None of these claims, which arose out of the circumstances immediately surrounding petitioner's arrest, entitles him to Federal habeas corpus relief. The facts are set out in this Court's opinion at 234 F. Supp. 543, and will not be repeated here. First, there is his claim that even if Gilhofer did have probable cause to believe him implicated in the Cartier burglary or possessed of its proceeds, the New York City detectives participating in the arrest did not, for Gilhofer omitted to tell them of the overheard telephone conversation between the informant and the man identified by the informant as DeNormand, which conversation formed an essential link in the chain of probable cause.

Having exhausted all state remedies available to him, petitioner next petitioned the United States District Court for the Southern District of New York for habeas corpus relief, contending, first, that evidence consisting of diamonds, the proceeds of the burglary, was obtained by the arresting officers in violation of his federal right to be free from unreasonable search and seizure, and, second, that he had been denied due process when, at a post-trial hearing to suppress the evidence, the state court upheld the prosecution's refusal to disclose the identity of an informer whose telephone conversation with one De Normand, a conversation overheard by FBI agent Gilhofer, had in large part inspired the warrantless arrest of Coffey and De Normand. The facts are set forth in the first opinion of the district court at 234 F. Supp. 543 and are partially restated in the first opinion of our court at 344 F.2d 625; they will not be repeated here. Judge Weinfeld ruled that petitioner's Fourth Amendment rights had not been violated because the facts of record established that the police had probable cause to arrest both Coffey and De Normand.

Having exhausted all available state remedies, Coffey petitioned the United States District Court for the Southern District of New York for a writ of habeas corpus, seeking release from Green Haven Prison on several federal grounds, one of which was the admission of the jewels in evidence against him at his trial. In a characterisically thorough and perceptive opinion, reported at 234 F. Supp. 543 (1964), Judge Weinfeld ruled that, on the state hearing record, the police had demonstrated probable cause to arrest Coffey and DeNormand. However, because probable cause was based in part on tips from an informer whose name the State refused to divulge, Judge Weinfeld held that Coffey had been deprived of his Fourteenth Amendment right to a fair hearing on the issue of probable cause.

See, e.g., United States v. White, 324 F.2d 814 (2d Cir. 1963); United States v. Cimino, 321 F.2d 509 (2d Cir. 1963), cert. denied sub. nom., D'Ercole v. United States, 375 U.S. 967, 84 S.Ct. 486, 11 L.Ed.2d 416 (1964); United States v. Holiday, 319 F.2d 775 (2d Cir. 1963). But see United States ex rel. Coffey v. Fay, 344 F.2d 625, 631 n. 4 (2d Cir. 1965), rev'g 234 F. Supp. 543 (S.D.N.Y. 1964), on remand 242 F. Supp. 382 (S.D.N.Y. 1965), aff'd, 356 F.2d 460 (2d Cir. 1966), cert. denied, 386 U.S. 1014, 87 S.Ct. 1350, 18 L.Ed.2d 450 (1967). Other federal courts have assumed that the requirement of disclosure in particular circumstances is rooted in the constitutional guarantee of a "fundamentally fair" trial.

See, e.g., United States v. White, 324 F.2d 814, 816 (2d Cir. 1963); United States v. Climino, 321 F.2d 509, 512 (2d Cir. 1963), cert. denied, D'Ercole v. United States, 375 U.S. 967, 974, 84 S.Ct. 486, 11 L.Ed.2d 416 (1964); United States v. Holiday, 319 F.2d 755 (2d Cir. 1963). But see United States ex rel. Coffey v. Fay, 344 F.2d 625, 631, 631 n. 4 (2d Cir. 1965), rev'g 234 F. Supp. 543 (S.D.N.Y. 1964), on remand 242 F. Supp. 382 (S.D.N.Y. 1965), aff'd 356 F.2d 460 (2d Cir. 1966), cert. denied 386 U.S. 1014, 87 S.Ct. 1350, 18 L.Ed.2d 450 (1967). In Coffey the issue was explored, but arose in the context of a hearing to determine whether probable cause existed for an arrest rather than the ultimate determination of guilt or innocence at trial, and therefore was not resolved by the Court of Appeals.

Then, petitioner applied to this court for habeas corpus. In United States ex rel. Coffey v. Fay, 234 F. Supp. 543 (S.D.N Y 1964), Judge Weinfeld sustained petitioner's claim that he had been denied a fair trial on the issue of probable cause for arrest by the State's refusal to disclose the identity of an informer. That conclusion was reversed, 344 F.2d 625 (2d Cir. 1965), and the case was remanded for consideration of the other issues raised in the petition.

Thus, the state appellate courts were never called upon to pass upon the issue. Cf. Alford v. United States, 282 U.S. 687, 692, 51 S.Ct. 218, 75 L.Ed. 624 (1931); United States ex rel. Coffey v. Fay, 234 F. Supp. 543, 548 (S.D.N.Y. 1964), rev'd, 344 F.2d 625 (2d Cir. 1965); Priestly v. Superior Court, 50 Cal.2d 812, 330 P.2d 39, 43 (1958); People v. McShann, 50 Cal.2d 802, 330 P.2d 33, 37 (1958). See N.Y. Code Crim.Proc. § 527; Peerless Cas. Co. v. Bordi, 6 A.D.2d 21, 174 N.Y.S.2d 489 (3d Dep't 1958); Nicotra v. John Hancock Mut. Life Ins. Co., 268 App. Div. 1004, 51 N.Y.S.2d 953 (2d Dep't 1944).

It is clear that whether the agents had "reasonable grounds" depends on whether in fact there had been a telephone call from the informer, whether this call gave the agents the information to which they testified, and whether the agents reasonably believed the informer to be reliable. See United States v. Robinson, 325 F.2d 391 (2d Cir. 1963); United States ex rel. Coffey v. Fay, 234 F. Supp. 543 (S.D.N.Y. 1964). Under questioning by counsel for defendant, Agent Manley testified, without any objection by the government, that the name of the informer was Patrick Gonsalves; he also described Gonsalves and testified to his reliability.

Brinegar v. United States, 338 U.S. 160, 175, 69 S Ct 1302, 93 L ed 1879. The defendant also relies upon United States v. Fay, 234 F. Supp. 543, a decision of the United States District Court, S.D. New York. In this case one Joseph Coffey was convicted in the state of New York of the burglary of a jewelry store.