Moore, Smith and Timbers, Circuit Judges.
On this appeal by the State of Connecticut from an order of the District Court for the District of Connecticut, M. Joseph Blumenfeld, Chief Judge, granting a state prisoner's petition for a writ of habeas corpus and ordering his discharge from custody unless the State within 20 days vacated his conviction and scheduled a retrial, the chief issue presented is whether probable cause for the warrantless arrest of petitioner was provided by three tips given to the police, at least two of which failed to meet the requirements for probable cause, but the three, when viewed in conjunction, had a "kind of 'internal corroboration'", as Judge Blumenfeld observed. We hold that the series of three tips, coming from at least two sources, provided the requisite probable cause for the arrest of petitioner without a warrant.
A related issue is whether there was probable cause for the warrantless search of the truck petitioner was driving immediately prior to his arrest. We hold that there was; and, alternatively, since there was probable cause for petitioner's arrest, that the search was proper as incidental to a lawful arrest.
James Raffone, Sr. (hereinafter, "Raffone") on May 12, 1967 was convicted, after a jury trial in the Superior Court for New Haven County before Hon. Herbert S. MacDonald, on two counts of larceny in violation of Conn.Gen.Stat. § 53-63 (1958). He was sentenced to not less than 5 years and not more than 10 years on one count, and to 2 years on the other count; his effective sentence therefore was not less than 5 and not more than 12 years. On May 4, 1971, the Supreme Court of Connecticut unanimously affirmed Raffone's conviction. State v. Raffone, 161 Conn. 117, 285 A.2d 323 (1971). Later in May, Raffone's motion for reargument was denied.
Included among the numerous claims ruled upon by the Supreme Court of Connecticut on Raffone's direct appeal were the alleged lack of probable cause for his warrantless arrest and the consequent lack of probable cause for the warrantless search of the truck he was driving immediately prior to his arrest. These claims were specifically rejected by the Supreme Court which held that there was probable cause for the arrest and for the search; and that the search, being incidental to a lawful arrest, was proper. 161 Conn. at 122-23, 285 A.2d at 327. In so ruling, the Supreme Court affirmed the pretrial denial by Hon. Philip R. Pastore of Raffone's motion to suppress and the denial at trial by Judge MacDonald of his renewed motion to suppress. Thus, prior to Judge Blumenfeld's decision on Raffone's habeas corpus petition, seven Connecticut state court judges -- five justices of the Supreme Court and two judges of the Superior Court -- had heard and rejected Raffone's claim of lack of probable cause for his arrest and the search of the truck.
On June 11, 1971, Raffone filed his petition for a writ of habeas corpus in the district court. Although various claims were alleged in the petition, the chief ones pressed were the alleged lack of probable cause for the arrest and search. Both sides having agreed to submit on the state court record, no evidentiary hearing was held. On September 24, 1971, Judge Blumenfeld filed his decision granting the petition for a writ of habeas corpus and ordering that Raffone be discharged from custody unless within 20 days the State vacated the judgment of conviction and scheduled an early retrial. From that decision and order the instant appeal was taken by the State of Connecticut. On October 14, 1971, the district court released Raffone on bail pending this appeal.
The undisputed facts relevant to the issues before us may be briefly summarized. They are the same as were before the Connecticut state courts and before the district court below.
On November 9, 1966, there was reported to the Hamden police the theft of about 590 Allstate snow tires and 185 cases of antifreeze from the Sears Roebuck store in Hamden. The stolen merchandise had been stored in a semitrailer which was parked against the rear of the store. The merchandise was stolen by taking the entire semitrailer which later was found in Hartford.
On November 23, 1966, Allied Distributors, also in Hamden, reported to the Hamden police that a truck containing a quantity of copper tubing and plumbing supplies had been stolen from its premises.
On November 26, 1966, Raffone and two other men*fn1 were arrested in Milford in front of the Milford Auto Wrecking Company where Raffone had parked a truck he had just been operating. In the truck, which Raffone opened at the request of the police, were approximately 20 Allstate tires, copper tubing, gutters, tools, lead ingots and leaders. The coils of copper tubing were stamped with the name of Allied Distributors and were later identified as having been stolen from Allied ...