author: Mr. Justice White Mr. Justice Harlan, Mr. Justice Black,

text:
    HUNTER v. ERICKSON, MAYOR OF AKRON, et al.
    No. 63.
    Argued November 13, 1968.
    Decided January 20, 1969.

      Robert L. Carter argued the cause for appellant. With him on the brief were Norman Purnell, Bernard R. Roetzel, and Lewis M. Steel.

      Alvin C. Vinopal argued the cause for appellees. With him on the brief was William R. Baird.

      Louis F. Claiborne argued the cause for the United States, as amicus curiae, urging reversal. With him on the brief were Solicitor General Griswold, Assistant Attorney General Poliak, Francis X. Beytagh, Jr., and Nathan Lewin.

   Mr. Justice White

delivered the opinion of the Court.

The question in this case is whether the City of Akron, Ohio, has denied a Negro citizen, Nellie Hunter, the equal protection of its laws by amending the city charter to prevent the city council from implementing any ordinance dealing with racial, religious, or ancestral discrimination in housing without the approval of the majority of the voters of Akron.

The Akron City Council in 1964 enacted a fair housing ordinance premised on a recognition of the social and economic losses to society which flow from substandard, ghetto housing and its tendency to breed discrimination and segregation contrary to the policy of the city to “assure equal opportunity to all persons to live in decent housing facilities regardless of race, color, religion, ancestry or national origin.” Akron Ordinance No. 873-1964 § 1. A Commission on Equal Opportunity in Housing was established by the ordinance in the office of the Mayor to enforce the antidiscrimination sections of the ordinance through conciliation or persuasion if possible, but, if not, then through “such order as the facts warrant,” based upon a hearing at which witnesses may be subpoenaed, and entitled to enforcement in the courts. Akron Ordinance No. 873-1964, as amended by Akron Ordinance No. 926-1964.

Seeking to invoke this machinery which had been established by the city for her benefit, Nellie Hunter addressed a complaint to the Commission asserting that a real estate agent had come to show her a list of houses for sale, but that on meeting Mrs. Hunter the agent “stated that she could not show me any of the houses on the list she had prepared for me because all of the owners had specified they did not wish their houses shown to negroes.” Mrs. Hunter’s affidavit met with the reply that the fair housing ordinance was unavailable to her because the city charter had been amended to provide:

“Any ordinance enacted by the Council of The City of Akron which regulates the use, sale, advertisement, transfer, listing assignment, lease, sublease or financing of real property of any kind or of any interest therein on the basis of race, color, religion, national origin or ancestry must first be approved by a majority of the electors voting on the question at a regular or general election before said ordinance shall be effective. Any such ordinance in effect at the time of the adoption of this section shall cease to be effective until approved by the electors as provided herein.” Akron City Charter § 137.

The proposal for the charter amendment had been placed on the ballot at a general election upon petition of more than 10% of Akron’s voters, and the amendment had been duly passed by a majority.

Appellant then brought an action in the Ohio courts on behalf of the municipality, herself, and all others similarly situated, to obtain a writ of mandamus requiring the Mayor to convene the Commission and to require the Commission and the Director of Law to enforce the fair housing ordinance and process her complaint. The trial court initially held the enforcement provisions of the fair housing ordinance invalid under state law, but the Supreme Court of Ohio reversed, State ex rel. Hunter v. Erickson, 6 Ohio St. 2d 130, 216 N. E. 2d 371 (1966). On remand, the trial court held that the fair housing ordinance was rendered ineffective by the charter amendment, and the Supreme Court of Ohio affirmed, holding that the charter amendment was not repugnant to the Equal Protection Clause of the Constitution.

Akron contends that this case has been rendered moot by the passage of the Civil Rights Act of 1968, Pub. L. 90-284, 82 Stat. 73, the decision of this Court in Jones v. Alfred H. Mayer Co., 392 U. S. 409 (1968), and the passage of an Ohio Act effective October 30, 1965, Ohio Rev. Code Ann., Tit. 41, c. 4112. It is true that each of these events is related to open housing, but none of the legislation involved was intended to pre-empt local housing ordinances or provide rights and remedies which are effective substitutes for the Akron law.

The 1968 Civil Rights Act specifically preserves and defers to local fair housing laws, and the 1866 Civil Rights Act considered in Jones should be read together with the later statute on the same subject, United States v. Stewart, 311 U. S. 60, 64-65 (1940); Talbot v. Seeman, 1 Cranch 1, 34-35 (1801), so as not to pre-empt the local legislation which the far more detailed Act of 1968 so explicitly preserves. If the Ohio statute mooted the case, surely the Ohio Supreme Court would have so held when the validity of the Akron ordinance was twice before it after the Ohio statute was passed. Moreover, the sections of the Ohio law which are crucial here apply only to “commercial housing,” and on any reading we can imagine do not apply to Mrs. Hunter’s case, though the Akron ordinance does. Finally, the case cannot be considered moot since the Akron ordinance provides an enforcement mechanism unmatched by either state or federal legislation. Unlike state or federal programs, the Akron ordinance brings local people together for conciliation and persuasion by and before a local tribunal. It is precisely this sort of very localized solution to which Congress meant to defer. We therefore reject the contention that this case is moot.

Akron argues that this case is unlike Reitman v. Mulkey, 387 U. S. 369 (1967) in that here the city charter declares no right to discriminate in housing, authorizes and encourages no housing discrimination, and places no ban on the enactment of fair housing ordinances. But we need not rest on Reitman to decide this case. Here, unlike Reitman, there was an explicitly racial classification treating racial housing matters differently from other racial and housing matters.

By adding § 137 to its Charter the City of Akron, which unquestionably wields state power, not only suspended the operation of the existing ordinance forbidding housing discrimination, but also required the approval of the electors before any future ordinance could take effect. Section 137 thus drew a distinction between those groups who sought the law’s protection against racial, religious, or ancestral discriminations in the sale and rental of real estate and those who sought to regulate real property transactions in the pursuit of other ends. Those who sought, or would benefit from, most ordinances regulating the real property market remained subject to the general rule: the ordinance would become effective 30 days after passage by the City Council, or immediately if passed as an emergency measure, and would be subject to referendum only if 10% of the electors so requested by filing a proper and timely petition. Passage by the Council sufficed unless the electors themselves invoked the general referendum provisions of the city charter. But for those who sought protection against racial bias, the approval of the City Council was not enough. A referendum was required by charter at a general or regular election, without any provision for use of the expedited special election ordinarily available. The Akron charter obviously made it substantially more difficult to secure enactment of ordinances subject to § 137.

Only laws to end housing discrimination based on “race, color, religion, national origin or ancestry” must run § 137’s gantlet. It is true that the section draws no distinctions among racial and religious groups. Negroes and whites, Jews and Catholics are all subject to the same requirements if there is housing discrimination against them which they wish to end. But § 137 nevertheless disadvantages those who would benefit from laws barring racial, religious, or ancestral discriminations as against those who would bar other discriminations or who would otherwise regulate the real estate market in their favor. The automatic referendum system does not reach housing discrimination on sexual or political grounds, or against those with children or dogs, nor does it affect tenants seeking more heat or better maintenance from landlords, nor those seeking rent control, urban renewal, public housing, or new building codes.

Moreover, although the law on its face treats Negro and white, Jew and gentile in an identical manner, the reality is that the law’s impact falls on the minority. The majority needs no protection against discrimination and if it did, a referendum might be bothersome but no more than that. Like the law requiring specification of candidates’ race on the ballot, Anderson v. Martin, 375 U. S. 399 (1964), § 137 places special burdens on racial minorities within the governmental process. This is no more permissible than denying them the vote, on an equal basis with others. Cf. Gomillion v. Lightfoot, 364 U. S. 339 (1960); Reynolds v. Sims, 377 U. S. 533 (1964); Avery v. Midland County, 390 U. S. 474 (1968). The preamble to the open housing ordinance which was suspended by § 137 recited that the population of Akron consists of “people of different race, color, religion, ancestry or national origin, many of whom live in circumscribed and segregated areas, under sub-standard, unhealthful, unsafe, unsanitary and overcrowded conditions, because of discrimination in the sale, lease, rental and financing of housing.” Such was the situation in Akron. It is against this background that the referendum required by § 137 must be assessed.

Because the core of the Fourteenth Amendment is the prevention of meaningful and unjustified official distinctions based on race, Slaughter-House Cases, 16 Wall. 36, 71 (1873); Strauder v. West Virgina, 100 U. S. 303, 307-308 (1880); Ex parte Virginia, 100 U. S. 339, 344-345 (1880); McLaughlin v. Florida, 379 U. S. 184, 192 (1964); Loving v. Virginia, 388 U. S. 1, 10 (1967), racial classifications are “constitutionally suspect,” Bolling v. Sharpe, 347 U. S. 497, 499 (1954), and subject to the “most rigid scrutiny,” Korematsu v. United States, 323 U. S. 214, 216 (1944). They “bear a far heavier burden of justification” than other classifications, McLaughlin v. Florida, 379 U. S. 184, 194 (1964).

We are unimpressed with any of Akron’s justifications for its discrimination. Characterizing it simply as a public decision to move slowly in the delicate area of race relations emphasizes the impact and burden of § 137, but does not justify it. The amendment was unnecessary either to implement a decision to go slowly, or to allow the people of Akron to participate in that decision. Likewise, insisting that a State may distribute legislative power as it desires and that the people may retain for themselves the power over certain subjects may generally be true, but these principles furnish no justification for a legislative structure which otherwise would violate the Fourteenth Amendment. Nor does the implementation of this change through popular referendum immunize it. Lucas v. Colorado General Assembly, 377 U. S. 713, 736-737 (1964). The sovereignty of the people is itself subject to those constitutional limitations which have been duly adopted and remain unrepealed. Even though Akron might have proceeded by majority vote at town meeting on all its municipal legislation, it has instead chosen a more complex system. Having done so, the State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person’s vote or give any group a smaller representation than another of comparable size. Cf. Reynolds v. Sims, 377 U. S. 533 (1964); Avery v. Midland County, 390 U. S. 474 (1968).

We hold that § 137 discriminates against minorities, and constitutes a real, substantial, and invidious denial of the equal protection of the laws.

Reversed.

Mr. Justice Harlan,

whom Mr. Justice Stewart joins, concurring.

At the outset, I think it well to sketch my constitutional approach to state statutes which structure the internal governmental process and which are challenged under the Equal Protection Clause of the Fourteenth Amendment. For equal protection purposes, I believe that laws which define the powers of political institutions fall into two classes. First, a statute may have the clear purpose of making it more difficult for racial and religious minorities to further their political aims. Like any other statute which is discriminatory on its face, such a law cannot be permitted to stand unless it can be supported by state interests of the most weighty and substantial kind. McLaughlin v. Florida, 379 U. S. 184, 192 (1964).

Most laws which define the structure of political institutions, however, fall into a second class. They are designed with the aim of providing a just framework within which the diverse political groups in our society may fairly compete and are not enacted with the purpose of assisting one particular group in its struggle with its political opponents. Consider, for example, Akron’s procedure which requires that almost any ordinance be submitted to a general referendum if 10% of the electorate signs an appropriate petition. This rule obviously does not have the purpose of protecting one particular group to the detriment of all others. It will sometimes operate in favor of one faction; sometimes in favor of another. Akron has adopted the referendum system because its citizens believe that whenever an action of the City Council raises the emotional opposition of any significant group in the community, the people should have a right to decide the matter directly. Statutes of this type, which are grounded upon general democratic principle, do not violate the Equal Protection Clause simply because they occasionally operate to disadvantage Negro political interests. If a governmental institution is to be fair, one group cannot always be expected to win. If the Council’s fair housing legislation were defeated at a referendum, Negroes would undoubtedly lose an important political battle, but they would not thereby be denied equal protection.

This same analysis applies to other institutions of government which are even more solidly rooted in our history than is the referendum. The existence of a bicameral legislature or an executive veto may on occasion make it more difficult for minorities to achieve favorable legislation; nevertheless, they may not be attacked on equal protection grounds since they are founded on neutral principles. Similarly, the rule which makes it relatively difficult to amend a state constitution is commonly justified on the theory that constitutional provisions should be more thoroughly scrutinized and more soberly considered than are simple statutory enactments. Here, too, Negroes may stand to gain by the rule if a fair housing law is made part of the constitution, or they may lose if the constitution adopts a position of strict neutrality on the question. See Reitman v. Mulkey, 387 U. S. 369, 389 (1967) (dissenting opinion of Harlan, J.). But even if Negroes are obliged to undertake the arduous task of amending the state constitution, they are not thereby denied equal protection. For the rule making constitutional amendment difficult is grounded in neutral principle.

In the case before us, however, the city of Akron has not attempted to allocate governmental power on the basis of any general principle. Here, we have a provision that has the clear purpose of making it more difficult for certain racial and religious minorities to achieve legislation that is in their interest. Since the charter amendment is discriminatory on its face, Akron must “bear a far heavier burden of justification” than is required in the normal case. McLaughlin v. Florida, 379 U. S. 184, 194 (1964). And Akron has failed to sustain this burden. The city’s principal argument in support of the charter amendment relies on the undisputed fact that fair housing legislation may often be expected to raise the passions of the community to their highest pitch. It was not necessary, however, to pass this amendment in order to assure that particularly sensitive issues will ultimately be decided by the general electorate. Akron has already provided a procedure, which is grounded in neutral principle, that requires a general referendum on this issue if 10% of the voters insist. If the prospect of fair housing legislation really arouses passionate opposition, the voters will have the final say. Consequently, the charter amendment will have its real impact only when fair housing does not arouse extraordinary controversy. This being the case, I can perceive no legitimate state interest which in any degree vindicates the action taken by the City here.

As I read the Court’s opinion to be entirely consistent with the basic principles which I believe control this case, I join in it.

Mr. Justice Black,

dissenting.

Section 10, Art. I, of the Constitution provides, among other things, that: “No State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts . . . .” But there is no constitutional provision anywhere which bars any State from repealing any law on any subject at any time it pleases. Although the Court denies the fact, I read its opinion as holding that a city that “wields state power” is barred from repealing an existing ordinance that forbids discrimination in the sale, lease, or financing of real property “on the basis of race, color, religion, national origin or ancestry . . . .” The result of what the Court does is precisely as though it had commanded the State by mandamus or injunction to keep on its books and enforce what the Court favors as a fair housing law.

The Court purports to find its power to forbid the city to repeal its laws in the provision of the Fourteenth Amendment forbidding a State to “deny to any person within its jurisdiction the equal protection of the laws.” For some time I have been filing my protests against the Court’s use of the Due Process Clause to strike down state laws that shock the Court’s conscience or offend the Court’s sense of what it considers to be “fair” or “fundamental” or “arbitrary” or “contrary to the beliefs of the English-speaking people.” I now protest just as vigorously against use of the Equal Protection Clause to bar States from repealing laws that the Court wants the States to retain. Of course the Court under the ruling of Marbury v. Madison, 1 Cranch 137 (1803), has power to invalidate state laws that discriminate on account of race. But it does not have power to put roadblocks to prevent States from repealing these laws. Here, I think the Court needs to control itself, and not, as it is doing, encroach on a State’s powers to repeal its old laws when it decides to do so.

Another argument used by the Court supposedly to support its holding is that we have in a number of our cases supported the right to vote without discrimination. And we have. But in no one of them have we held that a State is without power to repeal its own laws when convinced by experience that a law is not serving a useful purpose. Moreover, it is the Court’s opinion here that casts aspersions upon the right of citizens to vote. I say that for this reason. Akron’s repealing law here held unconstitutional, provides that an ordinance in the fair housing field in Akron “must first be approved by a majority of the electors voting on the question at a regular or general election before said ordinance shall be effective.” The Court uses this granted right of the people to vote on this important legislation as a key argument for holding that the repealer denies equal protection to Negroes. Just consider that for a moment. In this Government, which we boast is “of the people, by the people, and for the people,” conditioning the enactment of a law on a majority vote of the people condemns that law as unconstitutional in the eyes of the Court! There may have been other state laws held unconstitutional in the past on grounds that are equally as fallacious and undemocratic as those the Court relies on today, but if so I do not recall such cases at the moment. It is time, I think, to recall that the Equal Protection Clause does not empower this Court to decide what ordinances or laws a State may repeal. I would not strike down this repealing ordinance.

       Nothing in the federal statute is to be construed “to invalidate or limit any law of a State or political subdivision of a State” giving similar housing rights, and deference is to be given to local enforcement. Civil Rights Act of 1968, Tit. VIII, §§ 815, 810 (e), 82 Stat. 89, 86.

       “All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.” § 1, 14 Stat. 27, as amended, 42 U. S. C. § 1982.

       The Ohio statute makes it unlawful for “any person” to “[r]efuse to sell ... or otherwise deny or withhold commercial housing from any person because of the race [or] color” of the prospective owner. Ohio Rev. Code Ann. §§ 4112.02 (H) and 4112.02(H)(1) (Supp. 1967) (emphasis added). “Commercial housing” is defined to exclude “any personal residence offered for sale or rent by the owner or by his broker, salesman, agent, or employee.” Ohio Rev. Code Ann. §4112.01 (K) (Supp. 1967). The statute makes it unlawful to “[p]rint, publish, or circulate any statement or advertisement relating to the sale [of a] . . . personal residence . . . which indicates any preference, limitation, specification, or discrimination based upon race ...” Ohio Rev. Code Ann. §4112.02 (H)(6) (Supp. 1967). Since Mrs. Hunter does not seek commercial housing, or complain of the affront to her sensibilities of hearing a “circulated” statement (if the Ohio statute goes that far) she cannot obtain the relief she seeks under the Ohio statute.

       See, e. g., Evans v. Newton, 382 U. S. 296 (1966); Burton v. Wilmington Parking Authority, 365 U. S. 715 (1961); Shelley v. Kraemer, 334 U. S. 1 (1948).

       Thus we do not hold that mere repeal of an existing ordinance violates the Fourteenth Amendment.

       Ordinances may be initiated through a petition signed by 7% of the voters, and the city charter may be amended or measures enacted by the council repealed through a referendum which may be obtained on petition of 10% of the voters.

       The people of Akron had the power to initiate legislation, or to review council decisions, even before § 137. See n. 6, supra. The procedural prerequisites for this popular action are perfectly reasonable, as the gathering of 10% of the voters’ signatures in the course of passing § 137 illustrates.

      Section 25 of Akron’s city charter exempts the following ordinances from the referendum procedure:
      “(a) Annual appropriation ordinances, (b) Ordinances or resolutions providing for the approval or disapproval of appointments or removals and appointments or removals made by Council, (c) Actions by Council on the approval of official bonds, (d) Ordinances or resolutions providing for the submission of any proposition to the vote of the electors, (e) Ordinances providing for street improvements petitioned for by owners of a majority of the feet front of the property benefited and to be specially assessed for the cost thereof.”
      It is not suggested that any of these exceptions were made with the purpose of disadvantaging Negro political interests.


source: Caselaw Access Project

author: Per Curiam. Mr. Justice Douglas,

license: Public Domain

text:
    GORUN et al. v. FALL et al.
    No. 496.
    Decided January 20, 1969.

      John R. Vintilla and Novak N. Marku for appellants.

      Forrest H. Anderson, Attorney General of Montana, and N. A. Rotering, Special Assistant Attorney General, for appellees Fall et al. Appellee Union Bank & Trust Co. filed a brief.
   Per Curiam.

The motion to affirm is granted and the judgment is affirmed.

Mr. Justice Douglas,

with whom Mr. Justice Black, Mr. Justice Harlan, and Mr. Justice Fortas

concur.

Appellants are nonresident aliens living in Romania who were named as beneficiaries of an estate being probated in Montana. It has been assumed for the purpose of this appeal that they will receive from that estate unless prevented by the Montana reciprocal inheritance statute (Mont. Rev. Codes Ann. § 91-520) which would condition their distribution upon a showing that Romania similarly allows citizens of this country to receive, and to enjoy here, property bequeathed in Romania. While the estate was being administered in the state courts of Montana, appellants filed this complaint to have the three-judge court declare the statute unconstitutional and to enjoin its application. After issue was joined, they moved for summary judgment on the authority of Zschernig v. Miller, 389 U. S. 429, in which we struck down the Oregon reciprocal inheritance statute as an impermissible interference with federal power over foreign affairs.

Federal policy permits the free flow of funds to Romania. On March 30, 1960, the United States entered into an agreement with Romania, by which we agreed to release all blocked assets belonging to Romania. See 25 Fed. Reg. 3458.

At the same time, Romania was removed from the list of countries to which the sending of public funds is prohibited. See 25 Fed. Reg. 3526; 31 CFR § 211.2. As our opinion in Zschernig makes clear, a state probate judge is not authorized to make or apply a probate rule contrary to that federal policy.

The three-judge court dismissed the complaint, saying: “[T]he Montana court now advised by Zschernig of the boundaries of the constitutional power of the state . . . should be free to fashion a procedure for applying R. C. M. 1947, § 91-520, in a manner not offensive to the Federal Constitution.” 287 F. Supp. 725, 728.

While the four of us have no objection to summary disposition of this appeal, dismissal seems singularly inappropriate in light of our recent decisions saying over and over again that a federal claim in a federal court should be decided by the federal court and not relegated to a state tribunal. See Zwickler v. Koota, 389 U. S. 241, 250-252. In spite of our aversion to abstention, see id., at 248-249; Dombrowski v. Pfister, 380 U. S. 479, 486-487, it would be better judicial administration to hold the federal case, pending resolution of the state proceeding, than to dismiss it in the face of clear-cut federal policy in favor of the claim of appellants. Cf. Kaiser Steel Corp. v. W. S. Ranch Co., 391 U. S. 593.


author: Per Curiam. Mr. Justice Douglas, Mr. Justice Harlan,

text:
    ALABAMA STATE TEACHERS ASSN. et al. v. ALABAMA PUBLIC SCHOOL AND COLLEGE AUTHORITY et al.
    No. 731.
    Decided January 20, 1969.

      Jack Greenberg, James M. Nabrit III, Melvin Zarr, and Fred D. Gray for appellants.

      MacDonald Gallion, Attorney General of Alabama, and Gordon Madison, Assistant Attorney General, for Alabama Public School and College Authority, and James J. Carter for Members of the Board and the Board of Trustees of Auburn University, appellees.
   Per Curiam.

The motions to affirm are granted and the judgment is affirmed.

Mr. Justice Douglas,

dissenting.

If my Brother Harlan is correct and this is a local, as distinguished from a state-wide, law, a question not requiring a three-judge court (Moody v. Flowers, 387 U. S. 97), then we have been woefully wrong in other school integration cases. For they have almost always involved a single public school, which usually is wholly local in its operation. But in those other three-judge court cases we dealt with the operation of a state-wide racial segregation regime. The present Act (Ala. Acts 1967, No. 403) regulates a state agency, the Alabama Public School and College Authority, which issues and sells bonds. And these bonds, so the case tells us, are sold to construct what threatens to become an all-white university.

Can we say in 1969 that a State has no duty to disestablish a dual system of higher education based upon race? The three-judge court in a careful opinion seems to draw a line between elementary and secondary schools on one hand and colleges and universities on the other. The inference is that if this were an elementary school, the result would be different.

The problem is in effect a phase of “freedom of choice” which was before us in another aspect in Green v. County School Board, 391 U. S. 430.

1 would note probable jurisdiction and set the case for argument.

Mr. Justice Harlan,

dissenting.

Only two years ago, Moody v. Flowers, 387 U. S. 97, 101 (1967), made it clear that a three-judge court need not be convoked whenever “a state statute is involved but only when a state statute of general and statewide application is sought to be enjoined.” Although this holding was solidly grounded in precedent and in policy, the Court today abandons Moody without explanation by taking jurisdiction to affirm this judgment summarily.

The case before us does not involve a statute of “general and statewide application.” Appellants are simply trying to prevent the construction of a single public college to be located in the City of Montgomery. Appellants merely attack a statute which “authorize[s] the Alabama public school and college authority ... to issue . . . additional bonds in the . . . amount of $5,000,000 for the purpose of constructing ... a four-year college at Montgomery under the supervision and control of the board of trustees of Auburn University.” Ala. Acts, No. 403 (1967). The fate of this one school, like the fate of a county-wide reapportionment plan, Moody v. Flowers, supra, or the affairs of a regional drainage district, Rorick v. Commissioners, 307 U. S. 208 (1939), is not to be decided by a special three-judge court. As Moody and Rorick teach, the bare fact that a state statute is involved is not enough to trigger 28 U. S. C. § 2281.

We do not deal here with a state statute which “embodies a policy of statewide concern,” Spielman Motor Sales Co. v. Dodge, 295 U. S. 89, 94 (1935), but one which expresses a judgment that more educational facilities are needed in a particular locality. Indeed, appellants’ constitutional attack on the statute is entirely based on the peculiar local situation existing in Montgomery. At present, there are two state-supported institutions of higher learning in the city. Alabama State is a four-year college which has traditionally been attended by Negroes. Alabama Extension Center, on the other hand, has a predominantly white enrollment, but does not at present grant degrees, offering its students a set of “extension” courses. The Extension Center, however, will be enlarged to create Montgomery’s new four-year college, while Negro Alabama State has been entirely ignored in the planning. Appellants contend that, at a minimum, the State’s College Authority was constitutionally obliged to consider the possibility of coordinating the new college’s operations with those of Alabama State before the Authority could properly embark on its present course.

This brief outline of the facts demonstrates that we are dealing with an essentially local dispute which could properly be heard first by a single District Judge and then by the Court of Appeals before it came to us on certiorari.

I would dismiss this appeal for want of jurisdiction.

       The counterpart of this new predominantly all-white university is Alabama State College, predominantly Negro.

       This is on its face an amazing statement, as the forerunners of Brown v. Board of Education, 347 U. S. 483, 349 U. S. 294, were eases involving higher education. See Missouri ex rel. Gaines v. Canada, 305 U. S. 337; Sipuel v. Board of Regents, 332 U. S. 631; Sweatt v. Painter, 339 U. S. 629; McLaurin v. Oklahoma State Regents, 339 U. S. 637.

       And see Raney v. Board of Education, 391 U. S. 443; Monroe v. Board of Commissioners, 391 U. S. 450.

         Although the appellants’ original complaint also contained a challenge to the constitutionality of the Alabama statute creating the State’s Public School and College Authority, Ala. Acts, No. 243 (1965), this challenge was abandoned at the hearing on the merits. See 289 F. Supp. 784, 785, n. 1 (1968).

       While my Brother Douglas is quite right in noting that Brown v. Board of Education and two of its companion cases, 347 U. S. 483 (1954), were heard on appeal from three-judge District Courts, he fails to recognize that in each of those cases, appellants had sought to enjoin the operation of a state statute or constitutional provision of general application that either required or authorized racial segregation in public and secondary schools. Id., at 486, n. 1. See also, McLaurin v. Oklahoma State Regents, 339 U. S. 637 (1950). In contrast, our “freedom-of-choiee” decisions of last Term, Green v. County School Board, 391 U. S. 430 (1968); Raney v. Board of Education, 391 U. S. 443 (1968); Monroe v. Board of Commissioners, 391 U. S. 450 (1968), came to us on certiorari from the Fourth, Eighth, and Sixth Circuits respectively, precisely because the plans promulgated by the school boards in those cases were not of state-wide scope. See also Cooper v. Aaron, 358 U. S. 1 (1958) (on certiorari to the Eighth Circuit); Griffin v. School Board, 377 U. S. 218 (1964) (on certiorari to the Fourth Circuit); Bradley v. School Board, 382 U. S. 103 (1965) (on certiorari to the Fourth Circuit); Rogers v. Paul, 382 U. S. 198 (1965) (on certiorari to the Eighth Circuit); cf. Watson v. Memphis, 373 U. S. 526 (1963) (on certiorari to the Sixth Circuit).
      Indeed, even when there is an attack on a state-wide statute which requires racial discrimination on its face, a three-judge court need not be convoked if the statute is clearly invalid under pre-existing case law. Bailey v. Patterson, 369 U. S. 31 (1962).

       Appellants themselves seem to have recognized that this Court’s jurisdiction is questionable. They filed a protective appeal with the Court of Appeals for the Fifth Circuit on August 23, 1968. That court is holding the appeal in abeyance pending our decision in this case. See Jurisdictional Statement 2, n. 1.


author: Per Curiam.

text:
    SUTTON v. ADAMS, SECRETARY OF STATE OF FLORIDA, et al.
    No. 726.
    Decided January 20, 1969.

      Milton E. Grusmark for appellant.

      Earl Faircloth, Attorney General of Florida, pro se, and Robert A. Chastain and Wilson W. Wright, Assistant Attorneys General, for appellees.
   Per Curiam.

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

Mr. Justice Black and Mr. Justice Harlan would note probable jurisdiction and set the case for oral argument.


text:
    BACKER v. ROCKEFELLER, GOVERNOR OF NEW YORK.
    No. 852.
    Decided January 20, 1969.

      Jerome M. Kay for appellant.

      Louis J. Lefkowitz, Attorney General of New York, Ruth Kessler Toch, Solicitor General, and Jean M. Coon, Assistant Attorney General, for appellee.
   Per Curiam.

The motion to affirm is granted and the judgment is affirmed.


text:
    ALASKA et al. v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 302, AFL-CIO, et al.
    No. 734.
    Decided January 20, 1969.

      G. Kent Edwards, Attorney General of Alaska, and Edgar Paul Boyko for appellants.
    /. Duane Vance for the International Union of Operating Engineers et al., and Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, and Norton J. Come for the National Labor Relations Board, appellees.
   Per Curiam.

The motions to affirm are granted and the judgment is affirmed.


text:
    VALENTI v. ROCKEFELLER, GOVERNOR OF NEW YORK, et al.
    No. 773.
    Decided January 20, 1969.

      John Manning Regan for appellant.

      Louis J. Lefkowitz, Attorney General of New York, Ruth Kessler Toch, Solicitor General, and Jean M. Coon, Assistant Attorney General, for appellees.
   Per Curiam.

The motion to affirm is granted and the judgment is affirmed.


text:
    STANDARD FRUIT & STEAMSHIP CO. v. UNITED FRUIT CO. et al.
    No. 740.
    Decided January 20, 1969.

      Eberhard P. Deutsch, Robert M. Moore, and René H. Himel, Jr., for appellant.

      Hugh B. Cox and James H. McGlothlin for United Fruit Co., and Solicitor General Griswold for the United States, appellees.
   Per Curiam.

The motions to dismiss are granted and the appeal is dismissed for want of jurisdiction. Shenandoah Valley Broadcasting, Inc. v. American Society of Composers, Authors & Publishers, 376 U. S. 39.


text:
    PHILLIPS et al. v. ROCKEFELLER, GOVERNOR OF NEW YORK, et al.
    No. 854.
    Decided January 20, 1969.

      Robert L. Bobrick for appellants.

      Louis J. Lefkowitz, Attorney General of New York, Ruth Kessler Toch, Solicitor General, and Jean M. Coon, Assistant Attorney General, for appellees.
   Per Curiam.

The motion to affirm is granted and the judgment is affirmed.


text:
    STAMLER et al. v. WILLIS et al.
    No. 478.
    Decided January 20, 1969.

      Albert E. Jenner, Jr., Thomas P. Sullivan, and Arthur Kinoy for appellants in No. 478 on the petition for rehearing and motion to amend.

       Together with No. 479, Cohen v. Willis et al., also on appeal from the same court.

   Per Curiam.

The petition for a rehearing is denied. The motion to amend the judgment entered on November 25, 1968, dismissing the appeals is granted. The judgment dismissing the appeals is vacated and a new judgment will issue providing that the judgment below be vacated and the cases be remanded to the District Court so that it may enter a fresh decree from which timely appeals may be taken to the Court of Appeals.

Mr. Justice Marshall took no part in the consideration or decision of these cases.


author: Per Curiam. Mr. Justice Douglas

text:
    DAHL et al. v. REPUBLICAN STATE COMMITTEE et al.
    No. 596.
    Decided January 20, 1969.

      Alfred J. Schweppe for appellants.

      Bradley T. Jones for appellees.
   Per Curiam.

The judgment of the District Court is vacated and the cause is remanded in order that the District Court may enter a fresh decree from which appellants may, if they wish, perfect a timely appeal to the Court of Appeals. Moody v. Flowers, 387 U. S. 97.

Mr. Justice Douglas

dissents.

Mr. Justice Harlan, believing that jurisdiction lies in this Court, would affirm the judgmenLbelow.


text:
    DICKINSON, COMPTROLLER OF FLORIDA v. FIRST NATIONAL BANK OF HOMESTEAD et al.
    No. 741.
    Decided January 20, 1969.

      Earl Fair cloth, Attorney General of Florida, and Fred M. Burns and Larry Levy, Assistant Attorneys General, for appellant.

      0. Ralph Matousek for appellee First National Bank of Homestead.
   Per Curiam.

The motion to affirm is granted and the judgment is affirmed.

Mr. Justice Stewart is of the opinion that probable jurisdiction should be noted.

Mr. Justice Fortas took no part in the consideration or decision of this case.


author:
Mb. Justice Harlan
      Mr. Justice White, Me. Justice Black, Mr. Justice Fortas, Mb. Justice Stewakt,

text:
    SPINELLI v. UNITED STATES.
    No. 8.
    Argued October 16-17, 1968.
    Decided January 27, 1969.

      Irl B. Baris argued the cause and filed a brief for petitioner.

      Joseph J. Connolly argued the cause for the United States, pro hac vice. With him on the brief were Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Sidney M. Glazer.

   Mb. Justice Harlan

delivered the opinion of the Court.

William Spinelli was convicted under 18 U. S. C. i 1952 of traveling to St. Louis, Missouri, from a nearby Illinois suburb with the intention of conducting gambling activities proscribed by Missouri law. See Mo. Rev. Stat. § 563.360 (1959). At every appropriate stage in the proceedings in the lower courts, the petitioner challenged the constitutionality of the warrant which authorized the FBI search that uncovered the evidence necessary for his conviction. At each stage, Spinelli’s challenge was treated in a different way. At a pretrial suppression hearing, the United States District Court for the Eastern District of Missouri held that Spinelli lacked standing to raise a Fourth Amendment objection. A unanimous panel of the Court of Appeals for the Eighth Circuit rejected the District Court’s ground, a majority holding further that the warrant was issued without probable cause. After an en banc rehearing, the Court of Appeals sustained the warrant and affirmed the conviction by a vote of six to two. 382 F. 2d 871. Both the majority and dissenting en banc opinions reflect a most conscientious effort to apply the principles we announced in Aguilar v. Texas, 378 U. S. 108 (1964), to a factual situation whose basic characteristics have not been at all uncommon in recent search warrant cases. Believing it desirable that the principles of Aguilar should be further explicated, we granted certiorari, 390 U. S. 942, our writ being later limited to the question of the constitutional validity of the search and seizure. 391 U. S. 933. For reasons that follow we reverse.

In Aguilar, a search warrant had issued upon an affidavit of police officers who swore only that they had “received reliable information from a credible person and do believe” that narcotics were being illegally stored on the described premises. While recognizing that the constitutional requirement of probable cause can be satisfied by hearsay information, this Court held the affidavit inadequate for two reasons. First, the application failed to set forth any of the “underlying circumstances” necessary to enable the magistrate independently to judge of the validity of the informant’s conclusion that the narcotics were where he said they were. Second, the affiant-officers did not attempt to support their claim that their informant was “ 'credible’ or his information 'reliable.’ ” The Government is, however, quite right in saying that the FBI affidavit in the present case is more ample than that in Aguilar. Not only does it contain a report from an anonymous informant, but it also contains a report of an independent FBI investigation which is said to corroborate the informant’s tip. We are, then, required to delineate the manner in which Aguilar’s two-pronged test should be applied in these circumstances.

In essence, the affidavit, reproduced in full in the Appendix to this opinion, contained the following allegations:

1. The FBI had kept track of Spinelli’s movements on five days during the month of August 1965. On four of these occasions, Spinelli was seen crossing one of two bridges leading from Illinois into St. Louis, Missouri, between 11 a. m. and 12:15 p. m. On four of the five days, Spinelli was also seen parking his car in a lot used by residents of an apartment house at 1108 Indian Circle Drive in St. Louis, between 3:30 p. m. and 4:45 p. m.

On one day, Spinelli was followed further and seen to enter a particular apartment in the building.

2. An FBI check with the telephone company revealed that this apartment contained two telephones listed under the name of Grace P. Hagen, and carrying the numbers WYdown 4-0029 and WYdown 4-0136.

3. The application stated that “William Spinelli is known to this affiant and to federal law enforcement agents and local law enforcement agents as a bookmaker, an associate of bookmakers, a gambler, and an associate of gamblers.”

4. Finally, it was stated that the FBI “has been informed by a confidential reliable informant that William Spinelli is operating a handbook and accepting wagers and disseminating wagering information by means of the telephones which have been assigned the numbers WYdown 4-0029 and WYdown 4-0136.”

There can be no question that the last item mentioned, detailing the informant’s tip, has a fundamental place in this warrant application. Without it, probable cause could not be established. The first two items reflect only innocent-seeming activity and data. Spinelli’s travels to and from the apartment building and his entry into a particular apartment on one occasion could hardly be taken as bespeaking gambling activity; and there is surely nothing unusual about an apartment containing two separate telephones. Many a householder indulges himself in this petty luxury. Finally, the allegation that Spinelli was “known” to the affiant and to other federal and local law enforcement officers as a gambler and an associate of gamblers is but a bald and unilluminating assertion of suspicion that is entitled to no weight in appraising the magistrate’s decision. Nathanson v. United States, 290 U. S. 41, 46 (1933).

So much indeed the Government does not deny. Rather, following the reasoning of the Court of Appeals, the Government claims that the informant’s tip gives a suspicious color to the FBI’s reports detailing Spinelli’s innocent-seeming conduct and that, conversely, the FBI’s surveillance corroborates the informant’s tip, thereby entitling it to more weight. It is true, of course, that the magistrate is obligated to render a judgment based upon a common-sense reading of the entire affidavit. United States v. Ventresca, 380 U. S. 102, 108 (1965). We believe, however, that the “totality of circumstances” approach taken by the Court of Appeals paints with too broad a brush. Where, as here, the informer’s tip is a necessary element in a finding of probable cause, its proper weight must be determined by a more precise analysis.

The informer’s report must first be measured against Aguilar’s standards so that its probative value can be assessed. If the tip is found inadequate under Aguilar, the other allegations which corroborate the information contained in the hearsay report should then be considered. At this stage as well, however, the standards enunciated in Aguilar must inform the magistrate’s decision. He must ask: Can it fairly be said that the tip, even when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar’s tests without independent corroboration? Aguilar is relevant at this stage of the inquiry as well because the tests it establishes were designed to implement the long-standing principle that probable cause must be determined by a “neutral and detached magistrate,” and not by “the officer engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U. S. 10, 14 (1948). A magistrate cannot be said to have properly discharged his constitutional duty if he relies on an informer’s tip which — even when partially corroborated — is not as reliable as one which passes Aguilar’s requirements when standing alone.

Applying these principles to the present case, we first consider the weight to be given the informer’s tip when it is considered apart from the rest of the affidavit. It is clear that a Commissioner could not credit it without abdicating his constitutional function. Though the affi-ant swore that his confidant was “reliable,” he offered the magistrate no reason in support of this conclusion. Perhaps even more important is the fact that Aguilar’s other test has not been satisfied. The tip does not contain a sufficient statement of the underlying circumstances from which the informer concluded that Spinelli was running a bookmaking operation. We are not told how the FBI’s source received his information — it is not alleged that the informant personally observed Spinelli at work or that he had ever placed a bet with him. Moreover, if the informant came by the information indirectly, he did not explain why his sources were reliable. Cf. Jaben v. United States, 381 U. S. 214 (1965). In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused’s criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.

The detail provided by the informant in Draper v. United States, 358 U. S. 307 (1959), provides a suitable benchmark. While Hereford, the Government’s informer in that case, did not state the way in which he had obtained his information, he reported that Draper had gone to Chicago the day before by train and that he would return to Denver by train with three ounces of heroin on one of two specified mornings. Moreover, Hereford went on to describe, with minute particularity, the clothes that Draper would be wearing upon his arrival at the Denver station. A magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way. Such an inference cannot be made in the present case. Here, the only facts supplied were that Spinelli was using two specified telephones and that these phones were being used in gambling operations. This meager report could easily have been obtained from an offhand remark heard at a neighborhood bar.

Nor do we believe that the patent doubts Aguilar raises as to the report’s reliability are adequately resolved by a consideration of the allegations detailing the FBI’s independent investigative efforts. At most, these allegations indicated that Spinelli could have used the telephones specified by the informant for some purpose. This cannot by itself be said to support both the inference that the informer was generally trustworthy and that he had made his charge against Spinelli on the basis of information obtained in a reliable way. Once again, Draper provides a relevant comparison. Independent police work in that case corroborated much more than one small detail that had been provided by the informant. There, the police, upon meeting the inbound Denver train on the second morning specified by informer Hereford, saw a man whose dress corresponded precisely to Hereford’s detailed description. It was then apparent that the informant had not been fabricating his report out of whole cloth; since the report was of the sort which in common experience may be recognized as having been obtained in a reliable way, it was perfectly clear that probable cause had been established.

We conclude, then, that in the present case the informant’s tip — even when corroborated to the extent indicated — was not sufficient to provide the basis for a finding of probable cause. This is not to say that the tip was so insubstantial that it could not properly have counted in the magistrate’s determination. Rather, it needed some further support. When we look to the other parts of the application, however, we find nothing alleged which would permit the suspicions engendered by the informant’s report to ripen into a judgment that a crime was probably being committed. As we have already seen, the allegations detailing the FBI’s surveillance of Spinelli and its investigation of the telephone company records contain no suggestion of criminal conduct when taken by themselves — and they are not endowed with an aura of suspicion by virtue of the informer’s tip. Nor do we find that the FBI’s reports take on a sinister color when read in light of common knowledge that bookmaking is often carried on over the telephone and from premises ostensibly used by others for perfectly normal purposes. Such an argument would carry weight in a situation in which the premises contain an unusual number of telephones or abnormal activity is observed, cf. McCray v. Illinois, 386 U. S. 300, 302 (1967), but it does not fit this case where neither of these factors is present. All that remains to be considered is the flat statement that Spinelli was “known” to the FBI and others as a gambler. But just as a simple assertion of police suspicion is not itself a sufficient basis for a magistrate’s finding of probable cause, we do not believe it may be used to give additional weight to allegations that would otherwise be insufficient.

The affidavit, then, falls short of the standards set forth in Aguilar, Draper, and our other decisions that give content to the notion of probable cause. In holding as we have done, we do not retreat from the established propositions that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause, Beck v. Ohio, 379 U. S. 89, 96 (1964); that affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial, McCray v. Illinois, 386 U. S. 300, 311 (1967); that in judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense, United States v. Ventresca, 380 U. S. 102, 108 (1965); and that their determination of probable cause should be paid great deference by reviewing courts, Jones v. United States, 362 U. S. 257, 270-271 (1960). But we cannot sustain this warrant without diluting important safeguards that assure that the judgment of a disinterested judicial officer will interpose itself between the police and the citizenry.

The judgment of the Court of Appeals is reversed and the case is remanded to that court for further proceedings consistent with this opinion.

It is so ordered.

Me. Justice Marshall took no part in the consideration or decision of this case.

APPENDIX TO OPINION OF THE COURT.

Affidavit in Support of Search Warrant.

I, Robert L. Bender, being duly sworn, depose and say that I am a Special Agent of the Federal Bureau of Investigation, and as such am authorized to make searches and seizures.

That on August 6, 1965, at approximately 11:44 a. m., William Spinelli was observed by an Agent of the Federal Bureau of Investigation driving a 1964 Ford convertible, Missouri license HC3-649, onto the Eastern approach of the Veterans Bridge leading from East St. Louis, Illinois, to St. Louis, Missouri.

That on August 11, 1965, at approximately 11:16 a. m., William Spinelli was observed by an Agent of the Federal Bureau of Investigation driving a 1964 Ford convertible, Missouri license HC3-649, onto the Eastern approach of the Eads Bridge leading from East St. Louis, Illinois, to St. Louis, Missouri.

Further, at approximately 11:18 a. m. on August 11, 1965, I observed William Spinelli driving the aforesaid Ford convertible from the Western approach of the Eads Bridge into St. Louis, Missouri.

Further, at approximately 4:40 p. m. on August 11, 1965, I observed the aforesaid Ford convertible, bearing Missouri license HC3-649, parked in a parking lot used by residents of The Chieftain Manor Apartments, approximately one block east of 1108 Indian Circle Drive.

On August 12, 1965, at approximately 12:07 p. m., William. Spinelli was observed by an Agent of the Federal Bureau of Investigation driving the aforesaid 1964 Ford convertible onto the Eastern approach of the Veterans Bridge from East St. Louis, Illinois, in the direction of St. Louis, Missouri.

Further, on August 12, 1965, at approximately 3:46 p. m., I observed William Spinelli driving the aforesaid 1964 Ford convertible onto the parking lot used by the residents of The Chieftain Manor Apartments approximately one block east of 1108 Indian Circle Drive.

Further, on August 12, 1965, at approximately 3:49 p. m., William Spinelli was observed by an Agent of the Federal Bureau of Investigation entering the front entrance of the two-story apartment building located at 1108 Indian Circle Drive, this building being one of The Chieftain Manor Apartments.

On August 13, 1965, at approximately 11:08 a. m., William Spinelli was observed by an Agent of the Federal Bureau of Investigation driving the aforesaid Ford convertible onto the Eastern approach of the Eads Bridge from East St. Louis, Illinois, heading towards St. Louis, Missouri.

Further, on August 13, 1965, at approximately 11:11 a. m., I observed William Spinelli driving the aforesaid Ford convertible from the Western approach of the Eads Bridge into St. Louis, Missouri.

Further, on August 13, 1965, at approximately 3:45 p. m., I observed William Spijielli driving the aforesaid 1964 Ford convertible onto the parking area used by residents of The Chieftain Manor Apartments, said parking area being approximately one block from 1108 Indian Circle Drive.

Further, on August 13, 1965, at approximately 3:55 p. m., William Spinelli was observed by an Agent of the Federal Bureau of Investigation entering the corner apartment located on the second floor in the southwest corner, known as Apartment F, of the two-story apartment building known and numbered as 1108 Indian Circle Drive.

On August 16, 1965, at approximately 3:22 p. m., I observed William Spinelli driving the aforesaid Ford convertible onto the parking lot used by the residents of The Chieftain Manor Apartments approximately one block east of 1108 Indian Circle Drive.

Further, an Agent of the F. B. I. observed William Spinelli alight from the aforesaid Ford convertible and walk toward the apartment building located at 1108 Indian Circle Drive.

The records of the Southwestern Bell Telephone Company reflect that there are two telephones located in the southwest corner apartment on the second floor of the apartment building located at 1108 Indian Circle Drive under the name of Grace P. Hagen. The numbers listed in the Southwestern Bell Telephone Company records for the aforesaid telephones are WYdown 4-0029 and WYdown 4-0136.

William Spinelli is known to this affiant and to federal law enforcement agents and local law enforcement agents as a bookmaker, an associate of bookmakers, a gambler, and an associate of gamblers.

The Federal Bureau of Investigation has been informed by a confidential reliable informant that William Spinelli is operating a handbook and accepting wagers and disseminating wagering information by means of the telephones which have been assigned the numbers WYdown 4-0029 and WYdown 4-0136.

/s/Robert L. Bender,

Robert L. Bender,

Special Agent, Federal Bureau of Investigation.

Subscribed and sworn to before me this 18th day of August, 1965, at St. Louis, Missouri.

/s/ William R. O’Toole.

Mr. Justice White,

concurring.

An investigator’s affidavit that he has seen gambling equipment being moved into a house at a specified address will support the issuance of a search warrant. The oath affirms the honesty of the statement and negatives the lie or imagination. Personal observation attests to the facts asserted — that there is gambling equipment on the premises at the named address.

But if the officer simply avers, without more, that there is gambling paraphernalia on certain premises, the warrant should not issue, even though the belief of the officer is an honest one, as evidenced by his oath, and even though the magistrate knows him to be an experienced, intelligent officer who has been reliable in the past. This much was settled in Nathanson v. United States, 290 U. S. 41 (1933), where the Court held insufficient an officer’s affidavit swearing he had cause to believe that there was illegal liquor on the premises for which the warrant was sought. The unsupported assertion or belief of the officer does not satisfy the requirement of probable cause. Jones v. United States, 362 U. S. 257, 269 (1960); Grau v. United States, 287 U. S. 124 (1932); Byars v. United States, 273 U. S. 28, 29 (1927).

What is missing in Nathanson and like cases is a statement of the basis for the affiant’s believing the facts contained in the affidavit — the good “cause” which the officer in Nathanson said he had. If an officer swears that there is gambling equipment at a certain address, the possibilities are (1) that he has seen the equipment; (2) that he has observed or perceived facts from which the presence of the equipment may reasonably be inferred; and (3) that he has obtained the information from someone else. If (1) is true, the affidavit is good. But in (2), the affidavit is insufficient unless the perceived facts are given, for it is the magistrate, not the officer, who is to judge the existence of probable cause. Aguilar v. Texas, 378 U. S. 108 (1964); Giordenello v. United States, 357 U. S. 480, 486 (1958); Johnson v. United States, 333 U. S. 10, 14 (1948). With respect to (3), where the officer’s information is hearsay, no warrant should issue absent good cause for crediting that hearsay. Because an affidavit asserting, without more, the location of gambling equipment at a particular address does not claim personal observation of any of the facts by the officer, and because of the likelihood that the information came from an unidentified third party, affidavits of this type are unacceptable.

Neither should the warrant issue if the officer states that there is gambling equipment in a particular apartment and that his information comes from an informant, named or unnamed, since the honesty of the informant and the basis for his report are unknown. Nor would the missing elements be completely supplied by the officer’s oath that the informant has often furnished reliable information in the past. This attests to the honesty of the informant, but Aguilar v. Texas, supra, requires something more — did the information come from observation, or did the informant in turn receive it from another? Absent additional facts for believing the informant’s report, his assertion stands no better than the oath of the officer to the same effect. Indeed, if the affidavit of an officer, known by the magistrate to be honest and experienced, stating that gambling equipment is located in a certain building is unacceptable, it would be quixotic if a similar statement from an honest informant were found to furnish probable cause. A strong argument can be made that both should be acceptable under the Fourth Amendment, but under our cases neither is. The past reliability of the informant can no more furnish probable cause for believing his current report than can previous experience with the officer himself.

If the affidavit rests on hearsay — an informant’s report — what is necessary under Aguilar is one of two things: the informant must declare either (1) that he has himself seen or perceived the fact or facts asserted; or (2) that his information is hearsay, but there is good reason for believing it — perhaps one of the usual grounds for crediting hearsay information. The first presents few problems: since the report, although hearsay, purports to be first-hand observation, remaining doubt centers on the honesty of the informant, and that worry is dissipated by the officer’s previous experience with the informant. The other basis for accepting the informant’s report is more complicated. But if, for example, the informer’s hearsay comes from one of the actors in the crime in the nature of admission against interest, the affidavit giving this information should be held sufficient.

I am inclined to agree with the majority that there are limited special circumstances in which an “honest” informant’s report, if sufficiently detailed, will in effect verify itself — that is, the magistrate when confronted with such detail could reasonably infer that the informant had gained his information in a reliable way. See ante, at 417. Detailed information may sometimes imply that the informant himself has observed the facts. Suppose an informant with whom an officer has had satisfactory experience states that there is gambling equipment in the living room of a specified apartment and describes in detail not only the equipment itself but also the appointments and furnishings in the apartment. Detail like this, if true at all, must rest on personal observation either of the informant or of someone else. If the latter, we know nothing of the third person’s honesty or sources; he may be making a wholly false report. But it is arguable that on these facts it was the informant himself who has perceived the facts, for the information reported is not usually the subject of casual, day-today conversation. Because the informant is honest and it is probable that he has viewed the facts, there is probable cause for the issuance of a warrant.

So too in the special circumstances of Draper v. United States, 358 U. S. 307 (1959), the kind of information related by the informant is not generally sent ahead of a person’s arrival in a city except to those who are intimately connected with making careful arrangements for meeting him. The informant, posited as honest, somehow had the reported facts, very likely from one of the actors in the plan, or as one of them himself. The majority’s suggestion is that a warrant could have been obtained based only on the informer’s report. I am inclined to agree, although it seems quite plain that if it may be so easily inferred from the affidavit that the informant has himself observed the facts or has them from an actor in the event, no possible harm could come from requiring a statement to that effect, thereby removing the difficult and recurring questions which arise in such situations.

Of course, Draper itself did not proceed on this basis. Instead, the Court pointed out that when the officer saw a person getting off the train at the specified time, dressed and conducting himself precisely as the informant had predicted, all but the critical fact with respect to possessing narcotics had then been verified and for that reason the officer had “reasonable grounds” to believe also that Draper was carrying narcotics. Unquestionably, verification of arrival time, dress, and gait reinforced the honesty of the informant — he had not reported a made-up story. But if what Draper stands for is that the existence of the tenth and critical fact is made sufficiently probable to justify the issuance of a warrant by verifying nine other facts coming from the same source, I have my doubts about that case.

In the first place, the proposition is not that the tenth fact may be logically inferred from the other nine or that the tenth fact is usually found in conjunction with the other nine. No one would suggest that just anyone getting off the 10:30 train dressed as Draper was, with a brisk walk and carrying a zipper bag, should be arrested for carrying narcotics. The thrust of Draper is not that the verified facts have independent significance with respect to proof of the tenth. The argument instead relates to the reliability of the source: because an informant is right about some things, he is more probably right about other facts, usually the critical, unverified facts.

But the Court’s cases have already rejected for Fourth Amendment purposes the notion that the past reliability of an officer is sufficient reason for believing his current assertions. Nor would it suffice, I suppose, if a reliable informant states there is gambling equipment in Apartment 607 and then proceeds to describe in detail Apartment 201, a description which is verified before applying for the warrant. He was right about 201, but that hardly makes him more believable about the equipment in 607. But what if he states that there are narcotics locked in a safe in Apartment 300, which is described in detail, and the apartment manager verifies everything but the contents of the safe? I doubt that the report about the narcotics is made appreciably more believable by the verification. The informant could still have gotten his information concerning the safe from others about whom nothing is known or could have inferred the presence of narcotics from circumstances which a magistrate would find unacceptable.

The tension between Draper and the Nathanson-Aguilar line of cases is evident from the course followed by the majority opinion. First, it is held that the report from a reliable informant that Spinelli is using two telephones with specified numbers to conduct a gambling business plus Spinelli’s reputation in police circles as a gambler does not add up to probable cause. This is wholly consistent with Aguilar and Nathanson: the informant did not reveal whether he had personally observed the facts or heard them from another and, if the latter, no basis for crediting the hearsay was presented. Nor were the facts, as Mr. Justice Harlan says, of such a nature that they normally would be obtainable only by the personal observation of the informant himself. The police, however, did not stop with the informant’s report. Independently, they established the existence of two phones having the given numbers and located them in an apartment house which Spinelli was regularly frequenting away from his home. There remained little question but that Spinelli was using the phones, and it was a fair inference that the use was not for domestic but for business purposes. The informant had claimed the business involved gambling. Since his specific information about Spinelli using two phones with particular numbers had been verified, did not his allegation about gambling thereby become sufficiently more believable if the Draper principle is to be given any scope at all? I would think so, particularly since the information from the informant which was verified was not neutral, irrelevant information but was material to proving the gambling allegation: two phones with different numbers in an apartment used away from home indicates a business use in an operation, like bookmaking, where multiple phones are needed. The Draper approach would reasonably justify the issuance of a warrant in this case, particularly since the police had some awareness of Spinelli’s past activities. The majority, however, while seemingly embracing Draper, confines that case to its own facts. Pending full-scale reconsideration of that case, on the one hand, or of the Nathanson-Aguilar cases on the other, I join the opinion of the Court and the judgment of reversal, especially since a vote to affirm would produce an equally divided Court.

Me. Justice Black,

dissenting.

In my view, this Court’s decision in Aguilar v. Texas, 378 U. S. 108 (1964), was bad enough. That decision went very far toward elevating the magistrate’s hearing for issuance of a search warrant to a full-fledged trial, where witnesses must be brought forward to attest personally to all the facts alleged. But not content with this, the Court today expands Aguilar to almost unbelievable proportions. Of course, it would strengthen the probable-cause presentation if eyewitnesses could testify that they saw the defendant commit the crime. It would be stronger still if these witnesses could explain in detail the nature of the sensual perceptions on which they based their “conclusion” that the person they had seen was the defendant and that he was responsible for the events they observed. Nothing in our Constitution, however, requires that the facts be established with that degree of certainty and with such elaborate specificity before a policeman can be authorized by a disinterested magistrate to conduct a carefully limited search.

The Fourth Amendment provides that “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.” In this case a search warrant was issued supported by an oath and particularly describing the place to be searched and the things to be seized. The supporting oath was three printed pages and the full text of it is included in an Appendix to the Court’s opinion. The magistrate, I think properly, held the information set forth sufficient facts to show “probable cause” that the defendant was violating the law. Six members of the Court of Appeals also agreed that the affidavit was sufficient to show probable cause. A majority of this Court today holds, however, that the magistrate and all of these judges were wrong. In doing so, they substitute their own opinion for that of the local magistrate and the circuit judges, and reject the en banc factual conclusion of the Eighth Circuit and reverse the judgment based upon that factual conclusion. I cannot join in any such disposition of an issue so vital to the administration of justice, and dissent as vigorously as I can.

I repeat my belief that the affidavit given the magistrate was more than ample to show probable cause of the petitioner’s guilt. The affidavit meticulously set out facts sufficient to show the following:

1. The petitioner had been shown going to and coming from a room in an apartment which contained two telephones listed under the name of another person. Nothing in the record indicates that the apartment was of that large and luxurious type which could only be occupied by a person to whom it would be a “petty luxury” to have two separate telephones, with different numbers, both listed under the name of a person who did not live there.

2. The petitioner’s car had been observed parked in the apartment’s parking lot. This fact was, of course, highly relevant in showing that the petitioner was extremely interested in some enterprise which was located in the apartment.

3. The FBI had been informed by a reliable informant that the petitioner was accepting wagering information by telephones — the particular telephones located in the apartment the defendant had been repeatedly visiting. Unless the Court, going beyond the requirements of the Fourth Amendment, wishes to require magistrates to hold trials before issuing warrants, it is not necessary— as the Court holds — to have the affiant explain “the underlying circumstances from which the informer concluded that Spinelli was running a bookmaking operation.” Ante, at 416.

4. The petitioner was known by federal and local law enforcement agents as a bookmaker and an associate of gamblers. I cannot agree with the Court that this knowledge was only a “bald and unilluminating assertion of suspicion that is entitled to no weight in appraising the magistrate’s decision.” Ante, at 414. Although the statement is hearsay that might not be admissible in a regular trial, everyone knows, unless he shuts his eyes to the realities of life, that this is a relevant fact which, together with other circumstances, might indicate a factual probability that gambling is taking place.

The foregoing facts should be enough to constitute probable cause for anyone who does not believe that the only way to obtain a search warrant is to prove beyond a reasonable doubt that a defendant is guilty. Even Aguilar, on which the Court relies, cannot support the contrary result, at least as that decision was written before today’s massive escalation of it. In Aguilar the Court dealt with an affidavit that stated only:

“Affiants have received reliable information from a credible person and do believe that heroin . . . and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law.” 378 U. S., at 109.

The Court held, over the dissent of Mr. Justice Clark, Mr. Justice Stewart, and myself, that this unsupported conclusion of an unidentified informant provided no basis for the magistrate to make an independent judgment as to the persuasiveness of the facts relied upon to show probable cause. Here, of course, we have much more, and the Court in Aguilar was careful to point out that additional information of the kind presented in the affidavit before us now would be highly relevant:

“If the fact and results of such a surveillance had been appropriately presented to the magistrate, this would, of course, present an entirely different case.” 378 U. S., at 109, n. 1.

In the present case even the two-judge minority of the court below recognized, as this Court seems to recognize today, that this additional information took the case beyond the rule of Aguilar. Six of the other circuit judges disagreed with the two dissenting judges, finding that all the circumstances considered together could support a reasonable judgment that gambling probably was taking place. I fully agree with this carefully considered opinion of the court below.

I regret to say I consider today’s decision an indefensible departure from the principles of our former cases. Less than four years ago we reaffirmed these principles in United States v. Ventresca, 380 U. S. 102, 108 (1965):

“If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants . . . must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. . . . Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area.”

See also Husty v. United States, 282 U. S. 694, 700-701 (1931).

Departures of this kind are responsible for considerable uneasiness in our lower courts, and I must say I am deeply troubled by the statements of Judge Gibson in the court below:

“I am, indeed, disturbed by decision after decision of our courts which place increasingly technical burdens upon law enforcement officials. I am disturbed by these decisions that appear to relentlessly chip away at the ever narrowing area of effective police operation. I believe the holdings in Aguilar, and Rugendorf v. United States, 376 U. S. 528 (1964) are sufficient to protect the privacy of individuals from hastily conceived intrusions, and I do not think the limitations and requirements on the issuance of search warrants should be expanded by setting up over-technical requirements approaching the now discarded pitfalls of common law pleadings. Moreover, if we become increasingly technical and rigid in our demands upon police officers, I fear we make it increasingly easy for criminals to operate, detected but unpunished. I feel the significant movement of the law beyond its present state is unwarranted, unneeded, and dangerous to law enforcement efficiency.” (Dissenting from panel opinion.)

The Court of Appeals in this case took a sensible view of the Fourth Amendment, and I would wholeheartedly affirm its decision.

Mapp v. Ohio, 367 U. S. 643, decided in 1961, held for the first time that the Fourth Amendment and the exclusionary rule of Weeks v. United States, 232 U. S. 383 (1914) are now applicable to the States. That Amendment provides that search warrants shall not be issued without probable cause. The existence of probable cause is a factual matter that calls for the determination of a factual question. While no statistics are immediately available, questions of probable cause to issue search warrants and to make arrests are doubtless involved in many thousands of cases in state courts. All of those probable-cause state cases are now potentially reviewable by this Court. It is, of course, physically impossible for this Court to review the evidence in all or even a substantial percentage of those cases. Consequently, whether desirable or not, we must inevitably accept most of the fact findings of the state courts, particularly when, as here in a federal case, both the trial and appellate courts have decided the facts the same way. It cannot be said that the trial judge and six members of the Court of Appeals committed flagrant error in finding from evidence that the magistrate had probable cause to issue the search warrant here. It seems to me that this Court would best serve itself and the administration of justice by accepting the judgment of the two courts below. After all, they too are lawyers and judges, and much closer to the practical, everyday affairs of life than we are.

Notwithstanding the Court’s belief to the contrary, I think that in holding as it does, the Court does:

“retreat from the established propositions that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause, Beck v. Ohio, 379 U. S. 89, 96 (1964); that affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial, McCray v. Illinois, 386 U. S. 300, 311 (1967); that in judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense, United States v. Ventresca, 380 U. S. 102, 108 (1965); and that their determination of probable cause should be paid great deference by reviewing courts, Jones v. United States, 362 U. S. 257, 270-271 (I960).” Ante, at 419.

In fact, I believe the Court is moving rapidly, through complex analyses and obfuscatory language, toward the holding that no magistrate can issue a warrant unless according to some unknown standard of proof he can be persuaded that the suspect defendant is actually guilty of a crime. I would affirm this conviction.

Mr. Justice Fortas,

dissenting.

My Brother Harlan’s opinion for the Court is animated by a conviction which I share that “[t]he security of one’s privacy against arbitrary intrusion by the police — which is at the core of the Fourth Amendment— is basic to a free society.” Wolf v. Colorado, 338 U. S. 25, 27 (1949).

We may well insist upon a sympathetic and even an indulgent view of the latitude which must be accorded to the police for performance of their vital task; but only a foolish or careless people will deduce from this that the public welfare requires or permits the police to disregard the restraints on their actions which historic struggles for freedom have developed for the protection of liberty and dignity of citizens against arbitrary state power.

As Justice Jackson (dissenting) stated in Brinegar v. United States, 338 U. S. 160, 180-181 (1949):

“[The provisions of the Fourth Amendment] are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.”

History teaches us that this protection requires that the judgment of a judicial officer be interposed between the police, hot in pursuit of their appointed target, and the citizen; that the judicial officer must judge and not merely rubber-stamp; and that his judgment must be based upon judicially reliable facts adequate to demonstrate that the search is justified by the probability that it will yield the fruits or instruments of crime — or, as this Court has only recently ruled, tangible evidence of its commission. The exceptions to the requirement of a search warrant have always been narrowly restricted because of this Court’s long-standing awareness of the fundamental role of the magistrate’s judgment in the preservation of a proper balance between individual freedom and state power. See Trupiano v. United States, 334 U. S. 699, 700 (1948).

Today’s decision deals, not with the necessity of obtaining a warrant prior to search, but with the difficult problem of the nature of the showing that must be made before the magistrate to justify his issuance of a search warrant. While I do not subscribe to the criticism of the majority expressed by my Brother Black in dissent, I believe — with all respect — that the majority is in error in holding that the affidavit supporting the warrant in this case is constitutionally inadequate.

The affidavit is unusually long and detailed. In fact, it recites so many minute and detailed facts developed in the course of the investigation of Spinelli that its substance is somewhat obscured. It is paradoxical that this very fullness of the affidavit may be the source of the constitutional infirmity that the majority finds. Stated in language more direct and less circumstantial than that used by the FBI agent who executed the affidavit, it sets forth that the FBI has been informed that Spinelli is accepting wagers by means of telephones numbered WY 4^0029 and WY 4-0136; that Spinelli is known to the affiant agent and to law enforcement agencies as a bookmaker; that telephones numbered WY 4-0029 and WY 4-0136 are located in a certain apartment; that Spinelli was placed under surveillance and his observed movements were such as to show his use of that apartment and to indicate that he frequented the apartment on a regular basis.

Aguilar v. Texas, 378 U. S. 108 (1964), holds that the reference in an affidavit to information described only as received from “a confidential reliable informant,” standing alone, is not an adequate basis for issuance of a search warrant. The majority agrees that the “FBI affidavit in the present case is more ample than that in Aguilar,” but concludes that it is nevertheless constitutionally inadequate. The majority states that the present affidavit fails to meet the “two-pronged test” of Aguilar because (a) it does not set forth the basis for the assertion that the informer is “reliable” and (b) it fails to state the “underlying circumstances” upon which the informant based his conclusion that Spinelli was engaged in bookmaking.

The majority acknowledges, however, that its reference to a “two-pronged test” should not be understood as meaning that an affidavit deficient in these respects is necessarily inadequate to support a search warrant. Other facts and circumstances may be attested which will supply the evidence of probable cause needed to support the search warrant. On this general statement we are agreed. Our difference is that I believe such facts and circumstances are present in this case, and the majority arrives at the opposite conclusion.

Aguilar expressly recognized that if, in that case, the affidavit’s conclusory report of the informant’s story had been supplemented by “the fact and results of ... a surveillance . . . this would, of course, present an entirely different case.” 378 U. S., at 109, n. 1. In the present case, as I view it, the affidavit showed not only relevant surveillance, entitled to some probative weight for purposes of the issuance of a search warrant, but also additional, specific facts of significance and adequate reliability: that Spinelli was using two telephone numbers, identified by an “informant” as being used for bookmaking, in his illegal operations; that these telephones were in an identified apartment; and that Spinelli, a known bookmaker, frequented the apartment. Certainly, this is enough.

A policeman’s affidavit should not be judged as an entry in an essay contest. It is not “abracadabra.” As the majority recognizes, a policeman’s affidavit is entitled to common-sense evaluation. So viewed, I conclude that the judgment of the Court of Appeals for the Eighth Circuit should be affirmed.

Mb. Justice Stewakt,

dissenting.

For substantially the reasons stated by my Brothers Black and Fobtas, I believe the warrant in this case was supported by a sufficient showing of probable cause. I would therefore affirm the judgment.

       The relevant portion of the statute reads:
      “(a) Whoever travels in interstate or foreign commerce or uses any facility in interstate . . . commerce . . . with intent to—
      “(3) otherwise promote, manage, establish, carry on . . . any unlawful activity, and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both.
      “(b) As used in this section ‘unlawful activity’ means (1) any business enterprise involving gambling ... in violation of the laws of the State in which they are committed or of the United States . .. .”

       We agree with the Court of Appeals that Spinelli has standing to raise his Fourth Amendment claim. The issue arises because at the time the FBI searched the apartment in which Spinelli was alleged to be conducting his bookmaking operation, the petitioner was not on the premises. Instead, the agents did not execute their search warrant until Spinelli was seen to leave the apartment, lock the door, and enter the hallway. At that point, petitioner was arrested, the key to the apartment was demanded of him, and the search commenced. Since petitioner would plainly have standing if he had been arrested inside the apartment, Jones v. United States, 362 U. S. 257, 267 (1960), it cannot matter that the agents preferred to delay the arrest until petitioner stepped into the hallway — especially when the FBI only managed to gain entry into the apartment by requiring petitioner to surrender his key.

       It is, of course, of no consequence that the agents might have had additional information which could have been given to the Commissioner. “It is elementary that in passing on the validity of a warrant, the reviewing court may consider only information brought to the magistrate’s attention.” Aguilar v. Texas, 378 U. S. 108, 109, n. 1 (emphasis in original). Since the Government does not argue that whatever additional information the agents may have possessed was sufficient to provide probable cause for the arrest, thereby justifying the resultant search as well, we need not consider that question.

       No report was made as to Spinelli’s movements during the period between his arrival in St. Louis at noon and his arrival at the parking lot in the late afternoon. In fact, the evidence at trial indicated that Spinelli frequented the offices of his stockbroker during this period.

       While Draper involved the question whether the police had probable cause for an arrest without a warrant, the analysis required for an answer to this question is basically similar to that demanded of a magistrate when he considers whether a search warrant should issue.

       A box containing three uninstalled telephones was found in the apartment, but only after execution of the search warrant.

       In those cases in which this Court has found probable cause established, the showing made was much more substantial than the one made here. Thus, in United States v. Ventresca, 380 U. S. 102, 104 (1965), FBI agents observed repeated deliveries of loads of sugar in 60-pound bags, smelled the odor of fermenting mash, and heard “ ‘sounds similar to that of a motor or a pump coming from the direction of Ventresca’s house.” Again, in McCray v. Illinois, 386 U. S. 300, 303-304 (1967), the informant reported that McCray “ ‘was selling narcotics and had narcotics on his person now in the vicinity of 47th and Calumet.’ ” When the police arrived at the intersection, they observed McCray engaging in various suspicious activities. 386 U. S., at 302.

       In the view we have taken of this case, it becomes unnecessary to decide whether the search warrant was properly executed, or whether it sufficiently described the things that were seized.

       “The knock at the door, whether by day or by night, as a prelude to a search, without authority of law but solely on the authority of the police, did not need the commentary of recent history to be condemned as inconsistent with the conception of human rights enshrined in the history and the basic constitutional documents of English-speaking peoples.''’ Wolf v. Colorado, 338 U. S. 25, 28 (1949). See United States v. Rabinowitz, 339 U. S. 56, 69-70 (1950) (Frankfurter, J., dissenting). See generally with respect to the history of the Fourth Amendment N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution (1937).

       See Johnson v. United States, 333 U. S. 10, 13-14 (1948).

        Warden v. Hayden, 387 U. S. 294 (1967).

         See Jones v. United States, 357 U. S. 493, 499 (1958); Warden v. Hayden, 387 U. S. 294, 311 (1967) (concurring opinion).

       Although Spinelli’s reputation standing alone would not, of course, justify the search, this Court has held that such a reputation may make the informer’s report “much less subject to scepticism than would be such a charge against one without such a history.” Jones v. United States, 362 U. S. 257, 271 (1960).

       See Time, Inc. v. Hill, 385 U. S. 374, 418 (1967) (dissent) (relating to jury instructions).