Kelley v. Swenson

• Decision Date: 29 April 1974
• Docket Number: No. 72 C 498 (2).,72 C 498 (2).
• Citation: 376 F. Supp. 20
• Parties: Robert KELLEY, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

376 F. Supp. 20

Robert KELLEY, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Respondent.

No. 72 C 498 (2).

United States District Court, E. D. Missouri, E. D.

April 29, 1974.

Richard D. Schreiber, Clayton, Mo., for petitioner.

John C. Danforth, Atty. Gen., State of Missouri, Richard S. Paden, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

MEMORANDUM OPINION AND ORDER

REGAN, District Judge.

On petitioner's appeal from our order denying without prejudice habeas corpus relief for failure to exhaust state remedies, the Court of Appeals remanded the case with direction to vacate the dismissal and hear the habeas corpus petition on the merits.

Following the remand, we appointed counsel for petitioner and (although not mandated by the Court of Appeals) held an evidentiary hearing in order to afford petitioner an opportunity to present whatever evidence he might have, additional to that contained in the state court record, which might bear on the issue presented.

The narrow question for resolution is whether the written and oral confessions of petitioner (admitted into evidence) were obtained as a result of an arrest by St. Louis police officers on November 25, 1969 without probable cause. The warrantless arrest was made by the St. Louis police on "suspicion" that petitioner committed a burglary of a Department of Agriculture office in St. Charles County. The following day petitioner was turned over to the St. Charles County authorities who charged him with the Department of Agriculture burglary. The confessions here involved, which were made after petitioner was arrested by the St. Charles County officers, did not pertain to the St. Charles County burglary but to another, unrelated, burglary of a bakery in Jennings, St. Louis County, the offense for which petitioner was convicted, and with respect to which the present habeas petition is directed.

Petitioner relies upon the "fruit of the poisonous tree" doctrine as explicated in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, contending on the basis of his claim of an initial unlawful arrest by the St. Louis police that his subsequent confessions, although not made while under that arrest, were tainted thereby. The Supreme Court of Missouri, affirming petitioner's conviction (State v. Kelley, Mo., 473 S.W.2d 707), held that the arrest was based upon probable cause and was valid, and for that reason did not consider or decide the State's further contention that the confessions were valid in any event, on the theory that "the connection between the initial arrest and the confessions became so attenuated that the taint, if any, was dissipated."

In Wong Sun, narcotics agents, looking for a laundryman known as "Blackie Toy" on the basis of information supplied by an informant, not known to be reliable, that "Blackie Toy" had sold heroin to him, went to a laundry operated under another name by James Wah Toy. There was no evidence which identified James Wah Toy and "Blackie Toy" as the same person, nor was there any intimation that the officers had received any information, such as the criminal record of a Toy, which would narrow their search to this particular Toy. Nevertheless, the agents forced their way into Toy's living quarters and placed him under arrest. In this situation the arrest was held to have been made without probable cause. Toy made oral statements in his bedroom following his arrest which were admitted into evidence over timely objections, as was heroin surrendered to the agents by a third person as a result of those statements.

In that case, in addition to the obvious illegality of the arrest, the circumstances existent at the time the statements were made clearly demonstrated that "the primary taint of the unlawful invasion" had not been purged. The statements came just minutes after six or seven officers had broken the door leading to Toy's living quarters and followed him as he ran into the bedroom where his wife and child were sleeping, where they almost immediately handcuffed and arrested him.

The present is not a Wong Sun case. In our view, the facts here of record...