Mr. Justice HARLAN, concurring.
But for Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, I would have voted to affirm the judgment of the Texas court. Given Ker, I cannot escape the conclusion that to do so would tend to 'relax Fourth Amendment standards * * * in derogation of law enforcement standards in the federal system * * *' (my concurring opinion in Ker, supra, 374 U.S. at 45-46, 83 S.Ct. at 1646). Contrary to what is suggested in the dissenting opinion of my Brother CLARK in the present case (post, p. 118, note 1), the standards laid down in Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503, did in my view reflect constitutional requirements. Being unwilling to relax those standards for federal prosecutions, I concur in the opinion of the Court.
Mr. Justice CLARK, whom Mr. Justice BLACK and Mr. Justice STEWART join, dissenting.
First, it is well to point out the information upon which the search warrant in question was based: About January 1, 1960, Officers Strickland and Rogers from the narcotics division of the Houston Police Department received reliable information from a credible person that petitioner Aguilar had heroin and other narcotic drugs and narcotic paraphernalia in his possession at his residence, 509 Pinckney Street, Houston, Texas; after receiving this information the officers, the record indicates, kept the premises of petitioner under surveillance for about a week.
On January 8, 1960, the two officers applied for a search warrant and executed an affidavit before a justice of the peace in which they alleged under oath that petitioner's residence at 509 Pinckney Street 'is a place where we each have reason to believe and do believe that (Aguilar) * * * has in his possession therein narcotic drugs * * * for the purpose of the unlawful sale thereof, and where such narcotic drugs are unlawfully sold.' In addition and in support of their belief, the officers included in the affidavit the further allegation that they 'have received reliable information from a credible person and do believe that heroin * * * and other narcotics and narcotic paraphernalia are being kept at * * * (petitioner's) premises for the purpose of sale and use contrary to the provisions of the law.'
Upon executing the warrant issued on the strength of this affidavit, the officers knocked on the door of Aguilar's house. Someone inside asked who was there and the officers replied that they were police and that they had a search warrant. At this they heard someone 'scuffle and start to run inside of the house.' The officers entered and pursued the petitioner, who ran into a back bathroom. Petitioner threw a packet of heroin into the commode, but an officer retrieved the packet before it could be flushed down the drain.
At trial petitioner objected to the introduction into evidence of the heroin obtained through execution of the search warrant on the ground that the affidavit was 'nothing more than hearsay.' The Court holds the affidavit insufficient and sets aside the conviction on the basis of two cases, neither of which is controlling.
First is Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933). In that case the affidavit stated that the affiant had 'cause to suspect and (did) believe that certain merchandise' was n the premises described. There was nothing in Nathanson, either in the affidavit or in the other proof introduced at trial, to suggest that any facts had been brought out to support a reasonable belief or even a suspicion. Accordingly, the Court held that '(m)ere affirmance of belief or suspicion is not enough.' 290 U.S. at 47, 54 S.Ct. at 13. But in Fourth Amendment cases findings of reasonableness or of probable cause necessarily rest on the facts and circumstances of each particular case. In Aguilar, the affidavit was based not only on 'affirmance of belief' but in addition upon 'reliable information from a credible person' plus a week's surveillance by the affiants. (Emphasis supplied.) Nathanson is, therefore, not apposite.