because evidence seized by the British police in a fashion which would be contrary to the Fourth Amendment was used against him at the trial.
On the merits, we must also deny relief to petitioner. The Fourth Amendment does not apply in any way to foreign police. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), and Weeks v. U.S., 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652 (1914) decided that the only practical way to enforce the Fourth Amendment's ban against unreasonable searches and seizures by those on whom it was binding was to exclude from the trial any evidence so obtained. There was no violation of the mandate of the Fourth Amendment in this case, and accordingly no reason to exclude the evidence. Brulay v. United States, 383 F.2d 345 (9th Cir. 1967). Secondly, until Elkins v. U.S., 364 U.S. 206, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 (1960), federal use of evidence illegally seized by state officers was permitted. Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965) established the rule of non-retroactivity for convictions obtained before Mapp, supra. Similarly, since Elkins was not the law when the conviction was obtained, we hold that it does not retroactively affect convictions obtained before Mapp. To hold that Elkins is not retroactive does not mean that each time the conviction is used to enhance the sentence or to deny petitioner a job, the evidence is used against him. The answer is that the evidence does not affect the conviction and as such, the conviction may be used in any way. This differs from the situation where the conviction itself although void is used to enhance punishment. See Burgett v. State of Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967). The fairness of the trial itself is not under attack here.
We wish to commend Aurelio Munoz, Esquire, who displayed a high degree of legal skill and ingenuity in representing petitioner when appointed by the Court.
IN THE COURT OF QUARTER SESSIONS OF CLEARFIELD COUNTY, PENNSYLVANIA.
COMMONWEALTH -vs- DAVID RONALD ROBSON
No. 29 November Sessions, 1963
NOW, March 16, 1964, the defendant having entered a plea of guilty to the offense of sodomy, the sentence of the Court is that defendant pay a fine of $1.00 and costs of prosecution, and in view of his prior record, it being the opinion of the Court that he will be aided thereby to the further sentence of the Court that he undergo imprisonment in the Western Correctional Diagnostic and Classification Center at the Western State Penitentiary at Pittsburgh, Pennsylvania, in separate and solitary confinement at labor, for and during the term the minimum of which shall be two and one-half years and the maximum of which shall be five years, in such penal or correctional institution as shall be designated by the Deputy Commissioner for treatment; and shall therein be kept, fed, clothed, treated and governed as is provided by law. The fine and costs to be paid through the Probation Office of Clearfield County. Sentence to commence as of October 2, 1963, he having been incarcerated since that date in the Clearfield County Jail. Defendant to stand committed until the sentence of the Court is complied with.
BY THE COURT,
John A. Cherry