Capitoli v. Wainwright, 28785
Decision Date | 26 May 1970 |
Docket Number | 28818 Summary Calendar.,No. 28785,28785 |
Citation | 426 F.2d 868 |
Parties | Rudolph Robert CAPITOLI, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent-Appellee. Gerald Joseph CARUSIELLO, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent-Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
Rudolph Robert Capitoli, pro se.
Harvey S. Swickle, Miami Beach, Fla., Anna R. Levin, Chicago, Ill., for petitioner-appellant Gerald Carusiello.
Earl Faircloth, Atty. Gen., Charles W. Musgrove, Asst. Atty. Gen., of Florida, West Palm Beach, Fla., for respondent-appellee.
Before THORNBERRY, CLARK and INGRAHAM, Circuit Judges.
These appeals are taken from a single order of the District Court denying the appellants' identical petitions for the writ of habeas corpus. The appellants were tried and convicted as codefendants for the offense of robbery in Broward County, Florida, on April 22, 1965. Each was sentenced to a seventy-five year term of imprisonment. Since the appeals from the denial of the appellants' petitions for the writ of habeas corpus involve the same questions of law and fact, the cases are hereby ordered consolidated.
The only issue presented on these appeals1 is whether the state trial court wrongfully denied the appellants' motion to suppress evidence claimed to be the product of an unlawful arrest, search, and seizure. The court below held that the motion was properly denied. We affirm.2
The District Court denied the appellants' petitions without a hearing, basing his findings of fact on the state court record. Our study of the transcript of the hearing on the motion to suppress convinces us that the District Court's findings are fully supportable in the record. The facts, as drawn from the District Court's unreported order, are these:
Capitoli v. Wainwright, No. 69-643-Civ-WM, with, Carusiello v. Wainwright, No. 69-817-Civ-WM (S.D.Fla., Sept. 11, 1969).
The appellants challenge the seizure of the bundle thrown from the car on the ground that they were placed under "constructive" arrest immediately upon being followed by Officer Brady, and presuming the arrest to be illegal, the parcel thrown from the window was inadmissible. The appellants argue that the circumstances surrounding the pursuit and the seizure of the parcel are similar to those in Fletcher v. Wainwright, 399 F.2d 62 (5th Cir. 1968). In Fletcher, this court held that if evidence is thrown from a window as a direct result of an illegal entry, the evidence is inadmissible, for in such a case it could not be said that there was a voluntary abandonment of the evidence.
The question is, therefore, whether Officer Brady was properly in pursuit, i. e., whether he was in possession of sufficient facts to constitute probable cause to attempt to stop the appellants. We conclude that he did. Fletcher is therefore distinguishable.
We believe this case is controlled by Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968): "Objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence". Id. at 236, 88 S.Ct. at 993 (...
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