Friendly and Hays, Circuit Judges, and Dooling, District Judge.*fn*
Appellant Freeman was indicted for unlawfully receiving, concealing, and facilitating the transportation and concealment of narcotic drugs, heroin and cocaine, in violation of 21 U.S.C. §§ 173 and 174. Judge Tenney, sitting without a jury, found Freeman guilty of the charge, insofar as it related to liquid cocaine.*fn1 On Freeman's appeal, we are presented with a difficult question concerning the constitutional requirements for obtaining a search warrant.
Prior to trial appellant moved, pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure*fn2 to suppress the evidence, i.e. the narcotic drugs, seized by Federal agents, under the authority of a search warrant, at the time of arrest. Appellant argued that the "warrant was invalid because the affidavit on the strength of which it was issued failed to make a sufficient showing of probable cause." The motion was denied and appellant claims that this ruling was erroneous.
In January 1963, an informant told Agent Benjamin of the narcotics bureau that a man named Spooner and his partner, appellant Freeman, were selling large quantities of narcotics. The informant said that Spooner either lived or worked at 246 West 18th Street in New York City. Benjamin investigated and discovered that Spooner worked as a superintendent at 246 West 18th Street, and lived at 166 West 129th Street.
In early March 1963, Benjamin asked the informant to try to learn where Spooner and his partner kept their narcotics. On March 11, 1963, the informant told Benjamin that he had seen Spooner and the appellant "bagging up narcotics" on a bed in the apartment, previously found to have been Spooner's residence, at 166 West 129th Street.
The informant had been working with the narcotics bureau since 1958 and with Agent Benjamin for about a year. During this time he had provided Benjamin with information leading to eight prosecutions. On the basis of the informant's past activities, Benjamin and other federal agents considered him "reliable."
On March 13, 1963 Benjamin, in support of his application for a search warrant, submitted the following affidavit to a United States Commissioner:
"The facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows: The heroin was seen within the premises on this date by an informant of previous reliability. On March 11, 1963, and March 12, 1963, the occupant of the premises was observed in meeting with known addicts and the aforesaid informant saw him transfer narcotics to known addicts."
The warrant was issued. The evidence which appellant moved to suppress was obtained during the search made pursuant to the warrant.
Appellant attacks the warrant on the ground that the affidavit of Agent Benjamin presented an insufficient basis to justify the Commissioner's determination that there was probable cause for the issuance of the warrant. The affidavit was not made upon personal knowledge and did "not contain any factual information independently corroborative of the hearsay contained therein."
The Fourth Amendment reads:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The Amendment's admonition against unreasonable searches and seizures is reflected in Rule 41(c) of the Federal Rules of ...