finding criminal liabil- ity attaches “regardless of the motives of either party to the transaction” and good intentions could not provide a defense to the crime of posses- sion
How later courts described this case
- finding criminal liabil- ity attaches “regardless of the motives of either party to the transaction” and good intentions could not provide a defense to the crime of posses- sion
Written by the judges who cited it.
The opinion
SWYGERT, Circuit Judge,
concurring.
With reluctance I concur. Upon reflection, I suppose we can assume that the hearsay information added to agent Heart’s affidavit for the purpose of supporting the informant’s credibility did not come from street gossip or from the informant himself. * For myself, that assumption is made with extreme hesitancy. Unfortunately, we are asked to make it simply because the magistrate who issued the warrant did not perform his job properly.
I am fully in accord with that part of Judge Tone’s opinion which relates to the duty of magistrates. Magistrates should exercise independent and discreet judgment in ruling on the sufficiency of applications for warrants. They should not allow themselves to be rubber stamps. If the issuance of warrants becomes a merely pro forma ceremony, the Fourth Amendment loses much of its vitality as a bulwark against the invasion of privacy. Neither trial nor appellate courts should be required to strain to find reasons to validate search warrants based on affidavits iri which the establishment of probable cause is at best ambigu *211 ous. Such straining produces an additional vice. Each instance in which courts do accept the approval by magistrates of search warrants of dubious validity encourages enforcement officials to narrow the boundaries set by the constitutional prohibition against unreasonable searches and seizures, further weakening the effective force of that prohibition.
I wish to add that the criticism I have voiced is not meant to apply to the many magistrates who do perform their duties properly.
Although I believe both United States v. Ventresca, 380 U.S. 102 , 85 S.Ct. 741 , 13 L.Ed.2d 684 (1965), and United States v. Carmichael, 489 F.2d 983 (7th Cir. 1973), cited by Judge Tone in his opinion, can be distinguished from the present case on their facts so as to make them inapposite, I choose not to attempt the analysis.' My concurrence is based upon a conscientious “hunch” that agent Heart’s information about the informant came from other law enforcement officials.