Smith, Kaufman and Hays, Circuit Judges. Hays, Circuit Judge (dissenting).
IRVING R. KAUFMAN, Circuit Judge:
The underlying question presented on this appeal is whether a defendant who enters a guilty plea in a New York State court, knowing that he may subsequently challenge in the state's appellate process the denial of his pretrial motion to suppress evidence alleged to be the fruit of an illegal search and seizure, should be considered to have waived the right to raise his Fourth Amendment claims in the federal courts by way of an application for habeas corpus. We are also asked to examine the murky area of probable cause for the issuance of a search warrant.
The facts in the case are not in dispute and lend themselves to simple statement. On January 12, 1963, Judge O'Grady, of the New York City Criminal Court, issued a warrant to search Rogers' apartment which occupied the first and basement floors at 191 Quincy Street, Brooklyn. The warrant was based on the affidavit of Detective Gowski of the Brooklyn District Attorney's Office. He stated that he had probable cause to believe that appellant was in possession of narcotic drugs and paraphernalia which could be found in his apartment.*fn1 Nine days after the warrant was issued, officers of the New York City Police Department's Narcotics Bureau searched the apartment and found narcotics, cutting implements, and a loaded.22 caliber automatic gun.
Two indictments were subsequently filed against Rogers. In one, he was charged with violation of the state's narcotics law, while in the other he was accused of carrying a dangerous weapon and of having committed second and third degree assaults during the search of his apartment. Rogers then moved in the Kings County Supreme Court to set aside the search warrant and to suppress the evidence that had been obtained, claiming that Gowski's affidavit was insufficient as a matter of law to create probable cause for the issuance of the warrant. When his motion was denied, Rogers pleaded guilty to one count -- a reduced charge recommended by the prosecutor -- carrying a dangerous weapon (N. Y. Penal Law, McKinney's Consol. Laws, c. 40 § 1897), which covered all the counts of both indictments. On September 11, 1963, Judge Malbin of the Kings County Supreme Court sentenced Rogers to a term of from 2 1/2 to 5 years in state prison.
Appellant then pursued in the state courts his appeal from the judgment of conviction and, pursuant to section 813-c of the New York Code of Criminal Procedure, urged the reviewing court to reverse the intermediate order denying his pre-trial suppression motion.*fn2 The Appellate Division, Second Department, affirmed the judgment and order in a brief memorandum opinion, stating inter alia :
The affidavit of the police officer, on the basis of which the search warrant was issued, shows that the undisclosed informant, to whom reference is made in the affidavit, was reliable and had given the police the information that defendant and others "found" in the subject premises "are selling narcotic drugs" therein. We read this to mean that the informant saw the traffic in narcotics taking place in the premises. 22 A.D.2d 902, 255 N.Y.S.2d 332-333 (1964). (Emphasis added.)
The New York Court of Appeals also rejected Rogers' contentions, accepting the Appellate Division's assumption that "the informer had seen narcotic drug transactions in the apartment". 15 N.Y.2d 422, 424, 260 N.Y.S.2d 433, 434, 208 N.E.2d 168 (1965).
Having unsuccessfully litigated his claims in the state courts, Rogers applied for a writ of habeas corpus in the United States District Court.*fn3 The judge did not reach the merits of appellant's claim but, citing our decision in U.S. ex rel. Glenn v. McMann, 349 F.2d 1018 (1965), cert. denied, 383 U.S. 915, 86 S. Ct. 906, 15 L. Ed. 2d 669 (1966), denied the application on the ground that appellant's plea of guilty in the state court barred him from raising his Fourth Amendment claims in a federal habeas corpus proceeding. 255 F. Supp. 516 (N.D.N.Y.1965). Judge Port having granted a certificate of probable cause, we now review his denial of the writ.
At the threshold we must decide whether, in light of the procedures provided by New York in section 813-c, Rogers' plea of guilty in the state courts foreclosed him from challenging the validity of the search warrant in the federal courts.*fn4 The general rule, well established in this and other Circuits, is that a "voluntary guilty plea entered on advice of counsel is a waiver of all non-jurisdictional defects in any prior stage of the proceedings against him." U.S. ex rel. Glenn v. McMann, 349 F.2d at 1019. See U.S. ex rel. Boucher v. Reincke, 341 F.2d 977 (2d Cir. 1965); Wallace v. Heinze, 351 F.2d 39 (9th Cir. 1965), cert. denied, sub nom. Wallace v. Oliver, 384 U.S. 954, 86 S. Ct. 1574, 16 L. Ed. 2d 550 (1966); Alexander v. United States, 290 F.2d 252 (5th Cir.) cert. denied, 368 U.S. 891, 82 S. Ct. 144, 7 L. Ed. 2d 89 (1961). The rationale behind this doctrine is not difficult to discover. It is reasonable to conclude that when a defendant knowingly enters a guilty plea, it is an independent admission of the facts charged; thus, it becomes unnecessary for the prosecution to offer any evidence. And, since the conviction is based solely on the plea of guilty or admission of the facts charged, no purpose would be served in permitting a defendant to argue ab initio on appeal that there had been an illgal search and seizure. See U.S. ex rel. Vaughn v. LaVallee, 318 F.2d 499 (2d Cir. 1963). Therefore, in the greater number of state courts a guilty plea bars a defendant from raising his Fourth Amendment claims in a subsequent appeal. And, since the defendant is presumed to be aware of this consequence, the federal courts have properly concluded that his plea constitutes an "intentional relinquishment or abandonment" (Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938)) of his Fourth Amendment claims. It follows, therefore, that one who knowingly fails to raise his constitutional arguments via the appropriate and reasonable state procedures that have been provided waives his right to raise these same claims before a federal court in an application for a writ of habeas corpus. See Fay v. Noia, 372 U.S. 391, 438, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963).*fn5
But while there is merit to the general rule that a guilty plea in a state court waives a defendant's right to raise in the federal courts alleged non-jurisdictional defects, we must be wary of blindly applying this doctrine to every case involving such a plea. There is nothing inherent in the nature of a plea of guilty which ipso facto renders it a waiver of a defendant's constitutional claims. Rather, waiver is presumed because ordinarily such a plea is an indication by the defendant that he has deliberately failed or refused to raise his claims by available state procedures; therefore, principles of comity and the interests of orderly federal-state relations require that he should not be allowed to present these claims to the federal courts. Thus, the question we are called upon to decide in the present case is whether, in light of the explicit language in § 813-c, Rogers' plea of guilty can properly be construed as an "intentional relinquishment or abandonment" of his Fourth Amendment contentions.
The answer to this inquiry must necessarily begin with an examination of section 813-c which provides:
A person claiming to be aggrieved by an unlawful search and seizure and having reasonable grounds to believe that the property, papers or things hereinafter referred to as property, claimed to have been unlawfully obtained may be used as evidence against him in a criminal proceeding, may move for the return of such property or for the suppression of its use as evidence. The court shall hear evidence upon any issue of fact necessary to determination of the motion.
If the motion is granted, the property shall be restored unless otherwise subject to lawful detention, and in any event it shall not be admissible in evidence in any criminal proceeding against the moving party.
If the motion is denied, the order denying such may be reviewed on appeal from a judgment of conviction notwithstanding the fact that such judgment of conviction is predicated upon a plea of guilty.*fn6
New York has thus provided a specific statutory exception to the general rule that a plea of guilty bars a defendant from raising on appeal alleged non-jurisdictional defects. And, we are quite easily able to discern legitimate and powerfully compelling reasons for establishing such an exception. In the greater number of cases, the present one being illustrative, a defendant in a criminal case recognizes that unless he succeeds in suppressing the evidence seized, the state will have little difficulty in proving the charges filed against him. A defendant may well have no desire to go to trial once his pre-trial suppression motion has been denied, and thereafter may lose heart for any defense to the charges. If, however, the defendant is confronted with state law which decrees that a plea of guilty bars him from appealing the denial of his motion, then he will be presented with a fait accompli and be forced to proceed to trial just so that he can preserve his right to appeal. Section 813-c is an enlightened statute and was designed to alleviate this undesirable and ...