Hastie, Chief Judge, and McLaughlin and Adams, Circuit Judges. Adams, Circuit Judge (concurring).
GERALD McLAUGHLIN, Circuit Judge.
Charles William Mosby was indicted in the United States District Court for the Western District of Pennsylvania in a two-count indictment charging him and Robert Singleton with violations of the Federal narcotics laws. After pretrial motions for the suppression of certain physical evidence seized and a confession given by Mosby were denied, he waived his right to jury trial and by stipulation, was tried before the court on the second count of the indictment.*fn1 Mosby was found guilty and received a suspended sentence of seven years imprisonment, a fine of $2,500. and the costs of prosecution, and placed on probation for a period of four years. This appeal followed.*fn2
The questions raised relate to the admissibility of the seized evidence and the written confession. Appellant argues that the search and seizure were invalid because the affidavit used to obtain the search warrant was purely conclusionary and unsupported by sufficient underlying facts to reveal probable cause and further because the search warrant was served in violation of 18 U.S.C. § 3109. With regard to the confession, it is argued that it was inadmissible because appellant was not advised of his rights under the Fourth Amendment and, additionally, that there was not sufficient, independent, corroborative evidence of the allegations of count 2 of the indictment to justify the admission of the confession.
We turn first to the question of the search and seizure. On September 22, 1967, Detective Edward Costanza of the Allegheny County Detective Bureau, Narcotics Squad received a tip from an informant, who had supplied reliable information in the past, to the effect that Charles Mosby and Robert Singleton, who was known as "Popeye," were "bagging" narcotics in the premises occupied by Mosby. As a result of this tip, the premises, located at 217 Standard Street, Pittsburgh, Pennsylvania, were placed under surveillance. The informant had advised the detective that Singleton would be in the area at 8:00 o'clock in the morning and again at 5:00 o'clock in the afternoon. The surveillance verified Singleton's presence in the area at the stated time.
The affidavit in support of the warrant, executed by Costanza, said that he had reason to believe that heroin, narcotics paraphernalia and dangerous drugs were present on the premises, which were occupied by appellant and his wife, and that Robert Singleton was using said premises to deal in the traffic of heroin. The affidavit recited a description of a white Pontiac automobile used by Singleton. It further stated that the detective's belief was based upon
"information received from a confidential informant who has furnished reliable information to the affiant in the past several years leading to and resulting in the arrest and convictions of numerous dealers in and users of narcotics in the County of Allegheny to the effect that one Robert Singleton has been using the premises * * * for the purpose of preparing Heroin for distribution and sell [sic] by virtue of a process known as 'Cutting' and further packaging of the same in individual containers. * * *"
The affidavit went on to recite that the affiant, accompanied by another county detective and federal narcotics agents, had personally observed the premises on four different occasions and had seen Robert Singleton entering thereon at about 8:00 a. m. and after 5 p. m. and that such visitations were in accordance with information received from the informant. The affidavit was dated October 2, 1967. The search warrant was issued the same day.
On October 4, 1968, Singleton was seen entering the premises at 8:20 a. m. The search warrant was executed approximately fifteen minutes later.
Appellant argues that the affidavit is defective under the standards formulated in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). In the earlier case, it was established that, where the authorities, in applying for a search warrant, rely completely upon the tip of an informant, there must be a sufficient disclosure of any underlying circumstances from which the informant concluded that the suspect was engaged in criminal conduct and from which the authorities concluded that the informant was credible or his information reliable, to enable the impartial magistrate to judge the validity of the informant's conclusion. Spinelli indicates that where the informer's tip is corroborated by other information, the magistrate must be satisfied that the information disclosed by the informant, coupled with the other information, is at least as trustworthy as the informer's tip would need to be to stand alone under Aguilar.
Looking at the affidavit on its face, it is clear that the second test of Aguilar is satisfied, namely, the requirement that affidavit recite facts which led the affiant to conclude that the informant's tip was reliable. It has often been held that an indication that the informant had in the past supplied information leading to the arrest and conviction of other criminals is sufficient. It is not necessary for the affidavit to detail specific arrests or convictions as appellant argues. Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960); Gonzales v. Beto, 425 F.2d 963 (5 Cir. 1970); United States v. Vigo, 413 F.2d 691 (5 Cir. 1969); United States v. Suarez, 380 F.2d 713 (2 Cir. 1967); Gabriel v. United States, 366 F.2d 726 (9 Cir. 1966).
On the other hand, the informant's tip standing alone does not satisfy the first Aguilar test. It does not, in any manner, disclose how the informant reached the conclusion that Singleton and Mosby were engaged in criminal conduct. It merely states a conclusion, buttressed by no facts to indicate that the informant observed narcotics or narcotics paraphernalia on the premises.
However, the informant's tip does not stand alone. This case is governed by Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959)*fn3 and its progeny, which hold that, where an informant's tip is verified by independent personal observations by police, probable cause may be established. United States ex rel. Kislin v. New Jersey, 429 F.2d 950 (3 Cir. 1970). Here the information provided by the undisclosed informant, to the effect that Robert Singleton would be in the area of and entering 217 Standard Street at approximately 8:00 o'clock a. m. and 5:00 o'clock p. m. and that he would be driving a white 1965 Pontiac, registration number 15837N, were borne out by the independent observations of Detective Costanza and others, ...