DiMarco v. Greene

• Decision Date: 04 December 1967
• Docket Number: 17653.,No. 17411,17411
• Citation: 385 F.2d 556
• Parties: Salvatore DiMARCO, Petitioner-Appellee, v. LaMoyne GREENE, Superintendent, Marion Correctional Institution, et al., Respondent-Appellant. Salvatore DiMARCO, Petitioner-Appellant, v. George DENTON, Chief Adult Parole Authority, and E. L. Maxwell, Warden Ohio Penitentiary, Respondents-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

385 F.2d 556 (1967)

Salvatore DiMARCO, Petitioner-Appellee, v. LaMoyne GREENE, Superintendent, Marion Correctional Institution, et al., Respondent-Appellant.

Salvatore DiMARCO, Petitioner-Appellant, v. George DENTON, Chief Adult Parole Authority, and E. L. Maxwell, Warden Ohio Penitentiary, Respondents-Appellees.

Nos. 17411, 17653.

United States Court of Appeals Sixth Circuit.

December 4, 1967.

COPYRIGHT MATERIAL OMITTED

James R. Willis, Cleveland, Ohio, for DiMarco.

James A. McLaughlin, Leo J. Conway, Asst. Attys. Gen., for Green, Denton and Maxwell, William B. Saxbe, Atty. Gen., on brief.

Before WEICK, Chief Judge, PECK, Circuit Judge, and CECIL, Senior Circuit Judge.

WEICK, Chief Judge.

DiMarco was convicted in the Common Pleas Court of Cuyahoga County, Ohio, on January 3, 1955, of burglary, safe tampering, armed robbery, and carrying concealed weapons. He was sentenced to an indeterminate term of ten to twenty-five years' imprisonment. He was later released on parole, returned as a parole violator, and confined until January 11, 1962, when he was again released on parole. While on parole the second time he was arrested without a warrant, for parole violation, by Cleveland police officers who were members of the Burglary Squad. A search of the automobile in which he had been riding disclosed burglary tools. He was then indicted, tried and convicted on October 2, 1963, in the Common Pleas Court of Cuyahoga County, for possession of burglary tools. He was sentenced to five years' imprisonment in the Ohio penitentiary. The Ohio Pardon & Parole Commission, finding that he was confined in the Ohio penitentiary, determined that he was a parole violator. He appealed from his conviction, which was affirmed by the Court of Appeals and the Supreme Court of Ohio dismissed his appeal.

After serving three years of the sentence for this conviction, he instituted habeas corpus proceedings in the United States District Court for the Northern District of Ohio, Western Division, attacking the validity of his conviction for possession of burglary tools and the action of the Ohio Pardon & Parole Commission determining that he was a parole violator, on the ground that evidence admitted against him had been obtained by an unconstitutional search and seizure.

The District Judge in a written opinion set aside his conviction and also the determination of the Ohio Pardon and Parole Commission that he was a parole violator, and ordered his release. 254 F.Supp. 776 (1966). The state has appealed from this order (No. 17,411).

The Ohio Pardon and Parole Commission then determined that DiMarco was a parole violator on grounds other than the conviction for possession of burglary tools, and ordered that he serve the remainder of his 1955 sentence. DiMarco then filed a habeas corpus petition in the United States District Court for the Southern District of Ohio, to review the action of the Ohio Pardon and Parole Commission in declaring him a parole violator. The District Court denied the petition and DiMarco appealed to this Court (No. 17,653).

We reverse the order of the District Court for the Northern District of Ohio granting a writ of habeas corpus, setting aside DiMarco's 1963 conviction and invalidating the action of the Ohio Pardon and Parole Commission in determining that he was a parole violator and ordering his release.

We affirm the order of the District Court for the Southern District of Ohio denying DiMarco's petition for a writ of habeas corpus.

The 1963 Conviction

The facts and circumstances in relation to DiMarco's conviction for possession of burglary tools, were as follows: Three Cleveland police officers who knew that DiMarco was on parole, saw that he was in the company of Frank DiSanto, in an automobile driven by DiSanto, which stopped at a tavern in the Collinwood district in Cleveland, between 1:30 and 2:00 o'clock A.M. on February 22, 1963. DiSanto was known to the police as an exconvict who was then unemployed. He had been convicted of burglary in 1954, paroled and returned as a parole violator and had served his sentence. DiSanto got out of the automobile and went into the tavern, leaving the parolee, DiMarco, in the car with the motor running. The police walked up to the automobile in which DiMarco was seated, and told him he was under arrest for parole violation. One of the officers opened the door of the car, flashed a light on the inside of the car, and saw burglary tools which consisted of two crowbars, a large screwdriver and a pair of visegrip pliers. The police then opened the trunk of the car and found an electric drill. When DiSanto saw the police he ran out the rear door of the tavern and disappeared. The automobile, which had been loaned to DiSanto by a woman, was placed in a garage by the police, and on the following day the garageman, upon entering the car to move it, discovered a pistol partially exposed under the right front seat. The garageman called the police and they removed the pistol from the car.

DiMarco's motion to suppress the evidence found in the car was denied by the Court in the criminal case and the evidence found in the car was admitted against him over his objection.

The District Court determined the issues in the habeas corpus case solely from a transcript of the evidence adduced in the criminal trial. We will consider the issues in the order treated by the District Court.

The Search as Incident to the Arrest

The District Judge stated in his opinion:

"It is very clear from the decisions of the Supreme Court that the right to make a search without a warrant, contemporaneously with an arrest, is limited to a search for weapons, or for the fruits of, or implements used to commit, the crime for which the arrest is made. Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 70 L.Ed. 145 (1925).

"Bearing in mind that the undisputed evidence here was that the petitioner\'s arrest was solely for violation of parole, in that he was out after midnight, with a person with a criminal record, it follows that the only things that could lawfully be seized would be `things connected with the crime as its fruits or as the means by which it was committed, as well as weapons, and other things to effect an escape from custody * * *\' Ibid. What are the fruits of the crime of violation of parole? By what means was that crime, in the present instance, committed? Certainly not crowbars and electric drills. The weapon was not found until long after petitioner was incarcerated and the automobile was secured from removal or tampering. No conceivable justification for its admission can be found. Preston v. United States, 376 U.S. 364, 368, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). It is impossible to imagine that admission of the weapon into evidence was not extremely prejudicial to the petitioner." 254 F.Supp. 776, 779.

In our opinion the right to search as incident to a lawful arrest is not so narrowly restricted. The correct rule was stated by Mr. Justice Black, who delivered the unanimous opinion of the Court in Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964), as follows:

"Unquestionably, when a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime. Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed. 145 (1925). This right to search and seize without a search warrant extends to things under the accused\'s immediate control, Carroll v. United States, supra, 267 U.S. 132, at 158, 45 S.Ct. 280, 69 L.Ed. 543, and, to an extent depending on the circumstances of the case, to the place where he is arrested, Agnello v. United States, supra, 269 U.S., at 30, 46 S.Ct. 4; Marron v. United States, 275 U.S. 192, 199, 48 S.Ct. 74, 72 L.Ed. 231 (1927); United States v. Rabinowitz, 339 U.S. 56, 61-62, 70 S.Ct. 430, 94 L.Ed. 653 (1950). The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime — things which might easily happen where the weapon or evidence is on the accused\'s person or under his immediate control." (Emphasis added)

The Fourth Amendment prohibits only unreasonable search. The reasonableness of the search must be determined by the circumstances of each case. United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950). In the present case the police were dealing with two convicted burglars, one of whom, the officers observed was violating his parole. The mere fact that the cursory search made by the officers at the scene revealed only burglary tools and not the pistol, did not militate against the validity of the search.

Nor does the fact that the search turned up evidence used to convict DiMarco of the crime of possession of burglary tools, which was unrelated to the arrest for parole violation, render the search unlawful. Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960) (evidence seized incident to lawful arrest for immigration violation used to convict defendant of espionage). Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); Moore v. United States, 117 U.S.App.D.C. 376, 330 F.2d 842 (1964); United States v. Sorenson, 330 F.2d 1018 (2nd Cir. 1964); United States v. Jackson, 22 F.R.D. 38 (S.D. N.Y., 1958) (Arrest for parole violation, search disclosed narcotics).

The District Court did not have the benefit of the recent decision of the Supreme Court in Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), which held that the ...