376 U.S. 528 (1964), 223, Rugendorf v. United States

Docket Nº:No. 223
Citation:376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887
Party Name:Rugendorf v. United States
Case Date:March 30, 1964
Court:United States Supreme Court

Page 528

376 U.S. 528 (1964)

84 S.Ct. 825, 11 L.Ed.2d 887



United States

No. 223

United States Supreme Court

March 30, 1964

Argued February 27, 1964




Petitioner was convicted of knowingly concealing stolen fur garments in violation of 18 U.S.C. § 2315. The stolen furs were found in the basement of his home pursuant to a search warrant issued on the strength of an affidavit factually inaccurate in two respects and based partly on hearsay statements of confidential informants. Petitioner's motion to suppress the introduction in evidence of the seized furs was denied by the trial court.


1. The search warrant was valid as long as it provided a substantial basis to support the conclusion that the stolen goods were probably in petitioner's basement. Pp. 531-533.

(a) Factual inaccuracies, not going to the integrity of the affidavit, do not destroy probable cause for a search. Pp. 532-533.

(b) Hearsay, if it provides sufficient evidence of probable cause, justifies the issuance of a search warrant. Jones v. United States, 362 U.S. 257, followed. P. 533.

2. Petitioner's claim that he was entitled to the informant's name in order to defend himself at the trial must be rejected where first raised in petitioner's reply brief on appeal, his previous request having been confined to support of his motion to suppress the evidence. Pp. 534-536.

3. The evidence was sufficient to support the verdict. Pp. 536-537.

316 F.2d 589, affirmed.

Page 529

CLARK, J., lead opinion

MR. JUSTICE CLARK delivered the opinion of the Court.

Following a trial by jury, petitioner was convicted of violating 18 U.S.C. § 23151 by knowingly receiving, concealing and storing 81 stolen fur pieces, the fur pieces having been transported in interstate commerce and having a value exceeding $5,000. The Court of Appeals sustained the conviction despite petitioner's objections that the evidence was not sufficient to support the verdict; that the fur garments should have been excluded from evidence because they were seized on the authority of a search warrant supported by a deficient affidavit; and that the names of certain confidential informants referred to in the affidavit should have been disclosed. 316 F.2d 589. We granted certiorari, 375 U.S. 812, and affirm the judgment.


The search warrant under attack was issued by the United States Commissioner on the strength of an affidavit dated March 22, 1962, and signed by Marlin Moore, a Special Agent of the Federal Bureau of Investigation. The affidavit stated that Moore had reason to believe that approximately 80 fur stoles and jackets, taken in a burglary in Mountain Brook, Alabama, and worth about $40,000, were concealed in the basement of a single family residence at 3117 West Jarvis Avenue in Chicago.

Page 530

Moore supported this allegation with statements that L. Dean Paarmann, a [84 S.Ct. 827] Special Agent of the Birmingham, Alabama, Office of the FBI, informed Moore that on February 10, 1962, 82 mink, otter, and beaver stoles and jackets (but no full-length coats), worth approximately $42,044, were stolen in Mountain Brook, Alabama, and that, on March 16, 1962, a confidential informant who had furnished reliable information in the past told Moore that, during the previous week, he saw approximately 75 to 80 mink, otter and beaver stoles and jackets (but no full-length coats) in the basement of the home of Samuel Rugendorf at 3117 West Jarvis Avenue, Chicago. The labels had been removed, and the informant was told that the furs were stolen.

Moore further supported the allegation with the following statements: FBI Special Agent McCormick advised affiant that a confidential informant whom the FBI had found to be reliable told McCormick that Frank Schweihs of Chicago, and others, committed the Alabama robbery; McCormick told the affiant that, on or about March 1, 1962, James Kelleher, a Chicago police officer, said to McCormick "that he saw FRANK SCHWEIHS at RUGGENDORF [sic] BROTHERS MEAT MARKET, managed by SAMUEL RUGGENDORF [sic] . . . ;" further, Agent McCORMICK advised this affiant that another confidential informant who has furnished reliable information to the Federal Bureau of Investigation in the past told McCORMICK that LEO RUGGENDORF [sic] was a fence for FRANK SCHWEIHS; that SAMUEL RUGGENDORF [sic] was LEO RUGGENDORF's [sic] brother, and was associated in the meat business with his brother.

The affidavit also stated that another FBI Special Agent, J. J. Oitzinger, told the affiant that another confidential informant who had supplied the FBI with reliable information in the past advised Oitzinger that Frank

Page 531

Schweihs, Tony Panzica, and Mike Condic were accomplished burglars who disposed of the proceeds of their burglaries through Leo Rugendorf.

Finally, the affidavit alleged that, upon checking the informant's description of the furs seen at 3117 West Jarvis Avenue, affiant found that the only reported burglary in the United States in the previous six months involving furs of that description and value was the one occurring at Mountain Brook, Alabama.

Pursuant to the search warrant based on this affidavit, a search was made and 81 furs were found in the basement of petitioner's residence. Fifty-nine of these furs had been stolen in Mountain Brook, and the other 22, in Shreveport, Louisiana. Prior to trial, the trial court heard testimony on petitioner's motion, under Rule 41(e) of the Federal Rules of Criminal Procedure,2 to suppress the use of the seized furs as evidence. The trial court denied the motion insofar as it challenged the legal sufficiency of the affidavit, but reserved ruling on the truthfulness of the affidavit. During the trial, another hearing was held on the reserved aspect of the motion to suppress, and the motion was denied. Also denied was a motion to require the Government to disclose the names of the confidential informants referred to in the affidavit.


Petitioner attacks the validity of the search warrant. This Court has never passed directly on the extent to

Page 532

which a court may permit such examination [84 S.Ct. 828] when the search warrant is valid on its face and when the allegations of the underlying affidavit establish "probable cause"; however, assuming, for the purpose of this decision, that such attack may be made, we are of the opinion that the search warrant here is valid. Petitioner contends that probable cause did not exist, because the only relevant recitations in the affidavit were the one informant's statements that he saw the furs in petitioner's basement and that he was told that they were stolen. However, the informant's detailed description of the furs, including number and type, closely resembled Special Agent Paarmann's description of the furs stolen in Alabama. The affiant checked the burglary report records and found the Alabama burglary to be the only recent one in the United States involving furs of the description and number that the informant saw in petitioner's basement. In addition, the affidavit alleged that Leo and Samuel Rugendorf were brothers, and that Leo was a fence for professional burglars. Although one of the informations who gave the latter information added, incorrectly, that Samuel Rugendorf was associated with Leo in the meat business,3 there was direct information from another informant of the FBI that Leo was a fence, and nothing was shown to prove this untrue. The factual inaccuracies depended upon by petitioner to destroy probable cause -- i.e., the allegations in the affidavit that petitioner was the manager of Rugendorf Brothers Meat Market and that he was associated with his brother Leo in the meat business -- were of only peripheral relevancy to the showing of probable cause, and, not being within the personal knowledge of the affiant, did not go to the integrity of the affidavit.

Page 533

We believe that there was substantial basis for the Commissioner to conclude that stolen furs were probably in the petitioner's basement. No more is required. As we said in Jones v. United States, 362 U.S. 257, 271 (1960):

We conclude . . . that hearsay may be the basis for a warrant. We cannot say that there was so little basis for accepting the hearsay . . . that the Commissioner acted improperly. . . . He might have found the affidavit insufficient and withheld his warrant. But there was substantial basis for him to conclude that narcotics were probably present in the apartment, and that is sufficient.

Petitioner also contends that the withholding of the identities of the informants was a sufficient ground to require suppression of the evidence. But, in Jones, supra, we said that,

as hearsay alone does not render an affidavit insufficient, the Commissioner need not have required the informants . . . to be produced . . . so long as there was a substantial basis for crediting the hearsay.

At 272. Petitioner's only challenges to the veracity of the affidavit are the two inaccurate facts mentioned above. Since the erroneous statements that petitioner was the manager of Rugendorf Brothers Meat Market and was associated with Leo in the meat business were not those of the affiant,4 they fail to show that the affiant was in bad faith or that he made [84 S.Ct. 829] any misrepresentations to the Commissioner in securing the warrant.

Page 534


Petitioner also asserts that he was entitled to the name of the informer who reported seeing the furs in his basement in order to defend himself at trial on the merits. This claim was not properly raised in the trial court nor passed upon there, and, accordingly, must be denied here. On two occasions -- once prior to and the other during the trial -- petitioner urged his motion to suppress the evidence as to the furs, contending that there were "factual errors" in the affidavit supporting the...

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