Before McLAUGHLIN, GANEY and SMITH, Circuit Judges.
The troublesome question presented on this appeal is did the district court err in ruling that evidence obtained in the execution of an invalid search warrant was inadmissible in a Pennsylvania Court. In our opinion, it did not.
Between January of 1959 and April of 1960, several tenants of the Presidential Apartments in Philadelphia complained that their apartments had been burglarized while they were away from them. There was no evidence that the apartments had been forcibly entered. The perpetrator or perpetrators of the burglaries were believed to have used duplicate keys or a master key to gain entrance into the apartments. The Philadelphia police suspected, among others, one Edmund Mancini. They kept him and the place where he lived under surveillance.
On May 1, 1960, police officers, with the aid of a search warrant, confiscated a variety of tools belonging to Mancini at the Audio Videx Company on the third floor of a building in Philadelphia. The Company, consisting of the partnership of Mancini and Stanley Diamond, had leased the space from a furrier establishment. The tools could be used to cut keys from key blanks. On the same day, the police officers, armed with a search warrant, gained entrance to Mancini's place of residence at 209 Park Towne Apartments, South Building, in Philadelphia, without his permission. At the time no one was in the apartment. The officers made a thorough search of the apartment and seized a number of "homemade" keys and key blanks lying in a desk drawer. They also confiscated several other items, including a book on locksmithing and some material which could be used to make impressions of objects.
On or about May 16, 1960, Mancini was arrested on a warrant on a charge by one of the tenants whose apartment was claimed to have been burglarized. After a hearing before a magistrate, he was either discharged or put on bail. He was arrested again on or about June 1, on another apartment burglary charge and placed on bail. On July 29, he was rearrested and held for court. He was tried in the Court of Quarter Sessions of Philadelphia County on several bills of indictment charging him with burglary, larceny and receiving stolen goods. At the trial, which began on May 18, 1961 and lasted four days, the search warrants were not produced nor was the failure to produce them explained or accounted for. No objection was made to the validity of the search warrants nor was any attempt made to inquire into the circumstances surrounding their issuance. The keys, key blanks, book and impressionable material taken from Mancini's apartment, as well as the tool kit obtained from the business establishment were identified at the trial. The "homemade" keys were shown to have opened the door locks of the apartments claimed to have been burglarized. When the items were offered into evidence at the end of the State's case, the trial judge asked Mancini's counsel whether he had any objections and counsel then replied that he objected to their admission into evidence. This objection was promptly overruled. After all the evidence was in, the trial judge, sitting without a jury, deferred the rendering of his verdict.
On June 19, 1961, the Supreme Court handed down its decision in Mapp v. Ohio, 367 U.S. 643, p. 655, 81 S. Ct. 1684, p. 1691, 6 L. Ed. 2d 1081 holding that "all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court." On the same day the trial judge found Mancini guilty on all the bills of indictment, but deferred sentence pending post-conviction motions. Two days later Mancini filed motions in arrest of judgment and for a new trial. One of the grounds for these motions is that the objects seized under one of the search warrants were inadmissible. On October 13, 1961, he filed a petition in the County Court to quash the search warrants executed on May 1, 1960, and to suppress and strike from the trial record any reference to the objects seized under one of the warrants because the search and seizure were in violation of the due process clause of the Fourteenth Amendment to the Constitution. The petition alleged that he was ready to verify the averments therein by clear and satisfactory evidence and requested that he be given an opportunity to produce the evidence at a hearing. The trial judge heard argument upon the applicability of the Mapp decision to the criminal proceeding. Nevertheless, on December 26, 1961, he dismissed the petition, and, on January 11, 1962, he dismissed the motions in arrest of judgment and for a new trial, and sentenced Mancini to imprisonment for 3 to 15 years. Thereafter, Mancini pursued his State Court remedies in an effort to overturn the judgment and sentence of the trial court, but was unsuccessful. On April 15, 1963, he applied to the United States District Court for the Eastern District of Pennsylvania for a writ of habeas corpus. After a hearing, that court found that one of the search warrants was issued April 26, 1960, on an unsworn complaint and affidavit which recited no facts from which the issuing magistrate could have made a determination that probable cause existed. It ruled that Mancini had exhausted his State remedies, and that he was entitled to the protection of the ruling in the Mapp case. It therefore granted the writ, but stayed its issuance for 60 days to give the respondent an opportunity to seek review of the court's judgment or to retry Mancini, and set him free on bail*fn1 219 F.Supp. 549 (July 11, 1963). The Commonwealth of Pennsylvania has appealed to this court.
Since the district court ultimately granted the writ, it is necessary for us to ascertain whether Mancini had exhausted his State remedies. The district court determined that he had. On this appeal the State does not dispute that determination. The second paragraph of 28 U.S.C.A. § 2254 reads: "An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented." Pennsylvania permits a collateral attack upon a conviction and judgment of sentence by way of habeas corpus. Mancini has not resorted to that procedure. At the time he filed his application for the writ in the district court, it is doubtful whether the Courts of Pennsylvania would have entertained a similar application on the merits in view of the decision of the Superior Court of Pennsylvania in Commonwealth v. Mancini, 198 Pa.Super. 642, 184 A.2d 279 (September 13, 1962), affirming the action of the trial court.At page 646 of its opinion, at page 281 of 184 A.2d, the Court, after noting that there was nothing in the record to show illegality in connection with the warrants, states:
"To sustain appellant's contention would require the courts of this Commonwealth to re-examine prior convictions on the mere belated allegation that the conviction involved evidence obtained as the result of an unreasonable search and seizure. The court below, in an opinion by Judge SPORKIN, very well stated: 'We conclude, therefore, that since there was nothing in the record before us indicating any possible illegality in either the issuance or service of the search and seizure warrants, the decision in Mapp v. Ohio, supra, cannot be invoked to empower this Court to quash the search warrants and suppress the evidence. Nor does Mapp direct us to reopen the instant case for the purpose of inquiring into factual questions which were not raised either before or at the time of the trial.'"
The intervening cases of Commonwealth ex rel. Wilson v. Rundle, 412 Pa. 109, 194 A.2d 143, and Commonwealth v. Raymond, 412 Pa. 194, 194 A.2d 150, both decided on October 9, 1963, almost three months after the district court had allowed the writ of habeas corpus to issue, do not alter the situation. The Wilson case was a collateral attack upon a conviction which became "final" prior to Mapp. The Supreme Court of Pennsylvania held, in affirming the denial of the writ of habeas corpus, that in such a situation Mapp did not apply. Of interest here, the Court went on to say by way of dictum that it would seem only essentially fair and logical that the Mapp rule be applied retrospectively in two situations: "* * * (b) to all cases where not only the search and seizure took place prior to Mapp but where the conviction and the judgment of sentence had not become final at the time Mapp was decided (cited cases and footnote omitted)." 412 Pa. at 117, 194 A.2d at 147. The Raymond case involved a direct appeal from a pre-Mapp conviction and judgment of sentence which raised, for the first time, the issue of the illegality of a search and seizure. The Court held that "The law to be applied on direct appeal, under the circumstances presented, is that in existence as of the date of appellate decision." And then went on to rule that: "However, we do not agree that the present record justifies the conclusion that the defendant can complain of the search or that the evidence was illegally seized." 412 Pa. at 200, 194 A.2d at 153. Assuming that a State Court, conforming to those cases, would entertain, on the merits, his petition for habeas corpus, we think Mancini had exhausted his remedies in the State Courts within the meaning of 28 U.S.C.A. § 2254.
Where an applicant for habeas corpus in a federal district court has presented his Constitutional question in the State Courts by at least one available post-conviction procedure, he need not seek collateral relief based on the same evidence and issue already decided. Brown v. Allen, 344 U.S. 443, 447-450, 73 S. Ct. 397, 97 L. Ed. 469 (1953). Also see Wade v. Mayo, 334 U.S. 672, 677-678, 68 S. Ct. 1270, 92 L. Ed. 1647 (1948); Fay v. Noia, 372 U.S. 391, 420-422, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963); United States ex rel. Master v. Baldi, 198 F.2d 113, 116 (C.A.3, 1952).
In the trial court, on direct appeal to the Superior Court of Pennsylvania and in the petition to the Supreme Court of Pennsylvania for allowance of an appeal from the decision of the Superior Court, as well as in his application for certiorari, Mancini raised the question of the invalidity of the search warrant and claimed that the evidence seized thereunder was inadmissible at the trial because it was obtained in violation of his rights under the due process clause of the 14th Amendment to the Constitution. The trial court refused to give him an opportunity to place before it the search warrant and accompanying affidavit, and to examine, in open court, both the police officer who obtained the warrant and the magistrate who had issued it. In his appeal proceeding, we are satisfied that he properly raised the question of the trial court's alleged improper refusal to permit him to show that the search warrant was invalid.
The State concedes here that the search warrant in question is invalid*fn2 It also admits there is not only a reasonable possibility that the evidence seized under that warrant not only might have, but did contribute to Mancini's conviction*fn3 Despite these concessions, it maintains that the evidence obtained as a result of the service of the invalid warrant was admissible at the trial under Pennsylvania law. Prior to the Mapp case, the Pennsylvania Courts allowed illegally obtained evidence to be admissible at a trial. Commonwealth v. Dabbierio, 290 Pa. 174, 138 A. 679 (1927); Commonwealth v. Chaitt, 380 Pa. 532, 112 A.2d 379 (1955); Elkins v. United States, 364 U.S. 206, Appendix, pp. 225, 231, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 (1960); Commonwealth v. Campbell, 196 Pa.Super. 380, 386-387, 175 A.2d 324 (1960), cert. den., 371 U.S. 901, 83 S. Ct. 203, 9 L. Ed. 2d 164. Hence we must answer the State's main contention that Mapp v. Ohio, supra, 367 U.S. 643, 81 S. Ct. 1684, is to have prospective application only.
Assuming momentarily that retrospective application of the Mapp rule is not mandatory upon the courts of the states, the Pennsylvania Courts would be free to adopt a policy of applying the rule retrospectively. If the extent of that retrospective application covers a situation like that of Mancini's, then we need not determine whether those Courts are required to do so. For example, see Fahy v. Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963).Were Mancini to apply to a Pennsylvania Court for a writ of habeas corpus, we believe that tribunal would, in reliance upon the Commonwealth v. Raymond case, supra, and the dictum in Commonwealth ex rel. Wilson v. Rundle, supra, apply Mapp to his case. If we are wrong in this assumption, we hold that it and the federal district courts would be required to do so. We reach this conclusion by focusing our attention, not on the particular words used by the Supreme Court in Mapp, but on what the Court did under the facts of that case. The controverted evidence in that case was seized on May 23, 1957, and later introduced into evidence during a trial when Wolf v. Colorado, 338 U.S. 25, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949), was considered the law. Yet the Court did not say that since that was the situation at the time, the evidence was legally admissible, and then go on to hold that after June 19, 1961, the Wolf doctrine would no longer be applied.On the contrary, the Court held the evidence was obtained as the result of a search and seizure in violation of the Constitution, and was inadmissible in the State court. ...