Kalodner, Van Dusen and Aldisert, Circuit Judges. Van Dusen, Circuit Judge (dissenting).
Appellant unsuccessfully sought a writ of habeas corpus in the district court challenging the legality of his confinement by the State of Delaware pending the resolution of extradition proceedings instituted in Delaware by the State of Louisiana. This appeal resulted.
While appellant was incarcerated in Delaware, serving a sentence on an unrelated charge, the Governor of Louisiana demanded his extradition to stand trial on an information charging simple burglary. In June, 1969, appellant was released from custody in Delaware but was immediately rearrested on the Governor's executive warrant. Thwarted in his attempt to obtain habeas relief in the Delaware state courts,*fn1 appellant commenced his present action in the court below which denied relief on the ground that the original affidavit accompanying the Louisiana demand for extradition was sufficient to establish probable cause. United States ex rel. Grano v. Anderson, 318 F. Supp. 263 (D.Del.1970).
Probable cause in the context of arrest warrants depends on the presence of two criteria: (1) the warrant and supporting documents must justify a finding of probable cause to believe that the offense has been committed, and (2) the warrant and documents supporting it must demonstrate a sufficient basis for a finding of probable cause that the party named in the warrant committed the offense charged. See Spinelli v. United States, 393 U.S. 410, 418, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969).
We agree with the district court that the original affidavit by police officers Mantieri and O'Neil which accompanied the extradition demand satisfied these criteria and thus justified a finding of probable cause. We have no difficulty in concluding that the first requirement was met by the averment that a burglary was committed when a safe, located in a building at 3321 Tulane Avenue, New Orleans, was broken into.*fn2 The second criterion was satisfied by the representation of affiant O'Neill, "Lieutenant and Technician for the Bureau of Identification, New Orleans Police Department," that a fingerprint found on the metal box in the opened safe was "positively identified" by him as that of Frank Grano, by comparing the print with those taken of Grano by the Reno, Nevada, police department.
The judgment of the district court will be affirmed.
VAN DUSEN, Circuit Judge (dissenting).
I respectfully dissent. Particularly since the extradition proceeding challenged here seeks to remove relator from his family and home in this Circuit to New Orleans, Louisiana, I believe that he is entitled to the issuance of a valid arrest warrant by the asylum state after the filing of, and on the basis of, the supporting papers required by the applicable extradition statutes. The outstanding arrest warrant issued by the Governor of Delaware on May 19, 1969, is not such a warrant, since the necessary (in my view) supporting affidavits of September 30 and October 1, 1969, were filed after its issuance.
The affidavit of April 14, 1969, on the basis of which the current arrest warrant of May 19, 1969, issued, does not identify the source of the information that a burglary was committed. The source of the information that an offense has been committed must be identified in order to support an independent determination that probable cause exists. Because this case involves a serious constitutional question, and because the consequences of an extradition arrest are generally, and in this case, harsher than the consequences of an ordinary arrest, I am setting out my view at some length.
The majority apparently agrees with the reasoning of Kirkland v. Preston, 128 U.S.App.D.C. 148, 385 F.2d 670 (1967), in which the United States Court of Appeals for the District of Columbia Circuit held that the fourth amendment and its probable cause requirements govern extradition arrests as well as ordinary arrests. Under Kirkland the charging documents accompanying the extradition demand,*fn1 in this case an affidavit, must provide a sufficient basis for a finding of probable cause before the Governor of the asylum state can issue a valid arrest warrant. As a part of this requirement, as the majority notes, those documents must provide a sufficient basis for a finding of probable cause to believe that an offense has been committed.*fn2
The affidavit of April 14, 1969, which serves as the basis for the Governor's arrest warrant, states in relevant part:
T. MANIERI, Patrolman of the New Orleans Police Department, New Orleans, Louisiana, and LOUIS O'NEIL, a Lieutenant and Technician for the Bureau of Identification, New Orleans Police Department, New Orleans, Louisiana, who, upon being duly sworn by the Magistrate did depose and say as follows:
That the defendant, FRANK GRANO, on August 5, 1967, committed a violation of LSA R.S. 14:62 relative to simple burglary of the building and structure located at 3321 Tulane Avenue in the City of New Orleans. Affiants identify the defendant, as the person charged with this violation, from a latent print lifted by Ptn. T. MANIERI from a metal box located inside the safe which had been broken into at the scene of the burglary. This print was positively identified by Lt. LOUIS O'NEIL as that of FRANK GRANO, alias John Franklin, DOB 7/24/34, ...