Mueller v. Powell

• Decision Date: 02 June 1953
• Docket Number: No. 14720.,14720.
• Parties: MUELLER v. POWELL et al.
• Court: U.S. Court of Appeals — Eighth Circuit

203 F.2d 797 (1953)

MUELLER v. POWELL et al.

No. 14720.

United States Court of Appeals Eighth Circuit.

April 24, 1953.

Rehearing Denied June 2, 1953.

Victor B. Harris, St. Louis, Mo. (James T. Blair, Jr., Jefferson City, Mo., and Smith, Harris & Hanke, St. Louis, Mo., on the brief), for appellant.

Warren D. Welliver, Columbia, Mo. (Don C. Carter, Sturgeon, Mo., R. E. Ausmus, Centralia, Mo., and Alexander, Ausmus, Harris & Welliver, Columbia, Mo., on the brief), for appellees Powell and Wedemier.

W. E. Kemp, Kansas City, Mo. (Elliot Norquist, James P. Tierney and Kemp, Koontz, Clagett & Norquist, Kansas City, Mo., on the brief), for appellee Ginn.

Before SANBORN, RIDDICK, and COLLET, Circuit Judges.

COLLET, Circuit Judge.

Robert P. Mueller sued the sheriff of Boone County, Missouri, and two of his deputies for redress for the deprivation of his rights under the Constitution of the United States. The action was brought in the United States District Court under the Civil Rights Act.¹ The cause was tried by the court sitting as a jury. The judgment was for the defendants, from which judgment this appeal is prosecuted.

The complaint was in three counts. The first count sought recovery against the officials for arresting appellant illegally without a warrant therefor, holding him incommunicado and subjecting him to questioning all night with no opportunity to sleep or rest when complainant says they knew he was innocent. The second count charges an unlawful conspiracy between the officers to commit the acts made the basis for the charge stated in the first count. The third count charges an unlawful conspiracy on the part of the officers to influence a grand jury to indict appellant.

The trial court sustained a motion for summary judgment in favor of one of the deputies, M. Stanley Ginn, on the ground that he was an honorary deputy sheriff, a deputy in name only, and his participation in the incidents involved was not under color of state law. After trial the trial court made and entered findings of fact to the effect that the officers had probable cause for arresting appellant and did not try to influence the grand jury. It was upon these findings, seventy-four in number, that the conclusion and judgment were based that appellant was not entitled to recover. D.C., 105 F.Supp. 344.

Appellant presents four assignments of error. First, that the trial court erred in not finding that the sheriff and his two deputies were liable to appellant under the Civil Rights Acts for depriving him of rights guaranteed to him under the Constitution of the United States. Second, that the trial court erred in finding that appellees were justified in arresting appellant without a warrant, in holding him incommunicado all night in a farm house, and in interrogating him during that time without permitting him to sleep or rest. Third, that the court erred in finding that M. Stanley Ginn was not acting under color of state law. And fourth, that the court erred in not finding that appellees attempted to influence the grand jury unlawfully to indict appellant and deprive him of the equal protection of the law guaranteed under the Constitution.

The first assignment is predicated upon the assumption that appellant was deprived of his liberty without due process of law by state officers acting as such, and that under those circumstances he has a cause of action under the Civil Rights Acts. If the assumption be correct the conclusion is also correct. Which immediately brings us to the question whether he was deprived of his liberty without the due process of law assured under the Constitution of the United States.

The "due process" guaranteed by the federal Constitution to all citizens is a practical, living thing that is not to be measured entirely by the state's concept of due process evidenced by state procedural laws designed and intended to afford the protection of state constitutional guarantees of the same right. If the procedure prescribed by the state actually affords the character of due process contemplated by the federal Constitution, and is followed, there is no denial of the right under the federal Constitution. While if it does not, or is not followed, the right has been violated. Smith v. State of Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84; Hill v. State of Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559.

We do not understand that it is or could be seriously contended that the Missouri constitutional and statutory safeguards against unlawful arrests are inadequate or do not, when followed, constitute the character of due process guaranteed by the federal Constitution. The charge is, as embraced in the second assignment of error, that the proof showed such a lack of compliance with the state procedure that the result was an unlawful arrest under Missouri law and a fortiorari under the federal Constitution, and that the trial court erred in finding that appellant's arrest was lawful under the latter. For, as stated in Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495, the problem is not whether state law has been violated but whether the inhabitant of a state has been deprived of a federal right by one who acts under color of any state law. But since, as noted heretofore, the Missouri procedure, if followed, is synonymous with due process under federal law, we may use as the test of lawfulness of appellant's arrest the requirements for a lawful arrest under the state law.

The Missouri statutory procedure for a lawful arrest and detention is amply indicated by such cases as McKeon v. National Casualty Co., 216 Mo.App. 507, 270 S.W. 707; State v. Williams, 328 Mo. 627, 14 S. W.2d 434; State of Missouri ex rel. and to Use of Ward v. Fidelity & Deposit Co., 8 Cir., 179 F.2d 327; State v. Nolan, 354 Mo. 980, 192 S.W.2d 1016; State v. Bailey, 320 Mo. 271, 8 S.W.2d 57.

From those decisions it is readily apparent that under the law of Missouri an officer charged with the duty of enforcing the law, such as the appellees herein, is justified in making an arrest without a warrant, although no felony has actually been committed, but is suspected, and there is reasonable or probable grounds to suspect that the person arrested committed the crime. Our question becomes one of probable cause.

What constitutes probable cause or reasonable ground for suspicion that a person arrested without a warrant committed the offense for which he was arrested must be defined in general terms and the general definition applied to each case as the facts peculiar to each case warrant. This court, in State of Missouri ex rel. and to Use of Ward v. Fidelity & Deposit Co., 8 Cir., 179 F.2d 327, 333, quoted the following from Russo v. Miller, 221 Mo.App. 292, 3 S.W.2d 266, 269, as the law of Missouri:

"* * * What would constitute such a reasonable and probable ground of suspicion is incapable of exact definition, beyond saying that the officer must not act arbitrarily, but must exercise his discretion in a legal manner, using all reasonable means to prevent mistakes. In other words, he must be actuated by such motives as would influence a reasonable man acting in good faith; and he must proceed upon the basis of a belief in the person's guilt, derived either from the facts or circumstances within the officer's own knowledge, or upon information imparted to him by credible and reliable third parties, provided, however, that there are no circumstances known to the officer of sufficient import as materially to impeach the information so received."

In determining the sufficiency of the evidence to support the trial court's finding that appellant's arrest was based upon probable cause to suspect that appellant had committed the offense for which he was arrested and that his arrest was not based on mere suspicion, held insufficient in McKeon v. National Casualty Co., supra, the evidence must be viewed in the light most favorable to the factual conclusion reached by the trier of the facts. Stated in that manner, those facts were as follows.

On the evening of March 18, 1950, Janet Christman, a young lady fifteen years old, was raped and brutally murdered while acting as a baby-sitter at the home of Mr. and Mrs. Edward Romack, near the city limits of Columbia, Boone County, Missouri. The crime was discovered when the Romacks returned to their home after midnight and found the lifeless body of Miss Christman, partially nude, upon the floor of the living room. She had been killed by strangulation with an electric iron cord tied tightly around her neck. The cord had been cut from an electric iron kept in a bedroom adjoining the living room. Appellant was about 27 years of age, a captain in the United States Air Force with a distinguished military record in World War II. He had been a close friend of Romack since boyhood. After their marriages and appellant's return to Columbia, they continued their friendship and the families frequently entertained each other in their homes. Appellant was familiar with the Romack home. He had on occasion used the electric iron and knew where it was kept. He knew Janet Christman, and he and his wife had employed her as a baby-sitter in their home on several occasions. He had expressed admiration for Janet's figure and her mature development, and expressed the opinion she was a virgin. There was testimony he had talked much about "trying to get a virgin". He had made advances to Mrs. Romack and she had told the officers she thought appellant was oversexed. He had suggested to Romack that they go to a parking and picnic area for students, known as Hinkson Creek, and "get a nice young girl".

The time of the murder was fixed at between 10 p. m. and midnight. On the head of the victim were several small round wounds which could have been caused by a mechanical pencil such as one appellant was known to carry. There was evidence of a considerable struggle in the kitchen, living room and bedroom. Miss...