text:
    SHAW v. CALIFORNIA.
    No. 52,
    Mise.
    Decided March 13, 1967.

      Valerian J. Lavemoich for petitioner.

      Roger Arrwbergh and Philip E. Grey for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case remanded for further consideration in light of Chapman v. California, ante, p. 18.

Mr. Justice Stewart would grant certiorari and reverse the judgment for the reasons stated in his opinion concurring in the result in Chapman v. California, ante, at 42.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    BOYDEN v. CALIFORNIA.
    No. 57,
    Mise.
    Decided March 13, 1967.
    Appellant pro se.

      Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney General, and. Jack K. Weber, Deputy Attorney General, for appellee.
   Per Curiam.

The motion, for leave to proceed in forma pauperis is granted. The judgment is vacated and the case remanded for further consideration in light of Chapman v. California, ante, p. 18.

Mr. Justice Stewart would vacaté the judgment and remand for reconsideration in light of the views stated in his opinion concurring-dn the result in Chapman v. California, ante, at 42.


text:
    ROY v. CALIFORNIA et al.
    No. 68,
    Mise.
    Decided March 13, 1967.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and' the .case remanded for further consideration in light of Chapman v. California, ante, p. 18.

Mr. Justice Stewart would grant certiorari and reverse the judgment for the reasons stated in his opinion concurring in the result in Chapman v. California, ante, at 42.


text:
    McCLELLAN v. CALIFORNIA.
    No. 69,
    Mise.
    Decided March 13, 1967.
    Petitioner pro se. ' "..

      Thomas C. Lynch, -Attorney General of .California, William E. James, Assistant Attorney General, and Philip C. Griffin, Deputy Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The -judgment is vacated, and the case remanded for further 'consideration in light of Chapman v. California, ante, p. 18.

Mr. Justice Stewart would grant certiorari and reverse the judgment for the reasons stated in his opinion concurring in the result in Chapman v. California, ante, at 42.


text:
    DAVIS v. CALIFORNIA.
    No. 157,
    Mise.
    Decided March 13, 1967.
    Petitioner pro se.

      Thomas C. Lynch, Attorney General of California, and Edward P. O’Brien and James A. Aiello, Deputy Attorneys General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case remanded for further consideration in light of Chapman v. California, ante, p. 18.

Mr. Justice Stewart would grant certiorari, vacate the judgment, and .remand for reconsideration in light of the views stated in his opinion concurring in the result in Chapman v. California, ante, at 42.


text:
    ADAMS v. CALIFORNIA.
    No. 332,
    Mise.
    Filed March 13, 1967.
    Petitioner pro se.

      Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney General, and Philip C. Griffin, Deputy Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case remanded for further consideration in light of Chapman v. California, ante, p. 18.

Mr. Justice Stewart would grant certiorari and reverse the judgment for the reasons stated in his opinion concurring in the result in Chapman v. California, ante, at 42.


text:
    MICHAEL v. CALIFORNIA.
    No. 465,
    Mise.
    Filed March 13, 1967.
    Petitioner pro se.

      Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney General, and Robert P. Samoian, Deputy Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case remanded for further consideration in light of Chapman v. California, ante, p. 18.

Mr. Justice Stewart would grant cértiorari and reverse -the judgment for the reasons stated in his opinion concurring in the result in Chapman v. California, ante, at 42.


text:
    DECKARD v. WARDEN, MISSOURI PENITENTIARY.
    No. 533,
    Mise.
    Decided March 13, 1967.
    Petitioner pro se.

      Norman H. Anderson, Attorney General of Missouri, and Howard L. McFadden, Assistant Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ'of certiorari are granted. ■ The judgment- is vacated and the case is remanded to the Supreme Court, of Missouri for further consideration. Swenson v. Bosler, ante, p. 258; Eskridge v. Washington State Board of Prison Terms and Paroles, 357 U. S. 214; Tehan v. Shott, 382 U. S. 406, 416.


text:
    BEATTIE v. CALIFORNIA.
    No. 556,
    Mise.
    Filed March 13, 1967.
    Petitioner pro se.

      Thomas C. -Lynch, Attorney Generalof California, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for á writ of certiorari are granted. The Judgment is vacated and the case remanded for further consideration in light of Chapman v. California, ante, p. 18.

Mr. Justice Stewart would grant certiorari and reverse the judgment for the reasons stated in his opinion concurring in the result in Chapman v. California, ante, at 42.


text:
    GARRISON v. CALIFORNIA.
    No. 664,
    Mise.
    Decided March 13, 1967.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case remanded for further consideration in light of Chapman v. California, ante, p. 18.

Mr. Justice Stewart would grant certiorari and reverse the judgment for the .reasons stated in his opinion concurring in the result in Chapman v. California, ante, at 42.


author:
Mr. Chief Justice Warren
      Mr. Justice Douglas,

text:
    COMMISSIONER OF INTERNAL REVENUE v. STIDGER et ux.
    No. 173.
    Argued January 16, 1967.
    Decided March 20, 1967.

      Assistant Attorney General Rogovin argued the cause for petitioner. With him on the brief were Solicitor General Marshall, Jack S. Levin, Robert N. Anderson and Albert J. Beveridge III.

      John A. Reed, by invitation of the Court (385 U. S. 925), argued the cause and filed a brief, as amicus curiae, in support of the judgment below.
   Mr. Chief Justice Warren

delivered the opinion of the Court.

In this case we are required to determine whether, under the ,1954 Internal Revenue Code, expenditures for meals by a military officer stationed at a post to which his dependents were prohibited from accompanying him were deductible “traveling expenses . . . [incurred] while away from home” within the meaning of § 162 (a) (2) or whether instead they were nondeduetible “personal, living, or family expenses” within the meaning of § 262. At all pertinent times, respondent was a captain in the United States Marine Corps, attached to an aviation squadron. Immediately prior to October 1957, his permanent duty station was a Marine Corps base located at El Toro, California, and he lived nearby with his wife and children. On October 1, 1957, however, respondent and his squadron were transferred to Iwakuni, Japan, where they were to be based while serving a standard 15-month tour of duty in the Far East. Because dependents were prohibited from accompanying Marine Corps personnel to that duty station, respondent’s wife and children remained in California.

Of the 14½ months’ actual duration of respondent’s Far Eastern tour of duty, he was physically located at the Iwakuni base for 10 months. The remaining time was consumed by travel and short periods of duty at various other military bases; respondent was declared to be in a “travel status” for a period of 49 days, and he received additional compensation for those days on a per diem basis. .During the entire period of his service as a Marine Corps captain, both while, he served at bases in the United States and while he served abroad away from his family, respondent also received tax-free monthly allowances for quarters and subsistence.

On his 1958 income tax return, respondent claimed a deduction of $650, representing the cost of his meals at a rate of $65 per month for the 10 months spent at the Iwakuni base. The Commissioner of Internal . Revenue disallowed the deduction, ruling that the expenditure for meals was a “personal, living” expense under § 262 and not a travel expense under § 162 (a)(2). In the Commissioner’s view respondent’s “home” during the period in question was his permanent duty station at Iwakuni rather than California where his family resided; therefore, he was not “away from home” when he incurred the expenditure. The Tax Court upheld the Commissioner (40 T. C. 896), and respopdelit petitioned for review in the Court of Appeals for the Ninth Circuit. That court, in a per curiam decision with one judge dissenting, reversed the Tax Court and rejected the Commissioner’s definition of “home” for purposes of the deduction. 355 F.2d 294. The majority of the Court of Appeals ruled that the word “home” as used in § 162 (a) (2) of the Code must be given its usual meaning as the place of residence, not the place of business, of the taxpayer and his family. And since it was not reasonable for this taxpayer to move his family residence closer to his place of business, the “ordinary and necessary” requirement applicable to all § 162 deductions was met and the cost of meals at Iwakuni was deductible To resolve a direct conflict between this decision and a 1948 decision of the Court of Appeals for the Fourth Circuit in another case involving a military officer, Bercaw v. Commissioner, 165 F. 2d 521, wé granted certiorari. 385 U. S. 809.

This case , then requires us to focus upon one of the three conditions which must be met before an item is deductible.as a travel expense under § 162 (a)(2). There is no question but that the expenditure here was “ordinary and necessary” and that there was a “direct connection between the expenditure and the carrying on of the trade or business of the taxpayer or of his employer.” Cf. Commissioner v. Flowers, 326 U. S. 465, 470 (1946); Peurifoy v. Commissioner, 358 U. S. 59 (1958). The essence of the case is whether respondent was “away from home” when he incurred the expenditure. And the answer to that question turns upon a determination of whether, under the circumstances related above, respondent’s “home”, in 1958 was his permanent duty station at Iwakuni, Japan, or, instead, the residence of his family in California.

From the Revenue Act of 1921 down to § 162 (a) (2) of the 1954 Internal Revenue Code Congress has provided a deduction from taxable income for travel expenses, including amounts expended for meals and lodging, while “away from home.” Although Congress has not defined the crucial phrase “away from home,” administrative rulings and regulations have been directed toward that problem. In 1921, a general rule was established to the Cfect that “home” meant the taxpayer’s principal place of business or employment whether or not it coincided with his place of residence. This interpretation prevented deductions of day-to-day commuting expenses which were not the unusual type of “traveling expense” to which the statute was directed. Cf. Commissioner v. Flowers, 326 U. S. 465, 470 (1946). Its logic has been applied to a host of other situations. Although certain refinements have been added, the essential position of the Commissioner has remained unchanged.

While the court below, together with the Courts of Appeals for the Fifth and Sixth Circuits, has not always agreed with this interpretation, the Tax Court and all of the other courts of appeals which have considered it have sustained the Commissioner. The Commissioner’s interpretation of the word “home” in connection with travel-expense deductions was also made clear to Congress when in 1936 it was held that Members of Congress could not deduct expenses which they incurred in Washington, D. C., even though each also maintained a residence in the district from which he had been elected. Lindsay v. Commissioner, 34 B. T. A. 840. Congress did not respond to this ruling by amending the statutory language generally to provide that “home” was. intended to be synonymous with “residence,” but instead merely carved out an exception to cover the special travel-expense problems inherent in service as a national legislator.

The Commissioner argues that the fact that Congress has reviewed and re-enacted the pertinent language with an awareness of the administrative interpretation constitutes a legislative endorsement of the Commissioner’s position and is sufficient reason for reversing the judgment below. Helvering v. Winmill, 305 U. S. 79 (1938). But it is not necessary for us to decide here whether this congressional action (or inaction) constitutes approval and adoption of the Commissioner’s interpretation of “home” in all of its myriad applications since, in the context of the. military taxpayer, the Commissioner’s position has a firmer foundation. The Commissionerffias long held that a military taxpayer’s permanent duty station is also his home for purposes of determining deductibility of travel expenses. This position builds on the terminology employed by the military services to categorize various assignments and tours of duty, and also on the language and policy of the statutory provisions prescribing travel and transportation allowances for military personnel. For example, a Marine Corps directive, which was effective during respondent’s Far Eastern tour of duty, defined the length of standard tours of duty in terms of the commencement and termination dates of “permanent change[s] of station.” (Emphasis supplied.) Similarly, eligibility for certain statutory travel allowances turns upon whether an assignment constitutes a “change of permanent station” (emphasis supplied) or whether the serviceman is “away from his designated post of duty.” 37 U. S. C. § 404 (a)(1). Thus, the Commissioner’s position recognizes, as do the relevant statutes and the military services themselves, that the “permanence” of location in civilian life cannot find a complete parallel in military life which necessarily contemplates relatively frequent changes of location.

The nondeductibility of expenses incurred by a military taxpayer while at a permanent duty station was previously challenged in Bercaw v. Commissioner, 165 F. 2d 521 (C. A. 4th Cir. 1948). There, the taxpayer, a reserve army officer who was called to active duty and assigned to Fort Meade in Maryland where there were no quarters for dependents, sought to deduct expenditures for his meals and janitorial service as costs of traveling “away from home” in pursuit of his trade or business. The Court of Appeals affirmed the Tax Court’s disallowance of the deduction, stating:

“The taxpayer was engaged in the business of an Army officer. His place of business was his particular Army post. If his Army duties required him to travel, he would have received a per diem travel allowance which would not have been taxable. . . . But whenever he made a permanent change of station that place of duty became his place of business and there was his ‘home’ within the meaning of Section 23(a)(1)(A). . . . Thus the expenditures for meals . . . while at this post were personal living expenses and nondeductible . . . .” 165 F. 2d, at 524.

Since the Bercaw decision, the Commissioner has reiterated his position in Rev. Rui. 55-571,1955-2 Cum. Bull. 44. And until the decision of the court below in the 'present case, neither the courts nor Congress had disturbed the Commissioner’s interpretation of “home” as it pertained to military personnel.

Additional support for the Commissioner’s position is found in the fact that Congress traditionally has provided a special system of tax-free allowances for military personnel. These allowances now range from monthly payments for quarters and subsistence to per diem payments when the serviceman is declared in a “travel status.” Provision may also be made for financial relief to assist dependents in relocating when they are prohibited from accompanying a serviceman on a change of permanent duty station. In the present case, respondent received the per diem payments while he was away from his permanent duty station. His quarters at Iwakuni were provided without cost to him, and at the same time he continued to receive á tax-free quarters allowance of approximately $102.50 per month; he also received a tax-free subsistence allowance of approximately $42.50 per month at all relevant times.. Moreover, because his assignment to Iwakuni was a change of permanent station, his wife and children could have moved their residence to another part of the United States at the Government’s expense; however, they elected not to exercise that option.

Underlying the system of special allowances is congressional recognition of the fact that military life poses unusual financial problems. The system is designed to provide complete and direct relief from such problems as opposed to the incomplete and indirect relief which an income tax deduction affords to a civilian business traveler. If the system of allowances is in fact inadequate, or if there are inconsistencies in the Commissioner's application of the travel-expense provision to military personnel, it is the province of Congress and the Commissioner, not the courts, to make the appropriate adjustments. Given the Commissioner’s long-standing and judicially approved interpretation, the knowledge of that interpretation by Congress, and the fact that Congress has chosen to deal specially by tax-free, allowances with the financial problems peculiar to military life, we must agree with the Commissioner that the military taxpayer is not “away from home” when he is at his permanent duty station whether or not it is feasible or even permissible for his family to reside with him there. The judgment is, therefore,

Reversed.

Mr. Justice Douglas,

with whom Mr. Justice Black and Mr. Justice Fortas concur, dissenting.

The resolution of this case depends upon whether respondent was “away from home” when he incurred the expenses. The term “home” is not defined.

The Treasury’s administrative rulings for many years have indeed treated the statutory word “home” as meaning a taxpayer’s principal place of business or employment. See Commissioner v. Flowers, 326 U. S. 465, 471-472. To me it is clear that home means residence, with the qualification that a taxpayer should establish his residence as near to his place of employment as is reasonable. Ibid. Here the taxpayer was forbidden by military orders to take his family with him. He was, in other words, barred from taking his home with him whenever he went on military orders. The Commissioner points to the difficulty of having any rule other than the- fixed one that “home” means the taxpayer’s principal place of business or employment. It is said that if the rule is not rigid, a great complex of facts would have to be considered: adequacy of housing at the new post, expense of moving, school facilities, health of the family, the need to care for elderly or ailing relatives, and the like. Only a fixed rule provides certainty, it is said; any other would threaten the desire, for uniformity.

While equity is seldom an ingredient of the tax laws, while they are indeed inherently discriminatory in many ways, reflecting perquisites obtained by pressure groúps, we need not increase their harshness by giving simple words unusual or strained meanings — unless of course Congress has plainly made an arbitrary choice.

If the taxpayer chooses to maintain his residence at a place far removed from his place of business, the travel expenses are not “ordinary and necessary” since not dictated by business needs. Commissioner v. Flowers, supra. On the other hand, if the taxpayer cannot reasonably maintain his residence at his place of business, the travel expenses are “ordinary and necessary” and hence deductible. Such an interpretation would give effect to the congressional policy of allowing a deduction for expenses dictated by the needs of the taxpayer’s employment.

In this case there can be no question that the expenses were incurred in the pursuit of the taxpayer’s employment and that respondent could not move his residence to Iwakuni. There can be no question, that the expenses were motivated by “[t]he exigencies of business rather than the personal conveniences and necessities of the” respondent. Commissioner v. Flowers, supra, at 474. I cannot see how the result is changed simply because respondent is a member of the armed services. The fact that Congress has afforded members of the military special allowances is no indication that Congress intended that they not be allowed to deduct “ordinary a,nd necessary” expenses incurred while away from their residence. Respondent received the same pay and basic allowances while in the Far East as he did while residing with his family in the United States. There was no increase to help defray the increased expenses incurred by him while required to live away from his family.

       “There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the: taxable year in carrying on any trade or business, including—

      “(2) traveling expenses (including the entire amount expended for meals and lodging) while away from home in the pursuit of a trade or business . . . .” § 162 (a) (2) of the Internal Revenue Code. of 1954, 26 U. S. C. § 162 (a)(2) (1958 ed.).

       “Except as otherwise expressly provided in this chapter, no deduction shall be allowed for personal; living, or family expenses.” § 262 of the Internal Revenue Code of 1954, 26 U. S. C. § 262.

       Since a joint income tax return was filed by Captain and Mrs. Stidger, both are respondents here. In this opinion, however, the terms “respondent” and “taxpayer” refer only to Captain Stidger.

       Revenue Act of 1921, c. 136, §214 (a), 42 Stat. 239.

       O. D. 864, 4 Cum. Bull. 211 (1921); O. D. 1021, 5 Cum. Bull. 174 (1921).

       See, e. g.; I. T. 1490, 1-2 Cum. Bull. 89 (1922); Rev. Rul. 60-189, 1960-1 Cum. Bull. 60. See also note 22, infra.

       In addition to the instant case, see also Wright v. Hartsell, 305 F. 2d 221 (C. A. 9th Cir. 1962).

        Steinhort v. Commissioner, 335 F. 2d 496 (C. A. 5th Cir. 1964); United States v. Le Blanc, 278 F. 2d 571 (C. A. 5th Cir. 1960).

         Burns v. Gray, 287 F. 2d 698 (C. A. 6th Cir. 1961).

       See, e. g., Friedman v. Commissioner, 37 T. C. 539 (1961); Carroll v. Commissioner, 20 T. C. 382 (1953). The facts of the Carroll case are closely analogous to the circumstances surrounding the claimed deduction here. The taxpayer there was an employee of the War Department who in 1947 was transferred to a “permanent duty station” in Korea for a minimum of one year. His wife and child remained in the United States. A deduction for the cost of meals and lodging while in Korea was not allowed by the Tax Court which noted that the taxpayer’s employer (1) designated Korea as a “permanent duty station” and (2) granted per diem travel allowances only while the taxpayer was en route to and from Korea, not while he was based there. See also Todd v. Commissioner, 10 T. C. 655 (1948).

       See, e. g., O’Toole v. Commissioner, 243 F. 2d 302 (C. A. 2d Cir. 1957); Coerver v. Commissioner, 297 F. 2d 837 (C. A: 3d Cir. 1962), affirming 36 T. C. 252 (1961); Bercaw v. Commissioner, 165 F. 2d 521 (C. A. 4th Cir. 1948); England v. United States, 345 F. 2d 414 (C. A. 7th Cir. 1965); Cockrell v. Commissioner, 321 F. 2d 504 (C. A. 8th Cir. 1963); and York v. Commissioner, 82 U. S. App. D. C. 63, 160 F. 2d 385 (1947). The Courts of Appeals for the First and Tenth Circuits apparently have not taken a position on this question.

       66 Stat. 467. The exception was carried over to the 1954 Code and now reads: “For purposes of the preceding sentence, the place of residence of a Member of Congress . . . within the State, congressional district, Territory, or possession which he represents in Congress shall be considered his'home, but amounts expended by such Members within each taxable year for living expenses shall not be deductible for income tax purposes in excess of $3,000.” 26 U. S. C. §162 (a).

       Marine Corps Order 1300.8B, c. 1, issued July 1, 1958,- Record, p. 24.

         See generally Advisory Commission on Service Pay, Career Compensation for the Uniformed Forces, Appendix 13-18 (1948).

       37 U. S. C. §403.

       37 U. S. C. § 402.

       37 U. S. C. § 404. See also 37 U. S. C. §§ 405-412.

       37 U. S. C. §406 (h).

       37 U. S. C. § 403 (d) provides: “A member of a uniformed service who is assigned to quarters of the United States or a housing facility under the jurisdiction of a uniformed service may not be denied the basic allowance for quarters if, because of orders of competent authority, his dependents are prevented from occupying those quarters.”

       In 1948, the Hook Commission, which had been appointed by the Secretary of Defense to study military compensation, issued its report and recommendations. Advisory Commission on Service Pay, Career Compensation for the Uniformed Forces (1948). That report formed a principal basis for the Career Compensation Act of 1949, c. 681, 63 Stat. 802. On the subjects of subsistence and quarters allowances, the Commission state! (Appendix," p. 17):
      • “The theory behind the subsistence allowance is that since the officer is required to arrange and provide his subsistence at all times and since he has no choice as to the place where he is to be stationed and therefore does not have the choice of the average citizen as to the place and manner of subsisting himself, it is necessary to provide him with an allowance at all times so that he may bear that expense wherever stationed.

      “Because an officer is transferred frequently from place to place and is required to dig up his roots at the old station and transplant them to the new station, the Government has acknowledged for years its obligation to furnish quarters to the officer for occupancy by himself and his dependents.”

       Congress has through the years evidenced a determination to maintain the various allowances at levels consistent with the necessary financial burdens borne by servicemen. See, e. g., id., at 35 and Appendix 13-48; H. R. Rep. No. 779, 81st Cong., 1st Sess., p. 19. In 1963, Congress enacted yet another measure designed to provide direct relief for dependents separated from servicemen on permanent duty outside this country or in Alaska. 37 U. S. C. §427 (b). Under specified conditions, this provision authorizes an allowance of $30 monthly. It was established because Congress recognized that separated families incur additional expenses. See H. R. Rep. No. 208, 88th Cong., 1st Sess., p. 29. That recognition is, of course, the same one that underlies the travel-expense deduction for civilian taxpayers.

       The Commissioner has. taken the position that a naval officer may deduct as a traveling expense the cost of his meals aboard ship while the ship is away from its home port. Rev. Rui. 55-571,1955-2 Cum. Bull. 44. It is contended that respondent’s situation at Iwa-kuni was directly analogous to that of a naval officer on a ship at sea for an extended period of time. The Commissioner justifies the discrepant treatment by arguing that a naval officer should be treated like the engineer of a train, a bus driver, or an airplane pilot for purposes of the travel-expense deduction; the principal place of business of such taxpayers is their home terminal and they are allowed the deduction when away from that terminal on business trips. We are not.convinced that respondent’s situation was in all relevant respects analogous to that of a naval officer at sea. In any event, during oral orgument we were advised that the Commissioner is re-examining his position with respect to naval officers.

       Section 162 of the Internal Revenue Code of 1954 provides in relevant part:
      “(a) In General. — There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including—

      “(2) traveling expenses (including the entire amount expended for meals and lodging) while away from home in the pursuit of a trade or business . . . .”

       assume that a farmer has a herd of hogs. Each year he selects certain young to be bred. After each sow has one litter, she is turned out to be conditioned for slaughter. The profits on the sale of the pigs unbred are taxable as ordinary income. But the profits on the sale of the pigs bred once are taxable as capital gains. They have been held as business properties producing other pigs. The fact that all the pigs are equally destined to be sold and eaten is unimportant.” Eisenstein, The Ideologies of Taxation 174 (1961).


author: Mr. Justice Stewart MR. Justice Douc&as,

text:
    McCRAY v. ILLINOIS.
    No. 159.
    Argued January 10-11, 1967.
    Decided March 20, 1967.

      R. Eugene Pincham argued the cause for petitioner. With him on the briefs were Sam Adam, Charles B. Evins and Earl E. Strayhom.

      John J. O’Toole, Assistant Attorney General of Illinois, argued the cause for respondent. With him on the brief were William G. Clark, Attorney General, and Richard A. Michael, Assistant Attorney General.

      Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Evelle J. Younger filed a brief for the State of California, as amicus curiae.

   Mr. Justice Stewart

delivered the opinion the Court.

The petitioner was arrested in Chicago, Illinois, on the morning of January 16, 1964, for possession of narcotics. The Chicago police officers who made the arrest found a package containing heroin on his person and he was indicted for its unlawful possession. Prior to trial he filed a motion to suppress the heroin as evidence against him, claiming that the police had acquired it in an unlawful search and seizure in violation of the Fourth and Fourteenth Amendments. See Mapp v. Ohio, 367 U. S. 643. After a hearing, the court denied the motion, and the petitioner was subsequently convicted upon the evidence of the heroin the arresting officers had found in his possession. The judgment of conviction was affirmed by the Supreme Court of Illinois, and wé granted certiorari to consider the petitioner’s claim that the hearing on his motion to suppress was constitutionally defective.

The petitioner’s arrest occurred near the intersection of 49th Street and Calumet Avenue at about seven in the morning. At the hearing on the motion to suppress, he testified that up until a half hour before he was arrested he had been at “a friend’s house” about a block away, that after leaving the friend’s house he had “walked with a lady from 48th to 48th .and South Park,” and that, as he approached 49th Street and Calumet Avenue, “[t]he Officers stopped me going through the alley.” “The officers,” he said, “did not show me a search warrant for my person or an arrest warrant for my arrest.” He said the officers then searched him and found the narcotics in question. The petitioner did not identify the “friend” or the “lady,” and neither of them appeared as a witness.

The arresting officers then testified. Officer Jackson stated that he and two fellow officers had had a conversation with an informant on the morning of January 16 in their unmarked police car. The officer said that the informant had told them that the petitioner, with, whom Jackson was acquainted, “was selling narcotics and had narcotics on his person and that he could be found-in the vicinity of 47th and Calumet at this particular time.”. Jackson said that he and his fellow officers drove to that vicinity in the police car and that when they spotted the petitioner, the • informant pointed him out and then departed on foot. Jackson stated that the officers observed the petitioner walking with a woman, then separating from her and' meeting briefly with a man, then proceeding alone, and finally, after seeing the police car, “hurriedly walking] between two buildings.” “At this point,” Jackson testified, “my partner and myself got out of the car and informed him we had information he had narcotics on his person, placed him in the police vehicle at this point.” Jackson stated that the officers then searched the petitioner and found the heroin in a cigarette package.

Jackson testified that he had been acquainted with the informant for approximately a year, that during this period the informant had supplied him with information about narcotics activities “fifteen, sixteen times at least,” that the information had proved to be accurate and had resulted in numerous arrests and convictions. On cross-examination, Jackson was even more specific as to the informant’s previous reliability, giving the names of people who had been convicted of narcotics violations as the result of information the informant had supplied. When Jackson was asked for the informant’s name and address, counsel for the State objected, and the objection was sustained by the court.

Officer Arnold gave substantially the same account of the circumstances of the petitioner’s arrest and search, stating that the informant had told the officers that the petitioner “was selling narcotics and had narcotics on his person now in the vicinity of 47th and Calumet.” The informant, Arnold testified, “said he had observed [the petitioner] selling narcotics to various people, meaning various addicts, in the area of 47th and Calumet.” Arnold testified that he had known the informant “roughly two years,” that the informant had given him information concerning narcotics “20 or 25 times,” and that the information had resulted in convictions. Arnold too was asked on cross-examination for the informant’s name and address, and objections to these questions were sustained by the court.

There can be no doubt, , upon the basis of the circumstances related by Officers Jackson and Arnold, that there was probable cause to sustain the arrest and incidental search in this case. Draper v. United States, 368 U. S. 307. Unlike the situation in Beck v. Ohio, 379 U. S. 89, each of the officers in this case described with specificity “what the informer actually said, and why the officer thought the information was credible.” 379 U. S., at 97. The testimony of each of the officers informed the court of the “underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant . . . was ‘credible’ or his information ‘reliable.’ ” Aguilar v. Texas, 378 U. S. 108, 114. See United States v. Ventresca, 380 U. S. 102. Upon the basis of those . circumstances, along with the officers’ personal observations. of the petitioner, the court was fully justified in holding that at the time the officers made the arrest “the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. Brinegar v. United States, 338 U. S. 160, 175-176; Henry v. United States, 361 U. S. 98, 102.” Beck v. Ohio, supra, at 91. It is the petitioner’s claim, however, that even though the officers’ sworn testimony fully supported a finding of probable cause for the arrest and search, the state court nonetheless violated the Constitu- - tion when it sustained objections to the petitioner’s questions as to the identity of the informant. We cannot agree. .

In permitting the officers to withhold the informant’s identity, the court was following well-settled Illinois law. When the issue is not guilt or innocence, but, as here, the question of probable-cause for an arrest or search, the Illinois Supreme Court has held that police officers need not invariably be required to disclose an informant’s identity if the trial judge is convinced, by evidence submitted in open court and subject to cross-examination, that the officers did rely in good faith upon credible information supplied by a reliable informant. This Illinois evidentiary rule is consistent with the law of many other States. In California, the State Legislature in 1965 enacted a statute adopting just such a rule for cases like the one before us:

“[I]n any preliminary hearing, criminal trial, or other criminal proceeding, for violation of any provision of Division 10 (commencing with Section 11000) of the Health and Safety Code, evidence of information communicated to a peace officer by a confidential informant, who is not a material witness to the guilt or innocence of the accused of the offense charged, shall be admissible on the issue of reasonable cause to make an arrest or search without requiring that the name or identity of the informant be disclosed if the judge or magistrate is satisfied, based upon evidence produced in open court, out of the presence of the jury, that such information was received from a reliable informant and in his discretion does not require such disclosure.” California Evid. Code § 1042 (c).

The reasoning of the Supreme Court of New Jersey in judicially adopting the same basic evidentiary rule was instructively expressed by Chief Justice Weintraub in State v. Burnett, 42 N. J. 377, 201 A. 2d 39:

“If a defendant may insist upon disclosure of the informant in order to test the truth of the officer’s statement that there is an informant or as to what the informant related or as to the informant’s reliability, we can be sure that every defendant will demand disclosure. He has nothing to lose and the prize may be the suppression of damaging evidence if the State cannot afford to reveal its source, as is so often the case. And since there is no way to test the good faith of a defendant who presses the demand, we must assume the routine demand would have to be routinely granted. The result would be that the State could use the informant’s information only as a lead and could search only if it could gather adequate evidence of probable cause apart from the informant’s data. Perhaps that approach would sharpen investigatorial techniques, but we doubt that there would be enough talent and time to cope with crime upon that basis. Rather wp accept the premise that the informer is a vital part of society’s defensive arsenal. The basic rule protecting his identity rests upon that belief.
“We must remember also that we are not dealing with the trial of the criminal charge itself. There the need for a truthful verdict outweighs society’s need for the informer privilege. Here, however, the accused seeks to avoid the truth. The very purpose of a motion to suppress is to escape the inculpatory thrust of evidence in hand, not because its probative force is diluted in the least by the mode •of seizure, but rather as a sanction to compel enforcement officers to respect the constitutional security of all of us under the Fourth Amendment. State v. Smith, 37 N. J. 481, 486 (1962). If the motion to suppress is denied, defendant will still be judged upon the untarnished truth.
“The Fourth Amendment is served if a judicial mind passes upon the existence of probable cause. Where the issue is submitted upon an application for a warrant, the magistrate is trusted to evaluate the credibility of the affiant in an ex parte proceeding. As we havé said, the magistrate is concerned, not with whether the informant lied, but with • whether the affiant is truthful in his recitation of what he was told. If the magistrate doubts .the credibility of the affiant, he may require that , the informant be identified or even produced. It seems to us that the same approach is equally sufficient where the search was without a warrant, that is to - say, that it should rest entirely with the judge who hears the motion to suppress to decide whether he needs such disclosure as to the informant in order to decide whether the officer is a believable witness.” 42 N. J., at 385-388, 201 A. 2d, at 43-45.

What Illinois and her sister States have doné is no more than recognize a well-established testimonial privilege, long familiar to the law of evidence. Professor Wigmore, not known as an enthusiastic advocate of testimonial privileges generally, has described that privilege in these words:

“A genuine privilege, on . . . fundamental principle . . . , must be recognized for the identity of persons supplying the government with information concerning the commission of crimes. Communications of this kind ought to receive encouragement. They are discouraged if the informer’s identity is disclosed. Whether an informer is motivated by good citizenship, promise of leniency or prospect of pecuniary reward, he will usually condition his cooperation on an assurance of anonymity — to protect himself and his family from harm, to preclude adverse social reactions and to avoid the risk of defamation or malicious prosecution actions against him. The government also has an interest in nondisclosure of the identity of its informers. Law enforcement officers often depend upon professional informers to furnish them with a flow of information about criminal activities. Revelation of the dual role played by such persons ends their usefulness to the government and discourages others from entering into a like relationship.
“That the government has this privilege is well established, and its soundness cannot be questioned.” (Footnotes omitted.) 8 Wigmore, Evidence § 2374 (McNaughton rev. 1961),

In the federal courts the rules of evidence in criminal trials are governed “by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.” This Court, therefore, has the ultimate task of defining the scope to be accorded to the various common law eviden-tiary privileges in the trial of federal criminal cases. See Hawkins v. United States, 358 U. S. 74. This is a task which is quite different, of course, from the responsibility of constitutional adjudication. In the exercise of this supervisory jurisdiction the Court had occasion 10 years ago, in Roviaro v. United States, 353 U. S. 53, to give thorough consideration to one aspect of the informer’s privilege, the privilege itself having long been recognized in the federal judicial system.

The Ruviaro case involved the informer’s privilege, not at a preliminary hearing to determine probable cause for an arrest or search, but at the trial itself where the issue was the fundamental, one of innocence or guilt. The petitioner there had been brought to trial upon a two-count federal indictment charging sale and transportation of narcotics. According to the prosecution’s evidence, the informer had been. an active participant in the crime. He “had taken a material part in bringing about the possession of certain drugs by the accused, had been present with the accused at the occurrence of the alleged crime, and might be a material witness as to whether the accused knowingly transported the drugs as charged.” 353 U. S., at 55. The trial court nonetheless deniéd a defense motion to compel the prosecution to disclose the informer’s identity.

This Court held that where, in an actual trial of a federal criminal case,

“the disclosure of an informer’s identity ... is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action. ...
“We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” 353 U. S., at 60-61, 62. (Footnotes omitted.)

The Court’s opinion then carefully reviewed the particular circumstances of Roviaro’s trial, pointing out that the informer’s “possible testimony was highly relevant . . . ,” that he “might have disclosed an entrapment . . . ,” “might have thrown doubt upon petitioner’s identity or on the identity of the package . . . ,” “might, have testified to petitioner’s possible lack of knowledge of the contents of the package that he ‘transported’ ...,” and that the “informer was the sole participant, other than the accused, in the transaction charged.” 353 U. S., at 63-64. The Court concluded “that, under these cir-. cumstances, the trial court committed prejudicial error in permitting the Government to withhold the identity of its undercover employee in the face of repeated demands by the accused for his disclosure.” 353 IT. S., at 65.

What Roviaro thus makes clear is that this Court was unwilling to impose any absolute rule requiring disclosure of an informer’s identity even in formulating evidentiary rules for federal criminal trials. Much less has the Court ever approached the formulation of a federal evidentiary rule of- compulsory disclosure where the issue is the preliminary one of probable cause, and guilt or innocence is not at stake. Indeed, we have repeatedly made clear that federal officers need not disclose an informer’s identity in applying for an arrest or search warrant. As was said in United States v. Ventresca, 380 U. S. 102, 108, we have “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 he disclosed ... was “credible” or his information “reliable.” ’ Aguilar v. Texas, supra, at 114.” (Emphasis added.) See also Jones v. United States, 362 U. S. 257, 271-272; Rugendorf v. United States, 376 U. S. 528, 533. And just this Term we have taken occasion to point out that a rule virtually prohibiting the use of informers would “severely hamper the Government” in enforcement of the narcotics laws. Lewis v. United States, 385 U. S. 206, 210.

In sum, the Court in the exercise of its power to formulate evidentiary rules for federal criminal cases has consistently declined to hold that an informer’s identity need always be disclosed in a federal criminal trial, let alone in a preliminary hearing to determine probable cause for an arrest or search. Yet we are now asked to hold that the Constitution somehow compels Illinois to abolish the informer’s privilege from its law of evidence, and to require disclosure of the informer’s identity in every such - preliminary hearing where it appears that the officers made the arrest or search in reliance upon facts supplied by an informer they had reason to trust. The argument is based upon the Due Process Clause of the Fourteenth Amendment, and upon the Sixth Amendment right of confrontation, applicable to the States through the Fourteenth Amendment. Pointer v. Texas, 380 U. S. 400. We find no support for the petitioner’s position in either of those constitutional provisions.

The arresting officers in this case testified, in open court, fully and in precise detail as to what the informer told them and as to why they had reason to believe his information was trustworthy. Each officer was under oath. Each was subjected to searching cross-examination. The judge was obviously satisfied that each was telling the truth, and for that reason he exercised the discretion conferred upon him by the established law of Illinois to respect the informer’s privilege.

Nothing in the Due Process Clause of the Fourteenth Amendment requires a state court judge in every such hearing- to assume the arresting officers are committing perjury. “To take such a step would be quite beyond the pale of this Court’s proper function in our federal system. It would be a wholly unjustifiable encroachment by this Court upon. the. constitutional power of States to promulgate their own rules of evidence ... in their own state courts . . . .” Spencer v. Texas, 385 U. S. 554, 568-569.

The petitioner does not explain precisely hotf he thinks his Sixth Amendment right to confrontation and cross-examination was violated by Illinois’ recognition of the informer’s privilege in this case. If the claim is that the State violated the Sixth Amendment by not producing the informer to testify against the petitioner, then we need no more than repeat the Court’s answer to that claim a few weeks ago in Cooper v. California:

“Petitioner also -presents the contention here that he was unconstitutionally deprived of the right to confront a witness against him, because the State did not produce the informant to testify against him. This contention we - consider absolutely devoid of merit.”. Ante, p. 68, at 62, n. 2.

On the- other hand, the claim may be that the petitioner was deprived of his Sixth Amendment right to cross-examine the arresting officers themselves, because their refusal to reveal the informer’s identity was upheld. But it would follow from this argument that no witness on cross-examination could ever constitutionally assert a ■ testimonial privilege, including the privilege against compulsory self-incrimination guaranteed by the Constitution itself.. We. have never given the Sixth Amendment such a construction, and we decline to do so now.

Affirmed.

MR. Justice Douc&as,

with whom The Chief Justice, Mr. Justice" Brennan and Mr. Justice Fortas concur,

dissenting.

We have here a Fourth Amendment question concerning the validity of an arrest. If the police see a crime being committed they can of course seize the culprit. If a person is fleeing the scene of a crime, the police can stop him. And there are the cases of “hot pursuit” and other instances of probable cause when the police can' make an arrest. But normally an arrest should be made only on a warrant issued by a- magistrate on a showing of “probable cause, supported by oath or affirmation,” as required by the Fourth Amendment. At least since Mapp v. Ohio, 367 U. S. 643, the States are as much bound by those provisions as is the Federal Government. But for the Fourth Amendment they could fashion the rule for arrests that "the Court now approves. With all deference, the requirements of the Fourth Amendment now make that conclusion unconstitutional.

No warrant for the arrest of petitioner was obtained in this case. The police; instead of going to a magistrate and making a showing of “probable cause” based on their informant’s tip-off, acted on their own. They, rather than the magistrate, became the arbiters of “probable cause.” The Court’s approval of that process effectively rewrites the Fourth Amendment.

In Roviaro v. United States, 353 U. S. 53, 61, we held that where a search without a warrant is made on the basis of communications of an informer and the. Government claims the police had “probable cause,” disclosure of the identity of the informant is normally required. In no other way can the defense show an absence of “probable .cause.” By reason of Mapp v. Ohio, supra, that rule is now applicable to the States.

In Beck v. Ohio, 379 U. S. 89, 96, we said:

“An arrest without a warrant bypasses the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable procedure of an after-the-event justification 'for the arrest or search, too likely to be subtly influenced by the familiar shortcomings of hindsight judgment.”

For that reason we have weighted arrests with wárrants more heavily than arrests without warrants. See United States v. Ventresca, 380 U. S. 102, 106. Only 'through the informer’s testimony .can anyone other than the arresting officers determine “the persuasiveness of the facts relied on . . .' to show probable cause.” Aguilar v. Texas, 378 U. S. 108, 113. Without that disclosure neither we nor the lower courts can ever know whether there was “probable cause” for the arrest. Under the present decision we leave the Fourth Amendment exclusively in the custody of the police. As stated by Mr. Justice Schaefer dissenting in People v. Durr, 28 Ill. 2d 308, 318, 192 N. E. 2d 379, 384, unless the identity of the informer is disclosed “the policeman himself eon-clusively determines the validity of his own arrest.” That was the view of the Supreme Court of California in Priestly v. Superior Court, 50 Cal. 2d 812, 818, 330 P. 2d 39, 43:

“Only by requiring disclosure and giving the defendant an opportunity to present contrary or impeaching evidence as to the truth of the officer’s testimony and the reasonableness of his reliance on the informer can the court make a fair determination of the issue. Such a requirement does riot unreason- . ably discourage the free flow of information to law enforcement officers or otherwise impede law enforcement. Actually its effect is to compel independent investigations to verify information given by an informer or to uncover other facts that establish reasonable cause to make an arrest or search.”

There is no way to determine the reliability of Old Reliable, the informer, unless he is produced at the trial and cross-examined. Unless he is produced, the Fourth Amendment is entrusted to the tender mercies of the police. What we do today is to encourage arrests and searches without warrants. The whole momentum of criminal law administration should be in precisely the opposite direction, if the Fourth Amendment, is to remain a vital force. Except in rare and emergency cases, it requires magistrates to make the findings of “probable cause.”' We should be mindful of its command that a judicial mind should be interposed between the police and the citizen. We should also be mindful that “disclosure, rather than suppression, of relevant materials ordinarily promotes the proper administration of criminal justice.” Dennis v. United States, 384 U. S. 855, 870.

       33 Ill. 2d, 210 N. E. 2d 161

       384 U.S. 949.

       The weather was “real cold,” and the petitioner testified he “had on three coats.” In order to conduct the search, the arresting officers required the petitioner to remove some of his clothing, but even the petitioner’s version of the circumstances of the search did not disclose any conduct remotely akin to that condemned by this Court, in Rochin v. California, 342 U. S. 165.

      “Q. What is the name of this informant that gave you this information?
      “Mr. Engerman: Objection, Your Honor.
      “The Court: State for the record the reasons for your objection.
      “Mr. Engerman: Judge, based upon the testimony of the officer so far that they had used this informant for approximately a year, he has worked with this individual, in the interest of the public, I see no reason why the officer should be forced to disclose the name of the informant, to cause harm or jeopardy to an individual who has cooperated with the police. The City of Chicago have a tremendous problem with narcotics. If the police are not able to withhold the name of the informant they will not be able to get informants. They are not willing to risk their lives if their names become known.
      “In the, interest of the City and the law enforcement of this community, I feel the officer should not be forced to reveal the name of the informant. And I also cite People vs. Durr.
      “The Court: I will sustain that.
      “Mr. Adam: Q. Where does this informant live?
      “Mr. Engerman: Objection, your Honor, same basis.
      “The Court: Sustained.”

        People v. Durr, 28 Ill. 2d 308, 192 N. E. 2d 379; People v. Nettles, 34 Ill. 2d 52, 213 N. E. 2d 536; People v. Connie, 34 Ill. 2d 353, 215 N. E. 2d 280; People v. Freeman, 34 Ill. 2d 362, 215 N. E. 2d 206; People v. Miller, 34 Ill. 2d 527, 216 N. E. 2d 793. Cf. People v. Pitts, 26 Ill. 2d 395, 186 N. E. 2d 357; People v. Parren, 24 Ill. 2d 572, 182 N. E. 2d 662.

        State v. Cookson, 361 S. W. 2d 683 (Mo. Sup. Ct.); Simmons v. State, 198 Tenn. 587, 281 S. W. 2d 487; People v. Coffey, 12 N. Y. 2d 443, 191 N. E. 2d 263. But see People v. Malinsky, 15 N. Y. 2d 86, 209 N. E. 2d 694. Cf. Stelloh v. Liban, 21 Wis. 2d 119, 124 N. W. 2d 101; Baker v. State, 150 So. 2d 729 (Fla. App.); State v. Boles, 246 N. C. 83, 97 S. E. 2d 476.

       In the present case California has filed a helpful amicus brief, advising us that the validity of this provision is now before the Supreme Court of California. Martin v. Superior Court (LA 29078). The statute was enacted to modify that court’s decision in Priestly v. Superior Court, 50 Cal. 2d 812, 330 P. 2d 39. See also Ford v. City of Jackson, 153 Miss. 616, 121 So. 278.

       See 8 Wigmore, Evidence §2192 (McNaughton rev. 1961).

       Rule 26, Fed. Rules Crim. Proc.

       See Scher v. United States, 305 U. S. 251; In re Quarles & Butler, 158 U. S. 532; Vogel v. Gruaz, 110 U. S. 311.

       Some federal courts have applied the same rule of nondisclosure in both warrant and nonwarrant cases. Smith v. United States, 123 U. S. App. D. C. 202, 358 F. 2d 833; Jones v. United States, 326 F. 2d 124 (C. A. 9th Cir.), cert. denied, 377 U. S. 956; United States v. One 1957 Ford Ranchero Pickup, 265 F. 2d 21 (C. A. 10th Cir.). Other federal courts, however, have distinguished between these two classes of cases and have required the identification of informants in nonwarrant cases. United States v. Robinson, 325 F. 2d 391 (C. A. 2d Cir.); Cochran v. United States, 291 F. 2d 633 (C, A. 8th Cir.). Cf. Wilson v. United States, 59 F. 2d 390 (C. A. 3d Cir.). See Comment, Informer’s Word as the Basis for Probable Cause in the Federal Courts, 53 Calif. L. Rev. 840 (1965).
      In drawing this distinction some of the federal courts have relied upon a dictum in Roviaro v. United States, 353 U. S. 53, 61:
      “Most of the federal cases involving this limitation on the scope of the informer’s privilege have arisen where the legality of a search without a warrant is in issue and the communications of an informer are claimed to establish probable cause. In these cases the Government has been required to disclose the identity of the informant unless there was sufficient evidence apart from his confidential communication.”
      Since there was no probable cause issue in Roviaro, the quoted statement was clearly not necessary for decision. Indeed, an absolute rule of disclosure for probable cause determinations would conflict with the case-by-case approach upon which the Roviaro decision was based. Moreover, the precedent upon which this dictum was grounded furnishes only dubious support. Scher v. United States, 305 U. S. 251, the only decision of this Court which was cited, affirmed the trial judge’s refusal to order arresting officers to reveal the source of their information'.

       Quoting from Giordenello v. United States, 357 U. S. 480, 486.

       It is not unknown for the arresting officer to misrepresent his connection, with the informer, his knowledge of the informer’s reliability, or the information allegedly obtained from the informer. See, e. g., United States v. Pearce, 275 F. 2d 318, 322.