Before WATERMAN, SMITH and ANDERSON, Circuit Judges.
Joseph Coffey was tried in the New York County Court of General Sessions, convicted by a jury of burglary in the third degree, and sentenced to six to ten years in prison. The principal items of evidence against Coffey at his trial were the proceeds of the burglary, diamonds from Cartier's jewelry store. These had been found by the police on his companion, Kingdon "Bill" DeNormand, at the time when the two men were arrested. At his trial Coffey objected in vain to the admission of this evidence, in part on the ground that the arrest and search had been conducted without warrants.
While Coffey's appeal was pending, the United States Supreme Court handed down its landmark ruling that evidence seized in violation of the Fourteenth Amendment could not be used against a defendant in a state criminal proceeding. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). The New York Court of Appeals accordingly postponed determination of Coffey's appeal so that he might move, in the court where he had been convicted, for a ruling that under Mapp the jewels were improperly admitted against him at his trial. People v. Coffey, 11 N.Y.2d 142, 227 N.Y.S.2d 412, 182 N.E.2d 92 (1962). After an extensive hearing which included the examination of numerous witnesses, the trial judge held instead that the evidence was admissible because it had been seized in the course of a search incident to an arrest upon probable cause. 36 Misc.2d 67, 232 N.Y.S.2d 545 (Sup.Ct.1962). This ruling was affirmed by the New York Court of Appeals. 12 N.Y.2d 443, 240 N.Y.S.2d 721, 191 N.E.2d 263 (1963), remittitur amended, 13 N.Y.2d 726, 241 N.Y.S.2d 856, 191 N.E.2d 910 (1963), cert. denied, 376 U.S. 916, 84 S. Ct. 671, 11 L. Ed. 2d 612 (1964).
Having exhausted all available state remedies, Coffey petitioned the United States District Court for the Southern District of New York for a writ of habeas corpus, seeking release from Green Haven Prison on several federal grounds, one of which was the admission of the jewels in evidence against him at his trial. In a characterisically thorough and perceptive opinion, reported at 234 F. Supp. 543 (1964), Judge Weinfeld ruled that, on the state hearing record, the police had demonstrated probable cause to arrest Coffey and DeNormand. However, because probable cause was based in part on tips from an informer whose name the State refused to divulge, Judge Weinfeld held that Coffey had been deprived of his Fourteenth Amendment right to a fair hearing on the issue of probable cause. Judge Weinfeld therefore ordered the State to adduce other proof of probable cause, to retry Coffey without the disputed evidence, or to release him from prison.
At the outset, the State contends that Coffey lacks standing to object to seizure of the jewels because they were taken neither from his person nor from property within his control. Thus the State seeks to controvert its own Court of Appeals, which ruled that Coffey did have standing to complain of the search. This ruling, however, is not binding on a federal court adjudicating the propriety of an arrest and search under the Federal Constitution. Otherwise, less liberal state courts could foreclose one from invoking Fourteenth Amendment rights in a habeas corpus proceeding by laying down unduly narrow definitions of standing or by applying proper definitions in a parsimonious way. The point must be determined by the federal courts pursuant to federal law. Cf. Ker v. State of California, 374 U.S. 23, 33, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963); Aguilar v. State of Texas, 378 U.S. 108, 110, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964).
According to the rule which governs standing to suppress evidence in a federal prosecution, the defendant must be "aggrieved by [the] unlawful search and seizure." Fed.R.Crim.P. 41(e). This rule "applies the general principle that a party will not be heard to claim a constitutional protection unless he 'belongs to the class for whose sake the constitutional protection is given.'" Jones v. United States, 362 U.S. 257, 261, 80 S. Ct. 725, 731, 4 L. Ed. 2d 697 (1960). Because the rule is thus rooted in basic constitutional principle, the same test presumably governs standing to suppress evidence in a state prosecution. "In order to qualify as a 'person aggrieved by an unlawful search and seizure' one must have been a victim of a search or seizure, one against whom the search was directed * * *." Ibid.
The arrest and search of Coffey and DeNormand was triggered by information that Coffey had the proceeds of the burglary and would be attempting to dispose of them in DeNormand's company. The two men were arrested while driving in Coffey's car and were simultaneously searched on the sidewalk immediately following the arrest. At the trial both the prosecutor and the judge told the jury that in assessing Coffey's guilt, it might weigh his physical proximity to the stolen jewels at the time of his arrest.
We hold that under these circumstances the search which brought the stolen jewels to light was "directed against" Coffey as well as DeNormand. More precisely, we hold that the State may not arrest, search, and prosecute a defendant on the theory that he is in possession of stolen property, and then object that the property was actually found on the person of a companion when the defendant moves to prevent use of the property as evidence against him. "It is not consonant with the amenities, to put it mildly, of the administration of criminal justice to sanction such squarely contradictory assertions of power by the [State]." Id. at 263-264, 80 S. Ct. at 732.
Both parties to this proceeding, and all the courts that have passed on the issue, implicitly assume that probable cause to arrest Coffey and DeNormand is to be tested according to the information possessed by an FBI agent named Henry Gilhofer. We are willing so to test the issue, for no other view has been briefed or argued, and because we suspect that a contrary ruling on this point would not affect our result. However, for whatever value they may have in this or other proceedings, we have set forth in the margin our peripheral thoughts relative to this implicit assumption*fn1
A clear and complete chronological account of the way in which Gilhofer allegedly gathered the information leading to the arrest of Coffey and DeNormand can be found in Judge Weinfeld's opinion below. Here we shall present the same material, classified according to the origin of the information on which Gilhofer allegedly relied.
At the hearing held by the state trial judge, Gilhofer testified that some of his information was supplied by the informer whose name the State refuses to disclose. The informer told Gilhofer that Coffey and "Patsy," later identified as Pasquale Fuca, had robbed Cartier's jewelry store; that one or the other of the two men still had the loot; that they were trying to dispose of it with the help of DeNormand; and that the three men had shown the jewels to the informer. This information was partially verified by police records, which disclosed to Gilhofer that Coffey and Fuca had criminal records and had been arrested together on several occasions; that DeNormand also had a criminal record and had been arrested many years ago while associated with Coffey's brother or uncle; and that the informer's description of the stolen jewels matched an unpublicized inventory given to the police by Cartier's.
Gilhofer also testified that some of his information was gathered in the informer's presence, although not from the informer himself, when the informer initiated a telephone call which he allowed Gilhofer to overhear. The person at the other end of the line, who answered to the name of "Bill," said that Coffey and Fuca still had the jewels despite their efforts to sell them, and that he was going to meet Coffey or Fuca that evening at 7:00 in front of the Paramount Theater in Brooklyn to make another attempt to dispose of the loot. This information was partially verified by Gilhofer and others who saw Coffey and DeNormand rendezvous in front of the theater at the appointed hour and later drive away with a third man who likewise had a criminal record*fn2
Gilhofer also testified that some of his information was obtained from sources wholly independent of the informer. The night watchman at Cartier's jewelry store described the getaway car to Gilhofer as a blue and white Oldsmobile about five years old; FBI agents familiar with the Manhattan area frequented by Coffey told Gilhofer that Coffey was known to drive his brother's car which fitted this description; and Gilhofer observed that the car in which Coffey and DeNormand drove away from the theater the night they were arrested was a blue and white 1955 Oldsmobile hardtop. On appeal the State claims that the night watchman also gave the police a description of one of the burglars which matched Coffey's appearance; however, at the state court hearing the State ...