What is the test for a finding that a criminal complaint or indictment is sufficient to establish probable cause?

The government cites United States v. Ellsworth, 647 F.2d 957 (9th Cir.1981), cert. denied 456 U.S. 944 (1982), and its progeny for the proposition that the complaint or indictment may supply probable cause. Ellsworth does not stand for so broad a proposition.

As explained in Rubino 's discussion of Ellsworth "[the indictment] is not, of itself, an adequate substitute for articulable facts in the warrant affidavit." 727 F.2d at 795. "The affidavit in Ellsworth provided a strong showing of probable cause independent of the fact that an indictment had been returned against the defendant." Id. at 795 n. 3.; see also United States v. Seybold, 726 F.2d 502, 503-04 (9th Cir.1984) (indictment, incorporated by reference, added support to probable cause determination); United States v. Hernandez-Escarsega, 886 F.2d 1560, 1566 (9th Cir.1989) (fact of prior indictment could be considered along with "wealth of incriminating information detailed in [the search warrant] affidavit"), cert. denied, 110 S.Ct. 3237 (1990).