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March 10, 1972

UNITED STATES of America ex rel. Henry JOHNSON, H-8407
R.L. JOHNSON, Superintendent

Edward R. Becker, District Judge.

The opinion of the court was delivered by: BECKER

EDWARD R. BECKER, District Judge.

 This is a petition for a writ of habeas corpus by a state prisoner who is serving a five to ten year sentence following his conviction by Judge Robert W. Honeyman of the Court of Common Pleas of Montgomery County, Pa., sitting without a jury, of the crimes of burglary, larceny, and conspiracy. In his petition, relator claims entitlement to relief on essentially three grounds: (1) that he was arrested without probable cause; (2) that the search of the automobile in which he was riding at the time of his arrest violated the Fourth Amendment; and (3) that the testimony of his co-defendant, Albert Johnson, exonerated him of the crimes charged. Relator has essentially exhausted his available state remedies and his case is properly before us for an adjudication of his constitutional claims. *fn1" Since the only issues which we must now decide concern facts which are amply developed in the existing state court records, we deem it unnecessary to hold an evidentiary hearing. *fn2" Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963). For the reasons stated herein, we must deny relator's petition.

 We shall first consider the question of probable cause for relator's arrest, i.e., did the "facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed [citations omitted]." Henry v. United States, 361 U.S. 98, 102, 80 S. Ct. 168, 171, 4 L. Ed. 2d 134 (1959). Accord, United States v. Dento, 382 F.2d 361 (3d Cir. 1967), cert. denied, 389 U.S. 944, 88 S. Ct. 307, 19 L. Ed. 2d 299, rehearing denied, 389 U.S. 997, 88 S. Ct. 493, 19 L. Ed. 2d 502. Since questions of probable cause must be viewed in light of all the surrounding circumstances, a particularized recitation of the facts is necessary to our discussion. The facts are ably summarized by Judge Honeyman in his opinion:

"On Sunday, January 14th, 1968, at approximately 4:35 a.m., an Officer of the Springfield Township Police was on motor patrol in the vicinity of the intersection of Bethlehem Pike and Mill Road. As he approached the intersection he observed a car starting to pull out of a closed gas station onto Bethlehem Pike. As the Officer proceeded to the gas station the car stopped, backed up and parked. At this time, with the exception of a small light in the gas station, the station was dark.
After the Officer drove into the station and parked in front of the car the two occupants, the defendants, alighted from the car and walked over to the police car. The driver, defendant Albert Johnson, upon request of the Officer, who was still in his car, produced his driver's license. The license indicated that the defendant lived at 4316 Terrace Street, Philadelphia, Pennsylvania. When asked to produce his owner's card, the driver said that it was inside the gas station. He went on to explain that he had had his car repaired in the station earlier in the day and then had gone to Allentown. On the return trip from Allentown the car trouble reoccurred and he had pulled into the gas station to leave the car for further repairs. The defendants then asked for the location of a pay phone and were directed to a telephone booth adjacent to an Acme market which was approximately 100 yards away. The two defendants then walked towards the telephone booth.
After they had left, the Officer pulled his car around behind the defendants' car and noted its license number. He then made a radio call to the County Police Radio Room to ascertain the registered owner of the car. He was told that the car was registered in the name of a Lucille Philpot of Philadelphia.
The Officer, after making this observation, drove over to the defendants who were in the vicinity of the telephone booth. He arrested the defendants for larceny of the automobile and for possession of stolen goods, i.e., cigarettes. The defendants were then taken back to the car and the trunk was opened. Inside were found many loose cartons of cigarettes.
The defendants were then taken to the Springfield Township Police Building. The next morning the arresting Officer swore out an affidavit for a search warrant and a warrant was issued by Justice of the Peace Thomas Jenkins. A search was subsequently made of the car. The items seized, the angle iron and cigarettes, were physically shown to Mr. Jenkins but no written return was made on the warrant itself. The warrant and the affidavit were retained by the Police until the Court hearing on the defendants' Motion to Suppress."

 While the caselaw has enunciated certain basic standards, in the final analysis, probable cause must be determined on a case by case basis in light of the totality of surrounding circumstances existing at the time of the arrest. Our analysis of the facts reveals a number of ingredients relative to a finding of probable cause.

 The suspects were first observed at 4:30 A.M. on a Sunday morning, pulling out of a closed gasoline station; as the officer proceeded to the gas station, their car backed up and parked. The driver, who also represented himself to be the owner of the car, *fn3" did not live in the immediate area, and could not produce proof of ownership. His justification for his presence at a closed gas station, i.e., that he was bringing the car in for repairs on his return from Allentown, was suspicious in light of the officer's personal observation that when he first saw the car, it was exiting from the gas station and was not entering or parked. Furthermore, the information received by the officer that the license plate (and apparently the car) was registered in another's name, with no apparent connection with the driver, was at variance with the representation that the driver owned the car. As of this point, the officer at least had reason to be highly suspicious that a crime had been or was being committed by relator and his companion.

 We do not have to decide if probable cause to arrest the relator existed at this point in time because the presence in the car of the two large boxes full of cartons of cigarettes and the long length of "angle iron" covered with snow and ice, when combined with the other facts known by the officer, clearly created probable cause. However, if the search of the interior of the car from the outside with a flashlight by looking through the windows constituted an illegal warrantless search, then the knowledge gained through an illegal search cannot be used as an indicia of probable cause to arrest. Alderman v. United States, 394 U.S. 165, 176-177, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969); Sibron v. State of New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968). But see, Scearce v. Field, 292 F. Supp. 807 (C.D. Cal. 1968).

 On similar facts, some courts have concluded that there was not a "search" within the meaning of the Fourth Amendment. United States v. Hanahan, 442 F.2d 649 (7th Cir. 1971); United States v. Johnson, 431 F.2d 441 (5th Cir. 1970) (alternative holding); United States v. Polk, 433 F.2d 644 (5th Cir. 1970); United States v. Morales, 440 F.2d 1332 (5th Cir. 1971); Gil v. Beto, 440 F.2d 666 (5th Cir. 1971). Other courts have held that there was a search but that it was reasonable. Marshall v. United States, 422 F.2d 185 (5th Cir. 1970); United States v. Vilhotti, 323 F. Supp. 425 (S.D.N.Y. 1970). Also, United States v. Johnson, supra (alternative holding). Regardless of the basis for upholding these visual acts, the cases require that the officer have the right to be in the position to have that view. Harris v. United States, 390 U.S. 234, 88 S. Ct. 992, 19 L. Ed. 2d 1067 (1968). In this case, it is obvious that the officer who was on the premises of a gasoline service station which is open to the public met this requirement. Therefore, we conclude that the knowledge of the cigarettes and angle iron was lawfully obtained by the officer for "what a person knowingly exposes to the public is not a subject of Fourth Amendment protection. See Lewis v. United States, 385 U.S. 206, 210, 87 S. Ct. 424, 427, 17 L. Ed. 2d 312 (1966); United States v. Lee, 2 ...

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