Holloway v. Wolff

• Decision Date: 05 July 1973
• Docket Number: No. 72-1764.,72-1764.
• Citation: 482 F.2d 110
• Parties: William R. HOLLOWAY, Appellant, v. Charles L. WOLFF, Jr., Warden, Nebraska Penal and Correctional Complex, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

482 F.2d 110 (1973)

William R. HOLLOWAY, Appellant, v. Charles L. WOLFF, Jr., Warden, Nebraska Penal and Correctional Complex, Appellee.

No. 72-1764.

United States Court of Appeals, Eighth Circuit.

Submitted May 17, 1973.

Decided July 5, 1973.

Steven G. Seglin, Lincoln, Neb., for appellant.

Betsy G. Berger, Asst. Atty. Gen., Lincoln, Neb., for appellee.

Before VAN OOSTERHOUT, Senior Circuit Judge, HEANEY, Circuit Judge, and TALBOT SMITH, Senior District Judge.^*

HEANEY, Circuit Judge.

William R. Holloway was convicted and sentenced to ten years imprisonment. He appeals the denial of his writ of habeas corpus. The crucial issue is the validity of a search, pursuant to an invalid warrant, which turned up evidence used against Holloway at his trial.¹

The underlying circumstances are succinctly set forth in State v. Holloway, 187 Neb. 1, 187 N.W.2d 85, 88 (1971):

"At approximately 9 p. m., on December 13, 1968, three negro males held up and robbed the bartender and patrons of Little Paul\'s tavern. The robbers used a sawed-off shotgun and handguns and departed with money and personal effects, including men\'s and women\'s billfolds.

"The robbery was one of a series of robberies which had occurred in Omaha. * * * The police believed that following a robbery, the robbers might go to * * * 5425 South 29th Avenue, which was the residence of Christabelle Jenkins.

"At approximately 4 p. m., on the afternoon of December 13, 1968, Sgt. Barrett executed a sworn affidavit for the issuance of a search warrant for a 12-gauge sawed-off shotgun, assorted pistols and handguns. The affidavit alleged that the sole and only reasons for his belief that the guns were concealed or kept on the described premises was `information received from an informant whose information has been reliable in the past.\' The judge of the municipal court issued a search warrant for the described property, reciting that `the following grounds exist for issuance of a search warrant, to-wit: Reliable information received from an informant whose information has been reliable in the past.\'

"At approximately 6 or 7 p. m., the police began surveillance of the residence of Christabelle Jenkins from a distance of a half block. At approximately 9:15 p. m., the officers in the car heard a police radio report of a robbery at Little Paul\'s tavern. They left the residence for 15 or 20 minutes. Shortly after the return of the police officers to the front of the Jenkins residence, two negro males came out of the house. They were arrested by other officers some 300 feet east of the residence. The police, with their search warrant, went to the door of the residence. A 15-year-old son of Mrs. Jenkins came to the door. The police showed him the search warrant and he let them in. As they entered, they met Holloway coming down the stairs. He was arrested on the spot. In the front upstairs bedroom, lying on the bed, was a sawed-off shotgun, assorted cards and papers, men\'s billfolds and ladies\' billfolds and purses."

Following the search, two police officers, Coleman and Dailey, located Christabelle Jenkins at a nearby tavern and returned her to her residence.

The defendant appealed his conviction to the Supreme Court of Nebraska, which affirmed State v. Holloway, supra. With regard to the question of whether the evidence introduced against the defendant had been unconstitutionally seized, the Court held that the warrant was invalid but the defendant had no standing to challenge the search, and, in any event, Christabelle Jenkins had consented to the search. The defendant then brought a petition for writ of habeas corpus in federal District Court. The District Court denied relief, holding that the defendant did not have standing to challenge the search and seizure.

I. STANDING.

It is the defendant's position that he has standing to challenge the search of Jenkins' residence under the principle enunciated in Jones v. United States, 362 U.S. 257, 267, 80 S.Ct. 725, 4 L.Ed. 2d 697 (1960) — that "anyone legitimately on the premises where a search occurs may challenge its legality." Accord, McCreary v. Sigler, 406 F.2d 1264, 1267 (8th Cir.), cert. denied, 395 U.S. 984, 89 S.Ct. 2149, 23 L.Ed.2d 773 (1969). The state argues that the Supreme Court of Nebraska and the District Court correctly held that the defendant does not have standing. It contends that the defendant must show some expectation of privacy beyond being legitimately on the premises for a brief period of time. This contention is without merit. The Supreme Court has recently reiterated its position that the "presence of the defendant at the search and seizure was held in Jones, to be a sufficient source of standing in itself." (Emphasis added.) Brown, et al. v. United States, 411 U.S. 223, 93 S.Ct. 1565, 1568, 36 L.Ed.2d 208 (1973). See, Garza-Fuentes v. United States, 400 F.2d 219, 221 (5th Cir. 1968), cert. denied, 394 U.S. 963, 89 S. Ct. 1311, 22 L.Ed.2d 563 (1969); McDowell v. United States, 383 F.2d 599, 603 n. 4 (8th Cir. 1967).

The state also argues that the defendant does not have standing because he was not legitimately on the premises. We disagree. The evidence produced at the pretrial suppression hearing shows that the defendant is entitled to standing under the Jones and Brown cases. Holloway, a lifelong friend of Christabelle Jenkins and a twice-weekly visitor at her residence, was in the Jenkins' residence in the company of the Jenkins' children at the time of the search. While the evidence shows that Christabelle Jenkins, herself, was not home and had not invited or expected the defendant that evening, we do not believe that these facts are of great consequence in the present case. The Fourth Amendment protects the old friend who "drops in," as well as the guest who receives a specific invitation. There is nothing in the record to suggest that the defendant wrongfully gained entrance to the Jenkins' residence.² Thus, we hold that the determinations that the defendant did not have standing were clearly erroneous and that he may challenge the validity of the search of the Jenkins' residence.

We next turn to the question of whether the search of the Jenkins' residence was unconstitutional. The Supreme Court of Nebraska found that the warrant, pursuant to which the search was conducted, was an invalid one because the affidavit, on which it was based, was conclusionary and did not set forth sufficiently the underlying circumstances. The state does not challenge that this holding comports with Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and we believe that the holding of the Supreme Court of Nebraska is consistent with that case. Thus, the burden is on the state to demonstrate that this is an exceptional case justifying a warrantless search. The state attempts to justify this search on two grounds: first, that Christabelle Jenkins consented to the search and, second, that the search was conducted pursuant to a lawful arrest of Holloway.

II. CONSENT.³

Christabelle Jenkins was not present at her residence at the time of the search. She had not consented to the search prior to its being carried out. After the evidence had been found, Officers Coleman and Dailey located her at a nearby tavern. Coleman, who knew Jenkins, informed her that her house had been searched pursuant to a warrant, that contraband had been found, and that she should return with the police to her home. She agreed to this and indicated that the police did not need a warrant.

At the suppression hearing, Jenkins confirmed that she had indicated to Coleman her willingness to cooperate, and described what she saw when she subsequently returned home:

"A. Well, it was detectives in there. They were tearing the house up. Was already ramshackled. I went upstairs and the same thing was going on.

"Q. When you say `ramshackled\' you mean pulling things out, clothes and stuff like that? Is that what you are referring to that they were doing?

"A. Yes.

"Q. Would this be police officers other than Mr. Coleman and Officer Dailey; right?

"A. Yes.

"Q. Did you know any of the other police officers who were doing this ransacking?

"A. No.

* * * * * *

"Q. Okay. Now, in addition to searching your home when you arrived on the premises were the police officers that you saw there, were they doing anything else?

"A. Well, some in the kitchen that were counting money. Some upstairs were pulling some clothes out and some stuff off the shelves.

"Q. Were they taking any pictures?

"A. It was — yes. It was a reporter upstairs.

"Q. You mean a photographer?

"A. Yes.

"Q. Now, did you ever give your permission to search of any time prior to the time that they came down to your place of employment — down to the Workmen\'s Club looking for you? Did you give them permission prior to that time to search your premises?

"A. No. I got there, they were already searching.

"Q. Prior to the time that they came to your house — to the Workmen\'s Club and asked you to go to your house, were they — had you given permission to search your premises?

"A. No."

Jenkins also testified that she had denied ownership of the incriminating evidence, and told the police to take whatever they wanted.

The Supreme Court of Nebraska held that the state had demonstrated the existence of a valid consent.

" * * * Here Christabelle Jenkins, the only proper person from whom a consent could be appropriately obtained, had known Sgt. Coleman all of her life. She did not even remember whether Sgt. Coleman had told her that he had a search warrant. Sgt. Coleman testified that when he told her he had a search warrant, she advised him he didn\'t need anything, and that she was willing to let him search her home. She told Coleman she wanted to cooperate and she invited Coleman and Dailey into the house when they arrived.

"Even if there were a question as to the timing of the consent compared with the time of initial entry into the house, there can be no question

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