Before BIGGS, Chief Judge, and KALODNER and GANEY, Circuit Judges.
The relator, Campbell*fn1, was indicted by the Grand Jury of the Court of Quarter Sessions of York County, Pennsylvania, for wilfully and feloniously using a certain instrument and means unknown to the Grand Jury upon the bodies of three women with the intent to procure miscarriages. The pertinent Pennsylvania statute provides, 18 P.S. § 4718: "Whoever, with intent to procure the miscarriage of any woman, unlawfully administers to her any poison, drug or substance, or unlawfully uses any instrument, or other means, with the like intent, is guilty of felony, and upon conviction thereof, shall be sentenced to pay a fine not exceeding three thousand dollars ($3,000), or undergo imprisonment by separate or solitary confinement at labor not exceeding five (5) years, or both." Campbell was found guilty as charged and was sentenced to a term in prison which he is now serving.
The events complained of in the indictment occurred on November 21, 1958. On that day Robert Smith, a State Police officer, swore out a complaint for a search warrant.The complaint read as follows: "Before me, the subscriber, one of the Alderman, in and for * * * [York] County, personally came Robert Smith, Penna. State Police of the City of Harrisburg in said county, who upon his solemn oath according to law, saith that from information received which he believes to be true at the Township of Heidelberg in the County aforesaid, that there is just cause to suspect that articles and instruments to procure abortions are possessed, and he has just cause and probable cause to believe, and does believe in a one story concrete block ranch type building and located a short distance from Green's (Smith's) Houses, short distance from Township Road T319 and being in control of Carroll G. Harrison also known as Christopher Columbus Campbell, and also known as Charles C. Campbell.
"Affiant therefore prays that a search warrant may issue to a proper officer directing him to search said place, thing or things.
"All this is contrary to the act of the General Assembly in such case made and provided and against the peace and the dignity of the Commonwealth of Pennsylvania. [signed] Robert Smith. Sworn and subscribed to before me this 21st day of November, 1958. [signed] H. Gellard Fickes, Alderman."
On November 21, 1958*fn2, a search warrant was issued in the following terms by Alderman Fickes: "To Any Pennsylvania State Policeman in Said County, Greetings: Whereas, information and complaint have this day been made to the undersigned authority, an Alderman in and for the City of York, County of York and within the Commonwealth of Pennsylvania, on the oath of Corporal [later Sergeant] Robert Smith, of the Pennsylvania State Police, Harrisburg, Pennsylvania, that there is just cause to suspect that articles and instruments to procure abortions are possessed in a place described as a one story concrete block ranch type building and located a short distance from an establishment known as Smith's Green Houses and also a short distance from Township Road Number T319, in Heidelberg Township, York County, Pennsylvania, and being rented by and in the control of Carroll G. Harrison, also known as Christopher Columbus Campbell, and also known as Charles C. Campbell.
"These are therefore to command you to make diligent search in the building here-to-fore described, any parcel thereto, out buildings and conveyances for the articles, devices or instruments to procure abortions and if you find same or any part thereof, that you secure same and bring the person or persons in whose custody you find same before our said Alderman or some other member of the Minor Judiciary to be duly examined concerning the premises and further be dealt with according to law. Witness our said Alderman in the City of York, County of York and within the Commonwealth of Pennsylvania, who hath here-un-to set his hand and seal this 21st day of November, 1958."
The last search warrant was executed about 6:30 P.M. on November 21, 1958, by searching the farm house or dwelling described in the warrant. Sergeant Robert Smith entered the premises with a key. He was followed by at least three other officers. A very large list of articles was seized which indicated that an abortion or abortions had been performed or were about to be performed. At least three women were present who were in the process of being aborted or awaiting the process of abortion. Among the articles seized were surgical instruments, drugs appropriate for use in abortion, hypodermic needles, surgical bandages, an examining chair, cash in large quantities in the personal possession of the relator, and a white cap, a surgeon's mask, a white coat, rubber gloves, and white trousers. The relator was wearing the clothing referred to at the time of the search. Many of the articles seized were introduced in evidence at the trial. It clearly appears from the record that the surgical instruments which had been seized were introduced in evidence at Campbell's trial as well as the other articles just referred to. Insofar as the record shows no motion was made prior to the trial to suppress this evidence. At the trial no direct effort was made by the relator's counsel to prevent the numerous seized articles from being introduced in evidence on the ground that the search warrant had not been properly issued or was not a lawful warrant. An objection to the introduction of the articles into evidence was made solely on the ground that Sergeant Smith was biased and prejudiced.This objection was overruled. Indeed, the relator's counsel stated he had no objection to the surgical instruments being introduced into evidence. The relator's counsel did, however, object to the introduction into evidence of many other exhibits, to certain photographs in particular which showed the articles seized as they were in situ at the scene of the search. These objections also were overruled. There was also put into the record at the trial a statement, the equivalent of a confession, made by the relator to a police officer. We will deal with the nature and sufficiency of the relator's objections at a later point in this opinion.
The relator did not testify on his own behalf. He was found guilty and was sentenced on May 15, 1961, to a correctional institution for a period of five years. The judgment of sentence was affirmed by the Superior Court of Pennsylvania on November 16, 1961, 196 Pa.Super. 380, 175 A.2d 324; rehearing was denied on December 11, 1961. The Supreme Court of Pennsylvania denied allocatur on February 13, 1962, and the Supreme Court of the United States denied certiorari on November 13, 1962. See 371 U.S. 901, 83 S. Ct. 203, 9 L. Ed. 2d 164.Rehearing was denied on January 7, 1963, 371 U.S. 959, 83 S. Ct. 498, 9 L. Ed. 2d 507. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, was decided on June 19, 1961. Campbell then petitioned the court below for a writ of habeas corpus, attacking the search and seizure as unlawful because no probable cause was shown for the issuance of the search warrant and contending that therefore the evidence seized under it was inadmissible at his trial.The court below rejected this view, D.C., 216 F.Supp. 41 (1963), and the appeal at bar followed. Campbell makes no specific contention respecting the admissibility of his confession. Cf. the fruit-of-the-poisonous-tree doctrine in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319 (1920).
The issues presented by the case at bar are difficult to comprehend, to state, and to resolve. As we have said, the relator's counsel at his trial did not object to the search warrant on the ground that it was issued illegally but contented himself with the objection that the police officer who swore out the complaint was biased and prejudiced. This objection was a futile one for no evidence was adduced to support it and even if sufficient evidence had been introducd to show clearly bias and prejudice on the part of the officer that issue was irrelevant. But Judge Montgomery of the Superior Court of Pennsylvania pointed out in reviewing the relator's conviction, 175 A.2d at 328: "At the time of the trial and prior to the recent decision of the Supreme Court of the United States in Mapp v. Ohio * *, which prohibited state courts from admitting into evidence any matter which was obtained by an unlawful search and seizure, Pennsylvania had as its rule that even though a search warrant was illegally issued, it did not affect the admissibility of evidence obtained under it. Consequently, when the court below ruled that the defense counsel could not crossexamine on the question of probable cause or issuance of a search warrant, it correctly applied the existing law. [Campbell] [admits] this, but [claims] that in the light of the complete change in the law the lower court should be reversed and a new trial granted. This contention would be meritorious if illegality in obtaining the search warrant had been shown. However, there is nothing in the record to show illegality . During the course of the trial, counsel for the defense, in his cross-examination of the police officer who obtained the warrant, indicated that he was not attacking its legality but was merely attempting to show bias .The officer indicated that the complaint was made on behalf of the owner of the premises. The questions of counsel elicited no showing of illegality, or for that matter bias or prejudice, in the obtaining of the search warrant. Therefore, the change in the law effected by Mapp v. Ohio * * * is not applicable ."*fn3 (Emphasis supplied.)
The opinion of the Superior Court seems to contain a misunderstanding of the contents of the record before the state trial court. The Court of Quarter Sessions, through its presiding judge, as we read the record, did not rule that the defense counsel could not cross-examine on the question of probable cause of issuance of a search warrant. The Judge did not have to do so for Campbell's counsel did not raise the point. His objection, as the state trial court stated, was that Sergeant Smith was biased and prejudiced. The trial court correctly summed up the law of Pennsylvania, as it existed prior to Mapp, when it wrote that the Pennsylvania rule was that even though a search warrant is illegally issued that does not affect the admissibility of evidence obtained under it. In short, much of the evidence*fn4 upon which Campbell was convicted, procured under the search warrant, was under the Pennsylvania law admissible whether the warrant was valid or invalid. It may have been for this reason that Campbell's counsel did not object to the admissibility of this evidence on the ground that it had been obtained under a search warrant which is now alleged to be legally insufficient.
A careful study of the paragraph quoted from the opinion of the Superior Court, does, however, reveal a contrast in principles which appears to us to be irreconcilable. The Superior Court stated in its opinion that there was nothing in the record to show that the search warrant had been illegally obtained. Of course, there was nothing, for the relator's counsel offered no evidence of any illegality. It would have availed Campbell nothing if his counsel had offered such evidence, for at the time of the trial, Mapp v. Ohio not having been decided, the evidence procured by the search and seizure, no matter how illegal the search and seizure had been, still would have been admissible. We therefore are unable to grasp the logic of the conclusion expressed by the Superior Court in the final sentence of the paragraph quoted from its opinion, viz., "Therefore, the change in the law effected by Mapp v. Ohio (supra) is not applicable."
At the time Campbell's case was on review Mapp of course had been decided by the Supreme Court of the United States. This brings us to a discussion of two recent decisions by the Supreme Court of Pennsylvania. The first is Commonwealth v. Raymond, 412 Pa. 194, 194 A.2d 150 (1963), and Commonwealth ex rel. Wilson v. Rundle, 412 Pa. 109, 194 A.2d 143 (1963).The Raymond decision involved a direct appeal from a judgment of conviction in a Pennsylvania state court. The judgment of sentence was imposed on Raymond prior to Mapp. The Supreme Court of Pennsylvania held, 412 Pa. 200, 194 A.2d at 153 (1963), that where the issue of illegality of a search and seizure was raised on a direct appeal the rule of law of Mapp was applicable even though the case was tried prior to the decision in Mapp. There was no search warrant in Raymond. The seizure was made in the course of searching a room in the house of a woman whom Raymond ...