DiMarco v. Greene, C 65-231.

• Decision Date: 17 June 1966
• Docket Number: No. C 65-231.,C 65-231.
• Citation: 254 F. Supp. 776
• Parties: Salvatore DiMARCO, Petitioner, v. LaMoyne GREENE, Superintendent, Marion Correctional Institution, et al., Respondent.
• Court: U.S. District Court — Northern District of Ohio

254 F. Supp. 776

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

No. C 65-231.

United States District Court N. D. Ohio, W. D.

June 17, 1966.

James R. Willis, Cleveland, Ohio, Court-appointed counsel, for petitioner.

Leo J. Conway, Asst. Atty. Gen., Columbus, Ohio, for respondent.

DON J. YOUNG, District Judge.

This is a petition for a writ of habeas corpus to secure the petitioner's release from the Marion Correctional Institution.

On October 2, 1963, petitioner was sentenced by the Court of Common Pleas of Cuyahoga County, Ohio, to serve a term of one to five years in the Ohio Penitentiary, after he was found guilty by a jury upon a charge of possession of burglar tools.

Previously, on January third, 1955, petitioner was convicted of burglary and safe tampering, and armed robbery and carrying concealed weapons, and sentenced to ten to twenty-five years in the Ohio Reformatory. He was confined therein, released on parole, returned as a parole violator, and again confined until January 11, 1962, when he was again released on parole. He was on parole on February 22, 1963, when the events happened which led to the sentence imposed on October 2, 1963.

On October 25, 1963, the Ohio Pardon and Parole Commission, finding that petitioner was confined in the Ohio Penitentiary, declared him a parole violator.

The conviction and sentence of October 2, 1963, arose out of the following circumstances:

Between one and two o'clock in the morning of February 22, 1963, a bitterly cold and wintry morning, a group of police officers were watching the automobile of a man named Walch, which was parked outside a tavern in the Collingwood area of Cleveland. The record of petitioner's trial showed that the man Walch was regarded by the police as a "hoodlum", and that it was the practice of the police to arrest and incarcerate "hoodlums" periodically, in the hope that after the arrest it would be possible to establish that the "hoodlums" had committed some crime which was discovered about the time of their arrest. (R. 43) If no such crime or connection appeared, the "hoodlums" would be released in a day or so. (R. 44)

While watching Walch's car, a small automobile drove up and stopped in front of it. A man named Frank DiSanto got out of the car, leaving the lights on and the motor running, and went into a tavern. DiSanto was known to the police, having been imprisoned some ten years previously on a felony charge. The police also observed the petitioner in the car, and recognized him.

They proceeded to the car, opened the door, told petitioner they were arresting him for violation of parole, and proceeded to search the car. Two crowbars, a large screwdriver, and a pair of vise-grip pliers were found in the car. An electric drill and an extension cord were found in the luggage carrier. Some considerable time later, a loaded pistol was found under the front seat of the car by an attendant in a storage garage, who reported this fact to the police. All of these articles were admitted in evidence over petitioner's objection.

Petitioner denied any knowledge of the articles in the car. His story was that he had come to the area from his home on the other side of the city to collect money due him for some work he had done; that the man who paid him had first agreed to drive him home, and then said he could not; that Frank DiSanto, with whom he had a slight acquaintance, was standing nearby, and offered to borrow a car to drive petitioner home; that DiSanto did borrow the car, started to drive him home, and had stopped to get some cigarettes, which he was in the process of doing when the police approached.

The record showed that DiSanto, aware of the local police customs, and not desiring to be incarcerated or to cause trouble for the petitioner, took to his heels through the rear door of the tavern when he saw the police coming.

At the trial of the case, the petitioner moved for the suppression as evidence of the articles found in the car on the ground that they were the product of an illegal search. After a full hearing, the Court of Common Pleas overruled this motion, setting forth its reasons in considerable detail. Exceptions were properly preserved to the court's ruling, but it was affirmed on appeal to the Court of Appeals, and the Supreme Court of Ohio dismissed petitioner's appeal to that court.

It is fair to say that the constitutional questions involved in this matter have been presented to and determined by the state courts. For all practical purposes, the petitioner has exhausted his state remedies.

The first question to be resolved in this matter is whether this Court is required to grant petitioner a plenary hearing upon his petition for a writ of habeas corpus.

The decision of the Supreme Court in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) governs the determination of this question. Under the rules laid down in that case, it is clear that no plenary hearing is required. The facts concerning the obtaining of the evidence which petitioner sought to suppress are almost entirely undisputed. The difficulty seems to have occurred in the ruling of the state court upon these facts.

The trial court says

"* * * but there does not have to be an arrest where the circumstances and the facts are sufficiently clear to police officers in the community who have a particular job to watch known places where they suspect or believe, as a prudent police officer would expect to, that elements of the type engaged in crime are congregating, and considering all of the circumstances involved, they had a right and a reasonable right to examine the automobile, which they did as they opened up the door." (R. 193)

The Supreme Court has held that "although the district judge may, where the state court has reliably found the relevant facts, defer to the state court's findings of fact, he may not defer to its findings of law." Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 760 (1963). With all respect to the judge of the state court, my old friend and classmate, I cannot accept his conclusions of law. It is fair to say that the law on this point was perhaps not so clear at the time of the hearing in the state court as it is now, Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964) and Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964) having been decided since the state court's ruling. In any event, the dispute here is so clearly one of law, rather than of fact, that no plenary hearing is required. The petitioner's rights can be determined upon the record of the proceedings in the state court, which are before this Court in a complete transcript of the trial.

The first main issue which must be considered in this matter is whether the denial of petitioner's motion to suppress the evidence of the various objects found in the automobile in which he was riding deprived him of his constitutional right to be secure from unreasonable searches and seizures.

The respondent contends that the search of the car in which petitioner was seated was in connection with a lawful arrest of the petitioner, and was therefore not within the constitutional interdiction of unreasonable searches and seizures. Thus the first main issue breaks down into two questions, first, was the arrest of the petitioner lawful, and, second, was the search and seizure incidental to the arrest.

Considering these matters in reverse order, it is the conclusion of this Court that even if it be conceded that the arrest of the petitioner was lawful, the search was not a proper incident to it.

The general rule is that "a search is not to be made legal by what it turns up. In law it is good or bad when it starts and does not change character from its success." United States v. DiRe, 332 U.S. 581, 595, 68 S.Ct. 222, 229, 92 L.Ed. 210 (1948).

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 (1964). It is impossible to imagine that admission of the weapon into evidence was not extremely prejudicial to the petitioner.

In the case of Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959), the defendant was suspected of complicity in the theft of whiskey. Officers observed him loading packages into an automobile. The automobile was stopped and he was arrested. The packages in the car were found to contain stolen radios. He was then charged in connection with the theft of the radios. The Supreme Court held that the evidence should have been suppressed. Surely there is a closer connection between stolen whiskey and stolen radios than between a violation of parole for being out late with improper companions and the possession of...