The opinion of the court was delivered by: WOOD
The Relator was convicted of the crime of abortion in York County, Pennsylvania on October 25, 1958. He was sentenced on May 15, 1961 to a term of one and a half to five years imprisonment in the State Correctional Institution at Philadelphia, Pennsylvania.
Subsequently, the judgment was affirmed by the Superior Court of Pennsylvania on November 16, 1961, reported in Commonwealth v. Campbell, 196 Pa. Super. 380, 175 A.2d 324; rehearing was denied on December 11, 1961.
On March 13, 1963 this Court granted a Rule to Show Cause why a Writ of Habeas Corpus should not issue and the Relator was admitted to bail pending the final disposition of this Rule. A hearing was had before the Court on April 3, 1963.
Basically, the Relator contends that he was deprived of due process when his rented farmhouse was subjected to a search based on the authority of a warrant allegedly issued without probable cause for the crime of abortion. Relator also requested the Court to review the whole record because he believes the State's failure to produce the victims of the abortions deprived him of due process.
These constitutional issues were considered by the State courts and were framed in the Petition for Certiorari denied by the United States Supreme Court.
The search warrant in question was issued by Alderman Fickes of York County upon information received from Corporal (now Sergeant) Robert Smith of the Pennsylvania State Police. Sergeant Smith testified that he had been on the case investigating the Relator's activities for four years previous to the issuance of the search warrant. He had knowledge of the Relator's criminal record which included a prior conviction for abortion.
The series of events leading up to the issuance of the allegedly tainted warrant was set in motion when the owner of the farmhouse, leased to the Relator, filed a general complaint with Corporal Miller of the State Police. It seems that the owner, Colonel Hinkley, had become suspicious of the nighttime activities of the Relator in using the farmhouse. He had no specific knowledge of any abortions being performed on his property. Corporal Miller referred this complaint to Sergeant Smith who was investigating the Relator. In the course of his investigation Sergeant Smith contacted a Mrs. Smith (no relation) who resided approximately 1000 feet from the Relator's farmhouse. She had become suspicious of the comings and goings of automobiles to the farmhouse at night. She stated to the officer that no one was ever there in the daytime. Also, on one occasion she picked up her telephone which was on a party line with the Relator and she overheard a conversation concerning a girl who was supposed to have a baby and when were they going to bring her down.
Sergeant Smith went to see the real estate agent who negotiated the lease of the premises to the Relator. The agent identified the Relator as the lessee of the farmhouse from a picture exhibited to him by Sergeant Smith but stated that the Relator had used an assumed name. He further identified the picture of a female co-defendant who represented to the agent that she was the Relator's wife. She likewise used an assumed name.
On November 21, 1962 Sergeant Smith went to Alderman Fickes and made his complaint for the issuance of a search warrant. He related the facts of his investigation to the Alderman and obtained the warrant. The language of the warrant states that it was issued on information received from officer Smith and that there is just cause to suspect that articles and instruments to procure abortions are possessed in the farmhouse. Armed with this warrant Sergeant Smith and eleven other policemen surrounded the farmhouse at 6 p.m. on the evening of November 21, 1958. After a period of observation during which two vehicles arrived at the farmhouse and discharged their female passengers, three officers entered the farmhouse at 7:40 p.m. via the front door with a key obtained from Colonel Hinkley.
A return of the warrant together with a list of the fruits of the search typed on its reverse side was filed with the Alderman who had issued the process. The Alderman could not recall the exact date of the return but stated that it was made within the required ten day period.
Probable cause has been defined by the Supreme Court in Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. ...