OPINION OF THE COURT
HASTIE, Circuit Judge.
The appellees are state prisoners who have been incarcerated pursuant to convictions of violations of the New Jersey gambling laws. The district court granted them writs of habeas corpus on the ground that their convictions had been obtained through evidence, gambling paraphernalia, that had been seized in execution of search warrants issued without probable cause.
These appeals by the appropriate state officers present the familiar problem of what, in a constitutional view, constitutes probable cause for the issuance of a search warrant when a magistrate acts in reliance on an affidavit of a law enforcement officer that in turn is based in major part upon an informant's tip.
Because the affidavits in these cases do not differ significantly in content, only one of them need be discussed. The text of the affidavit in DeAngelo's case is as follows:
The principles applicable to the determination of probable cause in these cases are set out in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), cases that have been discussed at length in our recent decision in United States v. McNally, 3d Cir. 1973, 473 F.2d 934. Therefore, this opinion will merely state without elaboration the impact of the rulings of Aguilar and Spinelli upon the present affidavits.
It is the rule of Aguilar that "[a]lthough an affidavit [submitted to support the issuance of a search warrant] may be based on hearsay information . . . the magistrate must be informed on some of the underlying circumstances from which the informant concluded that" evidence of crime was to be found in the place to be searched. 378 U.S. at 114, 84 S.Ct. at 1514. The affidavit we now are considering, like the Aguilar affidavit, gives no information as to the factual basis of the informant's conclusion that a stated telephone number at a stated address "is being used for lottery bets and bookmaking bets". Here, as in Aguilar, the magistrate had no basis for exercising his required independent judgment whether the informant's conclusion was more than surmise or repetition of rumor.
Recognizing this deficiency, the appellant argues that the informant's statement is adequately corroborated and substantiated, as was done and approved in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), by the affiant officer's own observations which he set out in his affidavit. Here the officer stated that during several afternoons he personally observed "white males and females walk to the said location, stay for a short period of time and then leave". Moreover, on several occasions telephone calls to the place in question resulted in busy signals. At other times the person who answered merely said "hello".
If the informant himself had offered these facts as the basis of his conclusion that bets were being taken on the premises, in so stating he would have disclosed that he was merely speculating as to the suspected activity. For there was nothing in the observed occurrences that was suggestive of bet taking or any other wrongdoing. As the Supreme Court ruled in Spinelli, an informer's tip may not be used to give "suspicious color" to observed "innocent-seeming conduct" and then the observed conduct used to substantiate the tip. 393 U.S. at 415, 89 S.Ct. 584.
Finally, we have not mentioned the affiant's statement that on other occasions the present informant's tips
The judgments will be affirmed and the mandates of this court shall issue forthwith.
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