U.S. Supreme Court SPINELLI v. UNITED STATES, 393 U.S. 410 (1969) 393 U.S. 410

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(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. 418.

382 F.2d 871, reversed and remanded.

Irl B. Baris argued the cause and filed a brief for petitioner.

Joseph J. Connolly argued the cause for the United States, pro hac vice. With him on the brief were Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Sidney M. Glazer.

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

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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.

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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 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]

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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.

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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, 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

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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, 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, 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, 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, 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]

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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, 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

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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 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, 28 (1949). See United States v. Rabinowitz, 339 U.S. 56, 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] See Johnson v. United States, 333 U.S. 10, 13-14 (1948).

[Footnote 3] Warden v. Hayden, (1967).

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

[Footnote 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, 271 (1960).

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

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