Clarke v. Neil

• Decision Date: 12 June 1970
• Docket Number: No. 19579.,19579.
• Citation: 427 F.2d 1322
• Parties: John Randolph CLARKE, Petitioner-Appellant, v. W. S. NEIL, Warden, Tennessee State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

427 F.2d 1322 (1970)

John Randolph CLARKE, Petitioner-Appellant, v. W. S. NEIL, Warden, Tennessee State Penitentiary, Respondent-Appellee.

No. 19579.

United States Court of Appeals, Sixth Circuit.

June 12, 1970.

Charles Galbreath, Nashville, Tenn., James H. Bateman, Nashville, Tenn., on the brief, for appellant.

James C. Dale, III, Special Counsel, Nashville, Tenn., David M. Pack, Atty. Gen., of counsel, for appellee.

Before EDWARDS, PECK and McCREE, Circuit Judges.

PECK, Circuit Judge.

This is the second appeal in this habeas corpus case. In the first appeal this Court reversed and remanded in part the District Court's denial without an evidentiary hearing of appellant's petition for the writ (Clarke v. Henderson, 403 F.2d 687 (6th Cir. 1968)). Most of the facts reported in the prior opinion in this case need not be repeated here, but in the interest of clarity some repetition together with a statement of facts as found on remand will be necessary.

Appellant was convicted of the first degree murder of an 18 year old girl in Tennessee state court. His conviction was affirmed on appeal by the Supreme Court of Tennessee (Clarke v. State, 218 Tenn. 259, 402 S.W.2d 863 (1966), cert. denied, 385 U.S. 942, 87 S.Ct. 303, 17 L. Ed.2d 222 (1966)).

The murder for which appellant was convicted took place on a Saturday night. Appellant was first interrogated by the police as a possible suspect on the Monday evening following the murder. During the course of the interview the police learned from the appellant that he had taken a dark suit to the cleaners that same day. The police had previously learned through investigation that a struggle had preceded the killing and that the killer had been wearing a dark suit, and while appellant was being interviewed, the police learned from his wife that he had been wearing the dark suit on the day of the murder.

Based on this information the police contacted the manager of the cleaning shop to which appellant had taken his suit and informed the manager that they wished to examine it. The manager expressed a willingness to cooperate with the police and sent the service manager to meet the police and open the shop for them, it then being approximately 10:00 p. m. With the service manager's assistance the police located appellant's suit and took it, giving the service manager a receipt therefor.

Appellant challenges the legality of this search and seizure because, although there was a magistrate available from whom a search warrant could have been obtained, no warrant was obtained by the police prior to the search and seizure. While the suit itself was not introduced into evidence at the trial, an FBI expert testified that laboratory examination had revealed the presence on the suit of certain fibers matching those in the murder victim's clothing. Therefore the admissibility of this testimony, as of the suit itself, depends on the legality of the underlying search and seizure. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391-392, 40 S.Ct. 182, 64 L.Ed. 319 (1920); Maxwell v. Stephens, 348 F.2d 325, 328 (8th Cir.), cert. denied, 382 U.S. 944, 86 S.Ct. 387, 15 L.Ed.2d 353 (1965); McGinnis v. United States, 227 F.2d 598, 603 (1st Cir. 1955).

The remand in the first appeal of this case was found to be necessary to permit the District Court to more fully develop the record concerning the search and seizure and to give the District Court an opportunity to evaluate the search and seizure in light of the standards set forth in Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), which abolished the long-standing absolute prohibition against the seizure of items having evidential value only, often called the "mere evidence" rule. More significant to the issues presented here, however, is the test set down by the Supreme Court in Hayden to determine whether the seizure of "mere evidence" is justified. Hayden holds that "mere evidence" can be seized pursuant to a lawful search if the police have probable "cause to believe that the evidence sought will aid in a particular apprehension or conviction." 387 U.S. at 307, 87 S.Ct. at 1650.

Thus a court passing on the validity of a search and seizure involving "mere evidence" is faced with two separate but related questions. The first is whether the search itself was lawful. If the answer to that question is in the affirmative, the second question is whether the authorities had the requisite probable cause to justify the seizure.

In this case the answer to the first question is clearly in the affirmative. Appellant does not contend that the manager of the cleaning shop had no authority to consent to the police search of the premises or that his consent was not voluntarily given. Therefore the search itself was unquestionably lawful.

The second question was specifically posed to the District Court upon the remand of this case: "Was there `cause to believe that the evidence sought will aid in a particular apprehension or conviction'? Warden, Md. Penitentiary v. Hayden, supra, 387 U.S. 294 at 307, 87 S.Ct. 1642." 403 F.2d at 689.¹ The District Court concluded that the facts known to the police, namely, that a struggle had preceded the killing, that the perpetrator was wearing a dark suit, and that appellant, who was a suspect, had worn a dark suit the day of the murder and had, the same day as his questioning by the police, taken the dark suit to the cleaners, gave the police probable cause to believe the suit would aid in a particular apprehension or conviction. Having thus concluded that the search of the premises was made lawful by the manager's consent and that the seizure of the suit was supported by the requisite probable cause, the District Court held the seizure lawful.

We hold that the District Court's application of the Hayden standards was clearly correct, and our conclusion as to the correctness of that result is strengthened by the recent United States Supreme Court decision in Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969). In Frazier the defendant and his cousin were joint users of a duffel bag. In the course of an arrest of the cousin in the defendant's absence, the police obtained the cousin's consent to search the duffel bag. While searching the bag the police came upon some of defendant's clothing, seized it and introduced it as evidence against him in a subsequent trial. The Supreme Court held that the cousin's consent to the search of the bag made the search lawful as to the defendant, and that since the evidence was found in the course of an otherwise lawful search, the police were permitted to seize it so long as the seizure was supported by the probable cause standards of Hayden. 394 U.S. at 740, 89 S.Ct. 1420. Here, as in Frazier, the suit was found in a search made lawful by proper consent thereto, and the seizure of the suit was supported by the requisite probable cause to believe that it would aid in a particular apprehension or conviction.

Appellant alternatively argues that the search here must be viewed as a search of the suit itself rather than as a search of the cleaner's premises. Appellant's contention is that while the manager of the cleaning shop may have had authority to consent to a search of the premises where the suit was found, he had no authority to consent to a search of the suit itself, and that absent exigent circumstances dispensing with the need to obtain a warrant, the warrantless search of the suit itself was unlawful. Appellant relies heavily on Corngold v. United States, 367 F.2d 1 (9th Cir. 1966), where a warrantless search of sealed packages, although with the consent of the bailee of the packages, was held to be unlawful.

This argument is rejected. We do not consider the laboratory examination of a suit after its seizure by the police to constitute a search within the meaning of the Fourth Amendment, and we therefore find the Corngold case factually inapposite. Even assuming the search here could be viewed as a search of the suit itself, we must conclude that such a search would not be violative of appellant's Fourth Amendment rights. The Supreme Court has instructed, "the principal object of the Fourth Amendment is the protection of privacy rather than property. * * *" Warden, Md. Penitentiary v. Hayden, supra, 387 U.S. at 304, 87 S.Ct at 1648, and further, "What a person knowingly exposes to the public * * * is not a subject of Fourth Amendment protection. Citing cases. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. Citing cases." Katz v. United States, 389 U.S. 347, 351-352, 88 S. Ct. 507, 511, 19 L.Ed.2d 576 (1967). Thus our question becomes whether the appellant can be said to have sought to "preserve as private" the matter contained on the suit even after the suit was delivered to the cleaners. It is interesting to note in this regard that the impelling rationale of Corngold v. United States, supra, was that the defendant did not lose his right of privacy with respect to the contents of sealed containers merely by placing those containers in the hands of a bailee for purposes of shipment. That determination, which was consistent with the principles outlined above, was clearly correct since the mere act of placing the items in sealed containers shows an intent to retain a right of privacy with respect to them. But the same cannot be said in the present case. Here appellant delivered the suit to the cleaners open to public view. He knew that the suit could be handled and examined by many persons in the course of the cleaning process, but he in no way tried to conceal the suit or anything contained thereon, nor did he try to restrict the number of persons who handled it. We are therefore unable to find any significant invasion of anything which appellant sought to "preserve as private."

The remaining issues can be quickly disposed of....