Freedman, Van Dusen and Adams, Circuit Judges.
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. 725, 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"*fn1 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.*fn2
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 knowledge*fn3 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.*fn4 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.*fn5 The Appellate Division of the Superior Court affirmed the conviction, and the New Jersey Supreme Court denied Kislin's petition for certification.
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.*fn6
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).
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.
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 ...