McLaughlin, Staley and Smith, Circuit Judges.
MCLAUGHLIN, Circuit Judge.
Appellee had been convicted of the misdemeanor of bookmaking in the Commonwealth of Pennsylvania Court of Quarter Sessions of Lancaster County. The conviction was affirmed on appeal and while serving the prison term of his sentence he instituted this habeas corpus proceeding in the district court. It was there conceded by respondent-appellant that on the Fourteenth Amendment Due Process Clause question here involved petitioner-appellee's state remedies had been effectively exhausted.
In the state trial, crucial evidence obtained as a result of searching appellee's apartment was admitted into evidence. Appellee's contention at the trial and in this proceeding has been and is that the search was unreasonable and therefore the mentioned evidence was inadmissible.
There is no dispute as to just what the facts themselves were. Around noon of March 1, 1961, Lancaster city detectives, having obtained a search warrant authorizing them to search appellee's apartment for bookmaking paraphernalia, went to that apartment. At the trial Detective Williams testified substantially that he, carrying a sledge hammer, approached the apartment main door. He tapped on the door twice, waited several seconds for the door to be opened, "turned the knob and the door was locked; * * *", heard "a little scuffling noise like someone moving around", and when he "couldn't get in * * * [he] stepped back and hit it twice with a sledge hammer and the door flew open." About the same time other officers broke through another door to the apartment by using a section of a telephone pole. Entering the apartment Detective Williams saw Manduchi put a piece of paper in his mouth and swallow it. Hidden in the apartment the officers found bet data sheets, easily destroyable thin paper and marked racing information material. In the course of the next hour while the police were still present there were approximately eleven incoming telephone calls, a number of them asking for appellee and all of them placing bets on that day's races. The entrance door to the apartment had metal reinforcement not quite an eighth of an inch thick covering the entire inside of the door. The latter also had an extra heavy bolt latch on it under the ordinary lock. The numbers for the telephone and its extension had been removed from those instruments.
The district judge, holding that the search was unreasonable under the circumstances, allowed the writ and stayed its execution to give the Commonwealth the opportunity to appeal or to initiate proceedings for the retrial of petitioner.
Williams and his fellow officers when they arrived at the Manduchi apartment were proceeding properly under their search warrant. And Williams in knocking on the door, as he said he did, unquestionably acted lawfully. Immediately thereafter, he tried the door, found it apparently locked, heard a scuffling noise and forced the door open with his sledge hammer. Neither he nor any of the other officers announced their presence and purpose. The interval between Williams tapping on the door and breaking it open was a few seconds. All of this gives us the sole question on this appeal. Was the stated entrance reasonable under the then present circumstances as shown by the record? On appeal the Superior Court of Pennsylvania held that it was, saying:
"We find no Pennsylvania appellate cases which discuss or determine the circumstances under which police officers armed with a warrant may break into a private dwelling place without first announcing their purpose and giving the occupants a chance to admit them. Each case depends upon its own circumstances. (2) The circumstances surrounding the search and seizure in this case are not such as to make it unreasonable as a matter of law."
Commonwealth v. Manduchi, 203 Pa.Super. 373, 375, 198 A.2d 613, 614 (1964), Pet. to Pa.Sp.Ct. for allowance of appeal den. No. 120-A, Misc.Docket No. 13, May 11, 1964.
In a comparable situation the leading and here controlling case, Ker v. State of California, 374 U.S. 23, 33-34, 83 S. Ct. 1623, 1630, 10 L. Ed. 2d 726 (1962) held:
"We reiterate that the reasonableness of a search is in the first instance a substantive determination to be made by the trial court from the facts and circumstances of the case and in the light of the 'fundamental criteria' laid down by the Fourth Amendment and in opinions of this Court applying that Amendment. Findings of reasonableness, of course, are respected only insofar as consistent with federal constitutional guarantees. As we have stated above and in other cases involving federal constitutional rights, findings of state courts are by no means insulated against examination here."
The district court, having Ker very much in mind, properly concluded that the search warrant per se did not insulate the law enforcement representatives from the necessity of reasonably conducting their search. Under the Ker directive the court made its own examination of the facts and decided that the search when it was made was unreasonable.
In Ker there was also a "breaking" by the police in order to gain entrance to the Ker premises. That "breaking" was technical in as much as it was achieved by means of a key. Nevertheless the Court assumed (p. 38, 83 S. Ct. p. 1632) "* * * that such breaking is permissible in executing an arrest under certain circumstances."
In the appeal before us there was no announcement from the police of who they were and why they sought entrance. Federal law requires notice of authority and purpose and refusal of admittance prior to breaking open such a door as that with which we are concerned. 18 U.S.C. § 3109. Testing the validity of the present arrest is a matter of state law, Miller v. United States, 357 U.S. 301, 78 S. Ct. 1190, 2 L. Ed. 2d 1332 (1958). The Pennsylvania state courts, as we have seen, have determined that in this instance the breaking without prior announcement of identity and purpose was not unreasonable as a matter of law and so affirmed the conviction. We therefore must examine the facts as they existed at the time of the entry ...