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April 19, 1967

UNITED STATES of America ex rel. Alfred SCHNITZLER, Petitioner,
Hon. Harold W. FOLLETTE, Warden of Green Haven State Prison, Stormville, New York, Respondent

The opinion of the court was delivered by: BONSAL


 BONSAL, District Judge.

 Petitioner, an inmate of Green Haven Prison, Stormville, New York, seeks a writ of habeas corpus. He contends that a search warrant, the execution of which uncovered approximately 25 pounds of marijuana in his apartment, was issued without probable cause in that there was no showing of the reliability of the informant on the basis of whose information the warrant was issued.

 It appears that on January 7, 1964 Detective Gene D'Arpe of the Narcotics Bureau of the New York City Police Department arrested Victor Gonzales on a narcotics charge (R: 55). *fn1" In the course of interrogation after arrest, Gonzales told D'Arpe that he and petitioner worked in the same band, that he was petitioner's source of supply for narcotics, that he sold narcotics to petitioner from time to time, that he had sold petitioner maybe 50 pounds of marijuana which was still in petitioner's apartment, and that petitioner lived in an apartment hous eat 62-60 Woodhaven Blvd., Queens (R: 55-57).

 On January 8, 1964 at approximately 1:00 p.m., D'Arpe appeared before Judge Glowa of the Criminal Court of the City of New York, County of Kings, to obtain a search warrant. In an affidavit in support of the issuance of the warrant, D'Arpe stated that:

I have information based upon a confidential informant that one M/W/ 34 years of age, and named Albert Schnitzler who resides at 62-60 Woodhaven Blvd New York.
Informant tells me that Albert Schnitzler is a male, white, 34 years of age, and is approximately 6', 180 lbs, with light hair and blue eyes and resides at the aforementioned address, and says that he is a seller of Narcotics and Marijuana in large quantities. Informant further stated that he was present when a delivery of marijuana was made to 62-60 Woodhaven Blvd. and believes that it was in excess of 50 Ibs.
Informant believes an immediate search of premises 62-60 Woodhaven Blvd, occupied by Albert Schnitzler, should be made since Albert Schnitzler deals narcotics and marijuana in large quantities only, and can dispose of the aforementioned shipment in a short time.
Based upon the foregoing reliable information and upon my personal knowledge there is probable cause to believe that such property namely Narcotics and Marijuana * * * may be found in the possession of Albert Schnitzler or at premises 62-60 Woodhaven Blvd.

 D'Arpe told Judge Glowa that another arrest had been made in the case and, in response to Judge Glowa's questions, gave a description of the petitioner, his name and address. (R: 238, 257). Judge Glowa asked if the informant was reliable, and D'Arpe said that he was (R: 258-9). D'Arpe did not tell Judge Glowa that the informant was an accomplice, that the informant had been arrested, or give any reasons for his conclusion that the informant was reliable (R: 250, 258-9).

 Judge Glowa signed the search warrant and D'Arpe then proceeded to 62-60 Woodhaven Blvd., Queens with several other New York City police officers. In the meantime, petitioner had been confronted in Manhattan by two agents of the Federal Bureau of Narcotics and told that a search warrant had been issued for the search of his apartment (R: 35). He agreed to go with the federal agents to Queens because his wife was pregnant and he did not want anyone to enter his apartment unless he was there (R: 69). On the way to Queens, petitioner told the federal agents that there were approximately 20 pounds of marijuana in his apartment (R: 69-70).

 Petitioner and the two federal agents arrived at 62-60 Woodhaven Blvd. shortly after D'Arpe. While still outside the apartment house, one of the federal officers told D'Arpe that petitioner had admitted that there was marijuana in his apartment, and D'Arpe showed petitioner the search warrant (R: 40, 52). Petitioner then led all the officers to his apartment and, after telling his wife to get dressed, took them into the apartment and pointed out the marijuana (R: 53). D'Arpe questioned petitioner and, after five or ten minutes in the apartment, took him to the 112th Precinct of the New York City Police Department (R: 46-7, 97, 110-111). Petitioner was arraigned the following day (R: 110).

 On April 20, 1964 petitioner moved for an order suppressing the use of the marijuana, contending that it was obtained as the result of an illegal search and seizure. A hearing was held on May 11, 1964 before Justice Livoti of the Supreme Court of New York who subsequently denied the motion in a memorandum decision dated June 16, 1964. On October 16, 1964 Justice Conroy of the Supreme Court of New York denied petitioner's second motion to suppress without a hearing.

 On October 28, 1964 petitioner was tried before Justice Shapiro of the Supreme Court of New York sitting without a jury. The marijuana was introduced into evidence and petitioner was convicted of the crime of ...

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