Before BAZELON, Chief Judge, and FAHY and WRIGHT, Circuit Judges.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT 1963.CDC.47
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WRIGHT
Appellant Schoeneman was a small business procurement specialist in the Navy Department. Appellant Markham was a self-employed manufacturers' representative for smaller companies seeking Government contracts. In July, 1960, Schoeneman and Markham formed Washington Procurement Consultants for the purpose of representing small businesses interested in dealing with the United States Government, Utilizing Schoeneman's inside information on Navy procurement. In the course of carrying on this business, Schoeneman supplied Markham with many classified documents dealing with future purchases by the Navy Department. In an attempt to interest one Heins in retaining Washington Procurement Consultants as his company's representative in Washington, Markham, on February 15, 1961, took Heins to his home and displayed to him the classified documents which Markham possessed. Unfortunately for appellants, Heins promptly passed this information on to the Federal Bureau of Investigation.
On June 2, 1961, an FBI agent appeared before a United States Commissioner and applied for a search warrant for Markham's home. The warrant was granted and the search revealed a plethora of highly incriminating evidence. Markham and Schoeneman were indicted and tried jointly. Markham was convicted of bribing a Government official. *fn1 Schoeneman was convicted of accepting a bribe *fn2 and converting Government property. *fn3 Both were convicted of conspiracy to commit the three specified offenses. *fn4
Appellants' chief contention on appeal is that the fruits of the search of Markham's home should have been suppressed because there was insufficient showing of probable cause on June 2, 1961, to justify issuance of a search warrant. *fn5 The commissioner issued this search warrant in reliance upon two affidavits. *fn6 The first affidavit, signed by an FBI agent, alleged that a "confidential informant, who formerly was an employee of the Department of Justice and the Treasury Department of the United States, and who is now a business executive, and who is believed to be reliable," had "furnished an affidavit to a special agent of" the FBI stating that he had seen certain Government documents in Markham's home on February 15, 1961, 107 days prior to the date of application for the warrant, June 2, 1961. *fn7 It was further alleged that the documents were of a type which could not legally have been in Markham's possession. The second affidavit, signed by ONI Agent Kingsbury, merely alleged that he had observed a meeting between Markham and the unnamed informant described in the first affidavit on February 15, 1961.
The question of probable cause sufficient for the issuance of a search warrant is, of course, directed in the first instance to the commissioner. But where, as here, the commissioner's judgment is predicated solely on affidavits, a court is not relieved from making its own judgment as to whether the affidavits provide a "substantial basis for him to conclude that [the evidence was] probably present in the [home]." Jones v. United States, 362 U.S. 257, 271, 80 S. Ct. 725, 736, 4 L. Ed. 2d 697 (1960). Applying this test, Judge Lord, in another proceeding, *fn8 has already held the search warrant in suit here invalid. We agree.
Most striking about the evidence disclosed in the affidavits in this case is the delay of 107 days in applying for a warrant. *fn9 In determining probable cause for the issuance of a search warrant, time alone, of course, is not controlling. *fn10 However, we cannot overlook the fact that the Government could cite, and we could find, no case which sustained a search warrant issued more than 30 days after finding of the evidence which constituted the basis for the search. Chief Justice Hughes stated the controlling principle very succinctly:
". . . The proceeding by search warrant is a drastic one. Its abuse led to the adoption of the Fourth Amendment, and this, together with legislation regulating the process, should be liberally construed in favor of the individual. [Citing cases.] . . . While the statute does not fix the time within which proof of probable cause must be taken by the judge or commissioner, it is manifest that the proof must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time." Sgro v. United States (supra) Note 9, 287 U.S. at 210, 53 S. Ct. at 140.11 (Emphasis added.)
Thus the critical question here is whether the affidavits when presented to the commissioner gave probable cause to believe that the Government documents were still on the premises. The Government relies quite heavily upon the nature of the conspiracy ultimately revealed to show that it was entirely probable that the books seen on February 15 were on the premises on June 2. However, the elaborate plot later developed is not described in the affidavits. It is merely alleged that certain books were seen in Markham's house. There is no allegation that the books had not been moved in the intervening three and one-half months or, indeed, that Markham himself had not moved. To support a search warrant the proof supplied "must speak as of the time of the issue of [the] warrant. The commissioner [has] no authority to rely on affidavits which have sole relation to a different time and have not been brought down to date or supplemented so that they can be deemed to disclose grounds existing when the . . . warrant is issued." Sgro v. United States (supra) Note 9, at 211, 53 S. Ct. at 140. (Emphasis added.) If commissioners are to serve a useful function in protecting citizens against arbitrary searches, probable cause must be determined as of the time the warrant is issued and not with the benefit of hindsight.12
Moreover, the evidence presented, even if it spoke as of the day of issuance of the warrant, is borderline. All the evidence indicating the documents were in Markham's house was hearsay. Agent Richardson's affidavit before the commissioner was predicated on still another affidavit before another agent. In establishing probable cause, of course, the commissioner may rely upon hearsay information "so long as the informant's statement is reasonably corroborated by other matters within the officer's knowledge." Jones v. United States (supra) 362 U.S. at 269, 80 S. Ct. at 735.13 But here the corroboration only attempts to show that the informant is reliable. Briefly, it indicates that the undisclosed informant is a former Government employee, that he is now a business executive, that he made his statement under oath, and that he did have a meeting with Markham. The statement in the affidavit that he "is believed to be reliable" is ambiguous, apparently meaning that the FBI as an entity believed him reliable, but not committing the affiant.14 Assuming, without deciding, that the affidavits would be otherwise sufficient, in view of the great delay we cannot uphold the determination that probable cause existed on the date the warrant issued.15 Therefore, the motion to suppress should have been granted.
Since the case will have to be retried, one additional matter need only be mentioned. The court inadvertently failed to caution the jury against reading newspaper accounts of the trial. During the trial a news story concerning the proceedings appeared in the Washington Evening Star, which concluded: "Markham has also been indicted in Philadelphia where he is charged with misuse of classified material, bribery, theft and conspiracy in a related case." The appearance of this article was promptly called to the attention of the trial judge and request was made that the jurors be interrogated to see if any had read the story. The court refused to do so on the ground that such interrogation would only emphasize the article. We have repeatedly pointed out that "in all criminal cases whenever jurors are permitted to separate, the court should invariably admonish them not to communicate with any person or ...