Morris v. Boles

• Decision Date: 25 October 1967
• Docket Number: No. 11247.,11247.
• Citation: 386 F.2d 395
• Parties: Walter Darrell MORRIS, Appellant, v. Otto C. BOLES, Warden of the West Virginia State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

386 F.2d 395 (1967)

Walter Darrell MORRIS, Appellant, v. Otto C. BOLES, Warden of the West Virginia State Penitentiary, Appellee.

No. 11247.

United States Court of Appeals Fourth Circuit.

Argued May 29, 1967.

Decided October 25, 1967.

George A. Daugherty, Charleston, W. Va., for appellant.

Leo Catsonis, Asst. Atty. Gen., of West Virginia (C. Donald Robertson, Atty. Gen. of West Virginia, and Fred M. Frisk, Jr., Asst. Atty. Gen., of West Virginia, on brief), for appellee.

Before BOREMAN, BRYAN and WINTER, Circuit Judges.

WINTER, Circuit Judge:

The petitioner, a former employee of a supermarket, who was convicted of grand larceny and embezzlement of a substantial quantity of its merchandise, appeals from the denial of a writ of habeas corpus, refused without plenary hearing but after full consideration of the record of proceedings of the state court in which petitioner was convicted.¹ Concededly, petitioner has exhausted available state remedies.² Petitioner complains of the validity of a search, initially made under warrant, the validity of which is sought to be sustained as an incident to lawful arrest, which produced physical evidence used to convict him; the failure of the trial judge to submit the issue of the voluntariness of certain admissions and a written confession to the jury in accordance with the so-called "Massachusetts rule;" and alleged suppression of evidence, sometimes stated as an unconstitutional denial of the right to impeach the crucial testimony of an arresting officer. We deem the district judge's resolution of these issues correct, and we affirm.

Early in 1964, the unexplained disappearance of substantial quantities of merchandise at the North Charleston Kroger store generated an investigation and observance of petitioner for about a month and a half prior to his arrest. The investigation was carried on by store officials and the police. On March 19, 1964, the day prior to his arrest, a police officer observed petitioner place certain items in his coat pocket and remove a marked case of Joe Fazio's spaghetti sauce. The next day, by prearrangement, a police officer was stationed in a panel truck behind petitioner's station wagon on the parking lot, and, when the assistant manager of the store observed petitioner put merchandise into a bag, conceal it and leave the store, he signaled the police officer, who arrested petitioner as he prepared to place the goods in the station wagon.

The contents of the bag were dumped upon the parking lot immediately after the arrest, and petitioner made certain statements and admissions. A partial search of petitioner's vehicle was made but, because a number of people had been attracted to the scene and for the convenience of the police, petitioner was requested to drive his vehicle to the police station, a distance of two or three miles, where the search was completed and the evidence seized.

At police headquarters, petitioner made additional statements and admissions, and approximately an hour after his arrest signed a written, inculpatory statement. He also consented to a search of his home and executed written permission therefor. This search uncovered an additional $2,418.80 worth of Kroger merchandise.

In a pretrial motion, petitioner attacked the validity of the warrant purporting to authorize the search of his station wagon and, at the trial continued the attack on different grounds. The state, which had not theretofore put the warrant in evidence at the trial, determined to rest on the admissibility of the evidence seized as having been seized incident to a lawful arrest. At his trial, petitioner also attacked the voluntariness of the statements and admissions which he made, both at the time of the arrest at the parking lot and at the police station. The jury was excused and testimony was taken for the better part of two days on the issue of the voluntariness of the confessions, at the conclusion of which the trial judge made findings of fact and determined that the admissions, statements and confession were made voluntarily and admissible into evidence.

Additional facts will be stated in connection with the issues on appeal to which they relate.

I

We consider, first, the legality of the search and seizure of physical evidence used to convict petitioner.

At the outset, we refer to certain basic propositions which shape the decision in regard to this contention. A search conducted in reliance on a void warrant may, nevertheless, be valid if, even without a warrant, the search was incident to a lawful arrest. United States v. Gearhart, 326 F.2d 412 (4 Cir. 1964), and cases cited therein. See also, Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927); United States v. Burkhart, 347 F.2d 772 (6 Cir. 1965); Commonwealth ex rel. Ensor v. Cummings, 416 Pa. 510, 207 A.2d 230 (1965). Entirely permissible, therefore, was it for the state in the initial trial to rely on the validity of the search and subsequent seizure as an incident to a lawful arrest and to avoid questions concerning the validity of the warrant.

The law of West Virginia which is to be applied (United States v. Gearhart, supra) validates an arrest, without a warrant, if the arresting officer has probable cause to believe that a felony had been committed. City of McMechen ex rel. Willey v. Fidelity & Cas. Co. of N. Y., 145 W.Va. 660, 116 S.E.2d 388 (1960); State v. McCauley, 130 W. Va. 401, 43 S.E.2d 454; State ex rel. for Use of Brown v. Spangler, 120 W.Va. 72, 197 S.E. 360 (1938). And West Virginia, having a constitutional guarantee against "unreasonable searches," phrased like the Fourth Amendment, follows the federal rule, which permits reasonable searches as an incident to a valid arrest. State v. Taft, 144 W.Va. 704, 110 S.E.2d 727 (1959); State v. Bruner, 143 W.Va. 755, 105 S.E.2d 140 (1958); State v. Andrews, 91 W.Va. 720, 114 S.E. 257 (1922). See also, Harman v. United States, 210 F.2d 58 (4 Cir. 1954).

When these basic rules are applied to the facts which this record establishes, it is clear that the arresting officers had probable cause to believe that petitioner had committed a felony. Not only had one of the arresting officers investigated petitioner's actions for a period of a month and a half, he had observed petitioner committing a felony the day before the arrest and, by prearrangement with store officials, who aided in the investigation of the cause for disappearance of the merchandise, he was advised immediately prior to the actual arrest that petitioner was committing another felony. Petitioner's arrest occurred at a time that he was caught with the fruits of the latest crime.

We think also that the search, which was conducted in two stages, and the subsequent seizure were not unreasonable. The scene of the arrest was at petitioner's station wagon, which was parked in the store parking lot. United States v. Comi, 336 F.2d 856 (4 Cir. 1964). A preliminary search of that station wagon, by petitioner's acceding to a request to produce the keys and to unlock the vehicle, was clearly incident to a lawful arrest, and testimony of what was seen was admissible. However, even though the search began at that time and some items of Kroger merchandise were discovered in the vehicle, petitioner contends that since their seizure did not occur until a short time thereafter, when the vehicle had been driven by petitioner to the police station and the more intensive second stage of the search had been completed the seizure was illegal under the holding in Preston v. United States, 376 U.S. 364, 84 S.Ct. 886, 11 L.Ed.2d 777 (1964), and the physical evidence and testimony concerning it inadmissible in the prosecution. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). As we have previously stated, the vehicle was driven to the police station by petitioner at the request of the arresting officers because petitioner's arrest and the partial search of his vehicle attracted a crowd, and the request was made to avoid undue embarrassment to petitioner and for the convenience of the police. The lapse of time between the arrest and seizure of the incriminating evidence was only that required to drive the station wagon several miles to the police station and that to complete the search.

We find nothing in the Preston case to require the conclusion that the second search and initial seizure were in violation of petitioner's Fourth Amendment rights. In Preston the defendants were arrested for vagrancy while sitting in a parked automobile. The car, which was not searched at the time of the arrest, was taken by the police to a garage at about the same time that the defendants were taken to police headquarters. At a later time the police searched the car and discovered various disguises and other paraphernalia used in a prosecution for conspiracy to commit bank robbery. The search was held to have been unreasonable and the admission of the evidence obtained thereby a violation of the defendant's Fourth Amendment rights.

Clearly, in Preston, the search was not incident to a valid arrest and, hence, was not reasonable. Just as clearly in the case at bar, the search was. Because of the movable nature of a motor vehicle and the fact that petitioner drove it to the police station where the search of it was completed in his presence, the case is no different than if a search of petitioner's person were deferred until he was taken to police headquarters, where a search subsequently disclosed incriminating evidence. Cf. Robinson v. United States, 109 U.S.App.D.C. 22, 283 F.2d 508 (1960); Charles v. United States, 278 F.2d 386 (9 Cir. 1960); Tiffany, McIntyre, and Rotenberg, Detection of Crime: Stopping and Questioning, Search and Seizure, Encouragement and Entrapment (1967 Ed.), pp. 124, et seq.; 58 Journal of Criminal Law, Criminology and Political Science, pp. 18, et seq. (1967).

Petitioner anticipates our reliance on Cooper v. State of California, ...