An affidavit for a search warrant described seven different occasions between July 28 and August 30, when a car was driven into the backyard of the defendant’s house. On four occasions the car carried loads of sugar in sixty-pound bags; twice it made two trips loaded with empty tin cans; and once it was observed as being heavily laden. Garry, the car’s owner, and Incardone, a passenger, were seen on several occasions loading the car at the defendant’s house and later unloading apparently full five-gallon cans at Garry’s house. The affidavit went on to state that at about 4 a.m. on August 18, and at about 4 a.m. August 30, “Investigators” smelled the odor of fermenting mash as they walked along the sidewalk in front of the defendant’s house. On August 18 they heard, “at or about the same time, . . . certain metallic noises.” On August 30, the day before the warrant was applied for, they heard (as they smelled the mash) “sounds similar to that of a motor or a pump coming from the direction of the defendant’s house.” The affidavit concluded: “The foregoing information is based upon personal knowledge and information which has been obtained from Investigators of the Alcohol, Tobacco Tax Division, Internal Revenue Service, who have been assigned to this investigation (underline added).”
Whether failure to indicate which facts alleged were hearsay and which were within the affiant’s own knowledge destroys the affidavit’s reliability?
No. Courts must determine if probable cause (and an affiant’s reliability) exists through common sense analysis. The failure to indicate which facts alleged were hearsay and which were within the affiant’s own knowledge does not destroy the affidavit’s reliability.
An affidavit which shows probable cause for the issuance of a search warrant is not required to clearly indicate which of the facts alleged are hearsay and which are within the affiant’s own knowledge. However, probable cause cannot be made out by affidavits which are purely conclusory, stating only the affiant’s or an informer’s belief that probable cause exists, without detailing any of the underlying circumstances upon which that belief is based. This belief may be based on hearsay evidence. “Affidavits for search warrants… must be tested and interpreted by magistrates and courts in a common sense and realistic fashion . . . A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting. When a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a common sense, manner.”
380 U.S. 102, 85 S. Ct. 741 (1965)