v. United States, 93 U.S.App.D.C. 226, 209 F.2d 789 (1953); United States ex rel. Turco v. Dross, 224 F.Supp. 142 (S.D.N.Y.1963).
Here, in executing the search warrant, the police made no announcement of their authority or their purpose in seeking entry before they broke in. It is not clear whether the state courts held (a) that there is a constitutional right to such prior announcement, but that compliance was excused in this case by exigent circumstances, or (b) that there is no such constitutional requirement.
They concluded only that the search was reasonable under the circumstances.
In considering reasonableness, neither the trial court nor the appellate court drew any distinction between what the officers knew or had reason to believe before the breaking and that which they ascertained after. Both courts, in their respective opinions, recited conduct observed an material found after entry
and concluded, in the words of the appellate court, that 'The circumstances surrounding the search and seizure in this case are not such as to make it unreasonable as a matter of law.' Commonwealth v. Manduchi, 203 Pa.Super. 373, 375, 198 A.2d 613, 614 (1964).
It can only be assumed from the foregoing that the state courts determined that the search of Manduchi's apartment, including the entry without announcement of authority and purpose, was reasonable by considering, as part of the surrounding circumstances, evidence obtained and information learned after the breaking. This is not consistent with federal constitutional standards.
The reasonableness of a search must be judged on the facts and circumstances existing at the time of the entry. A search may not be made reasonable by what it discloses. 'It goes without saying that in determining the lawfulness of entry and the existence of probable cause we may concern ourselves only with what the officers had reason to believe at the time of their entry.' Ker, supra, 374 U.S. p. 40 n. 12, 83 S. Ct. p. 1633. See also, Johnson v. United States, 333 U.S. 10, 68 S. Ct. 367, 92 L. Ed. 436 (1948); and United States v. Di Re, 332 U.S. 581, 595, 68 S. Ct. 222, 229, 92 L. Ed. 210 (1948), wherein it was stated '* * * a search is not to be made legal by what it turns up. In law it is good or bad when it starts and does not change character from its success.' See also United States v. Merritt, 293 F.2d 742 (3rd Cir. 1961).
Since the state court's finding of reasonableness was predicated on an improper standard, the finding must fall and so must the conviction which was based upon evidence admitted on the strength of that finding. Cf. Rogers v. Richmond, 365 U.S. 534, 81 S. Ct. 735, 5 L. Ed. 2d 760 (1961).
The petition for writ of habeas corpus will be granted, but opportunity will be afforded the Commonwealth either to appeal from this grant of the writ or to retry the petitioner, if it so desires. Execution of the writ will, therefore, be stayed for a period of thirty (30) days. At the end of that period of time, if the Commonwealth has neither appealed from this ruling nor initiated proceedings looking to a retrial, the writ will be executed and the petitioner released. Bail to continue in the meantime.