Rice v. Wolff, No. CV72-L-303.

• Court: United States District Courts. 8th Circuit. United States District Court of Nebraska
• Writing for the Court: URBOM
• Citation: 388 F. Supp. 185
• Parties: David L. RICE, Petitioner, v. Charles L. WOLFF, Jr., Warden of the Nebraska Penal and Correctional Complex, Respondent.
• Docket Number: No. CV72-L-303.
• Decision Date: 05 July 1974

388 F. Supp. 185

David L. RICE, Petitioner,
v.
Charles L. WOLFF, Jr., Warden of the Nebraska Penal and Correctional Complex, Respondent.

No. CV72-L-303.

United States District Court, D. Nebraska.

March 29, 1974.

Supplemental Opinion July 5, 1974.

388 F. Supp. 186

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388 F. Supp. 187

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David L. Herzog and J. Patrick Green, Omaha, Neb., for petitioner

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

MEMORANDUM

URBOM, Chief Judge.

David L. Rice has filed a petition for writ of habeas corpus in which he seeks release from the Nebraska Penal and Correctional Complex on the ground that his incarceration is in violation of the Constitution of the United States. The petitioner has been incarcerated at the Penal Complex since his conviction by a jury in the District Court of Douglas County, Nebraska, of the crime of first degree murder in the bombing death of Omaha police officer Larry D. Minard, Sr. The case has been submitted to this court on the state court record. After long and careful consideration, this case is ready for decision, at least in part.

A brief recitation of the facts surrounding the petitioner's conviction would be helpful. Early on the morning of August 17, 1970, the Omaha police department received an emergency telephone call purportedly originating from 2865 Ohio Street. The caller informed the emergency operator that a girl or woman was screaming for help from a vacant house next door at 2867 Ohio Street. Several patrol cars responded to this emergency call, including that of Officer Minard. Minard and several other officers entered the vacant house. In the course of entering, the officers noticed a suitcase lying on its side in the doorway. While the search was being conducted an explosion occurred which killed Minard. At the time of the explosion Officer Minard was standing near the suitcase and apparently

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inspecting it. Later investigation determined that the explosion was caused by dynamite contained in the suitcase which had been rigged as a booby trap. Intensive police investigation led to the conclusion that Duane Peak was a prime suspect in the case. Peak was a known member of the National Committee to Combat Fascism (NCCF). The investigation also revealed that Edward Poindexter, an officer of the NCCF, was capable of rigging a booby trap bomb. Warrants were issued for the arrest of both Peak and Poindexter. The Omaha police conducted a search of the headquarters of the NCCF pursuant to the arrest warrants. Neither Peak nor Poindexter was found at the headquarters, but Poindexter was arrested shortly after the conclusion of the search. Prior to the bombing death of Minard, the Omaha police had received a tip that dynamite might be stored at the home of the petitioner. The Omaha police did not act on that tip until after the search of the NCCF headquarters. That same night two Omaha police officers obtained a search warrant for the petitioner's house at 2816 Parker Street.¹ Pursuant to this search warrant and the arrest warrant for Peak, a search of this house was conducted. This search discovered several items which were subsequently introduced into evidence at the petitioner's trial: blasting caps with wire (photograph substituted), dynamite wrapper (taken from dynamite found in the house), orange grip pliers, a battery, and some dynamite. The petitioner turned himself in to the police after learning that there was an arrest warrant out for him. After his arrest the petitioner's clothing was removed from safekeeping in the Douglas County, Nebraska, jail and subjected to examination by the crime laboratory of the Alcohol, Tobacco and Firearms Division of the Treasury Department in Washington, D. C. This examination revealed dynamite particles in the pockets of the clothing. This evidence was also introduced at trial. Peak was subsequently arrested and testified at Rice's trial that the petitioner was involved in the murder. The petitioner was convicted as one of the instigators of the crime

The petitioner alleges that he is being incarcerated in violation of the United States Constitution in the following respects:

1. His conviction rests upon evidence that was seized in violation of the Fourth Amendment's prohibition of unreasonable searches and seizures in that the search of 2816 Parker Street was conducted pursuant to a search warrant which was issued without

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probable cause due to an insufficient supporting affidavit;

2. The search of his clothing and seizure of dynamite particles found therein was based solely on the information obtained pursuant to the illegal search of 2816 Parker Street, and the particles, therefore, became fruit of the poisoned tree, and in any event the clothing was searched without a warrant, which in and of itself would make the search illegal.

The respondent urges that even if the search warrant was issued without probable cause, nonetheless the search of the petitioner's premises was constitutionally permissible, because the evidence was discovered incident to a search for Duane Peak pursuant to a valid arrest warrant for Peak.

The petitioner has clearly exhausted available state court remedies, as required by 28 U.S.C. § 2254(b), regarding the validity of the search warrant. The Supreme Court of Nebraska in affirming the conviction held that the search warrant was issued with probable cause. State v. Rice, 188 Neb. 728, 199 N.W.2d 480 (1972). Thus this court may deal with this question on the merits.

I.

The record contains no evidence that any information outside the affidavit was presented to the magistrate. In part the Supreme Court of Nebraska rested its finding of validity in the search warrant upon information which the police officers had but which was not revealed to the magistrate. In my opinion, such consideration is not acceptable under federal constitutional standards. The fundamental purpose of a warrant is to place behind the force of the warrant a detached magistrate's objective evaluation of information. He cannot evaluate information not known to him and the propriety of his action should be determined from what he knew, not from what someone else knew or later came to know. An analysis of the validity of the search warrant must be made from the affidavit alone, because nothing else was considered by the magistrate.²

Neither Whitely v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S. Ct. 1031, 28 L.Ed.2d 306 (1971), nor Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), relied upon by the Supreme Court of Nebraska, supports a contrary view.

It must be kept in mind that testing the validity of a search warrant is different from testing the validity of a search in the absence either of any search warrant or of a valid search warrant. So, also, testing the validity of an arrest warrant is different from testing the validity of an arrest in the absence either of any arrest warrant or of a valid arrest warrant.

Draper involved an arrest in the absence of any arrest warrant; Whitely involved an arrest in the absence of a valid arrest warrant. In each, information not presented to a magistrate was permitted for testing the validity of the arrest, not for the purpose of testing the validity of a warrant. Consistently, in the present case knowledge of the searching officers beyond that presented to the magistrate may be considered in testing the validity of the search, if the search warrant is invalid, but may not be used in testing the validity of the search warrant. For the moment, then, consideration is limited to the affidavit, because the issue is the validity of the warrant.

Additionally, the tip is essential to the validity of the warrant. This

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follows, since this is a search warrant and therefore must contain reasons for believing that a particular item is to be found in a particular place. The only averment linking the petitioner's house with criminal activity is the averment in the tip that Rice keeps explosives at his residence. The mere allegations that David Rice is a known member of the NCCF which advocates violent killing of police officers, that David Rice is Minister of Information of the NCCF, that a violent killing of a police officer occurred recently in Omaha, and that arrests have been made from the membership of the NCCF, would not give a magistrate probable cause to issue a search warrant for explosives at David Rice's home. This would amount to issuance of a warrant upon the basis of reputation alone, and this is forbidden by Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933). See also, United States v. Harris, 403 U.S. 573, 582, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). Hence, this case may be analyzed in accordance with the line of decisions wherein tips were essential to the validity of the search warrants

Prior to United States v. Harris, supra, the obvious starting place for analysis was Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). In Harris, the plurality opinion of Chief Justice Burger de-emphasizes the significance of Aguilar and takes as its benchmark Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). This part of the Chief Justice's opinion is joined in by only two other justices, however. Moreover, the Chief Justice's opinion makes it clear that Aguilar is not being overruled. 403 U.S. 573, 577, 91 S.Ct. 2075, 29 L.Ed.2d 723. Additionally, the Eighth Circuit Court of Appeals views Aguilar as the proper starting point despite Harris. LeDent v. Wolff, 460 F.2d 1001 (C.A. 8th Cir. 1972); United States v. Marihart, 472 F.2d 809, 813 n. 5 (C.A. 8th Cir. 1972); United States v. Smith, 462 F.2d 456 (C.A. 8th Cir. 1972). Accord, United States v. McNally, 473 F.2d 934 (C.A. 3rd Cir. 1973); United States v. Davenport, 478 F.2d 203 (C.A. 3rd Cir. 1973); United States v. Black, 476...