# Spinelli v. United States/Dissent Black

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United States Supreme Court
393 U.S. 410
Spinelli v. United States
Argued: Oct. 16 and 17, 1968. --- Decided: Jan 27, 1969
Mr. Justice BLACK, dissenting.
In my view, this Court's decision in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (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 ex lain 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 three printed pages and the full text of it is included in an 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 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 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 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 befor 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 109, 84 S.Ct., at 1511.
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 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 109, n. 1, 84 S.Ct. at 1511.
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. 382 F.2d 871.
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, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (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, 700-701, 51 S.Ct. 240, 241-242, 75 L.Ed. 629 (1931).
Departures of this kind are responsible for considerable uneasiness in our lower courts, and I must say I 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, (84 S.Ct. 825, 11 L.Ed.2d 887) (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, 81 S.Ct. 1684, 6 L.Ed.2d 1081 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, 34 S.Ct. 341, 58 L.Ed. 652 (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 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, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (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, 311, 87 S.Ct. 1056, 1062 (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, 108, 85 S.Ct. 741, 745 (1965); and that their determination of probable cause should be paid great deference by reviewing courts, Jones v. United States, 362 U.S. 257, 270-271, 80 S.Ct. 725, 735-736 (1960).' Ante, at 419.
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.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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