Freedman, Aldisert and Gibbons, Circuit Judges. Gibbons, Circuit Judge (dissenting).
The district court granted relator's petition for habeas corpus,*fn1 and respondent has appealed.
Relator was convicted on a third trial in the Court of Quarter Sessions of Philadelphia County of aggravated robbery, burglary, conspiracy and the commission of a crime of violence while armed, for which he was sentenced to imprisonment for terms aggregating 10 to 30 years.
The petition assigned three grounds for relief. One was that the identification testimony of a maid employed by the victims was perjured. The district court held that this was a matter which the jury had determined at the trial in the state court. The second claim was that the identification was based on a line-up which violated relator's rights under the Fourteenth Amendment. The district court doubted whether there had been an exhaustion of state court remedies on this claim and did not decide it because it granted the writ on the third claim, that the introduction in evidence of a gun violated relator's rights under the Fourth Amendment because it was obtained as a result of an invalid search. We are thus brought to a consideration of the validity of the search and seizure of the gun.
Preliminary to the first trial in the state court, Alessandroni, P.J., granted a motion by relator to suppress the gun, and the ensuing trial ended in the jury's disagreement. On the second trial before another judge, although the gun was admitted in evidence because relator failed to file a pretrial suppression motion, the jury once more disagreed. Prior to the third trial relator was brought to trial on two other indictments, which had been severed from the present indictments, charging possession of a firearm after conviction of a crime of violence. Those charges arose from the same factual circumstances as the present charges and involved the use of the same gun. Relator's motion to suppress the gun as evidence at the trial of those indictments was granted by Hagan, J., without opposition by the Commonwealth, and without the evidence of the gun the judge directed a verdict of acquittal.
Before the third trial on the present indictments another suppression hearing was held on a motion by relator, this time again before Alessandroni, P.J., who now refused to suppress the evidence. At the trial which followed before another judge the gun was admitted in evidence and relator was found guilty. Motions for a new trial and arrest of judgment were denied by the Common Pleas Court en banc,*fn2 and the Superior Court, being equally divided, affirmed relator's conviction.*fn3 The Supreme Court of Pennsylvania denied allocatur,*fn4 and the Supreme Court of the United States denied certiorari.*fn5
Relator then sought habeas corpus in the state courts. His petition was denied without a hearing by the Common Pleas Court and the denial was affirmed by the Superior Court.*fn6 The Supreme Court of Pennsylvania, however, in an unreported order, reversed the Superior Court, vacated the order of the Common Pleas Court and remanded the record for consideration of relator's contention that the introduction of the gun in evidence violated his constitutional rights.
On remand the Common Pleas Court held an evidentiary hearing and limiting its consideration to the legality of the search and seizure of the gun in accordance with the mandate of the Supreme Court, again denied the petition. It held that relator's wife, who had authorized the police to enter and search the garage where they found the gun, had an independent right to consent to the search, which theretofore was valid.*fn7 The Superior Court affirmed per curiam,*fn8 and the Supreme Court of Pennsylvania, with two Justices dissenting, affirmed.*fn9
Relator claims at the outset that the decision of Hagan, J., suppressing the gun on the other two indictments was res judicata of the same issue on these indictments and that the Commonwealth therefore was collaterally estopped from relitigating the question at the third trial. Although collateral estoppel has constitutional significance in criminal cases,*fn10 in the view we take of the case it is unnecessary to consider it here.
Relator was taken into custody at about 1 p.m. on April 13, 1961. The police searched him and removed his wallet, key ring, a receipt book and some money. At his request they turned over the receipt book and money to his employer, Mr. Reimers, and the wallet to his wife. They retained the key ring and with one of the keys opened relator's automobile. Later the same day, without any request by the relator that they do so, the police returned the key ring to his wife, not knowing when they did so that one of the keys on it opened the lock of the door of the garage where the gun was found. Later that afternoon two detectives called on relator's wife at the home of her parents. She and relator were temporarily residing there because she was ill. They intended to find a new home on her recovery, but meantime, they had temporarily stored their household goods in the garage*fn11 about two blocks from her parents' home.
The detectives asked Mrs. Cabey if her husband owned a gun. She replied that she did not know but that all her belongings and her husband's were in the garage, where they could look if they wished. She offered them the key to the garage which she had received but a short time before from another member of the police. When one of the detectives asked if he needed a search warrant, she replied that he did not, and that she had nothing to hide. She thereupon gave him the key, and with it the detectives entered the garage where they found the gun in a washing machine.
It is admitted that the detectives could not have obtained a search warrant because they had no probable cause to believe the gun was hidden in the garage. It is also undisputed that the lease for the garage was an oral one entered into between relator alone and Mr. ...