Cook v. Sigler

• Decision Date: 22 April 1969
• Docket Number: Civ. 1391L.
• Citation: 299 F. Supp. 1338
• Parties: Roy E. COOK, Petitioner, v. Maurice H. SIGLER, Respondent.
• Court: U.S. District Court — District of Nebraska

299 F. Supp. 1338

Roy E. COOK, Petitioner, v. Maurice H. SIGLER, Respondent.

Civ. 1391L.

United States District Court D. Nebraska.

April 22, 1969.

Robert L. Anderson, Lincoln, Neb., for petitioner.

C. C. Sheldon, Asst. Atty. Gen. of Nebraska, Lincoln, Neb., for respondent.

MEMORANDUM AND ORDER

VAN PELT, District Judge.

Petitioner's application for a writ of habeas corpus now stands submitted before this court. The petitioner has exhausted his state court remedies. State v. Cook, 182 Neb. 684, 157 N.W.2d 151 (1968). Counsel was appointed for the petitioner, a hearing was had, oral argument was waived, and the case now stands ready for decision.

The petitioner, along with one George Watson and one Octaviano Perez, was arrested on May 29, 1966, in Omaha, Nebraska. The petitioner and Perez were tried jointly and both were convicted of possession of burglary tools and burglary. The petitioner is presently incarcerated in the Nebraska Penal and and Correctional Complex serving concurrent terms of three and seven years. The facts concerning his arrest and conviction, so far as they are relevant, are as follows. In the early morning hours of May 29, 1966, on the eve of Memorial Day, police officers John Sobeski and Lee Pietramele were driving in an easterly direction in the area of 24th and Harney Streets, in Omaha. These two officers noticed two men walking along the east side of the Omaha Auto Glass building. It was daylight at this time and the car lights were not turned on. They were about thirty feet distant. The police officers observed the two men walk south out of the front end of the Omaha Auto Glass building, then walk west to the northwest corner of the building, and then turn into a driveway walking north again. As the two men turned the corner, both bent down as if pulling something from their clothing. Officer Sobeski saw something in one man's hand, but he could not see the second man. Sobeski then parked the cruiser car, and at this time the two men being observed were walking quite rapidly to the north. The two men were stopped and searched. No weapons were found, but a flashlight was found on Perez. The other man was Watson. Officer Sobeski then returned to the place where he had seen the two men seemingly pulling something out of their clothes and bending over. Here, in a patch of weeds close to the building, Sobeski found two crowbars and a screw driver. The tools were lying unrusted in the pushed-over grass. Watson and Perez were arrested.

Sobeski then began a search of nearby buildings, but he found no evidence of burglary. He did, however, observe a man sitting in a 1960 Rambler station wagon with Missouri license plates. The man was reading a newspaper at the time he was observed. The officer approached the car and asked the occupant for identification. The man was the petitioner herein, Roy Cook. As Officer Sobeski was asking for identification, he observed through the window two tools sticking out from the passenger side of the front seat. (T. Vol. 1, p. 117) Officer Sobeski requested that Cook come with him, and the petitioner willingly complied with the request. As they approached Perez, who was standing outside the police cruiser, Perez allegedly said to Cook, "So they got you, too." or words to that effect (T. Vol. 1, p. 129). At the time that Perez uttered these words the petitioner and Officer Sobeski were approximately ten to fifteen feet away from Perez. The officer then formally placed Cook under arrest (T. Vol. 1, p. 129). The officers then called for another cruiser and the Detective Bureau to assist them in transporting the prisoners and impounding the vehicle. Officer Sobeski did not help in transporting Cook. He was placed in another cruiser and taken to the police station. Officer Sobeski drove the cruiser to the place where the Rambler station wagon was parked and searched it without Cook's consent. He found a 30-inch pry bar under a pillow on the back seat and a pry bar and a screw driver under the passenger side of the front seat; these latter two items were the tools that Sobeski had seen as he looked through Cook's window while he was identifying Cook. Further search of the spare tire well and glove compartment revealed a pry bar, a tire iron, two screw drivers, three pairs of pliers, two punches, and a brake-adjusting spoon.

At the police station Perez was interrogated and he gave a Missouri address. He stated that he had come to Omaha with Cook and Watson; that he had come to Omaha looking for places to "hit"; that he considered Omaha an easy place to hit; that he did not commit burglaries himself but that he "set up the jobs for other fellows"; and that he had come to Omaha "during the night". (T. Vol. 2, pp. 311-12) He had in his possession various gasoline slips dated May 28, 1966, showing charges at stations between Kansas City and Omaha. He also had in his possession a key to room 3 of the Eddington Hotel in Omaha, and he admitted registering at the hotel on Saturday, May 28, 1966.

Cook was also interrogated and gave a Kansas address. He stated that he knew Watson, but that he had not met Perez prior to May 27, 1966; that the three had traveled from Overland Park, Kansas, on May 27 and 28 to look for work in Omaha. He described his activities of the previous day and denied having been with Perez and Watson during most of the evening preceding his arrest.

At approximately 9:15 A.M. on May 29th, the Omaha Police Department was notified that a drug store had been burglarized. A tire iron found in the petitioner's car was said to have fit the indentation made on the door jamb of the drug store. On May 31, after prior searches of room 3 of the Eddington Hotel, the Omaha Police found a box under a bureau which contained drugs, money bags, which, in part at least, were identified as belonging to the Kubat Drug Store (T. Vol. 1, p. 40). Fingerprints were also taken, but none could be identified as those of Watson, Perez, or Cook.

Petitioner and Perez were tried jointly and both were found guilty of possession of burglary tools and burglary. Counsel for the petitioner objected to the introduction of Perez's admissions and statements that he made at the time of the arrest and at the police station on the ground that they were hearsay as to Cook. The trial court sustained the motion for the time being, but at the end of the trial, instructed the jury that "if you find from the evidence beyond a reasonable doubt that the two defendants were associated in a crime or crimes, if any, in furtherance of a common design, plan, or conspiracy, the statements and admissions of any defendant would be admissible as to both defendants, and the exhibits introduced during the trial with respect to one such defendant would be admissible as to both defendants." (T., Supreme Court of Nebr. Instruction No.21, Ex. 5 herein.)

The facts in this case are not in dispute. The parties have entered into a "Stipulation of Uncontroverted Facts" and the Stipulation was received in evidence at the hearing (Ex. No. 6). The issues, however, involve some of the most highly sensitive and complex areas of our presently evolving criminal and constitutional law. The questions to be determined are as follows:

1) Whether the arrest of the petitioner was without probable cause;

2) If the arrest was legal, then whether the subsequent search of petitioner's car and seizure of the various tools therein was incident to the lawful arrest;

3) Whether the admission against the petitioner of the statements and confession of his co-defendant Perez violated his constitutional rights.

It is the position of the petitioner that if the arrest and/or subsequent search and seizure is held to be invalid then the petitioner is entitled to the writ, for without the tools in the petitioner's car there is no evidence that he was in possession of burglary tools, and without the pry bar that tied the petitioner to the Kubat Drug Store the conviction for burglary can not stand. The petitioner also contends that if the trial court improperly instructed the jury to consider the statements of Perez, either the statement he made when he first saw the petitioner at the place of arrest, or the statement that he made at the police station to the detective, the writ must issue, for the statements of Perez were the only evidence of conspiracy, and without the evidence of conspiracy, there is no evidence to show that the petitioner intended to use the tools in his car for burglarious purposes, nor was there any evidence to directly tie the petitioner to the items found in the room Perez had taken at the Eddington Hotel. The respondent does not disagree with this position except insofar as the statement taken at the police station is concerned. The respondent takes the position that if the statement Perez gave at the station was erroneously admitted against the petitioner, without other errors, such error would be harmless (See Brief of Respondent, pp. 10-12).

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The Arrest of Petitioner.

The petitioner takes the position that the arrest occurred not after Perez had said, "So they got you, too," as was held by the Nebraska Supreme Court, State v. Cook, supra, 182 Neb., at pages 686-687, 157 N.W.2d 151, but rather that it took place when the officer requested that Cook come with him and the petitioner complied with the request. The petitioner concedes that the police had a right to stop and question him (See page 17, Brief of Petitioner). Petitioner argues that such a right is limited in scope and that at the time that Sobeski took the petitioner to the cruiser car the arrest took place. If the petitioner is correct in his assertion, then the cause for the arrest would be that the petitioner was sitting in his car, reading a paper during the early morning, but in daylight hours, in a hotel parking lot which was situated three quarters of a block from where two men had just been arrested for possession of burglary tools,...