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:
The assigned received information from a confidential source to the effect that Edward Henderson PP #274778 who has a record of 17 arrests, 4 of which are for burglary and Raymond Mann PP #273931 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 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 7:15 P.M. the Lincoln Snd. (sic) was drive (sic) up to the Rambler Sdn. Pa. 45544P (sic), 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 Harston La. turning at the corner and going opposite directions. Agt. Arbury Williams, Plcmn. James Boyle and Det. Snyder stopped Mann after a short chase at Franklin Rd. & Bethlehem Pike. All of the above actions indicate to the assigned that the person's mentioned were in the process of committing a burglary or were coming from a burglary.