Court of Appeals for the Third Circuit

United States ex rel. Grano v. Anderson

446 F.2d 272

July 9, 1971 · Docket No. 71-1102

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Opinion

OPINION OF THE COURT

PER CURIAM:

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,1 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. 263263 (D. (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.2 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.

.

. The Delaware Superior Court found the affidavit accompanying the demand for extradition insufficient to establish probable cause and thus insufficient to justify arrest or extradition. The court, rather than ordering appellant’s release, however, permitted the Louisiana authorities additional time to supplement the record. Grano v. State, 257 A.2d 768 (Del.Super.1969). On the basis of the supplemental affidavits the court held that probable cause was established. The Delaware Supreme Court affirmed. Grano v. State, No. 188, 1969 Term (Del.Sup.Ct., filed July 6, 1970 (per curiam).

The court, rather than ordering appellant’s release, however, permitted the Louisiana authorities additional time to supplement the record.Grano v. State, 257 A.2d 768 (Del.Super.1969).On the basis of the supplemental affidavits the court held that probable cause was established.The Delaware Supreme Court affirmed.Grano v. State, No. 188, 1969 Term (Del.Sup.Ct., filed July 6, 1970 (per curiam)..

. 9 LSA RS 14:62 provides:

Simple Burglary.

Simple burglary is the unauthorized entering of any vehicle, water craft, dwelling or other structure, movable or immovable, with the intent to commit any forcible felony or any theft therein, other than as set forth in Article 60 [aggravated burglary].

Whoever commits the crime of simple burglary shall be imprisoned at hard labor for not more than nine years.

Simple burglary is the unauthorized entering of any vehicle, water craft, dwelling or other structure, movable or immovable, with the intent to commit any forcible felony or any theft therein, other than as set forth in Article 60 [aggravated burglary]. Whoever commits the crime of simple burglary shall be imprisoned at hard labor for not more than nine years.