People of State of California v. Hurst

• Decision Date: 27 January 1964
• Docket Number: No. 18420.,18420.
• Citation: 325 F.2d 891
• Parties: The PEOPLE OF the STATE OF CALIFORNIA, Robert A. Heinze, Warden, et al., Appellant, v. Arthur Lee HURST, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

325 F.2d 891 (1963)

The PEOPLE OF the STATE OF CALIFORNIA, Robert A. Heinze, Warden, et al., Appellant, v. Arthur Lee HURST, Appellee.

No. 18420.

United States Court of Appeals Ninth Circuit.

December 19, 1963.

Rehearing Denied January 27, 1964.

Stanley Mosk, Atty. Gen., for the State of Cal.; Doris H. Maier, Asst. Atty. Gen., and Edsel W. Haws, Deputy Atty. Gen., Sacramento, Cal., for appellant.

Elke, Farella, & Braun and Jerome I. Braun, San Francisco, Cal., for appellee.

Before HAMLEY, JERTBERG and KOELSCH, Circuit Judges.

JERTBERG, Circuit Judge.

This is an appeal from an order of the district court granting relief in habeas corpus proceedings to Arthur Lee Hurst, a prisoner of the State of California. On October 8, 1959, Hurst was convicted in the Superior Court of the State of California in and for the County of Los Angeles on two counts of possession of narcotics other than marijuana (Calif. Health and Safety Code § 11500). On appeal to the District Court of Appeal of California the conviction was affirmed. 183 Cal.App.2d 379, 6 Cal.Rptr. 483 (July 29, 1960). A petition for habeas corpus was filed with the California Supreme Court and was denied on February 23, 1961. Appellee filed a petition for a writ of certiorari in the Supreme Court of the United States to review the order of the California Supreme Court denying habeas corpus relief. Certiorari was denied, sub nom. Hurst v. McGee, 368 U.S. 843, 82 S.Ct. 70, 7 L.Ed.2d 41 (October 9, 1961). Appellee filed the present petition for a writ of habeas corpus in the district court on June 18, 1962. The district court granted the writ on the ground that appellee's conviction was based upon evidence obtained by an illegal search and seizure, admission of which evidence violated appellee's rights under the Fourth and Fourteenth Amendments to the United States Constitution. Hurst v. People of the State of California, 211 F.Supp. 387 (N.D.Cal.1962).

Jurisdiction of the district court was invoked under the provisions of 28 U.S.C. § 2241(c) (3). Jurisdiction of this court rests in the provisions of 28 U.S.C. § 2253.

The district court's recitation of the facts is not challenged. We hereby adopt and quote that recitation from 211 F. Supp. at 389-390.

"At about 3:30 p.m. on May 18, 1959, Officer Garrahan of the Los Angeles Police Department received an anonymous telephone call at the Narcotics Division office in the Police Building. The person on the telephone stated, `If you want to find two pounds of marijuana, look under the house at 309 West 83d Street,\' and hung up. Garrahan testified that the voice sounded like that of a female, and that he had not heard it before.

"Garrahan, along with Officers Hanks and Grennan, drove to the above address. The building there located was a single-story duplex, with two residences, numbered 307 and 309.

"After parking in front of the duplex, the officers went directly to the residence at 309, whereupon they dispersed to appropriate locations surrounding it. Garrahan went to the front door; Hanks went to the rear of the building; and Grennan, to the side. As Garrahan approached the building, he saw a female through an open window, inside the house. On reaching the front door he knocked once, waited a few moments and knocked a second time, waited a period of time and knocked a third time. Anniece Jones (petitioner\'s co-defendant and common-law wife) then came to the door. Garrahan identified himself as a police officer. Anniece opened the door and he entered. Anniece did not refuse him permission to do so. He did not force his way into the house. Anniece did not say anything until he was inside. Once inside, Garrahan told Anniece that the officers had information that there was marijuana at the house and asked her if she would mind their looking around. Anniece replied, `My husband is not here. He will be home in about thirty minutes.\'

"During this period of time, Grennan, at the side of the building, was looking through a screened window into the bathroom. He heard Garrahan knocking on the front door, and immediately saw Anniece enter the bathroom and empty something from an ashtray into the toilet and flush it. He did not, however, see what she flushed down the toilet. He immediately stated in a loud voice that Anniece had flushed something down the toilet, walked around to the front of the house, and went inside.

"During this same period of time, Hanks was at the rear of the house, where he noticed that the screen was off a `vent hole\' underneath the bedroom window of 309, and was alongside said hole. The vent hole was about 12 to 14 inches wide and about eight inches high. About six inches inside the hole he saw a large brown package. He could `readily\' see it, standing outside. He reached under the house and got the package, which was about a foot and a half long and six to eight inches in diameter. There were two brown paper bags inside, covering two plastic bags which, in turn, covered a large gray pillowcase. He felt of the pillowcase and felt `a weedy, leafy material\' inside one of the bags. He immediately knocked on the rear window and told Garrahan, `The stuff is under the house; place them under arrest.\'

"In the second bag there were two `condoms\' containing a white powder, wrapped in a handkerchief. In the package there was also what looked like a `hypodermic outfit\'. Hanks then entered the house and conducted a thorough search of it. In a purse which was sitting on a dresser in the bedroom he found a bag which contained numerous green seeds, three packages of cigarette papers and a gas bill made out to petitioner at 309 West 83d Street. He found another purse which Anniece said was hers, which contained two green seeds lying loose in the bottom. He also found two hypodermic needles and an eye dropper wrapped in a piece of paper in a `poker chip box\'.

"Petitioner arrived at the house in a Ford automobile about 4:45 p.m. As he walked toward the front door, Grennan and Hanks stepped out, identified themselves, and asked him who he was. Petitioner identified himelf, and was thereupon immediately placed under arrest. Hanks searched the car, and under the dashboard on the driver\'s side he found one brown paper cigarette.

"Officer Grennan had a conversation inside the house with petitioner in which petitioner stated he did not know anything about any marijuana in the house or underneath it. Petitioner admitted knowing that the two needles had been in the house, and claimed that they belonged to a couple of friends of his up north. Petitioner also admitted that he had been `to the joint twice, once for marijuana and once for heroin\', but denied that any of the `stuff\' belonged to him. He also disclaimed any knowledge about the cigarette found in the car.

"The package found under the house contained 20 grams of heroin, four pounds of marijuana and a hypodermic outfit. The seeds found in the purses were marijuana. The cigarette found in the car contained marijuana. All of these items were introduced into evidence over timely and appropriate objection by petitioner. The officers had neither a search warrant nor a warrant for petitioner\'s arrest.

"Both petitioner and Anniece took the stand in their own behalf. Their testimony consisted generally of denials of any knowledge of any of the narcotics which had been found."

Under recent Supreme Court decisions it is clear that the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment render inadmissible in a state criminal trial all evidence obtained as a result of an illegal search and seizure,¹ and that the legality of a state search and seizure is to be measured, for purposes of the exclusionary rule, by the "fundamental criteria" of the Fourth Amendment.² Since the exclusionary rule is itself a Constitutional dictate,³ the question of illegal search and seizure by state authorities of evidence for use in a state criminal trial is cognizable by the federal courts on application for a writ of habeas corpus,⁴ unless there is a state post-conviction remedy still available to the prisoner at the time of filing the application in the federal court.⁵

The keystone question in the instant case remains unresolved by the Supreme Court: whether the Mapp and Ker cases are to be given retroactive effect where, as here, the search, the trial, the motion to suppress, the denial thereof, the conviction, and the exhaustion or expiration of remedies of direct review occurred prior to June 19, 1961, the date of the Supreme Court's decision in Mapp.

The circuit courts which have passed upon the question are in disagreement. Hall v. Warden, Maryland Penitentiary, 313 F.2d 483 (4th Cir. 1963), cert. den. sub nom. Pepersack v. Hall, 374 U.S. 809, 83 S.Ct. 1693, 10 L.Ed.2d 1032 (1963), held that retroactivity follows from the notion that courts but find and declare the law which has always existed but which may have eluded discovery in previous judicial efforts. Gaitan v. United States, supra, challenged the assertion that the later decisions were always the law as departing from reality. Gaitan denied relief in a proceeding under 28 U.S.C. § 2255 concerning pre-Elkins⁶ and pre-Mapp "silver platter" evidence. In a habeas corpus proceeding involving a pre-Mapp state court conviction, the court in United States ex rel. Linkletter v. Walker, 323 F.2d 11 (5th Cir. 1963), denied relief and agreed with the Gaitan decision insofar as it rejected the Hall rationale.

The views of those who disfavor general retroactive application of Mapp are well presented in composite form in the Walker case. Briefly, the argument in that direction runs as follows: Absent both a Constitutional mandate and a clear expression of intent by the Supreme Court, determination of the question should be made by considering the impact of retroactive application upon furtherance of the policy objective of the new interpretation and upon the practical administration of justice. The policy...