Amicus Curiae Brief — United States v. Harris

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INDEX.

Motion for Leave to File Brief as Amicus Curiae .. 1

Interest of the Amicus Curiae ................+55. 2

Argument :

1. The Importance of This Case to the Police .. 5

2. The Question of Standards for Interpretation

of Search Warrants, Common Sense and Real-

istic versus Hypertechnical and Rigid ...... 7

38. The Informant Issue: The ‘‘Good Citizen’’ or

ttOne Time?’ Intormamt ¢ sii .saewls dedeiwe, 11

OO NRE S SE, ETE Te 14

TABLE oF AUTHORITIES.

Aguilar v. Texas, 378 U.S. 108 ...............0008. 10

Chambers v. Maroney, ..... U. S. .., 90 S. Ct. 1975. .14 (f. 9)

Chapman v. United States, 316 U. S. 610 ............ 10

Chimel v. California, 395 U. S. 752 .............. 4,5, 7

Draper v. United States, 358 U. S. 307 .............. 9

Gonzales v. Beto, CA 5, 425 F. 2d 963 .............. 10

Harris v. United States, CA 6, 412 F. 2d 796 ........ 7

Ker v. California, 374 U. S. 23 ............. 5 (f. 1), 6

Kislin v. New Jersey, CA 3, 429 F. 2d 950 .......... 9

A OS ee ee eee rere 5 (f. 1)

Metros et al. v. District Court, CA 10, No. 432-70

SE 45 haa Was WD BR GN UERMD £ 0a oh b% Grredwales be 2

Miranda v. Arizona, 384 U. S. 436 .................. 3

McCray v. Illinois, 386 U.S. 300 ................. “ae

McCreary v. Sigler, CA 8, 406 F. 2d 1264 .......... 9

LOE LEE ENO ONE NT et

ii

Ovense v. Tomas, B06 U. &. TBA... 2... kc ec ceccccsae 3

Spinelli v. United States, 393 U. S. 410 ............, 9

United States v. Mitchell, CA 8, 425 F. 2d 1353 .... 9, 19

United States v. Rabinowitz, 339 U. S. 56 ........... 5

United States v. Ventresca, 380 U. S. 102 ...... 8, 9, 10

OrHer AUTHORITIES.

Brief of the United States in the Instant Case ....7, 8 1)

Brief of Americans for Effective Law Enforcement,

Inc., et al. as amicus curiae in Hill v. California, No,

730, October Term, 1970, Reargument ............

i Vie Aneeed AD Reda ohamhaRnteehers 2, 4, 5 (f. 2), 6 (£. 3)

Brief of Americans for Effective Law Enforcement,

Inc. as amicus curiae in Terry v. Ohio, 392 U.S. 1..2,4

By-Laws of Americans for Effective Law Enforce-

ree Te Sree eee Pek Seer rer rg 2

President’s Commission on Law Enforcement and Ad-

UTOITIEE SE PUI no one sass cceks cassccakeue 3

IN THE

Supreme Court of the Anited States

Octoser TERM, 1970.

No. 30.

THE UNITED STATES OF AMERICA,

Petitioner,

vs.

ROOSEVELT Hi'DSON HARRIS,

Respondent.

N WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT.

MOTION FOR LEAVE TO FILE BRIEF AS

AMICUS CURIAE.

Americans for Effective Law Enforcement, Ine., re-

spectfully moves this Court for permission to file a brief

1s amicus curiae in support of the United States in the

ase of the United States v. Roosevelt Hudson Harris, No.

30, October, 1970 Term. We have been advised by the

Clerk of this Court that the original defense attorney

‘n this case cannot be located and that there is some

question as to whether he will be continued in the case.

We have secured the permission of the Solicitor General

of the United States to file and a copy of a letter to this

effect has been filed with the clerk. As the defense at-

torney is unavailable, we are moving the Court directly

for permission to file.

BRIEF OF AMERICANS FOR EFFECTIVE LAw

ENFORCEMENT AS AMICUS CURIAE.

INTEREST OF THE AMICUS CURIAE.

Americans for Effective Law Enforcement, In.

(AELE), is a national, not-for-profit, non-partisan, nop.

political organization incorporated under the laws of the

State of Illinois. AELE has received a tax exempt ruling

from the Internal Revenue Service as an educational cor.

poration. As stated in its by-laws the purposes of AELE

are:

1. To explore and consider the needs and require.

ments for the effective enforcemeat of the criminal

law.

2. To inform the public of these needs and require.

ments, to the end that the courts will administer

justice based upon a due concern for the general

welfare and security of law abiding citizens.

3. To assist the police, the prosecution, and the courts

in promoting a more effective and fairer adminis.

tration of the criminal laws.

AELE also has such. powers as are now or may hereinafter

be granted by the General Not For Profit Corporation

Act of the State of Illinois.

AELE has appeared in this Court as Amicus Curiae in

the Cases of Terry v. Ohio, 392 U.S. 1, and Hill v. Califor-

nia, No. 730, October 1970 term, re-argued October 21,

1970. We have also appeared as Amicus Curiae in the

United States Court of Appeais for the Tenth Circuit in

Metros et al. v. District Court, No. 432-70, 1970.

The interest of AELE is to represent the concern of the

average citizen with the problems of crime and with police

3

effectiveness. We seek to articulate to the Court the

very real problems that confront law enforcement in this

country, in order that the Court may weigh such problems

in deciding cases which will have a vital impact on police

effectiveness.

As the Report of the President’s Commission on Law

Enforcement and Administration of Justice (p. 94) has

pointed out:

“ | many... decisions [are] made without the

needs of law enforcement, and the police policies that

are designed to meet those needs, being effectively

presented to the court. If judges are to balance ac-

curately law enforcement needs and human rights,

the former must be articulated. They seldom are.

Few legislatures and police administrators have de-

fined in detail how and under what conditions certain

police practices are to be used. As a result, the courts

often must rely on intuition and common sense in judg-

ing what kinds of police action are reasonable or neces-

sary, even though their decisions about the actions of

one police officer can restrict police activity in the

entire nation (emphasis added).

The articulation called for by the President’s Commis-

sion is what we seek to accomplish. Further, as amicus

curiae we are in a position to give a voice to what we be-

lieve are the views of the law enforcement profession as

a whole, unrestricted by the needs or desires to uphold

a particular decision or to sustain a particular arrest or

search.

The instant case is, we believe, a case of extreme sig-

nificance to the effectiveness of law enforcement as a

whole. Search and seizure cases are, so far as the police

are concerned, perhaps the most important class of cases

this court considers. This Court’s prior decisions in the

area of confessions Miranda v. Arizona, 384 U. S. 436;

Orozco v. Texas, 394 U. S. 324 leave no doubts as to the

4

Court’s preference for the use of physical evidence agains

an accused rather than evidence elicited from the accused

himself. Search and seizure is, or course, the means by

which the police acquire physical evidence.

The issue presented in the instant case—the interpreta.

tion of affidavits for search warrants—is vital to effective

search and seizure procedures. In addition, this is the

first significant case dealing with search warrants that

this Court has agreed to review since Chimel v. California,

395 U. S. 752, greatly expanded the requirement of the

use of search warrants by the police. We have empirical

data to present to the Court as to the impact of Chimel on

law enforcement which we believe will aid the Court jp

this case, and as in our amicus curiae briefs in Terry y,

Ohio, supra, and Hill v. California, supra, we will present

to the Court the police position in a practical rather than

a theoretical context.

Thus, because of our concern to represent the law abid-

ing segment of society through support for proper, non-

abusive law enforcement—and because of the significance

of the instant case—we believe that we have a real in-

terest in appearing as amicus curiae.

<a

ARGUMENT.

1. The Importance of This Case to the Police.

This case has a singular importance for the police of

this country because it is the first significant search war-

rant case that this court has agreed to review, since its,

decision in Chimel v. California, 395 U. S. 752 (June, —

1969). As this Court is aware, Chimel drastically changed

the law of search and seizure insofar as searches of prem-

ises are concerned. Whereas prior to Chimel the general

rule was that all of a given premises under an arrestee’s

control could be lawfully searched incident to his arrest on

such premises (United States v. Rabinowitz, 339 U. 8. 56),

now the scope of such searches must be confined to the

“immediate area’’ of the arrestee. The net effect of the

Chimel decision on working police officers is that they

must procure search warrants in by far the greatest

majority of cases. The greatly expanded search warrant

system mandated by Chimel gives to this case a special

significance simply because it is a search warrant case."

We do not wish to belabor the point that Chimel has had

a startling effect on police procedures 2 however, AELE

1. Mr. Justice Harlan noted this point in his concurring opinion

in Chimel. After pointing out that Mapp v. Ohio, 367 U. S. 643,

and Ker v. California, 374 U. S. 23, require that changes in Fourth

Amendment law enunciated by this court must be followed by state

officers, nation-wide, he stated:

We simply do not know the extent to which cities and towns

across the nation are prepared to administer the greatly ex-

panded warrant system which will be required by to-day’s

decision... . (395 U. S. 752 at 769).

2. Examples of some of the other problems raised for the police

by Chimel were presented to this Court in the amicus curiae brief

filed by Americans for Effective Law Enforcement et al. in the case

of Hill v. California, No. 730 on reargument before this Court

October term 1970.

6

would like to offer to the Court two brief examples of ¢),

impact of that case on local police departments.

1. In September of 1969 the Los Angeles Police D..

partment conducted a study of the effects of Chime

in that city. Search and seizure cases in March of

1969, three months prior to the Chimel decision, wer

reviewed. This study indicated that there were 4%

incidents in March that would have required differen

police procedures had Chimel then been in effeg.

Projected on an annual basis this figure would ap.

proximate 5,200 such incidents in Los Angeles alone —

The same study estimated that the Chimel decision

would cost the Los Angeles Police Department an ad.

ditional 86,000 man hours annually at a monetary

cost of $464,000 per vear.* 3

2. The following figures from the files of the Denver

District Court show the number of search warrants

secured by the Denver Police during six month pe.

riods :

January-June 1969 (just prior to Chimel) 162

June-December 1969 (just after Chimel) 259

RP, ee 383

The increased search warrant activity after Chimel

is obvious, in the first six month period of 1970 the

number of search warrants more than doubled over

the same period a year before.

These figures from Los Angeles and Denver clearly por-

tray the extent to which Chimel has increased the necessity

for police use of search warrants. We urge the Court

to consider the instant case, which deals with the question

3. This study is contained in a Los Angeles Police Department

report dated September 24, 1969 from Captain W. G. Brown,

Commander, Management Services Division, to Assistant Chief

Daryl F. Gates, Director, Administrative Services; Subject: Man

Hour Cost Study re: Chimel decision. Copies of this report were

lodged with this Court on October 21, 1970 by Mr. Ronald M.

George, Assistant Attorney General of the State of California when

he re-argued Hill v. California (No. 730 October 1970 Term), be-

fore the Court.

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7

of interpretation of search warrants, in the context of

Chimel’s command to the police that warrants must be

used in the vast majority of cases.

9. The Question of Standards for Interpretation of Search

Warrants: Common Sense and Realistic versus Hyper-

technical and Rigid.

The instant case deals with the basic question of how

search warrants are to be interpreted by the lower courts.*

As was pointed out above, the importance of the answer

to this question has been magnified by Chimel’s require-

ment of greatly increased use of search warrants by the

police. The instant case presents the interpretation ques-

tion in sharp focus. The facts are not in dispute and have

been set out fully by the United States in its brief, at pages

3 through 6, therefore only the briefest re-capitulation is

needed here.

The question presented involves the interpretation of an

affidavit for a search warrant, the execution of which re-

sulted in the discovery of illicit liquor. Respondent’s motion

to suppress the search warrant as insufficient to establish

probable cause was denied by the trial court’ and he was

convicted of possessing non-taxpaid liquor. On appeal,

the United States Court of Appeals for the Sixth Circuit

reversed, holding that the affidavit for search warrant was

iusufficient to establish probable cause, 412 F. 2d 796. The

Government petitioned for a writ of certiorari which was

granted by this Court on February 24, 1970.

The affidavit for search warrant in question, filed by a

federal Aleohol and Tobacco Tax Special Investigator, was

4 For the sake of brevity we will use the term ‘*search war-

rant’? to apply to the warrant itself as well as the underlying

affidavit.

5. United States District Court for the Eastern District of

Kentucky. The testimony in the motion to suppress may be found

in the appendix to the brief of the United States in the instant case.

8

based on respondent Harris’ reputation with the affian

for being a moonshine trafficker; information received by

the affiant about Hs’ activities; location of a stash of

illicit liquor on premises under Harris’ control on an earlier

date ; and on a sworn statement from an unnamed informant

who had recently purchased liquor from Harris. This

sworn statement described Harris’ whiskey selling opera.

tion in detail and the affiant stated that he had interviewa

the informant and found the informant to be a pradent

person.®

The United States in its brief, pages 8 through 16, argues

that the affidavit for search warrant in this case did, jp

fact, establish probable cause when viewed in a common

sense manner, and the United States further contends that

the lower court interpreted the affidavit in a ‘‘rigid, tech.

nical manner that loses sight of the relevant inquiry” (Br.

page 10), AELE will not reiterate these arguments except

to express our complete agreement with and support for the

Government’s position. We will turn, rather, to the more

fundamental question, vital to law enforcement, of the

standards that should be applied in the interpretation of

search warrants by reviewing courts. We submit that this

ease presents this Court with an opportunity to lay down

the basic interpretative rule for lower courts to follow and

that such a rule should be characterized by common sense

and realism.

Surely the prior pronouncements of this Court make it

clear that a common sense approach is preferable. United

States v. Ventresca, 380 U. S. 102, stands firmly for the

principle that:

... affidavits for search warrants . . . must be tested by

and interpreted by magistrates and courts in a common

sense and realistic fashion (p. 108).

6. The affidavit is reprinted in the appendix to the brief of the

United States in the instant case.

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9

This principle was most recently reaffirmed by this Court

in Spinelli v. United States, 393 U. S. 410 (1969). In that

case an affidavit for search warrant was found insufficient,

hut the principle of common sense interpretation of Ven-

tresca, Supra, Was explicity affirmed. 393 U. 8. 410 at 419.

Further, in the related area of probable cause to arrest,"

this Court has never retreated from the flexible, common

sense approach taken in Draper v. United States, 358 U. S.

307, in which detailed information provided by an inform-

ant, corroborated by the officers’ observations was held

sufficient to justify an arrest and search (See also United

States v. Mitchell, CA 8, 425 F. 2d 1353 (4/14/70), in which

then Judge Blackmun applied Draper to sustain an arrest

and search).

The common sense approach to search warrants can be

found emphasized in the Federal Cireuits time and again.

For example, the Second Cireuit in United States v. Dun-

nings, 425 F. 2d 836 (11/17/69) :

But here the admonition in United Siates v. Ventresca,

380 UT. S. 102, 108} (1965), against reading such affi-

davits with undue technicality comes into play (p. 839).

Similarly the Third Cireuit in Kislin v. New Jersey, 429 F.

94 950, (7/9/70) sustained a ‘‘horderline’’ search warrant

and applied a realistic approach emphasizing the often-

announced rule of the preference for search warrants.

The Eighth Cireuit in McCreary v. Sigler, 406 F. 2d 1264

cert. den. 396 U. S. 829 (2/18/69) summed up the interpreta-

tived rule:

In dealing with the sufficiency of affidavits (1) only a

probability of criminal conduct need be shown, (2)

standards less rigorous than rules of evidence deter-

mine sufficiency, (3) common sense controls, and (4)

great deference should be shown by the courts to a

magistrates determination of probable cause (p. 1268).

7. In Spinelli, supra, Mr. Justice Harlan pointed out that the

analysis concerning probable cause to arrest and probable cause for

a search warrant is basically the same. 393 U. S. 410, ft. 5.

10

Thus the weight of judicial authority is clearly on t,

side of realistic review of search warrants. In addition,

we urge the Court to consider the question from the point

of view of the police officers themselves. In Goneales y

Beto, 425 F. 2d 963 (5/6/70) the United States Court of

Appeals for the Fifth Circuit sustained two search warrants

against the restrictive interpretation imposed by the distri¢

courts upon the supporting affidavits. In so doing, the

Court gave a surprisingly accurate description of the prae.

tical side of police work in securing warrants:

It is not the intent of the Aguilar and Spinelli de.

cisions to make it difficult for a policeman to get q

warrant if in fact he has probable cause. On the cop.

trary, the cases contemplate that an affiant with some

basic understanding of the law can get a warrant if

he simply sits down and explains why (p. 970).

Thus, the average police officer, in attempting to draft

an affidavit for search warrant, is expected to ‘‘simply sit

down and explain why’’ he believes he has probable cause.

Mr. Justice Clark has characterized the policeman as

‘*.. . anxious to obey the rules that circumscribe his con-

duct [in the search and seizure area] . . .’’ Chapman vy.

United States, 316 U. S. 610 at 622 (dissenting opinion).

This characterization is accurate; the policeman does want

to obey the rules, but the policeman is not a lawyer in most

instances, and as was pointed out in United States v. Ven.

tresca, supra:

Technical requirements of elaborate specificity once

exacted under common law pleadings have no place in

this area. 380 U.S. 102 at 108.

The instant case is an excellent example of this principle.

The Alcohol Tax Investigator felt that he had probable

cause and he attempted to explain why. The affidavit in

the instant case is no literary masterpiece nor is it a stun-

ning piece of legal drafting—but it is not supposed to be.

oe ey

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11

We submit, and we urge the Court to hold, that when it is

yjewed in a common sense and realistic fashion, the affidavit

for search warrant in the instant case tells a coherent

story which would cause a reasonable man to believe that

whiskey was located on Roosevelt Harris’ property; that

is, the affidavit establishes probable cause.

We state here, emphatically, that we do not contend that

just because an officer takes the time to draft an affidavit ap-

pellate courts should ‘‘rubber stamp”’ his action. Probable

cause remains the standard for search warrants. Our point

is based on the manner of interpreting the warrant to as-

certain if it states probable cause. We agree with the

government that in this case the lower court literally picked

the affidavit to pieces with a rigidity of interpretation that

was not warranted. We urge this Court to reverse this

interpretation by the lower court and to uphold the affidavit

as establishing probable cause. In so doing the Court

would be affirming the vital principle that common sense,

flexible, realistic, interpxetation of search warrants is, and

should be, the rule.

3. The Informant Issue: The ‘‘Good Citizen’’ or One

Time Informant.

There is a final isue of critical importance to the police

in this case, namely: whether they may lawfully act on

information from an informant whose credibility has been

established by means other than ‘‘prior reliability’’. The

United States has dealt with this issue in its brief at pages

13 and 14. The United States argues that there are cir-

cumstances in which a magistrate should be able to issue

a warrant on the basis of information from a person who

has never given information to the police before and who

does not want his identity revealed, usually from motives

of fear for the safety of himself or his family. We agree

with this contention.

12

McCray v. Illinois, 386 U. S. 300, makes it clear that ay

informant’s reliability can be shown by the fact that he

has given information in the past that has proved to be

reliable; but this should not constitute the only basis fo,

establishing reliability. The United States (Br. page 14)

sums up this point:

Law enforcement officers ought to be able to act op

information, even though the informer is unwilling to

reveal his identity, when his information is specific,

when he is willing to swear that he found the informer

credible, and when the information is consistent with

other facts known to law enforcement officers concern.

ing the subject’s reputation and activities.

This is basically a ‘‘rule of reason”’ in search warrant jp.

terpretation such as is urged upon this Court in the second

section of our argument. Our purpose in this section is to

present to the Court some practical situations® often en.

countered by the police in which the ‘‘one time”’ or ‘‘good

citizen’’ informant clearly falls within the qualifications for

reliability referred to in the Government’s brief:

(a) Actual case—Charlotte, N. C. Police Department.

A grocery store had been burglarized and the cash

register stolen. The informant, an 18 year old em.

ployee of the store, who had never furnished informa-

tion to the police before, saw the stolen cash register

in a house in the neighborhood and heard the occupant

boast of having stolen it. The informant did not wish

to be identified as he was afraid of reprisals.

8. The first example is an actual case now pending in North Caro-

lina which was sent to the writer by Mr. G. Patrick Hunter, Police

Attorney for the Charlotte, North Carolina Police Department. The

other examples are ‘‘hypothetical’’ in that no one particular case

is described ; however, they are common occurrences in police work

and are based on 10 years of personal police experience of the

writer of this brief (including three years as a Police Legal Ad-

visor) and discussions of this matter with other police officials. The

‘*hypothetical’’ situations are not far-fetched, but rather are every-

day situations that have arisen and could arise in any police

jurisdiction.

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13

A search warrant issued in this case. In order to

establish the reliability of the informant the police

swore to the following facts:

(1) the police interviewed the informant and were

of the opinion that he was reliable, that he had

observed the cash register in the suspect’s

home and that he could identify it;

(2) the police interviewed the informant’s em-

ployer and his neighbors who stated that he

was a reliable, accurate and honest individual ;

(3) the informant had no police record.

When the warrant was executed the cash register was

found.

(b) ‘<Qne-time’’ Informant Situations:

Maids—In many cases maids in motels and hotels

will, in the course of their cleaning duties, come across

stolen property or contraband. They often report these

findings to the police but in many cases they do not

wish to be identified, again for fear of reprisals.

Landlords and ‘custodians—These individuals are

somewhat analogous to the maids in that their duties

take them lawfully into other premises, yet they may

never have given information to the police before. On

many occasions the police receive reports from such

individuals that stolen property, narcotics or weapons

have been seen by them in apartments, rooms, ete.

Again, the incentive not to be identified is present, yet

there may be every reason to believe that they are tell-

ing the truth.

Parents—Parents, these days, are particularly con-

cerned with the use of narcotics by their children and

are generally on the alert for conversations about drugs

that their children may engage in. In a Colorado situa-

tion, a mother overheard her son and a friend discuss-

ing in detail plans for a ‘‘pot party’’ at the friend’s

house that night. She went to the police with this infor-

.

mation; yet, as she had not given information before,

14

she did not fit the classic ‘‘reliable informant’’ patter,

Her ‘‘credibility’’, it would surely seem, would be ge.

tablished under these facts.

These are only a few examples of situations in which the

‘fone time”’ or ‘‘good citizen’’ informant furnishes infor.

mation to the police that has all of the earmarks of being

worthy of belief. Further, in these cases, the informant has

no reason to lie. We submit that, where the officers ea

swear that they believe such persons to be credible, where

there is specific and detailed information,® where other

facts known to the officers are consistent with the informa.

tion, and where the informant has sworn to the truth of the

information—this ‘‘totality’’ of circumstances, viewed in a

common sense manner, should surely constitute probable

cause for a search warrant. Such is the situation in the

instant case and we again urge the Court to uphold the

search warrant in that case.

Conclusion.

The interest'of Americans for Effective Law Enforce.

ment in filing this brief as amicus curiae has been to speak

out for effective law enforcement in a case which we feel is

of major importance. As the first search warrant case since

Chimel v. California, supra, was decided the instant case is

important; as a case in which interpretative rules for search

warrants it is important; and, on the ‘‘good citizen’’ or

‘‘one time’’ informant issue it is important.

We urge the Court to reverse the Court of Appeals for

the Sixth Circuit and to sustain the validity of the affidavit

9. In a recent case dealing with automobile searches, Chambers

v. Maroney, ........ ee Sa , 90 S. Ct. 1975 (1970), this court

sustained an arrest and search based on the detailed description of

eyewitnesses even though the witnesses had never given informa-

tion to the police before. Is not a motel maid vho sees contraband

in pJain view, in a room where she has a right to be, an “‘eye-

witness’’ to the crime of possession of that contraband ?

_

15

for search warrant in the instant case. We submit that this

afidavit does in fact establish probable cause when viewed

in the common sense realistic manner that this Court and

lower courts have often stated should be the interpretative

rule.

Respectfully submitted,

Frank G. Carrincton Jr., Esq,

228 North LaSalle Street,

Chicago, Illinois 60601,

Executive Director,

Americans for Effective

Law Enforcement, Inc.

Auan S. Ganz, Esa,

104 South Michigan Avenue,

Chicago, Illinois 60603,

Secretary-Treasurer,

Americans for Effective

Law Enforcement, Inc.