*2 supporting low found that the statement Before BIGGS and KALODNER, Cir- for a warrant was defec- Judges, WHIPPLE, cuit District (1) tive because: it contained no infor- Judge. establishing mation reliability (2) informant; facts devoid OPINION OF THE COURT explaining underlying information, (3) the informant’s PER CURIAM: police corroborating officers’ infor- 576, F.Supp. court mation below 312 was insufficient raise the in- granted corpus ap- habeas relief to the formant’s level of pellee, relator, Henderson, Aguilar, Edward who supra. is confined to a correctional institution carefully We have reviewed the record Philadelphia. year A one ten sen- considering the affidavit its en- imposed County tence had been tirety, opinion are of we Montgomery, charging burglary, larceny ble cause did exist for issuance of conspiracy burglary. to commit warrant, upon the search the cor- based granted peti- The District Court roboration of the sub- sequent investigation. tion of Henderson the search Drap- because See 307, Court for 79 S. the United States District 358 U.S. er v. United Brinegar Pennsylvania. 329, On Eastern District (1959); 3 327 L.Ed.2d Ct. granted 23, September 160 at the Court United States theory page that “the search page writ on 69 S.Ct. 1302 Ryan by Detective subscribed to L.Ed. 1879: ”* * * “ * constitutionally * * defective. *3 exists Probable cause re- a warrant The where “the facts and quested permission “1959 search a to within their [the officers’] white, painted Pa. Lincoln Conv. reasonably they and of which by 82419 P” owned Henderson. suffi [are] items, revealed, among search other a man in cient themselves to jacket mink with initials “L.H.A.” in the belief reasonable caution imprinted lining. It was later being that’ an has or is offense been jacket was determined mink States, Carroll v. committed. United stolen the residence of Mrs. Louise from 132, 162, 280, L. 69 267 45 S.Ct. U.S. Paper in Altman Mill Road at 1405 (1924). Ed. 543” Township. Mrs. Altman the District Court order jacket in testified that found Hen- granting petition writ of for a by automobile owned her. derson’s corpus habeas on therein terms stated timely made a motion before Henderson and remanded will be reversed the cause suppress trial the introduction into to to the to District Court with directions items5 evidence or the to all reference denying petition. an enter order by seized his automobile. This and evi- motion was denied Judge (dissenting). BIGGS, Circuit dence later at trial. introduced my view, majority In has failed to to order determine whether pertaining the validi- follow rules denying trial court erred in motion ty of search warrants as enunciated necessary suppress, to examine Texas, Supreme Aguilar in Court provided probable the statement of cause 108, 1509, 12 L.Ed.2d 84 S.Ct. who issued search States, United 723 and warrant: 584, 410, 393 89 21 L.Ed.2d 637 U.S. S.Ct. assigned “The received information (1969). to the ef- source confidential indicted, tried Henderson was fect that Edward Henderson PP larceny,2 burglary1, convicted 27,4778 # who record of ar- has a 17 conspiracy burglary,3 in commit rests, burglary 4 of which are for Oyer Court of of Mont- Terminer Raymond Mann PP (cid:127)# who has 272931 gomery Pennsylvania, County, on June a record of 9 which are arrests 7 of 24, 21, April 1966 and 1967 sentenced on burgla- burglary years.4 to a term of one to ten After greater ries in the Phila. area. Pennsylvania Superior Court undersigned personally did observe quashed appeal, Penn- pick up Mann on Wed. 12-22-65 Hen- sylvania Supreme Court affirmed. his N. derson at residence 4506 Hicks 13, 1969, May On assigned Henderson filed again St. 12-29-65 On petition corpus for a writ habeas Mann, tap coming out of observed 1. 18 P.S. 4901. jacket, § 5. Aside from the mink the search produced flashlights, two three screw- 2. 18 P.S. 4807. § drivers, pair gloves, work one brown grips, tag pair one ice license one 3. 18 P.S. § than the one issued to Lincoln. Although trial, tending Henderson was also At there was some evidence indicted receiving goods (18 stolen seized P.S. establish one § 4817), Judge gain the Trial directed a not had been used to en- screwdrivers guilty verdict on this count. to the Altman residence. trance

1138 therein does

room on the córner of 15th and the information contained S.W. Wingohocking appear company it- with within the search warrant St. Henderson, got appear from the into car self and it does not vicinity. brought On Dec. record alone and left the that these matters were 30th, assigned magistrate’s company 1965 the attention Giordenello 715, Snyder MOD, with Det. # ob- v. United 78 U.S. subjects Thus, served the car mentioned 2 L.Ed.2d 1503 parked Wingohocking question above St. of whether cause parked by comparing east of 15th also observed existed St. must answered Wingohocking on 15th St. north in the St. affidavit instant with a 1960 Rambler Sdn. Pa. 454-44P this standards set forth in being supra. car one At used Mann. 5:30 P.M. observed Hen- 12/30/65 Goldberg, speaking Mr. Justice for the *4 tap derson & Mann out come Aguilar, Court in stated what is of- now Wingohocking room get 15th SW & Sts. Aguilar’s ten two-pronged called test: respective into their cars a mobile “Although may an affidavit be surveillance led was conducted which hearsay based on information and Springfield Twnsp. at which location personal need not reflect direct ob- the parked the Rambler was on observed * * * affiant, the servations of Harston La. at 7:15 P.M. the Lincoln magistrate the must informed [sic], up Snd. was drive [sic] underlying some of the circumstances [sic], stop Rambler P Sdn. Pa. 45544 from which the informant concluded Raymond get and allow Mann to he out * ** that the [law been vio- got in turn into the Rambler and both being violated], lated or was and some cars made “U” turns and out drove underlying turning of Harston La. at the cor- which the officer concluded that going opposite ner and directions. * * * informant ‘credible’ or Agt. Arbury Williams, Plcmn. James ” his information ‘reliable.’ 378 U.S. Boyle Snyder stopped and Det. Mann (Footnote at omitted.) 84 S.Ct. at 1514 after a short at Franklin & chase Rd. Pike. Bethlehem All of the above ac- It is tip clear that the informant’s in the assigned tions indicate to the that the inadequate instant is under the person’s [sic] mentioned were in the two-pronged (1) test for is not there process committing burglary or a even a bold in the assertion coming burglary. that the confidential informant was reli- Ryan John F. /s/ able, let alone a statement of the under- #760, Major Detective Crimes Div.” lying circumstances from which Detec- Snyder Ryan Detective testified at trial that tive concluded that he “relia- following while ble” or and Mann’s “credible” and there is no cars on December underlying he observed statement of the circumstan- looking up them along houses ces from which informant conclud- appellant’s road. appears ed brief that Henderson was bur- glaries greater statement that per- Philadelphia “informant was in the area. sonally Ryan known to Detective both if affidavit does not even indicate Sny- and his knowledge coworker personal Detective Charles the informant had * * * der burglaries as a reliable informant if he or came the in- since he had indirectly. Finally, “tip acted as a confidential formation source of previous information on occa- [does describe the accused’s crimin- not] proved sions said activity information relia- al in sufficient that detail ble.” Neither this may statement nor the that know he infor- [the any aforementioned relying something are of on is more mant] sub- value determining in circulating whether the war- stantial than a rumor casual rant cause, based on in or underworld an accusation allegations only general way. These that show merely an individual’s on based in and Mann supra, affiant followed Henderson reputation.” Philadelphia respective cars from their 416, 89 at 589. Township. taproom to Although tip is clear- parked Mann’s car later seen Aguilar, nec- still ly deficient under is Springfield Township. in Harston Lane essary affidavit whether ascertain drop Henderson affiant observed in set forth meets the test at his car and both off watched tip an informant’s affidavits based on agree leave I with cars the scene. personal affiant: are District activities Court these inadequate under found “If is “entirely consistent with lawful conduct allegations Aguilar, the other they part both and that men” contained corroborate the adequately infor- fail corroborate the report hearsay then be should in allegation only tip. mant’s well, stage At considered. affidavit is statement several however, enunciated standards stopped Mann after officers magistrate’s inform the must allegation But short chase. even fairly ask: Can it decision. must He adequately fails to corroborate the infor- tip, when certain be said even mant’s for there no statement parts of been corroborated it have trying affidavit that Mann was sources, independent is as *5 escape police Even from officers.6 Aguilar’s tip pass would as which allegation if it can inferred be from this independent corrobora- tests without escape trying that Mann to stage tion ? is at this relevant police, adequately this does not cor- inquiry of because the as well tip roborate that Henderson was designed tests it establishes although burglaries, admit- long-standing princi- implement tedly, many possibe one infer- is ple probable be de- that cause must ences. Another is inference that by and detached a ‘neutral termined thought that no had reason magistrate,’ by ‘the officer en- attempting stop him and were thus gaged competitive often enter- make an unlawful arrest. prise ferreting out crime.’ John- It should also be that noted 10, 14, son v. United date of for the search war- 68 S.Ct. 92 L.Ed. 436 rant, affiant had no A cannot said to have occurring burglary Paper at 1405 discharged properly constitutional Thus, information, Mill Road. duty tip if he relies an informer’s appear which did not in the search war- partially which —even when corrobo- rant, cannot be used to corroborate not as one rated —is reliable as tip. Finally, informant’s recitation passes Aguilar’s requirements when in the affidavit of arrests standing 415-416, alone.” 393 U.S. at by tip. does not itself corroborate 89 S.Ct. at 588-589. allegations bar, conclude, In the then, I that (aside from the statement of the infor- when corroborated to ex- —even tip) support mant’s do not the in- both tent indicated- —was not sufficient generally provide finding ference that the informant the basis allega- itself, informant ble cause. detailing obtained independent his information a reliable tions in- the FBI’s suppress In both the motion to evidence car was able to elude this road block. trial, was, however, there was None of this information Sergeant provided and, previ- one Williams of the in the affidavit Township Department attempted ously indicated, legally insignificant Police stop approaching determining Mann’s vehicle existence blocking an intersection and that Mann’s cause. vestigative great were a deal efforts

more corroborative the informant’s operating “Spinelli [was] wagers accepting dis-

handbook and wagering seminating information” assigned telephone

means of two num- allegations

bers than are in the in-

stant case. reasons,

For all of I above would

affirm the order of the District Court

granting corpus. the writ of habeas Seagal Wheatley, Atty., V. U. S. San Antonio, Tex., Hollander, Morton William Appier, Attys., Dept, D. Justice, Wash- ington, C., Gray, III, Patrick Asst. D. L. Atty. Gen., Washington, Dept, Justice, COMPANY,

SWIFF-TRAIN Plaintiff- C., defendant-appellant. D. Appellee, Efron, Antonio, Jack Tex., A. Lev- San ey Goldstein, Antonio, Tex., & San America, UNITED STATES of plaintiff-appellee. Defendant-Appellant. TUTTLE, Before No. THORNBERRY *6 INGRAHAM, Judges. Circuit Appeals, United States Court of Fifth Circuit. TUTTLE, Judge: Circuit June appeals

The United States judgment against rendered it in favor of brought Company Swiff-Train alleging it action under Tucker Act party beneficiary was a third con- of a tract entered Sam into between the Fort Houston Guest House Fund and Midwest Carpet It is clear Distributors. carpeting Swiff-Train furnished guest payment made house and that contrary agreement Mid- between and the west Fund. government’s facts as stated

brief, accepted the statement of which is appellee, are as follows: Sam “The Guest Fund at Fort House Houston, Texas, non-appropriated a activity organized provide tem- fund porary military accommodations guests personnel, their relatives visiting patients or at Brooke base Army Hospital. Non-appro- General D.C., See F.Supp. also priated fund are unincor- activities