# Amicus Curiae Brief — United States v. Harris

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0314%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1971
- **Citation:** 403 U.S. 573

## Text

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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.

——

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.

_—

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

_

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.

_—

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.

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