doors of a private home to arrest for a misdemeanor. Under these circumstances, the Court could well find, and does find, that this defense to the extent raised during the hearing has been abandoned. Nevertheless, the Court will make a specific finding as to the reasonableness and legality of the method of entry, under all the facts and circumstances of this particular case.
Under the circumstances of each of these raids -- Jefferson and Bethel Park -- the 'officers of Justice,' under 18 Pa.Stat.Ann. § 1445, and the private persons assisting them had reason to believe that the persons inside knew the identity and purpose of the officers and that if they delayed making their entry the wagering paraphernalia which they clearly had probable cause to believe was inside would be destroyed.
The leading case on the vitiation of an otherwise lawful arrest by the method of entry to arrest is Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963), which was a state prosecution wherein the entry having been held legal under the state law by the state courts, the legality of the method of entering the home was then measured by federal constitutional standards of reasonableness.
After a meticulous comparison of the facts in this proceeding and the facts in Ker, the Court determines that the method of entry in this proceeding meets the constitutional standards of reasonableness set forth in Ker.
As to the vitiating effects of the method of entry on the legality of the arrest under state law, no cases have been cited to the Court wherein this specific question has been raised. It is the opinion of the Court that, breaking in to arrest without a warrant for operating a numbers lottery being permissible under state law,
the courts of Pennsylvania would determine that nothing in the facts of this case would violate Pennsylvania law and vitiate an otherwise legal arrest.
V. WAS THE PARTICIPATION OF INTERNAL REVENUE SERVICE AGENT MADDEN IN THE BETHEL PARK RAID SUCH AS TO MAKE FEDERAL STATUTORY AS WELL AS CONSTITUTIONAL STANDARDS APPLICABLE TO SAID RAID?
The answer is 'no'.
Defendants rely on the case of Byars v. United States, 273 U.S. 28, 47 S. Ct. 248, 71 L. Ed. 520 (1927), to support their contention that this raid must be deemed a federal raid and that, therefore, federal statutory standards are applicable. The Court in Byars indicated that mere participation in a state search by a federal officer does not render it a federal undertaking and that whether the participation was sufficient to render the state search a federal one depends upon the peculiar facts of each raid.
A comparison of the factual setting in Byars and in the instant case indicates that the two cases are distinguishable and that Byars is inapplicable to this proceeding. In Byars the federal agent not only entered the premises but actually searched a particular room therein and discovered some evidence. In this proceeding, the federal agent was not invited to attend by a police official of the state, but was invited to attend by Mr. Flynn, a private citizen. Refused permission to participate in the raid by his superiors, federal agent Madden was advised that he could go along on the raid as an observer, which he did.
Contrary to the situation in Byars, Internal Revenue Service. Agent Madden did not enter the premises nor did he participate in the search. However, he did, by his own admission, work as a guard at the rear door, even though he had no authority to do so and did not claim any compensation of the federal government for his activities on that day or for the twenty-two miles recorded on his personal automobile during that time.
Under all the facts and circumstances, the Court is of the opinion that the participation of Internal Revenue Service Agent Madden in the Bethel Park Raid did not make the raid a federal, or a joint federal and state raid, but that the raid remained a state raid, and that, therefore, federal statutory standards are inapplicable.
Furthermore, if Byars is read as requiring participation in the search, rather than merely in the raid, by the federal agent in order that the full panoply of federal law be applicable, then this proceeding is clearly distinguishable from Byars on the facts, since there is no doubt in the Court's mind that Agent Madden did not participate in the search.
While the Court does not so read Byars, said case might also be read as making the test of the applicability of the full panoply of federal law to be whether the participation of the agent in the search was under color of his federal office. Even if such were the test, federal statutory law, more particularly 18 U.S.C.A. § 3109, on which defendants rely, is not applicable in this proceeding. After due consideration of all the facts and circumstances of the raid and of the role of Agent Madden in it, the Court finds as a fact that said agent did not participate in the raid under color of his federal office.
For all of these reasons, the Court concludes that federal statutory standards were not applicable to the raid.
Federal statutory standards being inapplicable to each of the two raids, and the Court concluding that, under state law and federal constitutional law, the searches and seizures in each of the raids were reasonable under all the facts and circumstances and were legal and valid as incident to a lawful arrest based on probable cause, it is the considered opinion of the Court that in regard to the items of evidence described in Paragraphs 3 and 25 of Defendants' Motion for Suppression of Evidence, said Motion should be denied.
Statements of fact and conclusions of law contained within this Opinion are adopted as Findings of Fact and Conclusions of Law.
An appropriate Order is entered.
OPINION ON MOTION TO DISMISS INDICTMENT
In this criminal proceeding, defendants have filed a Motion to Dismiss Indictment, Motion for Suppression of Evidence and Motion for Bill of Particulars Ancillary to Motion to Suppress. By prior Order of Court, by agreement and stipulation of the parties, approved by the Court, and by Opinion and Order entered contemporaneously herewith this Opinion and Order, the Court has disposed of the Motions for Suppression of Evidence and for Bill of Particulars Ancillary to Motion to Suppress. It is the considered opinion of the Court that the Motion to Dismiss Indictment should be denied.
Defendants contend that each count of the indictment should be dismissed on the grounds that evidence which is the basis for the indictment was procured illegally. This contention has no merit. The Court has determined that the evidence described in Paragraphs 1, 3, 10, 15, 20, 21, 23, 24 and 25 of defendants' Motion for Suppression of Evidence was legally seized and defendants have withdrawn said Motion as to those items enumerated in Paragraphs 2, 6, 7, 11, 19 and 22 of said motion. Certainly, any count of the indictment whose basis was the evidence enumerated in any of said Paragraphs of the Motion for Suppression is not open to attack on the ground of being based on illegally obtained evidence. As to the counts of the indictment based on the evidence enumerated in Paragraphs 4, 5, 8, 9, 12, 13, 14, 16, 17, 18, 26 and 27 of said Motion for Suppression of Evidence which the government, without conceding such evidence was obtained as a result of an illegal search and seizure, has agreed not to introduce into evidence, it is the opinion of the Court that basing a count of an indictment on illegally obtained evidence is akin to basing such count on hearsay, which clearly is permissible. See Costello v. United States, 350 U.S. 359, 76 S. Ct. 406, 100 L. Ed. 397 (1956). Therefore, even if the evidence enumerated in Paragraphs 4, 5, 8, 9, 12, 13, 14, 16, 17, 18, 26 and 27 were illegally obtained, a question which the Court expressly does not determine, the use of such illegally obtained evidence is irrelevant where the issue facing the Court is whether a count of an indictment should be dismissed.
Defendants also contend that Counts 1 through 19 should be dismissed on the ground that payment in the required manner of the ten per cent wagering excise tax allegedly due and owing by the defendants named in each of such counts would have entailed a violation of the constitutional privilege against compulsory self-incrimination, in that such payment would have tended to incriminate the defendants under both federal and state statutes.
In the opinion of the Court the legal issues raised by this contention are of no merit, having, in effect, already been determined adversely to defendants' position by the Court of Appeals. See United States v. Joseph, 278 F.2d 504 (3rd Cir. 1960); cf. Lewis v. United States, 348 U.S. 419, 75 S. Ct. 415, 99 L. Ed. 475 (1955); United States v. Kahriger, 345 U.S. 22, 73 S. Ct. 510, 97 L. Ed. 754 (1953).
Since neither of defendants' arguments for dismissing the indictment is meritorious, the Motion to Dismiss Indictment should be denied.
An appropriate Order is entered.