Cabbler v. Superintendent, Virginia State Penitentiary, Civ. A. No. 73-538-R.

• Decision Date: 23 April 1974
• Docket Number: Civ. A. No. 73-538-R.
• Citation: 374 F. Supp. 690
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Herbert W. CABBLER v. SUPERINTENDENT, VIRGINIA STATE PENITENTIARY.

374 F. Supp. 690

Herbert W. CABBLER v. SUPERINTENDENT, VIRGINIA STATE PENITENTIARY.

Civ. A. No. 73-538-R.

United States District Court, E. D. Virginia, Richmond Division.

April 23, 1974.

JeRoyd W. Greene, Jr., Richmond, Va., for plaintiff.

Gilbert Haith, Asst. Atty. Gen. of Va., Richmond, Va., for defendant.

MEMORANDUM

MERHIGE, District Judge.

Petitioner, a Virginia prisoner, seeks habeas corpus relief from detention pursuant to his conviction of grand larceny in the Hustings Court for the City of Roanoke on February 21, 1970. As a result of that conviction petitioner was sentenced to serve a term of eleven years in the penitentiary. Jurisdiction is attained pursuant to 28 U.S.C. § 2254. State court remedies have been exhausted. The case is presently before the Court on respondent's motion to dismiss and for summary judgment. Memoranda have been received from both sides and the merits of the claims were to some extent addressed in the course of oral argument on an unsuccessful motion by petitioner for bond pending the outcome of his petition. Upon the material before it, the Court deems the matter ripe for disposition.

The following facts emerge from the petitioner's trial court transcript:

In the early morning of September 2, 1969 at approximately 1:20 a. m., Cabbler parked his Cadillac automobile on a driveway in front of the Community Hospital of Roanoke Valley and proceeded into the emergency room of the hospital (T. 38). There was some conflict in the evidence as to whether the Cadillac partially blocked the entrance to the emergency room driveway.

Cabbler testified that the car was parked in a fifteen minute zone (T. 149). The arresting officer stated the hospital regulations marked the place where the car was parked as a no parking zone (T. 65), and Cabbler's car partially blocked the emergency room driveway even though an ambulance could drive by to the emergency room (T. 82).

Cabbler was arrested inside of the hospital by a Roanoke City police sergeant, R. C. Reynolds, upon information he obtained on the telephone that a warrant was being issued against Cabbler for shooting into an occupied dwelling (T. 40 and 41). At the time of the arrest in the emergency room, Cabbler was searched and the keys to his automobile parked outside of the hospital were taken from him by Sergeant Reynolds (T. 55; T. 151; T. 153; T. 162; T. 213; and T. 254). Cabbler was taken from the hospital and placed in a police car (T. 41 and 42). It was beginning to rain and Cabbler asked one of the police officers to roll up the windows of his automobile (T. 42); but before the windows were rolled up, Cabbler was placed in the police car. When rolling up the windows and even beforehand, the police officers observed a pistol on the back seat of the car. This pistol was taken by the officers at the time but that search is not here involved. Cabbler was then taken by Sergeant Reynolds to police headquarters in the police car (T. 48).

Cabbler testified that he had thought he would be in the hospital all night because of a gunshot wound (T. 155; first answer) and that he had called his restaurant and asked the countergirl to send one of his employees to pick up his car (T. 150). He further testified that he attempted to tell the officer that someone would pick up his car (T. 156; T. 163, first answer). In any event, Cabbler did not give the police officers permission to remove the car (T. 206; second answer) or to look in the trunk of the car and keep the property therein for safe keeping (T. 206, third answer). Further, it is undisputed that the police officers did not suspect stolen goods were in the trunk of the automobile (T. 206; fifth answer). Nonetheless, after taking petitioner to the police station, Sergeant Reynolds returned to the hospital and drove Cabbler's car to the police station as well.

The evidence is that Sergeant Reynolds' retrieval of Cabbler's car was for the purpose of keeping the car safe until Cabbler was released from jail (T. 47 and 48; T. 67 and 68; T. 202; T. 206). The established police department policy was to remove all valuables from an automobile taken into custody and return them to the owner upon his release on bail (T. 210, fourth answer). The evidence further discloses that the arresting police officer would not have left the car locked and unattended even if he had known Cabbler had someone coming to the hospital to pick up the car (T. 77). Sergeant Reynolds testified that if he had arrested Cabbler and not taken Cabbler's car into custody, he would have been responsible for all the property in the car at that time (T. 73, first answer).

When Sergeant Reynolds drove the Cadillac to police headquarters, he planned to take any property from the car and put it in the No. 2 property room on the first floor of the Municipal Building (T. 49). When he opened the trunk of the car with the key found on Cabbler's person at the time of Cabbler's arrest, Sergeant Reynolds observed that the goods in the trunk were so numerous that the No. 2 property room would not hold them. He then drove the automobile to the Municipal Building Annex and moved the goods from the trunk of the car to a property room in the basement of that building (T. 50). Because this property room in the basement was locked and the key would not be available until the next morning, Sergeant Reynolds and Police Sergeant Allen, with the possible assistance of other police officers, placed the property taken from Cabbler's car on a pool table in the basement of the building. Then they began to inventory the goods in preparation of putting them in the property room after it became accessible the next morning (T. 50 and 51). The purpose of taking the property from the locked trunk of the car was to keep it safely until Cabbler was released on bail (T. 50, last answer). Cabbler was released on bail and picked up his car within an hour or two after being arrested (T. 51, last answer; T. 257, second answer) and long before the property taken from the trunk of his car for safe keeping was removed from the pool table to a safe property room.

The evidence was that it has been the long-standing custom of the Roanoke City Police Department to take into its possession the automobile of a person arrested and to remove from the automobile and inventory the valuable goods found therein. Apparently it is not necessary that the person arrested be in his automobile at the time of his arrest; it is only necessary that he be away from home. If a man is arrested for illegal parking, his car is not taken or his property inventoried (T. 58, lines fifteen and sixteen). If he is arrested at his home, his car is not taken (T. 58). It was conceded that there was no written process to seize the car, no search warrant obtained at any time (T. 199) and no probable cause to believe stolen property was in the locked trunk of the car (T. 69) and no process to keep the property after the car was returned to Cabbler (T. 7). It is conceded by both sides that the officers in this case did not intend to search the trunk for evidence or stolen property, but to take any property therein for "safekeeping."

It was adequately proved that some of the property found in the locked trunk of Cabbler's car on September 2, 1969 was stolen property. Cabbler was convicted on five larceny charges as one who received stolen goods knowing them to have been stolen. He argues that the evidence seized in the trunk should have been suppressed.

Three legal questions are presented by the facts: (1) was seizure of the car justified; (2) did a Fourth Amendment search follow; and (3) if so, was that search reasonable.

Initially, the Court must decide whether the car itself was legally removed to the police station. The Court has no difficulty in concluding that when a legitimate arrest of a suspect is made away from his home, seizure not only of his person, but of those of his effects which are with him is justified. Given the exigencies of the typical street arrest, officers are not required to take time out from their immediate purpose to allow their suspect to put his affairs in order. Since it would be anomalous to find that the Fourth Amendment, designed to insure the sanctity of private possessions, compelled the police to leave the personal effects of a prisoner, be they suitcases, cars or other items, scattered in the street, the assumption of temporary possession by officers cannot be found unreasonable under its dictates.¹ See Cady v. Dombrowski, 413 U.S. 433, 446-447, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973).

The second question is whether the "inventory" conducted under the facts of the instant case is a Fourth Amendment search. The Supreme Court has explicitly refrained thus far from ruling on this issue. See, e. g., Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L. Ed.2d 1067 (1968); Cady v. Dombrowski, supra, 413 U.S. 433, 442, footnote, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). There have been state decisions finding inventory procedures to be other than "searches" on the theories that there is no intent to "seize" anything or that there is in these situations no "reason" to search or expectation that criminal evidence will be discovered. See People v. Sullivan, 29 N.Y.2d 69, 323 N.Y.S.2d 945, 272 N.E.2d 464. As pointed out in United States v. Lawson, 487 F.2d 468, 472 (8th Cir. 1973), the above decisions are:

. . . based on a highly technical construction of the meaning of "search," unwarranted in our view of the Fourth Amendment. To consider an inventory procedure not to be a "search" does violence to the concept of the Fourth Amendment as a protection of the privacy of the citizenry against unwarranted invasion by government officials.

It is not the intent to seize incriminating evidence which makes governmental intrusions into private effects obnoxious in a free society, but the simple fact of intrusion itself under power of the state.² Thus, in Camara v....