The opinion of the court was delivered by: LUONGO
Relator, Rudolph E. Boyance, was tried in the Court of Quarter Sessions of Bucks County on indictments Nos. 184 through 189, inclusive, September Term, 1961, charging burglary, larceny, receiving stolen goods, possession of burglary tools, bringing stolen goods into Pennsylvania and conspiracy. One of the indictments (No. 189) related to crimes committed during the night of July 12-13, 1961, the others pertained to crimes committed over a period of several weeks before. After trial by jury and a verdict of guilty on all six indictments, Boyance was sentenced, on December 8, 1961, to concurrent terms of 5 to 10 years on five of the six indictments, no sentence having been imposed on No. 187.
The present amended petition for writ of habeas corpus is before the court following a reversal by the Court of Appeals
of this court's dismissal of the original petition herein (M-3008) for failure to exhaust state remedies. The history of the prior litigation in this matter, in the state and the federal courts, is set out below.
Boyance's claim that his convictions were obtained in violation of his constitutional rights is on two main grounds: (I) the invalidity of a search of his home in the early morning hours of July 13, 1961; and (II) ineffective waiver of his right to counsel at the trial in Bucks County in September 1961.
It has been agreed that no evidentiary hearing on this amended petition for writ of habeas corpus is necessary and that the matter may be decided on the records already made in the state criminal proceedings, in the several habeas corpus proceedings in the state and in the federal courts detailed in footnote 2, supra, and the stipulation of facts filed in the instant proceeding (Document No. 14).
I. Illegal Search and Seizure.
During the night of July 12-13, 1961, Bensalem Township Police Sergeant Michaels and Pennsylvania State Police Sergeant Kutney followed Boyance and several accomplices, observed them while they were committing several burglaries in New Jersey and kept them under surveillance while they transported the fruits of the New Jersey burglaries into Pennsylvania. Following these observations and as a result of them, a search warrant was obtained and the questioned search of relator's home and of an automobile parked in his driveway was made commencing at or about 2:30 a.m. on July 13, 1961. Several items seized during the search of the home and automobile (a checkwriter, blank checks and stubs, and a leather wallet from the home, and two iron bars from the automobile) were introduced in evidence at the state criminal trial. Boyance contends that all of those items were the products of illegal search and his constitutional rights were violated by their use in evidence at his trial. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, 84 A.L.R.2d 933 (1961).
Relator attacks the legality of the search on the grounds that (A) there was no authority for the search, and (B) if there was proper authority, the search was unlawfully conducted.
A. Authority for the Search.
1. Issuance of the Warrant.
Boyance's home was searched pursuant to a warrant issued by Justice of the Peace Albert Schultz on July 13, 1961.
The Information accompanying the warrant set forth, in part:
"Before me, a Justice of the Peace,
in and for said County and State, personally appeared Sgt. Lawrence R. Michaels of Cornwells Heights, County and State aforesaid, who being duly qualified, according to law, deposes and says that on or about the 13th day of July, 1961, the following goods and chattels, to wit: Blank Checks, Typewriter, and Check Writer were by some person or persons, feloniously stolen, taken and carried away out of the Volks Motors. Olden Ave., Ewing Twp., Mercer Co., State of New Jersey of the said [blank ] and that the said goods and chattels, as the complaintant has just and reasonable cause to suspect and believe, and does suspect and believe, are concealed in the 2-story stone & frame house of one Rudolph E. Boyance at 5741 Hulmeville Road, Cornwells Heights County of Bucks and State of Pennsylvania.
"All this contrary to the form of the Act of Assembly in such case made and provided, and against the Peace and Dignity of the Commonwealth of Pennsylvania, and further saith not.
s/Sgt. Lawrence R. Michaels
The Information does not, on its face, contain sufficient factual information to support a finding by the judicial officer that there was probable cause for the issuance of the warrant. Conclusory allegations such as those contained in Sgt. Michaels' Information are insufficient 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964);
[726140003-opinionfn5" NAME="#ssee Aguilar v. State of Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964);
United States ex rel. Campbell v. Rundle, 327 F.2d 153 (3d Cir. 1964); United States ex rel. De Negris v. Menser, 247 F. Supp. 826 (D.Conn.1965), and cases cited therein, aff'd, 360 F.2d 199 (2d Cir. 1966)], but the fact that the information itself is not sufficiently detailed to support a finding of probable cause under Fourth Amendment standards does not terminate the inquiry into the validity of the warrant. The required factual support may be furnished by other means. The Fourth Amendment requires only that probable cause be "supported by Oath or Affirmation," it does not require that the support be in writing. Oral testimony as well as affidavit in writing, may serve as the basis for the issuance of a warrant under constitutional standards. Gillespie v. United States, 368 F.2d 1 (8th Cir. 1966); Miller v. Sigler, 353 F.2d 424 (8th Cir. 1965), cert. denied, 384 U.S. 980, 86 S. Ct. 1879, 16 L. Ed. 2d 690, (1966); Sparks v. United States, 90 F.2d 61 (6th Cir. 1937). See and compare Rule 41, Federal Rules of Criminal Procedure. Pennsylvania permits the use of oral testimony presented to the judicial officer to support the issuance of a warrant, Commonwealth v. Crawley, 209 Pa.Super. 70, 223 A.2d 885 (1966), and that procedure satisfies the Fourth Amendment requirement of reasonableness, Ker v. State of California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963).
presented to the Justice of the Peace by Sgt. Michaels, considered in conjunction with the conclusory allegations in the Information, furnished ample factual support for a finding of probable cause.
Generally, in a doubtful or marginal case, a search under a warrant may be sustained where, without one, it would fall. E.g. United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965). In determining whether there was probable cause, only the facts that were before the judicial officer who issued the warrant may be considered. E.g. Aguilar v. State of Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964).
In the instant case, the Justice of the Peace had before him the testimony of an eyewitness to the commission of a crime who testified that the stolen goods were in the home sought to be searched. That afforded more than a "substantial basis" [ Rugendorf v. United States, 376 U.S. 528, 84 S. Ct. 825, 11 L. Ed. 2d 887 (1964)] for the finding that probable cause existed for the issuance of the search warrant if the testimony of that eyewitness was under oath. The testimony here reveals that after Sgt. Michaels had related the events of the evening, the Justice of the Peace typed the Information. It was at this point that the oath was administered.
Such a procedure is irregular, but it apparently does not affect the validity of the warrant. "It is of no consequence that the oath was taken after the statements were made, rather than before." Lopez v. United States, 370 F.2d 8, 11 (5th Cir. 1966); cf. Commonwealth v. Beddick, 180 Pa.Super. 221, 119 A.2d 590 (1956), allocatur denied. While it is unclear from Sgt. Michaels' testimony whether he swore to the truthfulness of the more detailed oral statements as well as the conclusory Information, from the context of the events before the Justice of the Peace, I am satisfied that he swore to the truth of both (see Gillespie v. United States, supra, where the same problem arose), and there was thus ample basis for the finding of probable cause.
2. Search Incident to Arrest.
Alternatively, the Commonwealth has urged that there was ample authority for the search of Boyance's home since it was incident to a lawful arrest. The Commonwealth contends that a search may be upheld if incident to an arrest notwithstanding that the search precedes the arrest. Holt v. Simpson, 340 F.2d 853 (7th Cir. 1965). It is not necessary to consider whether that principle is applicable here for the search-incident-to-arrest argument falls for an entirely different reason. Where the purpose of entry is to search and not to arrest, the search cannot later be justified as incident to arrest. Jones v. United States, 357 U.S. 493, 78 S. Ct. 1253, 2 L. Ed. 2d 1514 (1958); Commonwealth ex rel. Ensor v. Cummings, 420 Pa. 23, 215 A.2d 651 (1966); United States ex rel. McMullin v. Myers, 257 F. Supp. 812 (E.D.Pa.1966). The right of entry here was predicated upon the search warrant. The extensiveness of the search and its timing with relation to the actual arrests demonstrates that search, not arrest, was the reason for the entry. The fact that the ...