Brown v. Heyd, Misc. No. 1275.

• Decision Date: 07 December 1967
• Docket Number: Misc. No. 1275.
• Citation: 277 F. Supp. 899
• Parties: Robert L. BROWN, Petitioner, v. Louis A. HEYD, Jr., Sheriff, Parish of Orleans, Louisiana, Defendant.
• Court: U.S. District Court — Eastern District of Louisiana

277 F. Supp. 899

Robert L. BROWN, Petitioner, v. Louis A. HEYD, Jr., Sheriff, Parish of Orleans, Louisiana, Defendant.

Misc. No. 1275.

United States District Court E. D. Louisiana, New Orleans Division.

December 7, 1967.

James B. O'Neill, Kenner, La., for petitioner.

Robert E. Peyton, for defendant.

RUBIN, District Judge:

Robert L. Brown was charged in a Louisiana court with unlawful possession of heroin.¹ He was convicted, and sentenced to serve ten years. The conviction was affirmed by the Louisiana Supreme Court.² Following the pattern that has apparently become standard,³ Brown now seeks habeas corpus.

Most of the facts found by the Louisiana Supreme Court are not seriously disputed. On May 26, 1966, the Narcotics Squad of the New Orleans Police Department received information that a school bus driver was delivering what the school children described as pills. The police arrested the driver, found that he was a "terrific addict" and had scars resulting from narcotics injections "all over his arms." The school children had also reported that the driver made regular stops at his own home on Cherry Street. The police therefore obtained a search warrant and three officers rushed to the driver's home to search it before any evidence that might be there could be disposed of. They were dressed in plain clothes and drove an unmarked car.

As the police car approached the Cherry Street residence, they saw a Chevrolet parked in front of the house. William J. Hadrick was at the driver's seat, and Brown was about to get in the car. The police knew that Hadrick and Brown were narcotics addicts, and Brown recognized the police. Brown therefore jumped in the car, and Hadrick drove it away rapidly. The police gave chase, sounding their siren. They saw Brown put his hand to his mouth and concluded, based on their prior experience, that he might be trying to swallow evidence.

The Chevrolet turned a street corner and, as it did so, one of the police officers fired three shots in the air. When the third shot was fired, Hadrick suddenly stopped the Chevrolet. The police officers rushed to the Chevrolet. They arrested Hadrick who submitted peacefully. Brown resisted arrest, so the officers forcibly removed him from the Chevrolet. While two of the officers were subduing him, the third officer saw a white capsule on the seat of the Chevrolet where Brown had been sitting. The police later searched the automobile without a warrant, and found a brown paper bag containing two glass eyedroppers, one plastic medicine dropper, one bottle cap, and one needle holder, the type of paraphernalia used by addicts in taking narcotics. A motion to suppress this evidence was filed in state court, and the court suppressed all of the evidence found in the automobile except the capsule found on the seat. It was later determined that this capsule contained heroin.

Brown and Hadrick, together with the school bus driver, were taken to the bus driver's house. Brown was advised that: he had a right to speak or remain silent; anything he said might be used against him; and he had a right to counsel. He was not told that he had a right to have an attorney present when he spoke, if he decided to make a statement⁴ nor was he told that, if he didn't have funds, the court would appoint a lawyer to represent him.⁵ He did, however, say, in the course of the attempt by the police officers to warn him, "I know all of that, Mr. Lampard."

Thereafter, both Brown and Hadrick told the police that they used narcotics and each said that he "had did up" (injected narcotics) that day. Testimony by the police concerning these statements was admitted in evidence over objection.

EXHAUSTION OF REMEDIES

The petitioner has exhausted his State remedies by appealing to the State Supreme Court although he did not seek a rehearing from it after his conviction was affirmed. A federal court has "discretion as to the time and mode in which it will exert the powers conferred upon it. That discretion should be exercised in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the states, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the constitution." Ex parte Royall, 1886, 117 U.S. 241, 251, 6 S.Ct. 734, 740, 29 L.Ed. 868.

A defendant who has unsuccessfully appealed a state conviction to the state supreme court is not required to seek relief by collateral attack in state habeas corpus proceedings in order to establish exhaustion of state remedies. Section 2254 does not contemplate repetitious applications to state courts. Brown v. Allen, 1953, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469.

There apparently are no reported decisions dealing with the question whether the doctrine of exhaustion of remedies requires an applicant for habeas corpus to seek a rehearing from a state supreme court that has denied his appeal. But in Re McCoy, in the United States District Court for the Eastern District of North Carolina, dealing with a slightly different factual situation, indicated the current view with respect to what an applicant must do before applying to a federal court for habeas corpus.

"In considering the question of the exhaustion of state remedies, it should be noted that in recent years the federal courts have construed the doctrines as codified in Title 28 U.S.C.A. § 2254 with liberality. No longer is the applicant obligated to seek other remedies available to him within the state once he has presented his contention to the highest state court and has had denied there the relief sought." 233 F.Supp. 409, 411 E.D. N.C., 1964.

An applicant for habeas corpus who has sought direct review of his conviction in the highest state court has exhausted his state remedies even though he has sought neither certiorari to the United States nor collateral review in any state court. Whippler v. Balkcom, 5 Cir., 1965, 342 F.2d 388; United States ex rel. Rogers v. Davis, 5 Cir., 1963, 323 F.2d 653.

An applicant who has once sought review of his case by the highest court of the state should not be required to undergo the expense and delay associated with an application for rehearing of the same issues by the state supreme court as a prerequisite to applying to federal court for habeas corpus review.⁶

WARNINGS ABOUT RIGHT TO COUNSEL

The application for habeas corpus is based on claims that:

(1) Brown was unlawfully arrested.

(2) There was an unlawful search and seizure.

(3) Brown was mistreated during interrogation.

(4) The Court improperly admitted testimony concerning the habits of addicts.

(5) Brown was denied the right to counsel.

It is unnecessary to review all of these contentions; the decisions of the United States Supreme Court in Escobedo⁷ and Miranda⁸ require the Court to grant the relief sought because testimony was admitted concerning statements made to police officers by the defendant in an interrogation conducted without a warning sufficient under those decisions.

The Louisiana Supreme Court said with regard to the defendant's statements:

"We therefore conclude the trial judge was correct in ruling the statements made to the officers objected to under this complaint were made freely and voluntarily after defendants had been amply apprised of their constitutional rights. As admissions against interest, and also for the purpose of showing guilty knowledge, they were admissible."

This Court respects the integrity and responsibility of the courts of the State of Louisiana. Sworn to uphold and defend the Constitution of the United States (as well as of the State of Louisiana), they do so with as much sincerity, intelligence and dedication as any judges in the land, state or federal. But it is my responsibility to determine whether their decision violates the federal constitutional rights asserted by the appellant,⁹ and this requires me to examine the record independently to determine whether these federal constitutional rights have been properly safeguarded.¹⁰

The warnings required by the decisions in Escobedo and Miranda are summed up in Miranda as follows:

"Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right." (Emphasis supplied.) 384 U.S. at 471-472, 86 S. Ct. at 1626.

* * * * * *

"In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent—the person most often subjected to interrogation—the knowledge that he too has a right to have counsel present. As with the warnings of the right to remain silent and of the general right to counsel, only by effective and express explanation to the indigent of this right can there be assurance that he was truly in a position to exercise it." (Emphasis supplied.) 384 U.S. at 473, 86 S.Ct. at 1627.

* * * * * *

"To summarize, we

...