452 F.2d 783 (10th Cir. 1971), 71-1128, Bell v. State of Kansas

Docket Nº:71-1128.
Citation:452 F.2d 783
Party Name:Application of Robert L. BELL, Petitioner-Appellant, v. STATE OF KANSAS, Respondent-Appellee.
Case Date:December 09, 1971
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 783

452 F.2d 783 (10th Cir. 1971)

Application of Robert L. BELL, Petitioner-Appellant,

v.

STATE OF KANSAS, Respondent-Appellee.

No. 71-1128.

United States Court of Appeals, Tenth Circuit.

December 9, 1971

Rehearing Denied Jan. 5, 1972.

John C. Humpage, Topeka, Kan. (Humpage & Stewart, Topeka, Kan., on the briefs), for petitioner-appellant.

Donald R. Hoffman, Asst. Atty. Gen. (Vern Miller, Atty. Gen., and Edward G.

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Collister, Jr., Asst. Atty. Gen., on the brief), for respondent-appellee.

Before LEWIS, Chief Judge, and PHILLIPS and McWILLIAMS, Circuit Judges.

ORIE L. PHILLIPS, Circuit Judge.

This is an appeal from an order discharging a writ of habeas corpus, issued on the application of Bell by the United States District Court for the District of Kansas, an order dismissing the habeas corpus action, and an order denying Bell's petition for rehearing.

On February 2, 1968, a search warrant had been issued for a search of the premises at 2300 Adams Street, Topeka, Kansas, a house located thereon, and a truck believed to be located at such address. The object of the search was a safe which had been taken in a burglary. The validity of that search is not involved here.

The search warrant was in the hands of Marion Bartlett, a sergeant in the Topeka Police Force, who was in charge of the search. Don Demore, a Topeka police officer, was a member of the search party, and it was his duty to maintain a surveillance on one side of the house and the premises. Bartlett had been notified that the truck was on the premises. When he reached a point across the street, opposite the premises, Bartlett parked his car on the far side of the street from the premises and started to walk to the house. As he arrived at the door of the house, Bell and a female companion drove into the yard in a Mustang automobile. Bell parked the Mustang about five feet from the house, in the parkway. Demore held up his identification and said, "Police Officer." As he approached Bell, Demore observed Bell withdraw from his right-hand pocket an object that appeared to be a gun or pistol. Demore then drew his weapon and told Bell to drop the gun. Bell was on the left side of the Mustang, near the left door, and he leaned back and dropped the pistol onto the rear seat of the Mustang. The left door was open and the interior lights were on. As Bell dropped the pistol, Demore, by such interior lights, saw the pistol and also was able to see it where it lay on the rear seat of the Mustang, without entering the vehicle. Bell was so close to the open door of the Mustang that he could have reached in from where he stood and seized the pistol that he had dropped on the rear seat. Demore reached into the Mustang, seized the pistol from the rear seat, and retained it.

Ordinance 12-212 of the City of Topeka defines the offense of carrying a concealed weapon. In part here material, it reads:

"* * * Any person who is not an officer of the law, or deputy to such officer, who shall be found within the corporate limits of the City, carrying on his person in a concealed manner, any pistol, (here are set forth a number of other deadly weapons) shall be deemed guilty of a misdemeanor. * * *"

The ordinance also provides a penalty for such offense.

On February 5, 1968, a complaint was filed in the Municipal Court of Topeka, Kansas, charging Bell with carrying a concealed weapon on February 2, 1968, in the City of Topeka. On February 6, 1968, a warrant was issued for the arrest of Bell. Bell was arrested on such warrant on February 7, 1968.

Bell entered a plea of not guilty. He was tried on the complaint on April 11, 1968. Demore testified as a witness for the city and Bell testified in his own behalf. At the conclusion of the evidence, the court found that Bell was guilty and sentenced him to pay a fine of $100 and the costs and to serve 90 days in jail. Such judgment became final on December 3, 1968, when the District Court of Shawnee County, Kansas, dismissed Bell's appeal from his conviction in the Municipal Court of Topeka, Kansas.

On May 16, 1968, an information was filed against Bell in the District Court of Shawnee County, Kansas, which charged that "Robert L. Bell at the County of Shawnee, in the State of Kansas

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* * * on the ______ day of February, A.D. 1968, * * * having been previously convicted of grand larceny, forgery, and burglary, did have and keep in his possession and under his control a certain pistol, to-wit: a .38 caliber Colt, snub nose revolver, Serial No. 832443, * * *." (K.S.A. 21-2611)

The Kansas firearms statute, upon which the information in the state court was based, K.S.A. 21-2611, in part here material, reads:

"It shall be unlawful for any person who has previously been convicted in this state or elsewhere of committing or attempting to commit * * * burglary (a great many other felonies are enumerated, but since burglary was the only one involved in the instant case, we omit the others) to own a pistol, or to have or keep a pistol in his possession, or under his control. * * *"

Prior to the entry of Bell's plea thereto, the court, on motion of the state, struck from the information, in accordance with K.S.A. 62-808, the word "forgery." 1

After Bell had pleaded, and before trial, the court, with the consent of both parties, struck from the information the words "grand larceny, " and counsel for Bell by stipulation admitted that Bell had previously been convicted of burglary. Such elimination was to Bell's advantage, because it eliminated the introduction of any evidence at the trial that Bell had been previously convicted of the crimes of grand larceny and forgery.

The trial of Bell on the information commenced on January 8, 1969, and was concluded on January 10, 1969, when the jury returned a verdict of guilty.

On February 14, 1969, Bell's counsel was served with notice that the state would invoke the Kansas habitual criminal statute against him. At a hearing on February 19 and 20, 1969, the state introduced evidence of prior felony convictions. Bell made no objection to the court proceeding with such hearing on February 19 and 20, 1969, on the ground that his counsel had not had sufficient time to prepare to meet the state's evidence, nor did Bell ask for a continuance to give his counsel more time to prepare for such hearing. 2

Bell offered no evidence to controvert the state's evidence of his prior convictions, although he was given full opportunity so to do, and he made no showing of any prejudice because the hearing was held on February 19 and 20, 1969.

On February 20, 1969, the court sentenced Bell, under the Kansas habitual criminal statute, to imprisonment in the Kansas State Penitentiary for a term of not less than 15 years. Bell appealed from the judgment and sentence to the Supreme Court of Kansas. On May 9, 1970, it affirmed the judgment and sentence. See State v. Bell, 205 Kan. 380, 469 P.2d 448.

When the trial on the information in the District Court of Shawnee County, Kansas, reached the point where evidence was about to be introduced of what occurred when the officers went to 2300 Adams Street, Topeka, Kansas, to serve the search warrant, leading up to the seizure of the pistol, and with respect to such seizure, counsel for Bell objected

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on the ground that such seizure was unlawful and unreasonable and violated Bell's rights under the Fourth Amendment to the Constitution of the United States. Thereupon, the trial court sent the jury out, recessed the trial, and proceeded to hear evidence on the motion to suppress.

At the hearing on the motion, Bartlett and Demore testified to the facts above stated, with respect to the issuance of the search warrant, the actions of the officers in going to the premises at 2300 Adams Street to serve the search warrant, what they observed there, and the facts leading up to the seizure and the retention of the pistol.

The state district court held that the motion to suppress the evidence of what occurred when the officers went to 2300 Adams Street to serve the search warrant, and the facts with reference to the pistol and the seizure and retention thereof, was not well founded and denied the motion to suppress.

In passing on that issue on Bell's state court appeal, the Supreme Court of Kansas, in its opinion in State v. Bell, 205 Kan. 380, 469 P.2d 448, 451-452, said:

"We conclude that the pistol was properly retrieved from the automobile and admitted in evidence against the defendant. The officer had reasonable grounds to believe the defendant was dangerous when defendant drew the pistol from his pocket and dropped it in the back seat of the automobile occupied by his female companion. It was reasonable and necessary for the protection of the officer and others to take swift measures to recover the pistol from the automobile and neutralize the threat of harm which it posed. The officer restricted his seizure to the pistol and such seizure was reasonable under the Fourth Amendment * * *.

******

* * *

"* * * The seizure was both reasonable and necessary under the exigencies. Seizure was dictated by the facts known to the officer in order to neutralize the threat of harm inherent in the situation. Since the pistol was legally seized it was admissible in evidence and defendant's motion to suppress was properly overruled."

The Supreme Court of Kansas also held that five days was ample time for Bell to prepare his defense to the state's evidence at the proceeding on February 19 and 20, 1969, to establish that the Kansas habitual criminal statute was applicable, and that under the facts and circumstances, Bell suffered no prejudice because the hearing was held as...

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