Smith v. Rhay

• Citation: 419 F.2d 160
• Decision Date: 31 December 1969
• Docket Number: No. 22982.,22982.
• Parties: George L. SMITH, Appellant, v. B. J. RHAY, Warden of the Washington State Penitentiary, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

419 F.2d 160 (1969)

George L. SMITH, Appellant, v. B. J. RHAY, Warden of the Washington State Penitentiary, Appellee.

No. 22982.

United States Court of Appeals Ninth Circuit.

December 2, 1969.

Rehearing Denied January 1, 1970.

William L. Bennett (argued), Joseph M. Cooney, Spokane, Wash., for appellant.

Paul J. Murphy (argued), Asst. Atty. Gen., John J. O'Connell, Slade Gorton, Atty. Gen., State of Washington, Olympia, Wash., for appellee.

Before HAMLIN, KOELSCH, and ELY, Circuit Judges.

ELY, Circuit Judge:

The courts of the State of Washington have sentenced appellant, George Smith, to life imprisonment as a result of his taking several articles of clothing from a store in which his wife worked. Because of his conviction for the crime of second degree burglary, he received the life sentence under Washington's "habitual criminal" statute. Wash.Rev.Code 9.92.090.

Smith's conviction for second degree burglary was affirmed by the Supreme Court of Washington in State v. Smith, 72 Wash.2d 479, 434 P.2d 5 (1967). Having exhausted his state remedies as required by 28 U.S.C. § 2254, Smith petitioned in the District Court for a writ of habeas corpus. He alleged as violative of his constitutional rights that (1) evidence used to convict him was illegally seized, (2) purported oral confessions were admitted as evidence despite improper warnings as to his rights and despite the lack of a knowing and intelligent waiver as to those rights, and (3) the jury was unduly prejudiced by acquiring knowledge concerning Smith's previous criminality from the testimony of the relationship between Smith and his parole officer who was a material state witness as to the alleged illegal search. The District Court denied the writ without a hearing.

On Smith's appeal to this court, we have examined the full record of the state proceedings and have concluded that the state courts drew from the undisputed facts certain conclusionary inferences that are not supported by the record and that the record also reveals serious errors of law concerning Smith's constitutional rights.

In early September of 1966, various articles of clothing were discovered missing from the store in which Smith's wife was employed. Since no signs of breaking and entering were apparent, the sheriff suspected that the burglar might have used a key. Such a key, the sheriff also suspected, might have been available to Smith (although the key was never found and Smith later denied having had or used it). The sheriff, having ground for suspicion but not having obtained a search warrant and not purporting to have grounds for arrest, pursued his investigation by enlisting the aid and concerted action of Smith's parole officer to investigate the suspect. The testimony of the parole officer reveals, as to the plan of the sheriff to engage the parole officer's assistance, the following:

"Q. When did you first hear of this burglary?

"A. I arrived here on the 8th of September. The sheriff advised me that there had been a burglary and that the wife of Mr. Smith worked for Mr. Price where the burglary had occurred and that she had lost her key. Therefore, he was interested in finding the key.

* * * * * *

"Q. And did the sheriff mention anything else to you in connection with the defendant in this case?

"A. That he wished to talk to this man."

Following the conversation between the parole officer and the sheriff, the deputy sheriff went with the parole officer to find Smith. In the testimony of the deputy sheriff, on the prosecution's direct examination, there appears:

"Q. Now, the testimony has so far — and I hope I can take a few shortcuts here — You and Jim Northrup, the probation officer, had apparently left around 8:00 o\'clock on the evening from the sheriff\'s office?

"A. Perhaps a little later.

"Q. You were going to eat and look for George Smith?

* * * * * *

"A. We had planned to go and eat and both of us were looking for Mr. Smith."

After the officers located Smith at a restaurant, the group then went to Smith's hotel room. Smith, the parole officer, and the deputy sheriff entered the room where, in plain sight, the officers saw a major portion of the missing items of clothing. The deputy sheriff then left the room and called the sheriff who came to meet the group at a stairway outside of Smith's room. During the conversation, the parole officer informed Smith of his "rights":

"A. I told Mr. Smith the sheriff by law would have to have a search warrant before he could enter his room and that I, as a parole officer, did not need a search warrant due to the fact — as Mr. Smith well knows — a man on parole is doing cell time on the outside, and we as parole officers are considered in the same status as guards, and therefore we have the right to search a cell or arrest him at any time without a warrant."

Shortly thereafter, Smith permitted all those present, including on this occasion the sheriff, to return to his room. The goods were subsequently seized, and Smith was arrested after he was interrogated.

We have assumed for the purposes of this opinion that a parole officer, in the performance of his duties as such, may permissibly enter a parolee's living quarters at any time and without the need for a search warrant. See generally Damiani, Probation and Parole Under Recent Decisions, 8 Trial Judges' J. 55 (1969). We also assume that the parole officer could report any incriminating evidence discovered by such an entry to the proper law enforcement officials and that such evidence might be properly introduced in a subsequent criminal proceeding based upon it. We think it obvious, however, that a parole officer may not conduct a warrantless search of items in the parolee's possession while acting on the prior request of law enforcement officials and in concert with them. The parole officer is in such a case acting, not as the supervising guardian, so to speak, of the parolee, but as the agent of the very authority upon whom the requirement for a search warrant is constitutionally imposed. To permit concerted effort among officials in an attempt, such as is manifest here, to circumvent Smith's fourth amendment rights cannot be done. Compare Corngold v. United States, 367 F.2d 1, 4-5 (9th Cir. 1966) (en banc).

It is urged that Smith voluntarily "consented" to the search and seizure. Smith did no more than to submit to the apparent authority of the parole officer to enter his room at any time and to accept a mistaken representation as to the extent of that authority. See Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1947); Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921). Once the parole officer and the deputy sheriff had already seen the missing clothes, Smith's insistence that the sheriff obtain for himself a search warrant would have been a fruitless gesture. Accordingly, the unconstitutionally seized clothing should not have been admitted as evidence.

As to the introduction at trial of Smith's alleged oral confessions, the record does not clearly disclose that he was warned of his rights with the specificity required in Miranda v. Arizona, 384 U.S. 436, 478-479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Although Smith was told that he had the right to an attorney, he was not, insofar as the record of the hearing before the trial judge concerning the admissibility of the confessions indicates,¹ told, as required by Miranda, that he had the right to the presence of an attorney and that, if he could not afford one, a lawyer could be appointed to represent him prior to any questioning. Smith could not have made a knowing and intelligent waiver of his rights until after the required warnings had been given. In Miranda we read:

"If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v. Illinois, 378 U.S. 478, 490 84 S.Ct. 1758, 1764, 12 L.Ed.2d 977, n. 14. This Court has always set high standards of proof for the waiver of constitutional rights * * *."

Id. at 475, 86 S.Ct. at 1628 (citations omitted). In the state of the record, confused and conflicting, we hold that the prosecution did not meet the heavy burden which rested upon it. Furthermore, it would be particularly difficult to hold that Smith "knowingly and intelligently" waived his rights in the context of this case, since the questioning immediately and directly followed an illegal seizure of the highly incriminating evidence. Without a lawyer, and especially in view of the parole officer's explanation of Smith's "rights," it is unlikely that Smith, a layman, could have perceived any benefit by his remaining silent in the face of the open presence of the clothing on the expectation that the seized clothing would eventually be excluded from evidence. Compare Fahy v. Connecticut, 375 U.S. 85, 90-91, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963); Wong Sun v. United States, 371 U.S. 471, 484-488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Takahashi v. United States, 143 F.2d 118, 122 (9th Cir. 1944); People v. Johnson, 75 Cal.Rptr. 401, 405-407, 450 P.2d 865 (Mar. 3, 1969).

Smith's final contention relates to certain testimony of Parole Officer Northrup. Although Northrup was called as a witness for the purpose of describing the investigation and arrest, his testimony revealed through necessary inference that he was already acting in the capacity of Smith's parole officer at the time of the offense.² The jury obviously must have inferred that Smith had been previously convicted for unknown crimes, an inference that would place Smith's character in issue as part of the prosecution's case against him. Smith contends that this procedure violated his constitutional right to...