U.S. Supreme Court Spinelli v. United States, 393
U.S. 410 (1969) Spinelli v. United
States No. 8 Argued October 16-17,
1968 Decided January 27,
1969 393
U.S. 410 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE EIGHTH
CIRCUIT Syllabus Petitioner was convicted of illegal interstate gambling
activities despite his claim that the Commissioner's warrant
authorizing the FBI search that uncovered evidence used at his
trial violated the Fourth Amendment. He argued that the FBI agent's
supporting affidavit did not afford probable cause for issuance of
the warrant. The affidavit alleged that the FBI had followed
petitioner on five days, on four of which he had been seen crossing
one of two bridges leading from Illinois to St. Louis, Missouri,
and had been seen parking his car at a St. Louis apartment house
parking lot; he was seen one day to enter a particular apartment;
the apartment contained two telephones with specified numbers;
petitioner was known to affiant as a gambler and associate of
gamblers; and the FBI had "been informed by a confidential reliable
informant" that petitioner was "operating a handbook and accepting
wagers and disseminating wagering information by means of the
telephones" which had been assigned the specified numbers. Viewing
the information in the affidavit in its totality, the Court of
Appeals deemed the principles of Aguilar v. Texas, 378 U. S. 108 ,
satisfied, and upheld the conviction. Held: The informant's tip, an essential part of the
affidavit in this case, was not sufficient (even as corroborated by
other allegations) to provide the basis for a finding of probable
cause that a crime was being committed.

															Pp. 393 U. S.
412 -420.

															(a) The tip was inadequate under the standards of Aguilar,
supra, since it did not set forth any reason to support the
conclusion that the informant was "reliable," and did not
sufficiently state the underlying circumstances from which the
informant had concluded that petitioner was running a bookmaking
operation or sufficiently detail his activities to enable the
Commissioner to know that he was relying on more than casual rumor
or general reputation. Cf. Draper v. United States, 358 U. S. 307 . Pp. 393 U. S.
415 -417.

															(b) Nor was the tip's reliability sufficiently enhanced by the
FBI's corroboration of certain limited aspects of the informant's
report through the use of independent sources. Pp. 393 U. S.
417 -418. Page 393 U. S. 411 (c) The FBI's surveillance of petitioner and its investigation
of the telephone company records do not independently suggest
criminal conduct when taken by themselves. P. 393 U. S.
418 .

															382 F.2d 871, reversed and remanded.

															MR. JUSTICE HARLAN delivered the opinion of the Court.

															William Spinelli was convicted under 18 U.S.C. § 1952 [ Footnote 1 ] of traveling to St. Louis,
Missouri, from a nearby Illinois suburb with the intention of
conducting gambling activities proscribed by Missouri law. See Mo.Rev.Stat. § 563.360 (1959). At every appropriate
stage in the proceedings in the lower courts, the petitioner
challenged the constitutionality of the warrant which authorized
the FBI search that uncovered the evidence necessary for his
conviction. At each stage, Spinelli's challenge was treated in a
different way. At a pretrial suppression hearing, the United States
District Court for the Eastern District of Missouri held that
Spinelli Page 393 U. S. 412 lacked standing to raise a Fourth Amendment objection. A
unanimous panel of the Court of Appeals for the Eighth Circuit
rejected the District Court's ground, a majority holding further
that the warrant was issued without probable cause. After an en
banc rehearing, the Court of Appeals sustained the warrant and
affirmed the conviction by a vote of six to two. 382 F.2d 871. Both
the majority and dissenting en banc opinions reflect a most
conscientious effort to apply the principles we announced in Aguilar v. Texas, 378 U. S. 108 (1964), to a factual situation whose basic characteristics have not
been at all uncommon in recent search warrant cases. Believing it
desirable that the principles of Aguilar should be further
explicated, we granted certiorari, 390 U.S. 942, our writ being
later limited to the question of the constitutional validity of the
search and seizure. [ Footnote
2 ] 391 U.S. 933. For reasons that follow, we reverse.

															In Aguilar, a search warrant had issued upon an
affidavit of police officers who swore only that they had "received
reliable information from a credible person and do believe" that
narcotics were being illegally stored on the described premises.
While recognizing that the constitutional requirement of probable
cause can be satisfied by hearsay information, this Court held
the Page 393 U. S. 413 affidavit inadequate for two reasons. First, the application
failed to set forth any of the "underlying circumstances" necessary
to enable the magistrate independently to judge of the validity of
the informant's conclusion that the narcotics were where he said
they were. Second, the affiant officers did not attempt to support
their claim that their informant was " credible' or his
information `reliable.'" The Government is, however, quite right in
saying that the FBI affidavit in the present case is more ample
than that in Aguilar. Not only does it contain a report
from an anonymous informant, but it also contains a report of an
independent FBI investigation which is said to corroborate the
informant's tip. We are, then, required to delineate the manner in
which Aguilar's two-pronged test should be applied in
these circumstances. In essence, the affidavit, reproduced in full in the 393
U.S. 410 app|>Appendix to this opinion, contained the
following allegations: [ Footnote
3 ]

															1. The FBI had kept track of Spinelli's movements on five days
during the month of August, 1965. On four of these occasions,
Spinelli was seen crossing one of two bridges leading from Illinois
into St. Louis, Missouri, between 11 a.m. and 12:15 p.m. On four of
the five days, Spinelli was also seen parking his car in a lot used
by residents of an apartment house at 1108 Indian Circle Drive in
St. Louis, between 3:30 p.m. and 4:45 p.m. [ Footnote 4 ] Page 393 U. S. 414 On one day, Spinelli was followed further and seen to enter a
particular apartment in the building.

															2. An FBI check with the telephone company revealed that this
apartment contained two telephones listed under the name of Grace
P. Hagen, and carrying the numbers WYdown 4-0029 and WYdown
4-0136.

															3. The application stated that

															"William Spinelli is known to this affiant and to federal law
enforcement agents and local law enforcement agents as a bookmaker,
an associate of bookmakers, a gambler, and an associate of
gamblers."

															4. Finally, it was stated that the FBI

															"has been informed by a confidential reliable informant that
William Spinelli is operating a handbook and accepting wagers and
disseminating wagering information by means of the telephones which
have been assigned the numbers WYdown 4-0029 and WYdown
4-0136."

															There can be no question that the last item mentioned, detailing
the informant's tip, has a fundamental place in this warrant
application. Without it, probable cause could not be established.
The first two items reflect only innocent-seeming activity and
data. Spinelli's travels to and from the apartment building and his
entry into a particular apartment on one occasion could hardly be
taken as bespeaking gambling activity; and there is surely nothing
unusual about an apartment containing two separate telephones. Many
a householder indulges himself in this petty luxury. Finally, 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. Nathanson v. United States, 290 U. S. 41 , 290 U. S. 46 (1933). Page 393 U. S. 415 So much, indeed, the Government does not deny. Rather, following
the reasoning of the Court of Appeals, the Government claims that
the informant's tip gives a suspicious color to the FBI's reports
detailing Spinelli's innocent-seeming conduct, and that,
conversely, the FBI's surveillance corroborates the informant's
tip, thereby entitling it to more weight. It is true, of course,
that the magistrate is obligated to render a judgment based upon a
common sense reading of the entire affidavit. United States v.
Ventresca, 380 U. S. 102 , 380 U. S. 108 (1965). We believe, however, that the "totality of circumstances"
approach taken by the Court of Appeals paints with too broad a
brush. Where, as here, the informer's tip is a necessary element in
a finding of probable cause, its proper weight must be determined
by a more precise analysis.

															The informer's report must first be measured against Aguilar's standards, so that its probative value can be
assessed. If the tip is found inadequate under Aguilar, the other allegations which corroborate the information contained
in the hearsay report should then be considered. At this stage as
well, however, the standards enunciated in Aguilar must
inform the magistrate's decision. He must ask: can it fairly be
said that the tip, even when certain parts of it have been
corroborated by independent sources, is as trustworthy as a tip
which would pass Aguilar's tests without independent
corroboration? Aguilar is relevant at this stage of the
inquiry as well because the tests it establishes were designed to
implement the longstanding principle that probable cause must be
determined by a "neutral and detached magistrate," and not by "the
officer engaged in the often competitive enterprise of ferreting
out crime." Johnson v. United States, 333 U. S.
10 , 333 U. S. 14 (1948). A magistrate cannot be said to have properly discharged his
constitutional duty if he relies on an informer's tip which --
even Page 393 U. S. 416 when partially corroborated -- is not as reliable as one which
passes Aguilar's requirements when standing alone.

															Applying these principles to the present case, we first consider
the weight to be given the informer's tip when it is considered
apart from the rest of the affidavit. It is clear that a
Commissioner could not credit it without abdicating his
constitutional function. Though the affiant swore that his
confidant was "reliable," he offered the magistrate no reason in
support of this conclusion. Perhaps even more important is the fact
that Aguilar's other test has not been satisfied. The tip
does not contain a sufficient statement of the underlying
circumstances from which the informer concluded that Spinelli was
running a bookmaking operation. We are not told how the FBI's
source received his information -- it is not alleged that the
informant personally observed Spinelli at work, or that he had ever
placed a bet with him. Moreover, if the informant came by the
information indirectly, he did not explain why his sources were
reliable. Cf. Jaben v. United States, 381 U.
S. 214 (1965). In the absence of a statement detailing
the manner in which the information was gathered, it is especially
important that the tip describe the accused's criminal activity in
sufficient detail that the magistrate may know that he is relying
on something more substantial than a casual rumor circulating in
the underworld or an accusation based merely on an individual's
general reputation.

															The detail provided by the informant in Draper v. United
States, 358 U. S. 307 (1959), provides a suitable benchmark. While Hereford, the
Government's informer in that case, did not state the way in which
he had obtained his information, he reported that Draper had gone
to Chicago the day before by train, and that he would return to
Denver by train with three ounces of heroin on one of two specified
mornings. Moreover, Page 393 U. S. 417 Hereford went on to describe, with minute particularity, the
clothes that Draper would be wearing upon his arrival at the Denver
station. A magistrate, when confronted with such detail, could
reasonably infer that the informant had gained his information in a
reliable way. [ Footnote 5 ] Such
an inference cannot be made in the present case. Here, the only
facts supplied were that Spinelli was using two specified
telephones and that these phones were being used in gambling
operations. This meager report could easily have been obtained from
an offhand remark heard at a neighborhood bar.

															Nor do we believe that the patent doubts Aguilar raises
as to the report's reliability are adequately resolved by a
consideration of the allegations detailing the FBI's independent
investigative efforts. At most, these allegations indicated that
Spinelli could have used the telephones specified by the informant
for some purpose. This cannot, by itself, be said to support both
the inference that the informer was generally trustworthy and that
he had made his charge against Spinelli on the basis of information
obtained in a reliable way. Once again, Draper provides a relevant
comparison. Independent police work in that case corroborated much
more than one small detail that had been provided by the informant.
There, the police, upon meeting the inbound Denver train on the
second morning specified by informer Hereford, saw a man whose
dress corresponded precisely to Hereford's detailed description. It
was then apparent that the informant had not been fabricating his
report out of whole cloth; since the report was of the sort which,
in common experience, may be recognized as having been Page 393 U. S. 418 obtained in a reliable way, it was perfectly clear that probable
cause had been established.

															We conclude, then, that, in the present case, the informant's
tip -- even when corroborated to the extent indicated -- was not
sufficient to provide the basis for a finding of probable cause.
This is not to say that the tip was so insubstantial that it could
not properly have counted in the magistrate's determination.
Rather, it needed some further support. When we look to the other
parts of the application, however, we find nothing alleged which
would permit the suspicions engendered by the informant's report to
ripen into a judgment that a crime was probably being committed. As
we have already seen, the allegations detailing the FBI's
surveillance of Spinelli and its investigation of the telephone
company records contain no suggestion of criminal conduct when
taken by themselves -- and they are not endowed with an aura of
suspicion by virtue of the informer's tip. Nor do we find that the
FBI's reports take on a sinister color when read in light of common
knowledge that bookmaking is often carried on over the telephone
and from premises ostensibly used by others for perfectly normal
purposes. Such an argument would carry weight in a situation in
which the premises contain an unusual number of telephones or
abnormal activity is observed, cf. McCray v. Illinois, 386 U. S. 300 , 386 U. S. 302 (1967), but it does not fit this case, where neither of these
factors is present. [ Footnote
6 ] All that remains to be considered is the flat statement that
Spinelli was "known" to the FBI and others as a gambler. But just
as a simple assertion of police suspicion is not itself a
sufficient basis for a magistrate's finding of probable cause, we
do not believe it may be used to give Page 393 U. S. 419 additional weight to allegations that would otherwise be
insufficient.

															The affidavit, then, falls short of the standards set forth in Aguilar, Draper, and our other decisions that give content
to the notion of probable cause. [ Footnote 7 ] In holding as we have done, we do not retreat
from the established propositions that only the probability, and
not a prima facie showing, of criminal activity is the
standard of probable cause, Beck v. Ohio, 379 U. S.
89 , 379 U. S. 96 (1964); that affidavits of probable cause are tested by much less
rigorous standards than those governing the admissibility of
evidence at trial, McCray v. Illinois, 386 U.
S. 300 , 386 U. S. 311 (1967); that, in judging probable cause, issuing magistrates are
not to be confined by niggardly limitations or by restrictions on
the use of their common sense, United States v. Ventresca, 380 U. S. 102 , 380 U. S. 108 (1965); and that their determination of probable cause should be
paid great deference by reviewing courts, Jones v. United
States, 362 U. S. 257 , 362 U. S.
270 -271 (1960). But we cannot sustain this warrant
without diluting important safeguards that assure that the judgment
of a disinterested judicial officer will interpose itself between
the police and the citizenry. [ Footnote 8 ] Page 393 U. S. 420 The judgment of the Court of Appeals is reversed, and the case
is remanded to that court for further proceedings consistent with
this opinion; It is so ordered. MR. JUSTICE MARSHALL took no part in the consideration or
decision of this case.

															| 393
U.S. 410 app| APPENDIX TO OPINION OF THE COURT AFFIDAVIT IN SUPPORT OF SEARCH WARRANT. I, Robert L. Bender, being duly sworn, depose and say that I am
a Special Agent of the Federal Bureau of Investigation, and as such
am authorized to make searches and seizures.

															That on August 6, 1065, at approximately 11:44 a.m., William
Spinelli was observed by an Agent of the Federal Bureau of
Investigation driving a 1964 Ford convertible, Missouri license
HC3-649, onto the Eastern approach of the Veterans Bridge leading
from East St. Louis, Illinois, to St. Louis, Missouri.

															That on August 11, 1965, at approximately 11:16 a.m., William
Spinelli was observed by an Agent of the Federal Bureau of
Investigation driving a 1964 Ford convertible, Missouri license
HC3-649, onto the Eastern approach of the Eads Bridge leading from
East St. Louis, Illinois, to St. Louis, Missouri.

															Further, at approximately 11:18 a.m. on August 11, 1965, I
observed William Spinelli driving the aforesaid Ford convertible
from the Western approach of the Eads Bridge into St. Louis,
Missouri.

															Further, at approximately 4:40 p.m. on August 11, 1965, I
observed the aforesaid Ford convertible, bearing Missouri license
HC3-649, parked in a parking lot used by residents of The Chieftain
Manor Apartments, approximately one block east of 1108 Indian
Circle Drive.

															On August 12, 1965, at approximately 12:07 p.m., Page 393 U. S. 421 William Spinelli was observed by an Agent of the Federal Bureau
of Investigation driving the aforesaid 1964 Ford convertible onto
the Eastern approach of the Veterans Bridge from East St. Louis,
Illinois, in the direction of St. Louis, Missouri.

															Further, on August 12, 1965, at approximately 3:46 p.m., I
observed William Spinelli driving the aforesaid 1964 Ford
convertible onto the parking lot used by the residents of The
Chieftain Manor Apartments approximately one block east of 1108
Indian Circle Drive.

															Further, on August 12, 1965, at approximately 3:49 p.m., William
Spinelli was observed by an Agent of the Federal Bureau of
Investigation entering the front entrance of the two-story
apartment building located at 1108 Indian Circle Drive, this
building being one of The Chieftain Manor Apartments.

															On August 13, 1965, at approximately 11:08 a.m., William
Spinelli was observed by an Agent of the Federal Bureau of
Investigation driving the aforesaid Ford convertible onto the
Eastern approach of the Eads Bridge from East St. Louis, Illinois,
heading towards St. Louis, Missouri.

															Further, on August 13, 1965, at approximately 11:11 a.m., I
observed William Spinelli driving the aforesaid Ford convertible
from the Western approach of the Eads Bridge into St. Louis,
Missouri.

															Further, on August 13, 1965, at approximately 3:45 p.m., I
observed William Spinelli driving the aforesaid 1964 Ford
convertible onto the parking area used by residents of The
Chieftain Manor Apartments, said parking area being approximately
one block from 1108 Indian Circle Drive.

															Further, on August 13, 1965, at approximately 3:55 p.m., William
Spinelli was observed by an Agent of the Federal Bureau of
Investigation entering the corner apartment located on the second
floor in the southwest corner, known as Apartment F, of the
two-story Page 393 U. S. 422 apartment building known and numbered as 1108 Indian Circle
Drive.

															On August 16, 1965, at approximately 3:22 p.m., I observed
William Spinelli driving the aforesaid Ford convertible onto the
parking lot used by the residents of The Chieftain Manor Apartments
approximately one block east of 1108 Indian Circle Drive.

															Further, an Agent of the F.B.I. observed William Spinelli alight
from the aforesaid Ford convertible and walk toward the apartment
building located at 1108 Indian Circle Drive.

															The records of the Southwestern Bell Telephone Company reflect
that there are two telephones located in the southwest corner
apartment on the second floor of the apartment building located at
1108 Indian Circle Drive under the name of Grace P. Hagen. The
numbers listed in the Southwestern Bell Telephone Company records
for the aforesaid telephones are WYdown 4-0029 and WYdown
4-0136.

															William Spinelli is known to this affiant and to federal law
enforcement agents and local law enforcement agents as a bookmaker,
an associate of bookmakers, a gambler, and an associate of
gamblers.

															The Federal Bureau of Investigation has been informed by a
confidential reliable informant that William Spinelli is operating
a handbook and accepting wagers and disseminating wagering
information by means of the telephones which have been assigned the
numbers WYdown 4-0029 and WYdown 4-0136.

															/s/ Robert L. Bender,

															Robert L. Bender,

															Special Agent, Federal Bureau

															of Investigation.

															Subscribed and sworn to before me this 18th day of August, 1965,
at St. Louis, Missouri.

															/s/ William R. O'Toole Page 393 U. S. 423 [ Footnote 1 ]

															The relevant portion of the statute reads:

															"(a) Whoever travels in interstate or foreign commerce or uses
any facility in interstate . . . commerce . . . with intent to
--"

															" * * * *" "(3) otherwise promote, manage, establish, carry on . . . any
unlawful activity, and thereafter performs or attempts to perform
any of the acts specified in subparagraphs (1), (2), and (3), shall
be fined not more than $10,000 or imprisoned for not more than five
years, or both."

															"(b) As used in this section 'unlawful activity' means (1) any
business enterprise involving gambling . . . in violation of the
laws of the State in which they are committed or of the United
States. . . ."

															[ Footnote 2 ]

															We agree with the Court of Appeals that Spinelli has standing to
raise his Fourth Amendment claim. The issue arises because at the
time the FBI searched the apartment in which Spinelli was alleged
to be conducting his bookmaking operation, the petitioner was not
on the premises. Instead, the agents did not execute their search
warrant until Spinelli was seen to leave the apartment, lock the
door, and enter the hallway. At that point, petitioner was
arrested, the key to the apartment was demanded of him, and the
search commenced. Since petitioner would plainly have standing if
he had been arrested inside the apartment, Jones v. United
States, 362 U. S. 257 , 362 U. S. 267 (1960), it cannot matter that the agents preferred to delay the
arrest until petitioner stepped into the hallway -- especially when
the FBI only managed to gain entry into the apartment by requiring
petitioner to surrender his key.

															[ Footnote 3 ]

															It is, of course, of no consequence that the agents might have
had additional information which could have been given to the
Commissioner.

															"It is elementary that, in passing on the validity of a warrant,
the reviewing court may consider only information brought
to the magistrate's attention." Aguilar v. Texas, 378 U. S. 108 , 378 U. S. 109 ,
n. 1 (emphasis in original). Since the Government does not argue
that whatever additional information the agents may have possessed
was sufficient to provide probable cause for the arrest, thereby
justifying the resultant search as well, we need not consider that
question.

															[ Footnote 4 ]

															No report was made as to Spinelli's movements during the period
between his arrival in St. Louis at noon and his arrival at the
parking lot in the late afternoon. In fact, the evidence at trial
indicated that Spinelli frequented the offices of his stockbroker
during this period.

															[ Footnote 5 ]

															While Draper involved the question whether the police
had probable cause for an arrest without a warrant, the analysis
required for an answer to this question is basically similar to
that demanded of a magistrate when he considers whether a search
warrant should issue.

															[ Footnote 6 ]

															A box containing three uninstalled telephones was found in the
apartment, but only after execution of the search warrant.

															[ Footnote 7 ]

															In those cases in which this Court has found probable cause
established, the showing made was much more substantial than the
one made here. Thus, in United States v. Ventresca, 380 U. S. 102 , 380 U. S. 104 (1965), FBI agents observed repeated deliveries of loads of sugar
in 60-pound bags, smelled the odor of fermenting mash, and heard
" sounds similar to that of a motor or a pump coming from the
direction of' Ventresca's house." Again, in McCray v.
Illinois, 386 U. S. 300 , 386 U. S.
303 -304 (1967), the informant reported that McCray "`was
selling narcotics and had narcotics on his person now in the
vicinity of 47th and Calumet.'" When the police arrived at the
intersection, they observed McCray engaging in various suspicious
activities. 386 U.S. at 386 U. S.
302 . [ Footnote 8 ]

															In the view we have taken of this case, it becomes unnecessary
to decide whether the search warrant was properly executed or
whether it sufficiently described the things that were seized.

															MR. JUSTICE WHITE, concurring.

															An investigator's affidavit that he has seen gambling equipment
being moved into a house at a specified address will support the
issuance of a search warrant. The oath affirms the honesty of the
statement and negatives the lie or imagination. Personal
observation attests to the facts asserted -- that there is gambling
equipment on the premises at the named address.

															But if the officer simply avers, without more, that there is
gambling paraphernalia on certain premises, the warrant should not
issue, even though the belief of the officer is an honest one, as
evidenced by his oath, and even though the magistrate knows him to
be an experienced, intelligent officer who has been reliable in the
past. This much was settled in Nathanson v. United States, 290 U. S. 41 (1933), where the Court held insufficient an officer's affidavit
swearing he had cause to believe that there was illegal liquor on
the premises for which the warrant was sought. The unsupported
assertion or belief of the officer does not satisfy the requirement
of probable cause. Jones v. United States, 362 U.
S. 257 , 362 U. S. 269 (1960); Grau v. United States, 287 U.
S. 124 (1932); Byars v. United States, 273 U. S. 28 , 273 U. S. 29 (1927).

															What is missing in Nathanson and like cases is a
statement of the basis for the affiant's believing the facts
contained in the affidavit -- the good "cause" which the officer in Nathanson said he had. If an officer swears that there is
gambling equipment at a certain address, the possibilities are (1)
that he has seen the equipment; (2) that he has observed or
perceived facts from which the presence of the equipment may
reasonably be inferred; and (3) that he has obtained the
information from someone else. If (1) is true, the affidavit is
good. But, in (2), the affidavit is insufficient unless the
perceived facts are given, for it is the magistrate, not the Page 393 U. S. 424 officer, who is to judge the existence of probable cause. Aguilar v. Texas, 378 U. S. 108 (1964); Giordenello v. United States, 357 U.
S. 480 , 357 U. S. 486 (1958); Johnson v. United States, 333 U. S.
10 , 333 U. S. 14 (1948). With respect to (3), where the officer's information is
hearsay, no warrant should issue absent good cause for crediting
that hearsay. Because an affidavit asserting, without more, the
location of gambling equipment at a particular address does not
claim personal observation of any of the facts by the officer, and
because of the likelihood that the information came from an
unidentified third party, affidavits of this type are
unacceptable.

															Neither should the warrant issue if the officer states that
there is gambling equipment in a particular apartment and that his
information comes from an informant, named or unnamed, since the
honesty of the informant and the basis for his report are unknown.
Nor would the missing elements be completely supplied by the
officer's oath that the informant has often furnished reliable
information in the past. This attests to the honesty of the
informant, but Aguilar v. Texas, supra, requires something
more -- did the information come from observation, or did the
informant, in turn, receive it from another? Absent additional
facts for believing the informant's report, his assertion stands no
better than the oath of the officer to the same effect. Indeed, if
the affidavit of an officer, known by the magistrate to be honest
and experienced, stating that gambling equipment is located in a
certain building is unacceptable, it would be quixotic if a similar
statement from an honest informant were found to furnish probable
cause. A strong argument can be made that both should be acceptable
under the Fourth Amendment, but, under our cases, neither is. The
past reliability of the informant can no more furnish probable
cause for believing his Page 393 U. S. 425 current report than can previous experience with the officer
himself.

															If the affidavit rests on hearsay -- an informant's report --
what is necessary under Aguilar is one of two things: the
informant must declare either (1) that he has himself seen or
perceived the fact or facts asserted; or (2) that his information
is hearsay, but there is good reason for believing it -- perhaps
one of the usual grounds for crediting hearsay information. The
first presents few problems: since the report, although hearsay,
purports to be first-hand observation, remaining doubt centers on
the honesty of the informant, and that worry is dissipated by the
officer's previous experience with the informant. The other basis
for accepting the informant's report is more complicated. But if,
for example, the informer's hearsay comes from one of the actors in
the crime in the nature of admission against interest, the
affidavit giving this information should be held sufficient.

															I am inclined to agree with the majority that there are limited
special circumstances in which an "honest" informant's report, if
sufficiently detailed, will, in effect, verify itself -- that is,
the magistrate, when confronted with such detail, could reasonably
infer that the informant had gained his information in a reliable
way. See ante at 393 U. S. 417 .
Detailed information may sometimes imply that the informant himself
has observed the facts. Suppose an informant with whom an officer
has had satisfactory experience states that there is gambling
equipment in the living room of a specified apartment and describes
in detail not only the equipment itself, but also the appointments
and furnishings in the apartment. Detail like this, if true at all,
must rest on personal observation either of the informant or of
someone else. If the latter, we know nothing of the third person's
honesty or Page 393 U. S. 426 sources; he may be making a wholly false report. But it is
arguable that, on these facts, it was the informant himself who has
perceived the facts, for the information reported is not usually
the subject of casual, day-to-day conversation. Because the
informant is honest and it is probable that he has viewed the
facts, there is probable cause for the issuance of a warrant.

															So too, in the special circumstances of Draper v. United
States, 358 U. S. 307 (1959), the kind of information related by the informant is not
generally sent ahead of a person's arrival in a city except to
those who are intimately connected with making careful arrangements
for meeting him. The informant, posited as honest, somehow had the
reported facts, very likely from one of the actors in the plan, or
as one of them himself. The majority's suggestion is that a warrant
could have been obtained based only on the informer's report. I am
inclined to agree, although it seems quite plain that, if it may be
so easily inferred from the affidavit that the informant has
himself observed the facts or has them from an actor in the event,
no possible harm could come from requiring a statement to that
effect, thereby removing the difficult and recurring questions
which arise in such situations.

															Of course, Draper itself did not proceed on this basis.
Instead, the Court pointed out that, when the officer saw a person
getting off the train at the specified time, dressed and conducting
himself precisely as the informant had predicted, all but the
critical fact with respect to possessing narcotics had then been
verified, and, for that reason, the officer had "reasonable
grounds" to believe also that Draper was carrying narcotics.
Unquestionably, verification of arrival time, dress, and gait
reinforced the honesty of the informant -- he had not reported a
made-up story. But if what Draper stands for is that the
existence of the tenth and critical fact Page 393 U. S. 427 is made sufficiently probable to justify the issuance of a
warrant by verifying nine other facts coming from the same source,
I have my doubts about that case.

															In the first place, the proposition is not that the tenth fact
may be logically inferred from the other nine, or that the tenth
fact is usually found in conjunction with the other nine. No one
would suggest that just anyone getting off the 10:30 train dressed
as Draper was, with a brisk walk and carrying a zipper bag, should
be arrested for carrying narcotics. The thrust of Draper is not that the verified facts have independent significance with
respect to proof of the tenth. The argument, instead, relates to
the reliability of the source: because an informant is right about
some things, he is more probably right about other facts, usually
the critical, unverified facts.

															But the Court's cases have already rejected, for Fourth
Amendment purposes, the notion that the past reliability of an
officer is sufficient reason for believing his current assertions.
Nor would it suffice, I suppose, if a reliable informant states
there is gambling equipment in Apartment 607 and then proceeds to
describe in detail Apartment 201, a description which is verified
before applying for the warrant. He was right about 201, but that
hardly makes him more believable about the equipment in 607. But
what if he states that there are narcotics locked in a safe in
Apartment 300, which is described in detail, and the apartment
manager verifies everything but the contents of the safe? I doubt
that the report about the narcotics is made appreciably more
believable by the verification. The informant could still have
gotten his information concerning the safe from others about whom
nothing is known, or could have inferred the presence of narcotics
from circumstances which a magistrate would find unacceptable.

															The tension between Draper and the Nathanson-Aguilar line of cases is evident from the course
followed Page 393 U. S. 428 by the majority opinion. First, it is held that the report from
a reliable informant that Spinelli is using two telephones with
specified numbers to conduct a gambling business, plus Spinelli's
reputation in police circles as a gambler, does not add up to
probable cause. This is wholly consistent with Aguilar and Nathanson: the informant did not reveal whether he had
personally observed the facts or heard them from another, and, if
the latter, no basis for crediting the hearsay was presented. Nor
were the facts, as MR. JUSTICE HARLAN says, of such a nature that
they normally would be obtainable only by the personal observation
of the informant himself. The police, however, did not stop with
the informant's report. Independently, they established the
existence of two phones having the given numbers, and located them
in an apartment house which Spinelli was regularly frequenting away
from his home. There remained little question but that Spinelli was
using the phones, and it was a fair inference that the use was not
for domestic, but for business purposes. The informant had claimed
the business involved gambling. Since his specific information
about Spinelli using two phones with particular numbers had been
verified, did not his allegation about gambling thereby become
sufficiently more believable if the Draper principle is to
be given any scope at all? I would think so, particularly since the
information from the informant which was verified was not neutral,
irrelevant information, but was material to proving the gambling
allegation: two phones with different numbers in an apartment used
away from home indicates a business use in an operation, like
bookmaking, where multiple phones are needed. The Draper approach would reasonably justify the issuance of a warrant in this
case, particularly since the police had some awareness of
Spinelli's past activities. The majority, however, Page 393 U. S. 429 while seemingly embracing Draper, confines that case to
its own facts. Pending full-scale reconsideration of that case, on
the one hand, or of the Nathanson-Aguilar cases, on the
other, I join the opinion of the Court and the judgment of
reversal, especially since a vote to affirm would produce an
equally divided Court.

															MR. JUSTICE BLACK, dissenting.

															In my view, this Court's decision in Aguilar v. Texas, 378 U. S. 108 (1964), was bad enough. That decision went very far toward
elevating the magistrate's hearing for issuance of a search warrant
to a full-fledged trial, where witnesses must be brought forward to
attest personally to all the facts alleged. But not content with
this, the Court today expands Aguilar to almost
unbelievable proportions. Of course, it would strengthen the
probable cause presentation if eyewitnesses could testify that they
saw the defendant commit the crime. It would be stronger still if
these witnesses could explain in detail the nature of the sensual
perceptions on which they based their "conclusion" that the person
they had seen was the defendant, and that he was responsible for
the events they observed. Nothing in our Constitution, however,
requires that the facts be established with that degree of
certainty and with such elaborate specificity before a policeman
can be authorized by a disinterested magistrate to conduct a
carefully limited search.

															The Fourth Amendment provides that

															"no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized."

															In this case, a search warrant was issued supported by an oath
and particularly describing the place to be searched and the things
to be seized. The supporting oath was Page 393 U. S. 430 three printed pages, and the full text of it is included in an 393
U.S. 410 app|>Appendix to the Court's opinion. The
magistrate, I think properly, held the information set forth
sufficient facts to show "probable cause" that the defendant was
violating the law. Six members of the Court of Appeals also agreed
that the affidavit was sufficient to show probable cause. A
majority of this Court today holds, however, that the magistrate
and all of these judges were wrong. In doing so, they substitute
their own opinion for that of the local magistrate and the circuit
judges, and reject the en banc factual conclusion of the Eighth
Circuit and reverse the judgment based upon that factual
conclusion. I cannot join in any such disposition of an issue so
vital to the administration of justice, and dissent as vigorously
as I can.

															I repeat my belief that the affidavit given the magistrate was
more than ample to show probable cause of the petitioner's guilt.
The affidavit meticulously set out facts sufficient to show the
following:

															1. The petitioner had been shown going to and coming from a room
in an apartment which contained two telephones listed under the
name of another person. Nothing in the record indicates that the
apartment was of that large and luxurious type which could only be
occupied by a person to whom it would be a "petty luxury" to have
two separate telephones, with different numbers, both listed under
the name of a person who did not live there.

															2. The petitioner's car had been observed parked in the
apartment's parking lot. This fact was, of course, highly relevant
in showing that the petitioner was extremely interested in some
enterprise which was located in the apartment.

															3. The FBI had been informed by a reliable informant that the
petitioner was accepting wagering information by telephones -- the
particular telephones located in the Page 393 U. S. 431 apartment the defendant had been repeatedly visiting. Unless the
Court, going beyond the requirements of the Fourth Amendment,
wishes to require magistrates to hold trials before issuing
warrants, it is not necessary -- as the Court holds -- to have the
affiant explain "the underlying circumstances from which the
informer concluded that Spinelli was running a bookmaking
operation." Ante at 393 U. S.
416 .

															4. The petitioner was known by federal and local law enforcement
agents as a bookmaker and an associate of gamblers. I cannot agree
with the Court that this knowledge was only a "bald and
unilluminating assertion of suspicion that is entitled to no weight
in appraising the magistrate's decision." Ante at 393 U. S. 414 .
Although the statement is hearsay that might not be admissible in a
regular trial, everyone knows, unless he shuts his eyes to the
realities of life, that this is a relevant fact which, together
with other circumstances, might indicate a factual probability that
gambling is taking place.

															The foregoing facts should be enough to constitute probable
cause for anyone who does not believe that the only way to obtain a
search warrant is to prove beyond a reasonable doubt that a
defendant is guilty. Even Aguilar, on which the Court
relies, cannot support the contrary result, at least as that
decision was written before today's massive escalation of it. In Aguilar, the Court dealt with an affidavit that stated
only:

															"Affiants have received reliable information from a credible
person and do believe that heroin . . . 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 378 U. S.
109 .

															The Court held, over the dissent of Mr. Justice Clark, MR.
JUSTICE STEWART, and myself, that this unsupported conclusion of an
unidentified informant provided no basis Page 393 U. S. 432 for the magistrate to make an independent judgment as to the
persuasiveness of the facts relied upon to show probable cause.
Here, of course, we have much more, and the Court in Aguilar was careful to point out that additional
information of the kind presented in the affidavit before us now
would be highly relevant:

															"If the fact and results of such a surveillance had been
appropriately presented to the magistrate, this would, of course,
present an entirely different case."

															378 U.S. at 378 U. S. 109 ,
n. 1.

															In the present case, even the two-judge minority of the court
below recognized, as this Court seems to recognize today, that this
additional information took the case beyond the rule of Aguilar. Six of the other circuit judges disagreed with
the two dissenting judges, finding that all the circumstances
considered together could support a reasonable judgment that
gambling probably was taking place. I fully agree with this
carefully considered opinion of the court below.

															I regret to say I consider today's decision an indefensible
departure from the principles of our former cases. Less than four
years ago, we reaffirmed these principles in United States v.
Ventresca, 380 U. S. 102 , 380 U. S. 108 (1965):

															"If the teachings of the Court's cases are to be followed and
the constitutional policy served, affidavits for search warrants .
. . must be tested and interpreted by magistrates and courts in a
common sense and realistic fashion. . . . Technical requirements of
elaborate specificity once exacted under common law pleadings have
no proper place in this area." See also Husty v. United States, 282 U.
S. 694 , 282 U. S.
700 -701 (1931).

															Departures of this kind are responsible for considerable
uneasiness in our lower courts, and I must say I Page 393 U. S. 433 am deeply troubled by the statements of Judge Gibson in the
court below:

															"I am, indeed, disturbed by decision after decision of our
courts which place increasingly technical burdens upon law
enforcement officials. I am disturbed by these decisions that
appear to relentlessly chip away at the ever narrowing area of
effective police operation. I believe the holdings in Aguilar, and Rugendorf v. United States, 376 U. S.
528 (1964) are sufficient to protect the privacy of
individuals from hastily conceived intrusions, and I do not think
the limitations and requirements on the issuance of search warrants
should be expanded by setting up over-technical requirements
approaching the now discarded pitfalls of common law pleadings.
Moreover, if we become increasingly technical and rigid in our
demands upon police officers, I fear we make it increasingly easy
for criminals to operate detected, but unpunished. I feel the
significant movement of the law beyond its present state is
unwarranted, unneeded, and dangerous to law enforcement
efficiency."

															(Dissenting from panel opinion.)

															The Court of Appeals in this case took a sensible view of the
Fourth Amendment, and I would wholeheartedly affirm its
decision. Mapp v. Ohio, 367 U. S. 643 ,
decided in 1961, held for the first time that the Fourth Amendment
and the exclusionary rule of Weeks v. United States, 232 U. S. 383 (1914), are now applicable to the States. That Amendment provides
that search warrants shall not be issued without probable cause.
The existence of probable cause is a factual matter that calls for
the determination of a factual question. While no statistics are
immediately available, questions of probable cause to issue
search Page 393 U. S. 434 warrants and to make arrests are doubtless involved in many
thousands of cases in state courts. All of those probable cause
state cases are now potentially reviewable by this Court. It is, of
course, physically impossible for this Court to review the evidence
in all or even a substantial percentage of those cases.
Consequently, whether desirable or not, we must inevitably accept
most of the fact findings of the state courts, particularly when,
as here in a federal case, both the trial and appellate courts have
decided the facts the same way. It cannot be said that the trial
judge and six members of the Court of Appeals committed flagrant
error in finding from evidence that the magistrate had probable
cause to issue the search warrant here. It seems to me that this
Court would best serve itself and the administration of justice by
accepting the judgment of the two courts below. After all, they too
are lawyers and judges, and much closer to the practical, everyday
affairs of life than we are.

															Notwithstanding the Court's belief to the contrary, I think
that, in holding as it does, the Court does:

															"retreat from the established propositions that only the
probability, and not a prima facie showing, of criminal
activity is the standard of probable cause, Beck v. Ohio, 379 U. S.
89 , 379 U. S. 96 (1964); that
affidavits of probable cause are tested by much less rigorous
standards than those governing the admissibility of evidence at
trial, McCray v. Illinois, 386 U. S.
300 , 386 U. S. 311 (1967); that, in
judging probable cause, issuing magistrates are not to be confined
by niggardly limitations or by restrictions on the use of their
common sense, United States v. Ventresca, 380 U. S.
102 , 380 U. S. 108 (1965); and
that their determination of probable cause should be paid great
deference by reviewing courts, Jones v. United States, 362 U. S.
257 , 362 U. S. 270 -271
(1960)." Ante at 393 U. S.
419 . Page 393 U. S. 435 In fact, I believe the Court is moving rapidly, through complex
analyses and obfuscatory language, toward the holding that no
magistrate can issue a warrant unless according to some unknown
standard of proof he can be persuaded that the suspect defendant is
actually guilty of a crime. I would affirm this conviction.

															MR. JUSTICE FORTAS, dissenting.

															My Brother HARLAN's opinion for the Court is animated by a
conviction which I share that

															"[t]he security of one's privacy against arbitrary intrusion by
the police -- which is at the core of the Fourth Amendment -- is
basic to a free society." Wolf v. Colorado, 338 U. S. 25 , 338 U. S. 27 (1949).

															We may well insist upon a sympathetic, and even an indulgent,
view of the latitude which must be accorded to the police for
performance of their vital task; but only a foolish or careless
people will deduce from this that the public welfare requires or
permits the police to disregard the restraints on their actions
which historic struggles for freedom have developed for the
protection of liberty and dignity of citizens against arbitrary
state power.

															As Justice Jackson (dissenting) stated in Brinegar v. United
States, 338 U. S. 160 !
180-181 (1949):

															"[The provisions of the Fourth Amendment] are not mere
second-class rights, but belong in the catalog of indispensable
freedoms. Among deprivations of rights, none is so effective in
cowing a population, crushing the spirit of the individual, and
putting terror in every heart. Uncontrolled search and seizure is
one of the first and most effective weapons in the arsenal of every
arbitrary government. And one need only briefly to have dwelt and
worked among a people possessed of many admirable qualities but
deprived of these rights to know that the Page 393 U. S. 436 human personality deteriorates, and dignity and self-reliance
disappear, where homes, persons and possessions are subject at any
hour to unheralded search and seizure by the police."

															History [ Footnote 2/1 ] teaches
us that this protection requires that the judgment of a judicial
officer be interposed between the police, hot in pursuit of their
appointed target, and the citizen; [ Footnote 2/2 ] that the judicial officer must judge, and
not merely rubber-stamp; and that his judgment must be based upon
judicially reliable facts adequate to demonstrate that the search
is justified by the probability that it will yield the fruits or
instruments of crime -- or, as this Court has only recently ruled,
tangible evidence of its commission. [ Footnote 2/3 ] The exceptions to the requirement of a
search warrant have always been narrowly restricted [ Footnote 2/4 ] because of this Court's
longstanding awareness of the fundamental role of the magistrate's
judgment in the preservation of a proper balance between individual
freedom and state power. See Trupiano v. United States, 334 U. S. 699 , 334 U. S. 700 (1948).

															Today's decision deals not with the necessity of obtaining a
warrant prior to search, but with the difficult problem of the
nature of the showing that must be made Page 393 U. S. 437 before the magistrate to justify his issuance of a search
warrant. While I do not subscribe to the criticism of the majority
expressed by my Brother BLACK in dissent, I believe -- with all
respect -- that the majority is in error in holding that the
affidavit supporting the warrant in this case is constitutionally
inadequate.

															The affidavit is unusually long and detailed. In fact, it
recites so many minute and detailed facts developed in the course
of the investigation of Spinelli that its substance is somewhat
obscured. It is paradoxical that this very fullness of the
affidavit may be the source of the constitutional infirmity that
the majority finds. Stated in language more direct and less
circumstantial than that used by the FBI agent who executed the
affidavit, it sets forth that the FBI has been informed that
Spinelli is accepting wagers by means of telephones numbered
WY4-0029 and WY4-0136; that Spinelli is known to the affiant agent
and to law enforcement agencies as a bookmaker; that telephones
numbered WY 4-0029 and WY 4-0136 are located in a certain
apartment; that Spinelli was placed under surveillance and his
observed movements were such as to show his use of that apartment
and to indicate that he frequented the apartment on a regular
basis. Aguilar v. Texas, 378 U. S. 108 (1964), holds that the reference in an affidavit to information
described only as received from "a confidential reliable
informant," standing alone, is not an adequate basis for issuance
of a search warrant. The majority agrees that the "FBI affidavit in
the present case is more ample than that in Aguilar, " but
concludes that it is nevertheless constitutionally inadequate. The
majority states that the present affidavit fails to meet the
"two-pronged test" of Aguilar because (a) it does not set
forth the basis for the assertion that the informer is "reliable"
and (b) it fails to state the "underlying circumstances" upon which
the Page 393 U. S. 438 informant based his conclusion that Spinelli was engaged in
bookmaking.

															The majority acknowledges, however, that its reference to a
"two-pronged test" should not be understood as meaning that an
affidavit deficient in these respects is necessarily inadequate to
support a search warrant. Other facts and circumstances may be
attested which will supply the evidence of probable cause needed to
support the search warrant. On this general statement we are
agreed. Our difference is that I believe such facts and
circumstances are present in this case, and the majority arrives at
the opposite conclusion. Aguilar expressly recognized that, if, in that case,
the affidavit's conclusory report of the informant's story had been
supplemented by "the fact and results of . . . a surveillance . . .
this would, of course, present an entirely different case." 378
U.S. at 378 U. S. 109 ,
n. 1. In the present case, as I view it, the affidavit showed not
only relevant surveillance, entitled to some probative weight for
purposes of the issuance of a search warrant, but also additional,
specific facts of significance and adequate reliability: that
Spinelli was using two telephone numbers, identified by an
"informant" as being used for bookmaking, in his illegal
operations; that these telephones were in an identified apartment;
and that Spinelli, a known bookmaker, [ Footnote 2/5 ] frequented the apartment. Certainly, this
is enough.

															A policeman's affidavit should not be judged as an entry in an
essay contest. It is not "abracadabra." [ Footnote 2/6 ] Page 393 U. S. 439 As the majority recognizes, a policeman's affidavit is entitled
to common sense evaluation. So viewed, I conclude that the judgment
of the Court of Appeals for the Eighth Circuit should be
affirmed.

															[ Footnote 2/1 ]

															"The knock at the door, whether by day or by night, as a prelude
to a search, without authority of law but solely on the authority
of the police, did not need the commentary of recent history to be
condemned as inconsistent with the conception of human rights
enshrined in the history and the basic constitutional documents of
English-speaking peoples." Wolf v. Colorado, 338 U. S. 25 , 338 U. S. 28 (1949). See United States v. Rabinowitz, 339 U. S.
56 , 339 U. S. 69 -70
(1950) (Frankfurter, J., dissenting). See generally, with
respect to the history of the Fourth Amendment, N. Lasson, The
History and Development of the Fourth Amendment to the United
States Constitution (1937).

															[ Footnote 2/2 ] See Johnson v. United States, 333 U. S.
10 , 333 U. S. 13 -14
(1948).

															[ Footnote 2/3 ] Warden v. Hayden, 387 U. S. 294 (1967).

															[ Footnote 2/4 ] See Jones v. United States, 357 U.
S. 493 , 357 U. S. 499 (1958); Warden v. Hayden, 387 U.
S. 294 , 387 U. S. 311 (1967) (concurring opinion).

															[ Footnote 2/5 ]

															Although Spinelli's reputation, standing alone would not, of
course, justify the search, this Court has held that such a
reputation may make the informer's report "much less subject to
scepticism than would be such a charge against one without such a
history." Jones v. United States, 362 U.
S. 257 , 362 U. S. 271 (1960).

															[ Footnote 2/6 ] See Time, Inc. v. Hill, 385 U.
S. 374 , 385 U. S. 418 (1967) (dissent) (relating to jury instructions).

															MR. JUSTICE STEWART, dissenting.

															For substantially the reasons stated by my Brothers BLACK and
FORTAS, I believe the warrant in this case was supported by a
sufficient showing of probable cause. I would therefore affirm the
judgment.

Summary: The Supreme Court ruled that an informant's tip, even when corroborated by independent sources, may not be enough to establish probable cause for a search warrant if the tip itself is not sufficiently reliable or detailed. In this case, the Court found the informant's tip inadequate as it lacked details about the informant's reliability and the underlying circumstances of the accused's alleged criminal activities. The Court reversed the conviction and remanded the case for further proceedings.