United States v. Reincke

• Decision Date: 24 April 1964
• Docket Number: Civ. No. 9841.
• Citation: 229 F. Supp. 132
• Parties: UNITED STATES ex rel. Preston HOLLOWAY v. Frederick REINCKE, Warden Connecticut State Prison.
• Court: U.S. District Court — District of Connecticut

229 F. Supp. 132

UNITED STATES ex rel. Preston HOLLOWAY v. Frederick REINCKE, Warden Connecticut State Prison.

Civ. No. 9841.

United States District Court D. Connecticut.

April 24, 1964.

COPYRIGHT MATERIAL OMITTED

David Borden, Hartford, Conn., for petitioner.

John D. LaBelle, State's Atty., Hartford, Conn., for respondent.

BLUMENFELD, District Judge.

Petitioner, a prisoner in Connecticut State Prison, on December 18, 1956 was indicted for violation of the Uniform State Narcotics Drug Act¹ and for being a third offender under the Act. He pleaded not guilty to the first part of the indictment and was convicted by a jury. At the trial, several articles which had been found by police officers in a search of the petitioner's rented room in an apartment building were admitted without objection, as were an analysis of his urine, an incriminatory admission, and torn bills which were taken from his person. The verdict was returned on June 11, 1957 and on the same day petitioner pleaded guilty to being a third offender as charged in the second part of the indictment. On June 18, 1957 he was sentenced to be imprisoned in the state prison for the term of his natural life. This sentence for a third offender was mandatory at the time of sentencing.² The Connecticut Supreme Court of Errors affirmed the conviction and sentence on December 1, 1959³ and certiorari was denied by the United States Supreme Court on April 18, 1960.⁴

Petitioner, on April 30, 1962, petitioned the Superior Court for Hartford County, Connecticut, for a writ of habeas corpus, which was denied on May 17, 1962. His subsequent petition in October, 1962, "alleging illegal arrest and confinement, inadequate defense and cruel and unusual punishment" was also denied.⁵

Petitioner filed his petition for a writ in this court alleging that unconstitutionally seized evidence was admitted against him at his trial, that he was deprived of the assistance of counsel at a critical stage of the proceedings, and that his sentence constitutes cruel and unusual punishment. The court determined on the basis of the foregoing facts, without objection from the state, that petitioner had exhausted his state remedies. Fay v. Noia, 372 U.S. 391, 419-420, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).⁶ Counsel was appointed, the writ issued and an evidentiary hearing was held as required by Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963).⁷

Since the court concludes that the introduction at petitioner's trial of evidence obtained in violation of his constitutional rights prevents his conviction from any longer justifying his imprisonment, it is unnecessary to consider any other of petitioner's alleged grounds for relief.

THE SEARCH AND SEIZURE ITS CONSTITUTIONALITY

Findings of Fact

Petitioner came to Hartford in July, 1956, and rented a room in an apartment building on Portland Street in the Windsor Street section of the city. He had been in Hartford four days when, on the afternoon of July 7th, he was stopped while walking on Windsor Street by Officers Grant and Bolden of the Narcotics Division of the Hartford Police.

The officers had been informed by two pharmacists in the Windsor Street section that a man of petitioner's description had attempted to purchase empty capsules and a tin of milk sugar from them. In 1956 narcotics violations were frequent in this section of Hartford. The officers also had reliable information that a man of petitioner's description associated with known narcotic users. Petitioner was stopped when one of the pharmacists pointed him out as the one who attempted to buy capsules and milk sugar.

The officers approached petitioner from the rear, immediately informed petitioner that they were police officers and instructed him to step off the sidewalk into the next doorway. He complied. When Officers Grant and Bolden approached petitioner, they intended to subject him to at least a search of his person. If petitioner had not cooperated as he did, they would have taken him to the station on an admittedly unfounded charge of breach of the peace and searched him there.

Petitioner, at the request of the officers, took off his coat and rolled up his sleeves revealing needle marks on his arms, which petitioner said were old ones. At the further request of the officers, he emptied his pockets. He had $89 which he said he had won in a crap game. The missing part of a torn bill was of a size to suggest it had been used to administer narcotics.

Petitioner was then asked to take the officers to his room which was two or three minutes away on foot and on another street. Petitioner did so, unlocking the door to his room himself. In accordance with instructions, he took off his clothing so as to enable the officers to search the linings for narcotics. None was found. The officers then searched the room without objection from petitioner, who said that he had nothing to hide. Officer Bolden told petitioner that they would search with his permission, but he admitted that they probably would have searched in the absence of such permission. The search uncovered an eye dropper, a knife, a charred bottle top, an opened can of milk sugar, burnt matches and tissue paper — all useful in preparing narcotics for administration. These were seized by the officers who had no warrant.

Before leaving petitioner's room, the officers formally announced that he was under arrest for breach of the peace. The charge was changed two days later on July 9th. At the station petitioner admitted that he had two injections⁸ of narcotics recently and a urine sample was taken from him. Analysis of the urine disclosed that it contained morphine and quinine. Analysis of the can of milk sugar also revealed traces of morphine.

Conclusions of Law

Ultimately, petitioner's claim that his conviction was in violation of due process because obtained by introducing unconstitutionally seized evidence depends upon whether or not Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) is applicable. The preliminary question is whether the conduct of the officers violated the fourth amendment. See Ker v. California, 374 U.S. 23, 33, 83 S.Ct. 1623, 1630, 10 L.Ed.2d 726 (1963) (opinion of Clark, J.).⁹

The amendment provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The reasonableness of search depends in the first instance on the presence of either a valid arrest upon probable cause, Ker v. California, supra, 374 U.S. at 34-35, 83 S.Ct. 1623, 10 L.Ed.2d 726 (opinion of Clark, J.), or a valid search warrant. Neither existed here. Although the information received from the informers was sufficient to identify the petitioner, it was not sufficient to establish probable cause to believe that the petitioner had committed or was then committing a crime. See Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). That he had sought to buy gelatin capsules and milk sugar was not a crime. Nor would the added fact that he had associated with known narcotic users constitute any crime.

Even assuming arguendo that the initial detention constituted a valid arrest upon probable cause, the search extended beyond the area of permissible search incident to arrest. The permissible scope of incidental search and its underlying rationale have been stated most recently by the Supreme Court in Preston v. United States, 84 S.Ct. 881:

"Unquestionably, when a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime. Weeks v. United States, 232 U.S. 383, 392 34 S.Ct. 341, 344, 58 L.Ed. 652 (1914); Agnello v. United States, 269 U.S. 20, 30 46 S.Ct. 4, 5, 70 L.Ed. 145 (1925). This right to search and seize without a search warrant extends to things under the accused's immediate control, Carroll v. United States, supra, 267 U.S. 132, at 158 45 S.Ct. 280 at 287, 69 L.Ed. 543, and, to an extent depending on the circumstances of the case, to the place where he is arrested, Agnello v. United States, supra, 269 U.S., at 30 46 S.Ct. 4, at 5, 70 L.Ed. 145; Marron v. United States, 275 U.S. 192, 199, 48 S.Ct. 74, 77, 72 L.Ed. 231 (1927); United States v. Rabinowitz, 339 U.S. 56, 61-62 70 S.Ct. 430, 433, 94 L.Ed. 653 (1950). The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime — things which might easily happen where the weapon or evidence is on the accused's person or under his immediate control. But these justifications are absent where a search is remote in time or place from the arrest. Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest. Agnello v. United States, supra, 269 U.S., at 31, 46 S.Ct. 4, at 5, 70 L.Ed. 145." (84 S.Ct. at 883.)

Applying this test, the search of his room was clearly beyond the scope of permissible search incident to his original detention. The fact that the arrest was not formally announced until the officers and petitioner were at the apartment does not avoid this objection, for it is irrefutable that petitioner was subject to the control of the officers since the time of the original detention and that the officers entered the apartment for the purpose of searching and not for the purpose of making an arrest. See United States v. Festa, 192 F.Supp. 160, 163 (D.Mass.1960); United States v. Scott, 149 F.Supp. 837, 840 (D.D...