Dodd v. Beto
| Citation | 435 F.2d 868 |
| Decision Date | 29 December 1970 |
| Docket Number | No. 30456 Summary Calendar.,30456 Summary Calendar. |
| Parties | Paul Gene DODD, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Russell B. Smith, Dallas, Tex., for petitioner-appellant; Paul G. Dodd, pro se.
Crawford C. Martin, Atty. Gen., Nola White, First Asst. Atty. Gen., Alfred Walker, Executive Asst. Atty. Gen., Robert C. Flowers, Charles R. Parrett, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.
Before WISDOM, COLEMAN, and SIMPSON, Circuit Judges.
This appeal is taken from an order of the district court denying the petition of a Texas state prisoner for the writ of habeas corpus. We affirm.
The petitioner, Paul Gene Dodd, was convicted of the theft of a shotgun from the Jackson Sporting Goods Store in Dallas, Texas. Dodd sought to suppress evidence that the stolen shotgun was found in a car in which he was riding when stopped by the police. He asserted that the arrest and search were illegal.
The testimony at the trial established that the officers did have probable cause for the arrest and search. The owner of the store, suspicious of the defendant's character, asked the defendant to leave the store. Henry Grubbs, an assistant cashier in a bank across the street from the store, noticed Dodd walking about outside the store stiff-legged, as though he was hiding something under his coat and in his trousers. He noticed what appeared to be a gun barrel protruding from Dodd's trousers. Grubbs had another employee notify the police. He followed Dodd and saw him get into a car after having taken a gun out of his trousers and thrown it into the car.
Officer Hamer of the Dallas Police arrived and received the cashier's information, including a description of the defendant and of the car. He did not know that Dodd had been asked to leave the sporting goods store or that a gun was missing from the store. He knew only what Grubbs had told him. Hamer put out a general "suspicious person" notice to stop the car. Then he himself cruised in search of the car. He spotted the car while it was being followed by another officer, who had heard the dispatch and was also concerned that the car was violating a city ordinance by having a faulty muffler.
The two officers stopped the car and requested the driver and the passenger Dodd to get out of the car. Hamer noticed several pieces of merchandise in original wrappers scattered around the back seat and on the floorboard. Some articles were in a paper bag with a store's name on it, but were not items usually sold at the store. While the other policeman maintained custody of the two men, Officer Hamer opened the trunk and found the stolen shotgun.
The state trial court conducted a hearing out of the presence of the jury on the motion to suppress. The court found probable cause for the arrest and for the search of the car. Those findings were affirmed on direct appeal. Dodd v. State, Tex.Cr.App.1969, 436 S. W.2d 149.
The defendant unsuccessfully sought habeas corpus from the state courts. He then filed a petition for habeas corpus in the district court below asserting that the evidence used against him was the product of an illegal search and seizure. He further contended that at his trial the state had failed to prove that the shotgun recovered was the one that was stolen. The district court denied relief without an evidentiary hearing, finding that the applicant had had a full hearing in the state court and adopting the findings of the state court.
Our review of the record convinces us that the district court was correct. The trial court properly refused to suppress the evidence of the shotgun. Officer Hamer's knowledge, which he had gathered from Grubbs, was sufficient to give him probable cause to believe that the defendant had committed a crime. At the trial Officer Hamer did not testify as to his subjective theory of the crime committed during the time he was looking for Dodd. He...
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...White v. United States, 448 F.2d 250, 254 (8 Cir. 1971), Cert. den. 405 U.S. 926, 92 S.Ct. 974, 30 L.Ed.2d 798 (1972); Dodd v. Beto, 435 F.2d 868, 870 (5 Cir. 1970), Cert. den. 404 U.S. 845, 92 S.Ct. 145, 30 L.Ed.2d 81 But the cases and principles relied upon by the dissent cannot, with any......
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