United States Ex Rel. Alfred Schnitzler v. Harold W. Follette, Warden of Green Haven State Prison, Stormville, New York
379 F.2d 846
2d Cir.
1967
Check Treatment

*2 Albert Informant tells me that FEINBERG, Cir and Before HAYS male, white, years is 34 Schnitzler a McLEAN, Judges, District cuit and 6', age, approximately 180 of and is Judge.* eyes light and lbs. with hair and blue address, resides at the aforementioned Judge: HAYS, Circuit says Nar- and that he is a seller of appeal of This is an from an order large Marijuana quanti- and in cotics granting petitioner a the district court he ties. Informant further stated that ordering corpus his writ of habeas and present delivery mari- was a of when discharge unless, custody from within juana was to Woodhaven made 62-60 retry thirty days, steps are to taken and it in ex- Blvd. believes that him. of cess 50 lbs. serving Petitioner of is a sentence immediate Informant believes years five to in Haven fifteen the Green premises 62-60 Woodhaven search of upon Prison in the conviction New Schnitzler, Blvd., occupied Albert Queens Supreme Court, York State Coun- Schnitzler since Albert should be made ty, charge possession of a of felonious of large marijuana in deals narcotics and judg- narcotics with to sell. The intent dispose only, quantities can of and unanimously ment of af- conviction was shipment a short in aforementioned opinion by Appellate firmed without time. Division, Department, People Second v., foregoing reli- upon the 3. Based Schnitzler, A.D.2d 272 N.Y.S.2d 26 my upon personal (1966). able information and of The New York Court knowledge probable cause there affirmed the conviction a namely property Nar- believe that such three, of four vote 18 N.Y.2d may Marijuana be found and and (1966). cotics 276 N.Y.S.2d 223 N.E.2d 28 possession of Albert Schnitzler in granted The district court of a writ Blvd. premises 62-60 or at Woodhaven corpus ground habeas on there request Wherefore, respectfully showing was an insufficient of and a warrant the court issue the issuance of a search war- annexed, seizure, form and, order of therefore, rant a seizure of Albert authorizing of quantity search marijuana of after a search person Albert of petitioner’s Schnitzler and premises of on the based premises of 62-60 warrant, Schnitzler and and the introduction in evi- person occupied petitioner’s Blvd. Woodhaven dence at of trial the seized directing if marijuana, herein petitioner’s named and invaded Fourth any part property or such or evidence rights. Amendment seized it be thereof found be We reverse the determination of together brought court; before district court we believe because relief such other and further showing of cause for the may proper. deem the court adequate. issuance of the warrant was application mat- previous in this No on affidavit the basis of which any other or made ter has been the search issued read fol- warrant justice any judge, or or to other court lows: magistrate.” City “1. am New a Detective issued the warrant who York, Narcotics Bureau. hearing motion a testified at upon suppress that at the have information based the seized evidence application confidential informant for the warrant time of the years age, told questioned Al- affiant and named M/W/34

* by designation. York, sitting theOf Southern District meaning reliable that the the officer’s statement as believing already but that an arrest had been effect: “There is a basis in the case. this informant because an arrest has already made, thereby proving that been or resolution of doubtful “[T]he supplied the information is reliable.” marginal cases in this area should be *3 showing probable find that of We the largely by preference determined the adequate cause and therefore re- was to v. be accorded to warrants. Jones the district verse the determination of States, supra 257]

United [362 U.S. court. 725, at 270 S.Ct. 4 L.Ed.2d [80 697].” Ventresca, United v. 380 U.S. States FEINBERG, Judge (dis- Circuit 102, 109, 741, 85 L.Ed.2d S.Ct. 13 senting) : (1965). 684 respectfully dissent. present “In cases such as the close very one the Because the in fact that the Commis detective’s affidavit support of sioner found is itself the warrant in this case did cause tending uphold not meet the standard of substantial factor constitutional Aguilar 108, validity Texas, the he issued.” of 378 U.S. the warrant Ramirez, 1509, (1964), 84 F.2d S.Ct. 12 L.Ed.2d States v. 279 723 712, (2d Cir.), denied, Judge Agui- I would affirm In 716 cert. 364 Bonsai. lar, 850, 95, U.S. 81 L.Ed.2d 74 the Court said: 5 S.Ct. (1960). magistrate [T]he must be informed clearly Here the affidavit is sufficient underlying some of the circumstances but for of the the failure affiant from which informant concluded the state the basis in in- for his belief the that the narcotics where claim- were reliability. formant’s We believe they were, ed some of the under- and present defect was cured in the case lying the circumstances from which by issuing affiant’s statement to the informant, officer concluded that the judge already that an arrest had been disclosed, identity whose need not be made. Rugendorf States, see v. United 376 528, 825, U.S. 84 11 S.Ct. L.Ed.2d by are the We instructed Su 887, was “credible” or his information preme requirements Court that the 114, “reliable.” at 84 [378 U.S. S.Ct. upon based “the fac are 1514; at footnote omitted.] practical every tual and considerations of day prudent majority correctly life on which The “the reasonable states that men, legal technicians, act,” Brinegar clearly not affidavit sufficient but States, 160, 175, v. United 338 U.S. 69 failure of the S. affiant to state 1302, 1310, (1949), Ct. basis reliability.” 93 L.Ed. 1879 for his belief in the informant’s magistrate prob However, Aguilar, that “when a has found under cause, able the courts should not invali this is a sizeable “but”—indeed a con- by trolling interpreting date the warrant the affi here. hypertechnical, davit in a rather than a majority gap fills the conceded commonsense, manner.” United States v. ambiguous in the affidavit with an oral Ventresca, supra, 380 U.S. at 85 contemporaneous statement de- S.Ct. at 746. See also United States v. judge tective had “an arrest Freeman, (2d Cir.), 358 F.2d 459 cert. already been How- made the case.” denied, 385 17 87 U.S. S.Ct. ever, way in no detective related (1966). L.Ed.2d 109 reliability. arrest to As informer’s If, case, Judge present pointed in the we eschew Bonsai excellent out his opinion, approách F.Supp. technicalities and with com- the detective judge monsense not did not the affidavit but the that the informant accomplice, statement of an the affiant on the informant which relied, arrested, give any also we should had been or reasons construe independent ex- You no the informant his conclusion D’Arpe, majority de- amination of Detective reads reliable. though you? had tective’s statement ****** said: independent believing not make an in- I did There is a basis for examination, already in the facts because the formant because an arrest has sufficient, my opin- made, thereby proving affidavit were been supplied ion. information he is reliable. confi- why comprehend Did he tell But an un- do accomplice?

specified “proves” dential arrest the infor- probable cause, nished, mation And even no reason to made on assumption on no information is a boot- liable. uncovered narcotics? informer ? Is it supplied Is it because the other arrest was what if make does the other arrest was on with because cause? that the informer was such no other Making prove the other arrest an If assumption. *4 so, about link fur- we have such re- an made an arrest an arrest not. him out in based on that arrest warrant [******] Q. believe he You didn’t immediately, of, signing a did of someone and told me ask him who he you? he needed a search and would search A. that he No, warrant. I I help that had did strap aon bootstrap. [******] Q. this [affi- And tell me whether Moreover, it does not seem to me that hearsay anything is else but davit] judge who issued the relied warrant informant. from an unidentified on the information had someone The warrant been arrested in ment about a preme in a habeas No, informant was? ber. that —who in the affidavit. ****** Q. Q. judge judge he never Court Did Did Detective testified there as follows: recalled corpus hearing you question issued on year the informant was? assessing probable did, later when the detective’s I would not remem- unless January 8, D’Arpe of New York. him who the it in the Su- testifying is cause. stated state- you A. able A. warrant. word— for itself ? read Judge. officer garding Schnitzler here ? A. [******] ****** [*******] Q. Q. I believe it it the I am Does saw or observed Does A. for the issuance of a same it presence of narcotics No, this affidavit contain asking you say, is sufficient as it doesn’t. You Judge, Doesn’t it have. anything re- a for question, search speak prob- have A. which The affidavit he submitted But, Q. as I stated It A. doesn’t? would be the basis on which would * * * had al- officer before issue the search warrant. ready another had me that he informed person in connection under arrest Q. any ques- You didn’t ask him particular case. this all, you, Judge? tions at did recollection, independent have no but person Q. you who the Did he tell say I will the affidavit that was No, he did not. was ? A. submitted was sufficient me —had Q. But he said he—Did sufficient information me to believe day. arraigned him had this search should have warrant been issued and was issued. [******] preference jority points Judge, is ac- Mr.—De- out ask warrant- D’Arpe put warrants over in his affidavit corded search tective somebody? A. This makes less and searches. had arrested arrests that he assump- sense, only excellent but No. magistrate observes the tion that stenographer tak- no There was obtaining requirements for constitutional proceedings A. No. here? Aguilar Riggan Under a warrant. Thus, judge “did that he Virginia, testified 384 U.S. 86 S.Ct. examination, independent (1966), make warrant 16 L.Ed.2d 431 fatally because the facts in the affidavit were defective. * * judge’s sufficient from the testimony, appears it arrest was that the

mentioned the detective issuing speed

basis for the warrant.1 fairly

It seems clear to me rely about did not on the statement supply an arrest to an essential element reason, good of considering cause—and with ambiguity paucity BOATEL, Donovan, Dep- INC. and P. J. conveyed. the information thus uty Commissioner, Compensa- Seventh *5 words, In other District, reliance now on that Employees’ tion Bureau of Compensation, Depart- afterthought, United States statement is an not even Labor, Appellants, ment of majority opinion of mentioned Appeals York hold Court of legal. People the search DELAMORE, v. Schnitz Appellee. Emile B. ler, 18 N.Y.2d 276 N.Y.S.2d No. 21459. (N.Y.1966). opin 223 N.E.2d 28 That Appeals States Court of majority ion makes clear that the Fifth Circuit. Appeals thought the New York Court of June 1967. because, response warrant valid judge’s question at the of its time issuance, the detective answered reliable, informer N. id. at respect E.2d at court, 30. With all due Judge I feel that Bonsai and the dissenting judges three New York finding right Court were conclusory that a averment of in reliability

former’s is no substantiation

thereof. agree approach that we should these

problems in a common sense manner. vague

But I cannot convert a remark proof

that an arrest had into been made reliability.

of an informer’s ma- Detective thing don’t believe so. you did not intend Q. Did informer’s came before man whom D’Arpe’s testimony Judge you reliability. reliable. the arrest Judge asked I believe the Judge arrested? Glowa me was Glowa when to relate to shows the name if the informant make was. you [*] tell And what did didn’t Was the him believe Judge [*] say Glowa informant —and anything. reliable? [*] he was you about whether say A. reliable? [*] I said what him to [*]