Biggs and Kalodner, Circuit Judges, and Whipple, District Judge. Biggs, Circuit Judge (dissenting)
The court below 312 F. Supp. 576, granted habeas corpus relief to the appellee, relator, Edward Henderson, who is confined to a correctional institution at Philadelphia. A one to ten year sentence had been imposed in the County of Montgomery, charging burglary, larceny and conspiracy to commit burglary.
The District Court granted the petition of Henderson because the search warrant signed by Detective Ryan was defective since it did not contain facts to support probable cause for its issuance. We disagree.
In deciding the unconstitutionality of the search, the judge stated that the warrant issued for the search of the appellee's car after his arrest did not meet the requirements of Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1968) and Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). The police officer who signed the statement of probable cause had received information from a confidential source that appellee and an accomplice were committing burglaries in the Philadelphia area. This statement further recited that appellee had a record of 17 arrests, 4 for burglary, and his accomplice had a record of 9 arrests, 7 of which were for burglary. Surveillance of both of them followed. After a motor vehicle chase, the accomplice was arrested. Henderson's arrest followed. An application was then made for a warrant to search Henderson's car. The search produced two flashlights, three screwdrivers, a pair of ice grips, a pair of gloves, a license tag other than the one which was issued to the vehicle, and a mink jacket, which was introduced into evidence at the trial after a motion to suppress was denied.
As has been mentioned, the court below found that the statement supporting the application for a warrant was defective because: (1) it contained no information establishing the reliability of the informant; (2) it was devoid of facts explaining the underlying circumstances of the informant's information, and (3) the police officers' corroborating information was insufficient to raise the informant's tip to the level of Spinelli and Aguilar, supra.
We have reviewed the record carefully and considering the affidavit in its entirety, we are of the opinion that probable cause did exist for the issuance of the search warrant, based upon the corroboration of the informant's tip by subsequent police investigation. See Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959); Brinegar v. United States (1948) 338 U.S. 160 at page 175, 69 S. Ct. 1302 at page 1310, 93 L. Ed. 1879:
"* * * Probable cause exists where "the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S. Ct. 280, 69 L. Ed. 543" (1924).
The order of the District Court granting the petition for a writ of habeas corpus on terms therein stated will be reversed and the cause remanded to the District Court with directions to enter an order denying the petition.
BIGGS, Circuit Judge (dissenting).
In my view, the majority has failed to follow the rules pertaining to the validity of search warrants as enunciated by the Supreme Court 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).
Henderson was indicted, tried and convicted of burglary,*fn1 larceny,*fn2 and conspiracy to commit burglary,*fn3 in the Court of Oyer and Terminer of Montgomery County, Pennsylvania, on June 24, 1966 and sentenced on April 21, 1967 to a term of one to ten years.*fn4 After the Pennsylvania Superior Court quashed Henderson's appeal, the Pennsylvania Supreme Court affirmed.
On May 13, 1969, Henderson filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. On September 23, 1969, the Court granted the writ on the theory that "the search warrant subscribed to by Detective Ryan was constitutionally defective. * * *" The application for a warrant requested permission to search a "1959 Lincoln Conv. painted white, Pa. 82419 P" owned by Henderson. The search revealed, among other items, a mink jacket with the initials "L.H.A." imprinted on the lining. It was later determined that this mink jacket was stolen from the residence of Mrs. Louise Altman at 1405 Paper Mill Road in Springfield Township. Mrs. Altman testified that the jacket found in Henderson's automobile was owned by her. Henderson made a timely motion before trial to suppress the introduction into evidence or the reference to all items*fn5 seized by the police from his automobile. This motion was denied and this evidence was later introduced at trial.
In order to determine whether the trial court erred in denying the motion to suppress, it is necessary to examine the statement of probable cause provided to the ...