United States v. Richard Edward Henkel , 451 F.2d 777 ( 1971 )

ADAMS, Circuit Judge

(concurring).

Although I agree with the result reached by the majority, the continuing and vital importance of Fourth Amendment cases to effective law enforcement impels me to set forth a separate and detailed exposition of my views on one aspect of this critical subject — the sufficiency of affidavits in support of search warrants.

The precise issue confronting us in this case is whether the affidavit in support of the search warrant was sufficient to engender in a reasonable, prudent man the belief that stolen property probably was secreted in the safe deposit box described in the warrant. The affidavit alleged that Henkel had been indicted for a crime by a grand jury, that Henkel had exhibited bizarre behavior with respect to a certain safe deposit box, and that a search of Henkel’s home and automobile had failed to uncover the proceeds of the crime for which he had been charged.

Clearly, the first allegation — that Richard Edward Henkel was indicted for the burglary of a bank — provided adequate justification for the Commissioner’s belief that Henkel probably did commit the alleged crime. And the third allegation —that the proceeds of the burglary were not found in Henkel’s house or car when they were searched by the FBI — is sufficient to establish the reasonable belief that the proceeds of the burglary were probably hidden elsewhere. The remaining question, then, is whether the allegations concerning Henkel’s behavior were sufficient to support a reasonable belief that the stolen property probably was concealed in the safe deposit box, thus providing the missing link for the establishment of probable cause to search the box.

The affiant alleged that approximately six months after the burglary Henkel applied for a safe deposit box in the Mars National Bank located some thirty miles from his home. Although the affidavit recited that the applicant for the box stated his name was Richard Edward, the affiant asserted he knew Richard Edward was in fact Richard Edward Henkel because he compared photographs of Richard Edward taken at the Mars Bank with FBI photographs of Richard Edward Henkel, and because specified officers of the Mars Bank positively identified FBI photographs of Henkel as Richard Edward. The affiant further averred that Henkel carried a large black suitcase when he applied for the box and when he subsequently visited the bank. Finally, the affiant stated that Henkel had not previously done business at the Mars Bank and was not known to frequent the vicinity of that bank.

Under the Fourth Amendment, “before a warrant for either arrest or search can issue [Supreme Court decisions] require that the judicial officer issuing such a warrant be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant.” Whiteley v. Warden, Wyoming State Penitentiary, 401 U. S. 560, 564, 91 S.Ct. 1031, 1035, 28 L.Ed. 2d 306 (1971) (footnote omitted); accord, United States v. Singleton (Mosby), 439 F.2d 381 (3rd Cir. 1971); United States ex rel. Kislin v. New Jersey, 429 F.2d 950, 952 (3rd Cir. 1970). The Supreme Court has admonished that affidavits are to be “tested and interpreted - * * in a commonsense and realistic fashion.” Ventresca v. United States, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965); accord, United States v. Singleton, supra, 439 F.2d at 387 (Adams, J., concurring). I am satisfied that the affidavit in this case, when viewed in a “common sense and realistic fashion”, conveys “sufficient information to support an independent judgment that probable cause exists for the warrant.”

Our recent case of United States ex rel. Gockley v. Myers, 450 F.2d 232 (3rd Cir. 1971), is not to the contrary. The issue in that case was whether independent of the invalid arrest warrant, the police officers who arrested Gockley had probable cause to believe that he had committed the crime of forgery. Although I dissented, this Court there held that where the police had manifested their doubt as to Goekley’s guilt by sending the allegedly forged documents to the FBI for handwriting analysis and that where Gockley’s conduct otherwise was merely suspicious, probable cause for arrest did not exist. Implicit in the Court’s decision was the thought that the forgery arrest was an artifice used by the police to gain custody of Gockley so that he could be questioned closely about certain missing persons. No such factors are present here, and the cases clearly are not analogous.

This being so, I agree with the majority that the allegations concerning Hen-kel’s behavior provide the necessary nexus and thereby justify the issuance of the warrant to search the safe deposit box. Accordingly, it is appropriate that the judgment of the district court be affirmed.