The opinion of the court was delivered by: FREEDMAN
The petition for habeas corpus in this case presents the question whether Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), which overruled Wolf v. Colorado
and held that evidence obtained by a search and seizure in violation of the Federal Constitution is inadmissible in a State criminal trial, applies to a State prisoner whose trial was held before the decision was announced.
Before I reach this important question of law a question of fact must first be determined -- whether the search and seizure here made was illegal.
The magistrate issued a search warrant on a written complaint and affidavit. The Commonwealth argues that a presumption of regularity attaches to the issuance of the warrant (citing Castle v. United States, 287 F.2d 657 (5th Cir. 1961))* and that there is nothing on the record to suggest that the evidence was unlawfully obtained.
Whatever presumption there may be as to the regularity and validity of a search warrant
it has been undermined by the testimony of the officer which shows that the warrant was issued in violation of requirements of the Federal and State Constitutions. Both Constitutions require that the showing of probable cause be 'supported by oath or affirmation'; and the Pennsylvania Constitution adds that the oath or affirmation be 'subscribed to by the affiant'.
The search warrant therefore was invalid because it was issued in violation of the Federal and State constitutional requirement that the application be supported by oath.
More fundamentally significant is the proof that the magistrate, who must make his independent judgment whether probable cause exists from the sworn facts presented to him,
did not secure any facts upon which a judgment could be formed. In the Castle case
relied on by the Commonwealth for the presumption of regularity, the court said: 'In issuing a search warrant the Commissioner must exercise his own judgment as to whether the facts in the affidavit constitute probable cause for the search warrant * * *.' There can be no judgment based upon facts that are not presented. Any other view would make the interested police officers rather than an objective judicial officer the protective screen for the determination of the existence of probable cause.
I hold, therefore, that the warrant was invalid and the search and seizure made pursuant to it was illegal.
I come then to the basic question presented by the petition.
Petitioner was tried in May 1961 before a judge without a jury in the Court of Quarter Sessions of Philadelphia County on seven bills of indictment charging burglary, larceny and receiving stolen goods. At the trial no specific objection was made to the validity of the search and seizure, nor was any attempt made to inquire into the circumstances surrounding the issuance of the search warrant. When the questioned evidence was offered at the trial, however, the trial judge inquired of counsel for the petitioner whether he had any objection, and counsel then replied that he objected to its admission. Decision was deferred to June 19, 1961. The trial judge could not have known that this was a date that would have historic significance in the law of search and seizure. On that date the decision in Mapp v. Ohio was handed down by the Supreme Court of the United States. On the same day the trial judge found petitioner guilty on all the charges and deferred sentence pending motions for new trial and in arrest of judgment, which were filed on June 21, 1961.
Later, on October 13, 1961, a petition was filed with the trial judge to quash the search warrant, and to suppress the evidence seized thereunder, specifically relying on the Mapp case. The trial judge granted a rule on the Commonwealth to show cause why the prayer of the petition should not be granted. The Commonwealth filed no answer and after argument the court on December 26, 1961, dismissed the petition and discharged the rule to show cause. On January 11, 1962, the motions for new trial and in arrest of judgment were also denied. On the same date petitioner was sentenced to imprisonment for a term of not less than three years nor more than fifteen years on one bill of indictment and sentence on all other convictions was suspended.
Petitioner appealed from the burglary conviction
to the Superior Court of Pennsylvania. On September 13, 1962, the Superior Court in Commonwealth v. Mancini, 198 Pa.Super. 642, 184 A.2d 279, affirmed the judgment of sentence. It held that since the trial record showed no invalidity in the search and seizure the question was not timely raised and the Mapp case did not apply. The Court said: 'To sustain appellant's contention would require the courts of this Commonwealth to re-examine prior convictions on the mere belated allegation that the conviction involved evidence obtained as the result of an unreasonable search and seizure. * * *
'Furthermore, the rule of law announced in Mapp v. Ohio * * * can be interpreted as generally prospective in its application, and it would be unjustifiable retrospective lawmaking to convict the trial court of error in relying on the authority of decisions of the Supreme Court of the United States in force at the time of trial. * * * Under the facts and circumstances of the Mapp decision, the sudden change of the law by the Supreme Court of the United States as to the exclusionary rule is a disturbing exercise of judicial power and should not have retroactive application with respect to criminal proceedings in this Commonwealth; the obvious objective of the decision would not be enhanced by such application.' (198 Pa.Super. p. 646, 184 A.2d p. 281).
Petitioner's application to the Supreme Court of Pennsylvania for an allocatur was denied on September 28, 1962;
and his application for certiorari was denied by the Supreme Court of the United States on February 18, 1963.
Thereupon petitioner surrendered to the Pennsylvania prison authorities and filed the present petition. I ordered his release on the entry of bail in the sum of $ 10,000 pending hearing and final disposition of his petition. (See Johnston v. Marsh, 227 F.2d 528, 56 A.L.R.2d 661 (3d Cir. 1955)).
A threshold question arises whether in these circumstances petitioner has exhausted his State remedies within the meaning of 28 U.S.C.A. § 2254. It is conceded that he has made no application for a writ of habeas corpus in the State courts. There can be no doubt, however, of the view of the Pennsylvania courts on the question before me. It was expressed by the Superior Court in the petitioner's direct appeal from the judgment of conviction in this case ( Commonwealth v. Mancini, supra) and in Commonwealth v. Campbell, 196 Pa.Super. 380, 175 A.2d 324 (1961), cert. den. 371 U.S. 901, 83 S. Ct. 203, 9 L. Ed. 2d 164 (1962), rehearing den. 371 U.S. 959, 83 S. Ct. 498, 9 L. Ed. 2d 507 (1963) and Commonwealth v. Clark, 198 Pa.Super. 64, 181 A.2d 859 (1962), in all of which the Supreme Court of Pennsylvania refused allocaturs.
In these cases the applicability of Mapp v. Ohio was urged on direct appeal from the judgment of conviction. They were not cases of collateral attack by habeas corpus long after the judgment of conviction had ultimately been affirmed. Very recently the Pennsylvania view was restated on a petition for habeas corpus. In Commonwealth ex rel. Stoner v. Myers,
Mapp was urged upon the court in a case where a defendant prior to Mapp had objected to the admission of evidence obtained in a search, but no post-trial motions were filed and no appeal was taken from the judgment of conviction. The Superior Court affirmed the lower court's refusal of relief. The court reiterated the view expressed in the prior cases, including the Mancini case, that the trial courts of Pennsylvania will not be reversed on appeal for having relied on Wolf v. Colorado before it was overthrown by the Mapp case. The Superior Court said: 'We have indicated that the decision in Mapp v. Ohio should be interpreted as generally prospective in its application, since it would be unjustifiable retrospective lawmaking to convict the trial court of error in relying on the authority of decisions of the Supreme Court of the United States in force at the time of the trial. * * * Whatever rule may ...