Sisk v. Lane

• Decision Date: 28 June 1963
• Docket Number: Civ. No. 2920.
• Citation: 219 F. Supp. 507
• Parties: Rufus Glenn SISK, Petitioner, v. Ward LANE, Warden, Indiana State Prison, Respondent.
• Court: U.S. District Court — Northern District of Indiana

219 F. Supp. 507

Rufus Glenn SISK, Petitioner, v. Ward LANE, Warden, Indiana State Prison, Respondent.

Civ. No. 2920.

United States District Court N. D. Indiana, South Bend Division.

June 28, 1963.

William E. Borror, Ft. Wayne, Ind., for petitioner.

Edwin K. Steers, Atty. Gen. for State of Indiana, Donald Adams, Asst. Atty. Gen. for State of Indiana, Indianapolis, Ind., for respondent.

GRANT, Chief Judge.

Petitioner has filed in this Court a Petition for Writ of Habeas Corpus. He asserts that the Writ should be granted because: (1) his arrest was illegal and therefore the consequent search and seizure of his automobile was also illegal, and (2) the search was illegal even if the arrest was proper.

William E. Borror, Esq., a member of the Indiana Bar, was appointed to represent petitioner in these proceedings. Hearings were held on this matter and this Court has also read the original transcript that was filed at the time petitioner appealed his original conviction.¹

Petitioner was tried and found guilty of first degree murder in the Circuit Court of Gibson County, Indiana, and received a sentence of life imprisonment. Upon appeal the conviction was affirmed by the Supreme Court of Indiana in an opinion which upheld the legality of the arrest and the search and seizure of petitioner's automobile. Sisk v. State (1953) 232 Ind. 214, 110 N.E.2d 627. Certiorari was denied, Sisk v. State of Indiana, (1953) 346 U.S. 838, 74 S.Ct. 60, 98 L.Ed. 360.

Thereafter petitioner filed, in this Court, a petition for Writ of Habeas Corpus. Sisk v. Overlade, South Bend Civil No. 1568. He alleged therein that his arrest and the search and seizure of his automobile were illegal and therefore that he was convicted in violation of the rights guaranteed by the due process clause of the Fourteenth Amendment.

On February 3, 1954, the petition was denied for the reason that the facts alleged were not sufficient to merit the issuance of the Writ. Upon appeal petitioner relied solely on the ground that the search and seizure of his automobile was illegal and that evidence obtained by such search was introduced at the trial over his objection. Sisk v. Overlade (7th Cir., 1955), 220 F.2d 68. He argued that since Indiana had adopted the exclusionary rule "its courts must decide whether a search and seizure was reasonably in conformity with federal constitutional standards." Therefore, when the Indiana Supreme Court affirmed his conviction and failed to apply the federal standard, petitioner contends that it extended "affirmative sanction" to the illegal action of the Sheriff, in violation of the language in Wolf v. Colorado (1949), 338 U.S. 25, 28, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782, wherein the Court said:

"Accordingly, we have no hesitation in saying that were a State affirmatively to sanction such police incursion into privacy it would run counter to the guaranty of the Fourteenth Amendment."

Petitioner's argument was rejected on the ground that Wolf v. Colorado, supra, did not require such an interpretation. The Court of Appeals said:

"* * * We are content to hold that Wolf decided just what the Supreme Court said it decided — `* * that in a prosecution in a State court for a State crime the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure.'" Sisk v. Overlade, supra, 220 F.2d at page 72.

Petitioner's view was also rejected for the reason that:

"* * * under decisions of the Indiana Supreme Court, where an arrest is valid, considerable latitude is given to search an automobile which the person arrested was using at the time of the arrest, or which the officers had reasonable cause to believe had been used in the commission of a crime." Sisk v. Overlade, supra, 220 F.2d at page 72.

The Court of Appeals affirmed the decision of this Court and the United States Supreme Court denied certiorari. Sisk v. Overlade (1955), 350 U.S. 876, 76 S. Ct. 121, 100 L.Ed. 774.

In the instant petition it is contended that petitioner was convicted of first degree murder in violation of the rights guaranteed to him by the due process clause of the Fourteenth Amendment to the United States Constitution. In support of this contention petitioner again asserts that his arrest was illegal, and therefore, the consequent search and seizure of his automobile was also illegal, and that the search was illegal even if the arrest was proper and that evidence obtained by such search was introduced at the trial over his objection.

The State has filed a Motion to Dismiss wherein it contends: (1) that the questions raised are matters properly presented for review only by direct appeal from the conviction and by certiorari in the United States Supreme Court, and therefore, do not constitute grounds upon which a Federal Writ of Habeas Corpus may properly issue; (2) that the Mapp case has not changed or altered the law applicable when petitioner's earlier petition was denied, and, therefore, since the instant petition presents the selfsame issue, it should be dismissed; and, (3) that even if the Mapp case does change the law which was applicable when petitioner's earlier petition was denied, the instant petition should be dismissed for the reason that petitioner has not exhausted his remedies by presenting to the State courts the questions herein asserted.

Although petitioner admits that the questions presented herein were previously before this Court and the Court of Appeals for the Seventh Circuit, he argues that relief is now sought on new grounds which follow from the decision of the United States Supreme Court in Mapp v. Ohio (1961) 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.

His argument is essentially as follows:

The Supreme Court of the United States in the Wolf case held that the principle of the Fourth Amendment which prohibits arbitrary invasions of privacy, is a fundamental human right embodied in the Fourteenth Amendment. Since Indiana followed the "exclusionary rule" at the time petitioner was tried and when his conviction was reviewed, it was necessary for the Supreme Court of Indiana to decide whether or not the search and seizure was reasonable according to federal standards, and when the Court decided that the search and seizure was reasonable, it erroneously applied federal standards. However, when this Court and the Court of Appeals for the Seventh Circuit were presented with the question of whether or not the search and seizure was reasonable according to federal standards, the answer to the question was never resolved because the Wolf case would not have required the exclusion of evidence found to be illegally obtained. Therefore, since the Mapp case held that evidence obtained by an illegal search and seizure, in violation of the United States Constitution, may not be used in a State prosecution, it is now incumbent upon this Court to resolve the question of the reasonableness of the search and seizure herein complained of according to federal standards.

The issues facing this Court in considering respondent's Motion to Dismiss are ably considered on pages 42-47 in a chapter entitled "Federalism and the Fourth Amendment: A Requiem for Wolf", by Francis A. Allen, Professor of Law, the University of Chicago, published in The Supreme Court Review at page 1. The author refers to the very problem presented in the instant case in footnote 224 on page 46, where he states:

"One of the questions associated with the Wolf case that never received a definitive answer from the Court was whether a conviction obtained in an exclusionary rule jurisdiction might be reversed if the Court found that evidence obtained in violation of defendant's federal rights had been erroneously admitted at the trial. At least one federal circuit court held that this circumstance did not afford basis for federal intervention. Sisk v. Overlade, 220 F.2d 68 (7th Cir. 1955). But cf. Frank v. Maryland, 359 U.S. 360 79 S.Ct. 804, 3 L.Ed.2d 877 (1959). All such questions are, of course, removed by Mapp, which not only identifies the Fourteenth Amendment rights with those protected by the Fourth but includes the remedy of suppression among the federally protected rights."

In Hurst v. People of State of California (U.S.D.C.N.D.California, 1962), 211 F.Supp. 387 an opinion containing an extensive discussion of the same questions that are before this Court on respondent's Motion to Dismiss, the Court considered the effect of the Mapp decision and arrived at the following conclusion at page 391:

"It appears to this Court that the logical interpretation of Mapp is that the Fourth Amendment has now been incorporated into the Fourteenth Amendment, and that the law of search and seizure has now been nationalized. The specific holding of Mapp, which leads this Court to the above conclusion, is that,

"`Since the Fourth Amendment's right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as is used against the Federal Government.' (367 U.S. at 655, 81 S.Ct. at 1691).

"Justice Clark also spoke of `extending the substantive protections of due process to all constitutionally unreasonable searches — state or federal.' (367 U.S. at 655, 81 S.Ct. at 1692)."

The recent decision of the United States Supreme Court in Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, substantiates the conclusion of the District Court in Hurst, and also that of Professor Allen. In the Ker case, Justice Clark, delivering the opinion of the Court, 83 S.Ct. at page 1628 said:

"In Mapp v. Ohio, 367 U.S., at 646-647, 657, 81 S.Ct., at 1686-1687, 1692-1693, 7 L.Ed.2d 1081, we followed Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L. Ed. 746 (1886), which held that the Fourth Amendment, implemented by the self-incrimination clause of the Fifth, forbids the Federal Government to convict a man of

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