United States v. Menser

• Decision Date: 30 November 1965
• Docket Number: Civ. No. 11117.
• Parties: UNITED STATES ex rel. James DeNEGRIS v. William N. MENSER, Sheriff.
• Court: U.S. District Court — District of Connecticut

247 F. Supp. 826

UNITED STATES ex rel. James DeNEGRIS v. William N. MENSER, Sheriff.

Civ. No. 11117.

United States District Court D. Connecticut.

November 30, 1965.

COPYRIGHT MATERIAL OMITTED

Alfonse C. Fasano, New Haven, Conn. for petitioner.

George R. Tiernan, State's Atty., David B. Salzman, Asst. State's Atty., New Haven, Conn., for respondent.

BLUMENFELD, District Judge.

In this habeas corpus proceeding, petitioner, a state prisoner held to serve a sentence of eight months, to be followed by probation for two years, pursuant to a judgment of conviction of the Superior Court of the crime of pool selling (Conn. Gen.Stats.Ann. § 53-295) alleges that illegally seized evidence was introduced at his trial in violation of his rights under the fourteenth amendment. On appeal, the judgment of conviction was unanimously affirmed. State v. DeNegris, Conn., 153 Conn. 5, 212 A.2d 894 (1965).

The principal claim made here is that the affidavit for the search warrant pursuant to which the evidence was obtained was insufficient to establish probable cause.¹ The record on appeal to the Supreme Court of Errors which has been examined by the court indicates that a written motion to suppress the evidence was made prior to trial for the reason that "the issuance of the search warrant was predicated upon an affidavit which was insufficient under the law as laid down in Jones v. United States, 362 U.S. 257, for the reason that * * *" followed by several references to the affidavit calculated to support the claim that the affidavit did not sufficiently show the reliability of the informer or corroboration of information received from him.² The motion was denied without opinion and a trial to the court began shortly thereafter. Throughout the trial, objection to the admission of the evidence was made on the ground that the warrant under which it had been obtained was not predicated upon a proper and sufficient affidavit.

Exhaustion of State Remedies

In the return filed by the state to the rule to show cause why this petition should not be granted issued by this court, it alleges that state remedies have not been exhausted. The Judicial Code, 28 U.S.C. § 2254, requires that a state prisoner who seeks a federal writ of habeas corpus first must show that he "has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner."

All but one of the particularized contentions relating to the insufficiency of the operational content of the affidavit on which the warrant issued were decided adversely to the petitioner by the Supreme Court of Errors. No further proceedings are necessary to exhaust state remedies with respect to them. United States ex rel. West v. LaVallee, 335 F.2d 230 (2d Cir. 1964); United States ex rel. Weinstein v. Fay, 333 F.2d 815 (2d Cir. 1964).

As to the remaining argument that the affidavit failed to specify the date when the informant's observation was made, the Supreme Court of Errors stated:

"This claim is raised for the first time in the brief. We find no mention of it among the grounds specified in a motion to suppress made prior to the trial, in the objections to evidence offered at the trial, or in the claims of law, and consequently we do not consider it. State v. McLaughlin, 132 Conn. 325, 339, 44 A. 2d 116." State v. DeNegris, 212 A. 2d at 895-896.

If this rejection by the state court of the opportunity to pass upon this element of the petitioner's claim because of insistence upon compliance with its procedural rules forecloses him from having it passed upon in Connecticut courts in a post-conviction proceeding, as it probably does because of Connecticut's rule that habeas corpus cannot serve as an appeal for questions which might have been raised for direct review, Wojculewicz v. Cummings, 143 Conn. 624, 628, 124 A.2d 886 (1956); In re Bion, 59 Conn. 372, 386, 20 Atl. 662 (1890); Brisson v. Warden, 25 Conn.Sup. 202, 205, 200 A.2d 250 (1964), this court may, nonetheless, consider it in this habeas corpus proceeding, cf. Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L. Ed.2d 408 (1965); unless, of course, petitioner's failure to comply constituted a deliberate by-passing of orderly state procedure within the meaning of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Surely, there was no deliberate by-passing here, for an attempt was made to have the state Supreme Court pass on this particular facet of his constitutional claim under the same evidence already contained in the record. Such a situation is far outside the qualification of the doctrine of Fay v. Noia. In any event, it nowhere appears in the affidavit that the information received by the officers from the informant was even based on the latter's observations. Since discussion later in this opinion will be focused upon the determinative effect of that point, the need for a date when "observations," thus only hypothetical, were made in order to support the petitioner's contention that the information in the affidavit was also too stale to support a warrant at the time it was presented to the judge would be surplusage. Thus, there is no need to delay this proceeding to further satisfy exhaustion requirements.

It must be concluded, therefore, that the state court remedies have been sufficiently exhausted to permit consideration of this petition on its merits.

The Sufficiency of the Affidavit

Neither party asks for an evidentiary hearing, and, indeed, none is required; the information which was the sole basis for the issuance of the warrant was all contained within the four corners of the affidavit before me. "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, 84 S.Ct. 1509, 1511, 12 L.Ed.2d 723 (1964).

The problem presented is whether the warrant pursuant to which the petitioner's home was searched and evidence uncovered leading to the petitioner's conviction for pool selling satisfied the constitutional requirement that all such warrants issue only on probable cause to believe that a crime was being committed on the suspect premises. I hold that the magistrate who issued the warrant in the instant case did not have before him sufficient facts and circumstances upon which a finding of probable cause could be made, and that the subsequent search was an unconstitutional intrusion into the privacy of the petitioner's residence.

The fourth amendment to the United States Constitution contains the following command:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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."

It is now settled that the fourth amendment's prohibition against unreasonable searches and seizures are enforceable against the states through the fourteenth amendment, Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933 (1961); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1962), and that the standard of probable cause "for obtaining a search warrant is likewise `the same under the Fourth and Fourteenth Amendments.'" Aguilar v. Texas, supra, 378 U.S. at 110, 84 S.Ct. at 1512. (Emphasis added).

The determination of the issuing magistrate was based solely upon an affidavit sworn to by two Connecticut state police officers. Shorn of excess verbiage, this affidavit sets forth the following: (1) "information has been received * * * from a person who has furnished reliable information in the past * * * that the premises has been and is being used * * * in violation of the gaming laws * * * and wherein are possessed certain slips, money, papers, records, paraphernalia, memoranda, and telephones used in connection with the crimes of policy placing and pool selling;" (2) police investigation has revealed that the residents had a police record charging both with pool selling on April 1, 1960, that two unlisted phones went into the premises, and that certain utility bills were sent to a third party.

The frame of reference for determination of probable cause to issue a search warrant was set forth in Dumbra v. United States, 268 U.S. 435, 441, 45 S.Ct. 546, 549, 69 L.Ed. 1032 (1925), where the Supreme Court stated:

"In determining what is probable cause, we are not called upon to determine whether the offense charged has in fact been committed. We are concerned only with the question whether the affiant had reasonable grounds at the time of his affidavit and the issuance of the warrant for the belief that the law was being violated on the premises to be searched, and if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant."

"Probable cause" and "reasonable grounds" are substantial equivalents and may be founded upon evidence which is not legally competent in a criminal trial, see Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), and may be determined on factual and practical considerations of every day life on which reasonable and prudent men, not legal technicians act. United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L.Ed.2d 684 (1965).

Because ultimate guilt is not in issue, the logic of the system permits the facts to be presented as hearsay from an informant, so long as the informant is "reliable." Jones v. United States, 362 U.S. 257,...