Journal of Criminal Law and Criminology

Volume 64 | Issue 3 Article 2

1974

Evaluation of Affidavits and Inssuance of SearchWarrants: A Practical Guide for Federal MagistratesArthur L. Burnett

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Recommended CitationArthur L. Burnett, Evaluation of Affidavits and Inssuance of Search Warrants: A Practical Guide for Federal Magistrates, 64 J. Crim. L.& Criminology 270 (1973)

THE JOURNAL OF CmrniAL LAw & CamINoLoGYCopyright 0 1973 by Northwestern University School of Law

Vol. 64, No. 3Printed in U.S.A.

EVALUATION OF AFFIDAVITS AND INSSUANCE OF SEARCH WARRANTS:A PRACTICAL GUIDE FOR FEDERAL MAGISTRATES

ARTHUR L. BURNETT*

INTRODUCTION

While the critical role played by magistrates insecuring the liberties granted by the fourth amend-ment has long been recognized,1 several recentdecisions by the United States Supreme Courthave reemphasized that wherever possible govern-ment searches and seizures must be conductedonly after sanction by a neutral and detachedmagistrate. For example, in United States v.United States District Court for the Eastern Districtof Michigan,2 which dealt with the constitutionalityof warrantless wiretaps of alleged subversiveactivities, Mr. Justice Powell referred to LordMansfield's observations of some two centuriesago:

It is not fit that the receiving or judging of infor-mation ought to be left to the discretion of the offi-cer. The magistrate ought to judge, and should givecertain directions to the officer.2

Mr. Justice Powell concluded:

Lord Mansfield's formulation touches the veryheart of the Fourth Amendment directive: that,where practical, a government search and seizureshould represent both the efforts of the officer togather evidence of wrongful acts and the judgmentof the magistrate that the collected evidence issufficient to justify invasion of a citizen's privatepremises or conversation. Inherent in the conceptof a warrant is its issuance by a 'neutral and de-tached magistrate'.

4

* United States Magistrate, United States DistrictCourt, Washington, D.C. B.A., Howard University;L.L.B., New York University School of Law, 1958.

'See, e.g. Johnson v. United States, 333 U.S. 10,13-14 (1948, where Mr. Justice Jackson noted:

The point of the fourth amendment, which is notoften grasped by zealous officers, is not that itdenies law enforcement officers the support of theusual inferences which reasonable men draw fromthe evidence. Its protection consists in requiringthat those inferences be drawn by a neutral anddetached magistrate instead of being judged bythe officer engaged in the often competitive enter-prise of ferreting out crime.2407 U.S. 297 (1972).3 Id. at 316, quoting Leach v. Three of the King's

Messengers, 19 How. St. Tr. 1001, 1027 (1765).4 407 U.S. at 316. See also Coolidge v. New Hamp-

shire, 403 U.S. 443, 453 (1971).

On the same day that the decision in the wiretapcase was announced, the Court also defined theconcept of a neutral and detached magistrate inShadwick v. City of Tampa:5

... [A]n issuing magistrate must meet two tests. Hemust be neutral and detached, and he must becapable of determining whether probable causeexists for the requested arrest or search.6

The opinion by Mr. Justice Powell further suggestsat least one hallmark of the "neutral and detached"magistrate:

Whatever else neutrality and detachment mightentail, it is clear that it requires severence and dis-engagement from activities of law enforcement.There has been no showing whatever here of par-tiality, or affiliation of these clerks with prosecutorsor police. The record shows no connection with anylaw enforcement activity or authority which woulddistort the independent judgment the FourthAmendment requires.7

Thus, while magistrates must recognize andprotect legitimate law enforcement objectives,they must also remain on guard against becominga participant in the overzealous efforts of lawenforcement officers. The purpose of this articleis to focus on certain problems which face federalmagistrates today, and to offer some suggestionsto aid them in the proper exercise of their criticalfunction.

GROUNDS FOR ISSUING A SEARCH WARRANT:THE BALANCING OF PROBABILITIES

Although the information submitted to a magis-trate must set forth sufficient grounds for theissuance of a search warrant, factual statements inan affidavit need not establish proof beyond areasonable doubt, nor even by a preponderance ofthe evidence. What is required is a balancing of

s 407 U.S. 345 (1972). The case upheld the consti-tutionality of municipal court clerks issuing arrestwarrants for petty offenses under Tampa, Floridamunicipal ordinances.

6 Id. at 350.7 Id. at 350-51.

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the probabilities.3 Employing a mathematicalconcept, the magistrate must be at least fifty-onepercent satisfied after reading the affidavit andconsidering everyday factual experiences on whichreasonable and prudent men act, that the factualassertions justify the conclusion that a search ofthe premises will uncover the items sought.9

For the purposes of balancing these probabilities,the United States Supreme Court has establishedcertain rules which magistrates are required tofollow when evaluating the information containedwithin: an affidavit. If an afflant comes before amagistrate with information based on his ownobservations, the Court has clearly indicated

s United States v. Harris, 403 U.S. 573, 579n.1 (1971).At this point it should be noted that while Rule 41(b)of the Federal Rules provides that a warrant may beissued to search for and seize any property constitutingevidence of a criminal offense in violation of the laws ofthe United States, one important limitation has beenset forth in several recent cases. In VonderAhe v.Howland, 13 Crim. L.R. 2096 (May 2, 1973), the ninthcircuit, relying on Boyd v. United States, 116 U.S. 616(1886), held that the massive seizure by the InternalRevefnue Service of business and personal records duringthe execution of a search warrant in connection with atax investigation for their possible communicativeand testimonial content violated the self-incriminationprivilege of their possessors. See also Hill v. Philpott,445 F.2d 144, 149 (7th Cir. 1971), cert. denied, 404 U.S.991 (1971). Contra, United States v. Blank, 459 F.2d383, 385 (6th Cir. 1972), cert. denied, 409 U.S. 887(1972), where worksheets of a sport and horse-bookbetting business were held not subject to suppressionon fifth amendment grounds, even though in the de-fendant's handwriting, since they were not personalcommunications but rather business acounts renderedextraordinary only by the fact that the business wasitself illegal. It might be argued that Blank can bedistinguished from VonderAhe in that the items seizedin Blank could be considered seized for their corporealvalue as physical items manifesting the criminal offenseitself rather than for their communicative value andcontent with reference to past criminal conduct.9 See Brinegar v. United States, 338 U.S. 160, 175(1949). See also United States v. Ventresca, 380 U.S.102, 108 (1965), in which Mr. Justice Goldberg, afterreviewing the Court's prior holdings under the fourthamendment, stated:

These decisions reflect the recognition that theFourth Amendment commands, like all constitu-tional requirements, are practical and not abstact.If the teachings of the Court's cases are to be fol-lowed and the constitutional policy served, affi-davits for search warrants, such as the one involvedhere, must be tested and interpreted by magistratesand courts in a commonsense and realistic fashion.They are normally drafted by nonlawyers in themidst and haste of criminal investigation. Tech-nical requirements of elaborate specificity onceexacted under common law pleadings have noproper place in this area. A grudging or negativeattitude by reviewing courts toward warrantswill tend to discourage police officers from sub-mitting their evidence to a judicial officer beforeacting.

that the afflant must support any suspicions andbeliefs he might have with adequate supportingfacts from which the magistrate can make anindependent judgment about probable cause. InNathanson v. United States0 the Court enunciatedthe appropriate rule:

Under the Fourth Amendment, an officer may notproperly issue a warrant to search a private dwell-ing unless he can find probable cause therefore fromfacts or circumstances presented to him under oathor affirmation. Mere affirmance of belief or suspi-cion is not enough.U

If the affiant is seeking a search warrant on thebasis of information provided by an informant, hemust supply the magistrate with details sufficientto credit this hearsay testimony. In Aguilar v.Texas" the Supreme Court held that an affiantmust inform the magistrate of (1) the underlyingcircumstances from which the informant concludedthat illegal activities were occurring, (2) the cir-cumstances which lead him to believe that hisinformant was reliable.13

DETAL REQuED IN AN A=FAVIT: THEFnsT PRONG oF AGuIAR

In evaluating an affidavit a magistrate mustfirst determine how the affiant or his informantacquired his information. The matter is quitesimple when the affiant asserts that he or hisinformant actually saw the criminal activity.Where personal observations of a crime occur, thefirst prong of Aguilar is met and the issue is re-duced to whether the informant is credible.14

While probable cause can be established eventhough the informant did not observe the illegalactivity, the information must be sufficiently de-tailed for the magistrate to draw an inference ofpersonal knowledge; otherwise the informant's tipmay be merely rumor or gossip.j 5 If there is no

10 290 U.S. 41 (1938).1 Id. at 47.

378 U.S. 108 (1964).13 Id. at 113.24 See, e.g., United States v. Harris, 403 U.S. 573,

579 (1971); United States v. Suarez, 380 F.2d 713(2d Cir. 1967); Coyne v. Watson, 282 F. Supp. 235(S.D. Ohio 1967).

i5 Spinelli v. United States, 393 U.S. 410, 417 (1969).A problem does arise when the informant Is basing hisassertions on hearsay information. Thus, where anaffiant's source relates that friends and associates ofprincipals involved in an interstate gambling operationhave furnished him with information concerning theprincipal's operation, it has been held that this failsto meet the Aguilar requirements, since the real issueis the credibility of the so-called friends and associates,

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indication in the affidavit as to how the informantreceived his information, a search warrant should

not be issued, unless other facts within the affidavitsupport a finding of probable cause.

Should the affidavit state that the informant has

"personal knowledge" of criminal activities, the

magistrate should require the affiant to indicatedearly how the informant obtained his first-hand

information. In United States v. Lynwood Long16

the Court of Appeals for the District of Columbiaheld a search warrant invalid in an interstategambling case because the affiants merely statedthat the informants had "personal knowledge" of

gambling activities. The court concluded that

even though the tip was based on what the affidavitcalled personal knowledge:

[T]his is only a conclusion, however, and standingalone, it does not cure the lack of specificity in-herent in the affidavit. There is no indication ofthe source of the informant's 'personal knowledge',nor are their tips sufficiently detailed to allowa magistrate to infer that the informant hadgained information in a reliable way.17

A somewhat related problem arises when an

affiant makes a statement in the form of a factualassertion, which is in effect a conclusion of the

affiant. For example, in Berger v. Commonwealth's

and the circumstances under which they obtainedtheir information. See United States v. DeCesaro,349 F. Supp. 549, 550 (E.D. Wis. 1972). Indeed, therehas been some questioning of the use of double hearsayeven when the affiant's source is another law enforce-ment agent. Taking the position that double hearsayis not to be encouraged, the second circuit recentlycommented:

Where an informant speaks to an agent, it is thatagent who should normally relay that informationto the magistrate evaluating the search warrantapplication. Informants' tips relayed throughtwo agents and then to the magistrate, howeveraccurately reported, unnecessarily reduce themagistrates ability to make an independent de-termination of the information's reliability.

United States v. Fiorella, 468 F.2d 688, 692 (2d Cir.1972). However, when the information originates fromnamed citizens who are eyewitnesses or have otherdirect knowledge, such as statements or admissions bya suspect, and the affiant relates the collective informa-tion received through other law enforcement agents'interviews with these witnesses, it has been held thatthe double hearsay does not preclude a finding ofprobable cause. See United States v. McCoy, 478 F.2d176 (10th Cir. 1973). Apparently, the ultimate test iswhether the information, taken in light of the totalityof the circumstances, can reasonably be said to bereliable. These two cases also suggest a distinctionbetween information originating from confidentialpolice informants and private citizens. See note 51 infra.

16 439 F.2d 628 (D.C. Cir. 1971).17 Id. at 630.- 213 Va. 54, 189 S.E.2d 360 (1972).

law enforcement officials sought a search warrantbased on an affidavit which alleged that after

observing a rural farm house for over two monthsthey "further observed persons in the tent smokinga substance which required use of a great numberof matches to remain lighted and the substancebeing smoke appeared to be used in such a manneras that of Cannabis Sativa L .... "19 The Virginia

supreme court held that this statement lackedthose details which would enable the magistrateto determine for himself what was actually beingsmoked. The court concluded: "The number ofmatches used is insignificant without the detectionof an odor or description of some observed method

of use peculiar to the smoking of marijuana." 20

Although an affiant does not have to name his

informant in the affidavit,2' in some cases an

affiant may bereluctant toprovide any informationwhich might reveal the identity of his informant,and possibly endanger his life. As described byone court:

... [O]fficer-affiants should be encouraged to fur-nish to the magistrate as specific 'underlying cir-cumstances' as possible.... We realize the reluc-tancy of officer-afflants from being more specificthan absolutely necessary for fear of giving awaythe identity of the informer which for one reasonor another they may feel the need to protect.Unless there is a real necessity for doing so theymay well compound the problems of the probablecause assessing magistrate, the trial court and thiscourt.22

Since the Federal Rules of Criminal Proceduredo not specifically require that affidavits be at-tached to federal search warrants, nor that the

19 Id. at 361.20Id.2 United States v. Ventresca, 380 U.S. 102, 108

(1965); Aguilar v. Texas, 378 U.S. 108, 114 (1964);Rugendorf v. United States, 376 U.S. 528, 533 (1963);Jones v. United States, 362 U.S. 257, 271-72 (1960).Some federal courts have applied the same rule ofnondisclosure in both warrant and nonwarrant cases.See Smith v. United States, 358 F.2d 833 (D.C. Cir.1966); Jones v. United States, 326 F.2d 124 (9th Cir.1963), cert. denied, 377 U.S. 956 (1964); United Statesv. One 1957 Ford Ranchero Pickup, 265 F.2d 21 (10thCir. 1959). Other federal courts have distinguishedthese two classes of cases and have required the identifi-cation in nonwarrant cases. See United States v.Robinson, 325 F.2d 391 (2d Cir. 1963); Cochran v.United States, 291 F.2d 633 (8th Cir. 1961). See alsoMcCray v. Illinois, 386 U.S. 300 (1967), where theSupreme Court held that an informant's identity neednot be disclosed at a preliminary hearing to determinethe sufficiency of an arrest or search.

2 Adair v. State, 482 S.A.2d 247, 252 ('rex. Crim.App. 1972).

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search warrant contain the facts recited in theaffidavit which establish probable cause,2' an ap-propriate solution to this problem is the use of a"supplemental affidavit," separate from the pri-mary affidavit, setting forth all the availableinformation. This special affidavit can then besealed and preserved for review should any claimarise that the warrant was improperly issued."

A similar problem arises when the governmentclaims that it cannot reveal certain facts in anaffidavit because it does not want to compromiseclassified information. In United States v. UnitedStates District Court for the Eastern District of

n The relevent subsections of Rule 41 provide:(c) A warrant shall issue only on an affidavit oraffidavits sworn to before the federal magistrateor state judge and establishing the grounds forissuing the warrant. If the federal magistrate orstate judge is satisfied that grounds for applicationexist or that there is probable cause to believe thatthey exist, he shall issue a warrant identifying theproperty and naming or describing the person orplace to be searched. The finding of probable causemay be based upon hearsay evidence in whole orin part. Before ruling on a request for a warrantthe federal magistrate or state judge may requirethe afflant to appear personally and may examineunder oath the affiant and any witness he mayproduce, provided that such proceedings shall betaken down by a court reporter or recording equip-ment and made part of the affidavit. The warrantshall be directed to a civil officer of the UnitedStates authorized to enforce or assist in enforcingany law thereof or to a person so authorized bythe President of the United States. It shall com-mand the officer to search, within a specified periodof time not to exceed 10 days, the person or placenamed for the property specified. ...(d) The officer taking property under the warrantshall give to the person from whom or from whosepremises the property was taken a copy of thewarrant and a receipt for property taken or shallleave the copy and receipt at a place from whichthe property was taken....

Fx. R. Cmal. P. 41(c), (d).In Ledbetter v. United States, 211 F.2d 628 (D.C.

Cir. 1953), cert. denied, 347 U.S. 977 (1954), the de-fendant, convicted of violating the District of Colum-bin's lottery law, argued that the execution of thesearch warrant was invalid because no copy of theaffidavit was attached to the copy of the warrant servedupon him. The defendant contended that since theoffense was a crime under the D.C. code, a copy ofthe affidavit pursuant to the D.C. code had to beattached. The warrant, however, was issued by theUnited States Commissioner upon application of aUnited States marshall. The court held that the D.C.code provision was inapplicable and that the federalofficiais had complied with the federal requirementsunder rule 41 (c).

24 There are some practical reasons for attachingaffidavits to search warrants prior to execution. First,it furnishes the accused with the reasons for the in-trusion on his privacy. Second, it avoids any possibleclaim that the affidavit later located in the official filewas in fact inserted after the search. Thus, wheneverpossible magistrates should attach all affidavits to the

Michigan," Mr. Justice Powell answered thiscontention by stating:

Nor do we believe prior judicial approval will frac-ture the secrecy essential to official intelligencegathering... Moreover, a warrant applicationinvolves no public or adversary proceeding: It isan ex park request before a magistrate or judge.Whatever security dangers clerical and secretarialpersonnel may pose can be minimized by properadministrative measures, possibly to the point ofallowing the Government itself to provide thenecessary clerical assistance. 6

In addition to the measures suggested by Mr.Justice Powell, the magistrate can utilize thesupplemental affidavit to serve as a record of hisreasons for issuing the search warrant.

In connection with the factual assertions re-quired in an affidavit, an affiant will frequentlylapse into the passive voice in setting forth in-formation, after initially stating that he had inter-viewed an informant. Although the implicationmight be that the informant supplied the informa-tion, the affiant may be setting forth facts unre-lated to his conversation with the informant.For example, in United States v. Ndso a motelclerk had observed burglary tools, money, gunsand a cutting torch in one of his rooms. Later,information concerning blank postal money ordersand a Bank Americard was obtained through twowarrantless entries by police officers into thesame room. In applying for a search warrant, thepolice commingled the results of the two entries.Judge Miller, concurring in finding the searchwarrant invalid, stated his belief that the officerinvolved was not satisfied that the informationsupplied him by the room clerk would support awarrant and, therefore, used the informationgathered in both entries in hopes of establishingprobable cause. To avoid the situation describedby Judge Miller, magistrates should be skepticalof affidavits which begin with such phrases as"investigation disclosed," "it was learned that,""information received disclosed," or "observationsmade disclosed," since they do not indicate thesource of the information or the reliability or trust-worthiness of that source.29

search warrant. See eg. Moore v. United States, 461F.2d 1236 (D.C. Cir. 1972).

25 407 U.S. 297 (1972).26 Id. at 320-21.- 459 F.2d 884 (6th Cir. 1972).28Id. at 895.2 9 Federal magistrates must also guard against the

possibility that information in an affidavit may have

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Another problem facing the magistrate inevaluating the factual assertions in an affidavitis the determination of whether the informationis currently accurate. In United States v. Harris0

the Supreme Court held that an informant's re-port that he had purchased whiskey within thepast two weeks was sufficiently current, especiallysince these purchases were part of a history ofpurchases over a two year period.31 Mr. justiceHarlan, in his dissenting opinion, also rejected thecontention that the information was too stale,observing that, "the totality of the tip reveals thatthe informer purported to describe an on-goingoperation which he had claimed he had personallyobserved over the course of two years." 32

Although the permissible lapse of time betweenthe finding of the evidence and the applicationfor the search warrant will vary with each case,33

the facts submitted to the magistrate shouldspecify the time at which the evidence was gath-ered,u and must convince him that the propertywhich is the object of the search is probably onthe person or the premises to be searched at the

been obtained in an illegal manner. If such informationconstitutes a material part of the affidavit, the searchwarrant is invalid, and what is seized pursuant to thewarrant will be suppressed. See United States v. Nelson,459 F.2d 884 (6th Cir. 1972); United States v. Rosen-berg, 416 F.2d 680 (7th Cir. 1969). However, wherethe untainted information in an affidavit is sufficient,the fact that other information in the affidavit wasobtained as a result of illegal means will not invalidatethe search. See James v. United States, 418 F.2d 1150(D.C. Cir. 1969); Chin Kay v. United States, 311 F.2d

317 (9th Cir. 1962). A search warrant will not beinvalidated even though predicated upon informationobtained through entrapment. See Harness v. Ken-tucky, 475 S.W.2d 485 (Ky. Ct. App.), cert. denied,409 U.S. 844 (1972).

30 403 U.S. 573 (1971).31 Id. at 579 n. 1.3 Id. at 589.32In Schoeneman v. United States, 317 F.2d 173,

177 (D.C. Cir. 1963), the court observed that "theGovernment could cite, and we could find, no casewhich sustained a search warrant issued more than 30days after finding of the evidence which constitutedthe basis of the search." In Schoenernan the court held a107 day delay invalid. See also Dandrea v. UnitedStates, 7 F.2d 861 (8th Cir. 1925) (42 days-invalid);United States v. Sawyer, 213 F. Supp. 38 (E.D. Penn.1963) (107 days-invalid); United States v. Long,169 F. Supp. 730 (D. D.C. 1959) (11 days-valid);United States v. Allen, 147 F. Supp. 955 (E.D. Ky.1957) (16 days-valid).

4The failure to include within an affidavit the timethe affiant received his information will normallyinvalidate a search warrant. See Rosencranz v. UnitedStates, 356 F.2d 310 (1st Cir. 1966); United States v.Bosch, F. Supp. 15 (E.D. Mich. 1962). But see Rider v.United States, 355 F.2d 192 (5th Cir. 1966), where thecourt held that narration in the present tense wassufficient to conclude that the information was current.

time the warrant is issued.35 Federal magistrateswill have to consider the totality of the circum-stances surrounding the requested search such asthe nature of the items to be seized, the type ofcriminal activity involved, and the nature of thepremises to be searched.

ESTABLISHING AN INFoRANT's RELIABILITY:Ti SECOND PRONG OF AGUIIAR

The second prong of Aguilar requires that anaffiant set forth information in the affidavit whichwill allow the magistrate to make an independentjudgment about the informant's reliability. Themagistrate cannot rely solely on the affiant's asser-tion that his informant is trustworthy, truthful,prudent, reliable or credible.

The informant's trustworthiness can be estab-lished in two ways. First, an affiant can set forth

in the affidavit an informant's record of pastperformance, which might indicate that he hasprovided information in the past which has leadto the seizure of illegal materials or resulted inthe arrest of persons who were later convicted 3 6Second, an informant's trustworthiness can beestablished through independent corroboration ofthe informant's claims by law enforcement in-vestigation or surveillance activities.Y

The United States Supreme Court has elaboratedon these methods for crediting an informant's tip.In Spinelli v. United Statesa the Court discussed

the proper guidelines for evaluating an affidavitwhich contains among other things an informant's

tip, corroborating evidence of matters containedwithin the tip, and information unrelated to thetip itself compiled by independent law enforce-ment investigation. 9 According to the Court, the

1 See PROCEDURS MANUAL FOR UmTED STATESMAGIsTRATEs 7-3 and 7-4 (1972):

A showing to the effect that the property to beseized was at the place to be searched a substantialtime before the application is made does not justifythe issuance of a search warrant, for the reasonthat during the intervening period the propertymay have been moved away. The facts must showthat the property to be seized was known to be atthe place to be searched so recently as to justifythe belief that the property is still there at the timeof the issuance of the search warrant. It is advisableto indicate the time of issuance upon the warrant."1See, e.g., United States v. Dunnings, 425 F.2d

836 (2d Cir. 1969), cert. denied, 397 U.S. 1002 (1970);United States v. Stallings, 413 F.2d 200 (7th Cir.1969).

17See, e.g., United States v. Roman, 451 F.2d 579(4th Cir. 1971), Schulgz v. United States, 432 F.2d 25(10th Cir. 1970).

38393 U.S. 410 (1969).39 In Spinelli the affidavit contained the following

allegations:

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proper method is to look first at the informant's tipand the affiant's assertions about the reliability ofhis informant to see if they alone establish a reliablefactual basis from which the magistrate can makean independent judgment about probable cause.4"If the reliability of the tip is not establishedthrough this procedure, the magistrate must thenlook at the corroborating evidence to see if itcredits the tip.4 If the magistrate decides thatthe tip cannot be credited in either of these twoways, the magistrate must then look to otherparts of the affidavit to determine if the informa-tion compiled by independent police investigationsufficiently establishes probable cause.42

More recently, in United States v. Harris,4' ChiefJustice Burger, speaking for a plurality of theCourt,44 indicated that a magistrate should notevaluate an affidavit in a highly technical mannerin order to determine whether an informant's tip isreliable.4 According to the Chief Justice, the affi-davit must be considered as a whole to determine

(1) The FBI had kept track of Spinelli's move-ments on five days during the month of August1965. On four of these occasions, Spinelli was seencrossing one of two bridges leading from Illinoisinto St. Louis, Missouri. On four of the five days,Spinelli was also seen parking his car in a lot usedby residents of an apartment in St. Louis. On oneday, Spinelli was seen to enter a particular apart-ment in the building.(2) An FBI check with the telephone companyrevealed that this apartment had two listed phones.(3) Spinelli was known to agents as a bookmaker,an associate of bookmakers, a gambler, and anassociate of gamblers.(4) The FBI has been informed by a confidentialreliable informant that Spineli is operating awagering operation by means of the two listedphone numbers.

Id. at 413-14.40 Id.41 Id.

42Id. at 417."403 U.S. 573 (1971).4Chief Justice Burger's opinion was divided into

three parts. Part I held there was sufficient informa-tion in the affidavit to find the informant reliable.Part II criticized the ruling in Spinelli as being tootechnical. In Part ]I the Court held that a declara-tion against penal interest was sufficient to credit theinformant's tip. Justices Black and Blackmun con-curred in all three parts. Justice Stewart concurred inPart I and Justice White concurred in Part III. JusticesHarlan, Brennan, Douglas and Marshall dissented.

41 In Harris the affidavit alleged:(1) The accused had been known as a trafficker inwhiskey.(2) Another officer had seized whiskey on thepremises before.(3) An unnamed person, fearing for his life, re-vealed that he had purchased whiskey from theaccused within the past two weeks.(4) The affiant found this person to be prudent.

Id. at 575-76.

whether there is a "substantial basis" for creditingan informant's tip.46 The Court also indicated thata declaration against penal interest by the in-formant would meet the requirement of thesecond prong of Aguilar."

Although the decision in Harris appears to givethe magistrate broad discretion in determiningthe reliability of the informant," federal magis-trates should nevertheless insure that facts con-tained within an affidavit, whether of the in-formant's past record or of corroborating evidenceof the informant's claims, establish a sufficientbasis for crediting a tip. Both Chief Justice Burgerand Mr. Justice Harlan, who wrote the dissent inHarris, agreed that a bare statement by an affiantthat he believed the informant to be truthfulwithout any supporting evidence would not pro-vide a basis for crediting the report of an unnamedinformant.

49

In some cases law enforcement officials mayindicate in an affidavit that the information wasprovided by a citizen-informant. Unlike policeinformants, who often receive some considerationfor their information, the citizen-informant mayhave less reason to make statements which areself-serving.50 Consequently, there may be morejustification for crediting their tips. Nevertheless,the magistrate should require the affiant to indi-cate the demeanor, age, occupation, reputation,any arrest or conviction record, or any employmentrecord of his citizen-informant as well as the under-lying circumstances surrounding the citizen-informant's knowledge of the alleged illegalactivities.51 While the absence of such information

16 The "substantial basis" test was first enunciatedby Mr. Justice Frankfurter in Jones v. United States,362 U.S. 257, 272 (1960):

We have decided that, as hearsay alone does notrender an affidavit insufficient the Commissionerneed not have required the informants or theiraffidavits to be produced, or that Didone havepersonally made inquiries about the apartment,so long as there was a substantial basis for creditingthe hearsay.", 403 U.S. at 583.48 See e g United States v. Unger, 469 F.2d 1283

(7th Cir 1972); United States v. Guinn, 454 F.2d 29(5th Cir. 1972); United States v. Roman, 451 F.2d579 (4th Cir. 1971); United States ex rd. DiRienzo v.Yeager, 443 F.2d 228 (3rd Cir. 1971).,9 Id. at 578, 590-91.50 See United States v. Unger, 469 F.2d 1283, 1287

N.Y. (7th Cir. 1972); People v. Hoffman, 45 Ill.2d 221,258 N.E.2d 836 (1970); State v. Paszek, 50 Wis.2d619, 189 N.W.2d 836 (1971).61 See Adair v. State, 482 S.W.2d 247, 250 (Tex.

Crim. App. 1972), in which the Texas court noted theproblem facing the magistrate in the case of a citizen-informant:

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may not be fatal, it will enable the magistrate todetermine that the affiant is in fact dealing with acitizen-informant, and also help him make a moreprecise judgment about the reliability of thisparticular citizen-informant.n

TRuiHuuEss OF FACTS CONTAINED

WITmN THE AFFIDAVIT

Although the sufficiency of the factual assertionssupporting the issuance of a search warrant isdearly open to attack, the law is somewhat un-settled as to whether the truthfulness of facts setout in an affidavit can also be challenged at ahearing to suppress evidence. The position thatthe substance of the assertions within an affidavitcannot be attacked was very recently set forthby the New Jersey supreme court:n

In our view the constitutional safeguards are metwhen the impartial judge finds the affidavit forthe warrant credible and legally sufficient. Com-pliance with the requirement for an oath by theofficer must be regarded as a procedurally ade-quate manifestation of his veracity. That oathfollowed by the judge's determination that the factsvouched for show probable cause are all the Consti-tution demand and guarantee to our citizens. If thepolice officers lie, the truth of the accused's allegedcriminal activities as revealed by the evidenceseized under the warrant will not be diluted. Inthat event.., the accused will have to meet noth-ing more nor worse than the 'truth' at plenarytrial.... Further, so far as the untruthful officersare concerned, they expose themselves to the

The police are often confronted with the first timeinformer sometimes referred to as a 'walk in' whois unknown to the police and with whom the policehave had no previous experience. When they giveinformation as to criminal activity their informa-tion should not become unusuable because therehas not been a previous instance of reliability.When citizens are involved it cannot be expectedthat they would have past transactions or dealingswith the police. And while in many cases less reasonmay exist for failing to disclose the informer'sidentity to the magistrate than where the ordinarypolice informer is involved, nevertheless, manycitizens prefer to cooperate in ananymity with thepolice or fear possible retribution by the accused.Certainly where sufficient 'underlying circum-stances' are presented to the magistrate so he canmake an independent determination as to thecredibility of the informer, the use of such in-formers is not to be excluded.

See also United States v. Brooks, 350 F. Supp. 1152(E.D. Wis. 1972).

2 Some of the underlying circumstances will alsohelp the magistrate to determine whether the presentinformation is reliable. See Harris v. United States,403 U.S. at 582.

11 State v. Petillo, 61 N.J. 165, 293 A.2d 649 (1972).

sanction of indictment for perjury or false swear-ing, a charge of criminal contempt, and assessmentof monetary damages in a civil action."

While the United States Supreme Court hasnot dearly decided the issue, 5 the Court of Ap-peals for the Second Circuit has acknowledgedthat under certain circumstances a defendantcan challenge the substance of assertions in anaffidavit. 5 In United States v. Dunningsn thecourt indicated that upon a proper preliminaryshowing by a defendant of falsehood or impositionon a magistrate, a district judge can conduct ahearing to determine whether these claims arejustified." In this context, the court went on toplace the responsibility of insuring that the in-formation is accurate on the magistrate reviewing

the affidavit:

The interposition of an independent judicial officerwhose decision, not that of the police, [will] governwhether liberty or privacy is to be invaded.. . goesa long way toward accomplishing the objectives ofthe Fourth Amendment. True, the objectives arenot accomplished if the judicial officer is put uponby the police. But it is the responsibility of suchofficers, particularly in light of their new dignity asUnited States magistrates and the requirements fortheir membership in the bar and periodic train-ing ... to see to it that they are not deceived."5

Prior to the issuance of a search warrant, thereare several methods available to a magistrate to

11 Id. at 174, 293 A.2d at 653-54. See also Kenney v.United States, 157 F.2d 442 (D.C. Cir. 1946); UnitedStates v. Burnett, 53 F.2d 219 (W.D. Mo. 1931); Statev. Anselmo, 260 La. 306, 256 So.2d 98 (1971), cert.denied, 407 U.S. 911 (1972).

55 In Steele v. United States, 267 U.S. 498, 501(1925), Chief Justice Taft stated in dicta:

If the grounds on which the warrant was issued becontroverted, the judge.., must proceed to taketestimony in relation thereto, .... If it appears... that there is no probable cause for believingthe existence of the grounds on which the warrantwas issued ... must cause the property to be re-stored to the person from whom it was taken.56 The Fourth Circuit had previously taken a similar

position. See King v. United States, 282 F.2d 398 (4thCir. 1960), in which the court indicated that a searchwarrant could be challenged on such grounds, and thatfalse facts given by an affiant could vitiate a warrantand a subsequent search. See also Theodor v. SuperiorCourt, 104 Cal. Rptr. 226, 501 P.2d 234 (1972), wherethe California supreme court held that under the Cali-fornia Penal Code a defendant may on a motion tosuppress challenge the factual accuracy of statements inan affidavit.

-425 F.2d 836 (2d Cir. 1969).I Id. at 840.59 Id.

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reduce the possibility that the warrant will beissued on the basis of false assertions in the affida-vits. First, the magistrate can analyze the affidavitfor internal consistency. If there are reasonablegrounds to question some of the factual representa-tions, he should question the affiant under oath,60

and include this testimony in the affidavit, orperhaps in a supplemental affidavit if appropriate."If the magistrate has suspicions about assertionsmade by an informant to the affiant, he might re-quire that the informant be produced for furtherquestioning under oath. If these procedures do notresolve the questions the magistrate might haveconcerning the veracity of the affiant, the magis-trate should warn the affiant about the conse-quences of perjury or contempt of court, as wellas possible liability for civil damages."2 As a lastresort, the magistrate can, of course, refuse toissue the search warrant.

NIGHTTIMm SEARCH WAa-ANTS

Although there has been strong reluctance inthe past to allow nighttime searches," recentchanges in federal law have abandoned the "posi-tivity" standard," and substituted a standardwhich requires that the affiant show that "reason-able cause" exists for the execution of a warrantat night. Rule 41 (c) of the Federal Rules of Crimi-nal Procedure now provides in part:

60 Rule 41(c) of the federal rules provides in part:Before ruling on a request for a warrant the federalmagistrate or state judge may require the afflantto appear personally and may examine under oaththe affiant and any witness he may produce, pro-vided that such proceeding shall be taken downby a court reporter or recording equipment andmade part of the affidavit.

FED. R.Cmnr P. 41(c).61 See note 23, supra.6In Bivens v. Six Unknown Agents, 402 U.S. 388

(1971), the Supreme Court held that a law enforcementofficial may be liable for civil damages for an illegalsearch and seizure.

eSee Monroe v. Pape, 365 U.S. 167, 210 (1960),where Mr. Justice Frankfurter stated:

Searches of the dwelling house were the specialobject of this universal condemnation of officialintrusion. Night-time search was the evil in itsmost obnoxious form.

See also Frank v. State of Maryland, 359 U.S. 360, 366(1959); Jones v. United States, 357 U.S. 493, 498(1958); Distefano v. United States, 58 F.2d 963 (5thCir. 1932).

"The prior standard under Rule 41(c) provided:The warrant shall direct that it be served in thedaytime, but if the affidavits are positive that theproperty is on the person or in the place to besearched, the warrant may direct that it may beserved at any time.

FmD. R. Cpum. P. 41(c) (1966).

The warrant shall be served in the daytime, unlessthe issuing authority, by appropriate provision inthe warrant, and for reasonable cause shown,authorizes its execution at times other than day-time."

Significantly, Congress has also abandoned thepositivity rule in enacting the "District of Colum-bia Court Reform and Criminal Procedure Act of1970." The D.C. code sets forth the followinggrounds for permitting the execution of a searchwarrant during nighttime:

The application may also contain- (1) a requestthat the search warrent be made executable at anyhour of the day or night, upon the ground thatthere is probable cause to believe that (A) it cannotbe executed during the hours of daylight, (B) theproperty sought is likely to be removed or de-stroyed if not seized forthwith, or (C) the propertysought is not likely to be found except at certaintimes or in certain circumstances.66

While the provisions within the new federalrule do not provide clear-cut standards for deter-mining when a nighttime warrant would be ap-propriate, the provisions within the D.C. codesuggest workable guidelines which are consistentwith the federal rule. Under the D.C. code, forexample, a nighttime warrant would be justifiedif a narcotics dealer maintained 'qookouts" duringthe day to warn of police approach, and a police-affiant claimed that he needed the "cloak of dark-ness" to enter the premises before the narcoticswere destroyed."

It should also be noted that the federal rulesnow define "daytime" to mean the hours between6:00 A.M. and 10:00 P.M.' s This definition reflectsthe increasing urbanization of our society inwhich most persons infrequently retire for thenight prior to 10:00 P.M. and usually arise some-time around 6:00 A.M. It also reflects a judgmentconcerning law enforcement needs in coping withan ever-increasing volume of crimes associatedwith our population shift. The choice appears tostrike a reasonable balance between the needs oflaw enforcement and the right of special privacy

65F=. R. Cmum. P. 41(c) was amended April 24,1972, eff. October 1, 1972.

66 D.C. CODE ANN. § 23-522 (1970).67For state court rulings under a reasonable grounds

standard much like the new federal rule, see People v.Aguilar, 240 Cal. App. 2d 502, 49 Cal. Rptr. 584(1966)- Galena v. Municipal Court, 237 Cal. App. 2d581, 47 Cal. Rptr. 88 (1965); People v. Watson, 39Misc. 2d 808, 241 N.Y.S.2d 934 (1963).

"FED. R. Cpm. P. 41(h), effective October 1, 1972.

1973]

ARTHUR L. BURNETT

during those hours of repose, rest and sleep, inwhich an intrusion should only be justified byexceptional circumstances. With this expansionof the hours for daytime warrants, nighttimewarrants should only be issued upon a propershowing that execution must be made betweenthe hours of 10:00 P.M. and 6:00 A.M. 69

SpEcimIcrTy or AREA TO BE SEARCHED

Under the Fourth Amendment a search warrantmust describe the place to be searched with par-ticularity. Generally, a search warrant sufficientlydescribes the place if "the officer with a searchwarrant can with reasonable effort ascertain andidentify the place intended." 70 A single warrant

69 It should be noted that applications for narcoticsviolations are now covered by 21. U.S.C. § 879 (1970),a provision of the Comprehensive Drug Abuse Pre-vention and control Act of 1970, which provides:

A search warrant relating to offenses involvingcontrolled substances may be served at any timeof the day or night if the judge or United StatesMagistrate is satisfied that there is probable causeto believe that grounds exist for the warrant andfor its service at such time.

See United States v. Gooding, 477 F.2d 428 (D.C. Cir.1973), where Judge Wilkey in the lead opinion con-cluded that Section 879(a) was merely a re-enactmentof 18 U.S.C. § 1405(1) requiring only a showing ofprobable cause to search for all substances controlledby the 1970 Comprehensive Drug Abuse Preventionand Control Act, regardless of whether the warrant wasto be executed in the daytime or at night. While JudgeFahey concurred that Section 879(a) was merely a re-enactment of Section 1405(1), he intimates that theamendment to Rule 41(c) requiring "reasonable cause"for a nighttime search might be considered as requiringsome additional showing for a nighttime warrant, not-ing that no significant burden would be imposed on themagistrate or other officials by requiring special reasonsfor a search at night even for narcotics. However, hedoes not formally adopt this position at this time,stating:

The salutary effect of the modification of subpara-graph (c) of the Rule remains for consideration withrespect to search warrants issued after its effectivedate.

Id. at 439. Judge Robinson, concurring in the result,concludes that Section 879(a) is not merely a re-enact-ment of Section 1405(1). According to judge Robinson,the language ("and for its service at such time") re-quires something more than simple probable cause. Hereasons that Section 879(a) now requires a showing ofprobable cause for the service of the search warrant atnight and that an on-going drug-selling operation issufficient for this purpose. He concludes:

[W]here... a search is calculated not only togarner evidence of past crime but also to terminatea serious species of ongoing criminality, rea-sonable cause for a nocturnal intrusion is demon-strated.

Id. at 444. See also United States v. Thomas, 294 A.2d164 (D.C. Cir. 1972).

70 Steele v. United States, 267 U.S. 498, 503 (1925).See United States v. DePugh, 452 F.2d 915 (10th Cir.

cannot describe an entire building when cause isshown for searching only one apartment therein.7INor can a warrant, describing a business premiseson the first floor, be executed to include an apart-ment on the second floor which is separate anddistinct, even though under the control of the sameperson.72

A warrant has been sustained where it specifieda premises at a given address, even though therewere two separate apartments at that address,where the warrant itself went on to limit its scopeto the premises occupied by a named individualand over which he had possession and control.7 3

The New Jersey supreme court recently held thateven though a warrant failed to indicate by num-ber which of three apartments on the floor of anapartment building was intended, but did indicatethat the apartment was the one occupied by thedefendant, and, in fact, the defendant's apartmenthad no number on the door, the description of thepremises was adequate and the search warrantwas sufficient.74

When law enforcement agents prior to executinga search warrant have no notice of internal altera-tions in a house with attic and basement apart-ments, a search of the entire premises pursuantto the warrant has been held proper in Santore v.United States.75 In Santore the court stated that itwas too late, consistent with the mission of lawenforcement officials, to retreat to obtain a newwarrant.76 However, when law enforcement officialshave prior notice of possible dual occupancy of apremises, they cannot properly seek a warrant forthe entire premises but can only seek a warrant forthat portion of the premises within the possessionand under the control of the person whose allegedcriminal activities are the basis of the searchwarrant.Y

These cases suggest that magistrates mustcarefully scrutinize the efforts of police officialsin connection with the description of the premises

1971); United States v. Harmon, 317 F. Supp. 923(D.C. Tenn. 1970).

71 United States v. Hinton, 219 F.2d 324 (7th Cir.1955).

72 United States v. Kaye, 432 F.2d 647 (D.C. Cir.1970).

73Kenney v. United States, 157 F.2d 442 (D.C.Cir. 1946).

7 State v. Wright, 61 N.J. 146, 293 A.2d 380 (1972).75 290 F.2d 51 (2d Cir. 1960).76 Id. at 67.77 United States v. Esters, 336 F. Supp. 214 (E.D.

Mich. 1962).

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to be searched. Should there be any question asto the particularity of the premises arising outof the description in the affidavit, the affiantshould be questioned in order to insure that thesearch warrant, when issued, contains the properdescription.

ANTICIPATORY SEARcH WARRANTs

Federal magistrates have recently been con-fronted with search warrant applications involvingcontrolled deliveries of marijuana, or tampered orstolen mail, pursuant to the direction of customsor postal officials in which the affiant requests themagistrate to sign the warrant prior to actualdelivery. Two recent cases have upheld such war-rants. In United States ex rel. Beal v. Skaff' the

Court of Appeals for the Seventh Circuit heldsuch a warrant valid because it found that thewarrant could not have been executed until afterthe contraband was delivered. In sustaining thewarrant, the court acknowledged that certaindifficulties arise in warrants of these types:

[A] warrant which antedates the commission of theoffense which is relied upon to support its issuancemight lack an essential element of judicial control:the requirement that probable cause exist to believethat execution will not precede the commission ofthe crime or possession of the goods to be seizedY9

The court concluded:

There was no danger that the property seized wouldbe other than that specified in the affidavit uponwhich the warrant was issued.... Moreover, thenature of the article to be seized [marijuana]-thevery real possibility that delay might have re-sulted in its disposal or concealment-compelledquick action by the magistrate. Confined to thesefacts, we are of the opinion that the warrant andits execution were constitutionally valid.8'

The New York Court of Appeals has gone evenfurther in upholding such warrants. In People v.Glen" the court sustained a warrant issued oneweek prior to the time the affidavit indicated thatthe contraband would be delivered. The courttook the position that in most cases possessionwhen a warrant is normally issued is only proba-tive of the likelihood of future possession when

-8418 F.2d 430 (7th Cir. 1969).79Id. at 433.80 Id. at 433-34.8130 N.Y.S.2d 252, 282 N.E.2d 614 (1972).

the warrant is actually executed. It further ob-served that even after a warrant is issued an officerhas some discretion in delaying execution, withthe result that at the time of execution the con-traband may no longer be in the suspect's posses-sion. Accordingly, the court concluded:

The ultimate answer to the problem is that as longas the evidence creates substantial probability thatthe seizable property will be on the premises whensearched, the warrant should be sustained. To besure, where there is no present possession the sup-porting evidence for the prospective warrant mustbe strong thatthe particular possessionofparticularproperty will occur and that the elements to bringabout the possession are in process and will resultin the possession at the time and place specified.Otherwise, the hated general writs of assistance ofPre-Revolutionary times would be revived, in effect,despite the constitutional limitations. Moreover,the issuing Judge should be satisfied that there isno likelihood that the warrant will be executedprematurely.82

Notwithstanding this limited support for theuse of anticipatory search warrants,8 federalmagistrates should be very cautious in issuingthese warrants. When, with a minimum of in-convenience, law enforcement officials can com-municate by radio or telephone with a fellowofficer at the judicial official's residence, and thewarrant can be issued and executed shortly afterdelivery of the items to be seized, the magistrateshould decline to issue such warrants in advance.Another possible solution would be for the magis-trate to include in the warrant itself languagerestricting the execution of the warrant until lawenforcement officials have actually observed thedelivery. As an added safeguard, the magistrateshould also require execution within a specifiednumber of hours after delivery. 4

2 Id. at 259, 282 N.E.2d at 617.8 But see State v. Ferrigno, 256 A.2d 795 (Conn.

Cir. Ct. 1969), which held that obtaining "advance"search warrants which are executed at the time crimi-nal activity is in progress is unconstitutional.

81A recent memorandum by the AdministrativeOffice of the United States Courts dated May 3, 1973to all Federal Judges, United States Magistrates, andDistrict Court Clerks suggests that in connection withRevised Rule 41(c) providing that all search warrantsmust be executed within a specified period of time, notexceeding ten days, the issuing magistrate shouldspecify on the search warrant the time period in whichthe search must be executed endorsing on the warrant:"The search, herein authorized, must be executedwithin the period of _."

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280 ARTHUR L. BURNETT [Vol. 64

CONCLUSION With this role in mind, it has been the purpose of

Because the law of search and seizure has be- this article to identify some of the pressing prob-

come increasingly complicated, the role of the lems confronting magistrates today. It is hoped

"neutral and detached" magistrate has never that the suggestions made throughout this article

been more critical for the protection of those will act as working rules to help the federal magis-rights guaranteed by the fourth amendment. trate perform his function more effectively.