429 F.

2d 950

UNITED STATES of America ex rel. Edward J. KISLIN,

46557
v.
STATE OF NEW JERSEY, Appellant.
No. 18454.

United States Court of Appeals, Third Circuit.

Argued June 4, 1970.
Decided July 9, 1970.

Elliot L. Katz, Asst. County Prosecutor, Monmouth County, Freehold,

N.J. (Vincent P. Keuper, Monmouth County Prosecutor, Arnold B. Levin,
Asst. County Prosecutor, Freehold, N.J., on the brief), for appellant.
Edward J. Kislin, pro se.
Before FREEDMAN, VAN DUSEN and ADAMS, Circuit Judges.
OPINION OF THE COURT
ADAMS, Circuit Judge.

When an affidavit in support of a search warrant is based in part on material

supplied to the affiant by an informant there arises a number of thorny
questions under the Fourth Amendment of the Constitution. The United States
Supreme Court has in a number of cases grappled with the problem whether
"probable cause" exists in such cases for the issuance of a warrant. See e. g.
Jones v. United States, 362 U.S. 257, 80 S.Ct. 825, 4 L.Ed.2d 697 (1960);
Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887
(1964); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964);
United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965);
and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637
(1969).

Since Spinelli v. United States is the most recent Supreme Court declaration in
which the Court "attempted to define with more precision the conditions

governing the issuance of a warrant"1 on the basis of information from an

informant, the application of Spinelli to the facts in this case is the primary
concern in the present appeal.2
3

On June 8, 1967, the New Jersey police pursuant to a search warrant conducted
a raid and a subsequent search and seizure at the home of Edward J. Kislin. The
search warrant was granted on the basis of an affidavit by Detective King of the
New Jersey State Police. The affidavit contained the following pertinent
information:

The affiant had good reason to believe and did believe that bets "on the running
of horses being taken and received over a telephone * * * at 41 Victoria Place,"
Middletown, New Jersey, a dwelling occupied by Edward and Esther Kislin,
and that certain property used as a means of committing a misdemeanor in
violation of the bookmaking provisions of N.J.S. 2A:112-3, N.J.S.A., was
located in that house, "said property consisting of pads, paper, slips,
memorandum pads, pens, pencils, monies and other bookmaking
paraphernalia."

The grounds for the affiant's belief as set forth in the affidavit were: (a) Affiant
received information from "a reliable informant who has personal knowledge3
that bets are taken on the running of horses by Edward Kislin over the
telephone at his house located at 41 Victoria Place, Middletown Township,
New Jersey". (b) A surveillance of the defendant's house was made on
seventeen days during May and June, 1967. On those days, Kislin was observed
entering the house about twelve noon and leaving about two p. m. (c) On five
occasions Kislin was observed purchasing horse racing publications at a
newspaper store and returning directly to his home. (d) Records reveal that
Edward and Esther Kislin owned the house at the location stated by the
informant. (e) Records reveal that Edward Kislin had previously been arrested
and convicted of bookmaking in New Jersey. (f) His wife, Esther Kislin, had
previously been arrested and charged with bookmaking. (g) Records of the
New Jersey Telephone Company reflect that the telephone number at the
described house is listed in the name of Leon Kislin.

As a result of the raid, search and seizure, Kislin was indicted by a grand jury
for bookmaking in violation of N. J.S. 2A:112-3, N.J.S.A. Prior to trial, on
December 22, 1967, Kislin filed a motion in the New Jersey Superior Court to
suppress the evidence obtained pursuant to the search and seizure.4 The motion
to suppress was rejected, and the Appellate Division of the New Jersey
Superior Court denied leave to appeal. Kislin was tried before the Honorable
M. Raymond McGowan and a jury on April 2 and 3, 1968, and found guilty.

On May 22, 1968, he was sentenced to two to three years in prison.5 The
Appellate Division of the Superior Court affirmed the conviction, and the New
Jersey Supreme Court denied Kislin's petition for certification.
7

On September 12, 1969, Kislin filed a petition for a writ of habeas corpus in the
United States District Court for the District of New Jersey. The case was
referred to a Federal Magistrate for a report and recommendation. After
comparing the affidavit on which the search warrant was issued with that in
Spinelli v. United States, the Federal Magistrate concluded that the warrant to
search Kislin's house was invalid. Judge Reyneir H. Wortendyke approved the
report and recommendation of the Federal Magistrate, and on November 7,
1969, without a hearing, granted the writ. The State of New Jersey appealed to
this Court.

We begin our consideration with the language of the Fourth Amendment which
states that "no warrant shall issue but upon probable cause". The standard of
probable cause requires a showing of probability of criminal activity.6

A search warrant is not issued upon probable cause if the affidavit upon which
it is issued merely recites that it is the affiant's "suspicion" or "belief" that a
crime is being committed, without disclosure of supporting facts or
circumstances. Nathanson v. United States, 290 U.S. 41, 47, 54 S.Ct. 11, 78
L.Ed. 159 (1933). Nor is there probable cause for the issuance of a warrant if
the affiant relies on information from another person without a sworn statement
of the circumstances surrounding the informant's knowledge or his reliability.
Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The
determination of probable cause must be made by a "neutral and a detached
magistrate" who has information regarding the facts and circumstances upon
which the officer bases his suspicion of criminal activity. Aguilar v. Texas,
supra, Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436
(1948).

10

Spinelli v. United States discusses the criteria for determining whether a search
warrant issued on the affidavit of a police officer who relies in part on
information from an informant satisfies the Fourth Amendment's requirement
of "probable cause". In Spinelli, the Court attempted to clarify its earlier
decision of Aguilar v. Texas, supra, which reversed a conviction based on
evidence seized pursuant to a warrant issued on the affidavit of police officers
that they had "reliable information from a credible person" that various drugs
were on certain described premises.

11

The affidavit in Spinelli contained language regarding an informant's tip similar

11

The affidavit in Spinelli contained language regarding an informant's tip similar

to the language in Aguilar. In addition, however, it set forth various allegations
based on personal knowledge which the government contended supported or
confirmed the informant's information and thus gave the magistrate probable
cause to issue the warrant. The Supreme Court rejected the government's
position and found nothing in the additional sworn statements "which would
permit the suspicions engendered by the informant's report to ripen into a
judgment that a crime was probably being committed". 393 U.S. at 418, 89
S.Ct. at 590. 7

12

The appeal before this Court presents a close case. The State of New Jersey
distinguishes the affidavit here from that in Spinelli; Kislin shows the
similarities between the two. We have compared the affidavits carefully and
consider the affidavit in this case different from that in Spinelli and sufficient to
uphold the warrant. We, therefore, disagree with the conclusion of the Federal
Magistrate that the supporting circumstances in the affidavit here are weaker
than those in Spinelli.

13

The affidavit in Spinelli contained four basic allegations:

14

(1) The FBI had followed Spinelli for five days during one month and saw him
crossing from Illinois into St. Louis, Missouri between eleven a. m. and twelve
fifteen p. m. On four of these days, Spinelli went to the parking lot adjacent to a
certain apartment house between three thirty p. m. and four forty-five p. m.
Spinelli was seen entering a particular apartment in the building on one of these
days. (There was no account of Spinelli's movements between the time he
entered St. Louis and the late afternoon).

15

(2) An FBI check revealed there were two telephones in the apartment Spinelli
entered.

16

(3) Spinelli was known as a bookmaker.

17

(4) The FBI "had been informed by a confidential reliable informant" that
Spinelli was operating a bookmaking business at the telephone assigned to that
apartment.

18

When the Supreme Court examined the Spinelli affidavit, it acknowledged that
the "informant's tip ha[d] a fundamental place in [the] warrant application". 393
U.S. at 414, 89 S.Ct. at 588. The Court said the initial question was whether
that tip met the Aguilar standards. Aguilar requires that the magistrate have

sufficient information to support the statement that the informer is "reliable",

and "a sufficient statement of the underlying circumstances from which the
informer based his conclusion".8 In Aguilar the Court stated:
19

"Although an affidavit may be based on hearsay information and need not

reflect the direct personal observations of the affiant, Jones v. United States,
362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the magistrate must be informed of
some of the underlying circumstances from which the informant concluded that
the narcotics were where he claimed they were, and some of the underlying
circumstances from which the officer concluded that the informant, whose
identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84
S.Ct. 825, 11 L.Ed.2d 887, was `credible' or his information `reliable'." 378
U.S. at 114, 84 S.Ct. at 1514.

20

The affidavit in the present case, as that in Spinelli, stated that the informant
was "reliable", but contained "no reason in support of this conclusion". Spinelli
v. United States, 393 U.S. at 416, 89 S.Ct. at 589. Both affidavits, therefore, fail
the first part of the test in Aguilar. They differ, however, when the statements
are evaluated against the second prong of the Aguilar test. In Spinelli "it [was]
not alleged that the informant personally observed Spinelli at work or that he
ever placed a bet with him." 393 U.S. at 416, 89 S.Ct. at 589, 21 L.Ed.2d 637.
The informant may have relied on information from another source, may have
inferred it, or in fact saw the gambling. The affidavit in this case, however,
states that the informer had "personal knowledge" that Kislin was taking bets.
This statement is admittedly not a detailed statement of the basis for the
informant's knowledge. It is certainly not enough standing alone to support a
finding of probable cause. But it does tend to support a conclusion of first hand
information and thus eliminate one of the concerns of the Supreme Court. In
Aguilar the Court said: "The affidavit here not only contains no affirmative
allegation that the affiant spoke with personal knowledge of the matters
contained there, it does not even contain an affirmative allegation that affiant's
unidentified source spoke with personal knowledge: To all that appears, the
source here merely suspected, believed or concluded that there were narcotics
in petitioner's possession". 378 U.S. at 113-114, 84 S.Ct. at 1513.9 In a footnote
in Aguilar the Supreme Court explained the type of abuse which could occur if
search warrants were issued on the statement that the affiant had "reliable
information from a credible person", without some assurance that the source
had personal knowledge of the facts alleged.

21

"To approve this affidavit would open the door to easy circumvention of the
rule announced in Nathanson and Giordenello. A police officer who arrived at
the `suspicion, belief or mere conclusion' that narcotics were in someone's

possession could not obtain a warrant. But he could convey this conclusion to
another police officer, who could then secure the warrant by swearing that he
had `received reliable information from a credible person' that the narcotics
were in someone's possession." 378 U.S. at 114 n. 4, 84 S.Ct. at 1513, n. 4.
22

The allegations regarding the informant's source of knowledge in this case are
therefore entitled to greater weight than those in Spinelli. Nevertheless, since
there is nothing in the affidavit to explain the reason the informant is
considered "reliable" such allegation is insufficient to establish probable cause.
There must be some allegation in the affidavit tending to confirm the
informant's reliability which is more substantial than that in Spinelli.

23

Unlike the statement in Spinelli that Spinelli was a "known" gambler, the
present affidavit states that Kislin had a prior conviction for bookmaking.
Although a prior conviction alone is certainly an insufficient basis for a
magistrate's finding of probable cause, we consider it different from a suspicion
that one is a "known" gambler. A prior conviction is a fact of record rather than
suspicion based on hearsay. It may be used to impeach a witness at trial.
Although it is inadmissible at trial as evidence of the commission of the crime
charged, there is a "difference between what is required to prove guilt in a
criminal case and what is required to show probable cause for arrest or search."
Draper v. United States, 358 U.S. 307, 311-312, 79 S.Ct. 329, 332, 3 L.Ed.2d
327 (1959).

24

Verification of the informant's information in both Spinelli and in the present

case was attempted by surveillance. The surveillance here was considerably
longer than that in Spinelli 17 days versus five days, and the information
obtained created a greater suspicion than that in Spinelli. Kislin went to his
house around twelve noon and left about two o'clock p. m. the two hours
preceding the starting time at race tracks; Spinelli went to St. Louis
approximately twelve, but his whereabouts were not reported from such time
until he went to an apartment house lot at three or four forty-five p. m.

25

Further support for the officer's suspicion was based on his observation of
Kislin purchasing racing sheets before he went to his house. Independent police
investigation confirmed the reliability of the informant's tip when the
investigator revealed that "Kislin owned the house described by the informant
as the place where bets were taken." Spinelli merely went to an apartment
house five days and was actually observed entering the apartment only once.

26

A footnote in Aguilar distinguished the affidavit in Aguilar, which was held to

be defective, from one which alleges independent verification of the informant's

tip by surveillance. 378 U.S. at 109 n. 1, 84 S.Ct. 1509, 12 L.Ed.2d 723.
Spinelli does not appear to overrule this aspect of Aguilar.
27

We consider the allegations in the affidavit before us sufficient to support a

finding of probable cause,10 in keeping with the language of the Spinelli Court
that "we do not retreat from the established proposition that only the
probability, and not a prima facie showing of criminal activity is the standard of
probable cause * * *; that affidavits of probable cause are tested by much less
rigorous standards than those governing the admissibility of evidence at trial *
* *; that in judging probable cause, issuing magistrates are not to be confined
by niggardly limitations or by restrictions on the use of their common sense * *
*; and that their determination of probable cause should be paid great deference
by reviewing courts." 393 U.S. at 419, 89 S. Ct. at 590.

28

In Spinelli, the Court also accepted the continuing validity of Draper v. United
States,11 supra. Although Justice White noted the possibility of conflict
between the two opinions, Draper has not been overruled. It indicates that
searches based on informant's information may be valid without facts regarding
the source of the informant's knowledge.

29

In Draper, the Court said that an officer could rely upon information received
through an informant rather than upon his direct observation so long as the
informant's statement was corroborated. In that case, the Supreme Court held
that the informant's statement that Draper was carrying narcotics was confirmed
when the officer verified the informant's description of the suspect's appearance
and presence on a given day. If confirmation of an informant's tip was achieved
by such superficial information, then the officers in the present case confirmed
the informants' information about Kislin's bookmaking by their surveillance of
him.

30

It would be quite difficult for the New Jersey police to confirm the informant's
tip about Kislin's bookmaking operation without actually seeing him commit
the crime. They verified he lived and owned the house where the informant
said he took bets, observed him go there about noon and leave about two
o'clock p. m. on the seventeen days of surveillance and saw him bring racing
papers on five of those days. We consider this verification of the same nature as
that in Draper for the type of offense suspected here.

31

As previously indicated, this is a borderline case. But we consider the

following language of the Supreme Court appropriate to this situation:

"Although in a particular case it may not be easy to determine when an affidavit

demonstrates the existence of probable cause, the resolution of doubtful or
marginal cases in this area should be largely determined by the preference to be
accorded to warrants." United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct.
741, 746, 13 L.Ed.2d 684 (1965); Jones v. United States, 362 U. S. 257, 270,
80 S.Ct. 725, 4 L.Ed.2d 697 (1960).12
32

Applying these standards to the facts alleged in the affidavit before us there was
sufficient reason for a magistrate to believe probable cause existed that a
bookmaking operation was conducted on the described premises. Though the
magistrate may have found the affidavit insufficient, there was a substantial
basis from which he would have concluded probable cause existed.13

33

The judgment of the District Court will be reversed.

Notes:
1

Desist v. United States, 394 U.S. 244, 263, 89 S.Ct. 1030, 22 L.Ed.2d 248
(1969) (Harlan dissenting). For some comment onSpinelli see 83 Harv.L.Rev.
177 (1969); 30 U.Pitts.L.Rev. 735 (1969); 10 William & Mary L.Rev. 1004
(1969).

The Fourth Amendment standards apply to the states under the Fourteenth
Amendment. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726
(1969); Aguilar v. Texas, 378 U.S. at 110, 84 S.Ct. 1509

Emphasis added

See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

Kislin has served most of his sentence. The importance of this appeal is the fact
that a valid conviction would make Kislin a two-time offender in New Jersey
and a subsequent conviction would result in greater penalties

See e. g. Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).

Spinelli was a 5-3 decision. Justice White stated that he was concurring to
prevent a tie vote, but expressed doubts about the decision when compared with
Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). 393
U.S. at 423, 89 S.Ct. at 592.

See also United States v. Schartner, 426 F.2d 470 (3d Cir. 1970).

The Supreme Court cited Giordenello v. United States, 357 U.S. 480, 78 S.Ct.
1245, 2 L.Ed.2d 1503 (1958) and Nathanson v. United States,supra.

10

But compare United States v. Flanagan, 423 F.2d 745 (5th Cir. 1970).

11

See also, United States v. Mitchell, 425 F.2d 1353 (8th Cir. 1970).

12

For a recent case disapproving a search without a warrantsee Vale v. Louisiana,

399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970). But cf. Chambers v.
Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

13

Cf. Jones v. United States, supra, 362 U.S. at 271, 80 S.Ct. 725.