Hines v. Auger, 76-1273

• Decision Date: 01 March 1977
• Docket Number: No. 76-1273,76-1273
• Citation: 550 F.2d 1094
• Parties: Donald R. HINES, Appellee, v. Calvin AUGER, Warden, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1094

550 F.2d 1094

Donald R. HINES, Appellee, v. Calvin AUGER, Warden, Appellant.

No. 76-1273.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 24, 1977.

Decided March 1, 1977.

Richard C. Turner, Atty. Gen., and Thomas D. McGrane, Asst. Atty. Gen., Des Moines, Iowa, for appellant.

Michael M. Pedersen, Waterloo, Iowa, for appellee.

Before LAY, ROSS and WEBSTER, Circuit Judges.

ROSS, Circuit Judge.

The State of Iowa has appealed from an order of the district court granting habeas corpus relief to the petitioner Donald Hines. On January 27, 1976, the petitioner Hines was granted a writ of habeas corpus by the district court on the ground that his state conviction was based in part on evidence seized unreasonably in violation of the fourth amendment. Subsequent to the order of the district court, the Supreme Court held:

* * * (W)here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.

Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 3052, 49 L.Ed.2d 1067, (1976) (footnotes omitted). In view of Stone, we remanded this case to the district court " * * * for the limited purpose of determining whether or not the state of Iowa provided Hines with an opportunity for a full and fair litigation of his fourth amendment claim * * *." Hines v. Auger, No. 76-1273 (8th Cir., filed Oct. 12, 1976) (unpublished), slip op. at 2. ¹ On remand, the district court held that the petitioner was denied an opportunity to fully and fairly litigate his fourth amendment claim in state court. Specifically, the district court held that Hines was denied an opportunity to fully and fairly litigate his fourth amendment claim on direct review to the Iowa Supreme Court. For the reasons described below, we reverse this determination and remand for further proceedings. ²

The facts relating to the challenged search and seizure were, in the district court's words, "fully developed" during the suppression hearing and trial in state district court. Indeed, because of this, no evidentiary hearing was held by the district court. After a jury trial Hines, and a companion named Donald Shea, were convicted of possession of a controlled substance with intent to deliver.

The state transcripts reveal the following facts: At approximately 9 p. m. on June 29, 1972, Detective Helgesen of the Waterloo, Iowa Police Department, observed Hines, a white, sitting in a parked car in a predominantly black area of Waterloo, known to have an active drug traffic. Helgesen knew at this time that Hines had been previously arrested and charged with possession of a controlled substance. Helgesen later determined that the car was registered to Donald Shea, whom the detective knew was an acquaintance of Hines. Helgesen had personally arrested Shea previously on drug charges and had reliable information that Shea was currently dealing in large quantities of amphetamines; he had specific information that Shea was selling amphetamines to Nicky Gonzales.

Detective Helgesen emerged from his police car, made inquiry of Hines and determined from Hines that he was waiting to meet a woman. During the course of the inquiry, Helgesen observed a man walk by the vehicle in which Hines was sitting and make an unidentified remark to Hines. This person was known by Detective Helgesen to be Terry Sallis, whom Helgesen knew from reliable information was a close associate of many known dealers and users of hard narcotics. After Hines explained his presence, Detective Helgesen determined that no reason existed for further detention, and sent Hines on his way.

Approximately fifteen minutes after this contact, Detective Helgesen received information from a reliable informant that a "white guy," whom the informant had just seen in the area, was "deal(ing) in dope." Helgesen stated at the suppression hearing that he believed the informant was referring to Hines because he "was the only white person there."

At approximately 1:45 a. m. on June 30, 1972, approximately four and one-half hours after the initial contact, Hines and Shea were observed together in Shea's car in another area of Waterloo by Detective Helgesen. Hines parked the car in the vicinity of the Music Box Tavern, known to Detective Helgesen as a center for the distribution of soft and hard narcotics, and Hines and Shea walked down the street and sat on a ledge opposite the tavern. ³ Approximately fifteen minutes later, Hines and Shea were observed hurrying into the tavern. Shortly thereafter, Hines and Shea left the tavern in the company of Gonzales. Helgesen then instructed Detectives Dolan and Ames to stop the Shea car and, after an erratic move, the Shea car was stopped. Hines and Shea were frisked for weapons. Detective Helgesen thereupon shined a flashlight into the car and observed a plastic vial containing what appeared to be marijuana cigarette butts. Hines and Shea were then placed under arrest and a more complete search produced an assortment of narcotics which was introduced in evidence at the petitioner's trial.

Hines and Shea filed a joint motion to suppress the contraband which was obtained as a result of the search and seizure described above. After a hearing on the motion, at which Detectives Helgesen and Dolan testified, the trial judge denied the motion to suppress, holding " * * * that the detectives had more than probable cause to believe the defendants to be in possession of controlled substances at the time and place in question and more than probable cause to believe that immediate apprehension and search was necessary in view of the apparent pending transaction with Nicky Gonzales."

Shea appealed his conviction to the Iowa Supreme Court claiming that probable cause existed at the time of the initial stop of Hines. Shea argued that the police had ample opportunity during the intervening four and one-half hours to obtain a warrant and therefore the warrantless search and seizure were unreasonable. The Iowa Supreme Court affirmed Shea's conviction State v. Shea, 218 N.W.2d 610 (Iowa 1974), holding as follows:

* * * (T)here existed no probable cause for issuance of (an arrest or search warrant) at 9:15 p. m. on June 29, 1972. But subsequent observations, coupled with exigent circumstances, did suffice to provide the probable cause essential for a warrantless arrest of Shea and attendant search of his car at 1:45 a. m. on June 30th. It therefore follows the search was effected under such circumstances as to excuse the officers from obtaining a search warrant.

Id. at 614-615.

Subsequently, petitioner Hines appealed his conviction to the Iowa Supreme Court arguing, inter alia, that no probable cause ever existed for the stop, search or seizure. The Iowa Supreme Court summarily denied his fourth amendment claim, holding:

In a companion case, State v. Shea, 218 N.W.2d 610 (Iowa 1974), we upheld the validity of this particular search and seizure. The pre-trial suppression hearing, by agreement, applied to both defendants. Trial-developed facts leading up to the search were essentially the same in both cases. Our holding in Shea controls our ruling with respect to these two issues. We find no error.

State v. Hines, 223 N.W.2d 190, 191 (Iowa 1974).

Petitioner Hines argues, and the district court held, that he was effectively denied an adversary hearing in the Iowa Supreme Court on the issue of probable cause in view of that court's reliance on Shea, in which the petitioner's companion "seemingly conced(ed)" the issue of probable cause. See State v. Shea, supra, 218 N.W.2d at 614. Hines concludes that he was thus denied an opportunity for full and fair litigation of his fourth amendment claim in state court. We cannot agree with this contention.

The mandate of the Stone case is that federal habeas review is precluded where the state courts have provided the accused an opportunity to fully and fairly air his or her fourth amendment claim. See Denti v. Commissioner of Correctional Services, 421 F.Supp. 557, 559 (S.D.N.Y.1976); Pulver v. Cunningham, 419 F.Supp. 1221, 1224 (S.D.N.Y.1976). The emphasis of Stone is on the opportunity for full and fair litigation, not upon the fullness or fairness of the litigation. Stone v. Powell, supra, at 489 - 494, 96 S.Ct. at 3049-3051; Denti v. Commissioner of Correctional Services, supra, 421 F.Supp. at 559. This construction conforms generally to the Court's overriding concerns for finality in state criminal proceedings and comity between state and federal courts, and specifically to the notion, expressed by Mr. Justice Powell in Schneckloth v. Bustamonte, 412 U.S. 218, 269, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (Powell J., Concurring), that federal courts should not reexamine state court determinations in "grey, twilight area(s)" of fourth amendment law. The only indication in Stone as to what constitutes an opportunity for full and fair litigation is the Court's citation of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). See Stone v. Powell, supra, at 494, 96 S.Ct. at 3052 n. 36. In Townsend the Court held that a federal court must conduct an evidentiary hearing on a habeas petitioner's claim when the petitioner was denied a full and fair evidentiary hearing in the state trial court. The court said in Townsend that a full and fair hearing could be denied in the following ways:

(1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason...