Hays and Feinberg, Circuit Judges, and McLean, District Judge.*fn* Hays, Circuit Judge (concurring in the result).
Marcelo Jose Suarez appeals from a conviction under 21 U.S.C. §§ 173, 174 after a three-day non-jury trial in the Southern District of New York before Judge Palmieri. Narcotics found by Government agents in a search of appellant's apartment constituted key evidence in the case against him. On appeal, Suarez argues that the warrant authorizing that search was issued without probable cause, that the warrant was executed improperly, and that he was entrapped. We find each of these contentions without merit, and affirm the conviction.
The relevant facts on the first issue are as follows: Suarez was indicted in June 1966. Shortly thereafter, he moved under Fed.R.Crim.P. 41(e) to suppress "all narcotic drugs" seized in his apartment on May 16, 1966. The motion papers attacked the manner of entry, to be discussed below, and also stated that "after discussing this case with my attorney, I feel that this warrant was not effective under the principles established in Aguilar v. [State of] Texas, 378 U.S. 108 [84 S. Ct. 1509, 12 L. Ed. 2d 723] [(1964)]." The record indicates that all concerned at the time regarded the latter ground of the motion as an attack on the sufficiency of the affidavit, while the former -- alleging improper execution of the warrant -- required a factual determination. This was, indeed, a reasonable construction of the vague argument in the motion papers made only by the reference to Aguilar, since that case discussed in detail what an affidavit in support of a warrant must contain to satisfy the probable cause requirement of the Fourth Amendment. The motion to suppress was argued before Judge Murphy in July; according to the record, he denied it, but referred the factual question of how the warrant was executed to the trial judge.
Examining for its sufficiency the affidavit in support of the warrant, as Judge Murphy did, it is clear no error was committed in denying the motion to suppress on that ground. The affidavit of agent John A. Frost states, in part, the following:
A reliable informant who has provided information on at least 100 occasions over the past 1 1/2 years, which information has proven extremely reliable and accurate, has informed your deponent that he was actually present in Apartment 2D at 138 Norfolk Street, New York, N. Y., on May 15, 1966, and observed a quantity of heroin believed to be about one-half kilogram of heroin. The informant has also stated that the apartment is being used by one Jose Suarez and that Suarez is selling half ounces and ounces of heroin from the apartment.
Your deponent has observed a person identified as Jose Suarez enter the premises at 138 Norfolk Street, New York, N. Y., on a number of occasions. In addition, the building, 138 Norfolk Street, New York, N. Y., is presently being renovated and only two apartments are occupied in the building. Surveillance conducted by your deponent over a period of time indicates a heavy traffic in and out of the building.
Because the source of information has given correct information to me on so many prior occasions, and because of the surveillance conducted by your deponent, I believe that there is now a quantity of heroin being secreted in the above apartment by Jose Suarez.
Reliance on an informant to obtain a warrant is not per se improper; indeed, it is the usual practice given the facts of criminal life. The test set forth in Aguilar is that
the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528 [84 S. Ct. 825, 11 L. Ed. 2d 887], was "credible" or his information "reliable." [378 U.S. at 114, 84 S. Ct. at 1514, footnote omitted.]
In this case Commissioner Earle N. Bishopp was told that the informant actually saw heroin in a specified apartment used by Suarez, that the informant had provided extremely accurate information "on at least 100 occasions," that the building, though with but two occupied apartments, had heavy traffic, and that Suarez entered the premises on a number of occasions. We conclude that the command of Aguilar was amply met here; issuance of the warrant by the Commissioner on the strength of the affidavit was clearly on probable cause. See also Rugendorf v. United States, 376 U.S. 528, 84 S. Ct. 825, 11 L. Ed. 2d 887 (1964); United States v. Freeman, 358 F.2d 459 (2d Cir.), cert. denied, 385 U.S. 882, 87 S. Ct. 168, 17 L. Ed. 2d 109 (1966).
We do not understand appellant seriously to dispute this conclusion, reached first by Judge Murphy and now by us. In his brief, he presses instead the more subtle point that
a supporting affidavit for a search warrant, apparently regular on its face, must be evaluated in light of the facts actually adduced upon trial.
What appellant suggests, of course, is that the affidavit here should have been re-evaluated at trial, having already been examined for sufficiency both by the Commissioner and Judge Murphy. Carrying this argument further, appellant asserts that at the trial before Judge Palmieri, he proved that some of the inferences in the affidavit were untrue, e.g., that the "heavy traffic" in the building was not due to narcotics but rather to building repairs, and could have demonstrated the unreliability of the informer had he been allowed to. As to the latter contention, ...