author: Me. Justice Goldberg Mr. Justice Douglas,

text:
    UNITED STATES v. VENTRESCA.
    No. 28.
    Argued January 18-19, 1965.

    Decided March 1, 1965.

      Frank I. Goodman argued the cause for the United States. On the brief were Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Ronald L. Gainer.

      Matthew R. McCann argued the cause for respondent. With him on the brief was Edward C. Maher.

   Me. Justice Goldberg

delivered the opinion of the Court.

Respondent, Ventresca, was convicted in the United States District Court for the District of Massachusetts of possessing and operating an illegal distillery. The conviction was reversed by the Court of Appeals (one judge dissenting) on the ground that the affidavit for a search warrant pursuant to which the still was found was insufficient to establish probable cause. 324 F. 2d 864.

The affidavit upon which the warrant was issued was made and submitted to a United States Commissioner on August 31, 1961, by Walter Mazaka, an Investigator for the Alcohol and Tobacco Tax Division of the Internal Revenue Service. He stated that he had reason to believe that an illegal distillery was in operation in respondent, Ventresca’s, house at 148y2 Coburn Avenue in Worcester, Massachusetts. The grounds for this belief were set forth in detail in the affidavit, prefaced with the following statement:

“Based upon observations made by me, and based upon information received officially from other Investigators attached to the Alcohol and Tobacco Tax Division assigned to this investigation, and reports orally made to me describing the results of their observations and investigation, this request for the issuance of a search warrant is made.”

The affidavit then described seven different occasions between July 28 and August 30,1961, when a Pontiac car was driven into the yard to the rear of Ventresca’s house. On four occasions the car carried loads of sugar in 60-pound bags; it made two trips loaded with empty tin cans; and once it was merely observed as being heavily laden. Garry, the car’s owner, and Incardone, a passenger, were seen on several occasions loading the car at Ventresca’s house and later unloading apparently full five-gallon cans at Garry’s house late in the evening. On August 28, after a delivery of empty tin cans to Ven-tresca’s house, Garry and Incardone were observed carrying from the house cans which appeared to be filled and placing them in the trunk of Garry’s car. The affidavit went on to state that at about 4 a. m. on August 18, and at about 4 a. m. on August 30, “Investigators” smelled the odor of fermenting mash as they walked along the sidewalk in front of Ventresca’s house. On August 18 they heard, “[a]t or about the same time, . . . certain metallic noises.” On August 30, the day before the warrant was applied for, they heard (as they smelled the mash) “sounds similar to that of a motor or a pump coming from the direction of” Ventresca’s house. The affidavit concluded: “The foregoing information is based upon personal knowledge and information which has been obtained from Investigators of the Alcohol and Tobacco Tax Division, Internal Revenue Service, who have been assigned to this investigation.”

The District Court upheld the validity of the warrant on a motion to suppress. The divided Court of Appeals held the warrant insufficient because it read the affidavit as not specifically stating in so many words that the information it contained was based upon the personal knowledge of Mazaka or other reliable investigators. The Court of Appeals reasoned that all of the information recited in the affidavit might conceivably have been obtained by investigators other than Mazaka, and it could not be certain that the information of these other investigators was not in turn based upon hearsay received from unreliable informants rather than their own personal observations. For this reason the court found that probable cause had not been established. 324 F. 2d, at 868-870. We granted certiorari to consider the standards by which a reviewing court should approach the interpretation of affidavits supporting warrants which have been duly issued by examining magistrates. 377 U. S. 989. For the reasons stated below, we reverse the judgment of the Court of Appeals.

I.

The Fourth Amendment states:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

We begin our analysis of this constitutional rule mindful of the fact that in this case a search was made pursuant to a search warrant. In discussing the Fourth Amendment policy against unnecessary invasions of privacy, we stated in Aguilar v. Texas, 378 U. S. 108:

“An evaluation of the constitutionality of a search warrant should begin with the rule that ‘the informed and deliberate determinations of magistrates empowered to issue warrants . . . are to be preferred over the hurried action of officers . . . who may happen to make arrests.’ United States v. Lefkowitz, 285 U. S. 452, 464. The reasons for this rule go to the foundations of the Fourth Amendment.” 378 U. S., at 110-111.

In Jones v. United States, 362 U. S. 257, 270, this Court, strongly supporting the preference to be accorded searches under a warrant, indicated that in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall. In Johnson v. United States, 333 U. S. 10, and Chapman v. United States, 365 U. S. 610, the Court, in condemning searches by officers who invaded premises without a warrant, plainly intimated that had the proper course of obtaining a warrant from a magistrate been followed and had the magistrate on the same evidence available to the police made a finding of probable cause, the search under the warrant would have been sustained. Mr. Justice Jackson stated for the Court in Johnson:

"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers.” Johnson v. United States, supra, at 13-14.

The fact that exceptions to the requirement that searches and seizures be undertaken only after obtaining a warrant are limited underscores the preference accorded police action taken under a warrant as against searches and seizures without one.

While a warrant may issue only upon a finding of “probable cause,” this Court has long held that “the term ‘probable cause’ . . . means less than evidence which would justify condemnation,” Locke v. United States, 7 Cranch 339, 348, and that a finding of “probable cause” may rest upon evidence which is not legally competent in a criminal trial. Draper v. United States, 358 U. S. 307, 311. As the Court stated in Brinegar v. United States, 338 U. S. 160, 173, “There is a large difference between the two things to be proved [guilt and probable cause], as well as between the tribunals which determine them, and therefore a like difference in the quanta and modes of proof required to establish them.” Thus hearsay may be the basis for issuance of the warrant “so long as there [is] a substantial basis for crediting the hearsay.” Jones v. United States, supra, at 272. And, in Aguilar we recognized that “an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant,” so long as the magistrate is “informed of some of the underlying circumstances” supporting the affiant's conclusions and his belief that any informant involved “whose identity need not be disclosed . . . was ‘credible’ or his information ‘reliable.’ ” Aguilar v. Texas, supra, at 114.

These decisions reflect the recognition that the Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

This is not to say that probable cause can be made out by affidavits which are purely conclusory, stating only the affiant’s or an informer’s belief that probable cause exists without detailing any of the “underlying circumstances” upon which that belief is based. See Aguilar v. Texas, supra. Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. However, where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertech-nical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. Jones v. United States, supra, at 270.

II.

The application of the principles stated above leads us to reverse the Court of Appeals. The affidavit in this case, if read in a commonsense way rather than technically, shows ample facts to establish probable cause and allow the Commissioner to issue the search warrant. The affidavit at issue here, unlike the affidavit held insufficient in Aguilar, is detailed and specific. It sets forth not merely “some of the underlying circumstances” supporting the officer’s belief, but a good many of them. This is apparent from the summary of the affidavit already recited and from its text which is reproduced in the Appendix.

The Court of Appeals did not question the specificity of the affidavit. It rested its holding that the affidavit was insufficient on the ground that “[t]he affidavit failed to clearly indicate which of the facts alleged therein were hearsay or which were within the affiant’s own knowledge,” and therefore “[t]he Commissioner could only conclude that the entire affidavit was based on hearsay.” 324 F. 2d, at 868. While the Court of Appeals recognized that an affidavit based on hearsay will be sufficient, “so long as a substantial basis for crediting the hearsay is presented,” Jones v. United States, supra, at 269, it felt that no such basis existed here because the hearsay consisted of reports by “Investigators,” and the affidavit did not recite how the Investigators obtained their information. The Court of Appeals conceded that the affidavit stated that the Investigators themselves smelled the odor of fermenting mash, but argued that the rest of their information might itself have been based upon hearsay thus raising “the distinct possibility of hearsay-upon-hearsay.” 324 F. 2d, at 869. For this reason, it held that the affidavit did not establish probable cause.

We disagree with the conclusion of the Court of Appeals. Its determination that the affidavit might have been based wholly upon hearsay cannot be supported in light of the fact that Mazaka, a Government Investigator, swore under oath that the relevant information was in part based “upon observations made by me” and “upon personal knowledge” as well as upon “information which has been obtained from Investigators of the Alcohol and Tobacco Tax Division, Internal Revenue Service, who have been assigned to this investigation.” It also seems to us that the assumption of the Court of Appeals that all of the information in Mazaka’s affidavit may in fact have come from unreliable anonymous informers, passed on to Government Investigators, who in turn related this information to Mazaka is without foundation. Mazaka swore that, insofar as the affidavit was not based upon his own observations, it was “based upon information received officially from other Investigators attached to the Alcohol and Tobacco Tax Division assigned to this investigation, and reports orally made to me describing the results of their observations and investigation.” (Emphasis added.) The Court of Appeals itself recognized that the affidavit stated that “ ‘Investigators’ [employees of the Service] smelled the odor of fermenting mash in the vicinity of the suspected dwelling.” 324 F. 2d, at 869. A qualified officer’s detection of the smell of mash has often been held a very strong factor in determining that probable cause exists so as to allow issuance of a warrant. Moreover, upon reading the affidavit as a whole, it becomes clear that the detailed observations recounted in the affidavit cannot fairly be regarded as having been made in any significant part by persons other than full-time Investigators of the Alcohol and Tobacco Tax Division of the Internal Revenue Service. Observations of fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number. We conclude that the affidavit showed probable cause and that the Court of Appeals misapprehended its judicial function in reviewing this affidavit by giving it an unduly technical and restrictive reading.

This Court is alert to invalidate unconstitutional searches and seizures whether with or without a warrant. See Aguilar v. Texas, supra; Stanford v. Texas, 379 U. S. 476; Preston v. United States, 376 U. S. 364; Beck v. Ohio, 379 U. S. 89. By doing so, it vindicates individual liberties and strengthens the administration of justice by promoting respect for law and order. This Court is equally concerned to uphold the actions of law enforcement officers consistently following the proper constitutional course. This is no less important to the administration of justice than the invalidation of convictions because of disregard of individual rights or official overreaching. In our view the officers in this case did what the Constitution requires. They obtained a warrant from a judicial officer “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the . . . things to be seized.” It is vital that having done so their actions should be sustained under a system of justice responsive both to the needs of individual liberty and to the rights of the community.

Reversed.

APPENDIX TO OPINION OF THE COURT.

Affidavit for Search Warrant

Before W. Arthur Garrity, Worcester, Massachusetts The undersigned being duly sworn deposes and says:

That he has reason to believe that on the premises known as a one-family light green wooden frame dwelling house located at 148% Coburn- Avenue, Worcester, occupied by Giacomo Ventresca and his family, together with all approaches and appurtenances thereto, in the District of Massachusetts, there is now being concealed certain property, namely an unknown quantity of material and certain apparatus, articles and devices, including a still and distilling apparatus setup with all attachments thereto, together with an unknown quantity of mash, an unknown quantity of distilled spirits, and other material used in the manufacture of non-tax-paid liquors; which are being held and possessed, and which have been used and are intended for use, in the distillation, manufacture, possession, and distribution of non-tax-paid liquors, in violation of the provisions of 26 USC 5171 (a), 5173, 5178, 5179 (a), 5222 (a), 5602, and 5686.

And that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows:

See Attached Sheet
/s/ Walter A. Mazaka
Investigator, Alcohol and Tobacco Tax Div., Internal Revenue Service
Sworn to before me, and subscribed in my presence, August 31st, 1961
/s/ W. Arthur Garrity
United States Commissioner

Based upon observations made by me, and based upon information received officially from other Investigators attached to the Alcohol and Tobacco Tax Division assigned to this investigation, and reports orally made to me describing the results of their observations and investigation, this request for the issuance of a search warrant is made.

On or about July 28, 1961, about 6:45 P.M., an observation was made covering a Pontiac automobile owned by one Joseph Garry. Garry and one Joseph Incardone put thirteen bags of sugar into the car. These bags of sugar weighed sixty pounds each. Ten such bags were put into the trunk, and three were placed in the rear seat. Those in the rear seat were marked “Domino.” The others appeared to have similar markings. After the sugar was loaded into the car, Garry together with Incardone drove it to the vicinity of 148 Coburn Avenue, Worcester, Massachusetts, where the car was parked. Sometime later, the car with its contents was driven into the yard to the rear of 148 and between the premises 148 and 148% Coburn Avenue. After remaining there about twenty-five minutes, the same two men drove in the direction of Boston.

On August 2, 1961 a Pontiac car owned by Garry, and driven by Garry with Incardone as a passenger, was followed from Boston to Worcester. The car appeared heavily laden. Thé car was again driven into the driveway at 148 and 148% Coburn Avenue to the rear of the yard and between the above-numbered houses.

On August 7, 1961 at least six sixty-pound bags of Domino Sugar were loaded into the Pontiac owned by Garry. The loading was done by Garry and Incardone. The car traveled from Boston to Worcester, then to Holden, and returned with its contents and entered the driveway at 148 and 148% Coburn Avenue, where the car was parked at the rear between the two houses.

On August 11, 1961 new empty metal or tin cans were transferred from a car owned by Incardone to the Pontiac owned by Garry on Highland Street in Hyde Park. The Pontiac was driven by Garry with Incardone as a passenger to Worcester, and into the yard at 148 and 148% Co-burn Avenue to the rear and between the two numbered premises.

On August 16, 1961 the Pontiac was observed. In the back seat bags of sugar were observed covered with a cloth or tarpaulin. A sixty-pound bag of sugar was on the front seat. Garry was observed after loading the above-described sugar into the car placing a carton with various five-pound bags of sugar on the top of the tarpaulin. The car was then driven by Garry with Incardone as a passenger to Worcester together with its contents into the yard at 148 and 148% Coburn Avenue to the rear of and between the two houses. About Midnight on the same night, the Pontiac driven by Garry with Incardone as a passenger was seen pulling up to the premises at 59 Highland Street, Hyde Park, where Garry lives. Garry opened the trunk of his car, and removed ten five-gallon cans therefrom, and placed them on the sidewalk. He then entered the house, and opened a door on the side. Incardone made five trips from the sidewalk to the side of the house carrying two five-gallon cans on each such trip. It appeared that the cans were filled. On each of these trips, Incardone passed the two cans to someone standing in the doorway. Immediately after the fifth such trip, Garry came out of the door and joined Incardone. They walked to the sidewalk, and talked for a few moments. Incardone then drove away, and Garry went into his home.

On August 18, 1961 Investigators smelled an odor of fermenting mash on two occasions between 4:00 A.M. and 5:00 A.M. The first such odor was detected as they walked along the sidewalk in front of 148 Coburn Avenue, and the second such odor was detected from the side of 148 Coburn Avenue. At or about the same time, the Investigators heard certain metallic noises which cannot be further identified by source or sound.

On August 24,1961 the Pontiac was observed parked at a bowling alley and coffee shop off Route 9. The back of the car contained what appeared to be boxes covered by a cloth or tarpaulin, but which cannot be more specifically identified. On the front seat of the car was observed a sixty-pound bag of Revere Sugar. Garry and Incardone were observed in the restaurant or coffee shop eating. Later the car was seen driven to the rear of 148 between 148 and 148% Coburn Avenue, Worcester.

About Midnight the Pontiac was observed pulling up in front of Garry’s house at 59 Highland Street, Hyde Park. Garry was driving, and Incardone was a passenger. They both got out of the car. Garry opened the trunk, and then entered his house. From the trunk of the car there was removed eleven five-gallon cans which appeared to be filled. Incardone made six trips to a door on the side of the house. He carried two five-gallon cans on each trip, except the sixth trip. On that trip he carried one can, having passed the others to somebody in the doorway, and on the last trip he entered the house. He remained there at least forty-five minutes, and was not observed to leave.

On August 28, 1961 Garry drove Incardone in his car to Worcester. On Lake Ave. they met Giacomo Ven-tresca, who lives at 148% Coburn Avenue, Worcester. Ventresca entered the car driven by Garry. The car was then driven into the yard to the rear of 148 and between 148 and 148% Coburn Avenue. An observation was made that empty metal cans, five-gallon size, were being taken from the car owned by Garry, and brought into the premises at 148% Coburn Avenue, which was occupied by Ventresca. Later, new cans similar in size, shape and appearance were observed being placed into the trunk of Garry’s car while parked at the rear of 148 and in front of 148% Coburn Avenue. The manner in which the cans were handled, and the sound [s] which were heard during the handling of these cans, were consistent with that of cans containing liquid.

On August 30, 1961, at about 4:00 A.M., an odor of fermenting mash was detected while Investigators were walking on the sidewalk in front of 148 Coburn Avenue. At the same time, they heard sounds similar to that of a motor or a pump coming from the direction of 148% Coburn Avenue.

The foregoing information is based upon personal knowledge and information which has been obtained from Investigators of the Alcohol and Tobacco Tax Division, Internal Revenue Service, who have been assigned to this investigation.

/s/ Walter A. Mazaka

Mr. Justice Douglas,

with whom The Chief Justice concurs,

dissenting.

With all deference, the present affidavit seems hopelessly inadequate to me as a basis for a magistrate’s informed determination that a search warrant should issue.

We deal with the constitutional right of privacy that can be invaded only on a showing of “probable cause” as provided by the Fourth Amendment. That is a strict standard; what the police say does not necessarily carry the day; “probable cause” is in the keeping of the magistrate. Giordenello v. United States, 357 U. S. 480, 486-487; Johnson v. United States, 333 U. S. 10, 14. Yet anything he says does not necessarily go either. He too is bound by the Constitution. His discretion is reviewable. Aguilar v. Texas, 378 U. S. 108, 111. But unless the constitutional standard of “probable cause” is defined in meticulous ways, the discretion of police and of magistrates alike will become absolute. The present case, illustrates how the mere weight of lengthy and vague recitals takes the place of reasonably probative evidence of the existence of crime.

I.

Investigator Mazaka sought a warrant for the purpose of searching the premises at 148% Coburn Avenue, occupied by respondent and his family, because, he averred, he had reason to believe that there was concealed on the premises an illegal still and other material connected with the manufacture of nontax-paid liquors. The grounds for this belief were recited in 12 paragraphs on an attached sheet, as reproduced in the Appendix to the Court’s opinion, ante, p. 112.

The factual recitals comprise 10 paragraphs, each paragraph setting forth the alleged events of a single day, except that August 24, 1961, is dealt with in two paragraphs. Of these factual recitals more will be said in a moment. The first and last paragraphs of the 12 describe the sources from which the affiant has gained the information set forth in the factual paragraphs. These sources are, according to the first paragraph, three in number: (1) “observations made by me”; (2) “information received officially from other Investigators”; and (3) “reports orally made to me [by other investigators] describing the results of their observations and investigation.” In the last paragraph the affiant describes the sources of his information slightly differently: “The foregoing information is based upon personal knowledge and information which has been obtained from Investigators . . . .”

Of the 10 factual paragraphs eight describe trips said to have been made to and from the vicinity of 148% Coburn Avenue by one Garry and one Incardone. On these trips, it is said, there were delivered to the vicinity of 148% Coburn Avenue large quantities of sugar (four deliveries) and empty metal cans (two deliveries, on one of which respondent himself is said to have been a passenger in the car); on one occasion it was observed only that the car was “heavily laden.” It is said that on two occasions Garry and Incardone were seen taking apparently filled cans into Garry’s house, 59 Highland Street, from the Pontiac; on one such occasion the Pontiac, it is said, had been at Coburn Avenue earlier in the day, apparently making a sugar delivery. And, finally, it is averred that on one occasion seemingly filled cans were loaded into the Pontiac near 148% Coburn Avenue, shortly after a delivery of empties to that address.

The “facts” recited in these eight paragraphs, it is said, permit the inference that a still was being operated on respondent’s premises. But are these “facts” really facts? A statement of “fact” is only as credible as its source. Investigator Mazaka evidently believes these statements to be correct; but the magistrate must, of course, know something of the basis of that belief. Nathanson v. United States, 290 U. S. 41. Is the belief of this affiant based on personal observation, or on hearsay, or on hearsay on hearsay? Nowhere in the affidavit is the source of these eight paragraphs of information revealed. In each paragraph the alleged events are simply described directly, or else it is said that certain events “were observed.” Scarcely a clue is given as to who the observer might have been. It might have been the affiant, though one would not expect that he would so studiously refrain from revealing that he himself witnessed these events. The observers might have been some other investigators, though the affiant does not say so; yet in the two paragraphs next to be discussed the observers are prominently identified as investigators. Perhaps the ultimate source of most of these statements was one or more private citizens, who were interviewed by investigators, whose reports on these interviews came in due course to Investigator Mazaka, who then composed the affidavit. Perhaps many of the “facts” recited in the affidavit were supplied by an unknown informant over the telephone.

In most instances the language of the affidavit suggests that some investigator witnessed the alleged events. For example, the second paragraph begins: “On or about July 28, 1961, about 6:45 P. M., an observation was made covering a Pontiac automobile owned by one Joseph Garry.” But the presumed investigator who may have been “covering” this automobile is in no way identified. There is no way of knowing whether the report of this alleged observation was made directly to the affiant or whether it went through one or more intermediaries.

Turning now to the remaining two “factual” paragraphs, we find it averred that “Investigators” smelled fermenting mash and heard metallic and other noises in the vicinity of 148% Coburn Avenue. On August 18, it is said, investigators twice smelled mash between 4 and 5 a. m. as they walked on the sidewalk in front of and beside the house at 148 Coburn Avenue, which is apparently the house next to respondent’s. The “Investigators” are not further identified. On August 30 at about 4 a. m., it is averred, unidentified investigators detected the odor of fermenting mash while they were “walking on the sidewalk in front of 148 Coburn Avenue.” The source of the odor is again not specified; but sounds heard at the same time, similar to the sounds made by “a motor or a pump,” are stated to have come “from the direction of 148% Coburn Avenue.”

Such is the substance of the affidavit. No particular item of information is identified as within the first-hand knowledge of the affiant. Certain smells and sounds are explicitly described as having been directly perceived by unnamed investigators. The sources of all the other information are left to speculation.

The Court’s unconcern over the failure of the affidavit to identify the sources of the information recited seems based in part on the detailed, lengthy nature of the factual recitals. The Court seems to say that even if we assume that only some small part of the information is. trustworthy, still enough remains to establish probable cause. But I would direct attention to the fact that only one of the 12 paragraphs in this affidavit definitely points the finger of suspicion at 148% Coburn Avenue: that is the paragraph describing the alleged events of August 28, 1961. In every other paragraph the recitals point no more to /^5% Coburn Avenue than they do to 1/+8 Co-burn Avenue. The August 28 paragraph is critical to the finding of the existence of probable cause for the search of 148% Coburn Avenue. Yet the source of the information contained in that paragraph is in no way identified and it is therefore impossible to determine the trustworthiness of that crucial information.

II.

A discussion of the legal principles governing the sufficiency of this affidavit must, unhappily, begin with Draper v. United States, 358 U. S. 307. There an officer had been told by an informer, known to the officer to be reliable, that a man of a certain description would get off a certain train with heroin in his possession. The officer met the train, observed a man of that description getting off, and arrested him. The Court held that there was probable cause for the arrest. In Jones v. United States, 362 U. S. 257, the Court applied the holding in Draper to find an affidavit sufficient to establish probable cause for the issuance of a search warrant, even though the facts stated in the affidavit did not rest on the affiant’s personal observations but rather on the observations of another. The Court held that an affidavit could rest on hearsay, “so long as a substantial basis for crediting the hearsay is presented.” Id., at 269. (Emphasis supplied.) In Jones the basis for crediting the informant’s hearsay was: (1) the affiant swore that the informant had previously given information to him which was correct; (2) the affiant had been given corroborating information by other informants; and (3) the affiant was independently familiar with the persons claimed by the informants to be concealing narcotics in their apartment, and he knew them to have admitted to the use of narcotics.

I dissented from the decisions of the Court in these two cases, for the reasons which I set forth most fully in Draper, supra, at 314 et seq. But though I regard these decisions as taking a view destructive of the guarantees of the Fourth Amendment, they are in any event clearly not dispositive of the present case. As I have already shown, the affidavit here does not set forth a single corroborating fact that is sworn to be within the personal knowledge of the affiant. Moreover, there is not a single statement in the affidavit that could not well be hearsay on hearsay or some other multiple form of hearsay.

We are told, however, that it is at least clear that “Investigators” detected the smell of mash in the vicinity of 148% Coburn Avenue. And the Court says: “Observations of fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number,” ante, p. 111. But I would make Taylor v. United States, 286 U. S. 1, 6, my starting point, where the Court stated: “Prohibition officers may rely on a distinctive odor as a physical fact indicative of possible crime; but its presence alone does not strip the owner of a building of constitutional guarantees against unreasonable search.” In Johnson v. United States, 333 U. S. 10, 13, the Court explained what the decision in Taylor meant: “That decision held only that odors alone do not authorize a search without warrant. If the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant.” (Emphasis supplied.) It is hardly necessary to point out that a magistrate cannot begin to assess the odor-identifying qualifications of persons whose identity is unknown to him. Nor is it necessary to belabor the point that these odors of mash are not ever stated in the affidavit to have emanated from 148% Coburn Avenue.

III.

The Court of Appeals was surely correct when it observed that “the affidavit leaves as a complete mystery the manner in which the Investigators discovered their information.” 324 F. 2d 864, 869. Such being the case, I see no way to avoid the conclusion of the majority below: “If hearsay evidence is to be relied upon in the preparation of an affidavit for a search warrant, the officer or attorney preparing such an affidavit should keep in mind that hearsay statements are only as credible as their source and only as strong as their corroboration. And where the source of the information is in doubt and the corroboration by the affiant is unclear, the affidavit is insufficient.” Id., at 869-870. That conclusion states a relatively clear standard of probable cause and is in sharp contrast to the amorphous one upon which today’s decision rests.

In Jones v. United States, supra, this Court forgot, as it forgets again today, that the duty of the magistrate is not delegable to the police. Nathanson v. United States, 290 U. S. 41. It is for the magistrate, not the police, to decide whether there is probable cause for the issuance of the warrant. That function cannot be discharged by the magistrate unless the police first discharge their own, different responsibility: “to evidence what is reliable and why, and not to introduce a hodge-podge under some general formalistic coverall.” 324 F. 2d, at 870. And see Masiello v. United States, 304 F. 2d 399, 401-402. That is the duty of the police — the rest is not for them.

I Avould affirm the decision below.

       The Fourth Amendment's policy against unreasonable searches and seizures finds expression in Rule 41 of the Federal Rules of Criminal Procedure.

       The exceptions are illustrated by cases in which “seizure is impossible except without warrant,” Carroll v. United States, 267 U. S. 132, 156, such as a search of a moving object where “it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought,” Carroll v. United States, supra, at 153, and those in which search is incident to a lawful arrest. This latter exception is itself a limited one. We stated in Preston v. United States, 376 U. S. 364:
      “Unquestionably, when a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime. Weeks v. United States, 232 U. S. 383, 392 (1914); Agnello v. United States, 269 U. S. 20, 30 (1925). This right to search and seize without a search warrant extends to things under the accused’s immediate control, Carroll v. United States, supra, 267 U. S., at 158, and, to an extent depending on the circumstances of the case, to the place where he is arrested, Agnello v. United States, supra, 269 U. S., at 30; Marron v. United States, 275 U. S. 192, 199 (1927); United States v. Rabinowitz, 339 U. S. 56, 61-62 (1950). The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime — things which might easily happen where the weapon or evidence is on the accused’s person or under his immediate control. But these justifications are absent where a search is remote in time or place from the arrest. Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.” 376 U. S., at 367.

       See, e. g., Monnette v. United States, 299 F. 2d 847, 850 (C. A. 5th Cir.). Cf. Chapman v. United States, 365 U. S. 610; Steeber v. United States, 198 F. 2d 615, 616, 618 (C. A. 10th Cir.); United States v. Kaplan, 89 F. 2d 869 (C. A. 2d Cir.).

       See, e. g., Rugendorf v. United States, 376 U. S. 528; Chin Kay v. United States, 311 F. 2d 317, 320 (C. A. 9th Cir.); United States v. McCormick, 309 F. 2d 367, 372 (C. A. 7th Cir.); Weise v. United States, 251 F. 2d 867, 868 (C. A. 9th Cir.).

       Tn these cases we might have drawn a clear, unmistakable line and held that hearsay evidence could not support a search warrant. But we did not so hold; instead we held that hearsay was competent for this purpose if there was “a substantial basis” for crediting it, thereby muddying the waters with considerations of corroboration and informer’s reliability. Thus, by forsaking precise standards, the discretion of police and magistrates became less subject to judicial control.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    IN RE RYAN.
    No. 748.
    Decided March 1, 1965.

      Joseph A. Ryan, pro se.

   Per Curiam.

The motion to dispense with printing the jurisdictional statement is granted. The appeal is dismissed for want of a substantial federal question.


text:
    MASON et ux. v. MIDWESTERN GAS TRANSMISSION CO.
    No. 759.
    Decided March 1, 1965.

      Stanley B. Balbach for appellants.

      Charles A. Bane, Justin A. Stanley and James E. Knox, Jr., for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    CITY OF CORONADO et al. v. SAN DIEGO UNIFIED PORT DISTRICT et al.
    No. 763.
    Decided March 1, 1965.

      George A. Blackstone for appellants.

      Aaron W. Reese and Burnham Enersen for San Diego Unified Port District et al., and Thomas C. Lynch, Attorney General, and Ariel C. Hilton, Deputy Attorney General, for the State of California, appellees.
   Per Curiam.

The motions to dismiss are granted and the appeal is dismissed for want of a substantial federal question.


text:
    DRUEDING et al. v. DEVLIN et al.
    No. 772.
    Decided March 1, 1965.

      Lawrence Speiser, Allison W. Brown, Jr., and Edward L. Genn for appellants.
   Per Curiam.

The judgment is affirmed.


text:
    MADDOX v. BIRZGALIS, STATE HOSPITAL SUPERINTENDENT.
    No. 653,
    Misc.
    Decided March 1, 1965.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    BONANNO v. LOUISIANA.
    No. 728,
    Misc.
    Decided March 1, 1965.

      Herbert J. Gar on for appellant.
   Per Curiam.

The appeal is dismissed for want of a substantial federal question.


text:
    BLAAUW et al. v. GRAND TRUNK WESTERN RAILROAD CO.
    No. 740.
    Decided March 1, 1965.

      Richard G. Finn for petitioners.

      Edward L. Foote for respondent.
   Per Curiam.

The petition for writ of certiorari is granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Seventh Circuit for reconsideration in light of the opinion of the Appellate Court of Illinois, First District, in American National Bank & Trust Co. v. Pennsylvania R. Co., 52 Ill. App. 2d 406, 202 N. E. 2d 79.


author: Mr. Justice Black

text:
    UNITED STATES v. MISSISSIPPI et al.
    No. 73.
    Argued January 26, 1965.
    Decided March 8, 1965.

      Solicitor General Cox argued the cause for the United States. With him on the brief were Assistant Attorney General Marshall, Louis F. Claiborne, Harold H. Greene, David Rubin, Howard A. Glickstein and J. Harold Flannery.

      Charles Clark, Special Assistant Attorney General of Mississippi, argued the cause for appellees. With him on the briefs were Joe T. Patterson, Attorney General of Mississippi, Dugas Shands, Assistant Attorney General, P. M. Stockett, Special Assistant Attorney General, and Aubrey Bell.

      Francis Biddle, Norman Dorsen and Melvin L. Wulf filed a brief for the American Civil Liberties Union, as amicus curiae, urging reversal.
   Mr. Justice Black

delivered the opinion of the Court.

The United States by the Attorney General brought this action in the United States District Court for the Southern District of Mississippi, Jackson Division, against the State of Mississippi, the three members of the Mississippi State Board of Election Commissioners, and six county Registrars of Voters. The complaint charged that the defendants and their agents had engaged and, unless restrained, would continue to engage in acts and practices hampering and destroying the right of Negro citizens of Mississippi to vote, in violation of 42 U. S. C. § 1971 (a) (1958 ed.), and of the Fourteenth and Fifteenth Amendments and Article I of the United States Constitution. Jurisdiction of the Court was invoked under 42 U. S. C. § 1971 (d) (1958 ed.) and 28 U. S. C. § 1345 (1958 ed.), and because the complaint charged that provisions of the state constitution and statutes pertaining to voter registration violated the United States Constitution, the case was heard by three judges, pursuant to 28 U. S. C. § 2281 (1958 ed.). All the defendants moved to dismiss on the ground that the complaint failed to state a claim on which relief could be granted. In addition the State moved separately to dismiss on the ground that the United States had no power to make it a defendant in such a suit, and the three Election Commissioners answered that the complaint failed to show that they had enforced or that they had a duty to enforce the provisions of state law alleged to be unconstitutional. Five of the registrars moved for a severance and separate trials, and the four who were not residents of the Southern District of Mississippi, Jackson Division, moved for changes of venue to the respective districts and divisions where they lived. The District Court in an opinion by the late Circuit Judge Cameron, in which District Judge Cox joined, dismissed the complaint on all the grounds which the defendants had assigned and also ruled that the registrars could not be sued jointly and that venue was improper as to the registrars who did not live in the district and division in which the court was sitting. 229 F. Supp. 925. Circuit Judge Brown dissented. We noted probable jurisdiction, 377 U. S. 988, and set the case down for argument immediately preceding Louisiana v. United States, post, p. 145.

The basic issue before us in this case is whether the dismissal for failure to state a claim upon which relief could be granted was proper. The United States alleges that in 1890 a majority of the qualified voters in Mississippi were Negroes, but that in that year a constitutional convention adopted a new state constitution, one of the chief purposes of which was, in the words of the complaint, to “restrict the Negro franchise and to establish and perpetuate white political supremacy and racial segregation in Mississippi.” Section 244 of that constitution established a new prerequisite for voting: that a person otherwise qualified be able to read any section of the Mississippi Constitution, or understand the same when read to him, or give a reasonable interpretation thereof. This new requirement, coupled with the fact that until about 1952 Negroes were not eligible to vote in the primary election of the Democratic Party, victory in which was “tantamount to election,” worked so well in keeping Negroes from voting, the complaint charges, that by 1899 the percentage of qualified voters in the State who were Negroes had declined from over 50% to about 9%, and by 1954 only about 5% of the Negroes of voting age in Mississippi were registered.

By the 1950’s a much higher proportion of Negroes of voting age in Mississippi was literate than had been the case in 1890, and since a decision of the Fifth Circuit in 1951 had pointed out that the 1890 requirement allowed persons to vote if they met any one of the three alternative requirements, the State took steps to multiply the barriers keeping its Negro citizens from voting. In 1954 the state constitution was amended to provide that thereafter an applicant for registration had to be able to read and copy in writing any section of the Mississippi Constitution, and give a reasonable interpretation of that section to the county registrar, and, in addition, demonstrate to the registrar “a reasonable understanding of the duties and obligations of citizenship under a constitutional form of government.” The complaint charges that these provisions lend themselves to misuse and to discriminatory administration because they leave the registrars completely at large, free to be as demanding or as lenient as they choose in judging an applicant’s understanding of the state constitution and of the “duties and obligations of citizenship,” and that since the adoption of this amendment the registrars have in fact applied standards which varied in difficulty according to whether an applicant was white or colored.

In 1960 the state constitution was amended to add a new voting qualification of “good moral character,” an addition which it is charged was to serve as yet another device to give a registrar power to permit an applicant to vote or not, depending solely on the registrar’s own whim or caprice, ungoverned by any legal standard. A statute also passed in 1960 repealed a prior Mississippi statute which had provided that application forms be retained as permanent public records, and adopted a new rule that unless appeal is taken from an adverse ruling and no new application is made prior to final judgment on that appeal, registrars no longer need keep any record made in connection with the application of anyone to register to vote. This law is alleged to be in direct violation of Title III of the Civil Rights Act of 1960, which requires that records of voting registration be kept. The complaint alleged further that the defendants had destroyed and unless restrained by the court would continue to destroy these records. Finally, it was alleged that in 1962 the Mississippi Legislature adopted a package of legislation affecting registration, the purpose and effect of which was to “deter, hinder, prevent, delay and harass Negroes and to make it more difficult for Negroes in their efforts to become registered voters, to facilitate discrimination against Negroes, and to make it more difficult for the United States to protect the right of all its citizens to vote without distinction of race or color.” These 1962 laws provide, among other things, that application forms must be filled out “properly and responsively” by the applicant without any assistance, and that a registrar may not tell an applicant why he failed the test because to do so might constitute assistance, and they allegedly give registrars even greater discretion to deny Negroes the right to register on formal, technical, inconsequential errors.

By way of relief the court was asked (1) to declare the challenged state laws unconstitutional as violations of federal constitutional provisions and statutes; (2) to find that by these laws Negroes had been denied the right to vote pursuant to a “pattern and practice” of racial discrimination; (3) to enjoin the defendants from enforcing any of these state laws or in any other way acting to “delay, prevent, hinder, discourage, or harass Negro citizens, on account of their race or color, from applying for registration and becoming registered voters in the State of Mississippi,” or using any other interpretation or understanding test which “bears a direct relationship to the quality of public education afforded Negro applicants”; and (4) to order the defendants to register any Negro applicant who is over age 21, able to read, a resident for the period of time prescribed by state law, and not disqualified by state laws disfranchising the insane and certain convicted criminals.

It is apparent that the complaint which the majority of the District Court dismissed charged a long-standing, carefully prepared, and faithfully observed plan to bar Negroes from voting in the State of Mississippi, a plan which the registration statistics included in the complaint would seem to show had been remarkably successful. This brings us to a consideration of the specific grounds assigned by the District Court for its dismissal.

I.

One ground upon which the majority of the District Court dismissed the Government’s complaint was that the United States is without authority, absent the clearest possible congressional authorization, to bring an action like this one which challenges the validity of state laws allegedly used as devices to keep Negroes from voting on account of their race. We need not discuss the power of the United States to bring such an action without authorization by Congress, for in 42 U. S. C. § 1971 (1958 ed.) there is express congressional authorization for the United States to file a suit precisely of this kind. Section 1971 (a) guarantees the right of citizens “who are otherwise qualified by law to vote at any election” to be allowed to vote “without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding.” And subsection (c) of § 1971 specifically authorizes the Attorney General to file proper proceedings for preventive relief to protect this right to vote without discrimination on account of color whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice which would deprive any other person of that right. The District Court’s holding that despite the clear language quoted above the United States still was not authorized to file this suit seems to rest on the emphasis it places on the phrase “otherwise qualified by law” in § 1971 (a). By stressing these words the majority below reached the conclusion that if Negroes were kept from voting by state laws, even though those laws were unconstitutional, instead of being barred by unlawful discriminatory application of laws otherwise valid, then they were not “otherwise qualified” and so § 1971 did not apply to them. In other words, while private persons might file suits under § 1971 against individual registrars who discriminated in applying otherwise valid laws, and while such suits might even be filed by the Government, see United States v. Raines, 362 U. S. 17, the statute did not authorize the United States to bring suits challenging the validity of the State’s voting laws as such, however discriminatory they might be. We can find no possible justification for such a construction of § 1971 (a) and § 1971 (c). Subsection (a) explicitly stated the legislative purpose of protecting the rights of colored citizens to vote notwithstanding “any constitution, law, custom, usage, or regulation of any State.” The phrase “otherwise qualified by law to vote” obviously meant that Negroes must possess the qualifications required of all voters by valid state or federal laws. It is difficult to take seriously the argument that Congress intended to dilute its guarantee of the right to vote regardless of race by saying at the same time that a'State was free to disqualify its Negro citizens by laws which violated the United States Constitution. Cf. Neal v. Delaware, 103 U. S. 370. The Fifteenth Amendment protects the right to vote regardless of race against any denial or abridgment by the United States or by any State. Section 1971 was passed by Congress under the authority of the Fifteenth Amendment to enforce that Amendment’s guarantee, which protects against any discrimination by a State, its laws, its customs, or its officials in any way. We reject the argument that the Attorney General was without power to institute these proceedings in order to protect the federally guaranteed right to vote without discrimination on account of color.

II.

The District Court held, and it is contended here, that even if the Attorney General did have power to file this suit on behalf of the United States, as we have held he did, nevertheless he was without power to make the State a party defendant. The District Court gave great weight to Mississippi’s argument that the Fifteenth Amendment “is directed to persons through whom a state may act and not to the sovereign entity of the state itself.” 229 F. Supp., at 933. Largely to avoid what it called this “substantial constitutional claim,” the District Court proceeded to construe the language of § 1971 as not granting the Attorney General authority to make the State a defendant. We do not agree with that construction.

Section 1971 (c) says that whenever the Attorney General institutes a suit under this section against a state official who has deprived a ..citizen of his right to vote because of race or color,

“the act or practice shall also be deemed that of the State and the State may be joined as a party defendant and, if, prior to the institution of such proceeding, such official has resigned or has been relieved of his office and no successor has assumed such office, the proceeding may be instituted against the State.”

The District Court accepted the State’s argument that this meant that a State can be made a defendant in such a case only when the office of registrar is vacant, so that there is no registrar against whom to file suit. This argument relies on the fact that in a case pending in this Court when the statutory language was changed, registrars had resigned their offices in order to keep from being sued under § 1971. United States v. Alabama, 267 F. 2d 808 (C. A. 5th Cir.), vacated and remanded, 362 U. S. 602. Congress, the State says, passed the provision authorizing suit against a State solely to provide a party defendant when registrars resigned, as they had in the Alabama case. But whatever the reasons Congress had for amending § 1971 (c), and without our now deciding whether it was necessary to do so to permit the United States to sue a State under that section, the language Congress adopted leaves no room for the construction which the District Court put on these provisions. Indeed, on remand in the Alabama case the Fifth Circuit affirmed the District Court’s refusal to dismiss the State as a defendant even though new registrars had qualified, and this Court affirmed that judgment. Alabama v. United States, 371 U. S. 37, affirming 304 F. 2d 583 (C. A. 5th Cir.).

The State argues also that even if Congress has authorized making the State a defendant here, as we hold it has, Congress had no constitutional power to do so. The Fifteenth Amendment in plain, unambiguous language provides that no “State” shall deny or abridge the right of citizens to vote because of their color. In authorizing the United States to make a State a defendant in a suit under § 1971, Congress was acting under its power given in § 2 of the Fifteenth Amendment to enforce that Amendment by appropriate legislation. The State’s argument that’ Congress acted here beyond its constitutional power is based on a number of cases that have allowed private individuals to enjoin state officials from denying constitutional rights, while recognizing that without its consent a State could not be sued by private persons in such circumstances, because of the immunity given the State in the Eleventh Amendment. See, e. g., Ex parte Young, 209 U. S. 123. But none of these cases decided or even suggested that Congress could not authorize the United States to institute legal proceedings against States to protect constitutional rights of citizens. The Eleventh Amendment in terms forbids suits against States only when “commenced or prosecuted ... by Citizens of another State, or by Citizens or Subjects of any Foreign State.” While this has been read to bar a suit by a State’s own citizen as well, Hans v. Louisiana, 134 U. S. 1, nothing in this or any other provision of the Constitution prevents or has ever been seriously supposed to prevent a State’s being sued by the United States. The United States in the past has in many cases been allowed to file suits in this and other courts against States, see, e. g., United States v. Texas, 143 U. S. 621; United States v. California, 297 U. S. 175, with or without specific authorization from Congress, see United States v. California, 332 U. S. 19, 26-28. See also Parden v. Terminal R. Co., 377 U. S. 184. In light of this history, it seems rather surprising that the District Court entertained seriously the argument that the United States. could not constitutionally sue a State. The reading of the Constitution urged by Mississippi is not supported by precedent, is not required by any language of the Constitution, and would without justification in reason diminish the power of courts to protect the people of this country against deprivation and destruction by States of their federally guaranteed rights. We hold that the State was properly made a defendant in this case.

III.

The District Court held with respect to the three members of the Mississippi Board of Election Commissioners that the complaint failed to show that they had a sufficient interest in administering or enforcing the laws under attack to permit making them parties defendant. We do not agree. Under state law the Election Commissioners have power, authority, and responsibility to help administer the voter registration laws by formulating rules for the various tests applied to applicants for registration. Section 3209.6 of the Mississippi Code directs that the forms and the questions on the forms shall be prepared and maintained under the supervision of the Election Board and that these application forms shall be

“designed to test the ability of applicants for registration to vote to read and write any section of the Constitution of this state and give a reasonable interpretation thereof, and demonstrate to the county registrar a reasonable understanding of the duties and obligations of citizenship under a constitutional form of government; and to demonstrate to the county registrar that applicant is a person of good moral character as required by Section 241-A of the Constitution of Mississippi.”

These “interpretation” and “duties and obligations of citizenship” tests, as has been pointed out, are vitally important elements of the Mississippi laws challenged as unconstitutional in this suit. Should the Government prove its case and obtain an injunction, it would be natural to assume that such an order should run against the Board of Election Commissioners with reference to these two tests. Therefore the Election Commissioners should not have been stricken as defendants.

IV.

The District Court said that the complaint improperly attempted to hold the six county registrars jointly liable for what amounted to nothing more than individual torts committed by them separately with reference to separate applicants. For this reason apparently it would have held the venue improper as to the three registrars who lived outside the Southern District of Mississippi and a fourth who lived in a different division of the Southern District, and it would have ordered that each of the other two registrars be sued alone. But the complaint charged that the registrars had acted and were continuing to act as part of a state-wide system designed to enforce the registration laws in a way that would inevitably deprive colored people of the right to vote solely because of their color. On such an allegation the joinder of all the registrars as defendants in a single suit is authorized by Rule 20 (a) of the Federal Rules of Civil Procedure, which provides:

"... All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action.”

These registrars were alleged to be carrying on activities which were part of a series of transactions or occurrences the validity of which depended to a large extent upon “question [s] of law or fact common to all of them.” Since joinder of the registrars in one suit was proper, the argument that venue as to some of them was not properly laid is also without merit. 28 U. S. C. §§ 1392 (a), 1393 (b) (1958 ed.).

V.

As a general ground for dismissal, the District Court held that the complaint failed to state a claim upon which relief could be granted. In considering the correctness of this ruling the allegations of the complaint are to be taken as true, and indeed the record contains answers to pretrial interrogatories which indicate that the United States stands ready to produce much evidence tending to prove the truthfulness of all the allegations in the complaint. While the Government has argued that several provisions of the Mississippi laws challenged here might or should be held unconstitutional on their face without introduction of evidence or further hearings, with respect to all the others the Solicitor General in this Court specifically has declined to “urge that the constitutionality of these provisions be decided prior to trial.” In this situation we have decided that it is the more appropriate course to pass only upon the sufficiency of the complaint’s allegations to justify relief if proved.

We have no doubt whatsoever that it was error to dismiss the complaint without a trial. The complaint charged that the State of Mississippi and its officials for the past three quarters of a century have been writing and adopting constitutional provisions, statutes, rules, and regulations, and have been engaging in discriminatory practices, all designed to keep the number of white voters at the highest possible figure and the number of colored voters at the lowest. It alleged that the common purpose running through the State’s legal and administrative history during that time has been to adopt whatever expedient seemed necessary to establish white political supremacy in a completely segregated society. This purpose, indeed, was recognized by the Mississippi Supreme Court in 1896 when it said, speaking of the convention which adopted the 1890 constitution:

“Within the field of permissible action under the limitations imposed by the federal constitution, the convention swept the circle of expedients to obstruct the exercise of the franchise by the negro race.”

The success of the expedients adopted in 1890 and in later years to accomplish this purpose appears from statistics in the complaint. For example, the complaint states that at the time the suit was filed Amite County, Mississippi, the registrar of which was one of the defendants here, had a white voting age population of 4,449 with white registration of 3,295, while it had 2,560 colored persons of voting age, of whom only one was a registered voter. There is no need to multiply examples. The allegations of this complaint were too serious, the right to vote in this country is too precious, and the necessity of settling grievances peacefully in the courts is too important for this complaint to have been dismissed. Compare Davis v. Schnell, 81 F. Supp. 872 (D. C. S. D. Ala.), aff'd, 336 U. S. 933; Louisiana v. United States, post, p. 145, this day decided. The case should have been tried. It should now be tried without delay.

Reversed and remanded.

Mr. Justice Harlan considers that the constitutional conclusions reached in this opinion can properly be based only on the provisions of the Fifteenth Amendment. In all other respects, he fully subscribes to this opinion.

       United States Constitution, Amendment XIV, provides in part:
      “SbctioN 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

       United States Constitution, Amendment XV, provides:
      “Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
      “Section 2. The Congress shall have power to enforce this article by appropriate legislation.”

       Judge Cox also wrote a separate concurring opinion.

       Section 244 of the Mississippi Constitution of 1890 provided:
      “On and after the first day of January, A. D., 1892, every elector shall, in addition to the foregoing qualifications, be able to read any section of the constitution of this State; or he shall be able to understand the same when read to him, or give a reasonable interpretation thereof. A new registration shall be made before the next ensuing election after January the first, A. D., 1892.”

         Peay v. Cox, 190 F. 2d 123, 126 (C. A. 5th Cir.), cert. denied, 342 U. S. 896.

       As amended § 244 of the Mississippi Constitution reads in part:
      “Every elector shall, in addition to the foregoing qualifications be able to read and write any section of the Constitution of this State and give a reasonable interpretation thereof to the county registrar. He shall demonstrate to the county registrar a reasonable understanding of the duties and obligations of citizenship under a constitutional form of government. . . .”

       Section 241-A of the Mississippi Constitution provides:
      “In addition to all other qualifications required of a person to be entitled to register for the purpose of becoming a qualified elector, such person shall be of good moral character.
      “The Legislature shall have the power to enforce the provisions of this section by appropriate legislation.”

       Miss. Laws 1960, c. 449, Miss. Code Ann. § 3209.6 (1962 Cum. Supp.).

       74 Stat. 88, 42 U. S. C. §§ 1974-1974e (1958 ed., Supp. V).

       Miss. Laws 1962, c. 569, § 1, Miss. Code Ann. § 3209.6 (1962 Cum. Supp.) (requiring that application forms provide that applicants demonstrate “good moral character” and that registrars observe this requirement); Miss. Laws 1962, c. 570, Miss. Code Ann. § 3213 (1962 Cum. Supp.) (requiring applicants to fill in all blanks on the application form “properly and responsively” without any assistance) ; Miss. Laws 1962, c. 571, Miss. Code Ann. § 3212.5 (1962 Cum. Supp.) (prohibiting registrars from telling an applicant why he was rejected, “as so to do may constitute assistance to the applicant on another application"); Miss. Laws 1962, c. 572, Miss. Code Ann. § 3212.7 (1962 Cum. Supp.) (requiring newspaper publication of applicants’ names); Miss. Laws 1962, c. 573, Miss. Code Ann. §§ 3217 — 01—3217—15 (1962 Cum. Supp.) (providing for challenge by any voter of an applicant’s qualifications to vote); Miss. Laws 1962, c. 574, Miss. Code Ann. § 3232 (1962 Cum. Supp.) (eliminating designation of race in county poll books).

       Miss. Laws 1962, c. 570, Miss. Code Ann. § 3213 (1962 Cum. Supp.), is claimed by the Government to have had the latter effect. In its brief in this Court the Government argues that this provision is invalid on its face as contrary to § 101 (a) of the Civil Rights Act of 1964, 78 Stat. 241, amending § 131 of the Civil Rights Act of 1957, 71 Stat. 637, 42 U. S. C. § 1971 (a) (1958 ed.).

       Such a finding would by force of 42 U. S. C. § 1971 (e) (1958 ed., Supp. V) authorize a court to make an order declaring that a person denied the right to vote because of color is entitled to vote.

       “All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, parish,, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding.” Act of May 31, 1870, 16 Stat. 140, 42 U. S. C. §1971 (a) (1958 ed.).

       74 Stat. 90, 42 U. S. C. § 1971 (c) (1958 ed., Supp. V), provides:
      “Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice which would deprive any other person of any right or privilege secured by subsection (a) or (b) of this section, the Attorney General may institute for the United States, or in the name of the United States, a civil action or other proper proceeding for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order. In any proceeding hereunder the United States shall be liable for costs the same as a private person.
      “Whenever, in a proceeding instituted under this subsection any official of a State or subdivision thereof is alleged to have committed any act or practice constituting a deprivation of any right or privilege secured by subsection (a) of this section, the act or practice shall also be deemed that of the State and the State may be joined as a party defendant and, if, prior to the institution of such proceeding, such official has resigned or has been relieved of his office and no successor has assumed such office, the proceeding may be instituted against the State.”

         Ratliff v. Beale, 74 Miss. 247, 266, 20 So. 865, 868.


text:
    LOUISIANA et al. v. UNITED STATES.
    No. 67.
    Argued January 26-27, 1965.
    Decided March 8, 1965.

      Harry J. Kron, Jr., Assistant Attorney General of Louisiana, argued the cause for appellants. With him on the brief were Jack P. F. Gremillion, Attorney General of Louisiana, and Carroll Buck, First Assistant Attorney General.

      Louis F. Claiborne argued the cause for the United States. With him on the brief were Solicitor General Cox, Assistant Attorney General Marshall, Harold H. Greene and David Rubin.

   Mr. Justice Black

delivered the opinion of the Court.

Pursuant to authority granted in 42 U. S. C. § 1971 (c) (1958 ed., Supp. V), the Attorney General brought this action on behalf of the United States in the United States District Court for the Eastern District of Louisiana against the State of Louisiana, the three members of the State Board of Registration, and the Director-Secretary of the Board. The complaint charged that the defendants by following and enforcing unconstitutional state laws had been denying and unless restrained by the court would continue to deny Negro citizens of Louisiana the right to vote, in violation of 42 U. S. C. § 1971 (a) (1958 ed.) and the Fourteenth and Fifteenth Amendments to the United States Constitution. The case was tried and after submission of evidence, the three-judge District Court, convened pursuant to 28 U. S. C. § 2281 (1958 ed.), gave judgment for the United States. 225 F. Supp. 353. The State and the other defendants appealed, and we noted probable jurisdiction. 377 U. S. 987.

The complaint alleged, and the District Court found, that beginning with the adoption of the Louisiana Constitution of 1898, when approximately 44% of all the registered voters in the State were Negroes, the State had put into effect a successful policy of denying Negro citizens the right to vote because of their race. The 1898 constitution adopted what was known as a “grandfather clause,” which imposed burdensome requirements for registration thereafter but exempted from these future requirements any person who had been entitled to vote before January 1, 1867, or who was the son or grandson of such a person. Such a transparent expedient for disfranchising Negroes, whose ancestors had been slaves until 1863 and not entitled to vote in Louisiana before 1867, was held unconstitutional in 1915 as a violation of the Fifteenth Amendment, in a case involving a similar Oklahoma constitutional provision. Guinn v. United States, 238 U. S. 347. Soon after that decision Louisiana, in 1921, adopted a new constitution replacing the repudiated “grandfather clause” with what the complaint calls an “interpretation test,” which required that an applicant for registration be able to “give a reasonable interpretation” of any clause in the Louisiana Constitution or the Constitution of the United States. From the adoption of the 1921 interpretation test until 1944, the District Court’s opinion stated, the percentage of registered voters in Louisiana who were Negroes never exceeded one percent. Prior to 1944 Negro interest in voting in Louisiana had been slight, largely because the State’s white primary law kept Negroes from voting in the Democratic Party primary election, the only election that mattered in the political climate of that State. In 1944, however, this Court invalidated the substantially identical white primary law of Texas, and with the explicit statutory bar to their voting in the primary removed and because of a generally heightened political interest, Negroes in increasing numbers began to register in Louisiana. The white primary system had been so effective in barring Negroes from voting that the “interpretation test” as a disfranchising device had been ignored over the years. Many registrars continued to ignore it after 1944, and in the next dozen years the proportion of registered voters who were Negroes rose from two-tenths of one percent to approximately 15% by March 1956. This fact, coupled with this Court’s 1954 invalidation of laws requiring school segregation, prompted the State to try new devices to keep the white citizens in control. The Louisiana Legislature created a committee which became known as the “Segregation Committee” to seek means of accomplishing this goal. The chairman of this committee also helped to organize a semiprivate group called the Association of Citizens Councils, which thereafter acted in close cooperation with the legislative committee to preserve white supremacy. The legislative committee and the Citizens Councils set up programs, which parish voting registrars were required to attend, to instruct the registrars on how to promote white political control. The committee and the Citizens Councils also began a wholesale challenging of Negro names already on the voting rolls, with the result that thousands of Negroes, but virtually no whites, were purged from the rolls of voters. Beginning in the middle 1950’s registrars of at least 21 parishes began to apply the interpretation test. In 1960 the State Constitution was amended to require every applicant thereafter to “be able to understand” as well as “give a reasonable interpretation” of any section of the State or Federal Constitution “when read to him by the registrar.” The State Board of Registration in cooperation with the Segregation Committee issued orders that all parish registrars must strictly comply with the new provisions.

The interpretation test, the court found, vested in the voting registrars a virtually uncontrolled discretion as to who should vote and who should not. Under the State’s statutes and constitutional provisions the registrars, without any objective standard to guide them, determine the manner in which the interpretation test is to be given, whether it is to be oral or written, the length and complexity of the sections of the State or Federal Constitution to be understood and interpreted, and what interpretation is to be considered correct. There was ample evidence to support the District Court’s finding that registrars in the 21 parishes where the test was found to have been used had exercised their broad powers to deprive otherwise qualified Negro citizens of their right to vote; and that the existence of the test as a hurdle to voter qualification has in itself deterred and will continue to deter Negroes from attempting to register in Louisiana.

Because of the virtually unlimited discretion vested by the Louisiana laws in the registrars of voters, and because in the 21 parishes where the interpretation test was applied that discretion had been exercised to keep Negroes from voting because of their race, the District Court held the interpretation test invalid on its face and as applied, as a violation of the Fourteenth and Fifteenth Amendments to the United States Constitution and of 42 U. S. C. § 1971 (a). The District Court enjoined future use of the test in the State, and with respect to the 21 parishes where the invalid interpretation test was found to have been applied, the District Court also enjoined use of a newly enacted “citizenship” test, which did not repeal the interpretation test and the validity of which was not challenged in this suit, unless a reregistration of all voters in those parishes is ordered, so that there would be no voters in those parishes who had not passed the same test.

I.

We have held this day in United States v. Mississippi, ante, p. 128, that the Attorney General has power to bring suit against a State and its officials to protect the voting rights of Negroes guaranteed by 42 U. S. C. § 1971 (a) and the Fourteenth and Fifteenth Amendments. There can be no doubt from the evidence in this case that the District Court was amply justified in finding that Louisiana’s interpretation test, as written and as applied, was part of a successful plan to deprive Louisiana Negroes of their right to vote. This device for accomplishing unconstitutional discrimination has been little if any less successful than was the “grandfather clause” invalidated by this Court’s decision in Guinn v. United States, supra, 50 years ago, which when that clause was adopted in 1898 had seemed to the leaders of Louisiana a much preferable way of assuring white political supremacy. The Governor of Louisiana stated in 1898 that he believed that the “grandfather clause” solved the problem of keeping Negroes from voting “in a much more upright and manly fashion” than the method adopted previously by the States of Mississippi and South Carolina, which left the qualification of applicants to vote “largely to the arbitrary discretion of the officers administering the law.” A delegate to the 1898 Louisiana Constitutional Convention also criticized an interpretation test because the “arbitrary power, lodged with the registration officer, practically places his decision beyond the pale of judicial review; and he can enfranchise or disfranchise voters at his own sweet will and pleasure without let or hindrance.”

But Louisianans of a later generation did place just such arbitrary power in the hands of election officers who have used it with phenomenal success to keep Negroes from voting in the State. The State admits that the statutes and provisions of the state constitution establishing the interpretation test “vest discretion in the registrars of voters to determine the qualifications of applicants for registration” while imposing “no definite and objective standards upon registrars of voters for the administration of the interpretation test.” And the District Court found that “Louisiana ... provides no effective method whereby arbitrary and capricious action by registrars of voters may be prevented or redressed.” The applicant facing a registrar in Louisiana thus has been compelled to leave his voting fate to that official’s uncontrolled power to determine whether the applicant’s understanding of the Federal or State Constitution is satisfactory. As the evidence showed, colored people, even some with the most advanced education and scholarship, were declared by voting registrars with less education to have an unsatisfactory understanding of the Constitution of Louisiana or of the United States. This is not a test but a trap, sufficient to stop even the most brilliant man on his way to the voting booth. The cherished right of people in a country like ours to vote cannot be obliterated by the use of laws like this, which leave the voting fate of a citizen to the passing whim or impulse of an individual registrar. Many of our cases have pointed out the invalidity of laws so completely devoid of standards and restraints. See, e. g., United States v. L. Cohen Grocery Co., 255 U. S. 81. Squarely in point is Schnell v. Davis, 336 U. S. 933, affirming 81 F. Supp. 872 (D. C. S. D. Ala.), in which we affirmed a district court judgment striking down as a violation of the Fourteenth and Fifteenth Amendments an Alabama constitutional provision restricting the right to vote in that State to persons who could “understand and explain any article of the Constitution of the United States” to the satisfaction of voting registrars. We likewise affirm here the District Court’s holding that the provisions of the Louisiana Constitution and statutes which require voters to satisfy registrars of their ability to “understand and give a reasonable interpretation of any section” of the Federal or Louisiana Constitution violate the Constitution. And we agree with the District Court that it specifically conflicts with the prohibitions against discrimination in voting because of race found both in the Fifteenth Amendment and 42 U. S. C. § 1971 (a) to subject citizens to such an arbitrary power as Louisiana has given its registrars under these laws.

H-i k-i

This leaves for consideration the District Court’s decree. We bear in mind that the court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future. Little if any objection is raised to the propriety of the injunction against further use of the interpretation test as it stood at the time this action was begun, and without further discussion we affirm that part of the decree.

Appellants’ chief argument against the decree concerns the effect which should be given the new voter-qualification test adopted by the Board of Registration in August 1962, pursuant to statute and subsequent constitutional amendment after this suit had been filed. The new test, says the State, is a uniform, objective, standardized “citizenship” test administered to all prospective voters alike. Under it, according to the State, an applicant is “required to indiscriminately draw one of ten cards. Each card has six multiple choice questions, four of which the applicant must answer correctly.” Confining itself to the allegations of the complaint, the District Court did not pass upon the validity of the new test, but did take it into consideration in formulating the decree. The court found that past discrimination against Negro applicants in the 21 parishes where the interpretation test had been applied had greatly reduced the proportion of potential Negro voters who were registered as compared with the proportion of whites. Most if not all of those white voters had been permitted to register on far less rigorous terms than colored applicants whose applications were rejected. Since the new “citizenship” test does not provide for a reregistration of voters already accepted by the registrars, it would affect only applicants not already registered, and would not disturb the eligibility of the white voters who had been allowed to register while discriminatory practices kept Negroes from doing so. In these 21 parishes, while the registration of white persons was increasing, the number of Negroes registered decreased from 25,361 to 10,351. Under these circumstances we think that the court was quite right to decree that, as to persons who met age and residence requirements during the years in which the interpretation test was used, use of the new “citizenship” test should be postponed in those 21 parishes where registrars used the old interpretation test until those parishes have ordered a complete reregistration of voters, so that the new test will apply alike to all or to none. Cf. United States v. Duke, 332 F. 2d 759, 769-770 (C. A. 5th Cir.).

It also was certainly an appropriate exercise of the District Court’s discretion to order reports to be made every month concerning the registration of voters in these 21 parishes, in order that the court might be informed as to whether the old discriminatory practices really had been abandoned in good faith. The need to eradicate past evil effects and to prevent the continuation or repetition in the future of the discriminatory practices shown to be so deeply engrained in the laws, policies, and traditions of the State of Louisiana, completely justified the District Court in entering the decree it did and in retaining jurisdiction of the entire case to hear any evidence of discrimination in other parishes and' to enter such orders as justice from time to time might require.

Affirmed.

Mr. Justice Harlan considers that the constitutional conclusions reached in this opinion can properly be based only on the provisions of the Fifteenth Amendment. In all other respects, he fully subscribes to this opinion.

       “All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding.” 16 Stat. 140, 42 U. S. C. § 1971 (a) (1958 ed.).

       The appellants did not present any evidence. By stipulation all the Government’s evidence was presented in written form.

       La. Const. 1898, Art. 197, § 5. See generally Eaton, The Suffrage Clause in the New Constitution of Louisiana, 13 Harv. L. Rev. 279.

       The Louisiana Constitution of 1868 for the first time permitted Negroes to vote. La. Const. 1868, Art. 98.

       La. Const. 1921, Art. VIII, §§ 1 (c), 1 (d).

        Smith v. Allwright, 321 U. S. 649.

        Brown v. Board of Education, 347 U. S. 483.

       La. Acts 1960, No. 613, amending La. Const. Art. VIII, § 1 (d), previously implemented in La. Rev. Stat. § 18:36. Under the 1921 constitution the requirement that an applicant be able “to understand” a section “read to him by the registrar” applied only to illiterates. La. Const. 1921, Art. VIII, § 1 (d); compare id., § 1 (c).

       “Although the vote-abridging purpose and effect of the [interpretation] test render it per se invalid under the Fifteenth Amendment, it is also per se invalid under the Fourteenth Amendment. The vices cannot be cured by an injunction enjoining its unfair application.” 225 F. Supp., at 391-392.

       It is argued that the members of the State Board of Registration were not properly made defendants because they were “mere conduits,” without authority to enforce state registration requirements. The Board has the power and duty to supervise administration of the interpretation test and prescribe rules and regulations for the registrars to follow in applying it. La. Rev. Stat. § 18:191 A; La. Const. Art. VIII, § 18. The Board also is by statute directed to fashion and administer the new “citizenship” test. La. Rev. Stat. § 18:191 A; La. Const. Art. VIII, § 18. And the Board has power to remove any registrar from office “at will.” La. Const. Art. VIII, § 18. In these circumstances the Board members were properly made defendants. Compare United States v. Mississippi, ante, at 141-142.
      There is also no merit in the argument that the registrars, who were not defendants in this suit, were indispensable parties. The registrars have no personal interest in the outcome of this case and are bound to follow the directions of the State Board of Registration.

       Louisiana Senate Journal, 1898, p. 33.

        Ibid.

       Kernan, The Constitutional Convention of 1898 and its Work, Proceedings of the Louisiana Bar Association for 1898-1899, pp. 59-60.

       225 F. Supp., at 384.

       La. Acts 1962, No. 62, amending La. Rev. Stat. 18:191A.

       La. Acts 1962, No. 539, amending La. Const. Art. VIII, § 18.

       Like the District Court, we express no opinion as to the constitutionality of the new “citizenship” test. Any question as to that point is specifically reserved. That test was never challenged in the complaint or any other pleading. The District Court said “we repeat that this decision does not touch upon the constitutionality of the citizenship test as a state qualification for voting.” 225 F. Supp., at 397. The Solicitor General did not challenge the validity of the new test in this Court either in briefs or in oral argument, but instead recognized specifically that that issue was not before us in this case. And at oral argument in this Court the attorney for the United States stated that the Government has pending in a lower court a new suit challenging registration procedures in Louisiana “under the new regime,” i. e., employed subsequent to the invalidation of the interpretation test in this case. The new “citizenship” test, he said, “is simply not an issue in this proceeding and was not invalidated in the lower court and we are not here challenging it.”