Scearce v. Field

• Decision Date: 21 October 1968
• Docket Number: No. 68-39.,68-39.
• Citation: 292 F. Supp. 807
• Court: U.S. District Court — Central District of California
• Parties: Erwin Homer SCEARCE, Petitioner, v. H. V. FIELD, Superintendent, Respondent.

292 F. Supp. 807

Erwin Homer SCEARCE, Petitioner, v. H. V. FIELD, Superintendent, Respondent.

No. 68-39.

United States District Court C. D. California.

October 21, 1968.

Erwin Homer Scearce, in pro. per.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Arthur B. Rosenfeld, Deputy Atty. Gen., for respondent.

HAUK, District Judge.

Petitioner, presently incarcerated in the California Men's Colony, West Facility, Los Padres, California here seeks a writ of habeas corpus to set aside his conviction in the State Court. Based upon the instant petition submitted, petitioner alleges the following: (1) the tire iron entered into evidence at his trial and constituting the main support of his conviction, was the product of an illegal search and seizure; (2) he was arraigned in Municipal Court and held 15 days before a reason for his arrest was established, during which time he was not represented by counsel; (3) he was denied due process in that his counsel was inadequate; and (4) he was denied due process since at the time of his prior convictions he had not, in fact, been represented by counsel, nor had he competently waived this right.

FACTS AND PROCEEDINGS CONCLUSIVELY SHOWN BY FILES AND RECORDS

Erwin Homer Scearce was accused in the information of attempted burglary by wilfully and unlawfully attempting to enter Johnnie's Tavern located at 4610 East Kings Canyon Road in Fresno, California, with intent to commit theft therein, and with eight prior convictions for which he served terms of imprisonment: to wit, perjury, attempted burglary, assault with a deadly weapon, violation of the Mann Act, escape, and three burglaries. The petitioner entered a plea of not guilty to the current charge, but admitted the eight prior convictions.

At petitioner's jury trial the proof developed that at about 4:10 to 4:15 o'clock in the afternoon of June 21, 1965, a service station attendant named James Parker, working at the southeast corner of Kings Canyon Road and Maple Avenue in Fresno, noticed a blue and white Oldsmobile parked between the alley and Johnnie's Tavern next door to him. The car was facing west; the tavern was closed as was customary on Monday. The defendant was sitting on the passenger's side of the automobile and was then the only occupant; because of the shape of the building, the back door of the tavern was hidden from the view of the service station attendant. Defendant was looking around and for a while seemed to be arranging the contents in the rear of the car as he leaned over toward the back seat.

In a few minutes the burglar alarm at the tavern went off, and the defendant's automobile immediately afterwards pulled out, moving at a speed of approximately 5-10 mph, into the alley going west; as the vehicle passed the service station, the passenger looked squarely at Mr. Parker who got a good view of him; when the car stopped at the alley entrance to Maple Avenue, Parker wrote down the license number and then gave it to his employer, who in turn called the sheriff's office. Frank Hoak, a deputy sheriff, arrived while the burglar alarm was still ringing; he found that the back door of the tavern had been forced open, and there were marks demonstrating the force used at the lock and on the door jamb where he found concave impressions which appeared to have been made by a round-shanked object. There were also tire tracks in the dirt behind the tavern.

Some five hours later, the same deputy sheriff identified the blue and white Oldsmobile, with the reported license number, parked at another service station in a different part of Fresno; two people were in the car; Deputy Hoak radioed for help, and, in response, other peace officers arrived. As the automobile left the station it was followed and stopped. One of the occupants was identified as the defendant who had been seen earlier by Parker.

The Oldsmobile was registered in the name of the defendant, Erwin Homer Scearce, and it was driven by one Eunice Tom Mills. A suitcase and clothing were scattered about the back seat and there was a tire iron lying in full view on the front seat of the car between the two men. Deputy Hoak testified that he saw reddish-brown paint on the iron bar at the time he first saw it in the car, and that it was the same color as the paint at the doorway area of Johnnie's Tavern. It was later determined by the chief criminologist of the Fresno County sheriff's office by comparison of the marks on the door and on the metal bar that the tire iron had been used to pry open the back door of the tavern. It was also testified at the trial that the tire tracks in the dirt behind the tavern matched the tires on the automobile.

The legal proceedings against the petitioner, which culminated in his conviction and in his petition to this Court, are listed chronologically as follows:

(a) June 21, 1965:—at approximately 9:10 p. m., petitioner was arrested for a violation of California Penal Code section 664, attempted burglary.

(b) June 24, 1965:—a complaint was filed in Municipal Court, Fresno Judicial District, County of Fresno, State of California.

(c) June 25, 1965:—petitioner was in court again where he was informed of the charges against him and of his constitutional rights. The court, having determined that petitioner was an indigent, appointed counsel to represent him. The court then scheduled the preliminary hearing for July 6, 1965, and a copy of the complaint was given to petitioner.

(d) July 6, 1965:—petitioner's preliminary hearing was held with counsel present. Petitioner moved to have the case dismissed on the basis of insufficient evidence. The motion was denied and petitioner was held to answer.

(e) July 20, 1965:—in an information, petitioner was charged with the crime of attempted burglary. In addition, the information alleged that petitioner had suffered eight prior felony convictions for which he had served terms of imprisonment in state or federal penitentiaries, to wit: (1) perjury; (2) attempted burglary; (3) assault with a deadly weapon; (4) Mann Act violation; (5) escape; (6) burglary; (7) burglary; and (8) burglary.

(f) July 26, 1965:—petitioner appeared for arraignment with his appointed counsel, and entered a plea of "not guilty" to the crime of attempted burglary charged in the information, and admitted the eight prior felony convictions alleged therein.

(g) September 16, 1965:—the case came on regularly for trial by jury, and at the conclusion of the trial on September 16, 1965, the jury rendered its verdict, finding petitioner guilty of attempted burglary. The jury was polled and each juror affirmed his verdict. The matter was referred to the probation officer.

(h) September 27, 1965:—the court denied probation and sentenced petitioner to imprisonment for the term prescribed by law; the sentence to run concurrently with any other sentence then being served.

(i) October 1, 1965:—petitioner filed a timely notice of appeal to the California Court of Appeal, Fifth Appellate District. He alleged in this appeal that the evidence was insufficient to support the conviction, and that there was insufficient foundation for certain evidence. The judgment was affirmed by the Court of Appeal. Subsequently, petitioner filed petitions for writs of habeas corpus in the California Superior Court for the County of San Luis Obispo, in the California Court of Appeal, Second Appellate District and in the California Supreme Court. All of the above petitions were denied.

PETITIONER'S FIRST CONTENTION

Petitioner contends that at the time of his arrest no arrest warrant had been issued, nor was there probable cause for such arrest. Petitioner alleges that since his arrest was invalid, the tire iron removed from his automobile and entered into evidence was the product of an illegal search and seizure.

This Court finds that a warrant was not required for petitioner's arrest. Section 836 of the California Penal Code provides that a peace officer may arrest a person without a warrant "whenever he has reasonable cause to believe that the person to be arrested has committed a felony, whether or not a felony has in fact been committed." The United States Supreme Court has said that reasonable cause to arrest without a warrant exists where the facts and circumstances within the police officer's knowledge and of which he has reasonably trustworthy information are sufficient to warrant a man of reasonable caution in the belief that a crime has been committed. Ker v. State of California, 374 U.S. 23, 34-35, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); People v. Cockrell, 63 Cal.2d 659, 665, 47 Cal.Rptr. 788, 408 P.2d 116 (1965) cert. denied, Cockrell v. Calif., 389 U.S. 1006, 88 S.Ct. 568, 19 L.Ed.2d 604 (1968). And a search made in connection with a valid arrest is lawful. United States v. Rabinowitz, 339 U.S. 56, 61-62, 70 S.Ct. 430, 94 L.Ed. 653 (1950).

In the present case the officers had reasonable cause to arrest petitioner. Deputy Hoak had the license number and description of the car which had been parked behind Johnnie's Tavern just before the burglar alarm sounded, and at the time of arrest petitioner was sitting in a car of the same description and bearing the same license number. Thus, even if the recovery of the tire iron was the product of a "search", the search was valid as incidental to a lawful arrest.

It would appear from the evidence, however, that no search of the car was necessary to produce the tire iron—it was lying on the front seat between petitioner and Mills. Where the evidence is openly visible no objection on the ground that it was obtained by unreasonable search and seizure is available. Gilbert v. United States, 366 F.2d 923, 932 (9th Cir. 1966), cert. denied, 384 U.S. 985, 86 S.Ct. 1902, 16 L.Ed.2d 1003 (1966); Wilson v. Porter, 361 F.2d 412, 416 (9th Cir. 1966); United States ex rel. Frierson v. Pate, 354 F.2d 588, 591 (7th Cir. 1965). Petitioner, however, contends that Deputy Hoak...