UNITED STATES v. HARRIS

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Argument of Beatrice Rosenberg

Chief Justice Warren E. Burger: -- Number 30, United States against Harris.

Ms. Rosenberg, you may proceed whenever you’re ready.

Ms Beatrice Rosenberg: Mr. Chief Justice and may it please the Court.

This case is here on petition for writ of certiorari to the United Court of Appeals for the Sixth Circuit and it presents what has become a perennial problem of the kind of information you need to get a search warrant and how the courts and magistrates -- magistrates and the Court, I should say, should interpret them.

The particular aspect of the question which this case presents is what law enforcement officers are supposed to do when they get information from someone who has not given information in the past and who is unwilling to let his name be used, but who nevertheless gives information which a responsible law enforcement officers feels he cannot ignore.

Justice Potter Stewart: Is it clear and do we know in this case that the informant that had not given information in the past?

Ms Beatrice Rosenberg: Oh, we don’t know, except that considering – there are many, many cases in which reliability is placed on the fact that this -- I have now received information from an informant who has given information in the past.

It’s hard to believe that if he had, an investigator would not have said so.

Justice Potter Stewart: Well, --

Ms Beatrice Rosenberg: The absence --

Justice Potter Stewart: -- if it's not for you, it’s not necessarily hard for me believe that, is it?

Ms Beatrice Rosenberg: Pardon?

Justice Potter Stewart: Well, do you think it follows from what we do know on the record in this case that we have here clearly an informant who would not given information in the past?

Ms Beatrice Rosenberg: Yes, because I may have extremely careless operator, I don’t know, but that -- the fact is that if one goes to the cases since -- particularly since Spinelli, but since McCray against Illinois, it was case after case in which it’s almost a formula.

I have received information from an informant who has in past been proved reliable.

Sometimes with the added statement that he has given specific information about the instances, but it’s hard to believe that of particularly a federal investigator who had had information in the past from this informant would not have so stated.

If in fact he had done so, and certainly at least, we have to take this case because he did not claim to have had information in the past is representing the situation of an informer who had not given information in the past.

Justice William J. Brennan: Well -- and here, I gather the affidavit identifies the informant as the person, does it?

Ms Beatrice Rosenberg: And the person, yes.

Justice William J. Brennan: Sometimes informant is an electronic surveillance, I suppose?

Ms Beatrice Rosenberg: I don’t think that’s any problem here, not for the nature of the affidavit.

Unknown Speaker: What would you say the direct to this informer, you haven't gotten an affidavit from him --?

Ms Beatrice Rosenberg: Well, I was just about to say that and the particular problem comes here in relation to someone who has some connection with the defendant because he purchased liquor for him.

But the problem as the brief amicus in this case shows can come about in all kinds of ways.

The problem of the first informant is a very important problem in law enforcement because it can come at the one end from a completely responsible eminent citizen who happens to witness a crime.

It can come from ordinary citizens who simply feel they have seen something that causes them to make reports.

Police get information -- pardon?

Justice William J. Brennan: I just wonder, what it just means, found this person to be a prudent person, what does that mean?

Ms Beatrice Rosenberg: Well, Your Honor, I think in context, it means credible.

And the Court says, you pay no attention to it at all, but it seems to me, the opinion below in that respect, in that little respect is an example of how not read search warrants.

I don’t know whether that’s a local colloquialism or not.

Obviously, this is not a mastery of decent English language as we get from.

I have received information from a person who fears for their life and property and he wouldn’t get an A in English, but I don’t know that that’s the question.

I think when it’s read in context, I have interviewed this person and found him to be prudent, that means, I found him, in my judgment, he’s somebody whom I trust.

Justice William J. Brennan: Well, it’s the same in what we said I found him --

Ms Beatrice Rosenberg: The credible.

Justice William J. Brennan: -- reliable or credible?

Ms Beatrice Rosenberg: Well, I don’t we could say reliable.

I think he is saying, I offer you my judgment that this is a person that I can trust and that gets us to this problem.

One gets information from person who has not given information in the past.

Now, the one thing that’s clear about his affidavit, on page 4 of the Government’s brief, is that the informant is talking from personal knowledge.

What he had said is that this person has personal knowledge, and I’m quoting, “of and has purchased illicit whiskey from within the residence described for a period of more than two years and most recently, within the past two weeks, has knowledge of a person who purchased illicit whiskey within the past two days from the house, has personal knowledge that the illicit whiskey is consumed by purchases in the out building known and utilized as a dance hall and has seen Roosevelt Harris go to the other outbuilding located about 50 yards from the residence on numerous occasions to obtain the whiskey for this person and other persons.

So, that this case is clearly distinguishable from most of the situations that have come before this Court where we do not know the basis of the informants -- not, we do, it is personal knowledge.

And through the personal knowledge that’s the two weeks before the day, but that this is not stale information is alleged – well, I think would appear anyway from the nature of the business, but the fact that he knows, apparently the informant knows somebody who bought whiskey two days before the date of the affidavit.

I take it the only importance of that is to show that the business is still going on, not just a presumption, but that bit of information adds that.

Justice Byron R. White: Well, the only problem is the honesty of the informer in this case, that’s the only --

Ms Beatrice Rosenberg: That’s right.

Justice Byron R. White: That’s the only issue.

Ms Beatrice Rosenberg: That’s the only issue in the case.

I take it that if the informer had given his own information, has his own affidavit by name and it would not be hearsay, it would be his own affidavit, there’s no question that a search warrant could’ve issued on that.

Now, the question is should it be different when the informer is afraid or unwilling or for some reason will not make the affidavit to the magistrate, but is willing to make this sworn statement to the investigator.

Justice Byron R. White: Well actually, --

Ms Beatrice Rosenberg: Now, this is --

Justice Byron R. White: Actually, the informer didn’t make a written affidavit to the investigator?

Ms Beatrice Rosenberg: No.

A sworn verbal statement is what --

Justice Byron R. White: I swear this is the truth.

Ms Beatrice Rosenberg: What it says is -- has given under a sworn a verbal statement as the following information.

But let’s assume it’s not sworn, I think that is not the issue.

The informer is willing to give specific information, but is unwilling to make a sworn affidavit to be presented to the magistrate.

This is a situation which does arise, it is frequent.

The Court has recognized time and again that informers who must reveal themselves will not talk.

So that this is a practical situation which law enforcement agencies must deal with and the question is, what do they do about it?

Now my opponent says, when you get this kind of information, you go out and make a buy, but you will notice that the affidavit does say on page 4, that Roosevelt Harris had a reputation for over four years as being a trafficker and with this period, I have received numerous information from all types of persons as to his activities.

Constable Howard Johnson located a sizable stash of illicit whiskey in an abandoned house under Harris’ control during this period of time, reputation evidence and so on but the fact that for four years, they’ve known about this and haven’t been able to make a buy.

It suggests to me that it isn’t quite that simple.

There isn’t every case in which you can go and corroborate an informer’s information by making a buy or equivalent and of course, there are many situations when you have first informers where that’s impossible.

You get a word from a hotel maid that there’s a gun under somebody’s bed and he maybe gone tomorrow.

This is something one has to act on and or you get a word from an accomplice which is the situation in several recent cases that the diamond that we stole is about to be sold to Mr. X down the street, you got to act.

Justice Potter Stewart: Well, surely this is not that kind of thing --

Ms Beatrice Rosenberg: No, this isn’t that kind of a thing --

Justice Potter Stewart: This is over a period of four years this man had been listing.

Ms Beatrice Rosenberg: Yes, but in the period of four years, they have not been able to make a buy.

All I’m saying is that they have not, it isn’t that simple to say, “Well, go out and make a buy and corroborate the informant.”

Obviously, for some reason, this is not an easy case.

This has not been an easy defendant.

Justice Potter Stewart: This was in the eastern district of Kentucky.

In what town or village or city, do you know?

Ms Beatrice Rosenberg: I think it comes that -- city, I don’t remember.

Justice Potter Stewart: I suppose that it was a very small community.

It might be hard for a law enforcement officer or his agent to make a buy because I suppose it could be assumed that everybody knew everybody else in that community and knew his business.

Ms Beatrice Rosenberg: Right.

Justice Potter Stewart: Is that your point?

That was --

Ms Beatrice Rosenberg: I don’t know the reason.

Now, there are two things here.

I know nothing more about this case that appears in the record.

There are two things here that appear in the record.

One that they had this information over four years and acted apparently the day they got somebody who had personal knowledge though that -- I assume they haven’t been able to do it very easily before and the other thing that appears is that the statement that the informer says, he fears for his life.

That’s -- those are the two things that appear in the record.

The fact is however that there are again lots of situations, not this case but there are certainly many and the rules have to be considered beyond just this case as to what does one do about first information where either because of time or circumstances corroboration, you can't have a long investigation for further corroboration.

And one of the first things I think first one has to ask oneself when you got to this question is what would be the motive for an informant to lie.

I understand that an informant might have a motive.

It seems to me two motives.

One is if he’s an accomplice, he is somebody involved, he’s arrested, he wants to do something for himself.

If I give information to the police, maybe they’ll go easy and the other is grudge against a particular person.

Neither of those, it seems to me involves a motive to lie particularly in relation to search warrants.

Because you’re not going to accomplish anything for the police and therefore, for betterment of yourself or you’re not really going to get the man you have a grudge against in jail if you send the police out on goose chase.

So, the informant by a grudge or by hoping to better himself has a motive to give correct information.

He probably wouldn’t do it unless he had some motive that kind of assuming he’s not the good citizen but the person involved in criminality in some form or other.

But I have been trying to see what benefit he would gain for himself by lying and I frankly have not been able to think of any, but assuming that even so, we need some determination as to the honesty of the informant.

The question is how do you get it if you can’t for some reason have a further investigation or a further surveillance and you do it at one end or the other?

Either, what do you know about the person who gives the information or what do you know about the person informed against?

Now, in some cases, I take it, not this one, in some cases, I take it you could say, I have received information from a respectable citizen who had absolutely no motive to lie that he has personal knowledge of such and such occurred.

It seems to me, something a magistrate could properly give a weight to in determining whether to believe an informant who according to report speaks not on hearsay, but on personal knowledge.

Now one just has to bear in mind in that situation, that the more you describe the informant, the more you tend to identify him.

If you say -- if an investigator says, “I got this information from a hotel maid who was there at nine o’ clock in the morning or something like that, It isn’t very hard for anybody who wanted to find out who that hotel maid is.

Nevertheless, I do think, that in some situations, an investigator could probably say, I have received report from a citizen who had absolutely motive by, who’s well regarded in the community.

The investigator here did about or I guess I thought he could do, he said, I have interviewed this person, received a statement under oath and I’m giving you my judgment that he’s a credible person.

Justice Byron R. White: Did the officer had the informant’s name?

Ms Beatrice Rosenberg: Did he?

I don’t know, Your Honor.

It doesn’t appear of record.

Justice Byron R. White: Would it make any -- would it make any difference in your approach if the informant, the first time informer refused to give his name even to the officer?

Ms Beatrice Rosenberg: Yes, I think it would.

I think that these are all nuances that we have to consider.

I think that -- I think it would be more specific that it would strengthen this affidavit at that end if the officer said, “This man gave me his name and address and a sworn written statement,” leaving to that here, he gave them a sworn oral statement that he would not identify himself.

This is -- these are both things to be weighed and I don’t give a great deal of weight to what was said about the informant here because there isn’t much.

It’s just that you do have the judgment of the officer that I tell you, I on my oath tell you Mr. Magistrate that this is a credible person.

Now, we’re starting a system of permanent magistrates, who are upgrading magistrates.

They are going to know the investigators in their region.

It seems to me something they have a right to consider.

Justice Potter Stewart: They are going to do what I understand Ms. Rosenberg?

Ms Beatrice Rosenberg: I said they are going to know, I think better probably than commissioners you know, certainly in the ones where you have full time magistrates are going to know the character of the investigators who regularly come before them.

Justice Potter Stewart: I see.

Ms Beatrice Rosenberg: And it seems to me, that this is something you have a right to consider.

Whether alone it would swing this, I don’t have to decide.

I don’t have to ask the Court to decide.

Yes Mr. Justice.

Justice Thurgood Marshall: In this particular case, where is -- if I understand you correctly, they have known for four years that this guy is in bootlegging business and I would assume, the only way they could know that is from people bringing them information?

Ms Beatrice Rosenberg: Yes but the question is --

Justice Thurgood Marshall: Then why did take them four years to get “reliable informant?”

Ms Beatrice Rosenberg: Well, the information might be from neighbors who saw people come.

I don’t know the reason but --

Justice Thurgood Marshall: And what would be so-called reliable than all of the obvious others?

Ms Beatrice Rosenberg: Well, this is the one that was willing to say, I have personal knowledge.

I don’t know what else they had.

Unfortunately, it is true that people have reputations.

I guess, in much bigger crimes than this Mr. Justice, there are a lot of things we know that we can’t prove.

And that brings me to the second and what I think is the more important part of how do you believe the informant in this case, and that is the statement if we’ve heard about this man for four years and we found -- and once we found whiskey in an abandoned house under his control and I at least in the situation we have here where the informants speaks from personal knowledge, we’re not dealing with the vague informant like Spinelli.

We’re dealing in a situation here where the informant speaks from personal knowledge and the question is should we believe him or not.

In that situation, I do ask this Court to modify the language of Spinelli to the effect that reputation is merely a matter of bold suspicion having no way whatsoever.

This Court said, as long ago was 164 United States that good reputation can make the difference between innocence and guilt in the trial of the case.

And prior decisions of the Court have said that reputation is something you can consider in probable cause and actually in the trial of the case.

Justice Potter Stewart: What language is expressly in Spinelli is it that you find not uncomfortable with?

Ms Beatrice Rosenberg: The record of the fact that defendant there had a reputation as a gambler was “A bold and an illuminating assertion or suspicion that is entitled to know way in appraising the validity of the magistrate’s decision to issue a warrant.

This is contrary to the fact, to Carroll, to Brinegar, to Jones, to (Inaudible).

As I say, it is contrary to the old Edgington case about good character and really we keep bad reputation out of the trial not because it’s irrelevant, but because too much weight could be attacked to a jury.

And so it seems to me that at least in a situation here, as I say, where we’re dealing with an informer who speaks from personal knowledge, certainly at least in that situation and the question is merely, can we act on this personal knowledge even though we don’t know this man, we haven’t dealt with him before.

You consider the fact that the person he is informing against has been the subject of a lot of suspicion and not even, if I have to narrow it beyond that, I guess, it’s particularly true in fields like liquor and narcotics where reputations are generally have some backing, that it’s certainly it is true that it is possible for somebody have the name without the game.

But it is extremely unlikely with relation to premises where liquor is sold and therefore, when you get as I say not a vague kind of suspicion, not of tip, but an informant who at least to the officer is willing to make his statements under oath, then it seems to me whether you -- and issue is as Mr. Justice White said at the begin, do you believe your informant?

You have the fact which is what this case presents.

In fact, that as far as I can see, he would not have motive to lie even if -- it’s assumed that he got into trouble when he talked to the police.

It would still do him no good unless the information he gave was reasonable -- it turned out to be wrong.

If he sends the police on a wild goose chase that doesn’t help him.

Secondly, the officer is willing to swear that he has examined the man and found him a credible person and thirdly, the person informed against is someone who has had his general reputation and I take it, they were trying to get and could not really get a way of checking the information.

Now, let’s not forget that this isn’t guilt or innocence.

This is simply a presentation to the magistrate for authority to go in and look in the premises and to see whether this reputation and the informant’s information together are accurate whether there are, is in fact, illegal whiskey concealed here.

Justice Thurgood Marshall: Ms. Rosenberg, I think the trouble with it not being guilty of innocent charge, as I understand in Moonshine case is that when they used the motion to suppress, they’d had it?

Ms Beatrice Rosenberg: Well, that is true, Your Honor but the fact remains that they didn’t find the whiskey that’s the end of the Government.

Justice Thurgood Marshall: The fact that you find it, doesn’t validate the warrant?

Ms Beatrice Rosenberg: No.

The fact that you find it doesn’t validate the warrant.

What I am saying is that even if we assume that this informer had some motive which might conceivably -- have some reason why he was willing to talk to the police when apparently a lot of people weren’t.

The fact is that he would have no motivation to give false information.

It’s about -- there’s everything to gained by giving accurate information, if he hopes to gain anything than by giving false information.

Justice John M. Harlan: I suppose you would probably say that if an informer tells people that the liquor is in a certain place that is if they go there they'll find it, they go there and they find it.

It wouldn’t be easy to convince you, would it, that the informer was not worthy of belief?

Ms Beatrice Rosenberg: No.

But unfortunately, the magistrate who has issued the warrant, I guess doesn’t have that.

Justice John M. Harlan: But they don’t have to try that, the general reputation for truth and veracity of all the witnesses in a search warrant case, do they?

Ms Beatrice Rosenberg: Well, no Your Honor.

I take it and I think there’s no question that if this informant had given an affidavit, this case would be here.

The point is that you do deal with the man who was unwilling to give his name to the magistrate and the question is, how much more in the face of that?

What do we need to corroborate?

And I say, that this corroboration can come in different ways.

I take it if you could really say to the magistrate this information comes to me from the leading citizen of the town, who has absolutely no motive to falsify.

Then, it wouldn’t matter whether the person informed against had a reputation or not.

Justice John M. Harlan: Wouldn’t it be to go out get some witnesses who would swear to the magistrate that these people have general reputation to be untruthful in telling the truth?

Ms Beatrice Rosenberg: Well, it might Your Honor because as I take it --

Justice John M. Harlan: Is that a way to get a witness?

Ms Beatrice Rosenberg: Well, it gets so complicated because if there is a motive, if there is a real interest in keeping the identity of the informer secret and this Court has recognized that time and again then you can’t get people to switch to his reliability because that refutes it immediately.

There is a real movement on in in this country to upgrade the police investigation.

Justice John M. Harlan: To do what?

Ms Beatrice Rosenberg: Upgrade.

But it seems to me in relation to this matter of warrants that those who must deal with the police and sort of train them, must make them understand what this is about.

Now, I think it is possible to make investigatory or law enforcement agencies generally understand that you can’t barge in within a warrant, that you can’t barge in on just reputation because that’s not enough.

I’m not disputing that the police sometimes find this very exasperating and you know, they want to act in a hurry but I think these are principles that can’t be explained and understood.

But I think that if we try to lay down rules that are contrary to normal experience of law enforcement officers then law becomes to them something sort of art and a series of rigid rules that they don’t understand.

And I truthfully believe when you said to say to a law -- a liquor, alcohol and tax investigating officer that when he gets an informant, the fact that he’s sort of heard rumors about this place, let's put it as vague as that, for four years it's something that’s entitled -- to no vague whatsoever.

It’s just contrary to like as he understands it and something that’s going to make -- that becomes a rule that to him does not in accord with experience.

And I think that it is in the long run to the interest of good law enforcement that we uphold reasonable judgments and I think in this case, where the officer had information on personal knowledge, which he thought came from a credible person.

But which also coincided with a lot of other unspecific information that he had been acquiring over four years.

It was proper for him to ask for search warrant and proper for the magistrate to give it.

Chief Justice Warren E. Burger: Thank you, Ms. Rosenberg.

Mr. Umin, you may proceed.

Argument of Steven M. Umin

Mr. Steven M. Umin: Mr. Chief Justice and may it please the Court.

The search that took place here in the circumstances that gave rise to it, took place in Middlesborough, Kentucky and a little shack alleged to have contain alcohol on which the tax was not paid.

But in fact, the circumstances -- pardon?

Justice Hugo L. Black: Within the city -- within the city of Middlesborough?

Mr. Steven M. Umin: To the best of my knowledge it was.

It’s on Dansbury Avenue in Middlesborough.

Now, I’ve seen pictures of the place which are in the record to what extent Middlesborough was a big city or not is something I’m not familiar with Your Honor.

The circumstances however are paralleled by similar circumstances in every metropolitan area and indeed now suburban areas that I’m sure this Court is all too familiar with.

The circumstance in which a law enforcement officer familiar with some reputation of a particular suspect becomes on a given day possessed of information not derived from his own observations, but from the say so of the layman that in the legal stimulant it's harbored in a given house.

That to be sure, it probably happens hundreds of times a day in metropolises of this country with respect to narcotics.

The decision in this case will therefore affect those cases gravely as well it will, the pursuit of illegal whiskey in the back woods.

I think we can say on this record that this is a case in which an officer got possession of information from someone, not another law enforcement officer and not from his own observations to the effect that there was an illegal stimulant in this case, non-tax paid whiskey in someone’s premises.

The record doesn’t show a number of things.

It doesn’t show with any great clarity that this was a first time informant or indeed even someone who may have been unreliable in the past.

To be sure, this Court has counseled that magistrates interpret search warrants, affidavits for search warrants in the light of common sense.

The Government here we have common sense suggests, first that prudent means reliable, perhaps not credible but reliable.

And secondly, -- pardon?

Justice Hugo L. Black: Suppose the case went up the trial before a jury, and they put on the same informant, would it be up to the Government to prove that he had a good character for truth and veracity?

Mr. Steven M. Umin: No, it certainly wouldn’t, Your Honor.

Chief Justice Warren E. Burger: Suppose this affidavit in the application for search warrant had indeed used the term reliable, trustworthy, --

Mr. Steven M. Umin: Yes, Your Honor.

That of course is not this case, although, I think it would be insufficient under this Court’s standards in Aguilar.

Aguilar was precisely that sort of case.

Chief Justice Warren E. Burger: So, that opinion is outstanding on the word prudent?

Mr. Steven M. Umin: No, I certainly would not.

In fact, I would plan to assume though not concede, this was a first time informant for purposes of the argument I would want to make.

Chief Justice Warren E. Burger: And that he was reliable?

Mr. Steven M. Umin: Of course not, Your Honor.

There’s nothing in this record to suggest that.

Chief Justice Warren E. Burger: Well, you suggest that prudent does negates the idea of reliability?

Mr. Steven M. Umin: I wouldn’t suggest that negates it but particularly in the informer context, it may well bear a strong inference of unreliability.

A reliable --

Chief Justice Warren E. Burger: Let me hear that again.

Mr. Steven M. Umin: In the informer context the word prudent may bear a strong inference of unreliability.

A prudent narcotics informer may well be one who makes who makes educated guesses about who it is in the community may well have a bottle of illegal liquor on his premises.

Because he’s being paid for the number of people he actually turns up having seen Roosevelt Harris at a party say, he, at which illegal liquor was served, you take a guess that Roosevelt Harris may have a bottle of liquor in that -- in his house.

It may be perfectly prudent for him under those circumstances to suggest to an officer or find in a list of 30 or 40 people from whom search warrants maybe obtained that one such person is Roosevelt Harris.

Now, if it turns up that in 29 cases, the liquor is in fact found, the informant would subsequently become reliable, but it’s that one case we’re concerned about and a prudent narcotics or liquor informant may well be inclined to take a guess just on the chance that it will turn up reward or payment or whatever it is encourages him to continue as an informant something that, of course, this record says absolutely nothing about.

Justice Hugo L. Black: Would that same argument not apply, if the man was on the trial and summoned to jury and jury was before you and you were trying his guilt and innocence?

Mr. Steven M. Umin: Of course, in the jury --

Justice Hugo L. Black: And that might put him up as witness?

Mr. Steven M. Umin: It indeed would but in the jury context, there’s a fair --

Justice Hugo L. Black: Well, do the jury have a right to assume, he was a man of bad character?

Mr. Steven M. Umin: No.

I wouldn’t.

I wouldn’t.

The jury may have a right to --

Justice Hugo L. Black: The preliminary proceeding of getting a search warrant.

Mr. Steven M. Umin: Excuse me.

I’m sorry, Your Honor, I missed that.

Justice Hugo L. Black: It would in the preliminary proceeding of getting a search warrant but not in the acts of trial --

Mr. Steven M. Umin: No, I wouldn’t suggest that the magistrate should necessarily presume on reliability in this case.

I suggest simply that the inference of reliability knowing what is known about narc -- about informants, particularly in the stimulant context is not compelling at all from the word prudence.

Prudence may suggest as the Court of Appeals suggested that a man is circumspect.

It may suggest that it is very good at taking educated guesses and that would be sensible for him to do that.

I don’t suggest that unreliability is compelled either.

But that the inferences are equally balanced and a jury could well begin without any notion of what prudence meant or with a notion that it meant reliable or unreliable.

Justice Potter Stewart: The word prudent in the context of this statement may have a connection with the fact that the informant feared for his life or property and he was being very prudent in --

Mr. Steven M. Umin: Certainly --

Justice Potter Stewart: -- not revealing his name and so on.

It seems to be it could well at least be related to the preceding sentence in the paragraph, could it not?

Mr. Steven M. Umin: That certainly --

Justice Potter Stewart: And it had nothing to do with reliability or not?

Mr. Steven M. Umin: That’s the point, I mean, either context to the affidavit and the context of informant behavior generally lends to the word prudence so many connotations that it’s difficult even to settle on a meaning.

Even more important in settling a meaning is coming up with some basis for a magistrate to assess whether that judgment of prudence is correct.

How can a magistrate know what the word prudent means in an affidavit?

What it implies about the judgment made if there are no in fact circumstances stated in the affidavit to substantiate the meaning of prudence in this context.

That after all is the function that this Court has historically attributed to the magistrate.

The check before the search upon the probability that the search is warranted, the check upon a judgment that a man is reliable.

Magistrate in this case would have to first define prudent in a way that would allow the determination of the liability and second, speculating in the dark as to whether this man was properly determined to be reliable or prudent or whichever was settled upon by the officer in question.

Justice John M. Harlan: Getting away from the lawsuit and prudent for a moment, what significance would you attribute (a) to the specificity of the allegation made in the affidavit as to what the informant told him?

And second, through the allegation that the agent himself had gone to the extent of getting the informant to put his information under oath?

Mr. Steven M. Umin: As to the details, Your Honor, I think there’s very little you can attribute to that in this context.

Details in no sense resemble the details in Draper which were details predictive in nature.

In that case, it could be said that when details given by an informant was subsequently confirmed by an agent and after all they had a chance in that case not to eventuate, the informant became more credible because the information predicted was in fact confirmed to be true.

And indeed, the informant’s, the likelihood that the informant was giving personal information was increased by the nature of the detail in Draper.

There’s virtually no real detail in this affidavit at all.

The detail given pertains to the relationship among buildings on a given -- in a given residence in a at best medium size town publicly observable detail that suggests no particularly intimacy on the part of the informant or any particular credibility.

Indeed, it should be noted that as to that detail, the investigator in this case didn’t even go so far as far as this record shows to confirm that before applying for the warrant.

So, the confirmation aspect of Draper was wholly out of the case and the personal observation aspect to Draper is likewise not here.

The critical point is though, that nothing in this case, as decided by the Sixth Circuit impairs law enforcement at all or certainly not to any degree sufficient to outweigh the interest of the individual security.

That after all is the test under the Fourth Amendment is a search reasonable.

Reasonable as involved balance and this Court has expressed that test in Camara and Terry as a -- the balancing of the need to search against the enormity of the invasion.

In this case, a number of alternative opportunities were presented to the affiant officer.

Even if it were true, that a buy had been difficult to make in four years, a fact which itself would undermine it seems to me the merit of the -- of the notion that this affidavit created probable cause, even if that were true, that wasn’t the only technique available.

Such a buy to be sure would be constitutional as would the procedure established by United States against Lewis in which the buy is not made by the informant at all, but by a Government agent who calls the premises and sees whether he can make a buy there.

In Lewis, the Government agent actually went to the premises and made the buy, came back at second time, made another buy and had evidence available for trial, but even if the buy were not possible, in the course of the conversation as Mr. Justice Douglas suggested in his dissent in Lewis, in the course of the conversation about the buy, the homeowner alleged to have illegal whiskey on his premises might well say something to substantiate probable cause.

Who are you?

I’ve never heard you before?

How do I know that you’re not a cop?

That kind of conversation with a Government Agent who has received information that there is illegal liquor at a certain place might well and I would suggest in many instances would enhance the probable cause that he could present to a magistrate in an affidavit.

So, it’s not simply the question of whether a buy was available, an available technique, a buy by the informant or a buy by the Government agent but whether other investigative techniques in this case such a mere phone call would not have in fact turn up enough strongly indicative evidence of involvement in the traffic of illegal alcohol as to warrant a proper affidavit in this case.

I don’t even suggest that there are cases in which that kind of further investigation may not be possible.

The Americans for Law Enforcement filing an amicus curiae brief present here a case, in which, in course of that brief, in which a cash register is stolen from a grocery store and the cashier in the grocery store, a young employee some days later observes the cash register in somebody’s house and here is the owner of that house boosted that he stole it.

Well, that’s not a situation in which the law enforcement can make a buy or can make phone calls to see whether they can make a buy.

And so, the police officer in the real life case posited by the Americans for Law Enforcement went around the neighborhood, asked the neighbors of the informant, “Is he reliable?

Is he credible?

What’s his reputation?”

Checked with the police, to see whether he had a criminal record or not?

Checked with his employer to see whether the employee would have any motivation in that case to lie or fabricate or distort a fact that just as strong as lying in the formation of affidavit.

Having gone through that process, the officer could at least present in an affidavit to a magistrate the notion that he had done his best to clear the reputation of this informant for truth and veracity in that environment.

Justice Hugo L. Black: May I ask you a question again?

Mr. Steven M. Umin: Yes, Your Honor.

Justice Hugo L. Black: I have trouble with your argument for this reason.

I understand you to agree the Government had a case against a man like this and put an informer on the stand.

He testified, yes, he saw him sell the liquor and the jury would have convicted him.

The judge couldn’t -- wouldn’t be called on to set that aside, would it necessarily?

Mr. Steven M. Umin: No, Your Honor.

It certainly wouldn’t.

Justice Hugo L. Black: But here is a case where the only question is getting up some evidence and it’s not against so much of the state as to guilt or the innocence of the party.

And you’re claiming that in a preliminary proceeding to get a search warrant, the evidence must be stronger than the evidence to convict the man of a crime.

Mr. Steven M. Umin: Not at all, Your Honor.

I don’t believe that’s the essence of my claim.

First of all, --

Justice Hugo L. Black: Isn’t it, it would suppose that the Government simply put this informant on the stand and it did not put on any evidence to show that he was truthful and trustworthy in the community and the jury went on to convict him, is there any reason why that shouldn’t stand?

Mr. Steven M. Umin: Certainly, if the defense has done an ineffective job in impeaching the credibility of that witness, an opportunity to have a trial but not before the magistrate, now that conviction can stand, Your Honor.

Justice Hugo L. Black: That’s what you’re exacting is an opportunity -- is getting a search warrant, a higher burden on the Government than would be imposed on to convict the defendant?

Mr. Steven M. Umin: I really don’t believe that’s implicit in the argument.

Justice Hugo L. Black: For one thing, --

Mr. Steven M. Umin: Yes.

Justice Potter Stewart: -- this informer was not before the magistrate?

Mr. Steven M. Umin: That’s certainly true and even in such a circumstance when an informant is named in an affidavit, one of the functions of naming an affidavit --

Justice Hugo L. Black: That’s not the argument you are making.

You’re not making, you don’t grant a hearsay, are you?

Mr. Steven M. Umin: No.

But I mean, what the magistrate has in that case is the power to call the informant before him and cross-examine him.

Justice Hugo L. Black: I have understood that there's a hearsay rule with reference to trial, I didn’t understand that there is any well-established hearsay rule in connection with people who testified to get the search warrant?

Mr. Steven M. Umin: Indeed, the very opposite is true.

Hearsay is permissible in a warrant affidavit of this kind and it’s for that very reason that magistrates in this Court have insisted upon some assessment of the reliability of the person conveying the hearsay.

It’s because the magistrate will be satisfied by evidence that would not be competent in trial, that you want at least some assurance that the person conveying the hearsay is not conveying either a rumor or a fabrication.

That assurance need not be given in the form of cross examination.

It need not be given in the form of disclosing his name so that the magistrate can call him before him and cross-examine.

But it should appear in the affidavit that the steps that it’s reasonably possible for law enforcement to take to confirm the reliability of the person giving the hearsay, have been taken and continued to substantiate that the informant’s credibility stands up.

Justice Hugo L. Black: But they don’t have to confirm that witness when he’s before the grand jury trying a man as to his guilt or innocence?

Mr. Steven M. Umin: That job is left to the defendant, Your Honor.

Justice Thurgood Marshall: But this alleged affidavit that this unknown person gave to the agent, what kind of affidavit was that?

John Does were or something?

Mr. Steven M. Umin: Your Honor, the record doesn’t support the notion that there was an affidavit given by the unknown person to the affiant.

It supports only the notion that a verbal statement was given described in this affidavit as sworn.

There was not even an affidavit from this informant.

Justice Thurgood Marshall: Well, how can you make us -- an unnamed person make a sworn statement?

Mr. Steven M. Umin: That’s the real problem.

Presumably, the Government relies upon to the extent it does rely upon a sworn statement which to some extent it does not.

The effect of swearing somebody in would be to inhibit the chances of falsification by threatening an informant with perjury or prosecution under some other federal false statement statute.

Obviously, that the function of inhibition in this setting, we don’t know who the person is and only the affiant does and there’s no evidence present at the swearing and would be virtually null.

Justice Thurgood Marshall: Is there some effort on the part of the informer testing he could to be sure this fellow was telling the truth?

Mr. Steven M. Umin: It shows some effort --

Justice Thurgood Marshall: No, but there in fact, but it does show an effort?

Mr. Steven M. Umin: Certainly, I mean, the search warrant does not issue as a price for effort.

It does issue when probable cause is established and probable cause is established when there’s a reasonable basis for a magistrate to infer that an informant is credible.

Merely swearing him in does not provide a reasonable basis in these circumstances and there are so many alternatives available to an affiant in this circumstance, without disclosing the informant’s name, which would buttress his reliability.

Justice Byron R. White: Mr. Umin, would you say that it would be insufficient as the officer had actually taken a written affidavit from the informant and said to the magistrate in his own affidavit, “I have a written sworn, signed affidavit from the informant?”

Mr. Steven M. Umin: I think that would come very close to sufficiency.

The magistrate could simply then call for it and see if he wished and see who it was.

Justice Byron R. White: Well, the officer says that “I won't furnish the affidavit because that would reveal the man’s name.”

Mr. Steven M. Umin: It could be submitted to the Court under seal.

That justification would be very weak under those circumstances, I would think, for the Court’s knowledge alone and from that point on, without disclosure to the rest of the world.

Justice Byron R. White: But as to the affidavit reading it would be more to verify the officer’s honesty than the informant’s?

And the --

Mr. Steven M. Umin: Only to the extent that the affidavit enabled calling the informant into an in-camera session altogether would it go to the informant’s reliability, Your Honor.

In any event of course that's not this case, there’s no affidavit or sworn statement here.

Justice Byron R. White: But there was a -- apparently the officer says, the informant swore to what he was --

Mr. Steven M. Umin: Yes, for whatever that may mean in Middlesborough, Kentucky or anywhere else.

I have on many occasions myself certainly have sworn on the stack of Bibles and had no notion to time that I was threatened with perjury or threatened with anything that seriously buttressed of my reliability.

I would hope that at all times, I’d tell the truth but I don’t think that Court -- that kind of assertion which is on this record the swearing may well have been does much to buttress anyone’s reliability.

Given the alternatives that are available to law enforcement, in a circumstance like this, involving minimal law enforcement impingement and indeed alternatives that are commonly used throughout the country, the suggestion that this Court ought to put its (Inaudible) upon a confirmation of reliability amounting to no more than the use of an ambiguous term in an affidavit is a suggestion in effect that this Court can sign over to the police, the security of persons and their houses, not simply the security of persons and their houses in the discretion of the police, but in the discretion of the police acting upon an inarticulate hunch.

This Court has said its face against an inarticulate hunch even from the officer in Nathanson.

And from that point on, in every affidavit case this Court has ever considered this case amounts to more than an inarticulate hunch after an interview, that someone may be giving reliable information about a person who mysteriously has been known to be in the business of trafficking in illegal alcohol for four years but about whom no better information appears to have been obtained.

And whom -- in relation to whom maybe some difficulty in making any buy at all to confirm that he’s in fact engaged in that traffic.

Under these circumstances, I suggest that an affirmance of the Sixth Circuit's decision would do nothing to impair effective law enforcement and a reversal would do enormous damage to the protections of the Fourth Amendment that this Court has zealously guarded over the years.

Chief Justice Warren E. Burger: Thank you, Mr. Umin.

Mr. Umin, you acted at the Court’s requested and by the appointment of the Court.

We thank you for your assistance for the defendant and to the Court of course.

Mr. Steven M. Umin: It’s a pleasure to do so, Your Honor.

Chief Justice Warren E. Burger: Thank you, Ms. Rosenberg.

The case is submitted.