Lumbard, Chief Judge, and Waterman and Anderson, Circuit Judges.
We affirmed in open court the order of the District Court for the District of Connecticut which granted the petition of James DeNegris for a writ of habeas corpus, on the ground that evidence admitted over his objection at the state court trial, in which he was convicted, had been obtained through the use of an unlawfully issued search warrant.
DeNegris was tried and convicted on March 5, 1964 in the Superior Court of the State of Connecticut on an information charging him with the crime of pool selling (Conn.General Statutes § 53-295). He was sentenced, as a third offender, to a term of one year and was fined $400. The Supreme Court of Connecticut affirmed the conviction, and in so doing, rejected the reasons advanced by the defendant for the insufficiency of the affidavit supporting the search warrant obtained by the State Police.*fn1 State v. DeNegris, 153 Conn. 5, 212 A.2d 894 (1965).
On the present appeal the respondent claims that the trial court was in error (a) in concluding that the petitioner had exhausted his state remedies and (b) in holding that the affidavit, in reliance on which the magistrate had issued the search warrant, was insufficient to meet the requirements for a showing of probable cause under the Fourth Amendment to the Federal Constitution.
With regard to the exhaustion of state remedies, Judge Blumenfeld's discussion of the point correctly analyzes the controlling cases and the principles involved, and properly applies them to the facts of this case. 247 F. Supp. 826, 828-829 (D.Conn.1965). It is necessary only to mention the appellant's complaint, strongly urged on this appeal, that the trial judge ignored the case of United States ex rel. Whiteside v. Slavin, 309 F.2d 322 (2d Cir. 1962). The Whiteside case is clearly distinguishable from the present case, however, because Whiteside had never, in his appeal to the Supreme Court of Connecticut, raised the federal constitutional issues which were the bases of his habeas corpus petition in the United States District Court. In the present case, DeNegris, in his direct appeal to the Supreme Court of Connecticut, fully presented four of the five reasons which he claimed demonstrated that the affidavit, used as the basis for the finding of probable cause, was inadequate, and that, therefore, the issuance of a search warrant was invalid under the Fourth Amendment to the Federal Constitution. The other ground of attack was presented to the Supreme Court of Connecticut in DeNegris' brief and on oral argument, so that the constitutional claim was before that court, which refused to consider it for procedural reasons. It is undoubtedly because of this significant difference that Judge Blumenfeld omitted reference to the Whiteside case.
As to the insufficiency of the affidavit, the trial court's holding concerned the conclusory nature of the informant's statement to the police officers and the fact that the magistrate concluded, not that he himself was satisfied that the affidavit showed the existence of probable cause, but that the police officers had adequate cause to believe there was probable cause.
The portion of the affidavit which mentioned the informant and what he had to say is not distinguishable in nature and scope from that held to be insufficient in Aguilar v. State of Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1963).*fn2 Neither affidavit gave any of the underlying facts on which the informant had based his belief so that the magistrate could have made an independent judgment. In Aguilar the Supreme Court said, however, that if in addition the affidavit had included a report that the premises sought to be entered and searched had been kept under surveillance, the results of which had been disclosed, the case would have been entirely different. The affidavit in the present case fairly implies that there had been some such surveillance which had revealed that there was an automobile in the yard registered in the name of petitioner's wife, and that another car, operated by an unknown white male, registered in her name came into the yard. It also disclosed that someone, presumably the police, observed a black Cadillac, owned by a third person and driven by one Russo, arrive at the house "at a time when gaming operations are normally conducted." It reported that the house was the middle one of three identical houses with two telephone wires running to it, and that it was a "one-family combination ranch and split level, color red and white, with a stone front." It is our opinion that the fruits of this surveillance were not, standing by themselves, sufficient to support a finding of probable cause; nor were they, considered in connection with the informant's statements, enough of a confirmation of the reliability of those statements to furnish a substantial basis for the existence of probable cause. Of course, other matters set forth in the affidavit might be used to support and to some extent explain and justify the informant's conclusions. The Connecticut court laid considerable emphasis upon the unusual circumstance that two telephone lines ran to "an apparently modest dwelling." But the description of the single family dwelling in the affidavit does not show it to be so cheap and small and in such a poor neighborhood or surrounded by other circumstances that make it obviously incongruous for two telephone lines to be connected with it. There are innocent reasons why even a modest house may have such telephone connections.
The only other facts mentioned in the affidavit are that the house charges for electricity were billed to the petitioner and his wife under pseudonyms; and that the water bill for the house was under another name at a different address. It is not clear what inference can be drawn from this in view of the fact that petitioner was listed in the city directory and with the telephone company (although with unlisted numbers) as living in the searched premises, and the automobiles were plainly registered in the wife's name. The affidavit also disclosed that the petitioner and his wife had been listed in the police records as having been "charged" with pool selling in 1960. There is no mention of the disposition of the charge and, as the record stands, it cannot be taken as even hearsay evidence that petitioner actually engaged in gambling activities in 1960. At best, it only implies that the police suspected them of gambling activity at that time. It may be noted that the petitioner in the present case was charged as a third offender; why the two prior convictions were not mentioned in the affidavit is not clear. This would have given support to inferences to be drawn from other statements contained in it. But we cannot consider these prior convictions because "the reviewing court may consider only information brought to the magistrate's attention." Aguilar v. State of Texas, supra, at 109, 84 S. Ct., at 1511, footnote 1.
None of the factual recitations of the affidavit, therefore, redeem the informant's statement from its obvious insufficiency in the light of the Aguilar case; none of them furnish a substantial basis for confirming the conclusions which the informant expressed.
The other difficulty with the affidavit and the magistrate's finding concerning probable cause is the assumption that the essential prerequisite to the issuance of a search warrant is that the police officers must be satisfied that there is probable cause, when the clear, mandatory constitutional requirement is that the search must be based upon the magistrate's determination of probable cause and not on that of the police officers.
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U.S. 10 at 13-14, 68 S. Ct. 367, 369, 92 L. Ed. 436 (1948).
"The purpose of the complaint, then, is to enable the appropriate magistrate * * * to determine whether the 'probable cause' required to support a warrant exists. The Commissioner must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept without question the complainant's mere conclusion * * *." Giordenello v. United States, 357 U.S. 480 at 486, 78 S. Ct. 1245, 1250, 2 L. Ed. 2d 1503 (1958), cited in Aguilar v. State of Texas, supra, 378 U.S. at 112, 84 S. Ct. 1509.
The appellant argues that in the present case the magistrate actually did make his own finding that there was probable cause, because after stating that the police officers "made solemn oath * * * that they have probable cause * * *" he went on to say, "and said court finds that said complainants have adequate cause for such belief." It may well be that the magistrate was himself satisfied that probable cause existed and maybe that is what he meant; but he never said so in explicit terms. He never said that on the basis of the affidavit he, the magistrate, found probable cause. What he did say makes it clear that it is the police officers' finding of probable cause that he is talking about; and, although by saying that they had adequate cause for their belief, he may have also been expressing his own belief that probable cause existed, that is far from certain. In fact, the more likely interpretation of the wording used is that the magistrate was satisfied that there was, at the time within the knowledge of the policemen, enough basic evidential material for them to draw certain inferences ...