380 U.S.

102
85 S.Ct. 741
13 L.Ed.2d 684

UNITED STATES, Petitioner,

v.
Giacomo VENTRESCA.
No. 28.
Argued Jan. 18 and 19, 1965.
Decided March 1, 1965.

Frank I. Goodman, Beverly Hills, Cal., for petitioner.

Matthew R. McCann, Worcester, Mass., for respondent.
Mr. Justice GOLDBERG delivered the opinion of the Court.

Respondent, Ventresca, was convicted in the United States District Court for
the District of Massachusetts of possessing and operating an illegal distillery.
The conviction was reversed by the Court of Appeals (one judge dissenting) on
the ground that the affidavit for a search warrant pursuant to which the still was
found was insufficient to establish probable cause. 324 F.2d 864.

The affidavit upon which the warrant was issued was made and submitted to a
United States Commissioner on August 31, 1961, by Walter Mazaka, an
Investigator for the Alcohol and Tobacco Tax Division of the Internal Revenue
Service. He stated that he had reason to believe that an illegal distillery was in
operation in respondent, Ventresca's, house at 148 1/2 Coburn Avenue in
Worcester, Massachusetts. The grounds for this belief were set forth in detail in
the affidavit, prefaced with the following statement:

'Based upon observations made by me, and based upon information received
officially from other Investigators attached to the Alcohol and Tobacco Tax
Division assigned to this investigation, and reports orally made to me
describing the results of their observations and investigation, this request for
the issuance of a search warrant is made.'

The affidavit then described seven different occasions between July 28 and
August 30, 1961, when a Pontiac car was driven into the yard to the rear of
Ventresca's house. On four occasions the car carried loads of sugar in 60-pound
bags; it made two trips loaded with empty tin cans; and once it was merely
observed as being heavily laden. Garry, the car's owner, and Incardone, a
passenger, were seen on several occasions loading the car at Ventresca's house
and later unloading apparently full five-gallon cans at Garry's house late in the
evening. On August 28, after a delivery of empty tin cans to Ventresca's house,
Garry and Incardone were observed carrying from the house cans which
appeared to be filled and placing them in the trunk of Garry's car. The affidavit
went on to state that at about 4 a.m. on August 18, and at about 4 a.m. on
August 30, 'Investigators' smelled the odor of fermenting mash as they walked
along the sidewalk in front of Ventresca's house. On August 18 they heard, '(a)t
or about the same time, * * * certain metallic noises.' On August 30, the day
before the warrant was applied for, they heard (as they smelled the mash)
'sounds similar to that of a motor or a pump coming from the direction of'
Ventresca's house. The affidavit concluded: 'The foregoing information is based
upon personal knowledge and information which has been obtained from
Investigators of the Alcohol and Tobacco Tax Division, Internal Revenue
Service, who had been assigned to this investigation.'

The District Court upheld the validity of the warrant on a motion to suppress.
The divided Court of Appeals held the warrant insufficient because it read the
affidavit as not specifically stating in so many words that the information it
contained was based upon the personal knowledge of Mazaka or other reliable
investigators. The Court of Appeals reasoned that all of the information recited
in the affidavit might conceivably have been obtained by investigators other
than Mazaka, and it could not be certain that the information of these other
investigators was not in turn based upon hearsay received from unreliable
informants rather than their own personal observations. For this reason the
court found that probable cause had not been established. 324 F.2d, at 868
870. We granted certiorari to consider the standards by which a reviewing court
should approach the interpretation of affidavits supporting warrants which have
been duly issued by examining magistrates. 377 U.S. 989, 84 S.Ct. 1910, 12
L.Ed.2d 1043. For the reasons stated below, we reverse the judgment of the
Court of Appeals.

I.
The Fourth Amendment states:

'The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things
to be seized.'1

We begin our analysis of this constitutional rule mindful of the fact that in this
case a search was made pursuant to a search warrant. In discussing the Fourth
Amendment policy against unnecessary invasions of privacy, we stated in
Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723:

'An evaluation of the constitutionality of a search warrant should begin with the
rule that 'the informed and deliberate determinations of magistrates empowered
to issue warrants * * * are to be preferred over the hurried action of offices * *
* who may happen to make arrests.' United States v. Lefkowitz, 285 U.S. 452,
464, 52 S.Ct. 420, 423, 76 L.Ed. 877. The reasons for this rule go to the
foundations of the Fourth Amendment.' 378 U.S., at 110111, 84 S.Ct., at
1512.

In Jones v. United States, 362 U.S. 257, 270, 80 S.Ct. 725, 735, 4 L.Ed.2d 697,
this Court, strongly supporting the preference to be accorded searches under a
warrant, indicated that in a doubtful or marginal case a search under a warrant
may be sustainable where without one it would fall. In Johnson v. United
States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, and Chapman v. United States,
365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828, the Court, in condemning searches
by officers who invaded premises without a warrant, plainly intimated that had
the proper course of obtaining a warrant from a magistrate been followed and
had the magistrate on the same evidence available to the police made a finding
of probable cause, the serch under the warrant would have been sustained. Mr.
Justice Jackson stated for the Court in Johnson:

10

'The point of the Fourth Amendment, which often is not grasped by zealous
officers, is not that it denies law enforcement the support of the usual
inferences which reasonable men draw from evidence. Its protection consists in
requiring that those inferences be drawn by a neutral and detached magistrate
instead of being judged by the officer engaged in the often competitive
enterprise of ferreting out crime. Any assumption that evidence sufficient to
support a magistrate's disinterested determination to issue a search warrant will
justify the officers in making a search without a warrant would reduce the
Amendment to a nullity and leave the people's homes secure only in the
discretion of police officers.' Johnson v. United States, supra, 333 U.S., at 13
14, 68 S.Ct., at 369.

11

The fact that exceptions to the requirement that searches and seizures be
undertaken only after obtaining a warrant are limited2 underscores the
preference accorded police action taken under a warrant as against searches and
seizures without one.

12

While a warrant may issue only upon a finding of 'probable cause,' this Court
has long held that 'the term 'probable cause' * * * means less than evidence
which would justify condemnation,' Locke v. United States, 7 Cranch 339, 348,
3 L.Ed. 364, and that a finding of 'probable cause' may rest upon evidence
which is not legally competent in a criminal trial. Draper v. United States, 358
U.S. 307, 311, 79 S.Ct. 329, 332, 3 L.Ed.2d 327. As the Court stated in
Brinegar v. United States, 338 U.S. 160, 173, 69 S.Ct. 1302, 1309, 93 L.Ed.
1879, 'There is a large difference between the two things to be proved (guilt and
probable cause), as well as between the tribunals which determine them, and
therefore a like difference in the quanta and modes of proof required to
establish them.' Thus hearsay may be the basis for issuance of the warrant 'so
long as there * * * (is) a substantial basis for crediting the hearsay.' Jones v.
United States, supra, 362 U.S., at 272, 80 S.Ct., at 736. And, in Aguilar we
recognized that 'an affidavit may be based on hearsay information and need not
reflect the direct personal observations of the affiant,' so long as the magistrate
is 'informed of some of the underlying circumstances' supporting the affiant's
conclusions and his belief that any informant involved 'whose identity need not
be disclosed * * * was 'credible' or his information 'reliable." Aguilar v. State of
Texas, supra, 378 U.S., at 114, 84 S.Ct., at 1514.

13

These decisions reflect the recognition that the Fourth Amendment's

commands, like all constitutional requirements, are practical and not abstract. If
the teachings of the Court's cases are to be followed and the constitutional
policy served, affidavits for search warrants, such as the one involved here,
must be tested and interpreted by magistrates and courts in a commonsense and
realistic fashion. They are normally drafted by nonlawyers in the midst and
haste of a criminal investigation. Technical requirements of elaborate
specificity once exacted under common law pleadings have no proper place in
this area. A grudging or negative attitude by reviewing courts toward warrants
will tend to discourage police officers from submitting their evidence to a
judicial officer before acting.

14

This is not to say that probable cause can be made out by affidavits which are
purely conclusory, stating only the affiant's or an informer's belief that probable
cause exists without detailing any of the 'underlying circumstances' upon which
that belief is based. See Aguilar v. State of Texas, supra. Recital of some of the
underlying circumstances in the affidavit is essential if the magistrate is to

perform his detached function and not serve merely as a rubber stamp for the
police. However, where these circumstances are detailed, where reason for
crediting the source of the information is given, and when a magistrate has
found probable cause, the courts should not invalidate the warrant by
interpreting the affidavit in a hypertechnical, rather than a commonsense,
manner. Although in a particular case it may not be easy to determine when an
affidavit demonstrates the existence of probable cause, the resolution of
doubtful or marginal cases in this area should be largely determined by the
preference to be accorded to warrants. Jones v. United States, supra, 362 U.S.,
at 270, 80 S.Ct., at 735.
II.
15

The application of the principles stated above leads us to reverse the Court of
Appeals. The affidavit in this case, if read in a commonsense way rather than
technically, shows ample facts to establish probable cause and allow the
Commissioner to issue the search warrant. The affidavit at issue here, unlike
the affidavit held insufficient in Aguilar, is detailed and specific. It sets forth
not merely 'some of the underlying circumstances' supporting the officer's
belief, but a good many of them. This is apparent from the summary of the
affidavit already recited and from its text which is reproduced in the Appendix.

16

The Court of Appeals did not question the specificity of the affidavit. It rested
its holding that the affidavit was insufficient on the ground that '(t) he affidavit
failed to clearly indicate which of the facts alleged therein were hearsay or
which were within the affiant's own knowledge,' and therefore '(t)he
Commissioner could only conclude that the entire affidavit was based on
hearsay.' 324 F.2d, at 868. While the Court of Appeals recognized that an
affidavit based on hearsay will be sufficient, 'so long as a substantial basis for
crediting the hearsay is presented,' Jones v. United States, supra, 362 U.S., at
269, 80 S.Ct., at 735, it felt that no such basis existed here because the hearsay
consisted of reports by 'Investigators,' and the affidavit did not recite how the
Investigators obtained their information. The Court of Appeals conceded that
the affidavit stated that the Investigators themselves smelled the odor of
fermenting mash, but argued that the rest of their information might itself have
been based upon hearsay thus raising 'the distinct possibility of hearsay-uponhearsay.' 324 F.2d, at 869. For this reason, it held that the affidavit did not
establish probable cause.

17

We disagree with the conclusion of the Court of Appeals. Its determination that
the affidavit might have been based wholly upon hearsay cannot be supported
in light of the fact that Mazaka, a Government Investigator, swore under oath

that the relevant information was in part based 'upon observations made by me'
and 'upon personal knowledge' as well as upon 'information which has been
obtained from Investigators of the Alcohol and Tobacco Tax Division, Internal
Revenue Service, who have been assigned to this investigation.' It also seems to
us that the assumption of the Court of Appeals that all of the information in
Mazaka's affidavit may in fact have come from unreliable anonymous
informers passed on to Government Investigators, who in turn related this
information to Mazaka is without foundation. Mazaka swore that, insofar as the
affidavit was not based upon his own observations, it was 'based upon
information received officially from other Investigators attached to the Alcohol
and Tobacco Tax Division assigned to this investigation, and reports orally
made to me describing the results of their observations and investigation.'
(Emphasis added.) The Court of Appeals itself recognized that the affidavit
stated that "Investigators' (employees of the Service) smelled the odor of
fermenting mash in the vicinity of the suspected dwelling.' 324 F.2d, at 869. A
qualified officer's detection of the smell of mash has often been held a very
strong factor in determining that probable cause exists so as to allow issuance of
a warrant.3 Moreover, upon reading the affidavit as a whole, it becomes clear
that the detailed ovservations recounted in the affidavit cannot fairly be
regarded as having been made in any significant part by persons other than fulltime Investigators of the Alcohol and Tobacco Tax Division of the Internal
Revenue Service. Observations of fellow officers of the Government engaged
in a common investigation are plainly a reliable basis for a warrant applied for
by one of their number.4 We conclude that the affidavit showed probable cause
and that the Court of Appeals misapprehended its judicial function in reviewing
this affidavit by giving it an unduly technical and restrictive reading.
18

This Court is alert to invalidate unconstitutional searches and seizures whether

with or without a warrant. See Aguilar v. State of Texas, supra; Stanford v.
State of Texas, 379 U.S. 476, 85 S.Ct. 506; Preston v. United States, 376 U.S.
364, 84 S.Ct. 881, 11 L.Ed.2d 777; Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct.
223, 13 L.Ed.2d 142. By doing so, it vindicates individual liberties and
strengthens the administration of justice by promoting respect for law and
order. This Court is equally concerned to uphold the actions of law enforcement
officers consistently following the proper constitutional course. This is no less
important to the administration of justice than the invalidation of convictions
because of disregard of individual rights or official overreaching. In our view
the officers in this case did what the Constitution requires. They obtained a
warrant from a judicial officer 'upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the * * *
things to be seized.' It is vital that having done so their actions should be
sustained under a system of justice responsive both to the needs of individual

liberty and to the rights of the community.

19

Reversed.

APPENDIX TO OPINION OF THE COURT.

AFFIDAVIT FOR SEARCH WARRANT
20

BEFORE W. ARTHUR GARRITY, Worcester, Massachusetts

21

The undersigned being duly sworn deposes and says:

22

That he has reason to believe that on the premises known as a one-family light
green wooden frame dwelling house located at 148 1/2 Coburn Avenue,
Worcester, occupied by Giacomo Ventresca and his family, together with all
approaches and appurtenances thereto, in the District of Massachusetts, there is
now being concealed certain property, namely an unknown quantity of material
and certain apparatus, articles and devices, including a still and distilling
apparatus setup with all attachments thereto, together with an unknown quantity
of mash, an unknown quantity of distilled spirits, and other material used in the
manufacture of non-tax-paid liquors; which are being held and possessed, and
which have been used and are intended for use, in the distillation, manufacture,
possession, and distribution of non-taxpaid liquors, in violation of the
provisions of 26 USC 5171(a), 5173, 5178, 5179(a), 5222(a), 5602, and 5686.

23

And that the facts tending to establish the foregoing grounds for issuance of a
Search Warrant are as follows:

SEE ATTACHED SHEET

24

/s/ WALTER A. MAZAKA Investigator, Alcohol and Tobacco Tax Div.,

Internal Revenue Service

25

Sworn to before me, and subscribed in my presence, August 31st, 1961

26

/s/ W. ARTHUR GARRITY United States Commissioner

27

Based upon observations made by me, and based upon information received
officially from other Investigators attached to the Alcohol and Tobacco Tax
Division assigned to this investigation, and reports orally made to me
describing the results of their observations and investigation, this request for

the issuance of a search warrant is made.

28

On or about July 28, 1961, about 6:45 P.M., an observation was made covering
a Pontiac automobile owned by one Joseph Garry. Garry and one Joseph
Incardone put thirteen bags of sugar into the car. These bags of sugar weighed
sixty pounds each. Ten such bags were put into the trunk, and three were placed
in the rear seat. Those in the rear seat were marked 'Domino.' The others
appeared to have similar markings. After the sugar was loaded into the car,
Garry together with Incardone drove it to the vicinity of 148 Coburn Avenue,
Worcester, Massachusetts, where the car was parked. Some time later, the car
with its contents was driven into the yard to the rear of 148 and between the
premises 148 and 148 1/2 Coburn Avenue. After remaining there about twentyfive minutes, the same two men drove in the direction of Boston.

29

On August 2, 1961 a Pontiac car owned by Garry, and driven by Garry with
Incardone as a passenger, was followed from Boston to Worcester. The car
appeared heavily laden. The car was again driven into the driveway at 148 and
148 1/2 Coburn Avenue to the rear of the yard and between the abovenumbered houses.

30

On August 7, 1961 at least six sixty-pound bags of Domino Sugar were loaded
into the Pontiac owned by Garry. The loading was done by Garry and
Incardone. The car traveled from Boston to Worcester, then to Holden, and
returned with its contents and entered the driveway at 148 and 148 1/2 Coburn
Avenue, where the car was parked at the rear between the two houses.

31

On August 11, 1961 new empty metal or tin cans were transferred from a car
owned by Incardone to the Pontiac owned by Garry on Highland Street in Hyde
Park. The Pontiac was driven by Garry with Incardone as a passenger to
Worcester, and into the yard at 148 and 148 1/2 Coburn Avenue to the rear and
between the two numbered premises.

32

On August 16, 1961 the Pontiac was observed. In the back seat bags of sugar
were observed covered with a cloth or tarpaulin. A sixty-pound bag of sugar
was on the front seat. Garry was observed after loading the above-described
sugar into the car placing a carton with various five-pound bags of sugar on the
top of the tarpaulin. The car was then driven by Garry with Incardone as a
passenger to Worcester together with its contents into the yard at 148 and 148
1/2 Coburn Avenue to the rear of and between the two houses. About Midnight
on the same night, the Pontiac driven by Garry with Incardone as a passenger
was seen pulling up to the premises at 59 Highland Street, Hyde Park, where

Garry lives. Garry opened the trunk of his car, and removed ten five-gallon
cans therefrom, and placed them on the sidewalk. He then entered the house,
and opened a door on the side. Incardone made five trips from the sidewalk to
the side of the house carrying two five-gallon cans on each such trip. It
appeared that the cans were filled. On each of these trips, Incardone passed the
two cans to someone standing in the doorway. Immediately after the fifth such
trip, Garry came out of the door and joined Incardone. They walked to the
sidewalk, and talked for a few moments. Incardone then drove away, and Garry
went into his home.
33

On August 18, 1961 Investigators smelled an odor of fermenting mash on two

occasions between 4:00 a.m. and 5:00 a.m. The first such odor was detected as
they walked along the sidewalk in front of 148 Coburn Avenue, and the second
such odor was detected from the side of 148 Coburn Avenue. At or about the
same time, the Investigators heard certain metallic noises which cannot be
further identified by source or sound.

34

On August 24, 1961 the Pontiac was observed parked at a bowling alley and
coffee shop off Route 9. The back of the car contained what appeared to be
boxes covered by a cloth or tarpaulin, but which cannot be more specifically
identified. On the front seat of the car was observed a sixty-pound bag of
Revere Sugar. Garry and Incardone were observed in the restaurant or coffee
shop eating. Later the car was seen driven to the rear of 148 between 148 and
148 1/2 Coburn Avenue, Worcester.

35

About Midnight the Pontiac was observed pulling up in front of Garry's house
at 59 Highland Street, Hyde Park. Garry was driving, and Incardone was a
passenger. They both got out of the car. Garry opened the trunk, and then
entered his house. From the trunk of the car there was removed eleven fivegallon cans which appeared to be filled. Incardone made six trips to a door on
the side of the house. He carried two five-gallon cans on each trip, except the
sixth trip. On that trip he carried one can, having passed the others to somebody
in the doorway, and on the last trip he entered the house. He remained there at
least forty-five minutes, and was not observed to leave.

36

On August 28, 1961 Garry drove Incardone in his car to Worcester. On Lake
Ave. they met Giacomo Ventresca, who lives at 148 1/2 Coburn Avenue,
Worcester. Ventresca entered the car driven by Garry. The car was then driven
into the yard to the rear of 148 and between 148 and 148 1/2 Coburn Avenue.
An observation was made that empty metal cans, five-gallon size, were being
taken from the car owned by Garry, and brought into the premises at 148 1/2
Coburn Avenue, which was occupied by Ventresca. Later, new cans similar in

size, shape and appearance were observed being placed into the trunk of
Garry's car while parked at the rear of 148 and in front of 148 1/2 Coburn
Avenue. The manner in which the cans were handled, and the sound(s) which
were heard during the handling of these cans, were consistent with that of cans
containing liquid.
37

On August 30, 1961, at about 4:00 A.M., an odor of fermenting mash was
detected while Investigators were walking on the sidewalk in front of 148
Coburn Avenue. At the same time, they heard sounds similar to that of a motor
or a pump coming from the direction of 148 1/2 Coburn Avenue.

38

The foregoing information is based upon personal knowledge and information

which has been obtained from Investigators of the Alcohol and Tobacco Tax
Division, Internal Revenue Service, who have been assigned to this
investigation.

39

/s/ WALTER A. MAZAKA

40

Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE concurs, dissenting.

41

With all deference, the present affidavit seems hopelessly inadequate to me as a

basis for a magistrate's informed determination that a search warrant should
issue.

42

We deal with the constitutional right of privacy that can be invaded only on a
showing of 'probable cause' as provided by the Fourth Amendment. That is a
strict standard; what the police say does not necessarily carry the day; 'probable
cause' is in the keeping of the magistrate. Giordenello v. United States, 357
U.S. 480, 486487, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503; Johnson v. United
States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436. Yet anything he says
does not necessarily go either. He too is bound by the Constitution. His
discretion is reviewable. Aguilar v. State of Texas, 378 U.S. 108, 111, 84 S.Ct.
1509, 1512, 12 L.Ed.2d 723. But unless the constitutional standard of 'probable
cause' is defined in meticulous ways, the discretion of police and of magistrates
alike will become absolute. The present case, illustrates how the mere weight
of lengthy and vague recitals takes the place of reasonably probative evidence
of the existence of crime.

I.
43

Investigator Mazaka sought a warrant for the purpose of searching the premises

at 148 1/2 Coburn Avenue, occupied by respondent and his family, because, he
averred, he had reason to believe that there was concealed on the premises an
illegal still and other material connected with the manufacture of nontax-paid
liquors. The grounds for this belief were recited in 12 paragraphs on an attached
sheet, as reproduced in the Appendix to the Court's opinion, ante, p. 112.
44

The factual recitals comprise 10 paragraphs, each paragraph setting forth the
alleged events of a single day, except that August 24, 1961, is dealt with in two
paragraphs. Of these factual recitals more will be said in a moment. The first
and last paragraphs of the 12 describe the sources from which the affiant has
gained the information set forth in the factual paragraphs. These sources are,
according to the first paragraph, three in number: (1) 'observations made by
me'; (2) 'information received officially from other Investigators'; and (3)
'reports orally made to me (by other investigators) describing the results of their
observations and investigation.' In the last paragraph the affiant describes the
sources of his information slightly differently: 'The foregoing information is
based upon personal knowledge and information which has been obtained from
Investigators * * *.'

45

Of the 10 factual paragraphs eight describe trips said to have been made to and
from the vicinity of 148 1/2 Coburn Avenue by one Garry and one Incardone.
On these trips, it is said, there were delivered to the vicinity of 148 1/2 Coburn
Avenue large quantities of sugar (four deliveries) and empty metal cans (two
deliveries, on one of which respondent himself is said to have been a passenger
in the car); on one occasion it was observed only that the car was 'heavily
laden.' It is said that on two occasions Garry and Incardone were seen taking
apparently filled cans into Garry's house, 59 Highland Street, from the Pontiac;
on one such occasion the Pontiac, it is said, had been at Coburn Avenue earlier
in the day, apparently making a sugar delivery. And, finally, it is averred that
on one occasion seemingly filled cans were loaded into the Pontiac near 148
1/2 Coburn Avenue, shortly after a delivery of empties to that address.

46

The 'facts' recited in these eight paragraphs, it is said, permit the inference that
a still was being operated on respondent's premises. But are these 'facts' really
facts? A statement of 'fact' is only as credible as its source. Investigator Mazaka
evidently believes these statements to be correct; but the magistrate must, of
course, know something of the basis of that belief. Nathanson v. United States,
290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159. Is the belief of this affiant based on
personal observation, or on hearsay, or on hearsay on hearsay? Nowhere in the
affidavit is the source of these eight paragraphs of information revealed. In each
paragraph the alleged events are simply described directly, or else it is said that
certain events 'were observed.' Scarcely a clue is given as to who the observer

might have been. It might have been the affiant, though one would not expect
that he would so studiously refrain from revealing that he himself witnessed
these events. The observers might have been some other investigators, though
the affiant does not say so; yet in the two paragraphs next to be discussed the
observers are prominently identified as investigators. Perhaps the ultimate
source of most of these statements was one or more private citizens, who were
interviewed by investigators, whose reports on these interviews came in due
course to Investigator Mazaka, who then composed the affidavit. Perhaps many
of the 'facts' recited in the affidavit were supplied by an unknown informant
over the telephone.
47

In most instances the language of the affidavit suggests that some investigator
witnessed the alleged events. For example, the second paragraph begins: 'On or
about July 28, 1961, about 6:45 P.M., an observation was made covering a
Pontiac automobile owned by one Joseph Garry.' But the presumed investigator
who may have been 'covering' this automobile is in no way identified. There is
no way of knowing whether the report of this alleged observation was made
directly to the affiant or whether it went through one or more intermediaries.

48

Turning now to the remaining two 'factual' paragraphs, we find it averred that
'Investigators' smelled formenting mash and heard metallic and other noises in
the vicinity of 148 1/2 Coburn Avenue. On August 18, it is said, investigators
twice smelled mash between 4 and 5 a.m. as they walked on the sidewalk in
front of and beside the house at 148 Coburn Avenue, which is apparently the
house next to respondent's. The 'Investigators' are not further identified. On
August 30 at about 4 a.m., it is averred, unidentified investigators detected the
odor of fermenting mash while they were 'walking on the sidewalk in front of
148 Coburn Avenue.' The source of the odor is again not specified; but sounds
heard at the same time, similar to the sounds made by 'a motor or a pump,' are
stated to have come 'from the direction of 148 1/2 Coburn Avenue.'

49

Such is the substance of the affidavit. No particular item of information is

identified as within the first-hand knowledge of the affiant. Certain smells and
sounds are explicitly described as having been directly perceived by unnamed
investigators. The sources of all the other information are left to speculation.

50

The Court's unconcern over the failure of the affidavit to identify the sources of
the information recited seems based in part on the detailed, lengthy nature of
the factual recitals. The Court seems to say that even if we assume that only
some small part of the information is trustworthy, still enough remains to
establish probable cause. But I would direct attention to the fact that only one of
the 12 paragraphs in this affidavit definitely points the finger of suspicion at

148 1/2 Coburn Avenue: that is the paragraph describing the alleged events of
August 28, 1961. In every other paragraph the recitals point no more to 148 1/2
Coburn Avenue than they do to 148 Coburn Avenue. The August 28 paragraph
is critical to the finding of the existence of probable cause for the search of 148
1/2 Coburn Avenue. Yet the source of the information contained in that
paragraph is in no way identified and it is therefore impossible to determine the
truthworthiness of that crucial information.
II.
51

A discussion of the legal principles governing the sufficiency of this affidavit

must, unhappily, begin with Draper v. United States, 358 U.S. 307, 79 S.Ct.
329, 3 L.Ed.2d 327. There an officer had been told by an informer, known to
the officer to be reliable, that a man of a certain description would get off a
certain train with heroin in his possession. The officer met the train, observed a
man of that description getting off, and arrested him. The Court held that there
was probable cause for the arrest. In Jones v. United States, 362 U.S. 257, 80
S.Ct. 725, 4 L.Ed.2d 697, the Court applied the holding in Draper to find an
affidavit sufficient to establish probable cause for the issuance of a search
warrant, even though the facts stated in the affidavit did not rest on the affiant's
personal observations but rather on the observations of another. The Court held
that an affidavit could rest on hearsay, 'so long as a substantial basis for
crediting the hearsay is presented.' Id., at 269, 80 S.Ct., at 735. (Emphasis
supplied.) In Jones the basis for crediting the informant's hearsay was: (1) the
affiant swore that the informant had previously given information to him which
was correct; (2) the affiant had been given corroborating information by other
informants; and (3) the affiant was independently familiar with the persons
claimed by the informants to be concealing narcotics in their apartment, and he
knew them to have admitted to the use of narcotics.

52

I dissented from the decisions of the Court in these two cases, for the reasons
which I set forth most fully in Draper, supra, 358 U.S., at 314 et seq., 79 S.Ct.,
at 333. But though I regard these decisions* as taking a view destructive of the
guarantees of the Fourth Amendment, they are in any event clearly not
dispositive of the present case. As I have already shown, the affidavit here does
not set forth a single corroborating fact that is sworn to be within the personal
knowledge of the affiant. Moreover, there is not a single statement in the
affidavit that could not well be hearsay on hearsay or some other multiple form
of hearsay.

53

We are told, however, that it is at least clear that 'Investigators' detected the
smell of mash in the vicinity of 148 1/2 Coburn Avenue. And the Court says:

'Observations of fellow officers of the Government engaged in a common

investigation are plainly a reliable basis for a warrant applied for by one of their
number,' ante, p. 111. But I would make Taylor v. United States, 286 U.S. 1, 6,
52 S.Ct. 466, 467, 76 L.Ed. 951, my starting point, where the Court stated:
'Prohibition officers may rely on a distinctive odor as a physical fact indicative
of possible crime; but its presence alone does not strip the owner of a building
of constitutional guaranties against * * * unreasonable search.' In Johnson v.
United States, 333 U.S. 10, 13, 68 S.Ct. 367, 369, 92 L.Ed. 436, the Court
explained what the decision in Taylor meant: 'That decision held only that
odors alone do not authorize a search without warrant. If the presence of odors
is testified to before a magistrate and he finds the affiant qualified to know the
odor, and it is one sufficiently distinctive to identify a forbidden substance, this
Court has never held such a basis insufficient to justify issuance of a search
warrant.' (Emphasis supplied.) It is hardly necessary to point out that a
magistrate cannot begin to assess the odor-identifying qualifications of persons
whose identity is unknown to him. Nor is it necessary to belabor the point that
these odors of mash are not ever stated in the affidavit to have emanated from
148 1/2 Coburn Avenue.
III.
54

The Court of Appeals was surely correct when it observed that 'the affidavit
leaves as a complete mystery the manner in which the Investigators discovered
their information.' 324 F.2d 864, 869. Such being the case, I see no way to
avoid the conclusion of the majority below: 'If hearsay evidence is to be relied
upon in the preparation of an affidavit for a search warrant, the officer or
attorney preparing such an affidavit should keep in mind that hearsay
statements are only as credible as their source and only as strong as their
corroboration. And where the source of the information is in doubt and the
corroboration by the affiant is unclear, the affidavit is insufficient.' Id., at 869
870. That conclusion states a relatively clear standard of probable cause and
is in sharp contrast to the amorphous one upon which today's decision rests.

55

In Jones v. United States, supra, this Court forgot, as it forgets again today, that
the duty of the magistrate is not delegable to the police. Nathanson v. United
States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159. It is for the magistrate, not the
police, to decide whether there is probable cause for the issuance of the
warrant. That function cannot be discharged by the magistrate unless the police
first discharge their own, different responsibility: 'to evidence what is reliable
and why, and not to introduce a hodge-podge under some general formalistic
coverall.' 324 F.2d at 870. And see Masiello v. United States, 113
U.S.App.D.C. 32, 304 F.2d 399, 401402. That is the duty of the policethe

rest is not for them.

56

I would affirm the decision below.

The Fourth Amendment's policy against unreasonable searches and seizures

finds expression in Rule 41 of the Federal Rules of Criminal Procedure.

The exceptions are illustrated by cases in which 'seizure is impossible except

without warrant,' Carroll v. United States, 267 U.S. 132, 156, 45 S.Ct. 280, 286,
69 L.Ed. 543, such as a search of a moving object where 'it is not practicable to
secure a warrant, because the vehicle can be quickly moved out of the locality
or jurisdiction in which the warrant must be sought,' Carroll v. United States,
supra, at 153, 45 S.Ct., at 285, and those in which search is incident to a lawful
arrest. This latter exception is itself a limited one. We stated in Preston v.
United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777:
'Unquestionably, when a person is lawfully arrested, the police have the right,
without a search warrant, to make a contemporaneous search of the person of
the accused for weapons or for the fruits of or implements used to commit the
crime. Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 344, 58 L.Ed.
652 (1914); Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed.
145 (1925). This right to search and seize without a search warrant extends to
things under the accused's immediate control, Carroll v. United States, supra,
267 U.S., at 158, 45 S.Ct. at 287, 69 L.Ed. 543, and, to an extent depending on
the circumstances of the case, to the place where he is arrested, Agnello v.
United States, supra, 269 U.S. at 30, 46 S.Ct. at 5, 70 L.Ed. 145; Marron v.
United States, 275 U.S. 192, 199, 48 S.Ct. 74, 77, 72 L.Ed. 231 (1927); United
States v. Rabinowitz, 339 U.S. 56, 6162, 70 S.Ct. 430, 433, 94 L.Ed. 653
(1950). The rule allowing contemporaneous searches is justified, for example,
by the need to seize weapons and other things which might be used to assault an
officer or effect an escape, as well as by the need to prevent the destruction of
evidence of the crimethings which might easily happen where the weapon or
evidence is on the accused's person or under his immediate control. But these
justifications are absent where a search is remote in time or place from the
arrest. Once an accused is under arrest and in custody, then a search made at
another place, without a warrant, is simply not incident to the arrest.' 376 U.S.,
at 367, 84 S.Ct., at 883.

See, e.g., Monnette v. United States, 299 F.2d 847, 850 (C.A.5th Cir.). Cf.
Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828; Steeber
v. United States, 198 F.2d 615, 616, 618, 33 A.L.R.2d 1425 (C.A.10th Cir.);

United States v. Kaplan, 89 F.2d 869 (C.A.2d Cir.).

4

See, e.g., Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d
887; Chin Kay v. United States, 311 F.2d 317, 320 (C.A.9th Cir.); United
States v. McCormick, 309 F.2d 367, 372 (C.A.7th Cir.); Weise v. United States,
251 F.2d 867, 868 (C.A.9th Cir.).

In these cases we might have drawn a clear, unmistakable line and held that
hearsay evidence could not support a search warrant. But we did not so hold;
instead we held that hearsay was competent for this purpose if there was 'a
substantial basis' for crediting it, thereby muddying the waters with
considerations of corroboration and informer's reliability. Thus, by forsaking
precise standards, the discretion of police and magistrates became less subject
to judicial control.