UNITED STATES of America ex rel. Samuel SAIKEN, Plaintiff-Appellee, v. Peter B. BENSINGER, Director, Department of Corrections, State of Illinois, et al., Respondents-Appellants, 489 F.2d 865

FAIRCHILD, Circuit Judge. This is an appeal from an order granting a writ of habeas corpus releasing petitioner Samuel Saiken from state custody. Many of the facts appear in the opinions of the district court, Saiken v. Elrod, 350 F.Supp. 1156 (N.D.Ill., 1972) and of the Supreme Court of Illinois, affirming the conviction which resulted in his being in custody. People v. Saiken, 49 Ill.2d 504, 275 N.E.2d 381 (1971), cert. denied 405 U.S. 1066, 92 S.Ct. 1499, 31 L.Ed.2d 796. The district court concluded that the affidavit for the search warrant was insufficient and we agree.

The state has raised another claim, that the fourth amendment did not require a warrant because of the character of the place where the search was conducted. This point was not discussed by the Supreme Court nor the district court. No one has questioned the application of the exclusionary rule in the situation here, i. e., to the use by one state in prosecuting an offense within its borders of evidence obtained by another state in the course of investigation of a possible offense within its borders, on an allegedly insufficient warrant.

(1) Was the affidavit for the search warrant sufficient? In Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the Supreme Court held that where an affidavit is based upon hearsay, as in the instant case, the magistrate must be informed of: (1) some of the underlying circumstances from which the informant concluded that the property sought was where the informant claimed it was, and (2) some of the underlying circumstances from which the officer concluded that the informant was credible or his information reliable.

Turning to the first prong of the Aguilar test, there is no statement in the affidavit indicating the manner in which Joel Saiken, the informant, came by his information. Nonetheless, the state urges that the affidavit attributes to the informant information of sufficient detail to enable the magistrate to infer that the informant gained his information by observation or other reliable means. See Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Deference is to be given to the magistrate’s determination of probable cause. Jones v.

United States, 362 U.S. 257, 270, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). We think that the magistrate could reasonably determine from within the four corners of the affidavit that the informant’s representation was based upon more substantial information than “a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.” Spinelli, supra, 393 U.S. 416, 89 S.Ct.; United States v. Nasse, 432 F.2d 1293, 1300 (7th Cir., 1970), cert. denied 401 U.S. 938, 91 S.Ct. 927, 28 L.Ed.2d 217.

The informant supplied details about sex and age of the body, its location, and the description and ownership of the farm. Assuming credibility of the informant, one could readily infer that he either was present at the burial or was relating a report which he had reason to believe was based on observation. The more difficult question is whether the second prong of Aguilar, with such liberalization as may be read from United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), has been satisfied.

Did the affidavit describe some of the underlying circumstances from which the affiant concluded that the informant was credible? The affidavit held sufficient in Harris did not aver previous experience with the informant as a basis for affiant’s conclusion that the informant was credible.

It did contain four elements: (1) affiant’s statement that on interview he had found the informant to be prudent, (2) attribution to the informant of personal and recent observations of the suspect’s criminal activity, (3) corroboration of the informant’s report by reason of affiant’s knowledge of the suspect’s reputation for activity of the type reported, (4) the informant’s admission against penal interest in his disclosure that he had participated in the suspect’s criminal activity.

Three justices joined in emphasizing the presence of the four elements, although it is not clear that they would have required all four. Another justice relied on .(1), (2), and (3). Another agreed with the conclusions as to (4), but also considered-the affidavit “as a whole.” All five agreed on the ultimate proposition that the affidavit was sufficient. Four deemed it insufficient. In United States v. Unger, 469 F.2d 1283 (7th Cir., 1972), cert. denied 411 U.S. 920, 93 S.Ct. 1546, 36 L.Ed.2d 313, we noted that Harris suggests a more flexible approach and held an affidavit sufficient.

The affiant officer characterized the informant as a “citizen” who had contacted the officer, explained that the informant had occasion to be in the premises while working at his occupation, set forth in great detail the items of property observed, and stated that the citizen pointed 'out the building and gave the officer a diagram of the relevant area of the interior.

We read some implication into the affiant’s description of the informant as a “citizen” who came forward to give information, gained in the course of his employment, to the police, without appearance of spite or self-interest, and we felt that the close observation and detail described could be given weight in determining credibility. In the instant case, as in Unger, the affiant did not specifically express his belief in the informant’s credibility although he said he had good reasons to and did believe the facts set forth.

As in Harris and Unger, this affidavit contains considerable detail, but it does not show that the informant gained his knowledge by observation or some other reliable way, it does not state information known to affiant and tending to corroborate the informant’s report, and there is no admission against penal interest unless one assumes the unasserted fact that the informant disclosed that he had participated in the unlawful burial or concealment.

We agree with the Supreme Court of Illinois that informant’s disclosure of his participation in the burial would constitute an admission against his penal interest as well as an explanation of the manner in which he obtained his knowledge. 275 N.E.2d at 386-387. Our difficulty, however, lies in the fact that this information was not set forth in the affidavit, and the state does not contend here that any information not in the affidavit can be relied upon as having been considered by the magistrate. See Aguilar, supra, 378 U.S. p. 109, footnote 1, 84 S.Ct. 1509.

The affidavit does disclose the name of the informant, Joel Saiken. It also discloses that the owners of the property are Sam and Minnie Saiken. The state argues that the identity of the surnames is a basis for the conclusion that the informer would have reason to know of the burial. Perhaps relationship would be a reasonable inference if the name were not common in the particular area. It seems speculative, however, to infer knowledge from relationship.

With respect to the credibility prong of Aguilar, the more difficult problem here, it might be reasonable to suppose that a family member in good standing would not tell the police of a hidden body on the family farm unless it was there. But identity of surname does not establish either the degree of relationship or that the individuals are on good terms. We conclude that the district court correctly decided that the affidavit was an insufficient foundation for the warrant.

(2) Was the search within the curtilage of petitioner’s dwelling? The state contends that even if the search warrant is inadequate, the challenged evidence is admissible because the search and seizure complained of occurred beyond the curtilage of the petitioner’s residence and accordingly does not come within the fourth amendment’s proscription against unreasonable searches and seizures. The fourth amendment protects “[the] right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In Hester v.

United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), the Supreme Court held that this protection does not extend to “the open fields.” The test traditionally used has been whether the search occurred within the curtilage. In applying this test courts have traditionally considered “the proximity or annexation [of the place searched] to the dwelling,” “the inclusion [of the place searched] within the general enclosure surrounding the dwelling,” and the “use and enjoyment [of the place searched] as an adjunct to the domestic economy of the family.” Care v.

United States, 231 F.2d 22, 25 (10th Cir., 1956), cert. denied 351 U.S. 932, 76 S.Ct. 788, 100 L.Ed. 1461. See Wattenburg v. United States, 388 F.2d 853, 856-857 (9th Cir., 1968) and cases cited therein. In Jones v. United States, 362 U.S. 257, 266-267, 80 S.Ct. 725, 4 L.Ed. 2d 697 (1960), the Supreme Court emphasized the undesirability of importing into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle common law property distinctions. In Katz v.

United States, 389 U.S. 347, 350-353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1969) the Court declined to deal with a problem of electronic surveillance in terms of the type of area and the law of trespass, but found a constitutionally protected entitlement to privacy of conversation within a public telephone booth. These cases caution a court to be alert, in applying the traditional curtilage test, to considerations which would make reasonable a constitutionally protected entitlement to privacy regardless of the area involved.

Even so, we do not equate an individual’s interest in effective concealment of evidence of crime with entitlement to privacy for the purposes of the fourth amendment. See Wattenburg v. United States, supra, 388 F.2d 857-858; United States v. Minker, 312 F.2d 632, 634 (3rd Cir., 1962). Petitioner asserts that we should not consider the curtilage issue because that issue is not properly before this court. We disagree.

Although neither party raised this issue in the state trial court, the judge called a witness to testify about the physical layout of the Sai-ken farm and held in the alternative that the search occurred within an “open field.” Petitioner also offered proof on this issue. In the appeal to the Illinois Supreme Court, both parties briefed the curtilage question. The Illinois Supreme Court deemed the search warrant valid and affirmed the conviction without discussion of the curtilage issue. People v. Saiken, supra.

In the federal habeas corpus proceeding, the state alleged that the body was not found within the curtilage of the farm; but for some reason, no evidence was offered on this issue by either party, On motion of the state, we granted leave to file the record of the state proceedings as an exhibit on appeal. An analysis favorable to petitioner would be that the state had the burden, in defending against the habeas petition in federal district court,, not only of pleading, but also of producing evidence that the character of the place searched was such that no warrant had been necessary.

As a result the state might be foreclosed by waiver from urging the claim in this court. Another arguably correct analysis would be that it was petitioner’s burden in order to obtain ha-beas relief, to plead and prove facts showing that a warrant had been required as well as facts showing the warrant invalid. Under the circumstances it is unsatisfactory to decide the question on the ground that the party with the burden waived. It would especially be undesirable from the point of view of judicial economy if the analysis unfavorable to the petitioner were adopted, since he would be at liberty to petition anew.

The state court record reveals testimony at least indicating that the body was found in an open area. The twenty-acre tract has often been referred to as a farm. The record is unclear as to the distances between the various structures and the location of the body, the occupancy of buildings and trailers, and other relevant matters. The crucial question is left in great doubt. It is evident that the officers did a considerable amount of digging before finding the body. Questions of the existence of liability for damages for such interference with property are not before us.

If a constitutionally protected entitlement to privacy can not be established otherwise, we are not prepared on this record to say that digging beneath the surface of the soil establishes it. We think the curtilage issue should be decided by the district court after the facts have had further illumination. If it be decided that a warrant was required, petitioner will be entitled to release, since it has been established that the warrant was issued on an insufficient affidavit. The district court is at liberty to continue petitioner on bail, pending decision.

The judgment granting the writ of habeas corpus is vacated, and the cause remanded for further proceedings. . There seems to be no question but that petitioner had exhausted his state remedy in this respect as well as the claim of invalidity of the warrant.