United States v. Walker, No. 20235.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtTUTTLE, , and RIVES and MOORE, Circuit
Citation323 F.2d 11
Decision Date29 October 1963
Docket NumberNo. 20235.
PartiesUNITED STATES ex rel. Victor LINK-LETTER, Appellant, v. Victor G. WALKER, Warden, Louisiana State Penitentiary, Angola, Louisiana, and the State of Louisiana, Appellees.

323 F.2d 11 (1963)

UNITED STATES ex rel. Victor LINK-LETTER, Appellant,
v.
Victor G. WALKER, Warden, Louisiana State Penitentiary, Angola, Louisiana, and the State of Louisiana, Appellees.

No. 20235.

United States Court of Appeals Fifth Circuit.

September 12, 1963.

Rehearing Denied October 29, 1963.


Victor Linkletter, in pro. per.

Scallan E. Walsh, Asst. Atty. Gen. of La., Baton Rouge, La., Jack P. F. Gremillion, Atty. Gen. of La., for appellees.

Before TUTTLE, Chief Judge, and RIVES and MOORE,* Circuit Judges.

RIVES, Circuit Judge.

This is an appeal from a denial of a writ of habeas corpus. On May 28, 1959, the petitioner, Victor Linkletter, was convicted in the criminal district court for the Parish of Orleans for the crime of simple burglary. This judgment was affirmed by the Louisiana Supreme Court February 15, 1960, and rehearing was denied on March 21, 1960. Petitioner is presently serving a nine-year sentence at hard labor in the Louisiana State Penitentiary.

On December 8, 1961, after the decision in the case of Mapp v. Ohio, 1961, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d

323 F.2d 12
1081, the Judicial District Court of the Parish of West Feliciana denied petitioner a writ of habeas corpus which was based on the same grounds as the present petition. An appeal of this ruling to the Louisiana Supreme Court was likewise unsuccessful and rehearing was denied. A petition for writ of certiorari was denied by the United States Supreme Court on June 18, 1962. Linkletter v. Walker, 1962, 370 U.S. 928, 82 S.Ct. 1570, 8 L.Ed.2d 507. This petition for habeas corpus was filed in forma pauperis in the Eastern District of Louisiana on July 10, 1962. The State concedes exhaustion of state remedies

The main questions presented by this appeal are whether certain evidence used against petitioner was obtained by unlawful search and seizure, and if so, whether Mapp v. Ohio, supra, applies retroactively so as to subject this conviction, obtained prior to Mapp, to collateral attack.

Although there is some dispute as to the facts of the case, even the State's version suffices to show an illegal search and seizure. On August 16, 1958, a bar in New Orleans was burglarized and investigation revealed that entry had been gained through a window or skylight on the third floor. Burglar tools were found at the scene of the crime. Thereafter, on August 24, New Orleans police officers commenced a stakeout at the St. Charles Hotel, which commanded a view of the square, or block, in which the burglary had been committed. In the course of the surveillance, officers observed petitioner and another enter a building in this block. They were carrying two objects that appeared to be oxygen tanks. The building they entered afforded ready access to other buildings in the block. Petitioner was seen to open a window on the third floor of the building, climb out on the roof, and re-enter the building. He was shirtless and was wearing a pair of gloves. Shortly thereafter, as the two men left the building, they were arrested.

The arresting officers took the two men back to the third floor of the building and on the roof found an assortment of burglar tools and three loaded pistols. Petitioner was also searched and a key to his apartment was uncovered. Thereupon, he was taken by the police officers to his home, six to seven blocks away, and further evidence was uncovered. On August 26, officers again went with petitioner to his apartment and in addition went to his place of business, where other evidence was seized.

Petitioner's arrest was made without a warrant; and the search of his person, at the time of his arrest, and the searches of his residence and place of business, were all made without a search warrant. All of the above evidence was introduced against petitioner at his trial.

The district court held that the arresting officers had reasonable cause for arrest under Louisiana law and probable cause within the meaning of the Fourth Amendment. Thus the arrest without a warrant was held lawful. The court also held that "there can be no doubt" as to the validity of the ensuing search and seizure, since where the arrest is lawful, subsequent search and seizure incident to arrest is likewise valid.

Even if it is assumed that the arrest was lawful, we cannot agree that the searches of petitioner's apartment and place of business were incidental thereto. The right to search incident to arrest does not extend to places other than that of the arrest. Agnello v. United States, 1925, 269 U.S. 20, 30, 46 S.Ct. 4, 70 L.Ed. 145; Silverthorne Lumber Co. v. United States, 1920, 251 U.S. 385, 390, 40 S.Ct. 182, 64 L.Ed. 319; Staples v. United States, 5th Cir., 1963, 320 F.2d 817. In Agnello the defendant was arrested when he was in the home of another. While the defendant was being taken to the police station, other officers searched his home, which was several blocks distant from the place of arrest. The Court held this search to be unlawful. Applying that holding to the present case, the subsequent searches of petitioner's apartment and place of business without a warrant were likewise illegal.

323 F.2d 13

At the time when the searches took place (August 1958) and when the petitioner's conviction became final (March 1960), the case of Wolf v. Colorado, 1949, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 was controlling. It had held that the Fourteenth Amendment did not impose upon the states the requirement that illegally seized property be excluded from evidence. However, on June 19, 1961, the Supreme Court overruled Wolf in Mapp v. Ohio, supra, thus making the exclusionary rule a constitutional requirement under the Fourteenth Amendment. Since petitioner timely objected to the introduction of this evidence and since exhaustion of state remedies has been conceded, the case before us squarely presents the issue of whether the rule in Mapp applies in a collateral attack on a pre-Mapp conviction. We hold that it does not.

It has been said that questions relating to the retroactivity of opinions "are among the most difficult of those which have engaged the attention of courts, state and federal." Chicot County Drainage District v. Baxter State Bank, 1940, 308 U.S. 371, 374, 60 S.Ct. 317, 319, 84 L.Ed. 329. Indeed, the retroactivity of Mapp is not a simple problem. Note, 25 Geo.B.J. 238, 242 (1962). As one author has stated, "The problem is not one of discovering a wholly satisfying or wholly logical solution, for none exists." Bender, "The Retroactive Effect of an Overruling Constitutional Decision: Mapp v. Ohio," 110 U.Pa.L.Rev. 650, 679 (1962). Ultimately, the solution must come from the Supreme Court. In the meantime, however, it is the obligation of the lower courts to endeavor to reach an authoritative, logical and just result.

Before proceeding further, it is necessary that the terms "retroactive" and "prospective," as used in this opinion, be defined. A purely prospective opinion would be one in which the new rule of law is limited to the future only and not even made applicable to the case before the court. See, generally, Great Northern Railway Co. v. Sunburst Oil & Refining Co., 1932, 287 U.S. 358, 53 S. Ct. 145, 77 L.Ed. 360. This is not the situation here, however, since the exclusionary rule in Mapp was applied to reverse Miss Mapp's conviction.1 Also, the recent Supreme Court decision in Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), applied Mapp where the seizure and trial were before the Mapp decision but the direct appeal was not until after Mapp was rendered.2 Thus, we are only now concerned with whether or not Mapp applies to a conviction which had become final before that case had been decided, and we accordingly limit the terms "prospective" and "retroactive." This opinion does not deal with the availability of collateral attack on a post-Mapp conviction.

We must first reach the question of whether a holding of prospective application, as used in this case, would be constitutional. The Supreme Court in Chicot County Drainage District v. Baxter State Bank, 1940, 308 U.S. 371, 374, 60 S.Ct. 317, 319, 84 L.Ed. 329, said:

"The effect of the subsequent ruling as to invalidity of an unconstitutional statute may have to be considered in various aspects, — with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, or prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous
323 F.2d 14
application, demand examination * * *. It is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity of statutes cannot be justified."

And in Great Northern Railway Co. v. Sunburst Oil & Refining Co., supra, the Supreme Court held that a purely prospective decision of the Montana Supreme Court, overruling an earlier determination by that court, was not unconstitutional. The Supreme Court, through Mr. Justice Cardozo, stated that such a diversion in time of the effects of a decision, whether sound or unsound, is not a denial of any federal constitutional right — the federal Constitution has no voice on the subject. He stated that "never has any doubt been expressed" that a court may so rule, whenever injustice or hardship will thereby be averted. 287 U.S. at 364, 53 S.Ct. at 148, 77 L.Ed. 360.3

Thus constitutional, is there a philosophical barrier to the prospective overruling of a prior decision?4 The traditional Blackstonian view was that a court does not pronounce a new law, but maintains and expounds the old one; when a decision has been overruled, the first one was merely evidence of the law, which had turned out to be erroneous evidence. See Note, 71 Yale L.J. 907, 908 (1962). That is, a judge finds the law; he does not make it. This theory, when...

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43 practice notes
  • Joe Sterling Et Al. on Habeas Corpus, In re, Cr. 10320
    • United States
    • California Court of Appeals
    • June 22, 1965
    ...Dalton v. Myers, 342 F.2d 202 (3rd Cir. 1965); Hall v. Warden, 313 F.2d 483 (4th Cir. 1963); United States ex rel. Linkletter v. Walker, 323 F.2d 11 (5th Cir. 1963), affirmed 85 S.Ct. 1731 (June 7, 1965); Crawford v. Bannan, 336 F.2d 505 (6th Cir. 1964); Sisk v. Lane, 331 F.2d 235 (7th Cir.......
  • Lopez, In re, Cr. 7794
    • United States
    • United States State Supreme Court (California)
    • January 29, 1965
    ...Massiah; thus, we use the terms 'propective' and 'retroactive' accordingly. See United States ex rel. Linkletter v. Walker (1963) 5 Cir., 323 F.2d 11, We shall assume, for the purposes of this analysis, that the decisions which we shall hereinafter designate under the generic term of Escobe......
  • United States v. LaVallee, No. 131-135
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • March 26, 1964
    ...hardly be expected to "deter" searches which took place prior to the date of its decision. See United States ex rel. Linkletter v. Walker, 323 F.2d 11 (5th Cir. 1963). It is not now necessary to express any view as to the validity of this sort of analysis, and we expressly disclaim any inte......
  • Collins v. Beto, No. 21739.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 21, 1965
    ...Pate v. Holman, supra, 341 F.2d at 776, or "to provide fairness in procedure." United States ex rel. Linkletter v. Walker, 5 Cir., 1963, 323 F.2d 11, 19. The Escobedo rule fits into this In Escobedo the Court noted that the time when police interrogation began to focus upon the accused "was......
  • Request a trial to view additional results
43 cases
  • Joe Sterling Et Al. on Habeas Corpus, In re, Cr. 10320
    • United States
    • California Court of Appeals
    • June 22, 1965
    ...Dalton v. Myers, 342 F.2d 202 (3rd Cir. 1965); Hall v. Warden, 313 F.2d 483 (4th Cir. 1963); United States ex rel. Linkletter v. Walker, 323 F.2d 11 (5th Cir. 1963), affirmed 85 S.Ct. 1731 (June 7, 1965); Crawford v. Bannan, 336 F.2d 505 (6th Cir. 1964); Sisk v. Lane, 331 F.2d 235 (7th Cir.......
  • Lopez, In re, Cr. 7794
    • United States
    • United States State Supreme Court (California)
    • January 29, 1965
    ...Massiah; thus, we use the terms 'propective' and 'retroactive' accordingly. See United States ex rel. Linkletter v. Walker (1963) 5 Cir., 323 F.2d 11, We shall assume, for the purposes of this analysis, that the decisions which we shall hereinafter designate under the generic term of Escobe......
  • United States v. LaVallee, No. 131-135
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • March 26, 1964
    ...hardly be expected to "deter" searches which took place prior to the date of its decision. See United States ex rel. Linkletter v. Walker, 323 F.2d 11 (5th Cir. 1963). It is not now necessary to express any view as to the validity of this sort of analysis, and we expressly disclaim any inte......
  • Collins v. Beto, No. 21739.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 21, 1965
    ...Pate v. Holman, supra, 341 F.2d at 776, or "to provide fairness in procedure." United States ex rel. Linkletter v. Walker, 5 Cir., 1963, 323 F.2d 11, 19. The Escobedo rule fits into this In Escobedo the Court noted that the time when police interrogation began to focus upon the accused "was......
  • Request a trial to view additional results

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