to see how that adds to the probable cause supporting a search of Henderson's car. While the Motor Vehicle Code may require a person to stop at the command of the police, there is some doubt that the correct method of issuing such a command was employed by the police. Additionally, the police may well have lacked probable cause for stopping Mann's car in connection with the instant convictions. The Court is therefore reluctant to consider the manner in which Mann was stopped as evidence of probable cause.
Finally, while unnecessary to this determination, certain facts brought out in court, but not in the warrant itself, show how deficient the evidence of probable cause was. First, at the time of the issuance of the warrant and the search, the police had no knowledge of what particular crime the relator might have committed. The police did not know if in fact a burglary had been committed by the relator on December 30, 1965. (N.T. 37, 52, 145) In fact, Detective Ryan stated that he did not know whether the items being searched for were the result of burglaries on December 30th, 29th or 22nd. (N.T. 38) It should be noted that the warrant recited December 30th as the 'Date of Violation.'
At the motion to suppress the relator's counsel, Mr. Ricchuiti, questioned Sergeant Fenci about the information he had before he arrested Henderson. Ricchuiti asked: 'At the time that you arrested Edward S. Henderson, did you knew whether or not a burglary had been committed on December the 30th?' Fenci answered: 'No, I only know the facts as was related to me by Ryan and Snyder, the circumstances as was transpired last night.' (N.T. 38)
Since the search and seizure were not based upon probable cause, the arrest was necessarily deficient since it was based upon the same information. Spinelli v. United States, supra, at 415 n. 5, 89 S. Ct. 584.
And now, this twenty-third day of September, 1969, it is ordered that the petition of Edward Henderson for a writ of habeas corpus be and the same is hereby granted.
It is further ordered that the execution of the writ be stayed for a period of ninety (90) days from the date hereof to afford the Commonwealth of Pennsylvania an opportunity to appeal from this order or to re-try the said Edward Henderson. Absent either an appeal and further stay of this order or a re-trial of the relator within the aforementioned period, the writ shall issue and the relator be released from custody.
SUPPLEMENTAL MEMORANDUM AND ORDER
On September 23, 1969 an opinion and order were filed in this matter granting relator's petition for writ of habeas corpus. Execution of the writ, however, was stayed for a period of ninety (90) days in order to afford the Commonwealth of Pennsylvania an opportunity to appeal from this Court's order or, in the alternative, to re-try the relator. On October 1, 1969 relator filed a petition for allowance of bail, which is presently before the Court for consideration.
Since relator was incarcerated pursuant to the judgment of a Pennsylvania state court, it is to the state courts, and more specifically the court which entered the judgment of incarceration, that he must apply for the allowance of bail. Accordingly, the following order is entered.
And now, this seventh day of October, 1969, it is ordered that relator's petition for allowance of bail be and the same is hereby denied.
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