Biggs, Kalodner and Freedman, Circuit Judges.
The relator, Harris, was sentenced by a Pennsylvania court in November, 1967 to serve a ten to twenty month prison term following a jury trial in which he was found guilty on an indictment charging him with larceny, receiving stolen goods, forgery and uttering forged instruments.
The relator's conviction was affirmed by the Superior Court of Pennsylvania, Commonwealth v. Harris, 213 Pa.Super. 714, 244 A.2d 163 (1968), and his petition for allocatur was denied by the Supreme Court of Pennsylvania on October 14, 1968, at No. 297-A, Miscellaneous Docket No. 16. His application for certiorari was denied by the Supreme Court of the United States, sub nom. Harris v. Pennsylvania, 394 U.S. 946, 89 S. Ct. 1286, 22 L. Ed. 2d 483 (1969), and he then filed a petition for reconsideration of sentence with the state trial judge which was denied April 30, 1969. He commenced serving his prison sentence on May 5, 1969. The next day he filed the instant petition for habeas corpus relief in the District Court for the Eastern District of Pennsylvania. It was denied on June 17, 1969. United States ex rel. Harris v. Hendrick, 300 F. Supp. 554, and this appeal followed. The relator has been at liberty on bail since his petition was filed.
Relator contends that (1) tangible evidence adduced at his state trial was obtained in a "warrantless search" of his apartment and automobile, to which he assented "without knowledge of his rights or privileges", and without his being "apprised of the fact that the police must have probable cause before they could secure a search warrant"; and (2) his "assent was obtained under duress in a coercive setting". The tangible evidence consisted of Sun Oil Company salary checks payable to relator's fellow employees and nineteen payroll check stubs and income tax notification slips, all bearing the names of other employees whose checks had been illegally cashed.
Critical to our disposition are the following facts disclosed by the state trial record and the record of a hearing on relator's pre-trial motion to suppress the challenged evidence:
In March 1957, relator, then 22 years old, was employed by the Sun Oil Company ("Sun"), first as a porter and then as operator of a truck which hauled mail from its Philadelphia office to the United States Post Office in that city. The mail included pay checks and related data for delivery to Sun employees in various parts of the United States.
In October 1962, Sun first learned that pay checks mailed to employees had never been delivered to them but instead were being cashed in the Philadelphia area.
At about 2 P.M. January 14, 1963, relator was summoned by his immediate superiors to Sun's payroll office when they were advised that earlier that day he had, after identifying himself, unsuccessfully tried to cash the pay check of one Marks, a Sun Indianapolis, Indiana, employee, at a branch office of the Philadelphia National Bank, and that, again earlier that day, a person attired in a Sun uniform had succeeded in cashing the pay check of one Bowers, another Indianapolis employee, at the same banking office.
Relator was then interrogated with respect to the two recited check episodes and other missing checks, by five Sun supervisory employees: Campbell, supervisor of security; Rohr, payroll department manager; Lynch, mail room supervisor; Broadhead, service manager; and Russell, division manager. Shortly after the interrogation started, two Philadelphia police detectives, and two Philadelphia National Bank detectives, joined the group of Sun supervisory employees, at the latter's invitation, and participated in relator's questioning.
During the course of the questioning relator was identified by a bank teller as the person in Sun Oil Company uniform who had cashed the Bowers check in the sum of $258.13.
Also, during the interrogation, relator admitted attempting to cash the Marks check and stated that he had done so as a favor for a fellow employee whose name he did not know.
Relator, throughout his three-hour questioning denied cashing the Bowers check or involvement in any wrongdoing.
Further, throughout the interrogation relator was assured that he was not under arrest. He was told by one of the bank detectives that he could "demonstrate good faith by submitting to polygraphic examination, by allowing us to look at your apartment and look at your automobile." Relator agreed to both the polygraphic test*fn1 and inspection of his apartment and car. He was not then told of his Fourth Amendment right to be free from a warrantless search, nor was he advised that a search warrant could only be issued on probable cause. Further, he was not advised that evidence found during the search of his apartment and car could be used against him at trial. Nor was he advised of his right to remain silent and that anything he said could be used against him. Relator was not threatened nor was he promised anything when he consented to inspection of his apartment.
When relator and the city and bank detectives arrived at his apartment following the interrogation, he readily supplied them with the door key, invited them to look wherever they desired, and ...