Lowe v. Caldwell
Decision Date | 06 November 1973 |
Docket Number | Civ. A. No. 3078. |
Parties | Joseph LOWE, Jr., Petitioner, v. E. B. CALDWELL, Warden, Georgia State Prison, Reidsville, Georgia, Respondent. |
Court | U.S. District Court — Southern District of Georgia |
John J. Sullivan, Savannah, Ga., for petitioner.
Andrew J. Ryan, III, Chief Asst. Dist. Atty., Savannah, Ga., for respondent.
Joseph Lowe was convicted in Chatham Superior Court of the murder of his wife and of arson. He was sentenced to life imprisonment for murder and to three years on the arson charge. He has filed a § 2254 petition in this Court for the writ of habeas corpus. It is confined to the claim of unconstitutional search and seizure of his automobile resulting in removal therefrom by the police of a packet containing personal papers.
The theory of the prosecution was that the accused burned down his house after killing his wife. At the scene of the fire Sergeant Lowery removed the article which was on the floorboard of Lowe's car. His attention had been called to it by a member of the family of the accused. Lowery testified that he was informed that "some papers and a money bag" were in the car and that they did not wish to be responsible for them. Without a search warrant and not knowing to whom the property belonged, he took possession of it. Petitioner was in custody at the time and gave no permission to anyone to take the effects from the vehicle. Sergeant Lowery said he assumed custody of the package for security reasons.
The pouch was carried to headquarters where later Lowery inventoried the contents. Within the packet was found some insurance policies, tax receipts and other papers, including an envelope containing a letter in Lowe's hand to his wife. No date appeared thereon. Apparently it was written several months before the crime.
While there was independent evidence warranting a finding of guilt of murder and arson, the letter was highly damaging to the defense. The Supreme Court of Georgia said that "The letter which the defendant sought to suppress and to exclude from the evidence, the contents of which the defendant subsequently sought to explain as only a joke, is strongly indicative of a contemplated murder-suicide, and is somewhat testamentary in character." Lowe v. State, 230 Ga. 134, 135, 195 S.E.2d 919, 920.
At the trial petitioner's counsel moved to suppress such evidence and there was a hearing outside the presence of the jury. Counsel contended that in searching the car the police were "just ransacking to see what was available." The State replied that there was no search and that the officer simply "became the custodian of the papers". Transcript, 11, 14. Judge Harrison commented (Tr. 13):
Transcript, 13.
The trial judge overruled the motion to suppress the letter "under the peculiar facts and circumstances involved in this situation".1 Tr. 14. Following a verdict of guilty and a denial of the motion for new trial, defendant appealed. The Georgia Supreme Court affirmed the ruling below, holding:
230 Ga. 136, 195 S.E.2d 921.
Defendant then filed a petition for writ of habeas corpus in the Superior Court. An evidentiary hearing was held in March, 1973. Lowe relied solely on the claim of unlawful search and seizure. At the habeas corpus hearing Lowery testified that at the time he removed the package from the car defendant was under arrest; that other policemen were present; that there was nothing to prevent a search warrant being obtained; that the automobiles near the burning building were not endangered, and that the pouch did not appear to contain any weapon or contraband. At the conclusion of the hearing Judge Harrison remanded the prisoner to the custody of the Sheriff, stating that he was bound by the decision of the Supreme Court of Georgia.
Taking stock of what occurred in the State courts in respect to the search and seizure question, we find: (1) an evidentiary hearing out of the jury's presence at the start of the trial on the motion to suppress the letter; (2) testimony during the trial involving such incriminating evidence; (3) an appeal from the denial of a motion for new trial and a unanimous affirmance by the Supreme Court of Georgia of the trial judge's search and seizure ruling; (4) a subsequent State habeas corpus proceeding and another evidentiary hearing on the constitutional issue at the conclusion of which the trial judge denied the issuance of the writ.
All this has accomplished but little in the way of finality of the conviction for murder besides exhaustion of state remedies necessary to seeking federal habeas corpus relief. What has occurred in the State courts in regard to the search and seizure question is largely a going through of motions, a mechanical performance of a routine — sauter le bâton, to use a French expression, like a monkey "jumps the stick". It hardly need be added that state judges resent this perfunctory role in federal post-conviction law.
Federal courts must make their own independent determination as to whether a search and seizure offends Federal search and seizure standards. Peters v. Rutledge, 397 F.2d 731 (5th Cir.); State of Montana v. Tomich, 332 F.2d 987 (9th Cir.); Durham v. Haynes, 258 F.Supp. 452, aff'd. 368 F.2d 989 (8th Cir.), cert. den. 390 U.S. 959, 88 S. Ct. 1054, 19 L.Ed.2d 1154. The Fourth Amendment is enforceable against the states by the same sanction of exclusion as is used against the Federal Government (Mapp v. Ohio, supra, 367 U.S. 643 at 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081) and "application of the same constitutional standard prohibiting `unreasonable searches and seizures.'" Ker v. California, 374 U.S. 23 at 30-31, 83 S.Ct. 1623 at 1628, 10 L.Ed.2d 726.
After this Court has ruled on the constitutional issue, the post-conviction carousel will turn to the Fifth Circuit Court of Appeals. From there certiorari lies to the Supreme Court of the United States. The prisoner's challenge of the conviction may then start out anew in the state court on different constitutional grounds.2 In many state cases where a substantial sentence has been imposed resort to the federal courts for habeas corpus relief is a continuing and almost endless process. As this Court remarked on another occasion and in a similar situation, "surely there is a better approach to the problem than the somewhat Bedlamite one illustrated by the present case." Gornto v. McDougall, D.C., 336 F.Supp. 1372, 1376. By way of postscript, the procedural gallimaufry that the federal courts and Congress have contrived is apparently here to stay.3 Therefore, distasteful though the task may be, I am compelled to independently review and evaluate the conclusions reached by the State courts as to the search and seizure here involved.
Under the Fourth Amendment, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Mr. Justice Black pointed out in Coolidge (403 U.S. p. 496, 91 S.Ct. p. 2053) that the Amendment
The history of the Rule can be told in four cases:
4
The rationale of the Exclusionary Rule is that it is "the only effective deterrent to lawless police action". Linkletter v. Walker, 381 U.S. 618, 636, 85 S.Ct. 1731, 1741, 14 L.Ed.2d 601. "Experience has taught that it is the only effective deterrent to police misconduct in the criminal context, and that without it the constitutional guarantees against unreasonable searches and seizures would be a mere `form of words'." Terry v. Ohio, 392 U.S. 1, 12, 88 S.Ct. 1868, 1875, 20 L.Ed.2d 889.5 Opponents...
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