Satchell v. Cardwell

• Decision Date: 10 August 1981
• Docket Number: No. 79-2622,79-2622
• Citation: 653 F.2d 408
• Parties: Leroy SATCHELL, Petitioner, v. Harold J. CARDWELL, Former Warden, Arizona State Prison, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 408

653 F.2d 408

Leroy SATCHELL, Petitioner, v. Harold J. CARDWELL, Former Warden, Arizona State Prison, Respondent.

No. 79-2622.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 9, 1980.

Decided Aug. 10, 1981.

S. Jeffrey Minker, Tucson, Ariz., for petitioner.

Jessica Gifford, Asst. Atty. Gen., Phoenix, Ariz., for respondent.

Appeal from the United States District Court for the District of Arizona.

Before BROWNING, Chief Judge, KENNEDY, Circuit Judge, and HOFFMAN ^*, Senior District Judge.

WALTER E. HOFFMAN, District Judge:

Petitioner appeals the denial of his habeas corpus petition by the United States District Court for the District of Arizona. He contends that his trial attorney's failure to make a motion to suppress certain evidence, allegedly obtained in violation of his Fourth Amendment rights, abrogated his Sixth Amendment right to effective assistance of counsel. ¹ Without deciding but assuming, arguendo, that Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), does not preclude review of an ineffective counsel claim grounded in failure to make a possible Fourth Amendment argument, we find that Satchell's Sixth Amendment rights were not violated and thus uphold the lower court's denial of his petition.

Satchell was convicted in an Arizona state court, after trial to a jury, of kidnapping, rape, aggravated assault, and assault with a deadly weapon, to-wit, a knife. The victim, a fifty-year-old Indian woman, testified that Satchell forced her into his pickup truck as she left a Phoenix bar in a drunken state and drove her to his trailer, where he repeatedly raped, stabbed, and beat her between May 2 and 5, 1972. RT at 171-216. When a neighbor of Satchell's stopped by, she said, she signalled him to call the authorities by silently mouthing the word "police." RT at 207-10. On May 5, the police received a tip that two Indian women were being held hostage at a specified address. ² Officer Ely of the Phoenix City Police testified that he and his partner went to the locale in response to a radio dispatch at 2:42 P.M., where they found three dwellings: a house where no one was at home, an abandoned house, and a trailer in the rear. ³ Both briefs spoke of a dispatch to the locale or address, but Ely's testimony was that he was specifically told to go to the rear of the trailer. RT at 308. After checking the empty house first, he proceeded to the trailer and, upon hearing voices inside, knocked at the trailer door. A man opened the door a matter of inches and asked who was knocking. Despite the fact that it was mid-afternoon and Ely was probably in uniform, ⁴ Satchell did not open the door further than 3 or 4 inches. The officer then pulled the door the rest of the way open and saw the victim, who pointed from her battered face to Satchell. RT at 311. Ely testified that she had clear chain-link imprints on her ankles and cuts all over her body, and was bleeding from some of the cuts. RT at 318-19. Ely asked Satchell to step outside, entered the trailer, and questioned the victim before making a further search or an arrest. RT at 312. Other evidence at trial, in addition to testimony by the officers, the victim, and Satchell, included the testimony of the physician who treated her as to the extensiveness of her injuries, ⁵ photographs of the interior of the trailer, and chains and a board used to tie the victim while she was being raped. The chains were seized from inside the trailer, but the board was in plain view outside. RT at 368-70.

The test for judging petitioner's Sixth Amendment claim ⁶ is two-fold: did counsel act in a reasonably competent and effective manner and, if not, was his incompetence prejudicial to the defense? Cooper v. Fitzharris, 586 F.2d 1325, 1327 (9th Cir. 1978) (en banc). See also, Ewing v. Williams, 596 F.2d 391, 394 (9th Cir. 1979). Satchell failed the first part of the test, ⁷ to show that his "(d)efense counsel's errors or omissions ... reflect a failure to exercise the skill, judgment, or diligence of a reasonably competent criminal defense attorney they must be errors a reasonably competent attorney acting as a diligent conscientious advocate would not have made, for that is the constitutional standard." Cooper, supra, at 1330. Although a suppression motion might have been successful, the issue was so close that it cannot be said that a reasonably competent attorney could not have failed to make such a motion. That failure, in the context of his attorney's other aggressive actions on Satchell's behalf, did not deprive Satchell of competent representation of counsel. ⁸ He was not entitled to an attorney who made no mistakes. Id.

Satchell's attorney testified at the post-conviction hearing that his research led him to believe that a motion to suppress would not be successful because he discovered an Arizona case that "was almost directly on point." RT (Hearing June 22, 1976) 30; see also id. at 22-24, 30-31. In State v. Pine, 8 Ariz.App. 430, 446 P.2d 940 (1968), however, the main door was already open when the police arrived and the outer screen door was opened, either by the occupant or by the police with her consent, so that police identification could be shown. Once lawfully in the doorway, the officers could use their sighting of contraband under the "plain view" doctrine to establish probable cause to enter. Id. 446 P.2d at 943-44. The door to Satchell's trailer, in contrast, was not opened wide enough by consent for Officer Ely to see the victim until he pulled it further open.

Respondent argues, however, that even if Pine does not save the entry, the exigent circumstances here plus the facts known to the police justify the action taken. The entry may be permissible under one of two theories. Either the anonymous tip, its confirmation by finding the trailer and hearing the voices, and Satchell's reluctance to open the door amounted to probable cause under exigent circumstances or, alternatively, a police officer investigating a report of women held as hostages is justified, on less than probable cause, in taking some action such as pulling further a partially open door that falls short of a full-blown entry and thus does not invoke the full protection of the Fourth Amendment.

The argument that these facts amounted to probable cause is probably the more tenuous of the two. Nothing in the record specifies that the party providing the tip, probably the visiting neighbor, made an anonymous call. Even if the caller was anonymous, when the facts that person related the address, the trailer, and a woman held hostage inside were at least partially confirmed by Ely on his arrival, that confirmation gave greater reliability to the tip. A tip must contain sufficient information to permit an independent determination that the informant is reliable and his information was based on more than casual rumor. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Although the tip here, if anonymous and uncorroborated, would fail that test, the confirmation of the correctness of information in such a tip may, of itself, prove the reliability of both the informant and his information. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). See also, United States v. Branch, 565 F.2d 274 (4th Cir. 1977). On arrival Ely confirmed that there was indeed a trailer in the rear at that address and then heard voices from inside the trailer, although no one was in the other dwellings. The fact that the man answering his knock only opened the door a crack in mid-afternoon, even on seeing a uniformed policeman, ⁹ may have added up to probable cause, given the exigent circumstances of a woman reportedly held hostage.

Even if the facts as Ely knew them at the time did not amount to probable cause, they certainly gave rise to a reasonable belief or articulable suspicion, in light of his three and a half years experience, which may be enough in such an exigency to justify some investigatory action, short of a complete search involving the full panoply of Fourth Amendment protections. Just as the facts in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), did not reach the level of probable cause but were enough under exigent conditions to permit a stop and frisk falling short of a full-fledged search, so the officer's investigatory action here, based on reasonable belief in light of his experience and the existing exigency, of pulling the door open a couple of feet further, stopped short of a complete entry and search. ¹⁰ Supreme Court cases disallowing warrantless searches have involved less urgent circumstances than here. In Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), a confidential informant's tip, plus the smell of opium in the hallway and scuffling noises heard in response to knocking by the police, did not justify a warrantless arrest, but no one's life was possibly in danger. Although municipal officials could enter a burning building to put out the fire in Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), no full-fledged warrantless search for arson clues could be carried out as the danger had then passed.

The Court in Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), would not condone a full investigatory search by homicide detectives without a warrant because no emergency threatened life once all persons in the apartment had been located and secured. Nevertheless, the Court in Mincey took pains to assure lower courts that the decision would have been different had a truly exigent situation existed:

We do not question the right of the police to respond to emergency situations. Numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they...