The opinion of the court was delivered by: BODY
The relator raises two issues in his habeas corpus petition: first, that he was denied a timely, direct appellate appeal by counsel's negligence, inordinate delay and abandonment; and second, that the search and seizure of property in his car and his subsequent arrest and conviction were constitutionally invalid.
As to relator's first allegation, this Court is of the belief that relator has not exhausted his state remedies in seeking relief. An additional problem is created by the fact that relator states no facts upon which this Court can adequately base a judgment.
With respect to the search and seizure and arrest, this Court holds that they were constitutionally defective in that insufficient evidence existed to establish the probable cause made necessary by the Fourth and Fourteenth Amendments. Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964).
The facts surrounding the search and arrest were adequately elucidated at the motion to suppress hearing (denied) and the trial on June 23-24, 1966.
The relator and his co-defendant in the state prosecution, Raymond Mann, were placed under surveillance by the Philadelphia Police sometime in December 1965. The police had received information to the effect that Henderson and Mann had been involved in residential burglaries in the greater Philadelphia area. On December 30, 1965, at about 6:00 P.M., Detectives Ryan and Snyder, from their parked unmarked police cars, observed Henderson and Mann leave a taproom at 15th and Wingohocking Streets. (N.T. 13) Henderson got into a '59 . lincoln Continental white convertible on Wingohocking Street, and Mann got into a '59 Rambler blue sedan on 15th Street. (N.T. 13-14) They drove their cars away with Henderson in the lead; the police followed at a distance with Mann's car in the middle. A state policeman, Detective Caracci, followed in his car but lost communication with Detectives Ryan and Snyder almost immediately. (N.T. 16) The cars proceeded north to the vicinity of 8709 Montgomery Avenue in Springfield Township. (N.T. 16) At about 6:45 P.M. in the vicinity of 8709 Montgomery Avenue, the police lost contact with the subjects' cars. (N.T. 17)
At about 7:00 P.M. Officer Boyle of the Springfield Township Police Department located Mann's car on Harston Lane, 900 block, in Springfield Township. It was unattended. (N.T. 17) Detective Ryan established surveillance of this vehicle at approximately 7:15 P.M. and shortly thereafter saw Henderson drive up in the Lincoln and let Mann out. The Lincoln made a U-turn and went back out Harston Lane. The Rambler did likewise. (N.T. 18-19)
The Lincoln was subsequently located at 15th and Wingohocking Streets at about 9:00 P.M. Henderson was picked up at the taproom at about 9:00 P.M. by Sergeant Fenci, the superior of Detectives Snyder and Ryan in the Major Crimes Section. (N.T. 46-47) Fenci searched Henderson and found six silver dollars. He was then taken to the police headquarters at 8th and Race Streets, Philadelphia. (N.T. 47) No warnings were given to Henderson at this point. Sergeant Fenci stated that he told Henderson, 'Get your coat and come with me.' (N.T. 49) At the time Henderson was taken into custody, the police had no knowledge that any particular burglary had taken place on December 30th. Sergeant Fenci stated, 'I only know the facts as was related to me by Ryan and Snyder, the circumstances as was transpired that night.' (N.T. 52)
At about 11:30 P.M. Detective Ryan went before Magistrate Raymond Malone to get a warrant to search Henderson's Lincoln car. The property to be seized was described as 'Furs (stoles, coats & Jackets) Jewelry, Stocks and Bonds. Also Burglar Tools.' The date of violation given was 'December 30, 1965'. The statement of probable cause given by Detective Ryan is as follows:
'The assigned received information from a confidential source to the effect that Edward Henderson PP#274-778 who has a record of 17 arrests, 4 of which are for burglary and Raymond Mann PP#272931 who has a record of 9 arrests 7 of which are for burglary, were committing burglaries in the greater Phila. area. The undersigned did personally observe Mann on Wed. 12-22-65 pick up Henderson at his residence 4506 N. Hicks St. On 12-29-65 the assigned again observed Mann, coming out of a tap room on the S.W. corner of 15th. and Wingohocking St. in company with Henderson, Mann got into his car alone and left the vicinity. On Dec. 30th., 1965 the assigned in company with Det. Snyder #715, MCD. observed the subjects car mentioned above parked on Wingohocking St. East of 15th. St. also observed parked on 15th St. north of Wingohocking St. a 1960 Rambler Sdn. Pa. 454-44P this car being the one used by Mann. At 5:30 P.M. 12/30/65 observed Henderson & Mann come out of tap room SW 15th. & Wingohocking Sts. get into their respective cars a mobile surveillance was conducted which led to Springfield Twnsp. at which location the Rambler was observed parked on Harston La. at 7:15PM the Lincoln Snd. was drive up to the Rambler Sdn. Pa. 45544P, stop and allow Raymond Mann to get out he in turn got into the Rambler and both cars made 'U' turns and drove out of ...