have applied for a warrant under Rule 41.
However, even if we treat the Government's motion as an application for a warrant under Rule 41, that application must be denied. Of course, after Warden, Md. Pen. v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967) and the passage of 18 U.S.C. 3103a we need no longer torture the English language to make the things the Government seeks "instrumentalities of the crime". It is sufficient if there is probable cause to believe that the hair, blood and X-rays the Government seeks would be evidence of a crime against the United States. The Government's motion as currently written fails to establish this probable cause.
While the existence of the indictments in this case might as a matter of law furnish probable cause to believe that on May 13, 1971 the Fidelity Bank of Folcroft was robbed by two men with handguns, and that defendants were those two men, it nowhere establishes that the requested blood, hair or X-rays are evidence of that crime. This must be done by affidavit before a warrant can issue. The Government's motion as drafted contains only conclusory allegations of insufficient detail to establish probable cause. It is based entirely on heresay but contains no surrounding facts and circumstances from which the conclusions given were drawn, and no chain of information establishing the source of the information or the reliability of that source. See Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Jaben v. U.S., 381 U.S. 214, 85 S. Ct. 1365, 14 L. Ed. 2d 345 (1965). Further, the allegations are not properly sworn to. The persons whose bodies are to be invaded have a right to these supporting affidavits, both to know on what information the seizure is based and to be able to test the validity of any warrant issued. They deserve no less because they are currently under indictment and incarcerated.
It is suggested that if the Government wishes to make application for a warrant in this or similar cases in the future, the application should be made to a magistrate in the usual way, rather than to the judge assigned to try the case. If the application is decided by the trial judge initially, then the same person who rules on the initial question of probable cause will also rule on any subsequent motions to suppress evidence for lack of probable cause. While this situation would not be constitutionally objectionable, it is a conflict to be avoided when this is reasonably practicable.
Accordingly, the motion of the Government discussed herein is denied without prejudice to any future application for a warrant under Rule 41.
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