Spinelli v. United States/Dissent Fortas
Mr. Justice FORTAS, dissenting.
My Brother HARLAN'S opinion for the Court is animated by a conviction which I share that '(t)he security of one's privacy against arbitrary intrusion by the police-which is at the core of the Fourth Amendment-is basic to a free society.' Wolf v. Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782 (1949).
We may well insist upon a sympathetic and even an indulgent view of the latitude which must be accorded to the police for performance of their vital task; but only a foolish or careless people will deduce from this that the public welfare requires or permits the police to disregard the restraints on their actions which historic struggles for freedom have developed for the protection of liberty and dignity of citizens against arbitrary state power.
As Justice Jackson (dissenting) stated in Brinegar v. United States, 338 U.S. 160, 180-181, 69 S.Ct. 1302, 1313, 93 L.Ed. 1879 (1949):
'(The provisions of the Fourth Amendment) are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.'
History  teaches us that this protection requires that the judgment of a judicial officer be interposed between the police, hot in pursuit of their appointed target, and the citizen;  that the judicial officer must judge and not merely rubber-stamp; and that his judgment must be based upon judicially reliable facts adequate to demonstrate that the search is justified by the probability that it will yield the fruits or instruments of crime or, as this Court has only recently ruled, tangible evidence of its commission.  The exceptions to the requirement of a search warrant have always been narrowly restricted  because of this Court's long-standing awareness of the fundamental role of the magistrate's judgment in the preservation of a proper balance between individual freedom and state power. See Trupiano v. United States, 334 U.S. 699, 700, 68 S.Ct. 1229, 1230, 92 L.Ed. 1663 (1948).
Today's decision deals, not with the necessity of obtaining a warrant prior to search, but with the difficult problem of the nature of the showing that must be made before the magistrate to justify his issuance of a search warrant. While I do not subscribe to the criticism of the majority expressed by my Brother BLACK in dissent, I believe-with all respect-that the majority is in error in holding that the affidavit supporting the warrant in this case is constitutionally inadequate.
The affidavit is unusually long and detailed. In fact, it recites so many minute and detailed facts developed in the course of the investigation of Spinelli that its substance is somewhat obscured. It is paradoxical that this very fullness of the affidavit may be the source of the constitutional infirmity that the majority finds. Stated in language more direct and less circumstantial than that used by the FBI agent who executed the affidavit, it sets forth that the FBI has been informed that Spinelli is accepting wagers by means of telephones numbered WY 4 0029 and WY 4-0136; that Spinelli is known to the affiant agent and to law enforcement agencies as a bookmaker; that telephones numbered WY 4-0029 and WY 4-0136 are located in a certain apartment; that Spinelli was placed under surveillance and his observed movements were such as to show his use of that apartment and to indicate that he frequented the apartment on a regular basis.
Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), holds that the reference in an affidavit to information described only as received from 'a confidential reliable informant,' standing alone, is not an adequate basis for issuance of a search warrant. The majority agrees that the 'FBI affidavit in the present case is more ample than that in Aguilar,' but conclude that it is nevertheless constitutionally inadequate. The majority states that the present affidavit fails to meet the 'two-pronged test' of Aguilar because (a) it does not set forth the basis for the assertion that the informer is 'reliable' and (b) it fails to state the 'underlying circumstances' upon which the informant based his conclusion that Spinelli was engaged in bookmaking.
The majority acknowledges, however, that its reference to a 'two-pronged test' should not be understood as meaning that an affidavit deficient in these respects is necessarily inadequate to support a search warrant. Other facts and circumstances may be attested which will supply the evidence of probable cause needed to support the search warrant. On this general statement we are agreed. Our difference is that I believe such facts and circumstances are present in this case, and the majority arrives at the opposite conclusion.
Aguilar expressly recognized that if, in that case, the affidavit's conclusory report of the informant's story had been supplemented by 'the fact and results of * * * a surveillance * * * this would, of course, present an entirely different case.' 378 U.S., at 109, n. 1, 84 S.Ct., at 1511. In the present case, as I view it, the affidavit showed not only relevant surveillance, entitled to some probative weight for purposes of the issuance of a search warrant, but also additional, specific facts of significance and adequate reliability: that Spinelli was using two telephone numbers, identified by an 'informant' as being used for bookmaking, in his illegal operations; that these telephones were in an identified apartment; and that Spinelli, a known bookmaker,  frequent the apartment. Certainly, this is enough.
A policeman's affidavit should not be judged as an entry in an essay contest. It is not 'abracadabra.'  As the majority recognizes, a policeman's affidavit is entitled to common-sense evaluation. So viewed, I conclude that the judgment of of the Court of Appeals for the Eighth Circuit should be affirmed.
^1 'The knock at the door, whether by day or by night, as a prelude to a search, without authority of law but solely on the authority of the police, did not need the commentary of recent history to be condemned as inconsistent with the conception of human rights enshrined in the history and the basic constitutional documents of English-speaking peoples.' Wolf v. Colorado, 338 U.S. 25, 28, 69 S.Ct. 1359, 1361 (1949). See United States v. Rabinowitz, 339 U.S. 56, 69-70, 70 S.Ct. 430, 436-437, 94 L.Ed. 653 (1950) (Frankfurter, J., dissenting). See generally with respect to the history of the Fourth Amendment N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution (1937).
^5 Although Spinelli's reputation standing alone would not, of course, justify the search, this Court has held that such a reputation may make the informer's report 'much less subject to scepticism than would be such a charge against one without such a history.' Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960).