Malone v. Crouse, 9224.

• Decision Date: 29 August 1967
• Docket Number: No. 9224.,9224.
• Citation: 380 F.2d 741
• Parties: Dick MALONE, Appellant, v. Sherman H. CROUSE, Warden, Kansas State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

380 F.2d 741 (1967)

Dick MALONE, Appellant, v. Sherman H. CROUSE, Warden, Kansas State Penitentiary, Appellee.

No. 9224.

United States Court of Appeals Tenth Circuit.

July 14, 1967.

Rehearing Denied August 29, 1967.

Dean R. Vanatta, Denver, Colo., for appellant.

Daniel D. Metz, Asst. Atty. Gen. of Kansas (Robert C. Londerholm, Atty. Gen. of Kansas, on the brief), for appellee.

Before JONES^*, SETH, and HICKEY, Circuit Judges.

SETH, Circuit Judge.

The appellant, a prisoner in the Kansas State Penitentiary, has taken this appeal from the order of the United States District Court for the District of Kansas denying appellant's petition for a writ of habeas corpus.

In December 1963, appellant was tried in the State District Court of Sedgwick County, Kansas, on charges of making a false check, passing and uttering a false check, and obtaining money under false pretenses. The jury rendered a verdict of guilty on all counts. Appellant was sentenced to life imprisonment under the Kansas habitual criminal statute. On appeal the Kansas Supreme Court affirmed appellant's conviction. State v. Malone, 194 Kan. 563, 400 P.2d 712 (1965). Appellant's applications for post-conviction relief were summarily denied by the Kansas state courts without evidentiary hearings.

The United States District Court on appellant's petition for a writ of habeas corpus conducted a full evidentiary hearing on the constitutional questions presented. Sixteen witnesses, including appellant, testified before the District Court, and the transcribed proceedings fill 744 of 1396 pages in the record before us on appeal. The District Court made extensive findings of fact relating to the constitutional questions and concluded that appellant's petition should be denied. Additional facts will supplement our discussion of the questions presented on appeal.

Appellant argues that his arrest was unlawful because the arresting officers had no warrant for arrest and had no probable cause to believe that appellant had committed a crime. Detective Burrows of the Wichita police had received complaints from certain motel owners that a man calling himself "Dick Malone" had represented that he was an agent of a construction company and had sought, and received, cash advancements from motel owners to feed and house his construction crew. On July 25, 1963, about noon, the Wichita police were notified by an unknown person that "Dick Malone" was at the Napa Motel in Wichita. Detectives Shackelford and Overman were advised by radio and they responded. Upon arriving at the motel, the detectives discovered appellant, carrying a suitcase, and preparing to enter a taxi. He was with a woman companion who was carrying a box of clothing. The detectives asked appellant if he was Malone, and appellant said that he was. Upon a request for identification, appellant showed the detectives his billfold, which further identified appellant as Dick Malone. After appellant was frisked for weapons by detective Overman, appellant and his woman companion, together with his suitcase and her box of clothing, were placed in a police car and taken to the police station.

Appellant relies on Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142, on the arrest issue, but its facts are not similar to those in the case at bar. Here detective Burrows testified that he had received complaints from the Highway Inn and two other motels, had talked with people at the Highway Inn, and had issued a pickup order for Malone. Burrows related this information to a morning meeting of detectives, and Shackelford, one of the arresting detectives, had personal knowledge that Malone was sought in connection with fraud complaints. An anonymous informer told the police where Malone could be found, not that Malone had committed, or was committing, a crime. The Wichita police prior to notification by the informer had probable cause to believe a man using the name Dick Malone had committed a crime. When the appellant identified himself as Malone, the detectives had probable cause to arrest him without a warrant. See Dailey v. United States, 365 F.2d 640 (10th Cir.); Murray v. United States, 351 F.2d 330 (10th Cir.). Appellant's arrest was not unlawful because an unknown person told the police where a person wanted could be found.

Appellant argues that evidence obtained from an unlawful search of his suitcase was used against him during trial. The suitcase contained papers summarizing appellant's prior criminal record and appellant's certificate of release from the Nebraska State Penitentiary dated July 15, 1963, ten days before appellant's arrest in Wichita. Appellant contends that the detectives' knowledge of his past criminal record obtained by a search without warrant was the source of references to appellant's prior arrests and convictions during trial. Appellant also contends that the same unlawfully obtained information was used to invoke the Kansas habitual criminal statute during sentencing. The District Court found that nothing from the suitcase was introduced in evidence against the appellant, and that no evidence in appellant's trial was the fruit of any violation of appellant's constitutional rights. The court also found that appellant had voluntarily discussed his prior criminal record with the detectives.¹ Substantial evidence in the record supports these findings, and we agree with the District Court's conclusion that the search was incident to a lawful arrest.

The detectives opened the suitcase in appellant's presence at the police station within an hour or so of appellant's arrest at the motel. No search warrant was obtained. A reasonable search without warrant and incident to a lawful arrest does not offend the fourth amendment to the Constitution.² See Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777; Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399. A reasonable search incident to a lawful arrest may extend to things under the accused's immediate control. See Preston v. United States, supra; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790. The suitcase was under appellant's immediate control when he was arrested and seizure of the suitcase occurred immediately thereafter or concurrently. Under the facts, we hold that the search was contemporaneous with the arrest, Stoner v. State of California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856, and was not conducted at "another place," within the meaning of Preston v. United States, supra. The search without warrant is not unlawful merely because the search was conducted within a relatively short time after appellant and the suitcase had been transported to the police station, rather than at the motel immediately after appellant was arrested. Cf. Baskerville v. United States, 227 F.2d 454 (10th Cir.); Cotton v. United States, 371 F.2d 385 (9th Cir.).

Appellant argues that he was denied a fair trial because a Wichita newspaper published a prejudicial and inaccurate article concerning appellant's criminal record on the night before closing arguments and submission of the case to the jury. It appears that only one juror admitted reading the article, and he said that he had not been influenced by it. This issue was raised by appellant on direct appeal from his conviction, and the Kansas Supreme Court devoted the greater part of its opinion to the question of jury prejudice resulting from publication of the article. State v. Malone, 194 Kan. 563, 400 P.2d 712 (1965). The United States District Court adopted the findings of the state courts and concluded that the jury was not subjected to influence amounting to a denial of due process of law. We agree. The totality of circumstances in the case at bar is not remotely comparable to that with which the Supreme Court was concerned in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600. See also Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250; Welch v. United States, 371 F.2d 287 (10th Cir.).

References to appellant's prior convictions were admitted over objection during trial. Appellant argues that these trial references and the newspaper article combined to cause jury prejudice amounting to denial of due process. The potential prejudicial effect of introducing prior convictions during trial is recognized, but such evidence may be introduced when it has particular probative value. See Spencer v. State of Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (January 23, 1967), and cases cited therein. State practice permitted the introduction of this evidence. There appear to be three principal references to appellant's prior difficulties with the law. On the first occasion an unspecified objection was made and sustained; on the second when a witness described statements made by the accused as to his whereabouts no objection was made. On the third reference objection was made that the accused...