Fry v. Estelle, 74--4253
| Citation | 527 F.2d 420 |
| Decision Date | 19 February 1976 |
| Docket Number | No. 74--4253,74--4253 |
| Parties | Larry William FRY, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Mark S. Ward, Weldon, Tex., Staff Counsel for Inmates, George A. Scharmen, II, Staff Counsel for Inmates, Huntsville, Tex., for petitioner-appellant.
Merrill Finnell, John P. Griffin, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before BROWN, Chief Judge, RIVES and GEE, Circuit Judges.
This appeal is from the district court's denial of a state prisoner's petition for habeas corpus. The only issue presented is whether, under the circumstances, the warrantless search of petitioner's automobile was reasonable.
The reasonableness vel non of this same search has been ably discussed by several of the Judges of the Court of Criminal Appeals of Texas on Fry's appeal from the judgment of conviction. Fry v. Texas, 1972, 493 S.W.2d 758--777. On original hearing, the search was held unreasonable, the judgment reversed, and the case remanded. The State's first motion for rehearing was denied, one judge dissenting. The State's second motion for rehearing was granted and the judgment of conviction was affirmed, two judges dissenting. The conviction was for burglary, and the state trial court sentenced Fry to a term of imprisonment for twelve years.
The evidence admitted in the criminal trial over Fry's objection and motion to suppress included, among other items, a 'Citizens Band Radio' taken in a burglary at Marble Falls, Texas, and some seventeen rings stolen in another burglary a short time thereafter. The second burglary was of the Green Leaf Leaf Nursery in Austin, Texas, on January 17, 1970.
City Marshal J. A. Presley of Marble Falls, investigating the burglary in that town, received information on January 24, 1970 from one Johnny Yonnie that Fry had been staying in Yonnie's house, and had shown Yonnie some of the 'loot' from the two burglaries, which included the radio and some rings, and that the 'loot' had been placed in the back of Fry's brown Corvair automobile which bore California tags. Yonnie also informed Presley that Fry was contemplating sometime 'soon' a burglary of Kuykendale's Drug Store in Burnet, Texas. There was no showing that Marshal Presley had in the past relied on information from Yonnie nor was there any showing that the information then furnished by Yonnie was credible, other than that, judging from their acquaintance during the short time that Yonnie had lived in Marble Falls, Presley considered him trustworthy.
Presley promptly, i.e., at about 2:00 P.M. on January 24, relayed to Marshal Shelburn of Burnet, Texas, the information furnished by Yonnie. That information was probably not sufficient, unless and until corroborated, for either marshal to obtain an arrest warrant or a search warrant from a magistrate; and no effort was made to obtain a warrant.
At about 1:30 A.M. on January 25, 1970, Marshal Shelburn, while on patrol in Burnet, observed an automobile fitting the description, parked in the alley behind the drug store. He knew that the automobile had not been there at his previous patrol about fifteen minutes earlier. Marshal Shelburn called his deputy, the Highway Patrol, and Marshal Presley to the scene. The exits of the alley were blocked by the cars of Marshal Shelburn and his deputy, and a constant surveillance was kept until all the officers arrived at about 1:50 A.M. Marshal Shelburn then approached the vehicle and found Fry lying in the back seat covered or partly covered by a blanket. Fry was ordered out of the car, placed under arrest, and charged with violating a Texas statute which was then Article 14.03 Vernon's Ann.Code of Criminal Procedure.
In our assessment of the facts and application of established principles of the law of search and seizure, we agree with the following part of the...
To continue reading
Request your trial
-
Eisenhauer v. State, 889-83
...Hicks v. State, 545 S.W.2d 805, 858 (Tex.Cr.App.1977). See also United States v. Acosta, 411 F.2d 627 (5th Cir. 1969); Fry v. Estelle, 527 F.2d 420 (5th Cir. 1976). Almendarez involved a warrantless arrest and a search incident thereto. There a police officer received information from a pre......
- Taylor Publishing Co. v. Jostens Inc.
-
U.S. v. Edwards, 76-1668
...221 (5th Cir. 1976) (alternative holding) (approving search of items within arrestee's reach in car, citing Chimel ); Fry v. Estelle, 527 F.2d 420, 422 (5th Cir. 1976) (approving incident search of car that "did not extend beyond the limits indicated in Chimel . . .").9 Officer Shaw testifi......
-
U.S. v. Osborne, 79-5660
...See U. S. v. Pruett, 551 F.2d 1365, 1369-70 (5 Cir. 1977); Jackson v. Alabama, 534 F.2d 1136 (5 Cir. 1976); Fry v. Estelle, 527 F.2d 420, 422 (5 Cir. 1976). POST-ARREST The defendants next attack the procedure used by the officers to obtain Ms. Elliott's post-arrest identification. First, i......