U.S. ex rel. Placek v. State of Ill.

• Decision Date: 21 December 1976
• Docket Number: No. 76-1376,76-1376
• Citation: 546 F.2d 1298
• Parties: UNITED STATES of America ex rel. James V. PLACEK, Petitioner-Appellant, v. STATE OF ILLINOIS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1298

546 F.2d 1298

UNITED STATES of America ex rel. James V. PLACEK, Petitioner-Appellant, v. STATE OF ILLINOIS, Respondent-Appellee.

No. 76-1376.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 28, 1976.

Decided Dec. 21, 1976.

Frederick F. Cohn, Chicago, Ill., for petitioner-appellant.

William J. Scott, Atty. Gen., Timothy B. Newitt, Asst. Atty. Gen., Chicago, Ill., for respondent-appellee.

Before HASTINGS, Senior Circuit Judge, and TONE and BAUER, Circuit Judges.

BAUER, Circuit Judge.

Petitioner-appellant Placek, who was convicted of theft in a bench trial before an Illinois court, brings this appeal from the district court's dismissal of his petition for a writ of habeas corpus without an evidentiary hearing. He argues on appeal that his petition should be granted or, in the alternative, remanded for an evidentiary hearing.

Placek contends (1) that evidence obtained following an arrest made without a warrant or probable cause was illegally used in his trial, (2) that statements used against him at trial should have been suppressed because he was not given proper Miranda warnings, (3) that his confession and evidence seized pursuant to a search of his apartment were illegally used against him at trial because promises of leniency were made to him rendering his confession involuntary and vitiating the consent he gave for the search, (4) that he was denied his constitutional right to a hearing on the voluntariness of his confession, and (5) that he was denied his constitutional right to a speedy trial.

I.

We believe, and Placek does not vigorously contest on appeal, that Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), bars federal court collateral review of his claim that evidence obtained through a search incident to an allegedly invalid arrest was illegally used against him at trial.

Placek, like one of the Stone petitioners, predicated constitutional error on the use of evidence that was the fruit of a search incident to an allegedly invalid arrest. Id. at 469, 96 S.Ct. at 3039-40. The state trial and appellate courts each rejected Placek's constitutional claim after a full and fair hearing on the merits. Thus, we think it plain that Placek's claim is barred by the Stone holding that,

"where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Id. at 494, 96 S.Ct. at 3052.

II.

Placek next argues that the Miranda warnings given at the time he was taken into custody were constitutionally deficient because they failed to apprise him of his right to the immediate appointment of counsel. Placek was advised that he had the right to remain silent; that anything he said could be used against him; that "if he wanted an attorney present, he could have one"; and that "if he could not afford one, an attorney would be appointed through the Court for him." Placek's argument that these Miranda warnings were constitutionally deficient because they did not specifically advise him that he had the right to the immediate appointment of counsel has been previously addressed by this Court in United States v. Adams, 484 F.2d 357, 361-362 (7th Cir. 1973). In Adams we relied on United States v. Lamia, 429 F.2d 373 (2d Cir.), cert. denied, 400 U.S. 907, 91 S.Ct. 150, 27 L.Ed.2d 146 (1970), where similar warnings ¹ were said to have "effectively warned that (Placek) need not make any statement until he had the advice of an attorney." Id. at 377. We find no substantial distinction between the warnings given Placek and the warnings found constitutionally adequate in Adams and Lamia.

The cases cited by Placek in support of his argument are easily distinguishable. United States ex rel. Williams v. Twomey, 467 F.2d 1248 (7th Cir. 1972), United States v. Garcia, 431 F.2d 134 (9th Cir. 1970), and Coyote v. United States, 380 F.2d 305 (10th Cir.), cert. denied, 389 U.S. 992, 88 S.Ct. 489, 19 L.Ed.2d 484 (1967), each involved warnings that were internally inconsistent in that they advised the accused of the right to have an attorney present during questioning, but also indicated that an attorney could not be appointed until a later time. ² Here, in contrast, the warnings given Placek did not purport to take away in one sentence rights announced in another.

III.

Placek next contends that he was wrongfully convicted on the basis of an involuntary confession and evidence seized pursuant to an illegal search. He says that promises of leniency were made to him that vitiated the voluntariness of the statements used against him at trial, as well as the consent he gave police officers to search his apartment for other incriminating evidence. Hunter v. Swenson, 442 F.2d 625 (8th Cir. 1971), cert. denied, 404 U.S. 863, 92 S.Ct. 76, 30 L.Ed.2d 107 (1972). Though admitting that it was he who first raised the possibility of leniency in exchange for information, Placek asserts in his brief that, after his apprehension at the scene of the crime, both the arresting officer and the manager of the hotel victimized by his theft "made promises . . . that if he cooperated and gave a statement and helped in recovering other items, they would intercede for (him) and see that if prosecuted, (he) would be treated very leniently."

Placek raised this claim at his bench trial, and the trial court remarked in overruling Placek's objection to the admission of the contested statements that they were "clearly voluntary." Moreover, on cross-examination by Placek's counsel, the arresting officer explicitly denied that any such promises of leniency were ever made at the scene of the crime or at the stationhouse. Placek himself never went on the stand to testify to the contrary. The district court below also concluded that Placek's statements were voluntary, although we do not read the court's order as embodying a finding that promises of leniency were never made to Placek. See United States ex rel. Placek v. Illinois, No. 75 C 3615, at 4 (N.D. Ill. Mar. 3, 1975) (judgment order). In short, apart from the assertions of his counsel, there is nothing in the record to support Placek's contention that promises of leniency were made to him.

Recognizing the absence of evidence in the record showing that his confession was involuntary, Placek argues that he is entitled to an evidentiary hearing on the issue because he was denied his constitutional right to one at trial. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1963). Furthermore, because neither the state trial court nor the district court below ever made any explicit finding that promises of leniency were not made to him, Placek claims that he is also entitled to an evidentiary hearing on the issue under Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

As a practical matter, the two bases for an evidentiary hearing asserted by Placek collapse into one because Jackson requires the "reliable and clear-cut determination of the voluntariness of a confession, including the resolution of disputed facts upon which the voluntariness issue may depend," that would obviate the need for a Townsend hearing. 378 U.S. at 391, 84 S.Ct. at 1788. We turn, therefore, to Placek's Jackson claim.

IV.

During Placek's bench trial, the arresting officer testified on direct examination as to an incriminating statement that Placek had made at the scene of the crime after he had been given proper Miranda warnings. Placek's counsel immediately objected to the admissibility of that testimony, claiming that Placek's statement was involuntary because it had been induced by promises of leniency made by the arresting officer and the manager of the hotel victimized by the theft. The trial court, noting that it had heard no evidence that the statement was involuntary, overruled the objection. Placek's counsel then moved for a hearing on the voluntariness of the statement. The court responded:

"I think (the statement) was clearly voluntary. I don't think that it was coerced in any way or encouraged in any way by a police officer. I don't think there is any bearing for the motion at all or any grounds for the motion at this time.

The objection will be overruled, the motion denied."

The officer's testimony proceeded, and Placek's counsel asked that the record reflect his continuing objection to any testimony relating to statements made to the officer by Placek.

On cross-examination, Placek's counsel inquired as to whether the arresting officer or any representative of the hotel had told Placek that they would go easy on him if he told them where to locate items that had been stolen in previous thefts. The officer explicitly denied that any promises were made. Counsel also inquired as to whether promises of leniency conditioned on Placek's giving consent to search his apartment were made later at the stationhouse. Again the officer denied that any such promises were made.

Following that cross-examination, Placek's counsel renewed his motions to strike the officer's testimony and to hold a suppression hearing on the voluntariness of Placek's statements. He engaged the court and opposing counsel in argument concerning case law supportive of his motions. Though admitting that the cases he cited involved jury trials, Placek's counsel argued they were apposite in a bench trial setting as well:

"Now here we have just a bench trial, and believe me, you know, without sounding sycophantic, I know that your Honor has tried many cases before this time and knows what the law is and can separate the competent evidence from the incompetent evidence.

The only thing is this, Judge, that I think that the Court can not accept statements or confessions unless they are shown to be voluntary and once there is any indication that these statements are involuntary, then I...