the numbers of observations made, the time of day that the observations occurred, the length of time spent in 1403 F Street, the tell-tale pockets, the actions of the two men around 613 2nd Street (at which one of the officers had placed many bets) and their actions when they met, all justified the affidavit in issue.
Counsel has placed much reliance on United States v. Johnson, D.C.D.C.1953, 113 F.Supp. 359. Even if the facts in that case were identical with the facts in the instant case, which they decidedly are not, the Court would have to find probable cause here since the Johnson case has inferentially been overruled. In United States v. Hall, D.C.D.C.1955, 126 F.Supp. 620, the District Court suppressed evidence 'for the reasons stated by this Court in United States v. Johnson' (126 F.Supp. at page 621). The Court of Appeals, however, found that probable cause had been established, and in companion cases, reversed. United States v. Carroll, 1956, 98 U.S.App.D.C. 244, 234 F.2d 679.
Since the Court is of the opinion that the facts here make out a stronger case for the existence of probable cause than the facts in Hall and since the Court of Appeals found that probable cause existed in Hall, a fortiori, probable cause for the issuance of the search warrant existed in the instant case.
Counsel further questioned whether probable cause can be established by evidence not legally sufficient to convict. In Washington v. United States, 1953, 92 U.S.App.D.C. 31, 202 F.2d 214, certiorari denied 1953, 345 U.S. 956, 73 S. Ct. 938, 97 L. Ed. 1377, a case concerned with the existence of probable cause for the issuance of a search warrant for premises believed to be housing gambling activities, the Court, per Bazelon, J. said:
'The existence of probable cause does not require that the officers then possess legal evidence sufficient to convict. Insofar as Schencks v. United States (55 App.D.C. 84, 2 F.2d 185), might be construed to the contrary, it has been overruled by Brinegar.' 202 F.2d at page 215.
It is noted that an eleven-day period elapsed between the time the last observation of 1403 F Street was had and the day that the search warrant was issued. Counsel urges this upon the Court as significant on the question.
The Court is of the opinion that this delay cannot be said to vitiate the probable cause established on May 8th (if not earlier); May 8th being the last day of observations of 1403 F Street, N.E. If it held otherwise, the police would be in an anomalous position. On the one hand, they must make sufficient observations to warrant a finding of probable cause. On the other hand, they must swear out the warrant, it is said, immediately after the last observation. If they are excessively careful in accusing a particular premises of being used in violation of the criminal laws, and allow time to elapse, then, it is said, the probable cause they had established on the last day of observations (the probable cause that out of an abundance of caution they perhaps were seeking to strengthen) disappears. While a long period of time may have this effect, the Court does not believe an eleven-day period does. Nuckols v. United States, 1938, 69 U.S.App.D.C. 120, 99 F.2d 353; Annotation, 162 A.L.R. 1406. Moreover, it is noted that the affidavit does not state that during this eleven-day period the police failed to observe anything at 1403 F Street, N.E.; they simply were not guided there by the men under observation.
In passing, the Court notes that United States v. Price, D.C.D.C.1957, 149 F.Supp. 707, in which this Court granted a motion for the suppression of evidence seized under a search warrant, is a far different case than the instant one. In the Price case bets were placed with a single person and observation made of this person alone over a period of time. He was seen to enter 1445 Swann Street (the premises for which the search warrant had been issued) during the time when numbers activity is conducted. However, there was nothing peculiar in Price's manner or appearance from which to infer that his entrance into these premises was anything but innocent.
The motions are denied. Orders to that effect have this day been rendered.