The opinion of the court was delivered by: CROAKE
This is a pro se application for writ of habeas corpus pursuant to Title 28 U.S.C. § 2241.
Petitioner, Alfred Schnitzler, is presently incarcerated in Green Haven Prison pursuant to a 5 to 15 year sentence imposed on January 8, 1965 for the crime of felonious possession of narcotics with intent to sell.
He alleges that his conviction was effected by an invalid search warrant and is therefore unconstitutional.
A prior writ application raising the same contention was granted by another judge of this court. United States ex rel. Schnitzler v. Follette, 267 F. Supp. 337 (S.D.N.Y.1967). However, the court of appeals in a 2 to 1 decision reversed that determination. United States ex rel. Schnitzler v. Follette, 379 F.2d 846 (2d Cir. 1967). Petitioner did not apply for writ of certiorari to the United States Supreme Court.
Notwithstanding the prior proceedings and after careful examination of the record, we are constrained to determine the merits of the question presented. Title 28 U.S.C. § 2244(b).
A brief summary of the proceedings will facilitate a disposition of the issues of law raised herein.
The search warrant under consideration was signed by Judge Glowa of the Criminal Court of the City of New York, County of Kings, on the basis of an affidavit submitted by Detective D'Arpe. The affidavit in substance stated that a confidential informant was present when a sizable quantity of marijuana was delivered to Schnitzler's home, it provided applicant's address and physical description, informant's belief that Schnitzler deals in large quantities of marijuana and narcotics, and an averment by affiant that, based on his personal knowledge, the information is reliable. D'Arpe orally affirmed, but did not support, his belief in the informant's reliability, and without connection to the warrant, stated that an arrest in the case had been made.
The district court, in granting the petition, recognized that hearsay may be the basis for issuance of a search warrant but concluded that affiant failed to provide sufficient collateral support for such evidence, and that the omission invalidated the conviction.
In reversing the order, the court of appeals acknowledged the defect in the affidavit but found its cure, and the prerequisite probable cause, in the statement by D'Arpe that an arrest had been made. The dissent took issue with this reasoning and, in support of the district court decision, cited portions of the state record indicating that the arrest statement was not determinative, and that the warrant was issued solely in reliance of the affidavit.
Without "interpreting the affidavit in a hypertechnical, rather than a commonsense, manner," United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 746, 13 L. Ed. 2d 684 (1965), we must determine if the basis for crediting the hearsay was so unsubstantial as to permit a conclusion that the judge who issued the warrant acted improperly, Jones v. United States, 362 U.S. 257, 271, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960).
Prior to issuing a search warrant, a magistrate must form an independent determination of the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept mere conclusions. Giordenello v. United States, 357 U.S. 480, 78 S. Ct. 1245, 2 L. Ed. 2d 1503 (1958); United States v. Ventresca, supra. And, where an affidavit is based on hearsay, the judge must be "informed of some of the underlying circumstances" supporting the affiant's resolutions. Aguilar v. State of Texas, 378 U.S. 108, 114, 84 S. Ct. 1509, 1514, 12 L. Ed. 2d 723 (1964).
The necessary validation of an informant's hearsay evidence may be provided in a number of ways. United States v. Bozza, 365 F.2d 206 (2d Cir. 1966). For example, affiant may vouch for an informant's previous reliability, United States v. Perry, 380 F.2d 356 (2d Cir.) cert. denied, 389 U.S. 943, 88 S. Ct. 307, 19 L. Ed. 2d 299 (1967); and/or by self-supporting information supplied by affiant's fellow officers engaged in a common investigation, United States v. Desist, 384 F.2d 889 (2d Cir. 1967), hearsay obtained from different sources, some of which were identified, is mutually corroborative, United States v. Pascente, 387 F.2d 923 (7th ...