652 F.2d 559 (5th Cir. 1981), 79-3802, Passman v. Blackburn

Docket Nº:79-3802.
Citation:652 F.2d 559
Party Name:Glenn S. PASSMAN, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Respondent-Appellee.
Case Date:August 06, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 559

652 F.2d 559 (5th Cir. 1981)

Glenn S. PASSMAN, Petitioner-Appellant,

v.

Frank BLACKBURN, Warden, Respondent-Appellee.

No. 79-3802.

Unit A

United States Court of Appeals, Fifth Circuit

August 6, 1981

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Michael H. Ellis, New Orleans, La. (Court-appointed), John G. Gillon, Jr., New Orleans, La., for petitioner-appellant.

Abbott J. Reeves, Asst. Dist. Atty., Gretna, La., for respondent-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before CHARLES CLARK and RANDALL, Circuit Judges, and SHARP [*], District Judge.

SHARP, District Judge:

Petitioner, Glenn S. Passman, is a state prisoner confined at the Louisiana State Penitentiary, Angola, Louisiana. Passman was tried and convicted on July 12, 1976, in the Twenty-second Judicial District Court for the Parish of St. Tammany, of armed robbery. He was then sentenced to serve ninety-nine years at hard labor without benefit of parole, probation, or suspension of sentence. On direct appeal his conviction and sentence were affirmed by the Supreme Court of Louisiana in a published opinion, State v. Passman, 345 So.2d 874 (La.1977). Subsequently, petitioner sought habeas corpus relief in both the trial court and Supreme Court of Louisiana. The trial court's denial of petitioner's application was affirmed by the Supreme Court of Louisiana. State ex rel. Passman v. Blackburn, 362 So.2d 1390 (La.1978). Having raised each of the instant assignments of error before that court, petitioner has exhausted his state remedies. 28 U.S.C. § 2254(b); Pedrero v. Wainwright, 590 F.2d 1383 (5th Cir.), cert. den., 444 U.S. 943, 100 S.Ct. 299, 62 L.Ed.2d 310 (1979). The transcript of proceedings in the state courts has been filed with this court and it has been thoroughly reviewed pursuant to Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

In his petition Glenn Passman alleges the following grounds as bases for relief:

1. No probable cause for arrest;

2. Denial of the right to counsel at "show-up" identification;

3. Suggestive and tainted identification;

4. Conviction obtained by use of evidence obtained pursuant to an unlawful arrest;

5. Refusal of the court to excuse a juror for cause;

6. Misconduct by the district attorney;

7. Prosecution error through eliciting credibility testimony from a state witness on direct examination;

8. Violation of sequestration order;

9. Denial of right to effective assistance of counsel;

10. Confiscation of legal material, denial of access to the courts and the right to prepare;

11. Denial of the right to compel attendance of a witness.

The events which form the basis of this conviction took place on May 26, 1974. At approximately 9:30 P.M. on that date two men gained entry to the Covington, Louisiana home of Mr. Pat O'Brien. Once inside one of the men produced a gun and demanded money. A struggle ensued in which the 80 year old Mr. O'Brien was beaten and received a gunshot wound. The intruders then began a search of the house, leaving Mr. O'Brien in the kitchen. In one

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of the rooms they discovered Mrs. O'Brien and Cara, the O'Brien's 16 year old daughter. Cara was forced to accompany one of the intruders into another room where she was sexually molested. The intruders then returned to the kitchen accompanied by Mrs. O'Brien and Cara. In the meantime Mr. O'Brien had been able to reach a .22 caliber rifle and he fired upon the intruders as they approached. The two men fled taking with them two handguns belonging to Mr. O'Brien at approximately 9:50 P.M. The O'Brien home was well lit throughout this episode. Neither of the men had any covering over their face. Subsequently, two men were identified as the intruders, Walter Burnette and the petitioner. Separate trials were conducted, one of which resulted in the conviction challenged here.

I.

In ground one petitioner alleges that his arrest was not supported by probable cause and therefore was unlawful. Specifically, petitioner maintains that only a vague description of the perpetrators was given to the police on the night of the crime. Mrs. O'Brien and Cara had given a description of the two men to the sheriff's department, part of which was radioed to all of the police departments in the vicinity. The police radio bulletin from Covington was that a "tall, dark-complexioned, white male" was wanted in connection with an armed robbery there. (R. 269). Also, the St. Tammany Parish Sheriff's Office requested the Hammond, Louisiana police to stake out Glenn Passman's home. Officers Bosco and Raacke had only this information when they arrived at petitioner's home at 10:15 P.M. on the night of the crime. Approximately twenty-five minutes after the intruders left the O'Brien home Passman was handcuffed by Officers Bosco and Raacke at his home in Hammond and taken to the police station as part of the investigation of an armed robbery which had occurred twenty-five miles away in Covington, Louisiana. At this point in time, the above description was the only bit of information which the officers had to rely on.

Probable cause to arrest exists "where 'the facts and circumstances within (the arresting officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that 'an offense has been or is being committed.' " Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1964), quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925). Although more than mere "reasonable suspicion" is required, the arresting officer need not have in hand evidence sufficient to convict." United States v. Rieves, 584 F.2d 740, 745 (5th Cir. 1978). In determining probable cause "we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act." Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949). The detention of a person need not be accompanied by formal words of arrest or station house booking in order to constitute an "arrest" requiring probable cause under the Fourth Amendment. Davis v. Mississippi, 394 U.S. 721, 726-27, 89 S.Ct. 1394, 1397, 22 L.Ed.2d 676 (1969); United States v. Brunson, 549 F.2d 348 (5th Cir. 1977). Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) teaches that under the Fourth Amendment whenever a police officer accosts an individual and restrains his freedom to walk away, he has seized that person. Id., at 16, 88 S.Ct. at 1877; Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959); United States v. Preston, 608 F.2d 626 (5th Cir. 1979), cert. den., 446 U.S. 940, 100 S.Ct. 2162, 64 L.Ed.2d 794 (1980). None of the parties here seriously contend that the seizure of the petitioner was less than an arrest. Having once been handcuffed and placed in a police car his freedom to choose whether or not to continue his encounter with the police had been extinguished. The information available to the arresting officers was not sufficient to warrant a reasonable person's belief that petitioner committed the offense or might have information

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about its commission. The District Court's finding of no probable cause to arrest is fully supported.

Petitioner then contends in ground four that this arrest without probable cause invalidates the evidence acquired as an immediate and proximate result of that arrest as "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963). Specifically, petitioner challenges as "fruits" the photographs taken of him on the night of the crime and the show up identification made by Cara O'Brien, also on the night of the crime. The exclusionary rule bars evidentiary fruit obtained "as a direct result" of an illegal search or seizure. However, its bar only extends from the "tree" to the "fruit" if the fruit is sufficiently connected to the illegal tree:

We need not hold that all evidence is "fruit of the poisonous tree" simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Wong Sun, 371 U.S. at 487-88, 83 S.Ct. at 417.

Two photographs were taken of the petitioner after his initial arrest and prior to the time Cara O'Brien identified him at the Hammond Police Station on the night of the crime. He alleges that these photographs were fruits of his illegal arrest and should have been suppressed. The record reveals that the two photographs were not, in fact, introduced into evidence. The photographs were used during the investigation in a photographic spread and that use will be subsequently addressed. However, since the photographs were not introduced into evidence there is no basis for a "fruits" argument under Wong Sun.

Petitioner also contends that the crime-night identification by Cara O'Brien was a fruit of the illegal arrest. Cara O'Brien testified as to that identification on direct examination (R. 329-331). One form of insufficient connection between fruit and tree occurs if the derivative evidence has a source independent of the illegal seizure. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920); United States v. Houltin, 566 F.2d 1027, 1031 (5th Cir.), cert. den., 439 U.S. 826, 99 S.Ct. 97, 58 L.Ed.2d 118 (1978). Cara O'Brien's...

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