Carver v. Ross
| Decision Date | 18 August 1966 |
| Docket Number | Civ. A. No. 1847. |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | Herschel Frazier CARVER, Petitioner, v. Fred B. ROSS, Superintendent, and the State of North Carolina, Respondents. |
Thomas W. Bruton, Atty. Gen. of N. C., for respondent.
DALTON, District Judge (sitting by designation).
This cause comes before the court upon a petition for writ of habeas corpus, filed in forma pauperis, by a state prisoner pursuant to the provisions of Title 28 U.S.C. § 2254. Issues have been joined by the respondent who has filed an answer to the petition and a motion to dismiss.
The grounds on which the petitioner bases his allegation that he is being held in custody in violation of the constitution and laws of the United States are:
The petitioner is serving a sentence at Odom Prison, Jackson, North Carolina, as the result of conviction in July of 1965 in the Superior Court of Buncombe County for the crimes of possession of burglary tools and attempted breaking and entering. At this time he was sentenced to a term of not less than nine nor more than ten years on the possession of burglary tools conviction and a term of not less than twenty nor more than twenty-four months on the attempted breaking and entering conviction, this sentence to commence at the expiration of the former and not to run concurrently. He appealed his case to the Supreme Court of North Carolina, and on November 24, 1965 that court affirmed the ruling of the Superior Court. He then petitioned the Superior Court for a Post-Conviction Hearing, but on December 15, 1965, after a review of the record and with no plenary hearing, the Superior Court denied the petition.
On February 19, 1966 the petitioner requested Judge Falls of the Superior Court of Buncombe County to appoint counsel for him in order that he might obtain review of the ruling before the Supreme Court of North Carolina. The request was denied on the grounds that the sixty day period for appeal had expired. In March of 1966 the petition to this court was filed.
It is the opinion of the court that the petitioner's allegation that there was an unlawful search and seizure makes out at least a prima facie basis for relief. He has not yet been accorded a plenary hearing on his claim; the only evidence in the record as to the facts surrounding his arrest and conviction is the evidence which was presented at the time of the petitioner's trial in the Superior Court of Buncombe County. While the evidence in the record is sufficient for the court to make a ruling on the petitioner's other allegations, it is not detailed enough for the court to pass on the question of the legality of the search and seizure of the evidence which was used to convict the petitioner of possession of burglary tools. For reasons presented herein, the court feels that there is sufficient merit to the allegations of petitioner that this evidence was unlawfully seized to warrant ordering a hearing in which all of the facts relating to the seizure of this evidence may be presented by both sides and a ruling made thereon.
The evidence in the case, while not detailed enough for a decision on the record, discloses the following framework of events:
Around midnight of April 17, 1965, two city police officers discovered the defendant and one Herman Hutchinson attemping to break into Moore's Bakery in Asheville, North Carolina. The officers had been called by residents of the area who had seen the two men go to the back of the bakery and were suspicious of them. When the two were surprised, Hutchinson was in the process of prying the door to the bakery open with a crowbar, while the petitioner was pulling on the door with his hands. Hutchinson started to run, and after refusing to halt at the officers' command he was shot and wounded. The petitioner did not run but remained at the door with his hands in the air. Hutchinson was sent to the hospital, and the petitioner, who was intoxicated, was placed in the police wagon. An Officer Godwin arrived at this time and was told by residents of the area that they had seen the two men get out of a car which was parked sixty or seventy feet from the bakery. Officer Godwin asked the petitioner if the car were his, and the petitioner said that it was not. The petitioner was then taken away to be locked up, and Officer Godwin went over to the car and looked inside. The keys apparently were in the car, and when he looked in the officer saw an overnight traveling bag on the floor in the back of the car. The officer got into the car, which was unlocked, and upon looking into the bag found the tools in question.
The petitioner was questioned further the next morning, apparently after having been properly advised of his rights, at which time he admitted ownership of the car and the tools, and made other incriminating statements concerning the crimes for which he was convicted. He received a preliminary hearing on April 21, 1965 and was indicted by a grand jury at the May term of the Superior Court of Buncombe County. At his trial in July of 1965 the petitioner, represented by court-appointed counsel, entered a plea of not guilty; a jury found him guilty.
The importance of the facts in a case involving a search and seizure of evidence cannot be overemphasized, since in this area it is very difficult to lay down specific rules of law, the controlling factor being a determination as to whether or not under the circumstances the search was reasonable. And it is well-recognized that the principles applicable to the search of an automobile differ from those which are applied to the search of a fixed structure of some type. What is the reasonable search of an automobile may not be reasonable in the case of a house. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L. Ed.2d 777 (1964).
The court has decided that the facts appearing in the record are not sufficient for a decision based solely thereon, and that for this reason a hearing should be held in which the facts may be more fully developed. It cannot be said until after such a hearing just what principles of law will be found to be applicable to this case; however, the court will point out some of the possibilities which are raised by the facts now in the record.
It is recognized that a vehicle may be searched if there is probable cause to believe that the vehicle contains contraband of some sort. It is said further that for this principle to apply, it is necessary that the vehicle be in a mobile state and that it not have come to rest in such a way that it is no longer necessary to apply the rules which are peculiar to automobiles. There is some inconsistency in the cases as to when a vehicle loses its mobility and thereby becomes subject to the rules for searching fixed structures, which rules do not include the right to search without a warrant upon probable cause to believe that contraband is contained therein. However, the Fourth Circuit has held that a parked vehicle may still be subject to the rule which permits a search upon probable cause to believe that there is contraband in the vehicle. See United States v. Haith, 297 F.2d 65 (4th Cir. 1961), cert. den., 369 U.S. 804, 82 S.Ct. 643, 7 L.Ed.2d 550 (1962); United States v. Walker, 307 F.2d 250 (4th Cir. 1962).
There may also be some question as to whether this was even a search and seizure. In Fagundes v. United States, 340 F.2d 673 (1st Cir. 1965), an officer had arrested the defendant for drunk driving, after the defendant had run into a tree and wrecked his car. The officer took the defendant away and then returned to the scene to remove the car. He found that it could not be moved under its own power, so the officer sent for a wrecker. While waiting for the wrecker, the officer began to roll up the windows of the car to secure it from the weather, as it was raining hard at the time. In doing so, he noticed a handbag in the back of the car with bundles of currency visible within it. The defendant was subsequently convicted of bank robbery with the currency being used as part of the evidence in the case. Although the conviction was set aside by the First Circuit on other grounds, that court held that the currency taken from the car was admissible evidence, that in fact this was not even a search since it is well-established that "it is not a search to see what is patent and obvious". The court said further that "police officers are not required to go about their routine duties with their eyes shut." The court noted that the officer had no intention of searching the car when he returned to it and did not rummage through the glove compartment or pry into the trunk.
It is not clear from the record of the case at bar what the motives of the officer were when he went into the petitioner's car. He may have been still acting with the investigation of the attempted storebreaking in mind, or he may have embarked on an entirely new investigation as to who might own the car, about which the people in the neighborhood seemed to be concerned. If the officer was seeking to find out who owned the car, which was sitting on the street late at night with the keys in it, and if in the course of a lawful investigation of the car he came upon the burglary tools, it may be that this should not properly be termed a "search" in legal contemplation of the word. On the point that an officer may legally seize contraband which is open to his view if he is otherwise lawfully on the premises, see also United States v. Williams, 314 F.2d 795 (6th Cir. 1963) and United States v. Horton, 328 F.2d 132 (3d Cir. 1964), cert. den. sub nom. Edgar v. United States, 377 U.S. 970, 84 S.Ct. 1651, 12 L.Ed.2d 739 (1964).
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...'search' of an automobile where a gun was visible to an officer when he looked into the automobile. The court quoted from Carver v. Ross, E.D.N.C., 257 F.Supp. 894, that 'It is not a search to see what is patent and obvious.' See also People v. McDonald, 1968, 13 Mich.App. 226, 163 N.W.2d 7......
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...whether it was also visible to the officer when he looked in the car. 'It is not a search to see what is patent and obvious.' Carver v. Ross (N.C.), 257 F.Supp. 894. See also Thompson v. State, 41 Ala.App. 353, 132 So.2d 386; Sheridan v. State, 43 Ala.App. 239, 187 So.2d In United States v.......