United States v. Follette

• Decision Date: 14 July 1967
• Docket Number: Docket 31399.,No. 512,512
• Citation: 379 F.2d 846
• Parties: UNITED STATES ex rel. Alfred SCHNITZLER, Petitioner-Appellee, v. Harold W. FOLLETTE, Warden of Green Haven State Prison, Stormville, New York, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

379 F.2d 846 (1967)

UNITED STATES ex rel. Alfred SCHNITZLER, Petitioner-Appellee, v. Harold W. FOLLETTE, Warden of Green Haven State Prison, Stormville, New York, Respondent-Appellant.

No. 512, Docket 31399.

United States Court of Appeals Second Circuit.

Argued June 14, 1967.

Decided July 14, 1967.

Aaron J. Jaffe, New York City, for appellee.

Michael Rauch, Asst. Atty. Gen., (Louis J. Lefkowitz, Atty. Gen., of State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for appellant.

Before HAYS and FEINBERG, Circuit Judges, and McLEAN, District Judge.^*

HAYS, Circuit Judge:

This is an appeal from an order of the district court granting petitioner a writ of habeas corpus and ordering his discharge from custody unless, within thirty days, steps are taken to retry him.

Petitioner is serving a sentence of five to fifteen years in the Green Haven State Prison upon conviction in the New York State Supreme Court, Queens County, of a charge of felonious possession of narcotics with intent to sell. The judgment of conviction was unanimously affirmed without opinion by the Appellate Division, Second Department, People v. Schnitzler, 26 A.D.2d 773, 272 N.Y.S.2d 745 (1966). The New York Court of Appeals affirmed the conviction by a vote of four to three, 18 N.Y.2d 457, 276 N.Y.S.2d 616, 223 N.E.2d 28 (1966).

The district court granted a writ of habeas corpus on the ground that there was an insufficient showing of probable cause for the issuance of a search warrant and, therefore, the seizure of a quantity of marijuana after a search of petitioner's premises based on the warrant, and the introduction in evidence at petitioner's trial of the seized marijuana, invaded petitioner's Fourth Amendment rights.

We reverse the determination of the district court because we believe that the showing of probable cause for the issuance of the warrant was adequate.

The affidavit on the basis of which the search warrant issued read as follows:

"1. I am a Detective City of New York, Narcotics Bureau.

2. I have information based upon a confidential informant that one M/W/34 years of age, and named Albert Schnitzler who resides at 62-60 Woodhaven Blvd. New York.

Informant tells me that Albert Schnitzler is a male, white, 34 years of age, and is approximately 6\', 180 lbs. with light hair and blue eyes and resides at the aforementioned address, and says that he is a seller of Narcotics and Marijuana in large quantities. Informant further stated that he was present when a delivery of marijuana was made to 62-60 Woodhaven Blvd. and believes that it was in excess of 50 lbs.

Informant believes an immediate search of premises 62-60 Woodhaven Blvd., occupied by Albert Schnitzler, should be made since Albert Schnitzler deals narcotics and marijuana in large quantities only, and can dispose of the aforementioned shipment in a short time.

3. Based upon the foregoing reliable information and upon my personal knowledge there is probable cause to believe that such property namely Narcotics and Marijuana and may be found in the possession of Albert Schnitzler or at premises 62-60 Woodhaven Blvd.

Wherefore, I respectfully request that the court issue a warrant and order of seizure, in the form annexed, authorizing the search of Albert Schnitzler and person of Albert Schnitzler and premises of 62-60 Woodhaven Blvd. occupied person named herein and directing that if such property or evidence or any part thereof be found that it be seized and brought before the court; together with such other and further relief that the court may deem proper.

No previous application in this matter has been made in this or any other court or to any other judge, justice or magistrate."

The judge who issued the warrant testified at a hearing on the motion to suppress the seized evidence that at the time of the application for the warrant he questioned the affiant and was told not only that the informant was reliable but that an arrest had already been made in the case.

"The resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. Jones v. United States, supra 362 U.S. 257 at 270 80 S.Ct. 725, 4 L.Ed.2d 697." United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

"In close cases such as the present one the very fact that the Commissioner found probable cause is itself a substantial factor tending to uphold the validity of the warrant he issued." United States v. Ramirez, 279 F.2d 712, 716 (2d Cir.), cert. denied, 364 U.S. 850, 81 S.Ct. 95, 5 L.Ed.2d 74 (1960).

Here the affidavit is clearly sufficient but for the failure of the affiant to state the basis for his belief in the informant's reliability. We believe that defect was cured in the present case by affiant's statement to the issuing judge that an arrest had already been made.

We are instructed by the Supreme Court that the requirements of probable cause are based upon "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act," Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 1310, 93 L.Ed. 1879 (1949), and that "when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner." United States v. Ventresca, supra, 380 U.S. at 109, 85 S.Ct. at 746. See also United States v. Freeman, 358 F.2d 459 (2d Cir.), cert. denied, 385 U.S. 882, 87 S.Ct. 168, 17 L.Ed.2d 109 (1966).

If, in the present case, we eschew technicalities and approach with commonsense not only the affidavit but the statement of the affiant on which the judge also relied, we should construe the officer's statement as meaning in effect: "There is a basis for believing this informant because an arrest has already been made, thereby proving that the information he supplied is reliable."

We find that the showing of probable cause was adequate and therefore reverse the determination of the district court.

FEINBERG, Circuit Judge (dissenting):

I respectfully dissent.

Because the detective's affidavit in support of the warrant in this case did not meet the constitutional standard of Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), I would affirm Judge Bonsal. In Aguilar, the Court said:

The magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887, was "credible" or his information "reliable." 378 U.S. at 114, 84 S.Ct. at 1514; footnote omitted.

The majority correctly states that "the affidavit is clearly sufficient but for the failure of the affiant to state the basis for his belief in the informant's reliability." However, under Aguilar, this is a sizeable "but" — indeed a controlling one here.

The majority fills the conceded gap in the affidavit with an ambiguous oral contemporaneous statement by the detective to the judge that "an arrest had already been made in the case." However, the detective in no way related the arrest to the informer's reliability. As Judge Bonsal pointed out in his excellent opinion, 267 F.Supp. 337, the detective did not tell the judge that the informant was an accomplice, that the informant had been arrested, or give any reasons for his conclusion that the informant was reliable. The majority reads the detective's statement as though he had said:

There is a basis for believing this informant because an arrest has already been made, thereby proving that the information he supplied is reliable.

But I do not comprehend why an unspecified arrest "proves" that the information supplied by the informer was reliable. Is it because the other arrest was made on probable cause? If so, we have no reason to make such an assumption. And even if the other arrest was on probable cause, with no other link furnished, what does that prove about the informer? Is it because the other arrest uncovered narcotics? Making such an assumption on no information is a bootstrap on a bootstrap.

Moreover, it does not seem to me that the judge who issued the warrant relied...