Appeal from order of Superior Court, March T., 1964, No. 8, affirming order of Court of Common Pleas of York County, May T., 1963, No. 200, in case of Commonwealth ex rel. Thelma Adele Ensor v. Charlotte C. Cummings, Superintendent, Daniel W. Shoemaker, District Attorney, and Lyman Stambaugh, Sheriff.
Martin Vinikoor, with him Stanford Shmukler, and Vinikoor, Fein, Criden and Johanson, for appellant.
Daniel W. Shoemaker, District Attorney, with him Lewis H. Markowitz and Earl R. Doll, Assistant District Attorneys, and John T. Miller, First Assistant District Attorney, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen.
The appellant, Thelma A. Ensor, was convicted by a jury of violating Section 718 of the Act of June 24, 1939, P. L. 872, 18 P.S. § 4718 (criminal abortion), and sentenced to a state correctional institution. On appeal the Superior Court affirmed, 196 Pa. Superior Ct. 380, 175 A.2d 324 (1961). We denied allocatur and the Supreme Court of the United States refused certiorari, 371 U.S. 901 (1962).
Subsequently, an action in habeas corpus was instituted in the Court of Common Pleas of York County which was dismissed after hearing. On appeal the Superior Court affirmed, 204 Pa. Superior Ct. 1, 201 A.2d 291 (1964). We granted allocatur.
Upon the occasion of appellant's arrest, investigating police officers, armed with a search warrant, entered by use of a key certain premises in which the appellant and others were engaged in performing abortions. Arrests were made and surgical instruments and other incriminating evidence were seized and later admitted in evidence at trial.
It is now argued that the search warrant was invalid; that the entry was made, and seizure effected, on the authority of the invalid warrant; and that the admission in evidence at trial of evidence so seized was prejudicial error requiring the issuance of the writ and the grant of a new trial.
We agree that the search warrant was invalid. The complaint upon which it was issued was legally insufficient
in that it failed to set forth probable cause properly and also failed to allege a pre-existing crime: United States ex rel. Campbell v. Rundle, 327 F. 2d 153 (1964), and Aguilar v. Texas, 378 U.S. 108 (1964).
We further agree that if the entry to the premises involved were made to make a search and seizure solely on the authority of the invalid warrant, it was illegal, and any evidence seized as a result of the illegal entry and search was inadmissible at trial. Such a seizure would be in violation of the 4th and 14th Amendments to the Constitution of the United States. See, Beck v. Ohio, 379 U.S. 89, 85 S. Ct. 223 (1964). Evidence so seized is now inadmissible in state court proceedings: Mapp v. Ohio, 367 U.S. 643 (1961). The ruling in Mapp is controlling since that decision was filed while the appeal from the judgment of sentence here involved was still pending: Commonwealth ex rel. ...