Hastie, Chief Judge, and McLaughlin and Stahl, Circuit Judges. Stahl, Circuit Judge (dissenting).
The appellant, a state prisoner, is seeking federal habeas corpus on the ground that his conviction of larceny and receiving stolen goods resulted from a trial by a judge sitting without a jury which did not satisfy the requirements of due process of law. More particularly, he complains that the police obtained the stolen articles by an illegal search and seizure of his car and thereafter used them as evidence against him at his trial. He also complains that he did not have effective representation by trial counsel.
These issues were first raised in an unsuccessful collateral attack on the conviction in the state courts, where the accused was permitted to support his contentions at an evidentiary hearing. The district court had before it the record of the state habeas corpus hearing. Without taking additional testimony, the district court denied relief and the prisoner has appealed.
Under Pennsylvania law, failure to raise the issue of illegal search or seizure before or at trial forecloses any subsequent consideration of such a contention. Commonwealth ex rel. Cully v. Myers, 1966, 422 Pa. 561, 222 A.2d 910; Pa.R.Crim.P. 323, 19 P.S. Appendix. Indeed, in this case the courts of Pennsylvania invoked that rule against the appellant's claim.
The Supreme Court has found such a restrictive rule a reasonable vindication of a legitimate state interest. Henry v. Mississippi, 1965, 379 U.S. 443, 85 S. Ct. 564, 13 L. Ed. 2d 408. However, the Henry case also teaches that only a deliberate or considered bypassing or waiver of the opportunity to raise the issue in the state trial court will preclude the accused from having the merits of the issue adjudicated as a Fourth Amendment question when the conviction is collaterally attacked by way of federal habeas corpus. Accordingly, we consider whether such waiver is established by the present record.
At appellant's trial the prosecution introduced evidence of the circumstances attending the search of appellant's car and the seizure of stolen goods found in it. A telephone call of unknown origin relayed to a police officer on patrol caused him to investigate a particular parked car. Visual observation showed that the car contained a television set, a strong box, a clock radio and cartons of cigarettes and that the car key was in the ignition switch. While still on the scene the officer received a call from police headquarters that a report had been received that a burglary was in progress in a house nearby.
Leaving the car the officer approached the house in question where he and another officer who also had received the burglary report observed, but were unable to apprehend, three men fleeing from the building. Thereafter, on instructions from his superiors, the officer had the car towed to police headquarters where the observed articles were removed. The articles were later identified as stolen, at least part of them during an earlier burglary.
The police took possession of the car and the articles in it believing that the articles had been stolen by the intruders who had just escaped and that the car was the intended get away vehicle. We think this belief was a reasonable inference from the information that the police had. The telephone call concerning a burglary in progress followed by the flight of three men from the scene provided ample reason for believing that the police had interrupted a burglary. An unusual collection of household articles was observed in the nearby car. At least some of the articles seem to have been visible without entering the vehicle. The key in the ignition suggested readiness for quick departure.
It was in this setting that the defendant's trial counsel elected not to object to the admission into evidence of the household articles found in and taken from the defendant's automobile.
At the hearing on collateral attack in the state court, the petitioner's trial counsel testified as follows concerning his failure to object to the evidentiary use of these articles:
Q. May I ask you, do you recall the case?
A. Yes. Generally, your Honor, not in detail but I do. I have a recollection of the case. I remember Mr. LaMolinare very well because we have had many many conversations, he and I.
Q. Do you recall whether or not you considered the question of raising the question of the legality or the alleged legality of the search and seizure?
A. I am trying to remember in detail that particular point. I had considered this and at that time we decided there wasn't any illegal search and seizure involved in this case. This is my recollection why I came to that conclusion. I can't ...