Van Dusen, Gibbons and James Rosen, Circuit Judges.
The respondent warden, represented by the Philadelphia District Attorney, appeals the order of the district court granting a writ of habeas corpus. The writ was granted on the ground that evidence, consisting of a holster and a cartridge, admitted in evidence in the petitioner's state court trial, had been illegally obtained. The holster and cartridge were discovered during an on the street frisk after petitioner was stopped by a police officer. The district court held that the evidence was the fruit of an illegal search rather than of a frisk justified under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). United States ex rel. Richardson v. Rundle, 325 F. Supp. 1262 (1971). We reverse.
In the hearing on the habeas corpus petition the petitioner rested on the state court record. That record contains testimony by the arresting officer, Meehan. On the evening of February 18, 1963 at about 9:45 p. m. Officer Penko and he were on duty in a City of Philadelphia emergency patrol wagon. These were at that time red vehicles marked with a conspicuous POLICE sign. Officer Meehan testified as follows (28-34a):
"BY MR. BOGDANOFF [Attorney for the Commonwealth]:
Q. Now, could you tell us what happened approximately a quarter of ten or so that evening?
A. Yes. Officer Penko and myself were travelling east on Tioga Street. When we were between Sydenham and 15th Street we observed four unknown colored boys flee from the area of the drug store on the southwest corner of 15th and Tioga.
Q. Flee from the drug store?
A. Yes, sir. That is, they were fleeing from the outside of the drug store. We didn't see any of them flee from the inside.
Q. In other words, the first time that you picked up view of them, nobody was actually in the drug store?
A. There were four boys fleeing from the drug store, running west on Tioga towards Sydenham.
Q. Let's see if we can get this down a little finer. You say fleeing from. How far was the closest of the four from the front of the drug store when you first saw them?
A. A matter of a few feet. There is like -- I think there are three steps, like a smaller step and a larger step and then another step. And they seemed to be on one -- they seemed to be on one of those steps running from the store.
Q. It is my understanding that in order to get into the store you have to go up a series of three steps?
Q. And one or more of those young men you saw were on those steps?
A. Yes. They were all in a group, all running in the same direction.
Q. And when you saw them were they facing toward the drug store or away from it?
A. They were running west on Tioga which would be away from the drug store.
Q. Now, you said you saw four young men?
Q. Do you see -- at that time did you recognize any of the ...