Moss v. Cox

• Decision Date: 26 March 1970
• Docket Number: Civ. A. No. 5605-R.
• Citation: 311 F. Supp. 1245
• Parties: David Muriel MOSS v. J. D. COX, Superintendent of the Virginia State Penitentiary.
• Court: U.S. District Court — Eastern District of Virginia

311 F. Supp. 1245

David Muriel MOSS v. J. D. COX, Superintendent of the Virginia State Penitentiary.

Civ. A. No. 5605-R.

United States District Court, E. D. Virginia, Richmond Division.

March 26, 1970.

James M. Lumpkin, Richmond, Va., for petitioner.

Robert Y. Button, Atty. Gen. of Virginia, Richmond, Va., for respondent.

MEMORANDUM

MERHIGE, District Judge.

This is an application by a Virginia prisoner for a writ of habeas corpus.

On September 24, 1969, this Court dismissed the allegations of ineffective representation and interrogation without counsel, but held that the issue of the admissibility of certain marijuana, used in evidence in Moss' trial for possession of that drug, might have merit. A plenary hearing was ordered, and counsel was appointed to represent the petitioner.

At the hearing counsel for both parties stipulated to submit the factual issues for resolution on the trial record. The arresting officer, Detective Whitaker, was present at the hearing, but both sides stated that his testimony nearly four years after the events in question, if added to his statements in the record of the trial on June 30, 1966, would probably not bring the Court any closer to the facts.

Moss was arrested on April 24, 1966, in the Greyhound bus station in Richmond, Virginia, along with one Hocker, by Detective C. Whitaker, Jr., of the Richmond Police. This was at about 8:00 p. m. About two hours earlier two Negro males had picked a billfold from the pocketbook of one Mrs. Howard at the Trailways bus station in Richmond, which is located about four blocks from the Greyhound station. Detective Whitaker had been advised of that larceny; the thieves had been described to him as "a colored male approximately five feet nine or ten, wearing a red sweater. The other was a colored male approximately five-ten or eleven, wearing a blue sweater." (Tr. 14).

Detective Whitaker testified that he was motivated to arrest Moss and Hocker by his observations of their behavior at the Greyhound terminal. His suspicions were aroused when he saw the two walking up to the buses that were boarding passengers:

At first they were walking up to buses that was out on the dock. At that time I stood back and watched them, then they went inside the bus station and that was when David Moss picked up a newspaper and at that time—excuse me—at that time I walked up to them, approached them, and asked where they were traveling to. They said they weren't going anywhere, didn't have any tickets, so I asked why they kept approaching different buses that were loading on the dock, and that is when I told them that they were under arrest for ill-fame, to-wit, (unintelligible). (Tr. 14).

The men were charged with "ill-fame, to-wit, suspected of being pick-pockets" (Tr. 13). The trial court concluded, it is plain from the record, that the arrest was predicated on the defendants' behavior as the officer observed it (Tr. 16).

On cross-examination the detective stated that the arrest of the two was, in effect, on suspicion:

Q. Well, what did you suspect at that time?

A. I suspected him of being possible pick-pockets.

Q. Of what?

A. Ill-fame, to-wit, possible pick-pockets.

Q. Pick whose pockets?

A. The way he kept approaching different buses, that's why I suspected him of being possible pick-pockets.

Q. But whose pockets had you suspected him of picking?

A. No one at that particular time.

Q. Well, at the time after you had conducted your search and found nothing relative to any pick-pocket, was it your intention to release him?

A. No, it was not.

Q. What were you going to do then?

A. I was going to carry the charge through and take it to Court.

Q. And charge them with being a possible pick-pocket?

A. Charge them with ill-fame.

Q. To-wit?

A. To-wit.

Q. A possible pick-pocket?

A. That's correct. (Tr. 21-22)

Even on redirect examination the officer would not respond to the suggestion that he had in fact arrested the petitioner and Hocker for the larceny which had been reported to him:

Q. Officer, let me ask you this. You picked up these two because they fitted the description, I believe you testified, fitted the description of two persons you were looking for?

A. In other words, I picked them up because of the suspicion they were creating walking back and forwards to different lines (Tr. 27).

Detective Whitaker took the petitioner and his companion to his nearby automobile (Tr. 11), ordered them to stand leaning against the car, and began to search the two (Tr. 19). Hocker's left arm was handcuffed to Moss' right arm (Tr. 26). Whitaker stood between the two prisoners at this point (Tr. 26-27). He found a partly consumed marijuana cigarette on Hocker's person (Tr. 11-12). While he was running through Hocker's pockets, the detective saw the petitioner pull an unsmoked marijuana cigarette out of his pocket with his left hand and drop it on the ground (Tr. 12, 26-27). This was introduced at trial against Moss (Tr. 41-42). Moss was searched at headquarters, but nothing of interest was found (Tr. 23). The arresting officer stated on trial that when he talked with Hocker and the petitioner in the Greyhound station, it was not "affirmed in his mind" that these were the two who had been described in the bulletin about the larceny in the other bus station; this did not occur until they were taken to headquarters and put in a lineup (Tr. 15). The respondent's brief sets out the sequence of events:

The petitioner and his companion were taken then to a magistrate where warrants were obtained charging petitioner and Hocker with ill-fame. Because petitioner and Hocker matched the description broadcast earlier in the evening, a lineup was conducted at which time petitioner and Hocker were identified by the victim (see transcript of trial of June 30, 1966, pp. 64-70, 72, 90). Warrants were then secured for grand larceny. All of the above occurred within a period of two hours. After the seized objects were analyzed, warrants were then obtained for possession of marijuana.

One of the points asserted by Moss on direct appeal was the admission in evidence of the fruits of a search following an illegal arrest. The Supreme Court of Appeals of Virginia refused his petition for a writ of error on October 10, 1967; the exhaustion requirement has therefore been satisfied.

According to prison records supplied by the respondent, Moss is now in custody under a series of consecutive terms which do not expire until December 25, 1974. Although his sentence for the narcotics offense may, in the eyes of the Virginia authorities, have expired, he is still "in custody" under it for purposes of federal habeas corpus relief, Tucker v. Peyton, 357 F.2d 115 (4th Cir.1966).

Preliminarily this Court must determine whether a search or a seizure of which Moss can complain took place, for even if an arrest is illegal, the prosecution which follows is not for that reason constitutionally bad. White v. Peyton, Civil Action No. 5081, mem. decis. (E.D.Va., April 19, 1968).

Respondent contends that the marijuana that Moss discarded was at that point abandoned property, discarded in a public place, which an officer might observe and gather up without infringing upon anyone's rights. He cites McClure v. United States, 332 F.2d 19 (9th Cir. 1964); United States v. Zimple, 318 F. 2d 676 (7th Cir.) cert. denied 375 U.S. 868, 84 S.Ct. 128, 11 L.Ed.2d 95 (1963); and Jackson v. United States, 112 U.S. App.D.C. 191, 301 F.2d 515, cert. denied 369 U.S. 859, 82 S.Ct. 947, 8 L.Ed.2d 17 (1962).

This Court has concluded, however, that the petitioner has standing to complain of the introduction of the cigarette as the product of an illegal arrest. In Jackson v. United States, supra, the officer whose approach apparently prompted the defendant to jettison evidence from an automobile was acting quite legally in questioning the driver of the car. In United States v. Zimple, supra, the defendant, in custody, failed in an attempt to discard evidence surreptitiously. The evidence was held admissible. The arrest and detention in that case, though, seems to have been unquestionably legal. United States v. Zimple, supra, 318 F.2d 679. In the instant case, the petitioner maintains that the arrest was illegal, and the respondent does not deny that the evidence came to light after Moss was in custody and when a search was imminent.

Property which is truly abandoned may well be subject to seizure without probable cause, at least in public places or in places which the movant had abandoned, or where he lacked standing for other reasons. Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L. Ed.2d 668 (1960); Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L. Ed. 898 (1924); Parman v. United States, 130 U.S.App.D.C. 188, 399 F.2d 559, cert. denied 393 U.S. 858, 89 S.Ct. 109, 21 L.Ed.2d 126 (1968); Friedman v. United States, 347 F.2d 697 (8th Cir. 1965); United States v. Minker, 312 F. 2d 632 (3d Cir.1962); People v. Edwards, Cal., 80 Cal.Rptr. 633, 458 P.2d 713 (1969); State v. Chapman, 250 A.2d 203 (Me.1969). Such a seizure would not be unconstitutional, furthermore, merely because an arrest was made soon thereafter, and the arresting officer may well base his probable cause on his observations of an individual discarding some legally significant object. Jackson v. United States, supra; Trujillo v. United States, 294 F.2d 583 (10th Cir. 1961); Burton v. United States, 272 F. 2d 473 (9th Cir.1959); United States v. DeCiccio, 190 F.Supp. 487 (E.D.N.Y. 1961); Branning v. State, 222 So.2d 667 (Miss.1969). In such instances the legality of the arrest is irrelevant to the issue of the admissibility of evidence seized prior thereto. In all of these cases the officer was conducting himself in a manner to which the defendant had no right to object when the material was seized.

When the material which the defendant seeks to exclude came into the possession of the police subsequent to the arrest, however, the legality of...