Before McLAUGHLIN, GANEY, and SMITH, Circuit Judges.
M cL AUGHLIN, Circuit Judge.
The district court denied an application for a writ of habeas corpus arising out of a state court conviction for burglary and larceny.
Appellant's first point is founded entirely upon the unwarranted assumption that certain evidence admitted in his trial was obtained by unconstitutional search and seizure. With that as his take off, he urges that Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961) be applied retroactively, as it would have to be for the writ to be allowed.
The facts fail to support appellant's premise. On March 19, 1960, the Marine Corps League Clubhouse, Chambersburg, Pennsylvania, was robbed. Taken were fifty odd cartons of cigarettes, a safe containing approximately $600, a metal box with a smaller amount of cash and some bottles of liquor. Sometime afterwards, a truck driver named Mitchell telephoned the wife of the club steward and told her that appellant had tried to induce him to take part in the robbery. The police were given this information and in turn interviewed the truck driver. The latter revealed to them that Stoner had advised him of his plans to rob the Club and asked him to take part. Inter alia Stoner had said to Mitchell that he intended to remove the safe and later leave it in a named pond. The police went to the pond and found the safe. The police knew Stoner was a member of the Club and among the last to leave it the morning of the burglary.
With knowledge of all of the above, the police obtained a warrant to search appellant's premises for "Approximately 50 cartons of assorted brands of cigarettes * * * believed to be * * * concealed in the Stoner Dwelling House and or other buildings of Ralph Stoner * * *." The warrant was not questioned at the trial and there was no appeal from the latter. There is nothing advanced by appellant in any way contradictory of the fact that the police, at the time of the application for the warrant and its issuance, possessed the above noted vital information concerning Stoner in relation to the theft. We must agree with the district court that presumably such information was the basis for the issuance of the warrant, that it constituted probable cause and more than adequately supported the warrant. Dumbra v. United States, 268 U.S. 435, 45 S. Ct. 546, 69 L. Ed. 1032 (1925); Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960), United States v. Moriarity, 327 F.2d 345 (3 Cir. 1964).
Armed with the warrant, Officer Armstrong, who had made the investigation, with another officer, went upon the Stoner premises. They walked up the back porch to the back door. They knocked on the door three or four times. They waited around. "No one showed up. We left." Leaving the porch, as the district judge found, "they noticed about three feet from the rear porch on the ground near the path, a pile of concrete particles and coins". The officers took these with them. Appellant, also for the first time, in the district court contended that the evidence was wrongfully obtained. His theory was and is that it was the product of an illegal search. There is nothing in the record to justify this. The officers were rightfully upon appellant's premises, and on the back porch. As they stood there they looked around. Not obtaining any answer to their knocks on the door, they left the porch and while walking away saw the pile of concrete and coins in front of them. These were not concealed in the house or other buildings, as the cigarettes were believed to be in the language of the warrant. They were in plain sight of the officers lawfully leaving the Stoner property.
It is true, as appellee urges, that this issue should have been presented on motion for a new trial and should have been a subject for appeal. It is also true that actually habeas corpus is now being used as a substitute for appeal. The excuse suggested is that the decision in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961) was filed after appellant's trial. It was therefore asserted in the district court that there had been an illegal search and seizure in this instance and that the Mapp rule, applied retrospectively, controlled. The theory was strongly and conscientiously pressed in the district court and before us. Because of this we prefer to deal with the problem on its merits. On properly found facts, based, according to the agreement of the parties, upon the state court record, the evidence involved was not obtained as the result of wrongful search. We therefore never reach the question of the applicability of the Mapp opinion.
Ellison v. United States, 93 U.S.App.D.C. 1, 206 F.2d 476 (1953) presented a situation markedly similar to the facts before us. There, police officers who suspected defendant of having broken into and robbing a drug store, went to his home, proceeded up to and on the front porch and rang the doorbell. They did not have a search warrant. While waiting on the front porch they observed "several bottles - drug store bottles - of medicine and some cigarettes and other things" lying on the ground near the house. The bottles were of the drug store type and had the appearance of having been recently placed there.
The court held 206 F.2d p. 478:
"Appellant contends that the officers' entry on the premises was a trespass from the moment they stepped on his land, that the viewing of the bottles and cigarettes was an illegal search, and that the product of this illegal search could not be the basis of probable cause. We cannot accept this contention.The officers were perfectly entitled to go to appellant's door, ring the bell, and inquire as to his whereabouts. They were not trespassers in so doing. Nor were they guilty of any impropriety in allowing their eyes to wander while they were waiting on the porch. The bottles and cigarettes were not covered or hidden, though it may have been necessary to bend over the porch rail to see them. There was no intrusion into appellant's privacy. Nor did mere observation constitute a 'search.' If an officer sees the fruits of crime - or what he has good reason to believe to be the fruits of crime - lying freely exposed on a suspect's property, he is not required to look the other way, or disregard the evidence his senses bring him. Law enforcement is difficult enough, without requiring a police officer to free his mind of clues lying flatly before him."
See also Hester v. United States, 265 U.S. 57, 58-59, 44 S. Ct. 445, 68 L. Ed. 898 (1924); Harris v. United States, 331 U.S. 145, 154, 67 S. Ct. 1098, 91 L. Ed. 1399 (1947); United States v. Joseph, 174 F.Supp. 539, 545 (E.D.Pa.1959), affd. 278 F.2d 504 (3 Cir. 1960), cert. den. 364 U.S. 823, 81 S. Ct. 59, 5 L. Ed. 2d 52 (1960); United States v. Rogato, 39 F.2d 171 (M.D.Pa.1930).
None of the citations offered by appellant contravenes the above. All of them concern lack of probable cause, invalid warrants or searches of buildings (in one instance an automobile) without warrants where the officers were not lawfully on the premises. Admittedly the evidence involved in this appeal was exposed to plain view out in the open; as the appellant states in his brief "The concrete insulating materials were found on and taken from the ground within three or four feet of relator's back door." The over-all factual situation as rightfully found by the trial judge affords no reasonable ground for declaring the evidence the product of unlawful search and seizure.
Appellant also argues that the admission into evidence of his criminal record should result in the writ of ...