Swicegood v. State of Ala.

• Decision Date: 11 August 1978
• Docket Number: No. 77-2516,77-2516
• Citation: 577 F.2d 1322
• Parties: Paul SWICEGOOD, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1322

577 F.2d 1322

Paul SWICEGOOD, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee.

No. 77-2516.

United States Court of Appeals, Fifth Circuit.

Aug. 11, 1978.

Paul Swicegood, pro se.

Robert L. Shields, III, Birmingham, Ala. (Court-Appointed), for petitioner-appellant.

William J. Baxley, Atty. Gen., Montgomery, Ala., James L. O'Kelley, Asst. Atty. Gen., Birmingham, Ala., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before WISDOM, THORNBERRY, and RUBIN, Circuit Judges.

THORNBERRY, Circuit Judge:

Appellant Paul Swicegood, a state prisoner, was convicted of robbery in 1976. His conviction was affirmed by the Alabama Court of Criminal Appeals, Swicegood v. State, 343 So.2d 806 (1977), and the Alabama Supreme Court declined to hear the case. Ex Parte Swicegood, 343 So.2d 810 (1977). Appellant then brought this habeas corpus action in federal district court. 28 U.S.C. § 2254.

The district court denied the writ, concluding that although there had been an illegal arrest, federal review was precluded by Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). The court also rejected Swicegood's argument that lineup procedures were constitutionally deficient but admitted that the question was "very close." For the reasons stated below, we affirm the district court's application of Stone but remand for further proceedings in connection with the lineup issue.

I. FACTUAL BACKGROUND

Pauline and Claxton Carter operated a Birmingham night club called the New Spot Lounge. In the early morning hours of May 4, 1975, Mrs. Carter returned home from the club and was seized by two men wearing ski masks, carried to her bedroom, bound, gagged, and blindfolded. Mr. Carter arrived an hour and a half later and, upon entering the house, was struck in the face by the intruders, who then tied and blindfolded him and locked him in a closet. The men escaped with approximately $7,000 in proceeds from the club and various personal property belonging to the Carters. ¹

Both robbers wore ski masks that covered their faces, and Mr. Carter saw neither without his mask. Mrs. Carter, however, was able to see one man for no more than two seconds when he unblindfolded her for purposes of identifying the keys to her car. The man, who had pushed his mask off his face, saw her looking at him, struck her, and blindfolded her again. Both of the Carters heard the men talk, although Mrs. Carter's blindfold covered her ears at least part of the time and Mr. Carter spent most of the ordeal locked in a closet. The incident spanned approximately two hours, from 4 to 6 a. m.

A Birmingham police detective arrested Swicegood at his trailer house on May 22, 1975, without a warrant. The detective subsequently testified that the basis for the arrest was information from a confidential informant, who had been reliable for several years, that Swicegood had participated in the robbery and was in possession of a handgun. On the day of the arrest, the detective and other officers went to the trailer and identified themselves as lawmen. Swicegood came to the door naked and then went into another room as a young boy let the officers in. The police found a .25 caliber pistol in Swicegood's bedroom and arrested him for illegal possession of a handgun. ² Swicegood was also informed that he was a robbery suspect.

On the day after the arrest, Swicegood, who at that point had not been charged with the handgun offense, was required to participate in a lineup. Neither of the Carters was able to identify him when they first viewed the lineup with the participants wearing masks; rather, both tentatively identified other individuals. After a second viewing this time with the men unmasked both "positively" identified Swicegood, and both subsequently made in-court identifications of him and testified that they had picked him out of a police lineup. The circumstances surrounding the lineup are discussed in more detail in Section III, infra.

II. FOURTH AMENDMENT CLAIM

Appellant contends that he was arrested without probable cause in contravention of the fourth amendment and that the product of that arrest the lineup identification was improperly admitted into evidence.

In Stone v. Powell, supra, the Supreme Court held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." 428 U.S. at 482, 96 S.Ct. at 3046. As this Court explained in O'Berry v. Wainwright, 546 F.2d 1204, 1209-10 (5 Cir.), cert. denied, 433 U.S. 911, 97 S.Ct. 2981, 53 L.Ed.2d 1096 (1977), our initial inquiry is whether the state provided an opportunity for a full and fair hearing on the fourth amendment issue. If it did, our review is precluded by Stone.

Appellant argues that he did not receive full consideration because the state courts dealt with the illegal arrest question only "in passing" and " without any reasoned consideration" and that he was denied fair consideration because the state courts misapplied settled principles of constitutional law. If we were to accept these arguments, Stone would be rendered meaningless.

In O'Berry v. Wainwright, supra, this court held that there had been full and fair consideration where the state appellate court merely said that each contention had been examined and found without merit, that there had been no timely objection to preserve the error, and that there was no plain error. 546 F.2d at 1216. In the instant case, appellant presented the question to the trial court, the Alabama Court of Criminal Appeals, and the Supreme Court of Alabama, and all rejected his fourth amendment argument. Further, the Court of Criminal Appeals wrote in its opinion:

We have carefully examined the record and determined from the testimony of (the arresting officer) that there was sufficient information possessed by him upon which to arrest the appellant. He was aware that a felony had been committed and that the appellant was a participant therein. He was also aware of the appellant's past criminal record.

Swicegood v. State, supra, 343 So.2d at 809. Moreover, on petition for rehearing, one judge on the Court of Criminal Appeals dissented, arguing that there was no probable cause for arrest and that the fruit of that arrest, i. e., the in-custody identification, was thus inadmissible, 343 So.2d at 809-810. In these circumstances, appellant cannot successfully argue that he did not receive full consideration of his claim.

Appellant's second point that the state denied him a fair hearing by misapplying federal constitutional law must also fail. If this argument were correct, the federal courts would consider the merits of fourth amendment habeas cases whenever the state courts erred in their fourth amendment analysis and would refuse to consider the merits of those cases in which the state courts were correct. That, of course, is federal habeas review of state court fourth amendment decisions, precisely what Stone forbids. If the term "fair hearing" means that the state courts must correctly apply federal constitutional law, Stone becomes a nullity.

Moreover, the Court in Stone rejected the notion that federal judges are institutionally more receptive to federal constitutional norms that are their state brethren. 428 U.S. at 493-94 n. 35, 96 S.Ct. 3037. Underlying Stone is the conviction that state courts are as competent as the federal courts in insuring that federal constitutional rights are protected. O'Berry v. Wainwright, supra, 546 F.2d at 1215. That premise is obviously destroyed if a federal court reaches the merits in a fourth amendment habeas case simply because it believes the state courts decided the issue incorrectly.

Having found that appellant received an opportunity for full and fair consideration of his fourth amendment claim, we now turn to a second argument designed to rid his path of the Stone obstacle: that the rule of that decision is inapplicable where, as here, the fruit of the illegal arrest is not physical evidence but rather a lineup identification.

This argument can be viewed in two ways. At its broadest, it is a contention that Stone does not preclude consideration of the legality of an arrest that leads to non-physical evidence, such as identification at a lineup. Thus, we would determine whether the lineup identification, a fruit of the allegedly unlawful arrest, was properly admitted against appellant. However, our prior decisions make clear that Stone applies with equal force to lineup evidence and physical evidence, and we necessarily reject this contention. Of course, we need not ponder the effect of Stone on cases involving other types of nonphysical evidence, since the situation before us presents only a lineup identification.

In Caver v. Alabama, 537 F.2d 1333 (5 Cir. 1976), cert. denied, 430 U.S. 910, 97 S.Ct. 1183, 51 L.Ed.2d 587 (1977), and White v. Alabama, 541 F.2d 1092 (5 Cir. 1976), cert. denied, 430 U.S. 910, 97 S.Ct. 1183, 51 L.Ed.2d 587 (1977), the appellants contended that their arrests were merely pretextual and that subsequent voice identifications obtained from a lineup held while they were in police custody were inadmissible. In both cases we concluded that Stone would bar this type of collateral attack unless the appellants could show that the state failed to provide them an opportunity for full and fair litigation of the fourth amendment claim. 537 F.2d at 1336; 541 F.2d at 1093. In the instant case, we have determined that appellant received such an opportunity, and, accordingly, we hold that Stone precludes consideration of the arrest question. ³

A second reading of appellant's argument is also possible: Stone does not apply when an appellant has urged that the lineup...