New Irritant

After receiving a tip from a usually reliable informant, an FBI agent tails a suspected gambler and bookmaker for five days. On four of those days, the suspect parks his car near the same apartment house in St. Louis. He is observed, on one occasion, entering a flat that has two phones listed in another person's name. The phone numbers correspond with those that the informant claims are used for taking bets. Is there enough evidence for a magistrate to issue a search warrant?

The above case is not a hypothetical, law-school exercise. Last week the U.S. Supreme Court was sharply divided on the question. Overturning the 1965 gambling conviction of William Spinelli, a 5-to-3 majority ruled that the U.S. Commissioner who issued the search warrant that led to Spinelli's arrest did not have "probable cause" to do so. The warrant, said the court, should have contained both more detail on what led the informant to conclude that the phones were for bet taking, and some support for the FBI claim that the informant's word could be trusted. The informant's "meager report," said Justice John Harlan for the majority, "could easily have been obtained from an offhand remark heard at a neighborhood bar." Nor, said the court, does the FBI agent's report make up for the shortcomings in the informant's story.

Justices Hugo Black and Abe Fortas, who are both regarded as among the court's libertarians, strongly opposed the decision. Fortas argued that the FBI agent's affidavit and the informant's word together were sufficient to establish "probable cause." From the bench, Black angrily attacked his colleagues for trying to supervise local magistrates "from a thousand miles away." Justice Byron White said that he was voting with the majority to avoid a deadlocked court (Justice Thurgood Marshall had abstained). Declaring himself confused by the majority opinion, White called for "fullscale reconsideration" of the precedents for it. White's proposal may be seconded by the court's law-and-order-conscious critics, who are likely to look on the decision as a new irritant.

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