Poindexter v. Wolff

• Decision Date: 04 November 1975
• Docket Number: No. CV74-L-7.,CV74-L-7.
• Citation: 403 F. Supp. 723
• Parties: Edward POINDEXTER, Petitioner, v. Charles L. WOLFF, Jr., as Warden of the Nebraska Penal and Correctional Complex, Respondent.
• Court: U.S. District Court — District of Nebraska

403 F. Supp. 723

Edward POINDEXTER, Petitioner, v. Charles L. WOLFF, Jr., as Warden of the Nebraska Penal and Correctional Complex, Respondent.

No. CV74-L-7.

United States District Court, D. Nebraska.

November 4, 1975.

COPYRIGHT MATERIAL OMITTED

Alan Saltzman, Lincoln, Neb., for petitioner.

Mel Kammerlohr, Asst. Atty. Gen., for respondent.

MEMORANDUM OF DECISION

URBOM, Chief Judge.

Edward Poindexter, an inmate in the Nebraska Penal and Correctional Complex, has petitioned for a writ of habeas corpus. In response to that petition this court on May 2, 1975, conducted an evidentiary hearing to determine (1) whether the petitioner has standing to contest the search of David Rice's house on August 22, 1970; (2) if such standing exists, whether the decision in Rice v. Wolff, 388 F.Supp. 185 (U.S.D.C. Neb.1974), affirmed 513 F.2d 1280 (8th Cir. 1975), cert. granted 422 U.S. 1055, 95 S.Ct. 2677, 45 L.Ed.2d 707 (1975), is binding on all parties and collaterally estops them from presenting additional evidence about the constitutionality of the search in question; (3) whether the police had probable cause to arrest the petitioner and thereafter to search his clothing; and (4) whether the petitioner's due process rights were violated at his trial through the introduction of insufficient, coerced, and unduly prejudicial evidence and the denial of his request for a separate trial.

The circumstances of the arrest and conviction of this petitioner have been recited in Rice v. Wolff, supra, and need no extensive recounting. Edward Poindexter was arrested on August 22, 1970, on charges of conspiracy to murder a police officer, Larry D. Minard, Sr. Officer Minard was killed on August 17, 1970, while examining a suitcase at 2865 Ohio Street in Omaha, Nebraska, where he had gone in response to a telephone call. The suitcase, which contained dynamite and was constructed to explode when moved, was activated, and the explosion killed Officer Minard. The Omaha police department's ensuing investigation led them to suspect that members of the National Committee to Combat Fascism (hereinafter referred to as the NCCF) had planted the bomb. Shortly after Poindexter was first arrested, his clothes were searched and dynamite particles were found which were similar to those used in the suitcase bomb. Poindexter later was convicted in the courts of Nebraska for the first degree murder of Officer Minard.

I. STANDING TO CONTEST SEARCH

In Rice v. Wolff, 388 F.Supp. 185 (U. S.D.C.Neb.1974), affirmed 513 F.2d 1280 (C.A. 8th Cir. 1975), cert. granted 422 U.S. 1055, 95 S.Ct. 2677, 45 L.Ed.2d 707 (1975), this court held that the search of David Rice's home on August 22, 1970, was unconstitutional and that all evidence seized pursuant to that search should have been suppressed at Rice's trial. Because of the use of this evidence at the state court trial, this court ordered that Rice be released or retried. Rice and Poindexter were tried together in the state court. Poindexter now alleges that he was prejudiced by the use against him of the same evidence illegally seized from the Rice house. In a memorandum opinion of April 30, 1975, I ruled that the mere fact that Poindexter and Rice were tried together does not bestow upon Poindexter standing to contest the search of the Rice home. Whether Edward Poindexter has the required standing will be considered, therefore, on factors beyond his codefendant status.

A point of embarkation is the following language in Spinelli v. United States, 393 U.S. 410, p. 412, 89 S.Ct. 584, p. 587, 21 L.Ed.2d 637 (1968), footnote 2, p. 412:

"We agree with the Court of Appeals that Spinelli has standing to raise his Fourth Amendment claim. The issue arises because at the time the FBI searched the apartment in which Spinelli was alleged to be conducting his bookmaking operation, the petitioner was not on the premises. Instead, the agents did not execute their search warrant until Spinelli was seen to leave the apartment, lock the door, and enter the hallway. At that point, petitioner was arrested, the key to the apartment was demanded of him, and the search commenced. Since petitioner would plainly have standing if he had been arrested inside the apartment, Jones v. United States, 362 U.S. 257, 267 80 S.Ct. 725, 734, 4 L.Ed.2d 697 (1960), it cannot matter that the agents preferred to delay the arrest until petitioner stepped into the hallway — especially when the FBI only managed to gain entry into the apartment by requiring petitioner to surrender his key."

In Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1967), the United States Supreme Court stated:

"Furthermore, the Amendment does not shield only those who have title to the searched premises. It was settled even before our decision in Jones v. United States, 362 U.S. 257 80 S.Ct. 725, 4 L.Ed.2d 697, that one with a possessory interest in the premises might have standing. . . . In Jones, even that requirement was loosened, and we held that `anyone legitimately on premises where a search occurs may challenge its legality . . . when its fruits are proposed to be used against him.' 362 U.S., at 267 80 S.Ct. 725 at 734. The Court's recent decision in Katz v. United States, 389 U.S. 347 88 S.Ct. 507, 19 L.Ed.2d 576 also makes it clear that capacity to claim the protection of the Amendment depends not upon a property right in the invaded place but upon whether the area was one in which there was a reasonable expectation of freedom from governmental intrusion. . . ."

392 U.S. at 367-68, 88 S.Ct. at 2123.

In Mancusi the Supreme Court held that the petitioner had standing to contest the seizure of certain records where the search took place in the petitioner's office, even though it was not a private office but was a single room shared by several. The petitioner spent a "considerable amount of time" in the office and had custody of the documents at the time of their seizure. Although the petitioner did not claim that the documents were seized in an area especially reserved for his use, the court held that it was still proper to confer standing upon him. DeForte could "reasonably have expected that only those persons office personnel and their personal or business guests would enter the office, and that records would not be touched except with their permission or that of union higher-ups." 392 U.S. at 369, 88 S.Ct. at 2124. While DeForte had little expectation of absolute privacy, he did have a reasonable expectation of freedom from governmental intrusion and that expectation supplied sufficient standing for him to contest the search.

A more recent discussion of standing is in Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973). There the Supreme Court held that the petitioners had no standing to contest the search and seizure of a codefendant's store because they:

". . . (a) were not on the premises at the time of the contested search and seizure; (b) alleged no proprietary or possessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure. . . ."

411 U.S. at 229, 93 S.Ct. at 1569.

Given Spinelli, Mancusi and Brown as guideposts, I must require that Poindexter persuade me that he, as distinguished from Rice, had a reasonable expectation of freedom from governmental intrusion into Rice's home.

Poindexter was in the custody of the Omaha police department at the time of the search of David Rice's house. He was not on the Rice premises at the time of the search and had not immediately departed from them. His conviction was not of an offense which included possession of dynamite as a necessary element of that offense. Therefore, any reasonable expectation of his to be free of governmental intrusion at Rice's house must emanate from a relationship, akin to a property interest, which he had with the Rice house or the seized property at the time of the search.

The testimony before this court with regard to the petitioner's interest in the Rice home leads to the following findings of fact:

Poindexter spent most of his days during the several weeks before his arrest at the NCCF headquarters, which was at 3508 North 24th, and most of his nights at the NCCF headquarters or at his mother's home at 3415 North 25th and his mother's home was his mailing address; Poindexter during the several weeks before the search was a frequent visitor to the Rice residence, 2816 Parker, sometimes visiting two or three times a day and sometimes not at all for several days; on those occasions when he gained access to the Rice house when Rice was not present he asked Rice for a key and Rice either handed him one or left one for him at NCCF headquarters or on a ledge or under the door mat at the Rice house; Poindexter had musical records and some items of clothing at the Rice house because he liked to go there to relax and sometimes exchanged clothing with one or two others who also did not live at the Rice house but who also sometimes left clothing there; and Poindexter was at the Rice house on August 22, 1970, at some time before his arrest for the purpose of dropping off some food that had been left over from a conference at NCCF headquarters and gained entrance to the Rice house on that occasion by finding a key on the ledge at the door, although Rice was out of town.

The petitioner also testified that David Rice had said that he, Poindexter, could use the house whenever he wished, but in view of the other testimony it is apparent that Poindexter did not accept any statement Rice made to him as giving him any special right or privilege as to Rice's house. The statement, if made, was a friendly gesture and nothing more.

With these facts before it, it is the opinion of this court that Edward Poindexter does not possess the requisite standing to contest the search of David Rice's house. The...