Radcliff v. Cardwell, 20948-20950.

• Decision Date: 20 July 1971
• Docket Number: No. 20948-20950.,20948-20950.
• Parties: Elmer Ernest RADCLIFF et al., Petitioners-Appellants, v. Harold J. CARDWELL, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

446 F.2d 1141 (1971)

Elmer Ernest RADCLIFF et al., Petitioners-Appellants, v. Harold J. CARDWELL, Warden, Respondent-Appellee.

Nos. 20948-20950.

United States Court of Appeals, Sixth Circuit.

July 20, 1971.

Elmer Ernest Radcliff, on brief, for appellants.

William J. Brown, Atty. Gen. of Ohio, Leo J. Conway, Asst. Atty. Gen., Columbus, Ohio, on brief, for appellee.

Before EDWARDS, McCREE and KENT, Circuit Judges.

PER CURIAM.

This is an appeal from the denial of three petitions for writs of habeas corpus. They were consolidated because the facts in each case are the same. Petitioners were convicted of burglary in the Hamilton County Common Pleas Court, and the convictions were affirmed by the Ohio Court of Appeals. The Ohio Supreme Court denied leave to appeal. There is no issue of exhaustion of available state remedies. Coley v. Alvis, 381 F.2d 870 (6th Cir. 1967). The only substantial issues raised by the petitions are the legality of the arrests of petitioners and the validity of a search of the trunk of the car in which they had been riding.

At approximately 9:15 p.m. on the night of March 16, 1968, a burglar alarm at a residence at 8750 Red Fox Lane, Indian Hill, Ohio, was activated, and its signal was transmitted to the Indian Hill police station. Patrolman William Miller, who was in the vicinity of Red Fox Lane, heard the police radio report of the alarm and proceeded to investigate. He observed a 1968 Cadillac with Kentucky license plates turn off from Red Fox Lane, a dead end street, into Old Indian Hill Road. The Cadillac's tires were squealing and it was moving rapidly in a fishtail motion. Officer Miller, suspecting that the vehicle was involved in the burglary, gave chase, stopped the car, and arrested the occupants, two of whom had been concealing themselves below window level. The officer then observed that there were fresh hand prints and scrape marks on the trunk of the car, which stood out because the surface of the trunk was otherwise covered with dust. It is contended that this arrest was without probable cause. We disagree.

The circumstances described indicated a probability that the occupants in the car were involved in the burglary sufficient to justify the halting of the Cadillac and the arrests. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). There was probable cause to believe that a crime had been committed (although the 8750 Red Fox Lane device had emitted false alarms in recent weeks) and, considering the peculiar manner in which the Cadillac was driven, the time of night, and the officer's knowledge that no one in the neighborhood owned such a car, it was reasonable to believe that the occupants of the car had been involved in the burglary.

Petitioners' other principal contention is that a search of the Cadillac's trunk, which produced burglary tools and goods stolen from 8750 Red Fox Lane, was invalid under the Fourth Amendment to the Constitution. We also find this contention without merit. The District Court held that the search was permissible under Chambers v. Maroney, 399 U. S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), which concerned the warrantless search of a motor vehicle. We do not find it necessary to reach the Chambers issue under these facts. Here there was a search warrant issued by a court of competent jurisdiction. After appellants were brought to the police station, Officer Miller went to the home of Hamilton County Municipal Judge William S. Mathews, and there, shortly after midnight, executed an affidavit in support of a search warrant which reads, in pertinent part:

This affiant believes and has good cause to believe, in a certain house or place, there is unlawfully concealed and possessed certain tools, Clothing and other devices used in and the proceeds obtained from the burglary of the Lawrence Smith residence located at 8750 Red Fox Ln., Indian Hill Hamilton County, Ohio and that said affiant believes or has good cause to believe that said property, or some part thereof, is consealed sic and possessed in violation of law, viz.: Used in commission of burglary at 8750 Red Fox Ln., Indian Hill, Ohio, in violation of Sec. 2907.09, Revised Code of Ohio on certain premises described as follows, to wit: 1968 Cadillac 4dr hardtop bearing 1968 Kentucky License No. 676-806 located at Indian Hill Police Garage, Indian Hill, Ohio which

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