Lewis v. Cardwell, 72-1679.

• Decision Date: 05 April 1973
• Docket Number: No. 72-1679.,72-1679.
• Citation: 476 F.2d 467
• Parties: Arthur Ben LEWIS, Jr., Petitioner-Appellee, v. Harold J. CARDWELL, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

476 F.2d 467 (1973)

Arthur Ben LEWIS, Jr., Petitioner-Appellee, v. Harold J. CARDWELL, Warden, Respondent-Appellant.

No. 72-1679.

United States Court of Appeals, Sixth Circuit.

Argued December 8, 1972.

Decided April 5, 1973.

Jeffrey L. McClellant, Asst. Atty. Gen., for respondent-appellant; William J. Brown, Atty. Gen. of Ohio, on brief.

Bruce A. Campbell (Court-appointed), Campbell, Boyland & Schwarzwalder, Columbus, Ohio, for petitioner-appellee.

Before PHILLIPS, Chief Judge, and WEICK and MILLER, Circuit Judges.

WILLIAM E. MILLER, Circuit Judge.

This appeal is before the Court for review of a judgment and order of the district court conditionally granting a writ of habeas corpus pursuant to the power vested in that court by 28 U.S.C. § 2241.¹ The case arises from a brutal shotgun slaying for which the appellee, Arthur Ben Lewis, Jr., was indicted, tried and subsequently found guilty of first degree murder by a state trial court jury. It is well to remember that this Court's sole duty in this case, as in all similar cases, is to determine whether the petitioner's constitutional rights were violated, regardless of the evidence pointing to the guilt of the accused.

The single issue presented for resolution is the correctness of the District Court's holding that the appellee's fourth and fourteenth amendment rights were violated by the admission at his trial of evidence obtained from a warrantless seizure and subsequent search of his automobile. The District Court's exhaustive and comprehensive opinion is reported in 354 F.Supp. 26 (S.D.Ohio 1972). Since we are in full agreement with the opinion, we find it unnecessary to do more than to emphasize and further clarify several points made below. Only the skeletal facts relevant to the single search and seizure question need be summarized here.

During the course of investigating this July 19, 1967, slaying, the law enforcement officers focused their attention on the appellee. On July 24, 1967, Delaware County Deputy Sheriff Lavery, one of the officers assigned to the case, talked with the appellee at his place of business and at that time viewed his 1966 Pontiac automobile. From other information gathered in the investigation Lavery believed that the appellee's car had been used to push the murder victim's automobile over a river embankment at the scene of the crime. On September 28, 1967, Deputy Lavery and an official from the State Attorney General's office again interviewed the appellee and on October 9, 1967, the appellee was contacted by telephone and requested to appear the next day at the offices of the Division of Criminal Activities in Columbus, Ohio, for further questioning. Early the next morning, October 10, 1967, Deputy Lavery obtained a warrant for the appellee's arrest but did not attempt to procure a warrant for the search of his car.

The appellee arrived at the offices of the State Attorney General shortly after 10:00 A.M. October 10, 1967, where several staff members of the Division of Criminal Activities and Deputy Lavery questioned the appellee for a substantial part of the day. The arrest warrant was not served on the appellee until approximately 5:00 P.M. that afternoon, an event which occurred shortly after the arrival of his attorneys. Around the time of appellee's arrest the law enforcement officials obtained the keys and the claim check for the appellee's car which was parked in a pay parking facility about a half block from the state offices.² One of the state officials then called a wrecker to seize the automobile. The seizure was effected in this manner, with the result that none of the investigators personally viewed the vehicle or ascertained whether the car was in fact parked in the lot. The seizure was made without obtaining a warrant.

A lab technician viewed the car in the impounding lot on October 11, 1967, and searched the trunk of the car. He also removed paint samples from the exterior surface of the appellee's automobile, consisting of the outer coat of paint and the two primer coats underneath. At the appellee's trial this technician testified that he found no difference in the color, texture or the order of layering of paint of these samples as compared with foreign paint marks found on the victim's car.

The respondent raises three grounds in attempting to support the warrantless seizure and subsequent search of the appellee's automobile: first, that the search of the automobile was with the consent of the appellee; second, that the search was incident to a valid arrest; and third, that the vehicle itself was an instrumentality of the crime in plain view which the officers had probable cause to believe was used in the commission of a felony. As a corollary to the third contention, the respondent claims that no search was in fact conducted since no items were seized from the interior of the car but rather that the paint scrapings were removed from the exterior surface of the vehicle as a result of a scientific examination of an instrumentality of the crime.

The district court's finding, which we deem to be correct, that the first two contentions were without merit is so fully discussed in its opinion that nothing further need be said with respect to these issues. We confine ourselves to some additional observations concerning respondent's third contention.

Initially, what may be termed a point of semantics needs clarification. The respondent's use of the term "instrumentality of the crime" is an attempt to raise the ghost of an outmoded concept which was laid to rest by the Supreme Court in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), where the Court dispensed with the "mere evidence" distinction which had worked its way into the law of search and seizure. Mr. Justice Brennan's words deserve repetition:

Nothing in the language of the Fourth Amendment supports the distinction between "mere evidence" and instrumentalities, fruits of crime, or contraband. On its face, the provision assures the "right of the people to be secure in their persons, houses, papers, and effects . . .," without regard to the use to which any of these things are applied. This "right of the people" is certainly unrelated to the "mere evidence" limitation. Privacy is disturbed no more by a search directed to a purely evidentiary object than it is by a search directed to an instrumentality, fruit, or contraband. A magistrate can intervene in both situations, and the requirements of probable cause and specificity can be preserved intact. Moreover, nothing in the nature of property seized as evidence renders it more private than property seized, for example, as an instrumentality; quite the opposite may be true. Indeed, the distinction is wholly irrational, since, depending on the circumstances, the same "papers and effects" may be "mere evidence" in one case and "instrumentality" in another. 387 U.S. at 301-302, 87 S. Ct. at 1647.

Mr. Justice Stewart also reiterated the demise of the "instrumentality of a crime" and "mere evidence" distinction in Coolidge v. New Hampshire, 403 U.S. 443, 464, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

The respondent's third contention is thus premised on an unwarranted assumption. As aptly stated by the district court: "The instrumentality theory assumes that any object used in the commission of a crime may be seized at any time without a warrant as long as the officers have probable cause to believe that the object was used in the commission of a crime and the officers are lawfully in a position to view the object." 354 F.Supp. at 41. We fully approve the district court's answer to this premise: "The police cannot seize an automobile on the theory that it is an instrumentality of a crime which is in plain view in calculated disregard for the Fourth Amendment requirement that application be made to a judicial officer for a search warrant absent exigent circumstances." 354 F.Supp. at 41. Since no exigent circumstances existed in this case the respondent's instrumentality theory must fail.³

The district court indicates that for purposes of deciding the case it is "assuming" that the officers were in a position legally to apply the plain view exception to the warrant requirement. However, the facts of this case clearly establish that even though the officers had probable cause to seize appellee's automobile they in fact never observed the vehicle at all but rather merely dispatched a wrecker to the site where they believed the car was parked. Stated in its simplest form there can be no "plain view" when there is no "view" at all. To attach such an extension to the plain view exception to the warrant requirement would undercut the very foundations of fourth amendment protections and consequently such a proposition is untenable. It is for this very reason that Mr. Justice Stewart, in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), emphasized the importance of inadvertence in discovering the evidence when applying the plain view doctrine. We are in accord with this reasoning.⁴ Hence, when law enforcement officers have prior knowledge amounting to probable cause establishing the nexus between the article sought and the place of seizure a warrant must be obtained in order to protect the fourth amendment principle that warrantless seizures are per se unreasonable in the absence of exigent circumstances.

The respondent's contention that no search was in fact conducted of the vehicle because the paint scrapings were removed from the exterior surfaces of the car during a scientific examination of...