United States ex rel. Richardson v. Rundle, 71-1506.
| Decision Date | 08 June 1972 |
| Docket Number | No. 71-1506.,71-1506. |
| Citation | 461 F.2d 860 |
| Parties | UNITED STATES of America ex rel. Lorenzo RICHARDSON v. Alfred T. RUNDLE, Superintendent, State Correctional Institution, Graterford, Pennsylvania, Mark Sendrow, Assistant District Attorney, as representative of the Office of the District Attorney of Philadelphia, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
James D. Crawford, Deputy Dist. Atty., Philadelphia, Pa., for appellant.
Joseph A. Torregrossa, Morgan, Lewis & Bockius, Philadelphia, Pa., for appellee.
Before 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.
BY MR. BOGDANOFF:
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?
A. Yes, sir.
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?
A. Yes.
Q. Do you see—at that time did you recognize any of the four young men?
A. At that time, no.
Q. What did you do, sir?
A. Well, they seemed to be similarly dressed. That is, they had like iridescent type raincoats that were dark. They had dark what is described as Pork Pie hat, and they all fled west on Tioga and south on Sydenham. We were travelling east on Tioga so they were running towards us.
Q. Now, they were running—did they then run past you?
A. Yes.
Q. And what did you do?
A. Backed up the wagon up to Sydenham and they were fleeing south on Sydenham. And we proceeded south on Sydenham and they cut through an alleyway that leads from Sydenham back to 15th Street.
Q. I see. And, of course, you couldn't go through the alley?
A. No.
Q. So what did you do?
A. We continued south on Sydenham.
Q. And then what happened?
A. To 15th and Ontario where we observed the boys again.
Q. The same four boys?
A. Well, they were wearing the same type clothing as the four we were chasing.
Q. At this time when you saw them the second time were they running or standing still?
A. They were huddled at the southwest corner of 15th and Ontario which is a block from the scene.
Q. Right?
A. As the wagon approached them three of them started to flee south on 15th and one went west on Ontario. I jumped from the wagon and grabbed the defendant that is seated here, Lorenzo Richardson which was the one that was going west on Ontario.
Q. Now, how far had he proceeded away from where the group had gathered before you caught him?
A. I would say a matter of five or seven feet, something like that.
Q. Then you jumped out of the wagon, and what did your partner do, if you know?
A. He was driving. I was the recorder. He proceeded south on 15th Street.
Q. He was after the other three?
A. Yes.
Q. Incidentally, the other three were not caught?
A. No.
Q. You stopped the defendant, is that right?
A. Yes.
Q. Who spoke first, if you remember?
A. I grabbed the defendant. As I did I walked him back down 15th Street, south on 15th Street.
Q. Right. Then what happened? First of all, when you grabbed ahold of the defendant did you say anything to him?
A. I don't believe I did, but he was saying something about he didn't do anything. What is all this. I don't believe I told him why I grabbed him or any such thing as that. I just had him by the arm and walked him south on 15th Street.
Q. Now, you walked him south on 15th Street and then what happened?
A. About midway down Officer Penko had stopped the wagon on 15th Street in the center—in the traffic lane. On 15th Street cars are parked on both sides leaving only one travelling lane. He had the wagon parked about midway down 15th Street right in the middle of the street.
Q. And what did you do with the defendant?
A. Walked him down to the wagon where he was met by Officer Penko. I placed the defendant up against the wagon with his hands on the wagon and his feet outstretched and proceeded to frisk him."
As a result of the frisk the holster and cartridge were found. Immediately thereafter a woman brought to the officer a gun which she said had been dropped by one of the four boys.
Officer Penko testified as follows (83-85a):
The officers took the petitioner back to the drug store, where he was identified by the proprietor as one of the persons who had robbed him shortly before. Petitioner was convicted of the robbery.
It is at least questionable whether on such a state court record there was a sufficient Terry v. Ohio issue to warrant an evidentiary hearing. See Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed. 2d 770 (1963); 28 U.S.C. § 2254(d)(8). But in any event such a hearing was held. The Commonwealth produced Officer Penko, who supplemented the state court record. His testimony establishes that the area was in a high crime district, and that the officers were always on the lookout for robberies of business establishments. When they first observed the four young men the officers were on their way to the drug store for the specific purpose of signing a log in the store. The stores in the neighborhood maintained such logs because the police were required to check those locations at regular intervals to guard against robberies. Robberies usually took place around the time the store opened and around closing time, which was 10 P.M. When he saw the young men fleeing from the drug store he concluded a crime was either being perpetrated or about to be perpetrated.
The district court states:
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