Meade v. Cox, Civ. A. No. 69-C-117-A.

• Decision Date: 16 February 1970
• Docket Number: Civ. A. No. 69-C-117-A.
• Citation: 310 F. Supp. 233
• Parties: Kyle Douglas MEADE, Petitioner, v. James D. COX, Superintendent, Virginia State Penitentiary, Respondent.
• Court: U.S. District Court — Western District of Virginia

310 F. Supp. 233

Kyle Douglas MEADE, Petitioner, v. James D. COX, Superintendent, Virginia State Penitentiary, Respondent.

Civ. A. No. 69-C-117-A.

United States District Court, W. D. Virginia, Abingdon Division.

February 16, 1970.

Gerald L. Baliles, Asst. Atty. Gen., Richmond, Va., for respondent.

OPINION and JUDGMENT

DALTON, Chief Judge.

This case comes before the court on a petition for a writ of habeas corpus filed in forma pauperis by Kyle Douglas Meade, a state prisoner, pursuant to 28 U.S.C. § 2241. The petition was filed in the United States District Court for the Eastern District of Virginia, and by order dated November 12, 1969, was transferred to this court.

Petitioner is currently serving a sentence of eighteen years in the Virginia State Penitentiary, pursuant to a judgment of the Circuit Court of Russell County, imposed on July 3, 1967, for murder. The conviction resulted after a trial by jury in which petitioner, represented by court-appointed counsel, entered a plea of not guilty.

After conviction petitioner, with the aid of counsel, filed a notice of appeal and assignment of error. Assigned as error were the grounds on which petitioner is presently seeking habeas corpus relief. After consideration the Virginia Supreme Court of Appeals on March 6, 1968, rejected petitioner's contentions and affirmed the conviction. On October 17, 1968, petitioner filed a petition for a writ of habeas corpus in the Circuit Court of Russell County alleging essentially the same grounds heard on appeal. This petition was denied and dismissed on April 4, 1969, upon review of the record without a plenary hearing. Petitioner has, by presenting his claims to the state court on direct appeal, exhausted his state remedies as required by 28 U.S.C. § 2254. He is not required to raise these same grounds by collateral attack. Grundler v. State of North Carolina, 283 F.2d 798 (4th Cir. 1960).

Petitioner seeks relief on the following grounds: (1) A .22 caliber pistol admitted into evidence was procured through an unlawful search and seizure; (2) Incriminating statements were obtained as the result of illegal detention; (3) The trial court erred in refusing full examination of one witness against the petitioner; (4) Certain jury instructions were improperly permitted; (5) The trial court erred in not striking the Commonwealth's evidence; (6) The failure of the Virginia Supreme Court of Appeals to grant him an appeal or writ of error was a denial of due process.

The facts necessary to make a determination on these claims are not in dispute. On February 12, 1967, petitioner attempted to sell a pistol at a pawn shop in Asheville, North Carolina. The North Carolina police on being informed of this, stopped petitioner and his wife, who were driving a 1966 Chrysler at the time. Petitioner's wife was carrying a .32 caliber Barutta in her pocketbook. Although the tactics used are in dispute, the officers obtained possession of the .32 caliber Barutta. Petitioner's wife was arrested for carrying a concealed weapon, and petitioner was charged with aiding and abetting the carrying of the concealed weapon.

The petitioner and his wife were taken to the police station about two or three miles away, and the Chrysler was parked outside the station. Petitioner was questioned about the ownership of the Chrysler and the .32 caliber Barutta. Without obtaining a search warrant, the police searched the Chrysler about thirty or forty minutes after the arrest, and a .22 caliber pistol belonging to petitioner was found in the glove compartment.

About two or three hours after being taken to the station, the petitioner asked to speak to Officer Edwards, whereupon he related the following story:

While hitch-hiking in Virginia the day before, petitioner was picked up by a man in the 1966 Chrysler. After travelling ten to fifteen miles, the man made improper advances. Petitioner told him he was not that kind of man. The man then turned onto a dirt road. After travelling about two miles, the man stopped the car and they both got out. As the man was coming around the back of the Chrysler, he pointed the .32 caliber Barutta at petitioner and pulled the trigger. The gun did not fire. Petitioner pulled out his .22 caliber pistol and shot the man four times. After picking up the .32 caliber Barutta, petitioner drove off in the Chrysler.

I. SEARCH AND SEIZURE

Petitioner contends that the search of the 1966 Chrysler at the police station and the seizure of the .22 caliber pistol was illegal. The initial question which must be answered is whether the defendant has standing to challenge the search and seizure as being unconstitutional. I am convinced that the Fourth Amendment has not been violated with respect to petitioner.

I do not view standing as an out-moded requirement. The Fourth Amendment was enacted to secure the privacy of the people. See Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697, 702 (1960). If the privacy of a particular person has not been invaded, his Fourth Amendment rights have not been violated.

The leading case on standing is Jones v. United States, supra. Jones held the defendant in that case had standing in one of two ways. First, if possession both convicts and confers standing, standing is automatically conferred. This rule resulted from the contradictory position the government often took — the government alleged possession as the crime, yet denied possession for the purpose of standing. Secondly, anyone legitimately on the premises where a search occurs may challenge the legality of the search and seizure. Jones further held that "this would of course not avail those who, by virtue of their wrongful presence, cannot invoke the privacy of the premises searched." 362 U.S. at 267, 80 S.Ct. at 734, 4 L.Ed.2d at 706.

The petitioner cannot bring himself within either of the two criteria conferring standing as set out in Jones. As to the first requirement, petitioner has not been charged with illegal possession of the .22 caliber pistol. Therefore, the state is not taking the contradictory position that was deemed sufficient in Jones to give standing. The second ground set out in Jones does not apply because petitioner was not lawfully using the Chrysler at the time of his arrest —his possession was larcenous.

In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the court decided the impact of Jones upon nonpossessory offenses. In Simmons two FBI agents went to one of the petitioner's mother-in-law's home and asked to be permitted to search her home in connection with a robbery. There was a dispute whether the mother-in-law gave her consent. The agents uncovered two suitcases in her home. One contained a gun holster, a sack similar to the one used in the robbery, several coin cards, and bill wrappers from the bank robbed. In order to establish standing, one petitioner testified that the suitcase was similar to one he had owned, and that he was the owner of the clothing found inside the suitcase. This testimony was admitted against him at his trial. With regard to standing, the court held:

This Court has never considered squarely the question whether defendants charged with nonpossessory crimes, like Garrett, are entitled to be relieved of their dilemma entirely.

* * * * * *

In these circumstances, we find it intolerable that one constitutional right should have to be surrendered in order to assert another. We therefore hold that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection. 390 U.S. at 391, 392 & 394, 88 S.Ct. at 975 & 976, 19 L.Ed.2d at 1257 & 1259.

Simmons does not apply to the present case. The present petitioner has not been required to testify on possession of the .22 caliber pistol in order to establish standing. The petitioner has not been forced to give up any constitutional right in order to establish standing.

Jones and Simmons are attempts to broaden the basis of standing. Therefore, the standing rules as applied before Jones have force today. Before Jones, the rule was stated that standing was established by either ownership or possession of the seized property or a substantial possessory interest in the premises searched. See Jones v. United States, supra. Also, the implication in Jones and Simmons is that possession or ownership of the property seized, in itself, confers standing.

The court has been unable to discover any case where the either/or proposition has been directly applied. All cases dealing with standing have either had elements of both requirements or neither. No case can be found conferring standing where possession of the seized property was coupled with wrongful presence on the searched premises (as in the present case). In Jones, the defendant was imputed possession of the property for purposes of standing and was legitimately on the premises. In Simmons, the petitioner was in possession of the property and while not on the premises at the time of the search, he had been and could expect in the future to be legitimately on the premises. It would not be inaccurate to say that the petitioner reasonably expected a limited right to privacy in the premises searched. His interest in the premises could not be described as wrongful, as in the present case.

While no case can be found dealing with the exact facts of the present case, the court can find sufficient support for the principle that possession (or imputed possession under Jones) of the seized property will not support standing when coupled with the additional fact of wrongful presence on the premises searched.

In United States v. Konigsberg, 336 F.2d 844 (3rd Cir. 1964), the appellants hijacked 3000 men's suits from New York and took them to a vacant garage in New Jersey. None of the defendants had any lawful...