ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE (D.C. Crim. No. 75-136).
Gibbons, Circuit Judge, Clark,*fn* Associate Justice of the Supreme Court, and Hunter, Circuit Judge.
This is an appeal by the United States from an interlocutory order in a pending criminal prosecution suppressing certain evidence. We have jurisdiction pursuant to 18 U.S.C. § 3731. The district court held that the affidavit upon which a United States Magistrate relied in issuing the search warrant was insufficient to establish probable cause to search. Because we conclude that the affidavit was sufficient to establish probable cause to search, we reverse.
On September 8, 1975, at approximately 10:51 a.m., a branch of the Colonial National Bank in Wilmington, Delaware was robbed. The bank, which is insured by the Federal Deposit Insurance Corporation, is located at Maryland Avenue and Chandler Street. Minutes before the robbery Mrs. Maryann Sobocinski, a bank customer, had observed two black men cruising in a black automobile, model year 1973 or 1974, in that vicinity. She made a mental note of the license number of the vehicle "because the neighborhood is predominantly white".*fn1 Mrs. Sobocinski wrote this license number on a piece of paper when she returned to her home and reported it, as well as a description of the car's occupants, to the police when she learned of the robbery. The police ascertained that the reported vehicle was registered to the wife of defendant Alonzo Lee Richard, residing at 122 West 34th Street, in Wilmington. The police and agents of the FBI went to that address at 11:25 a.m. A black Oldsmobile bearing the license number reported by Mrs. Sobocinski was in plain view, and the engine was still hot. Richard was interrogated about the robbery but denied any knowledge of it. He voluntarily accompanied the FBI agents and the police to the bank where Joseph S. Crossan positively identified Richard as the driver of a black car, described as a Pontiac, which he had seen in the vicinity of the bank at the time of the robbery. At the bank show-up Richard was wearing denim trousers and a white shirt with multi-colored polka-dots. After observing Richard, an eyewitness to the robbery in the bank stated that the polka-dot shirt appeared to be the undershirt worn by the negro male who had committed the robbery. The FBI maintained surveillance of the house at 122 West 34th Street and of the black Oldsmobile continuously from 11:25 a.m.
An FBI agent set forth the foregoing facts in an affidavit,*fn2 and requested a warrant to search for "a hand-gun, a nylon stocking mask, [a] blue denim shirt and currency which are believed to have been used in the commission of a robbery of the Colonial National Bank . . . and certain currency which was stolen from said bank. . . ." The Magistrate issued a warrant authorizing the search of the Oldsmobile automobile and the premises at 122 West 34th Street.
The warrant for search of the house was executed at 3:12 p.m. on September 8, 1975. The agents found and seized the following items believed to have been connected with the robbery: one pellet gun, one black silk stocking, one toy silver and black (pistol) handle, one white gym bag marked "Spa Health Club", one burlap bag marked "E-Z Striders" and $1636 in cash which had been hidden in the ceiling of the residence.
The district court, however, held that the facts established by the affidavit, considered in the aggregate, were insufficient to establish probable cause for the issuance of the warrant.
We agree with the district court that the presence of two black males cruising in a car in a predominately white neighborhood is, by itself, insufficient cause for a belief that those persons have participated in a recent crime in the neighborhood. But the affidavit establishes that Mrs. Sobocinski's suspicion, which we might not have shared, led to the identification of a car containing two black males, which was in the vicinity of the bank at the critical time. Following up on what may at the initial stage of the investigation have been nothing more than a hunch, the police and FBI agents obtained, with Richard's cooperation, a positive identification of him as one of the persons who was in the vicinity of the bank at the time of the robbery, and an identification of a distinctive article of clothing he was still wearing as similar to that worn by a participant in the robbery. The affidavit further states that Mrs. Sobocinski observed that the persons cruising in the car wore shirts, one of which is described as medium blue in color. Considering the close time proximity between the robbery and the showup, the Magistrate could properly have concluded that Richard probably had discarded this blue shirt, which might still be in the premises to be searched. An eyewitness to the robbery, Lorraine Marsilli, moreover, identified the robber as a negro male wearing a polka-dot undershirt. Richard, a negro male, was positively identified as being near the bank about the time of the robbery. Within forty minutes of the robbery he was found near his wife's car, which had been recently driven and which was positively identified as having been in the vicinity of the bank at the time of the robbery. When he was found, Richard was wearing a polka-dot undershirt. The witnesses who furnished the information are identified in the affidavit, the circumstances surrounding their disclosures are set forth, and the information furnished by each witness tends to verify that furnished by the other.
The Supreme Court has emphasized that "affidavits for search warrants . . . must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation." United States v. Ventresca, 380 U.S. 102, 108, 13 L. Ed. 2d 684, 85 S. Ct. 741 (1965). Accord, United States v. Harris, 403 U.S. 573, 577, 29 L. Ed. 2d 723, 91 S. Ct. 2075 (1971). Only a probability, not a prima facie case, of criminal conduct need be shown to support the issuance of a warrant. E.g., Spinelli v. United States, 393 U.S. 410, 419, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969); Beck v. Ohio, 379 U.S. 89, 96, 13 L. Ed. 2d 142, 85 S. Ct. 223 (1964); United States v. Gimelstob, 475 F.2d 157, 160 (3d Cir.), cert. denied, 414 U.S. 828, 38 L. Ed. 2d 62, 94 S. Ct. 49 (1973). A magistrate could, on the basis of the facts set forth in the affidavit, reasonably conclude that Richard probably was the negro wearing a polka-dot undershirt who had robbed the bank, and that the instrumentalities and fruits of the robbery probably were concealed at 122 West 34th Street. No more was required.
The order suppressing the items seized in execution of the search ...