Graves v. Beto, 28502.
| Decision Date | 26 May 1970 |
| Docket Number | No. 28502.,28502. |
| Citation | 424 F.2d 524 |
| Court | U.S. Court of Appeals — Fifth Circuit |
| Parties | David Jessie GRAVES, Petitioner-Appellee, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellant. |
Dunklin Sullivan, Asst. Atty. Gen., Crawford C. Martin, Atty. Gen. of Texas, Nola White, First Asst. Atty. Gen., Pat Bailey, Exec. Asst. Atty. Gen., Robert C. Flowers, Asst. Atty. Gen., Austin, Tex., for respondent-appellant.
Weldon Holcomb, Tyler, Tex., for petitioner-appellee.
David Jessie Graves, in pro per.
Before WISDOM, GOLDBERG and INGRAHAM, Circuit Judges.
Rehearing Denied and Rehearing En Banc Denied May 26, 1970.
In this case the Court scrutinizes the efficacy of a consent to a blood test secured by official stratagem.
A Texas jury convicted David Jessie Graves of the offense of rape and assessed a punishment of twelve years imprisonment. As part of its evidence at trial, the state proved that Graves's blood type matched that of blood discovered on the bed covers where the rape took place and differed from that of the prosecutrix. A chemist testified that only 13.5 percent of the people in the area had Graves's blood type (B). After exhausting his state remedies, Graves filed an application for writ of habeas corpus in federal district court. The district court granted the writ, finding that state authorities had unconstitutionally obtained from Graves the blood sample that disclosed his blood type. We affirm.
Graves was arrested and confined in Plano, Texas, in 1963 on a charge of public drunkenness. Shortly after his arrest, the police received a report that an elderly woman had been raped in her home near Plano. Her description of her assailant closely fitted Graves. Since blood had been found on the bed covers, the Plano police chief requested Graves's permission to take a sample of his blood. Graves refused at first, but finally consented when he was informed that the sample would be used only to determine the alcoholic content of his blood. At the habeas corpus hearing, the following colloquy took place between the district judge and the police chief:
The district judge concluded that "the performance of the blood grouping test without a search warrant, and the subsequent use of the results of the test as evidence at the petitioner's trial, was illegal and in violation of his constitutional rights".
This case is not within the ambit of Schmerber v. California, 1966, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. In Schmerber, the Supreme Court permitted the taking of a blood sample without a warrant and without consent because the officer there "might reasonably have believed that he was confronted with an emergency" in the destruction of the evidence — the reduction of the percentage of alcohol in the blood. Here, on the other hand, the police chief has admitted that his concern was to determine Graves's blood type. That quality is not evanescent; Graves's blood type would remain the same no matter how long it took to secure a warrant. In attempting to justify its warrantless search the state cannot avoid the emergency requirement of Schmerber by the consent it extracted from Graves. His consent, based on the police chief's representations, gave no more than the license that Schmerber provided without his consent.1 To endow it with wider effect would allow the state to secure by stratagem what the fourth amendment requires a warrant to produce.2
The state contends that Graves deliberately bypassed orderly state procedures for raising his constitutional claim. It is true that at the state trial Graves's counsel objected to the introduction of his blood type not specifically on the grounds that it had been illegally secured, but because a proper predicate had not been laid. Graves did not appeal....
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People v. Stuller
...that evidence gathered by devious police practices should be excluded. Defendant attempts to bring himself within the scope of Graves v. Beto, 5 Cir., 424 F.2d 524. In the cited case, the police had arrested the defendant on a charge of public drunkenness; shortly after his arrest, they rec......
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Miller v. Idaho State Patrol
...fluids would be unconstitutional. See Barlow v. Ground, 943 F.2d 1132, 1138 (9th Cir.1991) (discussing blood draws); Graves v. Beto, 424 F.2d 524, 525 (5th Cir.1970) (similar). On the other hand, a forced catheterization performed on arrestees solely for medical screening or treatment, and ......
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Wynn v. Smith
...25 L.Ed.2d 763, 771-772 (1970); Henry v. Mississippi, 379 U.S. 443, 450, 85 S.Ct. 564, 568-569, 13 L.Ed.2d 408, 414 (1965); Graves v. Beto, 424 F.2d 524 (C.A.5) cert. denied, 400 U.S. 960, 91 S.Ct. 353, 27 L.Ed.2d 269 (1970); Burton v. Alabama, 396 F. 2d 755 (C.A.5 1968); Baker v. Lee, 384 ......
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Miller v. Idaho State Patrol
...fluids would be unconstitutional. See Barlow v. Ground, 943 F.2d 1132, 1138 (9th Cir.1991) (discussing blood draws); Graves v. Beto, 424 F.2d 524, 525 (5th Cir.1970) (similar). On the other hand, a forced catheterization performed on arrestees solely for medical screening or treatment, and ......
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§ 44.03 TYPES OF FACTS SUBJECT TO NOTICE: FRE 201(B)
...and Atmospheric Administration), aff'd, 767 F.2d 925 (7th Cir. 1995).[50] Graves v. Beto, 301 F. Supp. 264, 265 (D.C. Tex. 1969), aff'd, 424 F.2d 524 (5th Cir. 1970). See also Hines v. Secretary of Health & Human Servs., 940 F.2d 1518, 1526 (Fed. Cir. 1991) (incubation period of measles is ......
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§ 44.03 Types of Facts Subject to Notice: FRE 201(b)
...and Atmospheric Administration), aff'd, 767 F.2d 925 (7th Cir. 1995).[51] Graves v. Beto, 301 F. Supp. 264, 265 (D.C. Tex. 1969), aff'd, 424 F.2d 524 (5th Cir. 1970). See also Hines v. Secretary of Health & Human Servs., 940 F.2d 1518, 1526 (Fed. Cir. 1991) (incubation period of measles is ......