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May 21, 1970

COMMONWEALTH OF PENNSYLVANIA ex rel. Francis FEILING, and Jean Feiling, Plaintiffs,
Charles SINCAVAGE, State Police Officer, Joseph Sauders, State Police Officer, Anthony Cancilla, Castle Shannon Police Officer, and Lee Miller, Castle Shannon Police Officer, Defendants

Marsh, Chief Judge.

The opinion of the court was delivered by: MARSH

MARSH, Chief Judge.

 This civil rights action was brought pursuant to Title 28 U.S.C. § 1343 and Title 42 U.S.C. § 1983. See: Pretrial Stipulation. No demand for jury trial was served and filed by any party within the time specified in the rule. Rule 38(b)(d), Fed. R. Civ. P. After non-jury trial, it is the opinion of the court that judgment should be entered in favor of the defendants.

 During the evening of February 23, 1967, an armed robbery took place at Kormuth's Tavern in Clarksville, Greene County, Pennsylvania. The robbery was perpetrated by four men at approximately 10:30 P.M. *fn1" Less than one hour later, plaintiff, Francis Feiling, was arrested by Charles Sincavage, a defendant, and one Dere, both Pennsylvania State Policemen, while driving his pickup truck westwardly on Route 40 about eight miles from the tavern. His pickup truck matched witnesses' descriptions of the truck into which the loot was placed. The police took Feiling back to the tavern where he was identified as one of the robbers. His truck had the name "Dude" written on the doors and the side of the truck. Dude was Feiling's nickname. The loot consisted of three cases of Old Overholt Straight Rye Whiskey, one Colt.32 caliber revolver, cork plugs, deeds and insurance policies belonging to Eugene Kormuth. None of these articles was found in plaintiff's truck. What was found in the truck were: two placards containing the name "Erie Electrical Conduit Company", *fn2" a green ski mask, a dropcloth, a crowbar, a pair of black leather gloves, two pairs of brown cloth gloves, a box of.32 caliber cartridges, a box of.45 caliber cartridges, and three sets of broken handcuffs. When stopped by Officers Sincavage and Dere, Feiling could not possibly have had time or opportunity to traverse the seventy miles from Clarksville to his residence in Castle Shannon, Allegheny County, Pennsylvania.

 Following his apprehension, Feiling remained in jail until March 10, 1967, when he was released on bail. He was subsequently convicted of armed robbery.

 Other than Feiling, who has always maintained his innocence, the robbers were never arrested nor was the loot recovered.

 On February 28, 1967, the defendants, Sincavage and Sauders, also a State Police Officer, with Detective Thomas Colura of the Allegheny County Detective Bureau, went to the office of Castle Shannon Justice of the Peace John R. Schuster to obtain a search warrant for the search of the Feiling residence at 4116 Steiger Street, Castle Shannon. All were sworn by the Justice, but only Sincavage orally related the underlying circumstances of the robbery, the substance of which is set forth above. These circumstances had provided a cogent basis for the arrest of Feiling by Sincavage. Also presented to the Justice was the theory that since the loot had been removed from Feiling's truck, there existed a reasonable possibility that it might have been secreted in the Feiling residence by his accomplices.

 In addition, Sincavage related the substance of a confidential FBI report shown to him which purported to describe the method of operation of one "Dude" whose telephone number had been changed to the Feiling telephone number. Dude was a burglary suspect operating in the South Side of Pittsburgh and was known as a "safe man". His method of operation was to transport stolen safes to his home where he opened them. The description of Dude and Dude's wife did not fit the description of the plaintiffs.

 The FBI report in and of itself did not provide probable cause for the issuance of the search warrant, but the other sworn facts did provide an adequate basis for the Justice to find probable cause and issue the warrant. If there was even a remote possibility that the other robbers had concealed the loot in the home of the captured robber, thorough investigation would require a search. The fact that the arrested suspect was known as Dude with Feiling's telephone number was an added circumstance for the consideration of the Justice.

 Justice Schuster issued the search warrant to Officer Sincavage. It was the first such warrant he had issued, and since the narration of facts by Sincavage took about one-half hour, the Justice thought "it was too much" for him to write in on the space provided in the affidavit (T., pp. 134-135), so he inserted nothing. The warrant authorized a search of the house, garage and any vehicles on the premises.

 Troopers Sincavage and Sauders and Detective Colura, along with two members of the Castle Shannon Police, the defendants, Cancilla and Miller, went to the plaintiffs' house to make the search. Mrs. Feiling, who knew Officer Cancilla, greeted them at the door and invited them inside. Officer Sincavage read the search warrant to Mrs. Feiling (T., pp. 76, 94, 127, 145 and 162).

 The officers, with Mrs. Feiling present, searched the upstairs portion of the house. The cellar was searched by Detective Colura; none of the defendants went into the cellar (T., pp. 76, 77, 95-96, 120, 123). The garage and Mrs. Feiling's car were searched. None of the Kormuth Tavern loot was found.

 The plaintiffs contend that the duct work in the cellar was torn out and damaged to the extent of $50; they also contend that "a green phone book" was taken by the defendants. No value was placed on the phone book.

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