Lowe v. Caldwell

Decision Date06 November 1973
Docket NumberCiv. A. No. 3078.
PartiesJoseph LOWE, Jr., Petitioner, v. E. B. CALDWELL, Warden, Georgia State Prison, Reidsville, Georgia, Respondent.
CourtU.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.


LAWRENCE, Chief Judge.

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):

"Why didn't the member of the family just keep the papers if they were just a bunch of harmless papers. There was certainly plenty of time to get a search warrant to search the car. I don't understand the officer's testimony to the effect that they had the defendant in custody and had been told that that was his automobile. It just seems to me that the only purpose in the world of going into the car and getting the papers was the purpose of using them as evidence if they amounted to evidence." 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:

"In our opinion the above facts disclose a situation as devoid of any implications of an unconstitutional search and seizure as that ruled upon in Division 3 of the majority opinion in Coolidge v. New Hampshire, 403 U.S. 443, 484, 91 S.Ct. 2022, 29 L.Ed. 2d 564. Here, as in the Coolidge case, the circumstances are clear in disclosing that the incriminating evidence came into the possession of the law enforcement authorities inadvertently and unmotivated by any desire to locate incriminating evidence by any unlawful search and seizure." 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 "nowhere provides for the exclusion of evidence as the remedy for violation. . . . No examination of that text can find an exclusionary rule by a mere process of construction."

The history of the Rule can be told in four cases:

"A dictum in Boyd v. United States 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 suggested for the first time that evidence obtained in violation of the fourth amendment should be inadmissible in court. After being ignored for thirty years, that suggestion became law in the federal courts in 1914 in Weeks v. United States 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652. In 1949 the fourth amendment right to immunity from unreasonable search and seizure was recognized as applicable to state as well as to federal action in Wolf v. Colorado 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, but the Court declined to impose the exclusionary rule as a required method of enforcement. Finally, in Mapp v. Ohio, decided in 1961, the Court imposed the exclusionary rule on the states, holding that the failure to exclude evidence that state officers had obtained by an unreasonable search and seizure violated the defendant's rights under the due process clause of the fourteenth amendment."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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4 cases
  • U.S. v. Ochs
    • United States
    • U.S. Court of Appeals — Second Circuit
    • March 13, 1979
    ...when there was no telling when Narday might show up and demand the return of the car and its contents. See Lowe v. Caldwell, 367 F.Supp. 46, 53 n. 11 (S.D.Ga.1973), Vacated and remanded sub nom. Lowe v. Hopper, 501 F.2d 952 (5 Cir. 1974), Adhered to, 400 F.Supp. 970 (S.D.Ga.), Aff'd, 520 F.......
  • Cahill v. Cedar County, Iowa
    • United States
    • U.S. District Court — Northern District of Iowa
    • December 5, 1973
  • State v. McDougal
    • United States
    • Wisconsin Supreme Court
    • May 6, 1975
    ...F.2d 280, 283, certiorari granted; Cady v. Dombrowski (1973), 413 U.S. 433, 442, 93 S.Ct. 2523, 37 L.Ed.2d 706.5 See: Lowe v. Caldwell (D.C.S.D.Ga.1973), 367 F.Supp. 46; People v. Sullivan (1971), 29 N.Y.2d 69, 323 N.Y.S.2d 945, 272 N.E.2d 464; State v. Wallen (1970), 185 Neb. 44, 173 N.W.2......
  • Lowe v. Hopper
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    • U.S. District Court — Southern District of Georgia
    • March 17, 1975
    ...for the writ of habeas corpus pursuant to 28 U.S.C. § 2254 is again denied. 1 Lowe v. State, 230 Ga. 134, 195 S.E.2d 919. 2 Lowe v. Caldwell, D.C., 367 F.Supp. 46. 3 Lowe v. Hopper, 501 F.2d 4 Up to the time this was written Lieutenant David W. Reiser of the County Police had not testified.......

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