513 F.2d 1280 (8th Cir. 1975), 74-1682, Rice v. Wolff

Docket Nº:74-1682.
Citation:513 F.2d 1280
Party Name:David L. RICE, Appellee, v. Charles L. WOLFF, Jr., Warden, Nebraska Penal and Correctional Complex, Appellant.
Case Date:January 28, 1975
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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513 F.2d 1280 (8th Cir. 1975)

David L. RICE, Appellee,


Charles L. WOLFF, Jr., Warden, Nebraska Penal and

Correctional Complex, Appellant.

No. 74-1682.

United States Court of Appeals, Eighth Circuit

January 28, 1975

Submitted Dec. 12, 1974.

Rehearing and Rehearing En Banc Denied Feb. 19, 1975.

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Mel Kammerlohr, Asst. Atty. Gen., Lincoln, Neb., for appellant.

J. Patrick Green, Omaha, Neb., for appellee.

Before MATTHES, Senior Circuit Judge, and BRIGHT and STEPHENSON, Circuit Judges.

MATTHES, Senior Circuit Judge.

The petitioner in this habeas corpus action, David L. Rice, was convicted in Nebraska state court of the first degree murder of an Omaha policeman, Larry D. Minard, who was killed when a suitcase he was examining exploded. The conviction was affirmed. State v. Rice, 188 Neb. 728, 199 N.W.2d 480 (1972). Petitioner sought habeas corpus relief from the United States District Court for the District of Nebraska, pursuant to 28 U.S.C. § 2254. Chief Judge Urbom, after due consideration, granted the writ.

This appeal by the State of Nebraska for respondent Wolff raises several important questions in the law of search and seizure. At issue is whether Judge Urbom erred in ruling that the search of petitioner's house by members of the Omaha police force was illegal, and that certain evidence seized during that search or as a fruit of the search should have been suppressed at petitioner's trial in state court.

We first review the basic facts precipitating the prosecution and the ensuing court proceedings.

At 2:05 a. m. on Monday, August 17, 1970, an Omaha police radio dispatcher received a telephone call from a 911 operator that someone had reported a woman screaming at 2865 Ohio Street, in Omaha. The dispatcher sent two police cars to that address, and officers in a third vehicle also arrived at the scene. One of the policemen responding was Larry Minard. The house at 2865 Ohio was vacant. As the police entered the structure, they were forced to step over a suitcase lying on its side in the doorway. Several minutes after the police first entered the house, Officer Minard approached the suitcase and apparently was inspecting it when it exploded, instantly killing him. Subsequent investigation established that the suitcase had contained dynamite, which had been wired in such a manner that any movement of the suitcase would detonate the dynamite.

A police task force immediately began an investigation of the bombing. By Saturday morning, August 22, 1970, the investigation began to focus upon one Duane Peak, a fifteen-year-old member of the National Committee to Combat Fascism (NCCF), a political organization known in the community as the Black Panther Party. Specifically, several persons had identified Peak as the individual who had called to report a disturbance at the vacant house on Ohio Street. Moreover, several people had seen Peak some time prior to the murder of Officer Minard with a suitcase similar to the one used in the bombing. The police also had knowledge that Edward Poindexter, an officer in the NCCF, was capable of rigging a booby trap bomb.

The NCCF was well known to the Omaha police. For two years prior to the murder of Minard, the police had maintained an intelligence file on the NCCF and a predecessor organization, the United Front Against Fascism. The file included publications of the NCCF, some of which contained articles by Poindexter or petitioner advocating violence against the police and others.

On Saturday afternoon, August 22, warrants were issued for the arrest of Peak and Poindexter, and the Omaha police force began a city-wide search for the two suspects. Since the police had no specific information or tips as to the whereabouts of Peak or Poindexter, police officials listed the various places where it was believed the two might be located and instructed police teams to visit or search the various locations.

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Among the places searched or visited on Saturday afternoon and evening were the NCCF headquarters at 3508 North 24th Street, the residence of one of the suspects, and the homes of certain of their relatives and associates.

By Saturday evening Edward Poindexter had been apprehended. Peak, however, the prime suspect in the case, was still at large. The police believed that members of the NCCF were searching for Peak in order to eliminate him, since he supposedly could incriminate others in the NCCF as accomplices in the bombing. Consequently, the police search for Peak continued.

At 10:30 Saturday night policemen in search of Peak arrived at the home of David Rice, the petitioner, at 2816 Parker Street. Petitioner was known to the police as an officer in the NCCF. Based on testimony credited by Judge Urbom at an evidentiary hearing in the district court, it appears that the only reasons for placing petitioner's house on the list of places to be searched were that both petitioner and Peak were members of the NCCF and Peak had been in petitioner's house some weeks previously.

Lights and a television were on in the petitioner's home when the police arrived, but there was no response to the officers' knock at the door. The leaders of the police team, Sergeants Swanson and Pfeffer, decided not to forcibly enter the house immediately. Instead, they proceeded to the office of a Municipal Court Judge, made an affidavit, and obtained a search warrant while the other officers encircled petitioner's house and waited. Swanson and Pfeffer returned an hour or more later with the search warrant, and petitioner's house was finally entered by the police with the two-fold purpose of searching for and arresting Peak and searching for dynamite believed in the possession of the NCCF.

Peak was not in the house. But the police discovered, assertedly in plain view, fourteen sticks of dynamite, blasting caps, wiring, a battery, and a pair of long-nosed pliers.

Peak was subsequently arrested, and on August 27 petitioner voluntarily surrendered. The clothing petitioner was wearing at the time of his arrest was seized by the police and subjected to chemical analysis for dynamite particles.

Poindexter and petitioner subsequently were tried jointly for first degree murder. Both moved the state trial court to suppress various items seized by the police, including those seized during the search of petitioner's house and the clothing seized from petitioner upon his arrest. 1 The state trial court denied the motion to suppress, ruling that the search was legal pursuant to a valid search warrant.

At the trial, Peak implicated Poindexter and petitioner in the bombing plot. As corroborative evidence, the State introduced many of the items seized at the petitioner's house during the search of August 22, and introduced the results of the chemical analysis of petitioner's clothing seized at the time of his arrest. The analysis indicated that dynamite granules were in the pockets of the trousers. Both defendants were convicted by a jury on April 17, 1971. Petitioner was sentenced to life imprisonment.

On appeal to the Supreme Court of Nebraska, the primary attack by Poindexter and petitioner was upon the trial court decision to deny the motion to suppress. Specifically, they contended that the trial court erred in upholding the validity of the search warrant. The State defended the ruling of the district court, but further argued that even if the search warrant was improper, entry into petitioner's house was reasonably and properly undertaken in search of Duane Peak, and the evidence discovered

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in plain view during this search pursuant to a valid arrest warrant was admissible at trial. The two defendants attacked this alternative ground of search to arrest in their reply brief.

The state supreme court affirmed the convictions of both men on July 18, 1972, ruling that the search of petitioner's home was pursuant to a valid search warrant. The court did not consider whether entry into petitioner's home could be justified as one in search of Peak. See State v. Rice, supra.

On September 29, 1972, petitioner filed this petition for writ of habeas corpus in the federal district court in Nebraska. Petitioner urged that his sentence was unlawful because the underlying conviction was based upon evidence seized in violation of the fourth and fourteenth amendments to the United States Constitution.

Judge Urbom filed a memorandum on March 30, 1974, 388 F.Supp. 185 (D.Neb.1974), ruling that the affidavit for the search warrant was fatally defective and that consequently the search warrant was invalid. The district court ordered a hearing on the alternative ground asserted by the State as legally justifying the entry and search of the residence. An evidentiary hearing was held, and on July 5, 1974, Chief Judge Urbom filed an opinion, 388 F.Supp. 195 (D.Neb.1974), finding that the police did not have probable or reasonable cause to enter the petitioner's house in search of Peak, and that the search was therefore wholly unlawful. Habeas corpus relief was granted: petitioner was ordered released from custody unless he was granted a new trial within 90 days of the district court decision or within 90 days of an appellate court decision affirming the district court order, whichever was later. This appeal by the State of Nebraska for respondent Wolff followed.


We turn first to the ruling of the district court that the warrant to search the petitioner's house was invalid. It is fundamental constitutional law, of course, that a search warrant may issue only upon a showing that there is probable cause to believe that the item sought is located on the premises...

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