401 F.2d 232 (5th Cir. 1968), 24293, Phelper v. Decker

Docket Nº:24293.
Citation:401 F.2d 232
Party Name:Ben Herbert PHELPER, Appellant, v. Bill DECKER, Sheriff of Dallas County, Texas, Appellee.
Case Date:August 06, 1968
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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401 F.2d 232 (5th Cir. 1968)

Ben Herbert PHELPER, Appellant,


Bill DECKER, Sheriff of Dallas County, Texas, Appellee.

No. 24293.

United States Court of Appeals, Fifth Circuit.

Aug. 6, 1968

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Charles W. Tessmer, Emmett Colvin, Jr., Dallas, Tex., Waldie, McDowell & Colvin, Dallas, Tex., for appellant.

Malcolm Dade, Asst. Dist. Atty., Dallas County, Tex., Lonny F. Zwiener, Asst. Atty. Gen., R. L. Lattimore, Howard M. Fender, Robert E. Owen, Asst. Attys. Gen., Austin, Tex., Crawford C. Martin, Atty. Gen. of Texas, George M. Cowden, First Asst. Atty. Gen., A. J. Carubbi, Jr., Staff Legal Asst., Henry Wade, Dist. Atty., Dallas County, Tex., for appellee.

Before BROWN, Chief Judge, BELL and THORNBERRY, Circuit Judges.

JOHN R. BROWN, Chief Judge:

This case presents an appeal from the denial by the District Court of Appellant Phelper's petition for a writ of habeas corpus. 1 Appellant was convicted in the Texas State Courts of the misdemeanor of possessing obscene photographs in violation of Article 527, Vernon's Ann.Texas Penal Code, 2 and was fined $1,000. Appellant raises a massive assault on the constitutionality of the conviction, contending that (1) of the State Trial Judge failed to follow the requirements of Jackson v. Denno in determining the voluntariness of Appellant's consent to a search of his house, (2) fruits of a search to which Appellant involuntarily consented were introduced against him at trial, (3) he was denied due process since no evidence of contemporary community standards was introduced at trial, (4) an unconstitutional instruction on the scope of contemporary community standards was given to the jury, and (5) mere possession of obscene pictures cannot constitutionally be a crime. The Federal District Court denied the petition without an evidentiary hearing. 3 Because of

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Appellant's failure to exhaust available state remedies as to issues (4) and (5), we reach only the first three concerning (1) the procedure used in determining the admissibility of the evidence, (2) the voluntariness of Appellant's consent to the search and the admissibility of the evidence, and (3) the failure of proof of community standards. With our scope of review thus limited, we affirm the denial of the writ on the first three issues, and vacate the denial on the remaining two issues with instructions to dismiss them without prejudice to Appellant to present those issues to the State Courts.

The facts may be quickly capsulated. In November of 1963 Appellant showed some pictures of nude women to his milkman, James Bartley. Bartley talked to Officer Smith of the Richardson, Texas, police department about the occurrence, and a meeting was arranged between Appellant and Smith at a local drugstore, even though Appellant knew Smith to be a police officer. After conversing for a time about photography, Appellant invited Smith to his home to view photographs and to discuss possible sales outlets for the pictures. Smith went to the house the next day with a fellow officer and they observed from one to two hundred colored slides of various girls, but Officer Smith considered only one of these slides obscene.

After this meeting in Appellant's home, Officer Smith reported to his superiors, and soon thereafter a Postal Inspector using a pseudonym and posing as a buyer for the pictures, began to correspond with Appellant, but the State does not contend that any obscene pictures ever passed through the mails. From November of 1963 until January of 1964, Officer Smith visited Appellant's home on several occasions and the men discussed photography and viewed more pictures, several of which Smith considered obscene.

Since things were evidently not moving fast enough, the police and the postal inspectors procured a search warrant for Appellant's home. But before the warrant could be executed, the two officers and two postal inspectors met Appellant in a Richardson drugstore (not by prearrangement) near the location where Appellant was conducting an art show. After talking about going for coffee, Appellant went outside and got in the car, apparently of his own volition, although he later testified that he thought himself to be under arrest. The postal inspectors then identified themselves and they all drove to the police station. Once there, the men drank coffee and reminisced about World War II experiences. Appellant was told that he was under investigation and was warned of his rights, and he then executed a written consent to the search of his house without a search warrant. He was not told, nor did he then know, of the existence of the search warrant. The police, postal inspectors, and Appellant then proceeded to Appellant's house, where, after allowing him time to talk to his wife alone to explain the situation, the officers searched the house and found the obscene pictures in controversy here.

On the State Court trial, Appellant testified on his own behalf and that the only reason he signed the consent to search was because the police said he could either consent or they would use the warrant. 4 He also swore that the consent was executed after the house was searched, not before.

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This testimony was sharply disputed by the police. The officers testified that Appellant was warned of his right to remain silent and his right to an attorney, that he did not have to sign the consent unless he wanted to do so, that he did not know of the warrant before he signed the consent and did not find out about its existence until several hours after the search had taken place.

The State Trial Judge held a voir dire hearing outside the presence of the jury on the facts surrounding the search and seizure. Upon completion of this he then admitted all testimony about the fruits of the search before the jury over strenuous objection by Appellant's counsel. The Judge made no express finding or declaration on the record as to voluntariness or legality of the search. But his estimate of the critical importance of the evidence was shown by his charge to the jury, in which the Judge stated that if they had a reasonable doubt about the voluntariness of the consent to the search, then he was to be acquitted of the charge. The jury's verdict resolved this issue against Appellant.

Appellant's first contention that the voluntariness of his consent to the search was constitutionally suspect is a procedural one. Invoking Jackson v. Denno, 5 he claims that in determining voluntariness the Trial Judge failed to make and announce an independent finding on the issue before allowing the jury to receive and see the fruits of the search. But as Appellant surely realizes Jackson-Denno dealt only with the proper procedure to use before a confession is introduced into evidence. See Smith v. Texas, 5 Cir., 1968, 395 F.2d 58. We know of no case nor are we cited to any, which holds that the same circumspect procedure used in determining the voluntariness of a confession must be used before evidence claimed to have been illegally seized is submitted to the jury. Under F.R.Crim.P. 41, the Judge is only required to pass on the admissibility of the evidence before it is introduced at trial. 6 By the voir dire examination outside the hearing of the jury, that same procedure was carried out in this case. We find no constitutional infirmity in this procedure, and we see no reason to hold the States to a more exacting procedure than the Federal Courts follow.

The second attack by Appellant is a substantive one going to the reasonableness of the search and seizure and is more troublesome. Appellant contends that the fruits of the search must be excluded under the ruling in Wong Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, because from the moment he got into the car with the postal inspectors and police outside the drugstore he was under arrest, that his arrest was illegal, and his consent to the search was the product of the illegal arrest. 7 In reply, the State contends that Appellant was not placed under arrest until after the search of Appellant's home and the seizure of the obscene photographs. Since there had been no arrest, Wong Sun's exclusionary rules do not apply. Alternatively, the State argues that even if Appellant was under arrest, Appellant's consent to the search was such an intervening act of free will on his part as to dissipate the taint of the illegal arrest.

Although a substantial question exists in our minds whether Appellant was indeed ever under arrest under Texas law

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until after the search of his home, 8 we need not decide either that issue or whether the arrest was legal. 9 Instead, we think the firmer and less nebulous ground is that even admitting the arrest and the illegality thereof, Appellant's consent to the search, voluntarily made--judicially determined by the jury's verdict of guilt--dissipated the taint of the arrest and made the fruits of the search admissible into evidence.

We of course recognize that consent to a search is not to be lightly inferred, but should be shown by clear and convincing evidence. Bumper v. State of North Carolina, 1968, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797; United States ex rel. Gockley v. Myers, 3 Cir., 1967, 378 F.2d 398; Thomas v. United States, 5 Cir., 1967, 377 F.2d 118; United States v. Como, 2 Cir., 1965, 340 F.2d 891. Any consent must be voluntary and uncoerced, either physically or psychologically. Cipres v. United States, 9 Cir., 1965, 343 F.2d 95; Rogers v. United States, 5 Cir., 1964, 330 F.2d 535. But a waiver of constitutional rights is possible. 10

Our starting place in determining whether the seized pictures were admissible is Wong Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. Until that case an illegal arrest did...

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