"In determining what is probable cause, the Commissioner is not called upon to determine whether the offense charged has in fact been committed. He is concerned only with the question whether there is reasonable grounds to believe at the time of the affidavit that the law was being violated on the premises to be searched. Carney v. United States, 163 F.2d 784, 786, C.A.9th, cert. denied 332 U.S. 824, 68 S.Ct. 165, 92 L.Ed. 400; Aderhold v. United States, 132 F.2d 858, C.A.5th. See: Carroll v. United States, 267 U.S. 132, 161, 45 S.Ct. 280, 69 L.Ed. 543."
He is concerned only with the question whether there is reasonable grounds to believe at the time of the affidavit that the law was being violated on the premises to be searched. Carney v. United States, 163 F.2d 784, 786, C.A. 9th, cert. denied 332 U.S. 824, 68 S.Ct. 165, 92 L.Ed. 400; Aderhold v. United States, 132 F.2d 858, C.A. 5th. See: Carroll v. United States, 267 U.S. 132, 161, 45 S.Ct. 280, 69 L.Ed. 543. When a search warrant is issued, it is not a guaranty that incriminating evidence will be found when the search is made.
In United States v. Trujillo, 7 Cir., 1951, 191 F.2d 853, the affidavit of the government agent stated that the lessee of the apartment to be searched admitted to having been a dealer in marijuana, but had indicated to affiant that now he had none to sell because his source had recently been arrested. See also Merritt v. United States, 6 Cir., 1957, 249 F.2d 19; Aderhold v. United States, 5 Cir., 1943, 132 F.2d 858; United States v. Lashomb, D.C.N.D.N Y 1932, 59 F.2d 809; United States v. Joseph, D.C.E.D. Pa. 1959, 174 F. Supp. 539; United States v. Lester, D.C.W.D.Pa. 1957, 21 F.R.D. 376; United States v. Schwartz, D.C.W.D.Pa. 1957, 151 F. Supp. 399. In the view of the District Court the defect in the affidavit was the failure to include therein a statement explaining affiant's belief that the white powder was narcotics. Clearly the officers accompanying Ioanides to the Commissioner's office should have revealed to the Commissioner by affidavit the results of the chemical analysis of the powder Ioanides brought from appellant's apartment.
See Steele v. United States, 267 U.S. 498, 504-05, 45 S.Ct. 414, 69 L.Ed. 757 (1925); Stacey v. Emery, 97 U.S. 642, 645, 24 L.Ed. 1035 (1878). Next, the facts must support the conclusion that the specific items relate to the commission of that crime and are to be found in the place to be searched. See Aderhold v. United States, 132 F.2d 858, 859 (5th Cir. 1943); United States v. Maestas, 546 F.2d 1177 (5th Cir. 1977). Then the warrant must describe — in a particularity congruent with the supporting facts — the place to be searched and the things to be seized. U.S. Const. amend. IV; see United States v. Shugart, 117 F.3d 838 (5th Cir. 1997).
Where the apparent facts set out in the affidavit were such that a reasonably prudent man would be led to believe that there was a commission of the offense charged, there is probable cause for issuance of the warrant. Carney v. United States, 9 Cir., 163 F.2d 784; Aderhold v. United States, 5 Cir., 132 F.2d 858; Garhart v. United States, 10 Cir., 157 F.2d 777. The Commissioner may take the affidavit as it is presented and need not investigate whether its statements are true.
Siden v. United States, 8 Cir., 9 F.2d 241; Kirvin v. United States, 2 Cir., 5 F.2d 282; Poldo v. United States, 9 Cir., 55 F.2d 866; United States v. Nichols, D.C., 89 F. Supp. 953. And the test is not whether the Commissioner found from the affidavit that probable cause existed, but whether from the facts recited in the affidavit a reasonably prudent individual would have found probable cause to believe that the place to be searched was being used for the commission of the crime named in the affidavit and in the warrant. Carney v. United States, 9 Cir., 163 F.2d 784, certiorari denied 332 U.S. 824, 68 S.Ct. 165, 92 L.Ed. 400; Aderhold v. United States, 5 Cir., 132 F.2d 858; Garhart v. United States, 10 Cir., 157 F.2d 777. There is always the possibility that the Commissioner was given information other than that contained in the affidavit and that his finding of probable cause, either consciously or subconsciously, rested in part upon such information.
The sole question presented on this appeal concerns the "quantum of proof necessary for a showing of `probable cause' for" the issuance of a search warrant ( People v. Marshall, 13 N.Y.2d 28, 31). In People v. Marshall ( supra), Chief Judge DESMOND, writing for a unanimous court, stated (pp. 34-35): "Probable cause exists when there is reasonable ground of suspicion supported by facts and circumstances strong enough in themselves to warrant a cautious man in the belief that the law is being violated on the premises to be searched ( Carroll v. United States, 267 U.S. 132; Dumbra v. United States, 268 U.S. 435; Aderhold v. United States, 132 F.2d 858). It is not a matter for technical rules or tight and exact definition.
But what had to be exhibited here was no more than probable cause for a search, that is, "reasonable ground for belief" ( Brinegar v. United States, 338 U.S. 160, 175; Jones v. United States, 362 U.S. 257, 269; United States v. Heitner, 149 F.2d 105, 106). As to search generally the Supreme Court has said: "It is enough if the apparent facts which have come to his [the officer's] attention are sufficient, in the circumstances, to lead a reasonably discreet and prudent man to believe that liquor is illegally possessed in the automobile to be searched" ( Husty v. United States, 282 U.S. 694, 701). Probable cause exists when there is reasonable ground of suspicion supported by facts and circumstances strong enough in themselves to warrant a cautious man in the belief that the law is being violated on the premises to be searched ( Carroll v. United States, 267 U.S. 132; Dumbra v. United States, 268 U.S. 435; Aderhold v. United States, 132 F.2d 858). It is not a matter for technical rules or tight and exact definition. The question always is: what in the common judgment of reasonable men would be regarded as good, sound cause, remembering that we seek only probable, not absolute cause? Only the "unreasonable" searches and the warrants signed without "probable cause" are forbidden by the Fourth Amendment. "We are concerned only with the question whether the affiant had reasonable grounds at the time of his affidavit and the issuance of the warrant for the belief that the law was being violated on the premises to be searched; and if the apparent facts set out in the affidavit are that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant" ( Dumbra v. United States, 268 U.S. 435, 441, supra; Henry v. United States, 361 U.S. 98, 102). Whether probable cause is present in a particular case must be determined from
wiretap police seized evidence during the search of an apartment at 502 Linwood Avenue in the City of Buffalo. The search warrant was based substantially upon information secured through a previously authorized wiretapping of two telephone numbers listed to one other than defendant. The wiretap warrant was issued upon the affidavits of the District Attorney and a police officer named Derrico. The District Attorney's affidavit was entirely upon information and belief, the source of which was Officer Derrico. The dispositive issue in this appeal is whether the affidavits upon which the search warrant was granted contained the quantum of proof required for a showing of probable cause, which "exists when there is a reasonable ground of suspicion supported by facts and circumstances strong enough in themselves to warrant a cautious man in the belief that the law is being violated on the premises to be searched ( Carroll v. United States, 267 U.S. 132; Dumbra v. United States, 268 U.S. 435; Aderhold v. United States, 132 F.2d 858)" ( People v. Marshall, 13 N.Y.2d 28, 34). The People strongly urge that the decision in People v. Gnozzo ( 31 N.Y.2d 134) requires a reversal of the order which suppressed the evidence.
The then applicable section 793 of the Code of Criminal Procedure provided that "A search warrant cannot be issued, but upon probable cause, supported by affidavit, naming or describing the person, and particularly describing the property and the place to be searched". The Court of Appeals has stated that "Probable cause exists when there is reasonable ground of suspicion supported by facts and circumstances strong enough in themselves to warrant a cautious man in the belief that the law is being violated on the premises to be searched ( Carroll v. United States, 267 U.S. 132; Dumbra v. United States, 268 U.S. 435; Aderhold v. United States, 132 F.2d 858)". ( People v. Marshall, 13 N.Y.2d 28, 34.) The court in Marshall went on to state that "Whether probable cause is present in a particular case must be determined from the facts of that case ( United States v. Ramirez, 279 F.2d 712, 714, cert. den. 364 U.S. 850)". ( People v. Marshall, supra, p. 35.