Lopez v. Burke
| Decision Date | 25 July 1969 |
| Docket Number | No. 17244.,17244. |
| Parties | Adrian Garcia LOPEZ, Petitioner-Appellant, v. John C. BURKE, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Adrian Garcia Lopez, in pro. per.
Robert W. Warren, Atty. Gen. of Wis., William A. Platz, Sverre O. Tinglum, Asst. Attys. Gen. of Wis., Madison, Wis., for appellee.
Before SWYGERT and FAIRCHILD, Circuit Judges, and HOFFMAN, District Judge.1
Petitioner, imprisoned by the State of Wisconsin upon a conviction of burglary, has appealed from an order of the United States District Court for the Eastern District of Wisconsin, dismissing his petition for a writ of habeas corpus. Two previous petitions have been denied by the Wisconsin Supreme Court. In this, his second federal petition, Petitioner asserts two alleged grounds for his release: that his arrest was unlawful, and that the testimony of an alleged accomplice was erroneously admitted into evidence against him.
In support of his first ground, Petitioner asserts that his arrest, effected on the day of the offense, was made before the issuance of a warrant, and was without probable cause. He claims, in addition, that the warrant for his arrest was irregularly issued by the Chief Deputy Clerk of the Circuit Court of Milwaukee County, rather than by a magistrate.
A preliminary examination was subsequently conducted upon a sworn complaint and oral testimony, and Petitioner was bound over for trial. An information was lodged against him, and he was tried and found guilty. He was represented by counsel in these proceedings, and does not question the adequacy of his representation. No claim is made that any evidence produced by a search incident to an unlawful arrest was introduced against him, or that in-custody interrogation produced any confession or admission on his part for subsequent use against him at the trial. In short, he does not charge that the supposed illegality of the arrest in any way affected the trial or contributed to his conviction. Whether he was legally in custody before the preliminary hearing is irrelevant to the legality of his current custody, so long as no consequences traceable to an unlawful arrest can be shown. The bare occurrence of a defective arrest, without more, supplies no grounds for release upon habeas corpus from imprisonment upon conviction. See Fernandez v. Klinger, 346 F.2d 210, 211-212 (9th Cir. 1965); United States ex rel. Langer v. Ragen, 237 F.2d 827 (7th Cir. 1956).
The second ground for the petition concerns the testimony of one Victor Buff. It appears that Petitioner and Buff were arrested together, and that information supplied by Buff served as the basis for the original complaint against Petitioner. Buff later testified at the preliminary hearing, and at the trial. This testimony was erroneously admitted into evidence, according to Petitioner, because Buff had received a promise of immunity from prosecution by the state's attorney who had no authority under state law to grant such immunity, and because the prosecutor conferred privately with Buff upon his initial refusal to testify.
Petitioner enjoys no constitutional right not to be incriminated by the testimony of another,...
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