459 F.2d 537 (8th Cir. 1972), 71-1547, Ricehill v. Brewer

Docket Nº:71-1547.
Citation:459 F.2d 537
Party Name:Elliott Charles RICEHILL, Petitioner-Appellant, v. Lou V. BREWER, Warden, Iowa State Penitentiary, Respondent-Appellee.
Case Date:May 02, 1972
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 537

459 F.2d 537 (8th Cir. 1972)

Elliott Charles RICEHILL, Petitioner-Appellant,

v.

Lou V. BREWER, Warden, Iowa State Penitentiary, Respondent-Appellee.

No. 71-1547.

United States Court of Appeals, Eighth Circuit.

May 2, 1972

Submitted March 16, 1972.

Paul H. Kinion, Cedar Rapids, Iowa, for appellant.

Richard N. Winders, Asst. Atty. Gen., Des Moines, Iowa, for appellee.

Before GIBSON, HEANEY and ROSS, Circuit Judges.

ROSS, Circuit Judge.

This is an appeal from the district court's denial of Elliott Charles Ricehill's petition for a writ of habeas corpus under 28 U.S.C. § 2254. The facts upon which Ricehill bases his petition are contained in State v. Ricehill, 178 N.W.2d 288 (Iowa 1970), cert. denied, 401 U.S. 942, 91 S.Ct. 945, 28 L.Ed.2d 222 (1971). In his habeas petition, Ricehill contended that his conviction by a jury in Linn County, Iowa District Court of the murder of Mabel Bigley

Page 538

was based upon evidence obtained from him incident to an invalid arrest. He claimed that this arrest (for vagrancy) was a mere subterfuge in order to detain him and to obtain evidence against him on the murder charge. The federal district court agreed that probable cause for Ricehill's arrest for vagrancy did not exist but disagreed that his vagrancy arrest was a mere subterfuge and sham. The district court then justified the search and attendant seizure on the basis that probable cause for his murder arrest did exist at the time he was arrested for vagrancy. Upon this appeal, Ricehill asserts that (a) his arrest for vagrancy was a mere subterfuge and sham; (b) probable cause did not exist for his arrest for murder; and (c) even assuming its existence, evidence obtained as a result of a subterfuge and sham cannot be used as evidence. For reasons stated below, we affirm the district court's decision, 338 F.Supp. 1311.

I.

The trial court properly determined that there was not probable cause for the arrest of Ricehill on the vagrancy charge. This decision was made partially on the basis that vagrancy is not an indictable crime in Iowa and that therefore "a lawful arrest for vagrancy in Iowa requires more than the minimum federal standard, 'probable cause,' and 'reasonable belief,' but also that vagrancy be in fact committed." Clearly, Ricehill was not a vagrant as defined by Iowa statute; and, even if he had come within that definition, there is a serious question as to whether or not that vagrancy statute is constitutional under the recent Supreme Court decision of Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). 1

It does not necessarily follow, however, that Ricehill's arrest for vagrancy was a sham or a mere pretext. Detective Schultz testified that Ricehill was "booked" for vagrancy

"[b]ecause he told me he lived at 118 First Street, N.E.; and in talking with...

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