431 F.2d 330 (9th Cir. 1970), 23917, Lurie v. Oberhauser

Docket Nº:23917, 24247.
Citation:431 F.2d 330
Party Name:Marshall Roy LURIE, Appellant, v. E. J. OBERHAUSER, Warden, Appellee. Peter Gary D'ALLESSANDRO, Appellant, v. C. J. FITZHARRIS, Superintendent, etc., et al., Appellee.
Case Date:August 14, 1970
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 330

431 F.2d 330 (9th Cir. 1970)

Marshall Roy LURIE, Appellant,

v.

E. J. OBERHAUSER, Warden, Appellee.

Peter Gary D'ALLESSANDRO, Appellant,

v.

C. J. FITZHARRIS, Superintendent, etc., et al., Appellee.

Nos. 23917, 24247.

United States Court of Appeals, Ninth Circuit.

Aug. 14, 1970

Rehearings Denied Oct. 14, 1970.

Page 331

Richard G. Sherman (argued), of Sherman & Sturman, Beverly Hills, Cal., for appellants.

Mark Christiansen (argued), Deputy Atty. Gen., Thomas C. Lynch, Atty. Gen., Wm. E. James, Asst. Atty. Gen., Thomas S. Kerrigan, Deputy Atty. Gen., Los Angeles Cal., for appellees.

Before HAMLEY and ELY, Circuit Judges, and POWELL, District Judge. 1

POWELL, District Judge,

On June 1, 1966 petitioners Lurie and D'Allessandro were convicted in the Superior Court of the State of California, of burglary and grand theft. Their convictions were affirmed by the California Court of Appeals. The California Supreme Court denied their petitions for a hearing.

The petitioners' applications for the issuance of writs of habeas corpus were denied by the District Court after a review of the transcripts of their preliminary examination and trial. This appeal followed.

The facts are not materially disputed. Two officers of the Los Angeles Police Department were conducting a stakeout at the Los Angeles International Airport for two out-of-town suspects they believed were involved in a robbery at I. Magnin's in Beverly Hills. The suspects, Lurie and D'Allessandro, were thereafter observed at the Trans-World Airlines Terminal in the company of a young lady. When they presented their tickets at the gate one of the officers stepped forward and placed all three under

Page 332

arrest. The officers then obtained seven baggage claim checks from the possession of D'Allessandro. The claim checks were handed to an airlines agent who secured the luggage which was transported to and searched at the Wilshire Police Station. One of the items of luggage, a suitcase, contained furs identified as those taken at a recent apartment house burglary. The officers found no evidence of items taken in the I. Magnin robbery in the luggage or on the person of any of the persons arrested. The State convictions of Lurie and D'Allessandro were for the apartment house burglary.

The appellants allege four grounds for federal habeas corpus relief: (1) the warrantless arrest of Lurie and D'Allessandro was not based on sufficient probable cause and the fruits obtained as a result thereof were improperly admitted into evidence; (2) there was no probable cause for the arrest of Jenkins (the young woman traveling under the name of Mrs. Carter), the obtaining of her luggage with the use of baggage claim checks on her ticket, and the later search of the luggage; (3) the search of the suitcase containing the furs was not...

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