Draper v. State of Maryland
Decision Date | 23 February 1967 |
Docket Number | Civ. A. No. 17006. |
Citation | 265 F. Supp. 718 |
Parties | Price Jefferson DRAPER, No. 7660, Petitioner, v. STATE OF MARYLAND, Respondent. |
Court | U.S. District Court — District of Maryland |
Price Jefferson Draper, pro se.
Francis B. Burch, Atty. Gen., and R. Randolph Victor, Asst. Atty. Gen. for State of Maryland, for respondent.
Petitioner, presently incarcerated in the Maryland Penitentiary, seeks the issuance of a writ of habeas corpus. Petitioner was convicted on October 26, 1962 in the Circuit Court for Cecil County before Judge Edward D. E. Rollins sitting with a jury, of forgery, uttering a forged instrument and false pretenses. He had entered a plea of not guilty and was represented by court appointed counsel. He was sentenced to a term of ten years in the Maryland Penitentiary. The Maryland Court of Appeals upheld his conviction on direct appeal (Draper v. State, 1963, 231 Md. 423, 190 A.2d 643).
Petitioner then attacked his conviction collaterally under the Maryland Post Conviction Procedure Act (Section 645A et seq. of Article 27 of the Annotated Code of Maryland). His petition was denied by Judge Thomas J. Keating, Jr., of the Circuit Court for Cecil County on December 16, 1963 and leave to appeal was denied by the Maryland Court of Appeals (Draper v. Warden of Maryland Penitentiary, 1964, 235 Md. 641, 201 A.2d 496). Petitioner then applied to the Supreme Court of the United States for a writ of certiorari to review this decision.
Petitioner alleges that meanwhile a motion to strike out or modify his sentence was overruled by the Circuit Court for Cecil County on January 24, 1964 and that his appeal therefrom to the Maryland Court of Appeals was dismissed. Petitions for the issuance of a writ of habeas corpus were denied by the Circuit Court for Cecil County, the Criminal Court of Baltimore and the Circuit Court for Baltimore County on August 20, 1964, October 7, 1964 and November 13, 1964, respectively.
Petitioner's petition for a writ of certiorari to the Supreme Court of the United States to review the denial of post conviction relief (Draper v. Warden of Maryland Penitentiary, 1964, 235 Md. 641, 201 A.2d 496) was denied on June 7, 1965. (Draper v. State of Maryland, 381 U.S. 952, 85 S.Ct. 1807, 14 L.Ed.2d 725).
Petitioner next filed in this court a petition for the issuance of a writ of habeas corpus, which petition was denied in a Memorandum Opinion and Order dated January 14, 1965. Petitioner appealed from that opinion and order to the United States Court of Appeals for the Fourth Circuit. In Memorandum Decision No. 10,521, dated August 26, 1966, the United States Court of Appeals for the Fourth Circuit vacated the order denying relief and remanded the case to this court for amplification and supplementation of the record.
Pursuant to the mandate of the Court of Appeals for the Fourth Circuit, this court has obtained and thoroughly reviewed the transcript of the post conviction hearing held before Judge Thomas J. Keating, Jr., in the Circuit Court for Cecil County on December 2, 1963. In addition, the court has obtained and thoroughly reviewed the transcript of the original trial of the petitioner held before Judge Edward D. E. Rollins and a jury sitting in the Circuit Court for Cecil County on October 19, 1962.
Petitioner attacks the validity of his detention on two grounds. He first asserts that he was convicted on the basis of evidence which was a product of an illegal search and seizure. Secondly, he contends that this defense was never waived by him.
As to the first contention, the facts surrounding petitioner's arrest and the subsequent search and seizure are not in dispute. The arresting officer, State Trooper William J. Bienert, Jr., testified at the time of petitioner's original trial as to what occurred without contradiction by the petitioner and indeed the Trooper's testimony was corroborated by petitioner when petitioner took the stand to testify in his behalf. Accordingly this court has relied, as it may (Davis v. State of North Carolina, 4 Cir. 1962, 310 F.2d 904, 907), upon the state record as setting forth the undisputed historical facts surrounding the arrest, search and seizure. The pertinent testimony appearing at pages 4 through 8 of the transcript of petitioner's original trial may be summarized as follows. On the morning of the arrest at approximately nine o'clock while on routine patrol on United States Route 40 about a mile and a half or two miles east of Elkton, Trooper Bienert observed a vehicle in operation displaying temporary license tags issued by the State of Delaware. Accordingly, the Trooper stopped the vehicle for a routine registration and license check. The officer approached the driver and sole occupant of the car, the petitioner; told him why the vehicle had been stopped; and asked if he could see petitioner's license and registration card. Petitioner handed the Trooper a registration card issued to one Roscoe Jones and stated that he had no driver's license, never having been issued one. Assuming that the petitioner was Roscoe Jones the officer asked for further identification and was informed that petitioner had no identification. Trooper Bienert then checked with his barracks and determined that the car in question had not as of that time been reported as stolen and that there was no record of a license ever having been issued to a Roscoe Jones. The Trooper then advised petitioner that he was under arrest for operating a motor vehicle without a license. A summons was issued charging petitioner with this offense and petitioner was informed of the amount of money required to be posted as collateral pending trial. As petitioner did not have the required amount on his person, he was told that he was entitled to try to obtain the necessary collateral by communicating by phone with friends or relatives. Petitioner requested that he be given such an opportunity. For this reason the car which petitioner had been driving was left at the scene of the arrest alongside the road and petitioner was driven by the Trooper to the sheriff's office to try to make arrangements for the raising of collateral. Upon reaching the sheriff's office the petitioner stated that he had no hope whatsoever of obtaining the necessary money. Thereupon Bienert who, having made the arrest, was responsible for the vehicle which he had stopped, returned to the scene of the arrest. Preparatory to storing the car the Trooper looked the car over and in checking out the car and its contents found a bottle of wine and three checks underneath the front seat of the vehicle. Two checks were filled out and one was blank. It was these checks which led to the petitioner's subsequent conviction of forgery, uttering a forged instrument and false pretenses.
The narrow question presented to this court for determination is whether the fact that the petitioner was no longer at the scene of the arrest when the search was made but had only minutes previously been taken to the sheriff's office to permit him to attempt to obtain collateral and thus to remain at liberty renders the search of the vehicle which was incidental to and substantially contemporaneous with the arrest illegal under the principles announced in Preston v. United States, 1964, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777. This court does not so read the Preston case and concludes that the search was legal. The United States Court of Appeals for the Sixth Circuit having before it the question of the legality of a search of a vehicle made under similar circumstances in that the suspect was arrested and removed from the scene of arrest prior to the search of the vehicle reached the same conclusion that this court does saying:
Crawford petitioned for review of this decision of the Sixth Circuit by the Supreme Court of the United States on writ of certiorari. Certiorari was denied, 1965, 381 U.S. 955, 85 S.Ct. 1807, 14 L.Ed.2d 727 and a rehearing was denied, 1965, 382 U.S. 873, 86 S.Ct. 12, 15 L.Ed.2d 116. See also: United States ex rel. Murphy v. State of New Jersey, D.N.J.1965, 260 F.Supp. 987—another case distinguishing the Preston decision and holding the search lawful, affirmed per curiam, 3 Cir. 1966, 369 F.2d 698.
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