Com. ex rel. Ensor v. Cummings

• Court: Pennsylvania Supreme Court
• Writing for the Court: Author: Eagen
• Citation: Com. ex rel. Ensor v. Cummings, 207 A.2d 230, 416 Pa. 510 (Pa. 1965)
• Decision Date: 05 January 1965
• Parties: COMMONWEALTH of Pennsylvania ex rel. Thelma Adele ENSOR, Appellant, v. Chariotte C. CUMMINGS, Superintendent, State Correctional Institution, Muncy, Pennsylvania and Daniel W. Shoemaker, District Attorney of York County, Pennsylvania and Lyman Stambaugh, Sheriff.

Page 230

207 A.2d 230

416 Pa. 510

COMMONWEALTH of Pennsylvania ex rel. Thelma Adele ENSOR, Appellant, v. Chariotte C. CUMMINGS, Superintendent, State Correctional Institution, Muncy, Pennsylvania and Daniel W Shoemaker, District Attorney of York County, Pennsylvania and Lyman Stambaugh, Sheriff.

Supreme Court of Pennsylvania.

Jan. 5, 1965.

Petition for Reconsideration of Order Remanding Case for a

New Hearing on Habeas Corpus Petition Denied Feb. 23, 1965.

Martin Vinikoor, Vinikoor, Fein, Criden & Johanson, Stanford Shmukler, Philadelphia, for appellant.

Daniel W. Shoemaker, Dist. Atty., John T. Miller, First Asst. Dist. Atty., Lewis H. Markowitz, Asst. Dist. Atty., and Earl R. Doll, Asst. Dist. Atty., York, for appellee.

Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

EAGEN, Justice.

The appellant, Thelma A. Ensor, was convicted by a jury of violating Section 718 of the Act of June 24, 1939, P.L. 872, 18 P.S. § 4718 (criminal abortion), and sentenced to a state correctional institution. On appeal the Superior Court affirmed, Commonwealth v. Campbell, 196 Pa.Super. 380, 175 A.2d 324 (1961). We denied allocatur and the Supreme Court of the United States refused certiorari, 371 U.S. 901, 83 S.Ct. 203, 9 L.Ed. 507 (1962).

Subsequently, an action in habeas corpus was instituted in the Court of Common Pleas of York County which was dismissed after hearing. On appeal the Superior Court affirmed, 204 Pa.Super. 1, 201 A.2d 291 (1964). We granted allocatur.

Upon the occasion of appellant's arrest, investigating police officers, armed with a search warrant, entered by use of a key certain premises in which the appellant and others were engaged in performing abortions. Arrests were made and surgical instruments and other incriminating evidence were seized and later admitted in evidence at trial.

It is now argued that the search warrant was invalid; that the entry was made, and seizure effected, on the authority of the invalid warrant; and that the admission in evidence at trial of evidence so seized was prejudicial error requiring the issuance of the writ and the grant of a new trial.

We agree that the search warrant was invalid. The complaint upon which it was issued was legally insufficient in that it failed to set forth probable cause properly and also failed to allege a pre-existing crime: United States ex rel. Campbell v. Rundle, 327 F.2d 153 (3 Cir. 1964), and Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

We further agree that if the entry to the premises involved were made to make a search and seizure solely on the authority of the invalid warrant, it was illegal, and any evidence seized as a result of the illegal entry and search was inadmissible at trial. Such a seizure would be in violation of the 4th and 14th Amendments to the Constitution of the United States. See, Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). Evidence so seized is now inadmissible in state court proceedings: Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The ruling in Mapp in controlling since that decision was filed while the appeal from the judgment of sentence here involved was still pending: Commonwealth ex rel. Wilson v. Rundle, 412 Pa. 109, 194 A.2d 143 (1963); Commonwealth v. Raymond, 412 Pa. 194, 194 A.2d 150 (1963); and United States ex rel. Mancini v. Rundle, 219 F.Supp. 549 (D.C.1963).

While no motion to suppress was filed, and at trial counsel did not attack the validity of the search warrant, it would be unfair to deny the appellant the right now to raise the question of infringement of constitutional rights by an unlawful search and seizure, merely because of counsel's failure to anticipate the subsequent ruling enunciated in Mapp.

However, we are convinced by the record that at the time of entry to the premises involved, the police officers had personal knowledge of sufficient facts to warrant a reasonable man in the belief that an offense against the law had been, or was then being committed. Therefore, probable cause existed which warranted an arrest without a warrant. In view of this, if the search warrant were not executed and the purpose of the police officers in entering the premises were to make an arrest for the commission of a crime, which they believed had been, or was then being, committed, the entry and arrest were lawful.

A fortiori, the evidence seized being incidental to and the product of a lawful arrest, it was admissible at appellant's trial: Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). The insufficiency of the search...