This case presents questions concerning the constitutional requirements for obtaining a state search warrant.
Two Houston police officers applied to a local Justice of the Peace for a warrant to search for narcotics in petitioner's home. In support of their application, the officers submitted an affidavit which, in relevant part, recited that:
The search warrant was issued.
In executing the warrant, the local police, along with federal officers, announced at petitioner's door that they
At his trial in the state court, petitioner, through his attorney, objected to the introduction of evidence obtained as a result of the execution of the warrant. The objections were overruled and the evidence admitted. Petitioner was convicted of illegal possession of heroin and sentenced to serve 20 years in the state penitentiary.
In Ker v. California, 374 U.S. 23, we held that the Fourth "Amendment's proscriptions are enforced against the States through the Fourteenth Amendment," and that "the standard of reasonableness is the same under the Fourth and Fourteenth Amendments." Id., at 33. Although Ker involved a search without a warrant, that case must certainly be read as holding that the standard for obtaining a search warrant is likewise "the same under the Fourth and Fourteenth Amendments."
An evaluation of the constitutionality of a search warrant should begin with the rule that "the informed and deliberate determinations of magistrates empowered to issue warrants . . . are to be preferred over the hurried action
Although the reviewing court will pay substantial deference to judicial determinations of probable cause, the court must still insist that the magistrate perform his "neutral and detached" function and not serve merely as a rubber stamp for the police.
The Court, in Giordenello v. United States, 357 U.S. 480, applied this rule to an affidavit similar to that relied upon here.
The Court, applying these principles to the complaint in that case, stated that:
The vice in the present affidavit is at least as great as in Nathanson and Giordenello. Here the "mere conclusion" that petitioner possessed narcotics was not even that of the affiant himself; it was that of an unidentified informant. The affidavit here not only "contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein," it does not even contain an "affirmative allegation" that the affiant's unidentified source "spoke with personal knowledge." For all that appears, the source here merely suspected, believed or concluded that there were narcotics in petitioner's
Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, the magistrate must be informed of some 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, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, was "credible" or his information "reliable."
We conclude, therefore, that the search warrant should not have been issued because the affidavit did not provide a sufficient basis for a finding of probable cause and that
The judgment of the Texas Court of Criminal Appeals is reversed and the case remanded for proceedings not inconsistent with this opinion.
Reversed and remanded.
MR. JUSTICE HARLAN, concurring.
But for Ker v. California, 374 U.S. 23, I would have voted to affirm the judgment of the Texas court. Given Ker, I cannot escape the conclusion that to do so would tend to "relax Fourth Amendment standards . . . in derogation of law enforcement standards in the federal system . . ." (my concurring opinion in Ker, supra, at 45-46, emphasis added). Contrary to what is suggested in the dissenting opinion of my Brother CLARK in the present case (post, p. 118, note 1), the standards laid down in Giordenello v. United States, 357 U.S. 480, did in my view reflect constitutional requirements. Being unwilling to relax those standards for federal prosecutions, I concur in the opinion of the Court.
MR. JUSTICE CLARK, whom MR. JUSTICE BLACK and MR. JUSTICE STEWART join, dissenting.
First, it is well to point out the information upon which the search warrant in question was based: About January 1, 1960, Officers Strickland and Rogers from the narcotics division of the Houston Police Department received reliable information from a credible person that petitioner Aguilar had heroin and other narcotic drugs and narcotic paraphernalia in his possession at his residence, 509 Pinckney Street, Houston, Texas; after receiving this information the officers, the record indicates, kept the premises of petitioner under surveillance for about a week.
On January 8, 1960, the two officers applied for a search warrant and executed an affidavit before a justice
Upon executing the warrant issued on the strength of this affidavit, the officers knocked on the door of Aguilar's house. Someone inside asked who was there and the officers replied that they were police and that they had a search warrant. At this they heard someone "scuffle and start to run inside of the house." The officers entered and pursued the petitioner, who ran into a back bathroom. Petitioner threw a packet of heroin into the commode, but an officer retrieved the packet before it could be flushed down the drain.
At trial petitioner objected to the introduction into evidence of the heroin obtained through execution of the search warrant on the ground that the affidavit was "nothing more than hearsay." The Court holds the affidavit insufficient and sets aside the conviction on the basis of two cases, neither of which is controlling.
First is Nathanson v. United States, 290 U.S. 41 (1933). In that case the affidavit stated that the affiant had "cause to suspect and [did] believe that certain merchandise" was in the premises described. There was nothing in Nathanson, either in the affidavit or in the other proof introduced at trial, to suggest that any facts
The second case the Court relies on is Giordenello v. United States, 357 U.S. 480 (1958). There the affidavit alleged that "Giordenello did receive, conceal, etc., narcotic drugs, to-wit: heroin hydrochloride with knowledge of unlawful importation . . . ." The opinion of the Court, by MR. JUSTICE HARLAN, after discussing Rules 3 and 4 of the Federal Rules of Criminal Procedure, held that the defect in the complaint was that it "does not provide any basis for the Commissioner's determination under Rule 4 that probable cause existed." At 486. The dissent in the case, in commenting on the Court's holding that the complaint was invalid, said: "The Court does not strike down this complaint directly on the Fourth Amendment, but merely on an extension of Rule 4." At 491. Since Giordenello was a federal case, decided under our supervisory powers (Rules 3 and 4 of the Federal Rules of Criminal Procedure), it does not control here.
Even if Giordenello was rested on the Constitution, it would not be controlling here because of the significant differences in the facts of the two cases. In Giordenello the Court said: "The complaint . . . does not indicate any sources for the complainant's belief; and it does not set forth any other sufficient basis upon which a finding of probable cause could be made." 357 U. S., at 486. (Emphasis supplied.) Here, in Aguilar's case, the affidavit did allege a source for the complainant's belief. i. e., "reliable information from a credible person . . . that heroin . . . and other narcotics . . . are being kept" in petitioner's premises "for the purpose of sale and use contrary to the provisions of the law." This takes the affidavit here entirely outside the Giordenello holding. In Giordenello no source of information was stated, whereas here there was a reliable one. The affidavit thus shows "probable cause" within the meaning of the Fourth Amendment, as that Amendment was interpreted by this Court in Draper v. United States, 358 U.S. 307 (1959), where it was contended that the information given by an informant to an officer was inadmissible because it was hearsay. The Court in Draper held that petitioner was "entirely in error. Brinegar v. United States . . . has settled the question the other way." At 311. In the following year this was reaffirmed in Jones v. United States, 362 U.S. 257, 271 (1960): "We conclude therefore that hearsay may be the basis for a warrant."
Furthermore, the Courts of Appeals have often approved affidavits similar to the one here. See, e. g., United States v. Eisner, 297 F.2d 595 (C. A. 6th Cir.); Evans v. United States, 242 F.2d 534 (C. A. 6th Cir.); United States v. Ramirez, 279 F.2d 712, 715 (C. A. 2d Cir.) (dictum); and United States v. Meeks, 313 F.2d 464
In summary, the information must be more than mere wholly unsupported suspicion but less than "would justify condemnation," as Chief Justice Marshall said in Locke v. United States, 7 Cranch 339, 348 (1813). As Chief Justice Taft said in Carroll v. United States, 267 U.S. 132, 162 (1925): Probable cause exists where "the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information [are] . . . sufficient in themselves to warrant a man of reasonable caution in the belief that" an offense has been or is being committed. And as Mr. Justice Rutledge so well stated in Brinegar v. United States, 338 U.S. 160, 176 (1949):
Believing that the Court has substituted a rigid, academic formula for the unrigid standards of reasonableness and "probable cause" laid down by the Fourth Amendment itself—a substitution of technicality for practicality— and believing that the Court's holding will tend to obstruct the administration of criminal justice throughout the country, I respectfully dissent.
"Affidavit in Support of a U. S. Commissioners Search Warrant for Premises 1436 Meridian Place, N. W., Washington, D. C., apartment 36, including window spaces of said apartment. Occupied by Cecil Jones and Earline Richardson.
"In the late afternoon of Tuesday, August 20, 1957, I, Detective Thomas Didone, Jr. received information that Cecil Jones and Earline Richardson were involved in the illicit narcotic traffic and that they kept a ready supply of heroin on hand in the above mentioned apartment. The source of information also relates that the two aforementioned persons kept these same narcotics either on their person, under a pillow, on a dresser or on a window ledge in said apartment. The source of information goes on to relate that on many occasions the source of information has gone to said apartment and purchased narcotic drugs from the above mentioned persons and that the narcotics were secreated [sic] in the above mentioned places. The last time being August 20, 1957.
"Both the aforementioned persons are familiar to the undersigned and other members of the Narcotic Squad. Both have admitted to the use of narcotic drugs and display needle marks as evidence of same.
"This same information, regarding the illicit narcotic traffic, conducted by Cecil Jones and Earline Richardson, has been given to the undersigned and to other officers of the narcotic squad by other sources of information.
"Because the source of information mentioned in the opening paragraph has given information to the undersigned on previous occasion and which was correct, and because this same information is given by other sources does believe that there is now illicit narcotic drugs being secreated [sic] in the above apartment by Cecil Jones and Earline Richardson.
"Det. Thomas Didone, Jr., Narcotic Squad, MPDC.
"Subscribed and sworn to before me this 21 day of August, 1957.
"James F. Splain, U. S. Commissioner, D. C." Id., at 267-268, n. 2.
Compare, e. g., Hernandez v. People, ___ Colo. ___, 385 P.2d 996, where the Supreme Court of Colorado, accepting a confession of error by the State Attorney General, held that a search warrant similar to the one here in issue violated the Fourth Amendment. The court said:
"Before the issuing magistrate can properly perform his official function he must be apprised of the underlying facts and circumstances which show that there is probable cause . . . ." Id., at ___, 385 P. 2d, at 999.