Williams v. Adams, 64

• Decision Date: 14 April 1971
• Docket Number: Docket 34826.,No. 64,64
• Citation: 441 F.2d 394
• Parties: Robert WILLIAMS, Petitioner-Appellant, v. Frederick E. ADAMS, Warden, Connecticut State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

441 F.2d 394 (1971)

Robert WILLIAMS, Petitioner-Appellant, v. Frederick E. ADAMS, Warden, Connecticut State Prison, Respondent-Appellee.

No. 64, Docket 34826.

United States Court of Appeals, Second Circuit.

Rehearing Ordered March 3, 1971.

Decided April 14, 1971.

Before LUMBARD, Chief Judge, FRIENDLY, SMITH, KAUFMAN, HAYS, ANDERSON and FEINBERG, Circuit Judges.

Rehearing in Banc Ordered March 3, 1971.

PER CURIAM:

Upon application by petitioner a majority of the active members of this court voted to reconsider in banc the decision of the panel in this case, 436 F.2d 30, on the record and briefs originally filed, without further oral argument. Both parties were invited to file supplemental briefs, and both have done so. Upon reconsideration, we conclude that on the basis of the facts then known to him, Sergeant Connolly had neither probable cause to arrest Williams nor any other sufficient cause for reaching into Williams's waistband, an action which led to the subsequent search of Williams's car and the discovery of a machete and narcotics later introduced in evidence at Williams's trial. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1969); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L. Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). Since those illegally seized items should have been excluded from evidence, Williams's conviction must be set aside. Accordingly, we reverse the order of the district court denying Williams's petition for a writ of habeas corpus.

HAYS, Circuit Judge (dissenting):

The facts of this case were as follows:

"At 2:15 on a Sunday morning, a sergeant of the Bridgeport police department was patrolling alone in a section of Bridgeport noted for its high incidence of crimes of various kinds. There he met a person known to him and considered by him to be trustworthy and reliable who pointed to an automobile parked on the other side of the street and told him that a person seated in the vehicle was armed with a pistol at his waist and had narcotics in his possession. The defendant was the occupant of this automobile and was seated on the passenger\'s side of the front seat. The sergeant walked across the street, tapped on the window of the automobile and told the defendant to open the door. The defendant rolled down the window of the door, and the sergeant immediately reached directly to the defendant\'s waistband and removed a fully loaded, .32-caliber revolver from the waistband of the defendant\'s trousers. He thereupon arrested the defendant, and thereafter a search was made of the defendant and the automobile. The

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