Kirby v. Cox
| Decision Date | 12 March 1970 |
| Docket Number | Civ. A. No. 69-C-19-L (Re). |
| Citation | 312 F. Supp. 438 |
| Parties | Robert Woodford KIRBY, Petitioner, v. J. D. COX, Superintendent, Virginia State Penitentiary, Respondent. |
| Court | U.S. District Court — Western District of Virginia |
W. Luke Witt, Asst. Atty. Gen., Richmond, Va., for respondent.
Petitioner Robert Woodford Kirby seeks relief from imprisonment by petitioning this court to issue a writ of habeas corpus. By order dated June 2, 1969, this court granted a transfer of petitioner's petition from the United States District Court for the Eastern District of Virginia to the United States District Court for the Western District of Virginia. The petition was dismissed for a failure to exhaust all available state court remedies on the 17th of June, 1969. Shortly thereafter, petitioner Kirby was granted an appeal of this court's ruling. The Fourth Circuit Court of Appeals, on the 28th of October, 1969, reversed this court's order which had dismissed the petition. See Memorandum Decision #13,776. The Fourth Circuit, in their reversal, remanded the petition back to this court for a determination of the claims presented by the petitioner. On December 2, 1969, this court entered an order reinstating the petition for further consideration in accordance with the Fourth Circuit's decision.
Petitioner Kirby's record discloses the following pertinent data. On the 12th of October, 1967, Kirby was convicted of statutory burglary and received a sentence of five (5) years imprisonment by the Corporation Court of the City of Lynchburg, Virginia. Later, on the 10th of November, 1967, said petitioner was again convicted for his possession of burglarious tools and sentenced to three (3) years imprisonment by the same court. These two sentences were to run consecutively. The Virginia Supreme Court of Appeals granted petitioner a writ of error to appeal the aforementioned two convictions. After careful consideration, the Virginia Supreme Court of Appeals affirmed the lower court's decision. Kirby v. Commonwealth, 209 Va. 806, 167 S.E.2d 411 (1969). In view of the foregoing, petitioner Kirby has exhausted his state court remedies in compliance with the provisions of 28 U.S.C.A. § 2254, as interpreted by Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).
As pointed out by the Fourth Circuit's Memorandum Decision 13,766 petitioner raises only two issues that this court is called upon to consider. First, that the submission into evidence of a "tool case" was improperly admitted, as it was the product of an illegal search. Secondly, that the evidence as admitted was insufficient to support the conviction of the petitioner.
The court has carefully reviewed the allegations raised by the petitioner, and in consultation with the entire records in the case at bar, it is clear that a plenary hearing will not be needed. The records provide a sufficient basis upon which a final determination can be made.
The record discloses the following facts. In the early morning hours (approximately 3:00 a.m.) of August 28, 1967, the petitioner, along with his wife and another married couple, were arrested, being charged with petty larceny. Prior to their actual arrest, police officer C. M. Glass, of the Lynchburg Police Department, noticed a 1960 Chevrolet automobile parked at a Shell service station. The police officer observed that petitioner's companion, one Robert Tolley, was in the process of removing a license plate from a nearby automobile. During this time the petitioner was apparently doing something under the hood of his Chevrolet automobile. The police officer, after observing the removal of this license plate, approached the Chevrolet and arrested the four persons involved. The license plate was recovered from under the driver's seat. Subsequent to the arrest, petitioner Kirby was found to be armed. The record indicates that a patrol wagon arrived a short time later taking the petitioner and the other three companions to jail. Immediately following the arrest and departure of the four persons to jail, a search was conducted of the Chevrolet automobile at the Shell service station by Officer Glass and Police Lieutenant Herbert Nash. No search warrant was obtained prior to the actual search, but the testimony indicates that one was obtained the next day.
The testimony at the original criminal trial on the 12th of October, 1967 discloses that a small plastic-leather "tool case" was visible to the officers in the well compartment of the convertible. (Tr. 37) Officer Glass testified that the "tool case" was visible by "looking through the back" window. (Tr. 42) Testimony also reveals that it was not necessary to open the trunk of the car to secure the "tool case", but rather it was accessible from the outside. (Tr. 40)
An examination of the contents of the "tool case" disclosed that they were of the type that are customarily used in the commission of burglaries. A subsequent investigation by agents of the Federal Bureau of Investigation further disclosed that three of the tools (a chisel, crowbar, and a sledge hammer) (Tr. 75-81) were used in a previous burglary.1
With the foregoing factual background in mind, petitioner Kirby contends that the search of the Chevrolet automobile by the police officers and the subsequent seizure of the "tool case" was an unreasonable one when measured by applicable constitutional standards. Secondly, that the introduction of the "tool case" into evidence was not only error, but that such evidence was insufficient to support his conviction by the Lynchburg Corporation Court.
The court is well aware of the extensive, but significant, developments that have surrounded application of the search and seizure principle to the constitutional provisions of the Fourth Amendment. This amendment does not prohibit all searches and seizures, but only unreasonable ones. Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669, 1680 (1960). In measuring the "reasonableness" concept, Virginia has applied, through statutory provisions, acceptable standards See Code of Virginia—§§ 19.1-85 and 19.1-86 for the issuance of search warrants. See One 1963 Chevrolet Pickup Truck v. Commonwealth, 208 Va. 506, 158 S.E.2d 755 (1968), cert. denied, 391 U.S. 964, 88 S.Ct. 2032, 20 L.Ed.2d 877 (1968).
However, as recognized in the federal courts and Virginia, a search will not be unlawful, even though a search warrant hasn't been issued, if it's reasonable. Additionally, the courts have held a search lawful where, even though there was an absence of a warrant, the search was incident to a lawful arrest. U. S. v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, 657 (1950). The testimony reflects that counsel for the petitioner admitted that the arrest was lawful on the night of August 28th.
As pointed out in respondent's motion, the Virginia Supreme Court of Appeals, in discussing petitioner's case on writ of error, emphasized the holding of the Supreme Court in Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777, 780 (1964) as applicable to the case at bar. In Preston, the Supreme Court reasoned as follows:
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