United States ex rel. Gaugler v. Brierley

• Decision Date: 16 April 1973
• Docket Number: No. 72-1262.,72-1262.
• Citation: 477 F.2d 516
• Parties: UNITED STATES of America ex rel. Gilbert John GAUGLER, Appellant, v. Joseph BRIERLEY, Superintendent, State Correctional Institution at Pittsburgh.
• Court: U.S. Court of Appeals — Third Circuit

477 F.2d 516 (1973)

UNITED STATES of America ex rel. Gilbert John GAUGLER, Appellant, v. Joseph BRIERLEY, Superintendent, State Correctional Institution at Pittsburgh.

No. 72-1262.

United States Court of Appeals, Third Circuit.

Argued October 31, 1972.

Decided April 16, 1973.

H. David Rothman, Pittsburgh, Pa., for appellant.

J. Kent Culley, Asst. Dist. Atty., Appeals Section, Robert W. Duggan, Carol Mary Los, J. Kent Culley, Pittsburgh, Pa., for appellee.

Before KALODNER, ADAMS and ROSENN, Circuit Judges.

OPINION OF THE COURT

KALODNER, Circuit Judge.

The relator Gaugler is now serving a two to four year sentence imposed by a Pennsylvania court following his conviction for burglary and larceny.

On July 16, 1971, fifteen days after he commenced serving his sentence, the relator filed a petition for a writ of habeas corpus in the District Court challenging the validity of his conviction and confinement on the ground that the state trial court had erred in not suppressing evidence which he claims was obtained by use of alleged illegal search warrants.

The District Court, after reviewing the state trial records, ordered that an evidentiary hearing take place. At that hearing, the state adduced testimony to the effect that the applicant for the challenged search warrants had, under oath, made allegations to the Justice of the Peace who had issued the warrants which fully supported their issuance.

The District Court denied the relator's petition for habeas corpus relief.

The relator's primary contention on this appeal is that the District Court erred in allowing testimony in supplementation of the bare averments of the affidavit filed in support of the application for the warrants. He concedes that under Pennsylvania law sworn oral testimony before a magistrate may be considered along with the facts recited in the affidavit for a search warrant in determining the sufficiency of the facts before the magistrate to justify his finding of probable cause. Commonwealth v. Crawley, 209 Pa.Super. 70, 223 A.2d 885 (1966), aff'd per curiam, 432 Pa. 627, 247 A.2d 226 (1968). The relator, however, urges that Commonwealth v. Crawley, supra, "is unconstitutional because it supplies no guidelines or standards" for its administration.

The background facts necessary to our disposition may be stated as follows:

On October 2, 1966, the home of Clyde W. Williams in Gibsonia, Allegheny County, Pennsylvania, was burglarized of some $1,500 personal property. On or about October 16, 1966, the home of Mr. and Mrs. Eugene Connelly, located in the Penn Hills section of Pittsburgh, was also burglarized of some $13,500 personal property.

Connelly, in advertisements in two local newspapers, offered a $1,000 reward for information regarding the burglary of his home. In response, an informant who identified himself as a member of the burglary gang, met with Connelly. He named the relator as the burglar, and Barbara Enscoe, the relator's girlfriend, as receiver of some of the stolen property. He described Barbara and supplied addresses where she could be located. Connelly proceeded to look for Barbara at these addresses. He found her one evening in a bar on the north side of Pittsburgh. He observed at the time that she was wearing his wife's mink stole and wristwatch.

Connelly advised the local police as to these facts the next day. A day later, on December 5, 1966, he, his wife and Police Lieutenant James DiMaria of the Penn Hills Police Department went to the local Justice of the Peace, A. C. Ireland ("Squire").

Connelly asked the Squire to issue search warrants for Barbara's apartment, at No. 9, 1110 Palo Alto Street, Pittsburgh, Pennsylvania, and for the relator's automobile. He told the Squire, under oath, the details of the disclosures made to him by his informant burglary gang member, earlier here recited. He further testified that when he located Barbara he observed that she was wearing his wife's stolen mink stole and wristwatch. Connelly then executed an affidavit which had been prepared by the Squire's sister who was apparently acting as his clerk. The affidavit did not reflect Connelly's testimony that when he located Barbara she was wearing his wife's stolen mink stole and wristwatch.

Armed with the search warrants issued by the Squire, the police entered Barbara's apartment on December 6, 1966. She and the relator were there at the time. The police found items stolen from the homes of Connelly and Williams in the apartment. They then searched the relator's car and found in it items stolen from Connelly and Williams. The relator and Barbara were then placed under arrest.

A Pittsburgh newspaper published a picture of the items found in Barbara's apartment, which was seen by Williams. He recognized several of the items as property stolen from his home. Search warrants were then issued for Barbara's apartment and the relator's home in Gibsonia, Pennsylvania. Items stolen from Williams' home were found in Barbara's apartment.

It may be noted, parenthetically, that the relator, subsequent to his arrest, admitted to Connelly his participation in the burglary of the latter's home.

The relator was charged in two indictments respecting the Connelly and Williams burglaries:¹ at No. 74 February Sessions 1967, he was indicted with Barbara in the Williams burglary on three counts—Burglary, Larceny and Receiving Stolen Goods; and at No. 81 March Sessions 1967, he was indicted on the same three counts in the Connelly burglary.

Prior to his state trial at which he pleaded not guilty on all indictments and counts, the relator moved to suppress all seized evidence, and subsequent statements and admissions. The trial court, following a hearing, dismissed the suppression motion on December 1, 1967.

On the same day, the relator was found guilty on all counts of the indictment relating to the Connelly burglary and guilty on the Receiving Stolen Goods count of the indictment relating to the Williams burglary. His motion to arrest judgment on the Receiving Stolen Goods count of the indictment relating to the Connelly burglary was granted.

In disposing of the relator's challenge to the Connelly affidavit in the first search of Barbara's apartment, the state court held that "sufficient facts are alleged here to enable the Magistrate to form his own conclusion that stolen property will be found at the address stated." The relator's conviction was subsequently affirmed by the Superior Court of Pennsylvania, and Allowance for Appeal was denied by the Pennsylvania Supreme Court.

On April 17, 1968, the relator was sentenced to a two to four year prison term on Indictment No. 81 March Sessions 1967. Sentence was suspended on Indictment No. 74 February Sessions 1967.

His state remedy exhausted, the relator filed the instant petition for a writ of habeas corpus in the United States District Court for the Western District of Pennsylvania. He urged that the facts as evidenced by Connelly's affidavit did not constitute probable cause for the issuance of the initial search warrants and that all evidence seized afterwards, and his admission of guilt to Connelly, were "fruits of the poisonous tree."

At the District Court evidentiary hearing, objected to by the relator, Connelly testified that he had told the Squire, under oath, of observing Barbara's wearing of Mrs. Connelly's mink stole and wristwatch.

Mrs. Connelly and Police Lieutenant DiMaria substantially corroborated Connelly's testimony at the evidentiary hearing.

In an Opinion, accompanying its Order denying the relator's habeas corpus petition, the District Court stated in relevant part:²

"It is clear that the material supplied by the informant and the corroboration supplied by Connelly\'s investigation supplied both probable cause and evidence as to the reliability of the information. . . ."

". . . Pennsylvania law . . . as set out in Commonwealth v. Crawley, 432 Pa. 627, 247 A.2d 226, 209 Pa.Super. 70, 223 A.2d 885, holds that sworn oral testimony before a magistrate may be used to supplement facts contained in the affidavit. This court, in Commonwealth of Pennsylvania, ex rel. Feiling v. Sincavage, 313 F.Supp. 967 (W.D.Pa.1970), affirmed per curiam 439 F.2d 1133 (3rd Cir. 1971), also recognized the validity of supplementary oral testimony to sustain a search warrant.

"Although Justice of the Peace Ireland died before the evidentiary hearing in this court, nevertheless we find the testimony of Mr. Connelly, as corroborated by his wife and Lieutenant DiMaria, to be credible and reliable. A study of the transcript during the trial in the state court also contains references to Connelly\'s investigation and to his observation of Miss Enscoe before the search warrant was issued.

"Because it is alleged that a federal right has been violated, it becomes our duty to determine the validity of the attack by review of any available information even if it involves taking of testimony not given to the state court. Since we determine that the warrant was valid when the oral statements made to the magistrate are considered, in all events, then it becomes immaterial that the state court based its decision on less evidence.

"While it is desirable that all of the information presented to the magistrate be included in the affidavit, we do not believe that such a requirement is of constitutional dimensions. Accordingly, the petition for writ of habeas corpus is denied. An appropriate order will be entered." (footnote omitted).

The hard core of the relator's position is that probable cause is not shown on the face of the affidavit³ in support of the search warrants here involved and that the District Court erred in receiving Connelly's oral testimony before the Squire in supplementation of the affidavits.

We do not subscribe to the relator's contention.

We are of the opinion that a federal court, in acting on a habeas corpus petition arising out of a state conviction, may consider sworn oral...