# Aguilar v. Texas/Concurrence Harlan

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United States Supreme Court
378 U.S. 108
Aguilar v. Texas
Argued: March 25, 26, 1964. --- Decided: June 15, 1964
Mr. Justice HARLAN, concurring.
But for Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, 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, 374 U.S. at 45-46, 83 S.Ct. at 1646). 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, 78 S.Ct. 1245, 2 L.Ed.2d 1503, 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 of the peace in which they alleged under oath that petitioner's residence at 509 Pinckney Street 'is a place where we each have reason to believe and do believe that (Aguilar) * * * has in his possession therein narcotic drugs * * * for the purpose of the unlawful sale thereof, and where such narcotic drugs are unlawfully sold.' In addition and in support of their belief, the officers included in the affidavit the further allegation that they 'have received reliable information from a credible person and do believe that heroin * * * and other narcotics and narcotic paraphernalia are being kept at * * * (petitioner's) premises for the purpose of sale and use contrary to the provisions of the law.'
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, 54 S.Ct. 11, 78 L.Ed. 159 (1933). In that case the affidavit stated that the affiant had 'cause to suspect and (did) believe that certain merchandise' was n 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 had been brought out to support a reasonable belief or even a suspicion. Accordingly, the Court held that '(m)ere affirmance of belief or suspicion is not enough.' 290 U.S. at 47, 54 S.Ct. at 13. But in Fourth Amendment cases findings of reasonableness or of probable cause necessarily rest on the facts and circumstances of each particular case. In Aguilar, the affidavit was based not only on 'affirmance of belief' but in addition upon 'reliable information from a credible person' plus a week's surveillance by the affiants. (Emphasis supplied.) Nathanson is, therefore, not apposite.
The second case the Court relies on is Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (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.' 357 U.S. at 486, 78 S.Ct. at 1250. 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.' 357 U.S. at 491, 78 S.Ct. at 1253. 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. As we said in Ker v. California, 374 U.S. 23, 33, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), 'the demands of our federal system compel us to distinguish between evidence held inadmissible because of our supervisory powers over federal courts and that held inadmissible because prohibited by the United States Constitution.'
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, 78 S.Ct., at 1250. (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, 79 S.Ct. 329, 3 L.Ed.2d 327 (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.' 358 U.S. at 311, 79 S.Ct. at 332. In the following year this was reaffirmed in Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed. 697 (1960): 'We conclude therefore that hearsay may be the basis for a warrant.' Furthermore, in the case of Rugendorf v. United States, dec ded only this Term, we held an affidavit good based on information that an informer had seen certain furs in Rugendorf's basement. 376 U.S. 528, 84 S.Ct. 825. In the Aguilar affidavit the informer told the officers that narcotics were actually 'kept at the above described premises for the purpose of sale * * *.' The Court seems to hold that what the informed says is the test of his reliability. I submit that this has nothing to do with it. The officer's experience with the informer is the test and here the two officers swore that the informer was credible and the information reliable. At the hearing on the motion to suppress Officer Strickland testified that he delayed getting the search warrant for a week in order to 'set up surveillance on the house.' The informant's statement, Officer Strickland said, was 'the first information' received and was only 'some of' that which supported the application for the warrant. The totality of the circumstances upon which the officer relied is certainly pertinent to the validity of the warrant. See the use of such testimony in Giordenello, supra, 357 U.S. at 485, 486, 78 S.Ct. at 1249, 1250. And, just as in that case, there is nothing in the record here to show what the officers verbally told the magistrate. The surveillance of Aguilar's house, which is confirmed by the State's brief, apparently gave the officers further evidence upon which they based their personal belief. Hence the affidavit here is a far cry from 'suspicion' or 'affirmance of belief.' It was based on reliable information from a credible informant plus personal surveillance by the officers.
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 (C.A.6th Cir.). We denied certiorari in Eisner, 369 U.S. 859, 82 S.Ct. 947, 8 L.Ed.2d 17, although the affidavit there stated only that '(i)nformation has been obtained by S. A. Clifford Anderson * * * which he believes to be reliable * * *,' 297 F.2d at 596, and in Evans, 353 U.S. 976, 77 S.Ct. 1059, 1 L.Ed.2d 1137, where the affiant was a man who 'came to the headquarters of the federal liquor law enforcement officers and stated that he wished to give information * * *,' 242 F.2d, at 535.
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, 3 L.Ed. 364 (1813). As Chief Justice Taft said in Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (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, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949):
'These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community's protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mis akes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests.
Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers' whim or caprice.'
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.

## Notes

* ↑ MR. JUSTICE BLACK, who joined the Court's opinion in Giordenello, joins this dissent on the basis of his belief that Giordenello was based on Rule 4 and not on the less exacting requirements of the Fourth Amendment.
* ↑ The affidavit in Jones was more detailed, including a statement of where the heroin might be found, viz., 'on their person, under a pillow, on a dresser or on a window ledge in said apartment.' But this detail adds nothing to the reliability of the information furnished. Likewise, the allegation in Jones that the informer had 'on previous occasion' given information 'which was correct' was contained in substance in the Aguilar affidavit.
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