United States v. Harris, 403 U.S. 573 (1971)

MR. JUSTICE BLACK, concurring.

While I join the opinion of THE CHIEF JUSTICE which distinguishes this case from Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969), I would go further and overrule those two cases and wipe their holdings from the books for the reasons, among others, set forth in the dissent of Mr. Justice Clark in Aguilar, which I joined, and my dissent in Spinelli.

1. Of course, where, as here, the affiant provides information in addition to the informant’s tip, the magistrate could alternatively find probable cause, without examining the tip, if he can conclude that (a) the affiant is probably telling the truth and (b) the affidavit apart from the tip is sufficiently informative to establish probable cause. See Spinelli v. United States, 393 U.S. 410, 414 (1969). Concededly, this latter element is not present here. Government’s Brief 16. Without crediting the tip, the affidavit is insufficient.

2. Giordenello and Whiteley each involved an arrest warrant, rather than a search warrant, but the analysis required to determine the validity of either is basically the same.

3. The Government makes brief reference to the assertion that the informant’s verbal statement to the affiant was "sworn." Government’s Brief 13 n. 2. I do not see how this affects the case. Surely there is no reason to suspect that this indicates the confidant anticipated potential perjury proceedings if he were subsequently proved a liar. Nor does that assertion reveal, in any meaningful sense, what sort of relationship this might have reflected or created between the agent and his informer.

4. The Court of Appeals, in reversing respondent’s conviction, stated that

[t]he allegation that [the informant] is a "prudent person" signifies that he is circumspect in the conduct of his affairs, but reveals nothing about his credibility.

412 F.2d 796, 797-798. I consider this a too restrictive construction of the affidavit, and cannot accept that aspect of the reasoning of the Court of Appeals.

5. Of course, the magistrate was presented no evidence that this is, in fact, such a case. Indeed, the very allegations in the affidavit to the effect that the informant here had been a frequent purchaser from respondent would suggest that he "is, at least, someone who enjoys the confidence of criminals." The Government’s argument, as I understand it, is that the affidavit in this case is typical of those that can be produced by agents who rely on first-time informers not bound up themselves in criminal activity. As I point out below, if this had been the situation here, and that fact had been communicated to the magistrate, this would be a very different case.