403 U.S. 573 (1971), 30, United States v. Harris

Docket Nº:No. 30
Citation:403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723
Party Name:United States v. Harris
Case Date:June 28, 1971
Court:United States Supreme Court

Page 573

403 U.S. 573 (1971)

91 S.Ct. 2075, 29 L.Ed.2d 723

United States



No. 30

United States Supreme Court

June 28, 1971

Argued March 23, 1971




Respondent was convicted of possessing nontaxpaid liquor in violation of 26 U.S.C. § 5205(a)(2). The Court of Appeals reversed on the ground that the federal tax investigator's affidavit supporting the search warrant, the execution of which resulted in the discovery of illicit liquor, was insufficient to establish probable cause. The affidavit stated that respondent had a reputation with the investigator for over four years as being a trafficker in nontaxpaid distilled spirits; during that time, the local constable had located illicit whiskey in an abandoned house under respondent's control; on the date of the affidavit, the affiant had received sworn oral information from a person whom the affiant found to be a prudent person, and who feared for his life should his name be revealed, that the informant had purchased illicit whiskey from the residence described, for a period exceeding two years, most recently within two weeks; that the informant asserted he knew of another person who bought such whiskey from the house within two days; that he had personal knowledge that such whiskey was consumed in a certain outbuilding; and that he had seen respondent go to another nearby outbuilding to obtain whiskey for other persons. The Court of Appeals relied on Aguilar v. Texas, 378 U.S. 108, in stressing that affiant had never alleged that the informant was truthful, but only prudent, and on Spinelli v. United States, 393 U.S. 410, in giving no weight to affiant's assertion concerning respondent's reputation.

Held: The judgment is reversed. Pp. 577-585.

412 F.2d 796, reversed.

THE CHIEF JUSTICE, joined by MR. JUSTICE BLACK, MR. JUSTICE BLACKMUN, and MR. JUSTICE STEWART (as to the first sentence of item 1) concluded that:

1. The affidavit in this case, based on a tip similar to the one held sufficient in Jones v. United States, 362 U.S. 257 (which was approved in Aguilar, supra), contains an ample factual foundation

Page 574

for believing the informant which, when taken in conjunction with the affiant's knowledge of respondent's background, afforded a basis upon which a magistrate could reasonably issue a warrant. Both the affidavit here and the one in Jones (contrary to the situation in Spinelli, supra) purport to relate an unidentified informant's personal observations and recite prior events within his knowledge. While the affidavit here, unlike the Jones affidavit, did not aver that the informant had previously given "correct information," an averment of previous reliability is not essential when supported, as here, by other information; and Spinelli is not to be read as precluding a magistrate's relying on an officer's knowledge of a suspect's reputation. Pp. 577-583.


2. The fact that the informant made a statement against his own penal interest when he admitted his illicit liquor purchases provides an additional basis for crediting his tip. Pp. 583-584.

BURGER, C.J., announced the Court's judgment and delivered an opinion, in which BLACK and BLACKMUN, JJ., joined, and in Part I of which STEWART, J., and in Part III of which WHITE, J., joined. BLACK, J., filed a concurring statement, post, p. 585. BLACKMUN, J., filed a concurring opinion, post, p. 585. HARLAN, J., filed a dissenting opinion, in which DOUGLAS, BRENNAN, and MARSHALL, JJ., joined, post, p. 586.

BURGER, J., lead opinion

MR. CHIEF JUSTICE BURGER announced the judgment of the Court and an opinion in which MR. JUSTICE BLACK and MR. JUSTICE BLACKMUN join, and in Part I of which

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MR. JUSTICE STEWART [91 S.Ct. 2078] joins, and in Part III of which MR. JUSTICE WHITE joins.

We granted certiorari in this case to consider the recurring question of what showing is constitutionally necessary to satisfy a magistrate that there is a substantial basis for crediting the report of an informant known to the police, but not identified to the magistrate, who purports to relate his personal knowledge of criminal activity.

In 1967, a federal tax investigator and a local constable entered the premises of respondent Harris, pursuant to a search warrant issued by a federal magistrate, and seized jugs of whiskey upon which the federal tax had not been paid. The warrant had been issued solely on the basis of the investigator's affidavit, which recited the following:

Roosevelt Harris has had a reputation with me for over 4 years as being a trafficker of nontaxpaid distilled spirits, and, over this period, I have received numerous information [sic] from all types of persons as to his activities. Constable Howard Johnson located a sizeable stash of illicit whiskey in an abandoned house under Harris' control during this period of time. This date, I have received information from a person who fears for their [sic] life and property should their name be revealed. I have interviewed this person, found this person to be a prudent person, and have, under a sworn verbal statement, gained the following information: this person has personal knowledge of and has purchased illicit whiskey from within the residence described, for a period of more than 2 years, and most recently within the past 2 weeks, has knowledge of a person who purchased illicit whiskey within the past two days from the house, has personal knowledge that the illicit whiskey is consumed by purchasers in the outbuilding known as and utilized as

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the "dance hall," and has seen Roosevelt Harris go to the other outbuilding, located about 50 yards from the residence, on numerous occasions, to obtain the whiskey for this person and other persons.

Respondent was subsequently charged with possession of nontaxpaid liquor, in violation of 26 U.S.C. § 5205(a)(2). His pretrial motion to suppress the seized evidence on the ground that the affidavit was insufficient to establish probable cause was overruled, and he was convicted after a jury trial and sentenced to two years' imprisonment. The Court of Appeals for the Sixth Circuit reversed the conviction, holding that the information in the affidavit was insufficient to enable the magistrate to assess the informant's reliability and trustworthiness. 412 F.2d 796, 797 (1969).

The Court of Appeals relied on Aguilar v. Texas, 378 U.S. 108 (1964), in which we held that an affidavit based solely on the hearsay report of an unidentified informant must set forth "some of the underlying circumstances from which the officer concluded that the informant . . . was `credible' or his information `reliable.'" Id. at 114. It concluded that the affidavit was insufficient because no information was presented to enable the magistrate to evaluate the informant's reliability or trustworthiness. The court noted the absence of any allegation that the informant was a "truthful" person, but only an allegation that the informant was "prudent." Having found the informant's tip inadequate under Aguilar, the Court of Appeals, relying on Spinelli v. United States, 393 U.S. 410 (1969), looked to the remaining allegations of the affidavit to determine whether they provided independent corroboration of the informant. The Court of Appeals held that the constable's prior discovery of a cache on respondent's property within the previous four years was too remote, and,

Page 577

citing certain language from Spinelli, it gave no weight whatever to the assertion that respondent had a general reputation known to the officer as a trafficker in illegal whiskey.

[91 S.Ct. 2079] For the reasons stated below, we reverse the judgment of the Court of Appeals and reinstate the judgment of conviction.


In evaluating the showing of probable cause necessary to support a search warrant against the Fourth Amendment's prohibition of unreasonable searches and seizures, we would do well to heed the sound admonition of United States v. Ventresca, 380 U.S. 102 (1965):

[T]he Fourth Amendment's commands, like all constitutional requirements, are practical, and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a common sense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

380 U.S. at 108.

Aguilar in no way departed from these sound principles. There, a warrant was issued on nothing more than an affidavit reciting:

Affiants have received reliable information from a credible person and do believe that heroin, marijuana,

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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.

378 U.S. at 109.

The affidavit, therefore, contained none of the underlying "facts or circumstances" from which the magistrate could find probable cause. Nathanson v. United States, 290 U.S. 41, 47 (1933). On the contrary, the affidavit was a "mere affirmation of suspicion and belief" (Nathanson, supra, at 46) and gained nothing by the incorporation by reference of the informant's unsupported belief. See Aguilar, supra, at 114 n. 4.

Significantly, the Court in Aguilar cited with approval the affidavit upheld in Jones v. United States, 362 U.S. 257 (1960). That...

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