McCray v. Illinois/Opinion of 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, 81 S.Ct. 1684, 6 L.Ed.2d 1081. 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, and we granted certiorari to consider the petitioner's claim that the hearing on his motion to suppress was constitutionally defective.

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, 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. The petitioner did not identify the 'friend' or the 'lady,' and neither of them appeared as a witness.

The arresting officers 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 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 convictions. 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 violations 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.

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 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, 79 S.Ct. 329, 3 L.Ed.2d 327. Unlike the situation in Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142, 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 97, 85 S.Ct., at 229. 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. State of Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723. See United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684. 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, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 1310-1311, 93 L.Ed. 1879; Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134,' Beck v. State of Ohio, supra, 379 U.S. at 91, 85 S.Ct. at 225. 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 as 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 officers 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. This Illinois evidentiary rule is consistent with the law of many other States. 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 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).

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 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 officers to respect the      constitutional security of all of us under the Fourth      Amendment. State v. Smith, 37 N.J. 481, 486, 181 A.2d 761     (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 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 43-45.

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, 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 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 trials 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.' 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, 79 S.Ct. 136, 3 L.Ed.2d 125. 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, 77 S.Ct. 623, 1 L.Ed.2d 639, to give thorough consideration to one aspect of the informer's privilege, the privilege itself having long been recognized in the federal judicial system.

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-court 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 the alleged crime, and might be a material witness as to whether the accused knowingly transported the drugs as charged.' 353 U.S., at 55, 77 S.Ct., at 625. 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 60-61, 62, 77 S.Ct., at 628. (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 than the accused, in the transaction charged.' 353 U.S., at 63-64, 77 S.Ct., at 629-630. 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 65, 77 S.Ct, at 630.

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, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684, 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. State of Texas, supra, 378 U.S., at 114, 84 S.Ct., at 1514.' (Emphasis added.) See also Jones v. United States, 362 U.S. 257, 271-272, 80 S.Ct. 725, 736-737, 4 L.Ed.2d 697; Rugendorf v. United States, 376 U.S. 528, 533, 84 S.Ct. 825, 828, 11 L.Ed.2d 887. And 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, 210, 87 S.Ct. 424, 427, 17 L.Ed.2d 312.

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 Process Clause of the Fourteenth Amendment, and upon the Sixth Amendment right of confrontation, applicable to the States through the Fourteenth Amendment. Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. 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. State of Texas, 385 U.S. 554, 568-569, 87 S.Ct. 648, 656, 17 L.Ed.2d 606.

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. State of California:

'Petitioner also presents the contention here that he was     unconstitutionally deprived of the right to confront a      witness against him, because the State did not produce the informant to testify against him. This     contention we consider absolutely devoid of merit.' 386 U.S.      58, at 62, n. 2, 87 S.Ct. 788, at 791, 17 L.Ed.2d 730.

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.

Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE, Mr. Justice BRENNAN and Mr. Justice FORTAS concur, dissenting.