United States v. Rundle, Misc. No. 3600.

• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
• Writing for the Court: LUONGO
• Citation: 280 F. Supp. 453
• Parties: UNITED STATES of America ex rel. Emanuel JOHNSON, Jr. v. Alfred T. RUNDLE, Superintendent.
• Docket Number: Misc. No. 3600.
• Decision Date: 31 January 1968

280 F. Supp. 453

UNITED STATES of America ex rel. Emanuel JOHNSON, Jr.
v.
Alfred T. RUNDLE, Superintendent.

Misc. No. 3600.

United States District Court E. D. Pennsylvania.

January 31, 1968.

280 F. Supp. 454

David C. Harrison, Philadelphia, Pa., for relator.

Henry T. Crocker, Asst. Dist. Atty., County of Montgomery, Norristown, Pa., for respondent.

OPINION

LUONGO, District Judge.

In a trial before a judge without a jury in the State court, relator, Emanuel Johnson, was convicted on charges of rape, robbery and assault and battery with intent to ravish. He was sentenced to imprisonment for three consecutive terms of three to ten years each. In this habeas corpus petition he seeks to have the convictions set aside because they resulted from alleged violations of his constitutional rights. The violations charged are that:

1. the police were permitted to testify to alleged admissions made by Johnson at a time when he had not been advised of his constitutional rights;

2. evidence obtained as a result of an illegal arrest was used against him; and

3. the convictions so lacked evidentiary support as to constitute a denial of due process.

State remedies have been exhausted.¹

1. Failure of police to inform relator of constitutional rights.

In the state habeas proceedings Johnson was afforded a full and fair evidentiary hearing on the charge that the police failed to warn him of the right to counsel and of the right to remain silent. There is ample support for the state court's finding that the police did inform Johnson of the right to counsel and that, at the time he made the statements, he was aware that he had the right to remain silent. No hearing was required, therefore, and none was conducted by this court on that charge. Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

2. Evidence obtained as a result of illegal arrest.

Johnson contends that he was illegally arrested and that the convictions were based on evidence² obtained as a result of, and, therefore, tainted by the illegal arrest. Wong Sun v. United States, 371

280 F. Supp. 455

U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)

The Commonwealth argues that Johnson has waived the right to complain of the use of such evidence because no objection was made to its admission at the criminal trial. The question of waiver of a constitutional right is a federal question, United States ex rel. Gockley v. Myers, 378 F.2d 398 (3d Cir. 1967), and if this arrest was unlawful, the question of waiver will necessarily come into play. Since the state court did not inquire into the propriety of the arrest, there was no reliable state court record on which this court could judge whether the arrest violated relator's constitutional rights. A hearing was, therefore, held here to determine whether the arrest³ was lawfully made (a) pursuant to a validly issued warrant of arrest, or (b) on probable cause for arrest without a warrant.

(a) Validity of the warrant.

On April 19, 1961, Captain Harner of the Cheltenham Township police appeared before a Justice of the Peace and swore out three complaints for the arrest of Johnson. The complaints have been carefully examined. They contain nothing more than a recital of the acts allegedly committed upon each of three Springfield Township assault victims. There is a complete absence of factual basis for cause to believe that Johnson had committed the acts. Standing alone, the complaints were inadequate as a basis for issuance of the arrest warrant. Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). At the hearing before me, the Commonwealth attempted to establish that more information was given to the Justice of the Peace than was contained in the complaints, but the attempt failed. Neither Captain Harner nor the Justice of the Peace had any recollection that any information other than that contained in the complaints was presented. There was, therefore, inadequate factual basis for a finding of probable cause by the judicial officer and the warrant of arrest issued by him was invalid. Johnson's arrest connot be sustained as pursuant to a valid warrant.

(b) Arrest without a warrant.

Notwithstanding the invalidity of the warrant, the arrest may nevertheless be sustained if the police had probable cause to make an arrest without a warrant. Giordenello v. United States, supra; Hagans v. United States, 315 F.2d 67 (5th Cir. 1963); DiBella v. United States, 284 F.2d 897 (2d Cir. 1960); United States v. Russian, 192 F.Supp. 183 (D.Conn.1961). Pennsylvania permits police officers to make an arrest without a warrant if they have reasonable grounds to believe that the accused has committed a felony. Commonwealth ex rel. McNeair v. Rundle, 416 Pa. 301, 206 A.2d 329 (1964); Commonwealth ex rel. Spencer v. Ashe, 364 Pa. 442, 71 A.2d 799 (1950), cert. denied, 339 U.S. 990, 70 S.Ct. 1015, 94 L.Ed. 1390 (1950).

The constitutional validity of a warrantless arrest depends upon

"* * * whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. Brinegar v. United States, 338 U.S. 160, 175-176 69 S.Ct. 1302, 1310-1311, 93 L.Ed. 1879; Henry v. United States, 361 U.S. 98, 102 80 S.Ct. 168, 171, 4 L.Ed.2d 134." Beck v. State of Ohio, 379 U.S. 89, 91,

280 F. Supp. 456

85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964).

On April 25, 1961, the day the arrest was made, the Philadelphia police, from their own investigation and from information furnished to them by other police sources, had in their possession this information:

Following the assault of two women in Springfield Township in 1959, a check of the license number of an automobile observed following the bus ridden by one of the victims just before she was...