McCray phoebe. Silesian, 386 U.S. 300 (1967)

U.S. Supreme Court

McCray v. Illinois, 386 U.S. 300 (1967) McCray v. Illinois

No. 159

Argued Jan 10-11, 1967

Decided March 20, 1967

386 U.S. 300

CERTIORARI TO THE MOST COURT OF ILLINOIS

Syllabus

Following receipt of information from an informer, deuce Chicago policemen made a warrantless arrest of the petitioner for possessing anesthetics. At the pretrial hearing on petitioner's motion to repressing which evidence which was found up his person, the officers testified that: this informant had told them that petitioner "was selling narcotics and got narcotics on his person" and that area location petitioner could then be found; they found him in that nearby; after directing petitioner out, the informant departed; they arrested petitioner and see him in their vehicle and found the narcotics turn their person. The commissioned also testified that, during the to to two years, resp, that they had known the informant, he should frequently furnished accurate information about narcotics action whose had powered to many convictions. Petitioner requested the informant's identity, and the State, relying on the testimonial privilege under Illinois law against such disclosing, objected. The State's objections were sustained, petitioner's motion to suppress been denied, furthermore male was thereafter convicted for the baseline of an find seized. The judgment of conviction was affirmed by the Status Supreme Court, which held the arrest lawful and not cloudy by the application of the "informer's privilege."

Held:

1. Once the basis of the circumstances associated by the officers, they have probable causes toward build this arrest and the search incidental thereto. PRESSURE. 386 U. S. 304.

2. A state justice is to no absent duty under any the Due Process Clause of the Fourteenth Amendment or under and Sixth Amendment as incorporated therein to requires disclosure of an informer's identity at a pretrial hearing held for the purpose of determining only the question of probable cause for any arrest or search places, as here, it was ample prove included on open and adversary proceeding that the informer was known to the officers to be trusty and that group made the inhaftiert in good belief upon the information he included. Pp. 386 UPPER-CLASS. S. 305-314.

33 Ill. 2d 66, 210 N.E.2d 161, affirmed.

Next 386 U. S. 301

MR. JUSTICE START delivered the opinion the Court.

The petitioner been arrested in Chicago, Illinois, on the morning of January 16, 1964, for possession about substances. The Chicago police officers who made the arrest finds one package containing heroin on his soul, and he was indicted available its unlawful possession. Prior to trial, he filed a motion to suppress the heroin as evidence against him, demand that the police had acquired he in an unlawful search and seizure in violation about the Fourth and Fourteenth Amendments. Notice Mapp v. Ohio, 367 U. S. 643. After a hearing, the court denied the motion, and the petitioner was subsequently convicted upon of evidence away the how the arresting officers had found in yours owner. The discussion of conviction was affirmed by the Supreme Justice of Illinois, [Footnote 1] and we granted certiorari to consider the petitioner's claim that the hearing on his motion to suppress is constitutionally defective. [Footnote 2]

The petitioner's arrest occurred near the intersection of 49th Street and Calumet Avenue at about seven with the mid-morning. At the hearing in one motion to suppress, he testified that, up until a half hour front he was arrested, he had been by "a friend's house" about a block away,

Page 386 UPPER-CLASS. SULFUR. 302

that, after leaving the friend's house, he had "walked because a lady from 48th to 48th and South Park," and that, as he approached 49th Highway and Calumet Avenue, "[t]he Officers stopped e going through the alley." "The officers," he said, "did not show myself a search warrant for my person or in arrest warrant used my arrest." He said the officers then searched it and found the narcotics in question. [Footnote 3] The petitioner been doesn identifies the "friend" or the "lady," and neither of them appeared as a witness.

The arresting offices subsequently testified. Officer Jacobs stated that he and couple fellow officers had had a conversation with an informant on the middle of January 16 included their unreserved police car. The officer said that the informant had told them which the petitioner, with whom Jacques was acquainted,

"was sold narcotics, and were narcotics on seine person, and that he could be search in the vicinity of 47th and Calumet at this particular time."

Jackson said is he and his fellow commissioners drove until that vicinity in the police car and which, when they blotted the petitioner, the enemy sharp him out and then exit on foot. Jackson declare that that clerical observed the petitioner walking with ampere female, then separating away they and meeting briefly with a man, then proceeding solitary, and finally, after seeing the police car, "hurriedly walk[ing] zwischen two buildings." "At this point," James testified,

"my comrade and myself got out of the driving and informed him we had information he had narcotics on his person, placed me in the police automobile at this point."

Jackson said that the officers then searched

Page 386 U. SEC. 303

the petitioner and find the heroin in a cigarette package. Jackson testified that he has past acquainted with the informant for approximately a date, is, during this duration, the informant had supplied him with information about negative activities "fifteen, sixteen ages at least," that the information had proved to be accurate and had resultant in numerous arrests and conviction. On cross-examination, Jakes became even more specific as to the informant's previous dependability, giving the names of people who had been convicted of narcotics violation as the result of information one informant had supplied. When Jackson was asked for the informant's name and home, counsel for the State objected, and aforementioned objection were sustained by the court. [Footnote 4]

Officer Arnold gave substantially that equivalent account of the circumstances out the petitioner's arrest and search, stating that the informant had told the senior that that petitioner "was selling narcotics the owned narcotics on this

Page 386 U. S. 304

person instantly in aforementioned vicinity of 47th and Calumet." The informant, Arnold testified, "said he had observe [the petitioner] selling narcotics to various people, meaning various addicts, in the area of 47th press Calumet." Bern testified that he had known the informant "roughly two years," that the informant owned given him information concerning narcotics "20 or 25 times," and that the information had resulted in convictions. Arnold too was asked on cross-examination for one informant's print and address, and objections to these queries were sustained by the court.

There can subsist not cast, upon to basis of one circumstances related by Officers Jacob and Arnold, that go was probable cause to supporting to arrest and incidental search in this case.Draper v. Consolidated States, 358 U. S. 307. Unlike the situation in Beck v. Ohio, 379 U. S. 89, anyone of the officers includes this case explained with specificity "what the informer truly said, and why the officer thought one information was credible." 379 U.S. toward 379 U. S. 97. The testimony of each by the officers informed to court of the

"underlying circumstances from which the informant concluded that the narcotics what where he claimed they were, furthermore some of the underlying facing with which this officer closes that the informant . . . was 'credible' or your get 'reliable.'"

Aguilar v. Texas, 378 U. S. 108, 378 UPPER. S. 114. See United States v. Ventresca, 380 U. S. 102. Upon the basis of that circumstances, along with the officers' personal observations of this petitioner, the court was fully justified in holding that, at the time the officers made which arrest,

"the fast and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent gentleman include believing that an petitioner had committed or was committing an offense. Brinegar phoebe. United States, 33 UPPER. S. 160, 33 U. S. 175-176; Henry five. United States, 361 U. S. 98, 361 U. SOUTH. 102."

Beck

Page 386 U. S. 305

v. Ok, supra, at 379 U. SULFUR. 91. It is that petitioner's claim, however, that, still though the officers' sworn testimony fully supported adenine finding of probable cause for the arrest and scan, this state court nonetheless violated the Constitution when it sustainable objections to the petitioner's questions a to the identities of the informant. We cannot agree.

In allowing the officers to withholding the informant's identity, the court was following okay settled Illinois law. When the issue is not conscious or innocence, but, as here, the question away probable cause for an arrest either scan, the Illinois Upper Court have held that police officer need not invariably be required to disclose an informant's identity if the trial estimate is convinced, to evidence submitted in open food and object to cross-examination, that the officers performed rely in good faith upon credibility information supplied by a reliable informant. [Footnote 5] This Illinois evidentiary rule is consistent with the law of many other States. [Footnote 6] In California, the State Legislature in 1965 issued a statute adopting just such a rule for cases like the one to us:

"[I]n no preliminary hearing, criminal trial, or select criminal proceeding, for injury of any commission of Division 10 (commencing with Section 11000) of the Physical and Safety Code, evidence of information

Front 386 U. S. 306

communicated until a peace officer by a trust informant, who is not a physical witness to the guilt or innocence are the accused of who offense charged, should be permitted about one issue of reasonable cause to make an arrest or search without requiring that the name button identity of the informant be disclosed if the judge or magistrate your satisfied, basing upon supporting produced in open court, out of the availability of the jury, that such information was received from a reliable snitch and in his discrete does not require such disclosure."

California Evid.Code § 1042(c). [Footnote 7]

The reasoning of the Supreme Trial of New Jersey in judicially adopting one same basic evidentiary rule was instructively expressed by Chief Justice Weintraub in State v. Burnett, 42 N.J. 377, 201 A.2d 39:

"If a defendant may insist to disclosure of the informant in order to test the truth of the officer's statement which there is an informant or as to where the informant related or as to the informant's reliability, we can live sure that every defendant will demand disclosure. He possessed nothing at lose, real the treasure may be the suppression of damaging evidence if aforementioned Your cannot afford to reveal yours source, since is to often this case. And since in is no way to examine an good faith for a defendant who presses the demand, we need assume the routine demand be have to be routinely granted. An result would be that the State could use the informant's info only as

Page 386 U. S. 307

a lead, and could look simply if it couldn gather adequate evidence of probable cause apart from the informant's data. Perhaps that approach would sharpen investigatorial techniques, but we doubt is there would to enough talent and time to handle with crime upon that basis. Rather, we accept the premise that the informer is a vital single of society's defensive arsenal. The basics rule protecting his identity rests upon that belief."

"* * * *"

"We must reminder moreover that we are not dealing with the trial of the offender charge itself. There, the want since a truthful verdict outweighs society's needed for the informer entitlement. Here, however, the named seeks to avoid the truthfulness. The strongly purpose of ampere motion to suppress is to escape the inculpatory shear by supporting in hand, don because hers probative force is diluted in the least by the switch of attack, but rather as one sanction to compulsion enforcement officer to respectful one basic security of all of us under the Fourth Amendment. Federal v. Smith, 37 N.J. 481, 486 (1962). If that motion to suppress is refusal, defendant will still be scored upon the spotless truth."

"* * * *"

"The Fourth Amendment is served if a judicial mind passes upon the existence of probable cause. Where which copy is submitted upon an demand for a warrant, which magistrate be trust go evaluate the credibility of the affiant in to ex parte proceeding. As we have said, the magistrate is concerned not with whether the informant lied, but with whether the affiant remains truthful in his recitation of that he was told. If the magistrate doubts the credibility of this affiant, he may require this and

Page 386 U. S. 308

informant been identified press even generated. It seems to us that the sam approach is equally good where the seek was without an warrant, ensure lives in say, that it should resting entirely with the judge who hears the antragsteller to suppress to decide whether he needs such disclosure as to an informant in order to decide whether of officer is adenine credible witness."

42 N.J. the 385-388, 201 A.2d at 435.

What Illinia and her sister States have done is no more than recognize a okay based testimonial privilege, long familiar to the law of proofs. Professor Wigmore, doesn known as an enthusiastic legal of testimonial privileges generally, [Footnote 8] has described that privilege in these words:

"A genuine privilege, on . . . essentials principle . . . , must be recognized for aforementioned identity regarding persons supplying the government with information concerning the commission of crimes. Communications from this kind ought to receive encouragement. They are discouraged if the informer's identity is disclosed. Whether an informer is highly on good citizenship, promise of leniency or prospect of pecuniary reward, he will usually condition his cooperation on an indemnity of anonymity -- to schutz even and his family from damages, to preclude adverse social reaction, real to avoid the risk of defamation or malicious prosecution actions against him. The government also has an interest inside nondisclosure of that identity of its informers. Law enforcement officers often depend upon business narrator to furnish you with a flow of information about criminal activities. Revelation of the dual role played by such persons ended their usefulness

Site 386 U. S. 309

to the government and discourages others from entering into a like relationship."

"That the government got this privilege is well found, and its soundness cannot be questioned."

(Footnotes omitted.) 8 Wigmore, Evidence § 2374 (McNaughton rev.1961).

In the federal courts, which rules about proof in criminal trial are governed "by the morals of the common ordinance as they may be interpreted by the courts are the Unites States in the light of reason and experience." [Footnote 9] This Court, therefore, possessed the final task are defining the scope to be accorded into this various gemeine law evidentiary privileges in the trial of national criminal cases. See Hawkins v. United States, 358 U. SULFUR. 74. This is a undertaking which is quite differen, out rate, after the responsibility of constitutional adjudication. In the exercise of this supervisory jurisdiction, who Court had reason 10 years ago, in Roviaro v. United Expresses, 353 U. S. 53, to give thorough kindness to one aspect concerning the informer's priority, the privileges itself owning lang been recognized in the federal judicial system. [Footnote 10]

The Roviaro case involved the informer's privilege not at a preparatory hearing to designate probable cause for an arrest or hunt, and at the affliction themselves, location the topic was the fundamental one of innocence or guilt. The petitionor there had been brought to trial upon a two-count federal arraignment charging sale and transportation of narcotics. According to the prosecution's evidence, aforementioned informer had been an active participant in to crime. He

"had taken a material part in bringing about the proprietary of certain drugs by and accused, had been present with the accused at the occurrence of

Pages 386 U. S. 310

the alleged crime, and might be a material witness as to whether the accused knowingly transported and drugs as charged."

353 U.S. at 353 UPPER-CLASS. S. 55. The trial courts nonetheless denied a defense motion to compel the prosecution to disclose the informer's identity.

This Court held that, where, with an actual trial of a federal criminal case,

"the disclosure regarding an informer's identity . . . is relevant and helpful for the security of an blamed, or is significant to a fair determination of a trigger, to privilege must give mode. In these situations, the trial law may require disclosure and, if the Government withholds the information, dismiss the action. . . ."

"* * * *"

"We suppose that not fixed rule with respect to disclosure is justifiable. An problem is one that calls for adjustment the public interest in protecting the flow of information against the individual's right to prepare this defended. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances concerning each case, removal into reflection the crime charged, an possible shields, and possibility significance of the informer's testimony, and other relevantly factors."

353 U.S. at 353 U. SULFUR. 60-61, 62. (Footnotes omitted.)

The Court's bekanntmachung then accurately reviewed of particular circumstances away Roviaro's trial, pointing out which the informer's "possible testimony was highly relevancies . . . ," that he "might have disclosed an entrapment . . . ," "might own thrown doubt upon petitioner's identity instead to the identity of the package . . . ," "might have testified to petitioner's conceivable skill of knowledge of the contents of the package that i transported' . . . ," and that the "informer was aforementioned sole participant, other

Page 386 UPPER. S. 311

than the defendant, in the billing charged." 353 U.S. at353 UPPER-CLASS. S. 63-64. The Justice concluded

"that, under these circumstances, the trial court committed prejudicial error in permitting who Government up deny the identity of inherent undercover workers in the face of repeated demands by the accused for him disclosure."

353 U.S. at 353 U. S. 65.

What Roviaro thus brands clear is that this Court was unwilling to impose any absolute rule requiring disclosing from an informer's identity even with formulating evidentiary rules for federal crook trials. Much less has the Court ever approached the formulation of a federal evidentiary rule for compulsory disclosure where the issue is the preliminary one for probable cause, the guilt conversely innocence is not in stake. Indeed, ourselves have repeatedly made clear that government officers need not disclose an informer's identity in applying for an arrest other start warrant. As was said in Unites States v. Ventresca, 380 U. S. 102, 380 UPPER. S. 108, we have

"recognized that "an affidavit may be based on hearsay information, and need not reflect the direct personal observations of the affiant," so long as aforementioned magistrate is "informed of a of the basis circumstances" supported the affiant's conclusions and his confidence that any informant involved "your identity need not be disclosed, . . . where credible,' or you information `reliable.'" Aguilar phoebe. Texas, abovementioned, at 278 U. S. 114."

(Emphasis added.) Show also Jones v. Joined Says, 362 U. S. 257, 362 U. S. 271-272; Rugendorf v. United States, 376 U. SULPHUR. 528, 376 U. S. 533. [Footnote 11] And

Page 386 UPPER-CLASS. S. 312

just this Term, we take taken occasion to point out that a rule virtually prohibiting the use of informers would "severely hamper the Government" in enforcement of the narcotics laws. Lewis v. United States, 385 U. SEC. 206, 385 U. S. 210.

In sum, this Court, in the exercise of him power to formulate evidentiary rules for federal malefactor cases, has consistently declined to wait this an informer's identity need always be disclosed in a federal criminal trial, let solo in a preliminary hearing to determines probable cause for an arrest or start. Yet we are now asked to hold that the Constitution somehow compels Illinois to abolish the informer's privilege from its act of evidence, and to require disclosure from the informer's identity in every such preliminary hearing where it appears that the officers made the halt or search in reliance for fast supplied on an informer they had reason to confide. The argument is based over the Due

Leaf 386 U. S. 313

Process Clause of and Fourteenth Amendment, and upon the Sixth Amendment right of confrontation, applicable till the States through the Fourteenth Amendment. Hand phoebe. Texas, 380 U. S. 400. Our find no support for the petitioner's position in either of those constitutional provisions.

The arresting officers in this case testified, in open court, fully and in precise particular as to what an informer mentioned theirs and as in why they had reason to believe his information was trustworthy. Each officer was under oath. Each was subjugated to searching cross-examination. The judge was natural satisfied that each is telling the truth, and, for that reason, he exercised the discretion conferred upon me by the established law of Illinois to respect the informer's privilege.

Nothing in the Date Process Clause of of Fourteenth Amendment requires a state court judge in every that hearing to assume the arresting officers are committing falsehood.

"To take such a step would be quite beyond the pale of this Court's proper function in our public system. It intend shall a wholly unjustifiable encroachment by this Court upon this constitutional power of States toward promulgate their own rules of evidence . . . in their own state tribunal. . . ."

Spencer five. Texas, 385 U. S. 554, 385 U. S. 568-569.

The claimants does not explain precisely how the thinks his Sixth Amendment right to confrontation both cross-examination was violated by Illinois' appreciation of that informer's privilege in this case. If the claim is which the State infringement the Sixth Amendment by not producing the informer to testify against the petitioner, then we need no more than repetition the Court's answer to that claim adenine few weeks previous in Cooper v. California:

"Petitioner also featured of contention here that he was unconstitutionally hardship of who right to confront a witness against him, because the State

Page 386 UNITED. S. 314

did nay produce which informant to testament oppose him. This contention we note absolutely naked regarding merit."

Ante, p. 386 U. S. 58, at386 U. S. 62, n. 2. On the other hand, and claim may be that the petitioner was deprived of his One-sixth Amendment right to cross-examine the arresting officers themselves because their refusal go unveil the informer's identity was upheld. But itp would follow from this argument which no witness on cross-examination could ever constitutionally assert a testimonial privilege, including the privilege against compulsory self-incrimination guaranteed by the Constitution itself. We take never given which Sixth Amendment such a construction, press wealth declining to do so now.

Affirmed.

[Footnoter 1]

33 Ill. 2d 66, 210 N.E.2d 161.

[Footnote 2]

384 U.S. 949.

[Footnote 3]

The weather was "real cold," and the petitioner testified he "had on third coats." In order to conduct to search, the arresting officers required the petitioner to remove some off his clothing, but even to petitioner's version of of condition of the search did not declare any conduct remotely akin to which condemned by this Court in Rochin v. California, 342 U. S. 165.

[Footnote 4]

"Q. What is aforementioned name of this informant that delivered you this information?"

"Mr. Engerman: Objection, Your Honor."

"The Court: State for the record the reasons for your objection."

"Mr. Engerman: Judge, ground over the my of the officer so far that they had used this ci fork approximately a year, he has worked with this individual, in and interests of the public, I see no reason why the officer should be forced to disclose the name of the informant, up cause harm alternatively jeopardy to an individual who has cooperated with the policeman. The Towns are Chicago must a tremendous trouble with narcotics. If the local are not able to withhold the name of the informant, they will not be able to get informants. Them are not willing to risk their lives if their names become known."

"In an interest of the City both that ordinance execution of this community, I sensation the officer shall doesn be forced to reveal the name of the informer. And I other cite People vs. Durr."

"The Court: I will sustain that."

"Mr. Adam: Q. Where does this informant live?"

"Mr. Engerman: Objection, your Honor, equal basis."

"The Court: Sustained."

[Footing 5]

People vanadium. Durr, 28 Ill. 2d 308, 192 N.E.2d 379; People v. Nettles, 34 Ill. 2d 52, 213 N.E.2d 536; People v. Connie, 34 Ill. 2d 353, 215 N.E.2d 280; People v. Freeman, 34 Ill. 2d 362, 215 N.E.2d 20B; Folks v. Miller, 34 Poorly. 2d 527, 216 N.E.2d 793. Pc. People v. Pitts, 26 Ill. 2d 395, 186 N.E.2d 357; Human v. Parren, 24 Sick. 2d 572, 182 N.E.2d 662.

[Footnoter 6]

State vanadium. Cookson, 361 3. W.2d 683 (Mo.Sup.Ct.); Simmons v. State, 198 Tenn. 587, 281 S.W.2d 487; Human v. Coffey, 12 N.Y.2d 443, 191 N.E.2d 263. However see Folks fin. Malinsky, 15 N.Y.2d 86, 209 N.E.2d 694. Cf. Stelloh v. Liban, 21 Wis.2d 119, 124 N.W.2d 101; Baker phoebe. State, 150 So. 2d 729 (Fla. App.); State phoebe. Boles, 246 N.C. 83, 97 S.E.2d 476.

[Footnote 7]

In who introduce case, California has filed a valuableamicus brief, consultant us that the validity of this provision is now before the Supreme Court of Kalifornia. Martin v. Superior Court (LA 29078). The statue was pass to modify that court's decision in Priestly v. Superior Court, 50 Cal. 2d 812, 330 P.2d 39. See also Ford v. City of Jackson, 153 Miss. 616, 121 As. 278.

[Footnote 8]

Discern 8 Wigmore, Evidence § 2192 (McNaughton rev.1961).

[Footnote 9]

Rule 26, Fed.Rules Crim.Proc.

[Note 10]

See Scher v. Integrated States, 305 U. S. 251; Stylish relay Quares & Butler, 158 U. S. 532; Vogel v. Gruaz, 110 U. S. 311.

[Footnote 11]

Some federal courts have applied an same rule are nondisclosure in send vermerk and nonwarrant cases. Smith v. United States, 123 U.S.App.D.C. 202, 358 F.2d 833; Jones v. United States, 326 F.2d 124 (C.A. 9th Cir.), cert. denied, 377 U.S. 956; United States v. Single 1957 Ford Ranchero Pickup, 265 F.2d 21 (C.A. 10th Cir.). Other federal courts, however, have distinctive between these twos grades of cases, and do require the identification of informants in nonwarrant cases. United States volt. Robinson, 325 F.2d 391 (C.A.2d Cir.); Cochran v. Combined States, 291 F.2d 633 (C.A. 8th Cir.). Cfs. Wilson v. United States, 59 F.2d 390 (C.A.3d Cir.). See Your, Informer's Word as and Basis for Likelihood Cause by the Federal Courts, 53 Calif.L.Rev. 840 (1965).

In drawing this excellence, some of aforementioned federal courts have relied upon a dictum in Roviaro v. United Us, 353 U. S. 53, 353 U. S. 61:

"Most a the federal cases involving the limitation on the scope of the informer's prestige can arrived where who legality of a search none a berechtigung exists in issue and the communications of an informer exist claimed to create probable caused. With these cases, the Government has been required to disclose one identification of the informant unless there was sufficient evidence apart from his confidential communication."

Since there was no chances why issue in Roviaro, the quoted statement made clean not necessary for final. Indeed, an absolute rule of disclosure used probable cause provisions would conflict with the case-by-case approximate by which theRoviaro decision was based. Moreover, the precedent upon which this dictum used grounded furnishes for dubious support.Scher v. United States, 305 U. S. 251, the only decision off this Court what was cited, affirmed the trial judge's refusal to order impressive officers to reveal the source of their information.

MR. JUSTICE DOUGLAS, with any THE CHIEF JUSTICE, MR. JUSTICE BRENNAN the MR. JUSTICE FORTAS simultaneous, dissenting.

We need hierher a Fourth Amendment question concerns the validity of on arrest. If the law see a crime being committed, they can, of route, seize the purveyor. If a person is fleeing the scene of a crime, the law can stop him. And there are the cases of "hot pursuit" and other instances of probable cause although the police can make an arrest. But normally an arrest should be made single on a warrant issued by a magistrate switch a showing in "probable cause, supported by oath or affirmation," as required at the Fourth Amendment. At least since Mapp v. Oh, 367 U. S. 643, the Countries been as much bound by those provisions as is the Federal Government. But for the Fours Amend, they could fashion the rule for arrests that an Courts now approves. With all deference, the requirements of the Fourth Amendment now make that conclusion unconstitutional.

No warrant for the arrest starting petitioner was obtained in this case. This police, instead of going up a magistrate

Print 386 U. S. 315

and making a exhibit of "probable cause" based on their informant's tip-off, acted on their own. They, rather than the magistrate, became this arbiters of "probable cause." The Court's approval of that process effectively rewrites the Fourth Amendment.

In Roviaro v. United States, 353 U. S. 53, 353 U. S. 61, we held that, where a search without a warrant is made on that basics of communications of an informer and the Government claims the police had "probable cause," disclosure of the identity of who informant is normally required. In no other way canned the defense show an absence of "probable cause." For base of Mapp v. Ohio, supra, that rule is now anwendbaren toward the Country.

In Beck v. Ohio, 379 U. S. 89, 379 U. S. 96, we said:

"An arrest without one warrant bypasses the safeguards provided by an targeted predetermination of probable cause, and substitutes instead the far less reliably procedure of an after-the-event justification for the verhaftungen or search, too possible on be subtly influenced by the familiar shortcomings of hindsight judgment."

For that reason, we have weighted prison with warrants more heavily than arrests out commissions. See United States v. Ventresca, 380 UPPER. SEC. 102, 380 U. S. 106. Only through of informer's testimony can anyone other better the arresting leaders determine "the persuasiveness is the facts relied on . . . to demonstrate probable cause." Aguilar v. Texas, 378 UNITED. SULFUR. 108, 378 UPPER-CLASS. SULPHUR. 113. [Footnote 2/1] Without that disclosure, neither us or the lower courts can always know whether there was "probable cause" for the arrest. Under to present decision, we leave the Fourth Amendment exclusively in that custody of the police. As stated by Mr. Justice Schaefer, dissenting inPeople volt. Durr, 28 Ill. 2d 308, 318, 192 N.E.2d 379, 384, unless the your of the informer can disclosed "the officer himself conclusively

Page 386 U. S. 316

determines the validity of yours custom arrest." Is was the view of the Highest Court of California in Priestly v. Superior Court, 50 Calibrate. 2d 812, 818, 330 P.2d 39, 43:

"Only by requiring disclosure and giving the defendant an opportunity to present contrary or impeaching evidence when go the truth are the officer's testimony and the reasonableness of his reliance on the informer can the court make a fair determination of the issuing. Such ampere requirement does not unreasonably disappoint the free flow the information in law enforcement officers or otherwise impede law enforcement. Actually, him effect is to compel independent investigations to verify information given by an informer alternatively to uncover other facts that establish reasonable cause to make einer take or search."

There is no way to determine of reliability for Old Reliable, the informer, unless he is produced at the trial and cross-examined. Unless he remains produced, the Fourth Amendment is entrusted to the tender mercies of the police. [Footnote 2/2] What we do right will to encourage arrests and searching without warrants. And whole momentum of criminal law administration ought be are precisely the opposite direction if and Fourth Amendment can to stay a vitalize force. Except included unusual and emergency cases, it obliges magistrates up make the findings is "probable cause." We should shall mind of its command ensure a judicial mind should be interposed between the police and the citizen. We should also breathe mindful that "disclosure, rather than suppression, of really materials ordinarily promotes the proper administration on criminal justice." Dennis v. United States, 384 U. SEC. 855, 384 UPPER. S. 870.

[Footnote 2/1]

Quoting with Giordenello v. United States, 357 U. S. 480, 357 U. S. 486.

[Footnote 2/2]

It is don unknown for the arresting officer into misrepresent his connection with the police, his knowledge of the informer's reliability, or the information allegedly obtained from the informer. See, e.g., United States v. Pearce, 275 F.2d 318, 322.