Poore v. State of Ohio

• Citation: 243 F. Supp. 777
• Decision Date: 10 June 1965
• Docket Number: No. C 65-167,C 65-168.,C 65-167
• Parties: Ralph Arlee POORE, Petitioner, v. STATE OF OHIO et al., Defendants. Newton TOWNSEND, Petitioner, v. STATE OF OHIO et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

243 F. Supp. 777

Ralph Arlee POORE, Petitioner, v. STATE OF OHIO et al., Defendants. Newton TOWNSEND, Petitioner, v. STATE OF OHIO et al., Defendants.

Nos. C 65-167, C 65-168.

United States District Court N. D. Ohio, E. D.

April 9, 1965.

On Motions for Stay of Orders Pending Appeal, June 10, 1965.

Larry L. Inscore, Lutz & Inscore, Mansfield, Ohio, for plaintiffs.

Rex D. Larson, Pros. Atty., William F. McKee, Asst. Pros. Atty., Mansfield, Ohio, for defendants.

CONNELL, Chief Judge.

We have here a petition from an accused in a State criminal prosecution for removal of that prosecution to this Court under Title 28 U.S.C. § 1443, which reads:

"Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:

(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof;

(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law. June 25, 1948, c. 646, 62 Stat. 938."

For his second cause of action, the petitioner seeks the summary exercise of this Court's equitable powers to enjoin further proceedings in the State court and/or an injunction against certain police officers which would preclude them from using any evidence allegedly seized in violation of the plaintiff's constitutional rights. The defendants have joined in an answer which we here treat as a motion to remand and to dismiss the prayer for injunctive relief.

The facts as alleged in the petition, which we must accept as true for present purposes, reveal this sordid tale. On October 4th, 1962, the Grand Jury of Richland County, Ohio, indicted the petitioner here on the charge of sodomy. The evidence upon which the indictment was predicated, and the use of which the petitioner vigorously opposes, was obtained in the following manner: Police officers of the Mansfield, Ohio Police Department stationed themselves behind a door leading into a men's public toilet located on the Public Square of Mansfield's City Central Park in the heart of the downtown shopping area. An opening was cut in the door of the toilet room which led to the utility area and heating plant next to the toilet. In this opening the police installed a metal towel rack of common design for dispensing paper towels and above the dispenser they placed a "two-way glass." On the toilet room side the "two-way glass" appeared to be a mirror in which one could view his face as he obtained a paper towel, and on the opposite, or furnace room side of the "two-way glass," one could look through the glass as a window and observe, without detection, what transpired in the toilet room. Police officers concealed themselves in the furnace room and allegedly observed and filmed the defendant in the act of committing the crime with which he is charged.

At this time the individual petitioner here was not under suspicion nor had any warrants issued for either his arrest or search; there was a strong and apparently well-founded suspicion, however, that the public toilet was the scene of criminal activity. It is significant that this public toilet is operated and maintained by the City of Mansfield, Ohio for public use.

On December 5, 1962 the petitioner moved to suppress the above mentioned evidence as being obtained in violation of his right to be secure against unreasonable searches and seizures under the Fourth and Fourteenth Amendments to the United States Constitution. On February 6th, 1963, the Richland County Court entertained the motion in open court and the motion was overruled. Petitioner alleges now that he has no recourse other than a removal to Federal Court to protect his constitutional rights.

The purpose of this statute is to prevent invidious discrimination under a local ordinance, a statute, or a constitution of a state. Thus, the substantive or procedural law of the State in which the criminal case is pending must deprive a defendant of equal rights before the case can be removed to a federal court. Anderson v. State of Tennessee, 228 F.Supp. 207 (E.D.Tenn.1963). The statute does not provide for removal merely because of erroneous actions or decisions by judicial or administrative officials. Commonwealth of Kentucky v. Powers, 201 U.S. 1, 26 S.Ct. 387, 50 L.Ed. 633 (1906). As stated by the court in State of Maryland v. Kurek, 233 F.Supp. 431, 433 (D.C.Md.1964):

"Even assuming that the law of Maryland sanctions the refusal of the prosecuting and judicial authorities of the State to yield to Kurek's demands for a speedy trial, and that such refusal amounts to a deprivation of his rights under the Fourteenth Amendment, still, the claimed violation would not authorize a removal under 28 U.S.C. § 1443 unless there is a violation of the equal protection clause of the Fourteenth Amendment, such as discrimination against a particular race. The fact that rights guaranteed by the Fourteenth Amendment are violated in the course of a criminal proceeding will not authorize a removal under 28 U.S.C. § 1443 where the procedure adopted by the State authorities is applied equally to all citizens of the United States."

In construing the predecessor to the present removal statute, our reviewing court, in Hull v. Jackson County Circuit Court, 138 F.2d 820, 821 (6th Cir. 1943), stated:

"The statute does not justify federal interference where a party is deprived of any civil right by reason of discrimination or illegal acts of individuals or judicial or administrative officers. If the alleged wrongs are committed by officers or individuals the remedy is the prosecution of the case to the highest court of the state and then to the Supreme Court of the United States as the laws of the United States authorize."

In the one reported case in which a petitioner sought to remove a state criminal proceeding on the ground that allegedly illegal evidence was to be used against him, the Ninth Circuit Court of Appeals rejected the contention and refused to allow removal. Steele v. Superior Court of California, 164 F.2d 781 (1947).

This overwhelming weight of authority compels us to conclude that the petition for removal must be denied, and the cause remanded to the State court.

The petitioner has also sought an injunction against further proceedings in this cause in the State court. Under 28 U.S.C. § 2283: "A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." We perceive of no statute which authorizes our intervention. Since we disavow jurisdiction of this cause and have remanded it to the State court, intervention is not necessary in aid of our jurisdiction. Consequently we are precluded by the terms of the above quoted section from enjoining further proceedings in Richland County.

Finally, the petitioner has asked us to enjoin the police officers from giving testimony of what they observed from their vantage point in the boilerroom and to enjoin the prosecutor from introducing the films into evidence on the ground that this evidence was obtained in violation of the Fourth Amendment rights. Although we entertain serious misgiving about the validity of the petitioner's contention, we need not reach this constitutional issue. In a long and uninterrupted line of cases, federal courts have consistently refused to intrude into the trial of State criminal proceedings to dictate who will and who will not testify. Even if we were inclined to grant the petitioner's request, the most recent pronouncements of the Supreme Court of the United States would preclude us from so doing. We begin with Mr. Justice Frankfurter's excellent opinion in Stefanelli v. Minard, 342 U.S. 117, 120, 123-124, 72 S.Ct. 118, 120, 121-122, 96 L.Ed. 138 (1951), where petitioners sought an injunction against the use, in a pending State criminal case against them in New Jersey, of evidence claimed to have been obtained by an unlawful search by State police.

"We hold that the federal courts should refuse to intervene in State criminal proceedings to suppress the use of evidence even when claimed to have been secured by unlawful search and seizure. The maxim that equity will not enjoin a criminal prosecution summarizes centuries of weighty experience in Anglo-American law. It is impressively reinforced when not merely the relations between coordinate courts but between coordinate political authorities are in issue. The special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law, has been an historic concern of congressional enactment, see, e. g., 28 U.S.C. §§ 1341, 1342, 2283, 2284(5). * * * The consequences of exercising the equitable power here invoked are not the concern of a merely doctrinaire alertness to protect the proper sphere of the States in enforcing their criminal law. If we were to sanction this intervention, we would expose every State criminal prosecution to insupportable disruption. Every question of procedural due process of law — with its farflung and undefined range — would invite a flanking movement against the system of State courts by resort to the federal forum, with review if need be to this Court, to determine the issue. * * * To suggest these difficulties is to recognize their solution."

Any doubt about the vitality of this doctrine, with the advent of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933 (1961) and similar cases, was effectively put to rest in Cleary v. Bolger, 371 U.S. 392, 83 S.Ct. 385, 9...