The opinion of the court was delivered by: POLLACK
Federal habeas corpus is sought herein by a state prisoner. These proceedings are the culmination of an "almost unparalleled succession of collateral attacks [by him] on his conviction both in state and federal courts".
The matter came before this Court following a decision of the Court of Appeals for the Second Circuit reversing the denial of a hearing on petitioner's claims and remanding his petition for habeas corpus to this Court with the direction that an evidentiary hearing be held on certain of petitioner's contentions. The appellate court suggested that this petition together with others pending in the Southern and Western Districts of New York be placed in one bundle and be referred to one Judge to avoid undue drain on judicial time. Furthermore, the court said: "We also place Pugach on notice that if he has still other federal claims, these must be promptly asserted along with the ones now pending." 411 F.2d at 181.
The determination of the Court of Appeals referred to furnishes the following succinct statement of the background for all the pending matters:
Appellant Pugach, a lawyer, was indicted in 1959 by a New York grand jury for a number of crimes arising out of an alleged conspiracy whereby, using Al Smith Newkirk as an intermediary, he hired Heard Harden and Walter McMillian to maim his former girl friend, Linda Riss, by hurling lye in her face. McMillian and Newkirk pleaded guilty. Pugach and Harden stood trial and were convicted. Pugach was sentenced in 1962 for an aggregate of 15 to 30 years in prison. His conviction was affirmed by the Appellate Division, People v. Pugach, 21 A.D. 2d 854, 251 N.Y.S. 2d 1007 (1st Dept. 1964) and by the Court of Appeals, 16 N.Y. 2d 504, 260 N.Y.S. 2d 444, 208 N.E.2d 176, and the Supreme court dismissed his appeal for want of a substantial federal question, 383 U.S. 575, 86 S. Ct. 1077, 16 L. Ed. 2d 108 (1966). [411 F.2d 177, 178.]
Accordingly, the cases presented to this Court consist of five petitions for a writ of habeas corpus as well as one Civil Rights action brought under Title 42 U.S.C. § 1983. Three of these petitions were originally filed in the Southern District of New York.
The other three cases were filed in the Western District of New York and following the suggestion of the Court of Appeals mentioned above, were transferred to this Court.2a
on July 30, 1969, at the direction of the Court and pursuant to the admonition of the Court of Appeals that petitioner must promptly assert any other federal claims he wishes to raise along with the ones now pending, United States ex rel. Pugach v. Mancusi, 411 F.2d 177, 181 (2d Cir. 1969), cert. denied 396 U.S. 889, 90 S. Ct. 172, 24 L. Ed. 2d 163 (1969) petitioner executed a notice of election of claims listing the following bases for relief:
Petitioner claims (1) that evidence was used against him which was obtained as the tainted fruit of trespassory eavesdropping, carried out under a defective warrant; (2) that statements and acts of his, coerced by police agents through blackmail and fraud, were used against him at trial; (3) that the victim of his alleged assault and others testified against him perjuriously while the prosecutor concealed conflicting statements made previously by these witnesses; (4) that he was denied the right to act as his own counsel after his retained counsel was temporarily relieved; and (5) that his trial counsel was incompetent.
Petitioner sought to supplement his election by a petition sworn to October 6, 1969, in which he included the claim that he was deprived of his Sixth Amendment right to confrontation and effective cross-examination by the admission during his trial of the confession of a co-defendant which incriminated him. The requested addition was accepted by the Court at a pre-hearing conference on November 7, 1969, at which petitioner acknowledged that the six claims represented all the federal grounds for relief which he had with respect of his conviction. In preparation for the determination of the issues herein, the court conducted a painstaking investigation of the steps taken by Mr. Pugach in this and in the Western District of New York, since his conviction. This brought to light the fact that all six claims asserted herein were adjudicated on the merits and habeas petitions thereon were denied, in at least one previous final federal district court determination. No appeals therefrom were taken by Mr. Pugach.
The prior determination of these claims is embodied in the order dated December 11, 1964, of Judge Harold P. Burke of the United States District Court for the Western District of New York, which denied six separate habeas petitions and supplementary applications. The petitions were all of the 1964 vintage, dated April 14 and 24, May 4, June 16 and 22, and July 29, respectively. They were denied without an evidentiary hearing upon Judge Burke's specific finding of fact [no. 12] that an examination of the trial record, the record of post-trial proceedings, and the briefs on appeal in the Appellate Division of the New York Supreme Court was sufficient and adequate for a determination of all questions presented. United States ex rel. Pugach v. Wilkins, Civ. No. 11,004 at 9 (W.D.N.Y. Dec. 11, 1964) [hereinafter cited as Wilkins ].
Relevant to Pugach's claims in his election of July 30, 1969, are the following findings of Judge Burke: Re (1) - "no basis for his [Pugach's] claim that he was denied due process of law by the illegal use of eavesdrop evidence," Wilkins, at 10; re (2) - "no basis for his claim that he was denied due process of law by the admission in evidence of acts and declarations of petitioner resulting from acts of extortion and threats of the district attorney and the police," Wilkins, at 10; re (3) - "no basis for his claim that he was denied due process by the willful use of perjured testimony," Wilkins at 10; re (4) - "no basis for his claim that he was denied due process in what he calls the court's refusal to allow him to defend himself," Wilkins, at 9; and re (5) - "The petitioner was represented at the trial by two attorneys who were able and competent." Wilkins, at 9.
Bearing on Pugach's additional claim asserted in his supplementary petition of October 6, 1969, is Judge Burke's finding that there is "no basis for his claim that he was denied due process of law by the instruction to the jury that out-of-court statements made by a co-defendant, not in the presence of petitioner, are evidence against the petitioner," and the finding that there is "no basis for his claim that he was denied due process of law by the admission of evidence unconnected to the petitioner." Wilkins, at 10.
The apparent oversight by the Court of Appeals of these adverse determinations from which no appeal was taken underscores the advisability of the movement under way to install a central registry for all post-conviction applications made by a defendant, which would be indexed under a number assigned to each individual at the time of conviction.
While traditional notions of res judicata do not literally apply to petitions for habeas corpus, Sanders v. United States, 373 U.S. 1, 8, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963); Smith v. Yeager, 393 U.S. 122, 124-125, 89 S. Ct. 277, 21 L. Ed. 2d 246 (1968), the courts and Congress nevertheless have long recognized that under appropriate circumstances, successive applications for the same relief need not be entertained. See, e.g., Salinger v. Loisel, 265 U.S. 224, 44 S. Ct. 519, 68 L. Ed. 989 (1924), and cases cited in Sanders v. United States, supra ; 28 U.S.C. § 2244. Under subsection (a) of § 2244, a District Judge is not required to entertain an application for a writ of habeas corpus if
it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus and the petition presents no new ground not theretofore presented and determined, and the judge or court is satisfied that the ends of justice will not be served by such inquiry.
The Supreme Court has spelled out the statutory standard for declining to consider successive applications on grounds previously heard and determined:
Controlling weight may be given to denial of a prior application for federal habeas corpus * * * relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application. Sanders v. United States, 373 U.S. 1, 15, 83 S. Ct. 1068, 1077, 10 L. Ed. 2d 148 (1963).
The Supreme Court, furthermore, said that by the "same ground" it meant the same "sufficient legal basis for granting the relief sought by the applicant," even if new factual allegations were used to raise the old ground. Sanders, at 16, 83 S. Ct. at 1077. By an adjudication on the merits, the Supreme Court signified either the prior holding of an evidentiary hearing or the conclusive resolution of factual issues raised in prior applications on the files and records therein. Id. The Supreme Court indicated that the "ends of justice" would normally be served by a prior determination on the merits except in the following cases:
If factual issues are involved, the applicant is entitled to a new hearing upon showing that the evidentiary hearing on the prior application was not full and fair; we canvassed the criteria of a full and fair evidentiary hearing recently in Townsend v. Sain, supra [372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963)], and that discussion need not be repeated here. If purely legal questions are involved, the applicant may be entitled to a new hearing upon showing an intervening change in the law or some other justification for having failed to raise a crucial point or argument in the prior application. Sanders v. United States, 373 U.S. 1, 16-17, 83 S. Ct. 1068, 1078, 10 L. Ed. 2d 148 (1963).
The Supreme Court, in Sanders, also held that the burden is on the petitioner to show that the ends of justice would be served by a redetermination of a ground previously decided against him on the merits. Furthermore, the Court of Appeals has recently held it an abuse of discretion to entertain a subsequent petition for habeas on a previously determined ground, under the rubric of the "ends of justice", where the facts were adequately developed in a previous application, no change of law has occurred, and the petitioner did no more than "express the opinion that the prior decision of this court was incorrect." United States ex rel. Schnitzler v. Follette, 406 F.2d 319 (2d Cir. 1968), cert. denied, 395 U.S. 926, 89 S. Ct. 1783, 23 L. Ed. 2d 244 (1969).
An examination of the petitions before Judge Burke and the petitions before this Court underlying Mr. Pugach's recent election of claims and the supplement thereto makes it clear that the same legal bases for relief were relied on, and hence the "grounds" are identical. Sanders v. United States, 373 U.S. 1, 16, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963). Furthermore, since Judge Burke denied an evidentiary hearing on the specific finding that the "files and records conclusively resolved" the factual issues, Sanders, supra, at 16, 83 S. Ct. 1068, the adjudication was on the merits.
Moreover, the Court is convinced that Judge Burke's denial of an evidentiary hearing on the previous applications was consonant with the Supreme Court's standards enumerated in Townsend v. Sain, 372 U.S. 293, 313, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963), and that petitioner has failed either to make new factual allegations which entitle him to a hearing or to show an intervening change of law which substantially affects the disposition of his claims. The "ends of justice" neither require nor are they served by entertaining Mr. Pugach's present habeas applications. These may be dismissed appropriately and solely on the strength of Judge Burke's prior adjudication thereon.
Nevertheless, mindful of the considerable energies expended by all concerned herein and in spite of the Court's opinion that so doing is an unnecessary and possibly an inappropriate legal exercise, in the interest of closing any gaps that might be held to exist, the Court elects to again test each of Pugach's claims on the evidentiary bases presented in the hearings.
prior to the commencement of the hearings herein, the petitioner declined an assignment of counsel. He assured the Court that he understood the nature and extent of the proceedings, was capable of representing himself adequately, and moreover, would have available to him, continuously, the advice of Mr. Paul Vladimir, a practising attorney, personal friend and fellow law school alumnus, whom Pugach planned to consult. The petitioner assured the Court that he would not change his mind and would not during the proceedings, request an assignment of counsel. He also declined any other form of assistance other than aid in the production of records and the service of subpoenas on witnesses. The records and witnesses desired were made available.
A meeting preliminary to the hearing canvassed the agenda to be followed and a convenient date for the start of the hearing was then agreed upon.
The hearings commenced on November 24, 1969, and were concluded on December 1, 1969. The petitioner called twelve witnesses including himself and adduced some thirty exhibits. The transcript of the 13 week trial in the state court was made part of the record and was used extensively by the petitioner in questioning certain witnesses.
The State relied solely on the direct and cross-examinations of the witnesses called by the petitioner.
After the Court had studied the record, the parties were given the opportunity to argue the points of law involved.
The claims asserted in the petitioner's notice of election (amended), will now be considered, seriatim.
Petitioner has contended that the state's use of evidence obtained through eavesdropping infringed his Fourth and Fifth Amendment rights in various respects. He claims that the orders to plant microphones in his law office
were obtained by the police without probable cause and were, therefore, violative of the Fourth Amendment; that even if orally apprised of facts constituting probable cause, the failure of the judges to make a record of such facts invalidated the orders; that the orders lacked requisite particularity in failing to designate which persons' conversations [and which conversations] were to be seized; and that the orders permitted eavesdropping for an unreasonable duration. Furthermore, petitioner contends that the eavesdropping was for the purpose of obtaining admissions from him in violation of his Fifth Amendment rights.
The respondent admits that the affidavits which Lieutenant Frank Weldon submitted in support of his application for the warrants failed to set forth sufficient facts comprising probable cause.
The State Attorney General argues, however, that the requisite facts were orally placed before the judges who issued the orders in the form of sworn information supplied by Lieutenant Weldon and Detective Nicholas Savino, (the latter was a witness before this Court at the hearings held herein). Moreover, the respondent maintains that the oral information which was before the magistrate who issued an eavesdropping order is admissible regardless of whether the magistrate made a record of the information. Furthermore, the State Attorney General contends that even if there were no probable cause to support the eavesdropping, the admission of statements at trial overheard through the use of the "bugs" was, at most, harmless error.
(a) Probable cause to issue eavesdropping orders
Both Judge Schultz, the magistrate who issued the first two eavesdropping orders, and the affiant who applied for the orders, Lieutenant Weldon, are deceased. Justice McCaffrey [formerly Judge McCaffrey] was called as a witness by petitioner and testified that he did not recall the application for the order which he issued on October 23, 1959, and that it was his general practice to interview an affiant only as to the truth of the facts set forth in his affidavits. However, Justice McCaffrey also testified that it was not uncommon for other officers to accompany an affiant, and that occasionally they were also examined.
Detective Nicholas Savino testified that he had accompanied Lieutenant Weldon when each of the three applications was made and that on each occasion the two officers were taken to the Judge's Chambers and placed under oath.
On June 25, 1959, according to Savino, Judge Schultz requested that he be given all the department's information regarding the Linda Riss maiming case and the reasons the police wanted the order. Weldon or Savino then told the Judge the following:
Miss Riss had told Savino in a statement made only a day or two after the assault [on June 16, or 17, 1959] and while she was still confined to a hospital bed, that she had met and began dating the petitioner in 1957. She subsequently broke off her relationship with Mr. Pugach in the latter part of that year when she learned from an attorney that petitioner was still married and that the divorce papers which he showed her were fraudulent or forged. Petitioner and Miss Riss resumed their relationship after Pugach promised to obtain a genuine divorce, and the couple saw each other until 1958, when their dating was again disrupted.
Miss Riss had also told Detective Savino that petitioner began calling her at home, attempting to arrange to see her and having failed, he made threatening phone calls. She told the police that on one occasion Pugach threatened that if he could not have her, no one was to have her, and he knew people who would "take care of" her. On another occasion, petitioner, according to Miss Riss, offered her the options of either marrying him, going to bed with him and then being left alone or having the same thing happen to her that happened to Victor Reisel.
Weldon or Savino also told Judge Schultz that near the end of 1958, Miss Riss received a package of narcotics through the mail, about which the police and postal authorities had been "tipped off" by an informer. Miss Riss had claimed it was petitioner who had caused the package to be sent to her. Miss Riss obtained two criminal court summonses against Pugach, the second of which had been served. She called the police to complain that a metal object was thrown through her window, smashing it; and she attributed this offense to petitioner. Miss Riss also had told the police that one, Sue Eden, had phoned her and revealed that Pugach had sought Eden's assistance to locate someone who might beat up or harm Linda. Eden, according to Miss Riss, said she had found one Joe Finelle for the job, but a deal with him did not eventuate. Eden warned Linda to be careful, telling her that petitioner was dangerous and owned a weapon. Detective Savino had met with Sue Eden on the 16th or 17th of June, 1959, and she confirmed the information Miss Riss gave to the police.
All of the foregoing data was placed before Judge Schultz in connection with obtaining the first eavesdrop order of June 25, 1959.
According to Savino, when the police appeared a second time before Judge Schultz on August 17, 1959, to obtain an extension of the order, the Court asked what, if anything, had been accomplished by the eavesdropping. After both officers were again placed under oath, Weldon replied that the police had overheard conversations in which two other suspects telephoned petitioner's office and identified themselves. The officers evidently wished to continue the eavesdropping in order to obtain information concerning visits of various suspects to petitioner's office and what they might say relating to the case under investigation. Lieutenant Weldon also told Judge Schultz that the police had questioned Joe Finelle, and Finelle had verified Sue Eden's story and admitted having communicated with Pugach concerning such a proposition.
Detective Savino testified that when the police sought a second extension of the eavesdrop order on October 23, 1959, Lieutenant Weldon and Detective Savino appeared before Judge McCaffrey, and under oath one of the officers repeated substantially the same information as is set out above and added thereto a report of the progress made in securing evidence through the bugging. Weldon or Savino told the judge that all three of the other suspects in the case had been seen in and around Mr. Pugach's office during the previous two months, and two of them had had conversations with petitioner. The officers told Judge McCaffrey that two police informants had been sent to Pugach's office to elicit information and also told the judge what occurred. They further informed the judge that petitioner possessed a rifle on the premises.
The petitioner developed from Savino's testimony the fact that with the exception of having interviewed Sue Eden and Joe Finelle, Detective Savino had not personally checked out any aspect of Miss Riss' story. Savino did point out that Lieutenant Weldon, not he, was in charge of the investigation, and that many other officers were involved in verifying the facts of Miss Riss' story. Detective Savino identified the source of the Department's information that petitioner had a rifle as one, Police Patrolman Billy Price, a friend of Pugach who, on occasion, used office space in the Pugach suite.
Linda Riss, called as a witness by petitioner, corroborated Savino's testimony. She confirmed that she had related the facts to Savino and to Lieutenant Weldon just as Savino had testified.
Petitioner's own testimony denied the substance of much of the information imparted to the two judges, and specifically contradicted Miss Riss' testimony about the existence of a fraudulent divorce, the making of threats, and petitioner's complicity in either the window-breaking or narcotics mailing incidents. Mr. Pugach attempted to discredit Sue Eden as the mother of an illegitimate child and a prostitute and charged that Eden was motivated by jealousy of Miss Riss.
Furthermore, Pugach vigorously attacked Detective Savino's testimony herein as a recent fabrication and attempted to show that the officer's statements must have been perjurious. Petitioner elicited from Savino the fact that the officer did not volunteer to the Attorney General or Bronx District Attorney his knowledge of the probable cause showing made in support of the eavesdropping orders until September 15, 1969. Mr. Pugach then established that on both September 3 and 11, 1969, the Bronx District Attorney answered "ready" to a calendar call, indicating his ability to proceed with a similar New York hearing. In that hearing the State also relied in large measure on Detective Savino's testimony to prove that a showing of probable cause had been made to obtain wiretap orders from the same judges. Moreover, the probable cause showing for the eavesdropping and wiretapping orders was virtually the same.
However, evidence elicited by the petitioner from Bronx Assistant District Attorney David S. Blatt explained that the District Attorney's office planned to go forward on aspects of the state hearing relating to prejudicial publicity. He further disclosed that the District Attorney was prepared to show that unlawful wiretapping did not taint the conviction even assuming that the underlying affidavits for the wiretapping orders were insufficient to show probable cause.
Assistant District Attorney Arnold Kideckel, in charge of the Appeals Bureau of the office, testified that he had learned in an April, 1969, conversation with Assistant District Attorney Alexander Scheer, the prosecutor in the Riss maiming case, that another officer besides the deceased Lieutenant Weldon had appeared before Judge Schultz to obtain the orders. Scheer, however, was unable in April to recall the other officer's identity. It was this information, apparently, which sparked the search for Detective Savino, who was then presented as a witness in both the Bronx County and these federal court hearings. It is evident that this was a late discovery of important testimony. However, this circumstance is not improbable considering that these were the first times that hearings were ordered. There is no factual basis for the petitioner's accusation that there was perjury or wilful fabrication on the part of all these public officials and officers.
Having also had an opportunity to observe and evaluate the demeanor of all the witnesses on the stand, the Court finds from all the evidence that the testimony of Detective Savino and Linda Riss is credible and plausible, and rejects petitioner's testimony and conjectures. The Court finds that sufficient information was communicated by Lieutenant Weldon and Detective Savino to Judges Schultz and McCaffrey supplementing the affidavits herein to show probable cause for the issuance of the eavesdropping orders. The Court notes that whatever may be the value of the evidence as to the window-breaking and narcotics-mailing incidents, the judges who issued the eavesdropping orders were entitled to rely at least upon the victim's recitation of threats made against her by the petitioner, particularly when one of the threats - that the same thing which happened to Victor Reisel would happen to her - so closely paralleled the unusual mode of maiming. Furthermore, the magistrates were entitled to rely on the report of the conversation which Linda Riss recited as had with Sue Eden, since Miss Eden confirmed the story to Savino prior to the entry of any order. Moreover, before the entry of the second order, Mr. Finelle also confirmed the report of his involvement in the Riss matter.
In Berger v. New York, 388 U.S. 41, 55, 87 S. Ct. 1873, 1881, 18 L. Ed. 2d 1040 (1967) the Supreme Court reaffirmed that "probable cause under the Fourth Amendment exists where the facts and circumstances within the affiant's knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed." Furthermore, Berger, established that the required belief is that a particular offense has been or is being committed. 388 U.S. at 58, 87 S. Ct. 1873, 18 L. Ed. 2d 1040. In addition, for the issuance of a valid "search" warrant there must be probable basis for the belief that what is sought to be seized will be discovered at the premises to be searched. Rugendorf v. United States, 376 U.S. 528, 533, 84 S. Ct. 825, 11 L. Ed. 2d 887 (1964). The affiants must recount "underlying circumstances" which will enable the magistrate to make a "neutral" and "detached" inference of the existence of probable cause, United States ex rel. De Rosa v. LaVallee, 406 F.2d 807, 808 (2d Cir. 1969), cert. denied, 396 U.S. 854, 90 S. Ct. 115, 24 L. Ed. 2d 103 (1969); Aguilar v. Texas, 378 U.S. 108, 111, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); United States v. Ventresca, 380 U.S. 102, 108-109, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965). However, an affidavit or a sworn oral showing of probable cause is not to be deemed insufficient because it sets out the observations of another, rather than of the affiant, so long as a substantial basis for crediting the hearsay is presented. Jones v. United States, 362 U.S. 257, 269, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960).
In the instant case, the judges had a substantial basis for crediting the victim's recitation of petitioner's threats against her and his efforts to enlist Miss Eden's connivance in doing the victim harm. A sufficient recitation of the underlying circumstances was made by the two police officers under oath to give the judges a substantial basis for making neutral and detached determinations of probable cause. Probable cause existed to believe that the particular offense of maiming had been committed at the instigation, or at least with the complicity of petitioner and there was probable cause to believe that inculpatory information concerning the case would be discovered by eavesdropping upon his visitors and office.
The Court is mindful in this regard of the admonition in Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 1310, 93 L. Ed. 1879 (1949) that,
In dealing with probable cause, * * * as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.
Recording of probable cause shown
The Court agrees with respondent that the Fourth Amendment does not require that a record be kept of facts told a magistrate which constitute probable cause to issue a warrant for eavesdropping. Petitioner's reliance on Matter of Sarisohn, 21 N.Y. 2d 36, 286 N.Y.S. 2d 255, 233 N.E. 2d 276 (1967),
is misplaced. That decision was explicitly premised on the amendment to § 794 of the N.Y. Code of Criminal Procedure (McKinney's Supp. 1969) added on July 1, 1962, which provides that affidavits in support of warrants "shall contain the statements and information upon which such person relies to establish sufficient grounds for the issuance of the warrant." See New York ex rel. Pugach v. Mancusi (Bronx County Sup. Ct. filed Nov. 13, 1969), N.Y. Law Journal, November 18, 1969. It may well be, as petitioner has argued, that New York was endeavoring to give effect to Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), in amending § 794. However, we are not governed on the constitutional issue by a determination of the New York legislature as to what administrative procedures would insure the protection of Fourth Amendment rights.
Respondent points to the Second Circuit's remand order as implied authority for the competency of evidence of unrecorded testimony supplied to the issuing magistrates to establish probable cause for the issuance of an eavesdrop order. See United States ex rel. Pugach v. Mancusi, 411 F.2d 177, 180 (2d Cir. 1969) 396 U.S. 889, 90 S. Ct. 172, 24 L. Ed. 2d 163 (1969). Respondent also calls to the Court's attention United States ex rel. Schnitzler v. Follette, 379 F.2d 846, 848 (2d Cir. 1967), where an apparently unrecorded oral statement to the judge who issued a search warrant was deemed sufficient to supplement an affidavit insufficient on its face to show probable cause. See also, in this regard, Aguilar v. Texas, 378 U.S. 108, 109, n. 1, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Miller v. Sigler, 353 F.2d 424, 426 (8th Cir. 1965), cert. denied, 384 U.S. 980, 86 S. Ct. 1879, 16 L. Ed. 2d 690 (1966). However, the Court does not rely solely on these cases, which do not confront the issue squarely.
In Gillespie v. United States, 368 F.2d 1 (8th Cir. 1966), the Court addressed itself to the issue. Distinguishing federal cases based on Rule 41(c) of the Fed. R. Crim. P., which hold that probable cause must be determined exclusively on the contents ...