The opinion of the court was delivered by: LORD, III
Relator was convicted by a jury of six counts of burglary and larceny on March 28, 1967 in the Lancaster County Court of Quarter Sessions, December Term, 1966, on Bill of Indictment No. 285, and sentenced to serve five to ten years in prison. He attacks his conviction on two grounds: (1) that evidence introduced at his trial was unconstitutionally seized as a result of (a) a search warrant issued without probable cause, and (b) an improperly conducted search;
(2) he was denied the effective assistance of counsel. The Commonwealth concedes that relator has exhausted his state remedies, and we agree.
We ordered a hearing to determine the legality of the search, and to establish why relator's court-appointed counsel failed to object at trial to the introduction into evidence of the fruits of the search here attacked, Maldonado v. Eyman, 377 F.2d 526 (C.A. 9, 1967), and the facts underlying the alleged ineffectiveness of counsel.
The background facts of the legal contentions are fairly simple. In the course of a police investigation of a series of burglaries of several supermarkets and a gas station (all with similar methods of operation), an informant told detectives that Charles and Robert Milburn were overheard discussing these crimes. The two brothers were brought in for questioning. Subsequently, at about 9 p.m. on January 16, 1967, the police obtained two search warrants, one for the Milburns' residence, and another for the residence of one Lester Winger. Both searches proved fruitless. At about 11:15 p.m. on the same night, police obtained a search warrant for relator's apartment at 538 South Lime Street, Lancaster, Pennsylvania, for both the first floor which he rented and the basement, which he did not. The search warrant was issued on the basis of the following affidavit:
"Robert Milburn, under arrest for suspicion of recent burglaries, to wit: above mentioned burglaries, is known to frequent the apt. of HENDERSON. Robert Milburn's brother Charles Milburn says that he suspects Robert Milburn & Henderson committed these burglaries and suspects that they have the proceeds of these burglaries hidden in Henderson's apt. Officer believes this information to be true and correct."
Under color of this affidavit and warrant, two searches were conducted: one of the basement apartment and the other of the first floor apartment. Neither need detain us long. As to the basement, relator steadfastly contended at trial that he was not the lessee or occupant of that apartment. He cannot now be heard to complain of the search. United States ex rel. Watson v. Common Pleas Court, 265 F. Supp. 305, 306, aff'd, 385 F.2d 401 (C.A. 3, 1967). As to the first floor search, the Commonwealth concedes the gross insufficiency of the affidavit, as indeed it must. Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964).
We turn, then, to the real questions, one intertwined with the other: (1) was there a waiver of relator's right to object to the admittedly unconstitutionally seized evidence; (2) did relator have adequate representation at trial.
At relator's trial, his court-appointed counsel interrupted the testimony of Detective Geesey, in charge of the initial search, and requested a side-bar conference. After that conference, the following colloquy transpired:
"MR. DANFORTH [relator's counsel]: Detective Geesey, did you ever obtain a search warrant enabling you to search any part of premises 538 South Lime Street, Lancaster, Pennsylvania, in order to find any articles that were suspected as being stolen from the service station?
"THE WITNESS: Yes, sir, the one I just showed to attorney Going.
"MR. GOING [co-defendant's counsel]: This is the one on the 16th?
"THE WITNESS: Yes, sir, for 538 South Lime Street on the 16th.
"THE COURT: All right, proceed.
"MR. NEWCOMER [District Attorney]: You are satisfied that the search warrant is ...