United States v. Harris (403 U.S. 573)/Dissent Harlan

Mr. Justice HARLAN, with whom Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice MARSHALL join, dissenting.

This case presents the question of how our decisions in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), apply where magistrates in issuing search warrants are faced with the task of assessing the probable credibility of unidentified informants who purport to describe criminal activity of which they have personal knowledge, and where it does not appear that such informants have previously supplied accurate information to law enforcement officers.

I cannot agree that the affidavit here at issue provided a sufficient basis for an independent determination by a neutral judicial officer, that probable cause existed. Accordingly, I would affirm the judgment of the Court of Appeals. Five members of this Court, however, for four separately expressed reasons, have concluded that the judgment below must be reversed. Some of the theories employed by those voting to reverse are wholly unlike any of the grounds urged by the Government.

* Where, as in this case, the affiant states under oath that he has been informed of the existence of certain criminal activity, but has not observed that activity himself, a magistrate in discharging his duty to make an independent assessment of probable cause can properly issue a search warrant only if he concludes that: (a) the knowledge attributed to the informant, if true, would be sufficient to establish probable cause; (b) the affiant is likely relating truthfully what the informer said; and (c) it is reasonably likely that the informer's description of criminal behavior accurately reflects reality.

In the case before us, no one maintains that the magistrate's judgment as to elements (a) and (b) was not properly supported. Plainly the information set forth in the affidavit, if entitled to credit, establishes probable cause. And the magistrate was certainly entitled to rely on the agent's official status, his personal observation of the agent, and the oath administered to him by the magistrate in concluding that the affiant's assertions as to what he had been told by the informer were credible.

The final component of the probable cause equation, here involved, is that it must appear reasonably likely that the informer's claim that criminal conduct has occurred or is occurring is probably accurate. Our cases establish that this element is satisfied only if there is reason to believe both that the informer is a truthful person generally and that he has based his particular conclusions in the matter at hand on reliable data, Aguilar v. Texas, supra; Spinelli v. United States, supra for it is not reasonable to invade another's premises on the basis of information, even if it appears quite damning when simply taken at face value, unless there is corroboration of its trustworthiness. The fact that the magistrate has determined that the agent probably truthfully reported what the informant conveyed cannot, of course, establish the credibility or reliability of the information itself. More immediately relevant here, our cases have established that where the affiant relies upon the assertions of confidants to establish probable cause, the affidavit must set forth facts which enable the magistrate to judge for himself both the probable credibility of the informant and the reliability of his information, for only if this condition is met can a reviewing court be satisfied that the magistrate has fulfilled his constitutional duty to render an independent determination that probable cause exists. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Cf. Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958); Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933); Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).

The parties are in agreement with these principles and have not urged that they be re-examined. Indeed, I think these precepts follow ineluctably from the constitutional command that 'no Warrants shall issue, but upon probable cause.' Whether, in this case, either of these tests of the trustworthiness of the informer's tip has been met is, however, vigorously disputed.

Although the Court of Appeals did not address itself to this contention, respondent claims that the affidavit is insufficient to establish the reliability of the evidence upon which the informant based his conclusions. Of course, most of these data come from alleged direct personal observation of the informant, surely a sufficient basis upon which to predicate a finding of reliability under any test. However, respondent stresses that the allegation of direct observation of the criminal activity does not necessarily purport to embrace a period less than two weeks prior to the issuance of the search warrant. Moreover, the reliability of the source of the information that a purchase was made 'within the past two days' is not established and, it is argued, the other information was too stale to support the issuance of a warrant.

This argument is premised upon an overly technical view of the affidavit. The informant is said to have personally bought illegal whiskey from respondent 'within the past 2 weeks,' which could well include a point in time quite close to the issuance of the warrant. More importantly, the totality of the tip evidently reveals that the informer purported to describe an ongoing operation which he claimed he had personally observed over the course of two years. Giving due deference to the magistrate's determination of probable cause and reading the affidavit 'in a commonsense and realistic fashion,' United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965), I must conclude that the affidavit sets forth sufficient data to permit a magistrate to determine that, if the informer was likely telling the truth, information adequate to support a finding of probable cause was likely obtained in a reliable fashion.

I turn, then, to what the parties have treated as the crux of the controversy before us. Respondent contends, and the Court of Appeals so held, that the affidavit does not sufficiently set forth facts and circumstances from which the magistrate might properly have concluded that the informant, in purporting to detail his personal observation, was probably telling the truth. Conversely, the Government principally argues that two factors, singly or in combination, provided a factual basis for the magistrate's judgment that the tip was credible. First, the agent stated that he had 'interviewed this person (and) found this person to be a prudent person.' Second, the informant described the criminal activity in some detail and from his own personal knowledge.

The Government's first contention misconceives the basic thrust of this Court's decisions in the Nathanson, Giordenello, Aguilar, Spinelli, and Whiteley cases, supra. The central proposition common to each of these decisions is that the determination of probable cause is to be made by the magistrate, not the affiant. That the agent-affiant determined the informer to be prudent cannot be a basis for sustaining this warrant unless magistrates are entitled to delegate their responsibilities to law enforcement officials. Nathanson held that an affidavit to the effect that the affiant 'has cause to suspect and does believe' that illicit liquor was located on certain premises did not sufficiently apprise the issuing magistrate of the underlying 'facts or circumstances' from which 'he can find probable cause.' 290 U.S., at 47, 54 S.Ct., at 13 (emphasis added). In Aguilar, a sworn assertion that the informant was 'a credible person' was held insufficient to enable the magistrate to assess that conclusion for himself. Only two Terms ago, we held a warrant constitutionally defective because '(t)hough the affiant swore that his confidant was 'reliable,' he offered the magistrate no reason in support of this conclusion.' Spinelli v. United States, 393 U.S., at 416, 89 S.Ct., at 589. Reading the assertion that the informer in this case was 'prudent' in the broadest conceivable commonsense fashion, it does no more than claim he was 'credible' or 'reliable,' i.e., that he was likely telling the truth. Such an assertion, however, is no more than a conclusion which the Constitution requires must be drawn independently by the magistrate. What this portion of the affidavit lacks are any of the underlying 'facts or circumstances' that informed the agent's conclusion and whose presentation to the magistrate would enable him to assess the probability that this determination was sufficiently plausible to justify authorizing a search of respondent's premises.

Nor do I think this void is filled by the fact that the informant claimed to speak from his personal knowledge. It is true that in Nathanson the Court was not dealing with the sufficiency of the allegations respecting one or more of the above-described components of probable cause, but merely with a bare overall statement of the affiant that probable cause existed. Further, as the Government notes, our chief, but not sole, emphasis in Aguilar was upon the absence of any evidence communicated by the affiant from which a magistrate could infer that the confidant gathered his evidence from a reliable source. From this, the Government contends that Aguilar's reliability-of-the-informer test is not applicable in full force where, as here, it does seem clear that the sources of the informer's belief, if truthfully reported, were reliable. I think this argument makes too much of the circumstances of our previous cases. The central point of the discussion of probable cause in Aguilar is, as perhaps more precisely emphasized by our explicit twin holdings in Spinelli, see 393 U.S., at 416, 89 S.Ct., at 589, that the two elements necessary to establish the informer's trustworthiness-namely, that the tip relayed to the magistrate be both truthful and reliable-are analytically severable. It is not possible to argue that since certain information, if true, would be trustworthy, therefore, it must be true. The possibility remains that the information might have been fabricated. This is why our cases require that there be a reasonable basis for crediting the accuracy of the observation related in the tip. In short, the requirement that the magistrate independently assess the probable credibility of the informant does not vanish where the source of the tip indicates that, if true, it is trustworthy.

This is not to say, however, that I think the fact of asserted personal observation can never play a role in determining whether that observation actually took place. I can perceive at least two ways in which, in circumstances similar to those of this case, that information might be taken to bear upon the informer's credibility, as well as upon the reliability of his sources of information. For example, to the extent that the informant is somehow responsible to the affiant, the fact of asserted personal observation might be of some value to a magistrate in assessing the informer's credibility. In such circumstances, perhaps a magistrate could conclude that where the confidant claimed to speak from personal knowledge it is somewhat less likely that the informant was falsifying his report because, if the search yields no fruit, when called to account he would be unable to explain this away by impugning the veracity or reliability of his sources. However, no such relationship is revealed in this case.

Additionally, it might be of significance that the informant had given a more than ordinarily detailed description of the suspect's criminal activities. Although this would be more probative of the reliability of the information, it might also permissibly lead a magistrate, in an otherwise close case, to credit the accuracy of the account as well. I do not believe, however, that in this instance the relatively meager allegations of this character are, standing alone, enough to satisfy the credibility requirement essential to the sufficiency of this probable-cause affidavit. Reading this aspect of the affidavit in a not unduly circumspect manner, the allegations are of a character that would readily occur to a person prone to fabricate. To hold that this aspect of the affidavit, without more, would enable 'a man of reasonable caution,' Berger v. New York, 388 U.S. 41, 55, 87 S.Ct. 1873, 1881, 18 L.Ed.2d 1040 (1967), to conclude that there was adequate reason to believe the informant credible would open the door to the acceptance of little more than florid affidavits as justifying the issuance of search warrants.

Some members of the Court would reverse the judgment below on the grounds that the magistrate might properly have credited the informant's assertions because they confessed to the commission of a crime. This rationale is advanced notwithstanding the Government's failure even to suggest it.

Had this argument been pressed upon us, I would find it difficult to accept. First, the analogy to the hearsay exception is quite tenuous. The federal rule, although it is often criticized, is that declarations against penal interest do not fall within this exception. Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913). Moreover, because it has been thought that such statements should be relied upon by factfinders only when necessity justifies it, the rule universally requires a showing that the declarant cannot be produced personally before the trier of fact, C. McCormick, Evidence §§ 253, 257 (1954), an element not shown to be present here. See Part V, infra. Finally, we have not found any instance of the application of this rule where the witness declined to reveal to the trier of fact the identity of the declarant, presumably because without this knowledge it cannot be readily assumed that the declarant might have had reason to suspect the use of the statement would do him harm. Thus, while strict rules of evidence certainly do not govern magistrates' assessments of probable cause, it would require a rather extensive relaxation of them to permit reliance on this factor. And these rules cannot be completely relaxed, of course, since the basic thrust of Spinelli, Aguilar, Nathanson, Whiteley, and Giordenello, supra, is to prohibit the issuance of warrants upon mere uncorroborated hearsay. The simple statement by an affidant that an unspecified individual told the affiant that he and another had committed a crime, where offered to prove the complicity of the third party, is little, if any, more than that.

Secondly, the rationale for this exception to the hearsay rule is that the fact that the declaration was against the speaker's self-interest tends to indicate that its substance is accurate. 5 J. Wigmore, Evidence § 1457 (3d ed. 1940). But where the declarant is also a police informant it seems at least as plausible to assume, without further enlightenment either as to the Government's general practice or as to the particular facts of this case, that the declarant-confidant at least believed he would receive absolution from prosecution for his confessed crime in return for his statement. (This, of course, would not be an objection where the declarant is not also the informant. See Spinelli, supra, 393 U.S., at 425, 89 S.Ct., at 593-594 (White, J., concurring).) Thus, some showing that the informant did not possess illusions of immunity might well be essential.

Thirdly, the effect of adopting such a rule would be to encourage the Government to prefer as informants participants in criminal enterprises rather than ordinary citizens, a goal the Government specifically eschews in its brief in this case upon the explicit premise that such persons are often less reliable than those who obey the law. Brief for the United States 14.

In short, I am inclined to the view, although I would not decide the question here, that magistrates may not properly predicate a determination that an unnamed confidant is credible upon the bare fact that by giving information he also confessed to having committed a crime. More importantly at this juncture, it seems to me quite clear that no such rule should be injected into our federal jurisprudence in the absence of any representation by the Government that the factual assumptions underlying it do, indeed, comport with reality, and in the face of the Government's apparent explicit assertion, in this very case, that those able to supply information sufficient to establish probable cause under such a new rule would tend to be less reliable than those who cannot. The necessity for this haste to embrace such a speculative theory, without any argument from those who will be affected by it, wholly escapes me.

Finally, it is argued that even if the tip plus the affiant's assertion that the informant was 'prudent' did not provide a reasonable basis for the magistrate's conclusion that the confidant was credible, two other factors would have sufficed. First, at some time in the past four or more years, in an abandoned house 'under Harris' control,' the local constable had located 'a sizeable stash of illicit whiskey.' While an assertion of 'prior events within the affiant's own knowledge * *  * indicating that the defendant had previously trafficked in contraband,' ante, at 581, admittedly did not appear in the affidavit held insufficient in Spinelli, this hardly distinguishes that case in any purposeful manner. Surely, it cannot seriously be suggested that, once an individual has been convicted of bootlegging, any anonymous phone caller who states he has just personally witnessed another illicit sale (up to four years later) by that individual provides federal agents with probable cause to search the suspect's home. I can only conclude that this argument is a makeweight, intended to avoid the necessity of calling for an outright overruling of Spinelli.

Secondly, the claim is made that a magistrate could conclude the confidant here was credible because the agent had 'received numerous information from all types of persons as to (respondent's) activities.' To rely on this factor alone, of course, is flatly inconsistent with Spinelli, where we held that 'the allegation that Spinelli was 'known' to the affiant and to other federal and local law enforcement officers as a gambler and an associate of gamblers is but a bald and unilluminating assertion of suspicion that is entitled to no weight in appraising the magistrate's decision.' Spinelli, supra, at 414, 89 S.Ct., at 588. In the instant case, the affiant did not purport to 'know' respondent was a dealer in illicit whiskey, nor did he identify the source of his information to that effect.

Nevertheless, the contention is advanced that this aspect of Spinelli had 'no support in our prior cases, logic, or experience,' ante, at 583, and thus should be discarded. However, Nathanson held that '(m)ere affirmance of belief or suspicion is not enough' to establish probable cause for issuance of a warrant to search a private dwelling. 290 U.S., at 47, 54 S.Ct., at 13. It is argued that Nathanson 'was limited to holding that reputation, standing alone, was insufficient.' Ante, at 582. But this is the precise problem here-only the respondent's reputation has been seriously invoked to establish the credibility of the informant, an element of probable cause entirely severable from the requirement that the confidant's source be reliable. See Parts I and III of this opinion.

A narrower view of Nathanson is said to be confirmed by reading Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), to have 'held proper the assertion of the searching officer that he had previously arrested the defendant for a similar offense and that the defendant had a reputation for hauling liquor.' Ante, at 582. But Brinegar itself was very carefully limited to situations involving the arrest of those driving moving vehicles, 338 U.S., at 174, 176-177, 69 S.Ct., at 1310, 1311, a problem that has typically been treated as sui generis by this Court. Further, the Court in Brinegar specifically held the arrest valid '(w)holly apart from (the agent's) knowledge that (the suspect) bore the general reputation of being engaged in liquor running.' Id., at 170, 69 S.Ct., at 1308. While it is true that Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960), cites the fact that the informant's 'story was corroborated by other sources of information,' the opinion nowhere suggests that this factor, standing alone, would have been sufficient to enable a magistrate to assess the confidant's reliability. At least equal emphasis was placed upon the informant's previously proved veracity and his tangible proof of actual observation of the illegal activity.

Thus, I conclude that Spinelli and Nathanson, without contradiction, stand for the proposition that the magistrate could not establish the likely veracity of the unidentified informant on the grounds that his story coincided, in unspecified particulars, with rumors circulated by unknown third parties. I am not certain what is meant by the claim that such a rule of law is illogical. It would, indeed, be illogical to argue that the agent could not have relied upon information as to respondent's reputation that he deemed credible and reliable in concluding that the informant had likely told the truth. But it was not the agent's task to determine whether a search warrant should issue. This was the magistrate's responsibility. As to the magistrate, I confess that I do not comprehend, where the issue is whether the confidant is to be believed, how the agent's assertion that he had 'received numerous information from all types of persons as to (respondent's) activities,' can, as a matter of logic or experience, be accurately described as other than 'a bald and unilluminating assertion of suspicion.' It is, at best, a conclusory statement that respondent had a deserved reputation as a dealer in illicit whiskey. The Fourth Amendment, I repeat, requires that such conclusions be drawn, from the underlying facts and circumstances, by the magistrate, not the agent.

The Government has earnestly protested that the result below, if permitted to stand, will seriously hamper the enforcement of the federal criminal law. It is said that if this affidavit is insufficient to support the issuance of a search warrant, it will be extremely difficult to meet the Fourth Amendment's standards where the informer, although apparently quite credible, has never before given accurate information to law enforcement officers, especially where he, or the agent, is unwilling to have the informant's identity disclosed. It would, indeed, be anomalous if the Fourth Amendment dictated such results, for it surely was never intended as a hindrance to fair, vigorous law enforcement. Further, I think there is much truth in the Government's supporting assertion that the ordinary citizen who has never before reported a crime to the police may, in fact, be more reliable than one who supplies information on a regular basis. 'The latter is likely to be someone who is himself involved in criminal activity or is, at least, someone who enjoys the confidence of criminals.' Government's Brief 14.

I do not, however, share the Government's concern that a judgment of affirmance would have such a constricting effect on legitimate federal law enforcement. For example, it would seem that such informers could often be brought before the magistrate where he could assess their credibility for himself. We cannot assume that the ordinary lawabiding citizen has qualms about this sort of cooperation with law enforcement officers. And I do not understand the Government to be asserting that effective law enforcement will often dictate that the identity of informants be kept secret from federal magistrates themselves. Moreover, it will always be open to the officer to seek corroboration of the tip.

Beyond these considerations, I do not understand why a federal agent, who has determined a confidant to be 'reliable,' 'credible,' or 'prudent' cannot lay before the magistrate the grounds upon which he based that judgment. I would not hold that a magistrate's determination that an informer is 'prudent' is insufficient to support the issuance of a warrant. To the contrary, I would only insist that this judgment be that of the magistrate, not the law enforcement officer who seeks the warrant. Without violating the confidences of his source, the agent surely could describe for the magistrate such things as the informer's general background, employment, personal attributes that enable him to observe and relate accurately, position in the community, reputation with others, personal connection with the suspect, any circumstances which suggest the probable absence of any motivation to falsify, the apparent motivation for supplying the information, the presence or absence of a criminal record or association with known criminals, and the like.

This affidavit is barren of anything that enabled the magistrate to judge for himself of the credibility of the informant. We should not countenance the issuance of a search warrant by a federal magistrate upon no more evidence than that presented here. A person who has not been shown to possess any of the common attributes of credibility, whose name cannot be disclosed to a magistrate, and whose information has not been corroborated is precisely the sort of informant whose tip should not be the sole basis for the issuance of a warrant, if the constitutional command that 'no Warrants shall issue, but upon probable cause' is to be respected. And the assertion that such a person may be believed where he confesses that he is a criminal or where his statements dovetail with other, unspecified rumors carries its own refutation. With all respect, such an analysis bespeaks more a firm hostility to Aguilar, Nathanson, and Spinelli than a careful judgment as to the principles those cases reflect. Despite all its surface detail, this affidavit cannot be sustained without cutting deeply into the core requirement of the Fourth Amendment that search warrants cannot issue except upon the independent finding of a neutral magistrate that probable cause exists.

For these reasons, I dissent.