The opinion of the court was delivered by: TROUTMAN
TROUTMAN, District Judge.
Relator, a State prisoner, is presently incarcerated at the State Correctional Institution at Pittsburgh, Pennsylvania, serving a two to ten year sentence imposed on April 21, 1967, after being convicted of burglary, larceny and conspiracy on Bill No. 523, Montgomery County, Pennsylvania, November Term 1965. Relator's motions for a new trial and in arrest of judgment were denied by the trial judge and both the Superior (June 21, 1967) and Supreme (June 24, 1968) Courts of Pennsylvania affirmed such denial.
In his petition for a writ of habeas corpus relator raises two grounds, namely, that his arrest without a warrant was not based upon probable cause in violation of his rights under the Fourth and Fourteenth Amendments to the United States Constitution and that "[relator] was prejudiced by the use of evidence gathered as a consequence of an illegal search and seizure directed at [relator's co-defendant] * * * Edward Henderson".
At the outset, we must note that relator, in his State Court proceedings, by way of his motions for new trial and arrest of judgment and the subsequent appeals, did not seek to challenge the lawfulness of his arrest. In those proceedings, relator made only one of the contentions raised here, namely, that he was prejudiced by the evidence obtained as a result of an illegal search of his codefendant's automobile. Consequently, as to the first issue concerning relator's arrest, there has been a failure to exhaust available State Court remedies. Relator's counsel has conceded this at oral argument and we, therefore, will deny relator's petition without prejudice as it pertains to the arrest issue.
We have carefully reviewed the State record and have found it sufficiently complete as to make a further evidentiary hearing unnecessary. See Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963); United States ex rel. Montanez v. Rundle, 226 F. Supp. 118 (E.D. Pa. 1964). The record indicates the following facts:
On December 21, 1965, Detective John Ryan, a member of the Major Crimes Division of the Philadelphia Police Department, received information from a confidential source that relator and his co-defendant Henderson were committing residential burglaries in the greater Philadelphia area. As a result of the information received Detectives Ryan and Charles Snyder were instructed to place the relator Raymond Mann and Edward Henderson under surveillance. Both detectives knew Mann and Henderson on sight since they had prior incidents with the law over a period of approximately six to seven years. On December 30, 1965, at about 6 P.M. the detectives, from unmarked police vehicles, observed relator and his co-defendant leaving a taproom at Fifteenth and Wingohocking Streets in Philadelphia. Henderson got into a 1959 White Lincoln Continental convertible and relator got into a 1959 blue Rambler sedan. Both drove in a northerly direction with Henderson in the lead and with the police following at a distance until they reached Montgomery Avenue, leading to Springfield Township, Montgomery County, Pennsylvania. At about 6:45 P.M., the police lost sight of the two men for approximately fifteen minutes until a Springfield Township officer observed Mann's unattended vehicle on Harston Lane in Springfield Township. Mann's vehicle was placed under surveillance. After 7:15 P.M. Detective Ryan saw Henderson drive up in his Lincoln and let Mann out, whereupon Mann entered his own car, both made U-turns and drove out Harston Lane. Immediately thereafter relator was apprehended by Officer Williams of the Springfield Township police and Detective Snyder at Bethlehem Pike and Franklin Street after a short chase. Approximately two hours later Henderson returned to Fifteenth and Wingohocking Streets in his Lincoln and was arrested, searched and taken to police headquarters at Eighth and Race Streets. The search of Henderson's person uncovered six silver dollars. No warnings were given to Henderson at the time of his arrest and the police then had no knowledge that any particular burglary had taken place on December 30.
At about 11:30 P.M. Detective Ryan appeared before Magistrate Raymond Malone and obtained a warrant to search Henderson's Lincoln. The property to be seized was described as "furs, (stoles, coats and jackets) jewelry, stocks and bonds. Also burglar tools". The statement of probable cause given by Detective Ryan is as follows:
Upon the basis of the above a search warrant was issued and later that evening Detective Snyder drove the Henderson vehicle to police headquarters where it was searched. The search uncovered one mink jacket with the initials LHA sewn into the lining, as well as two flashlights, three screwdrivers, a pair of ice grips, a pair of gloves, and a license tag issued to another vehicle. The mink jacket was subsequently introduced into evidence at relator's trial.
On December 31, 1965, a burglary was first reported to have occurred at 1403 Paper Mill Road in Springfield Township at the residence of Louise H. Altman, whose family was away at the time, so the first time that the police had official notice that a particular crime had been ...