Hays and Feinberg, Circuit Judges, and McLean, District Judge.*fn* Feinberg, Circuit Judge (dissenting).
This is an appeal from an order of the district court granting petitioner a writ of habeas corpus and ordering his discharge from custody unless, within thirty days, steps are taken to retry him.
Petitioner is serving a sentence of five to fifteen years in the Green Haven State Prison upon conviction in the New York State Supreme Court, Queens County, of a charge of felonious possession of narcotics with intent to sell. The judgment of conviction was unanimously affirmed without opinion by the Appellate Division, Second Department, People v. Schnitzler, 26 A.D.2d 773, 272 N.Y.S.2d 745 (1966). The New York Court of Appeals affirmed the conviction by a vote of four to three, 18 N.Y.2d 457, 276 N.Y.S.2d 616, 223 N.E.2d 28 (1966).
The district court granted a writ of habeas corpus on the ground that there was an insufficient showing of probable cause for the issuance of a search warrant and, therefore, the seizure of a quantity of marijuana after a search of petitioner's premises based on the warrant, and the introduction in evidence at petitioner's trial of the seized marijuana, invaded petitioner's Fourth Amendment rights.
We reverse the determination of the district court because we believe that the showing of probable cause for the issuance of the warrant was adequate.
The affidavit on the basis of which the search warrant issued read as follows:
"1. I am a Detective City of New York, Narcotics Bureau.
2. 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 feet, 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 lbs.
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.
3. Based upon the foregoing reliable information and upon my personal knowledge there is probable cause to believe that such property namely Narcotics and Marijuana and may be found in the possession of Albert Schnitzler or at premises 62-60 Woodhaven Blvd.
Wherefore, I respectfully request that the court issue a warrant and order of seizure, in the form annexed, authorizing the search of Albert Schnitzler and person of Albert Schnitzler and premises of 62-60 Woodhaven Blvd. occupied person named herein and directing that if such property or evidence or any part thereof be found that it be seized and brought before the court; together with such other and further relief that the court may deem proper.
No previous application in this matter has been made in this or any other court or to any other judge, justice or magistrate."
The judge who issued the warrant testified at a hearing on the motion to suppress the seized evidence that at the time of the application for the warrant he questioned the affiant and was told not only that the informant was ...