U.S. ex rel. Kirby v. Sturges, 73--2057

• Citation: 510 F.2d 397
• Decision Date: 09 June 1975
• Docket Number: No. 73--2057,73--2057
• Parties: UNITED STATES of America ex rel. Thomas KIRBY, Petitioner-Appellant, v. David R. STURGES, Chairman of the Illinois Parole and Pardon Board (or hissuccessor), Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 397

510 F.2d 397

UNITED STATES of America ex rel. Thomas KIRBY, Petitioner-Appellant, v. David R. STURGES, Chairman of the Illinois Parole and Pardon Board (or hissuccessor), Respondent-Appellee.

No. 73--2057.

United States Court of Appeals Seventh Circuit.

Argued May 21, 1974.

Decided Jan. 28, 1975.

Certiorari Denied June 9, 1975.

See 95 S.Ct. 2424.

Robert L. Graham, Jerold S. Solovy, Chicago, Ill., for petitioner-appellant.

William J. Scott, Atty. Gen., Jayne A. Carr, Asst. Atty. Gen., Chicago, .ill., for respondent-appellee.

Before FAIRCHILD and STEVENS, Circuit Judges, and LARAMORE, Senior Judge. ^*

STEVENS, Circuit Judge.

Having failed, on direct review of his robbery conviction, to persuade the Supreme Court to hold that evidence of his identification at a pre-indictment showup was inadmissible because he was not represented by counsel, Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, Kirby now presents us with two questions which the Supreme Court has not yet answered. The first, expressly reserved in Kirby, is whether 'the particularized circumstances of this case' disclose a deprivation of due process; ¹ the second, identified but not expressly decided in Neil v. Biggers, 409 U.S. 188, 198--199, 93 S.Ct. 375, 34 L.Ed.2d 401, is whether identification evidence derived from a showup which (a) was conducted after June 12, 1967, the date of decision of Wade, Gilbert and Stovall, ² and (b) was unnecessarily suggestive since a lineup could have been conducted, is, as a matter of constitutional law, inadmissible. Kirby also argues that his arrest was improper and that the district court erroneously denied his request for an evidentiary hearing.

I.

Willie Shard was robbed at about 4:30 in the afternoon of Frbruary 20, 1968. While walking from a friend's house to a restaurant, Shard looked back and saw two men about 15 feet away. As he started up the steps to the restaurant, one of the men ran up and grabbed him around the neck while the other took seven traveler's checks, about $30 in cash, and his identification cards from Shard's pockets. Shard testified that he got a good look at the men before, during, and after the robbery. ³ The next morning he walked to the police station, reported the theft, and gave the police a description of the two robbers.

At about 11:00 a.m. on February 22, two police officers arrested Kirby and his co-defendant Bean. They had stopped Kirby because he resembled a man named Hampton, who was wanted on an unrelated charge. When the police asked Kirby and Bean for identification, they displayed traveler's checks and identification cards bearing Shard's name. In response to further questions, Kirby first stated that the checks were 'play money' and then that they had won them in a crap game. ⁴ The conflicting and evasive answers, coupled with the possession of Shard's property, persuaded the officers to take them into custody. The officers were not aware of the robbery of Shard until after they arrived at the station.

The police then called Shard at work and arranged to bring him to the station. ⁵ He was asked if he had been robbed and whether he could identify the men who had robbed him. He was not told that any of his property had been recovered.

When Shard entered a large room at the police station, he saw Kirby and Bean sitting at a table with an officer and immediately identified them. They were then asked to stand and Shard was asked whether they were the robbers; he replied unequivocally that they were.

The record indicates that Shard testified at a preliminary hearing before Judge Ryan, ⁶ before the grand jury, and at the jury trial of Kirby and Bean. During the cross-examination of Shard, counsel for the defendants had the transcript of Shard's earlier testimony and the descriptions Shard had given to the police when he first reported to robbery. No material discrepancy was developed, and Shard expressed no uncertainty about the accuracy of his identification.

The trial transcript includes the testimony of Shard, the arresting officers, the officers who were present when Shard identified the defendants, and defendant Bean. The trial exhibits include Shard's traveler's checks and identification, and the prior record of Bean which was introduced for purposes of impeachment. Kirby did not testify. ⁷

In his closing argument to the jury, defense counsel emphasized the suggestive character of the identification at the police station. The trial judge gave no special instruction concerning the unreliability of eyewitness identifications in general or showups in particular. The jury found both defendants guilty.

The Illinois appellate court reversed the conviction of Bean on the ground that the mere possession of property belonging to another did not establish probable cause to arrest. It affirmed Kirby's conviction, holding that his conflicting explanations of his possession of Shard's property, coupled with that possession, justified the arrest, and that the motion to suppress had been properly denied. The court expressly ruled (1) that Wade and Gilbert were inapplicable to a pre-indictment identification, ⁸ (2) that the circumstances surrounding the identification were not so suggestive as to deny Kirby due process of law, and (3) that the use of the showup as an identification procedure is not unconstitutional even though there was no compelling reason for not conducting a lineup. ⁹

The Illinois Supreme Court denied leave to appeal. As already noted, the United States Supreme Court, after a limited grant of certiorari, decided the Wade-Gilbert issue but left open the remaining questions.

The case is here on appeal from Judge Will's denial of Kirby's petition for a writ of habeas corpus. Judge Will found that the record established probable cause to arrest and that the identification procedure was not impermissible. After the district court had filed its memorandum opinion on the merits, Kirby moved for reconsideration and specifically requested an evidentiary hearing. That motion was denied.

II.

We agree with the following discussion of the arrest issue in the well-reasoned opinion of the district court:

Defendant's first contention is that the trial court erred in denying his motion to suppress the physical evidence taken from him at the time of his arrest--the traveler's checks and the Social Security card bearing the name 'Willie Shard.' He argues that his arrest was without probable cause and therefore the physical evidence seized should have been suppressed as the product of an unlawful arrest.

Our review of the transcript of the hearing conducted by the trial court on this issue, as well as the reasoning of the Appellate Court of Illinois affirming the decision, reveals no constitutional error. The initial stop of petitioner was based upon the police officers' mistaken belief that petitioner was a man wanted for con games according to a police department bulletin carried in the officers' squad car and bearing a description and picture of the wanted person. The Supreme Court has held an arrest or stop based upon a reasonable mistake as to identity is lawful. Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971). Petitioner does not contend the mistake in identity was not reasonable, but rather that they particular police bulletin relied upon was too vague and overbroad in its description of the wanted man to serve as a sufficient basis for arresting him.

Petitioner's contention is unsound as the bulletin carried a picture of the wanted man as well as a description of his physical characteristics. Furthermore, he overlooks the fact that he was not searched or arrested on the basis of his similarity to the suspect appearing in the bulletin. The alleged similarity was the basis only for the stop and request for identification. It was while petitioner was looking for identification that the officers noticed the traveler's checks bearing the name 'Willie Shard.' Admittedly, the possession of property bearing someone else's name would not constitute probable cause for petitioner's arrest. But, upon questioning petitioner as to the reason for his possession of this evidence, which was in plain view of one of the officers, petitioner gave two contradictory explanations. We find ourselves in agreement with the Illinois Appellate Court that this set of circumstances constituted probable cause to arrest petitioner and subsequently take from him the Shard traveler's checks and Social Security card which was uncovered as a result of the search incident to that arrest.

III.

In arguing that Judge Will erred in not holding an evidentiary hearing, Kirby primarily relies on the Supreme Court's footnote stating that the due process question 'remains open for inquiry in a federal habeas corpus proceeding.' ¹⁰ We do not believe that the Court was mandating an evidentiary hearing. In our opinion the footnote preserved the question but did not prescribe the procedures to be followed in answering it.

The standards for determining when an independent evidentiary hearing in the federal district court is necessary were set forth in Townsend v. Sain,372 U.S. 293, 312--313, 83 S.Ct. 745, 9 L.Ed.2d 770. ¹¹ Kirby focuses on the requirement that the material facts be adequately developed at the state court hearing. He argues that there was some dispute over the facts pertaining to the stationhouse identification and the stop and arrest.

It is settled, however, that the mere existence of a dispute in the evidence does not necessarily require that an evidentiary hearing be held. The test is whether the material facts were adequately developed at a full and fair hearing before the state court. See Townsend v. Sain, supra; United States ex rel. Hartgraves v. Pate, 375 F.2d 289, 290 (7th Cir. 1967); United States ex rel. Pierce v. Cannon, 508 F.2d 197 at 205 (7th Cir. 1974). Kirby contends that an evidentiary hearing would more fully develop...