Kalodner, Ganey and Van Dusen, Circuit Judges.
The District Court entered an Order granting William McArthur's petition for a Writ of habeas corpus on its finding that evidence adduced at his state court trial was the product of an unlawful search and seizure in violation of his federal constitutional rights.*fn1 This appeal by the Commonwealth of Pennsylvania followed.
A three-count indictment was returned against McArthur at the March, 1965 term of the Court of Quarter Sessions, Philadelphia County, Pennsylvania; Count I charged him with burglary; Count II with larceny and Count III with receiving stolen goods.
McArthur was tried to a judge, without a jury, on May 6, 1965. He entered a plea of guilty to the receiving stolen goods count; and, following a trial, was adjudged guilty as to the burglary count, and not guilty as to the larceny count. He was then sentenced to imprisonment in a state penitentiary for a 3 to 6-year term.
McArthur did not appeal his conviction. He, however, a year or so later, filed a petition under the Pennsylvania Post-Conviction Hearing Act, 19 P.S. § 1180-1 et seq., in a Philadelphia County Court. The petition was dismissed without hearing; the Superior Court of Pennsylvania affirmed, Commonwealth v. McArthur, 209 Pa.Super. 739, 226 A.2d 207 (1967), and the Supreme Court of Pennsylvania denied allocatur.
In his petition for habeas corpus relief in the District Court McArthur alleged, inter alia,*fn2 that his Fourth and Fourteenth Amendment rights had been violated in his state court trial, in the admission, over his defense counsel's objection, of evidence obtained in an illegal search and seizure.
The District Court, at the close of testimony in the instant proceeding, found that "the search here was unwarranted and the evidence submitted at the trial violated the constitutional rights of the relator".*fn3 It subsequently entered its Order granting habeas corpus relief.
Critical to our disposition is the following statement of the testimony*fn* bearing on the issue as to the mooted search and seizure:
At about 1:30 P.M., March 13, 1965, two Philadelphia policemen, Fenning and Jones, were patrolling an area in their police car. They were particularly on the look-out for traffic in "untaxed white whiskey". They saw four men seated in a parked Pontiac automobile and they appeared to be drinking. The officers decided to investigate. They stopped their car and approached the Pontiac; Jones on its left side and Fenning on its right. As they did so they were noticed by one of the four men, and one of them put down a glass or cup from which he had been drinking. Fenning testified that he observed a bottle on the back floor of the Pontiac which was subsequently found to be Gordon's gin. At the same time, according to Jone's testimony, he saw McArthur, who was seated on the back seat, trying to push a large brown envelope down "between the seat of the Pontiac sedan". Jones said he took the envelope from McArthur's hand even though he knew it did not contain any liquor, and asked him to get out of the automobile. McArthur did so and then started running; he was pursued by the officers, caught and arrested. The brown envelope contained a number of checks which were later identified as having been stolen from a retail store where McArthur had at one time been employed.
As earlier stated, the checks were admitted into evidence over objection by McArthur's counsel.
It does not appear from Jones' testimony that he saw the contents of the brown envelope before he took it from McArthur's hand, although he testified that the envelope "was open" when he took it, and its contents then "was in plain view". Fenning testified only that he saw the contents of the envelope "after" Jones had taken it from McArthur.
The Fourth Amendment, which is in the nature of a guarantee of privacy, forbids all unreasonable searches and seizures and it may be invoked by any citizen, whether innocent or guilty.*fn4 Its guarantees and the standards of reasonableness under ...