United States v. Wainwright

• Decision Date: 16 June 1967
• Docket Number: No. 67-267-Civ-CF.,67-267-Civ-CF.
• Citation: 269 F. Supp. 276
• Parties: UNITED STATES of America ex rel. Larry FLETCHER, Petitioner, v. Louie L. WAINWRIGHT, as Director of Division of Corrections of Florida and ex officio jailer of Raiford State Prison, Respondent.
• Court: U.S. District Court — Southern District of Florida

269 F. Supp. 276

UNITED STATES of America ex rel. Larry FLETCHER, Petitioner, v.Louie L. WAINWRIGHT, as Director of Division of Corrections of Florida and ex officio jailer of Raiford State Prison, Respondent.

No. 67-267-Civ-CF.

United States District Court S. D. Florida.

June 16, 1967.

Jack Nageley and Judith A. Brechner, Miami Beach, Fla., for petitioner.

Barry Semet, Asst. Atty. Gen., Miami, Fla., for respondent.

ORDER

FULTON, Chief Judge.

Petitioner is presently serving concurrent sentences in the Florida State Prison at Raiford, Florida, upon convictions for grand larceny and breaking and entering.He seeks a writ of habeas corpus on the grounds that he was unlawfully arrested without a warrant, and that evidence obtained without a search warrant and by means of an unreasonable search was introduced against him at trial.

It is by now well established that an alleged unlawful arrest without a warrant is not grounds for issuing a writ of habeas corpus under 28 U.S.C. § 2254 unless that arrest in some way deprived petitioner of a fair trial.Fernandez v. Klinger, 346 F.2d 210(9th Cir.1965);Green v. Yeager, 223 F. Supp. 544(D.C.N.J.1963), aff'd332 F.2d 794(3rd Cir.1964);Howard v. State of Florida, D.C., 259 F.Supp. 499(Fla.1966).

Petitioner alleges that he was deprived of a fair trial in that evidence obtained by an unreasonable search without a warrant was introduced against him at trial.The facts surrounding the alleged search are admitted by both petitioner and respondent, so that the only question remaining for this Court to decide is whether the search was unreasonable as a matter of law.

Briefly these facts may be set forth as follows.After receiving a radio report of a window smashing at the jewelry shop in the Fontainebleau Hotel by three men in a 1962 or 1963 red Chevrolet, Miami Beach police officers traced a red automobile with a warm engine found in the parking lot of the nearby Moulin Rouge Motel as having been rented by the occupant of Room 209 of the Moulin Rouge Motel.When the officers knocked on the door to Room 209 and identified themselves, the occupant responded "just a minute."After more knocks and a few minutes, one officer began to kick in the door, while another officer ran downstairs and outside Room 209.Scattered on the ground and in the shrubbery below, he found the jewelry, jewelry stand and clothing whose admission into evidence has been strongly contested by petitioner.That jewelry was later identified by the Fontainebleau shop as the jewelry which had been snatched in the window smashing.The other officer who had kicked in the door to Room 209 found the room empty, its window open, and seized nothing therein which was later admitted into evidence at trial.

The search of Room 209 by the officer who kicked in the door cannot be complained of, for no fruits of that search were used against petitioner at trial.Merritt v. State of Florida, CaseNo. 64-702-Civ-CF, United States District Court, Southern District of Florida, Order of September 22, 1966.Indeed, it is not disputed that this officer found nothing in Room 209, so that his search was fruitless.

Petitioner's grievance is directed at the search of the ground and shrubbery outside and directly below Room 209, which search produced the jewelry, jewelry stands and clothing later admitted into evidence against him at his trial.Before petitioner can claim that his Fourth Amendment rights have been violated by an unreasonable search and seizure, it must be shown that the area searched was one that is constitutionally protected by the Fourth Amendment.

Although it has been held that the inside of a hotel room...