U.S. v. Weir, 81-1009

• Decision Date: 02 September 1981
• Docket Number: No. 81-1009,81-1009
• Citation: 657 F.2d 1005
• Parties: UNITED STATES of America, Appellee, v. Gerald George WEIR, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1005

657 F.2d 1005

UNITED STATES of America, Appellee, v. Gerald George WEIR, Appellant.

No. 81-1009.

United States Court of Appeals,

Eighth Circuit.

Sept. 2, 1981.

Roxanne Barton Conlin, U. S. Atty., Terry Wright, Asst. U. S. Atty., Des Moines, Iowa, for appellee.

Gerald George Weir, pro se.

Before ROSS, Circuit Judge, GIBSON, Senior Circuit Judge, and STEPHENSON, Circuit Judge.

PER CURIAM.

Gerald George Weir appeals pro se from the district court's ¹ grant of summary judgment in favor of the United States in Weir's petition for post-conviction relief brought pursuant to 28 U.S.C. § 2255.

Weir and his co-defendant, Daniel Wesley Davis, were convicted by a jury of bank robbery in violation of 18 U.S.C. § 2113(d); each was sentenced to twenty years' imprisonment. Due to error, primarily in the admission of "other crimes" evidence, this court reversed the conviction and ordered a new trial. United States v. Weir, 575 F.2d 668 (8th Cir. 1978). Upon retrial, both defendants were again found guilty of the offenses charged and again sentenced to twenty years' imprisonment. The Eighth Circuit affirmed those convictions in United States v. Davis, 597 F.2d 648 (8th Cir. 1979).

This proceeding began when Weir filed his section 2255 petition, pro se, in 1979. The petition alleged trial counsel was ineffective in failing to hire an independent expert to evaluate hair samples taken from Weir and in failing to object, preserve for error, or raise on appeal the fact that hair samples were taken without defendant's consent. It also alleged the seizure of the hair samples violated the fourth amendment in that no consent was obtained and unreasonable force was administered. The district court denied Weir's motion for summary judgment, but granted that of the Government.

The controversy surrounding the taking of Weir's hair samples results from the following incident. FBI agents investigating the bank robbery recovered clothing, including ski masks, which an informant told them had been worn by Davis and Weir in the robbery. According to the investigative report made at the time, two FBI agents came to the Story County, Iowa, jail where Weir and Davis were in custody. They identified themselves and advised Weir of his rights, whereupon Weir stated he understood his rights but did not wish to sign a form to that effect. Agent Stephenson explained to Weir that he wished to take hair samples from Weir's head and beard. Weir replied that he would voluntarily comply, but that the agents "could certainly hear about this in court." Agent Mall specifically asked Weir if he was submitting voluntarily to the taking of the hair, but just protesting because he did not think it was right. When Weir responded that that was correct, the agents proceeded to take samples of hair from Weir's head, beard, and mustache by combing and plucking the same. Weir substantiates this version of the incident only in part. He claims that the agents told him they would take the samples whether he liked it or not, and that he submitted only because he believed there would be physical violence if he did not submit.

On appeal Weir claims the district court erred in denying his motion for summary judgment because (1) the hair samples were taken without his consent and by use of unreasonable physical force in violation of the fourth amendment, and (2) he was denied effective assistance of counsel in violation of the sixth amendment due to his attorney's failure to hire an independent hair expert. Weir does not raise ineffective assistance of counsel due to the attorney's failure to object to the admission of the hair samples.

As we begin our inquiry we note the proposition that "the Fourth Amendment's proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner." Schmerber v. California, 384 U.S. 757, 768, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966). Initially assuming, arguendo, that Weir did not consent to the taking of his hair, we must decide whether the FBI agents were justified in the first instance in requiring Weir to give the samples, and whether the manner of taking respected reasonableness standards of the fourth amendment. Id.

Unquestionably, the Government had good reason to examine Weir's hair. The FBI had previously recovered clothing which, according to an informant, Weir wore in the robbery; strands of hair found on a ski mask were to be compared with Weir's hair.

As Schmerber held, the mere fact of lawful arrest does not necessarily justify the intrusion of a search beyond the body's surface. It must still be determined if the search was reasonable. The facts of Weir's case are similar to the facts in United States v. D'Amico, 408 F.2d 331 (2d Cir. 1966). There, a federal agent, without consent or a search warrant, clipped several strands of hair from D'Amico's head while he was in custody. The Second Circuit, while conceding the seizure might be subject to fourth amendment considerations, held:

Here there was only the slightest intrusion (if...