Hoover v. Beto

Citation467 F.2d 516
Decision Date18 December 1972
Docket NumberNo. 29587.,29587.
PartiesSam HOOVER, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

COPYRIGHT MATERIAL OMITTED

Warren Burnet, Odessa, Tex., Raeburn Norris, Houston, Tex., Luther E. Jones, Jr., Corpus Christi, Tex., for petitioner-appellant.

Lonny Zwiener, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Before RIVES, WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges.*

Certiorari Denied December 18, 1972. See 93 S.Ct. 703.

AINSWORTH, Circuit Judge.

Seldom has this Court considered a more spectacular or bizarre case than this habeas corpus petition of an experienced Texas criminal lawyer, former mayor of the City of Pasadena, Texas, who was found guilty in Texas State Court of being the mastermind and accomplice in an especially brutal and horrible assault and robbery, but who contends that he was invalidly convicted in violation of federal constitutional rights.

Sam Hoover is presently serving a sixty-year sentence imposed by the Criminal District Court of Harris County, Texas. A jury found him guilty in a separate trial as an accomplice to the crime of robbery by firearms,1 committed by principals John Oscar Young, Calvin Sellars, and Samuel Spivey.2 Hoover has appealed from the denial of his petition for habeas corpus by the United States District Court for the Southern District of Texas, Houston Division. The District Court's opinion is reported as Hoover v. Beto, S.D.Tex. 1969, 306 F.Supp. 980.

On appeal Hoover has asserted two claims of error to the denial below of his habeas corpus petition based on federal constitutional grounds. First, he contends that the Court erred in refusing to sustain alleged violations of his Fourth and Fourteenth Amendment rights to be free from unreasonable search and seizure. The State Trial Court admitted into evidence two diamonds seized from Hoover's home during a nighttime search conducted by the Houston Police Department. Hoover argues that the search was made without his voluntary consent, by police officers acting under color of a search warrant which was invalid under Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Secondly, Hoover asserts that his right to confrontation under the Sixth and Fourteenth Amendments was infringed when the State Trial Court admitted into evidence the oral confession of alleged principal and coindictee Calvin Sellars. The confession, which also implicated Hoover as an accomplice, was admitted during the testimony of Officer C. V. Stone to whom Sellars confessed, pursuant to a well-established Texas exception to the hearsay rule which allows the confession of a principal to be admitted at the trial of an accomplice to prove the principal's guilt, proof of such guilt being a necessary prerequisite to conviction of an accomplice to the offense.

The panel of this Court which originally heard the case decided in Hoover's favor on both claims of error, reversed the judgment of the District Court denying Hoover's petition for habeas corpus, and remanded the case with directions to grant the writ and discharge Hoover, unless the State elected to retry him within a reasonable time. Hoover v. Beto, 5 Cir., 1971, 439 F.2d 913. Pursuant to Rule 35 of the Federal Rules of Appellate Procedure, the case was placed en banc by the Court. Upon rehearing en banc, after careful consideration of the issues presented and review of the entire record before us, a majority of this Court is of the opinion that the panel decision should be reversed, and the judgment of the District Court denying Hoover's petition for a writ of habeas corpus is therefore affirmed.

I. THE SEARCH AND SEIZURE ISSUE

The facts and circumstances surrounding the search of Sam Hoover's home and seizure therefrom of two diamonds stolen from the Schepps' residence are uncontroverted. They are stated in the original panel's opinion, Hoover v. Beto, 439 F.2d at 916-918, and will be only briefly summarized here.

Officer Hodges testified that during the early morning hours of March 18, 1964, in the company of nine other law enforcement officers and the Justice of the Peace who had issued a search warrant for the search in question, he went to Hoover's home, knocked, and Hoover answered the door. Hodges announced who he was and that he had a warrant to search his home. Hoover told him "that the search warrant was unnecessary, for him to come on in his house and look wherever he pleased." None of the officers was in uniform, but several of them would have been well known to Hoover because of his criminal law practice in the Houston area. Hodges had the warrant in his hand when he knocked on the door. Hoover asked to see the warrant after Hodges was inside. The State Trial Court upheld the search on the ground that "Sam Hoover said it's not necessary to have a search warrant, come on in and search the residence."

There is no dispute as to what happened and what was said. The controversy concerns inferences and conclusions to be drawn from a known set of facts. Appellant acknowledges that the words he spoke constituted an invitation to the police to enter and search. Nevertheless, he argues in reply brief on rehearing that

"The invitation which appellant extended to the searching officers to come into his home upon his being presented with that misrepresentation the allegedly invalid search warrant was induced by, and solely a product of, that misrepresentation.
"Therefore any consent evidenced by that invitation could not have wholly been a product of the appellant\'s free will."

There is no affirmative evidence in the record to support the contention that the invitation was actually involuntary. Hoover did not testify at the voir dire hearing pertaining to the validity of the search when the matter was considered out of the presence of the jury during his trial in State Court, or in the proceedings below on his petition for habeas corpus.3 Rather, we are asked to draw the inference that the statement of Officer Hodges that he had a warrant weakens the meaning of Hoover's subsequent words of invitation and the intent which those words convey in the ordinary course of human experience—namely, consent.

The State Trial Judge ruled that the words uttered by Hoover meant that Hoover was inviting the police officers to search his home, without reference to any search warrant which they possessed.4 The District Court below felt that while it was not bound by the findings of the State Trial Court, those findings were nevertheless entitled to great weight. 306 F.Supp. at 987. Independently, the District Court below held that the evidence was uncontradicted and established that Hoover not only consented to the search, but even invited it. The Court pointed out that the Texas Court of Criminal Appeals also found that there was invitation to search (390 S.W.2d at 762), which finding of fact affirmed the State Trial Court's ruling.

Whether consent to search has been given is a question of fact. We only recently passed on this question in United States v. Resnick, 5 Cir., 1972, 455 F.2d 1127, where Judge Godbold noted that

"The District Judge found, on conflicting testimony, that Carlton did consent. We cannot say that this was plainly erroneous, which is our scope of review of facts found at a motion to suppress hearing."

455 F.2d at 1133. See also United States v. Gunn, 5 Cir., 1970, 428 F.2d 1057; United States v. Montos, 5 Cir., 1970, 421 F.2d 215, cert. denied, 397 U.S. 1022, 90 S.Ct. 1262, 25 L.Ed.2d 532 (1970). Hoover places much reliance on Bumper v. State of North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). In Bumper, the Supreme Court, through Mr. Justice White, stated:

"When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all."

391 U.S. at 548-550, 88 S.Ct. at 1792. The holding of the case, however, was much narrower and was obviously based on its particular facts, since the Court said:

"We hold that Mrs. Leath did not consent to the search, and that it was constitutional error to admit the rifle in evidence against the petitioner. . . ."

391 U.S. at 550, 88 S.Ct. at 1792.

The majority holding in Bumper was undoubtedly based on strong circumstances.5 Our own view of the testimony is that when attorney Sam Hoover told Police Officer Hodges that his warrant was not necessary and to come on into his home and search wherever he wanted, this constituted clear and convincing evidence of voluntary consent to the search, irrespective of the validity of the warrant. Hoover voluntarily consented to and invited the search. That consent was neither coerced nor compelled by the search warrant. The argument that express declarations of invitation and consent, such as were present here, constitute nothing "more than acquiescence to a claim of lawful authority" neither comports with reason and logic nor with human experience and common sense.

The Texas State rule of law prior to Bumper was not substantially different from the principles upon which Bumper is based. In Stanford v. State, 1942, 145 Tex.Cr.R. 306, 167 S.W.2d 517, on which the Texas court relied to find consent, the Texas Court of Criminal Appeals stated:

"This court has frequently
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