to draw its own inferences from established facts, giving due weight to the conclusions of the state court, but not being conclusively bound by them, Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265.

A distinction between facts and inferences may often be difficult to draw, but the guiding principle for this Court should be that when a question is in doubt and demeanor and credibility of witnesses, or contemporaneous understandings of the parties, have a part to play in its resolution, this Court should be extremely slow to upset a state court's inferential findings. The impetus for our exercising de novo review of the facts comes from the attitude that unless this Court can fully redetermine the facts of each case for itself, it will be unable to afford complete protection for constitutional rights. But when the 'feel' of the trial may have been a proper element in resolving an issue which is unclear on the record, our independent judgment should give way to the greater capability of the state trial court in determining whether a constitutional right has been infringed. Proper regard for the duality of the American judicial system demands no less.

Federal habeas corpus, which allows a federal court in appropriate circumstances to develop a fresh record, Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770, provides a far more satisfactory vehicle for resolving such unclear issues, for the judge can evaluate for himself the on-the-spot considerations which no appellate court can estimate with assurance on a cold record. Those considerations are important to the case at bar.

While I agree that the record is not free from all doubt, I believe that the following selected portions of the testimony of one of the arresting officers are sufficient to carry the day for the State's judgment:

'Q. Did you have reasonable and probable cause to stop this     man?

'A. Yes, I did.

'Q. Based on his previous record?

'A. Information and previous record and observation. (Emphasis added.)

'Q. When you left the Station, did you have in mind stopping     Mr. Beck?

'A. I had in mind looking for him in the area of East 115th Street and Beulah, stopping him if I did see him     make a stop in that area.

'Q. You indicated that you were operating on information?

'A. Yes.

'Q. From whom did you get this information?

'A. I couldn't divulge that information.

'Q. But someone specifically did relate that information to     you?

'A. Yes.

'Q. And you knew who that person was?

'A. Yes.'

It is true that the officer never specifically said 'The informant told me that Beck was operating in the area of East 115th Street and Beulah,' but he did testify that he went looking for Beck in that specific area, that he was acting in part on information, and that his information had been related to him by some specific person whose name he felt privileged not to divulge. I find the state court inference reasonable, even on the basis of the admittedly sparse record before us, that the informant told the officer that Beck was operating in the mentioned area.

Furthermore, in reaching this inference, on-the-spot considerations might well have come into play. There appears to have been no lack of common understanding at trial that the informant had given the officer the crucial information. Petitioner argued in the Ohio Supreme Court, 'the pattern is obvious, an officer testifies he had information from a confidential source that a particular person is 'picking up' numbers in a given area and based on that information they arrest such person 'on sight' without a warrant.' Judge Zimmerman of the Supreme Court of Ohio found it to be the fact without seeing any need for elaboration. Respondent, in its brief in this Court, assumed it to be the fact. And petitioner raised no question as to this inference in either his petition or brief. Indeed the question is raised for the first time, sua sponte, by the Court's opinion.

On this basis I vote to affirm.