USA ex rel. Cole v. LaVallee

Decision Date06 May 1974
Docket NumberNo. 73 Civ. 2051.,73 Civ. 2051.
PartiesU. S. A. ex rel. Frank COLE, Petitioner, v. Warden LaVALLEE, Clinton Correctional Facility, Dannemora, N. Y., Respondent.
CourtU.S. District Court — Southern District of New York


Frank Cole, petitioner pro se.

Louis J. Lefkowitz, Atty. Gen., for respondent; Arlene Silverman, Asst. Atty. Gen., of counsel.

GURFEIN, District Judge:

Frank Cole, presently incarcerated in Clinton Correctional Facility, Dannemora, New York, petitions for a writ of habeas corpus. A judgment was rendered against him in Supreme Court, Westchester County, convicting him of the crimes of Endangering the Welfare of a Child and Sodomy in the Second Degree. On September 22, 1972, he was sentenced to indeterminate terms of one year and seven years, respectively, the sentences to run concurrently.

He appealed his conviction and it was affirmed without opinion, People v. Cole, 42 A.D.2d 1051, 348 N.Y.S.2d 539 (2d Dept. 1972); and leave to appeal to the Court of Appeals was denied.

On June 25, 1973 I denied his petition for habeas corpus for failure to exhaust state remedies. 28 U.S.C. § 2254(b). He then tendered proof of his exhaustion of state remedies, including the denial of leave by the New York Court of Appeals referred to, and I directed the State Attorney General to file answering papers on the merits.

Upon examination of relator's pro se briefs on appeal in the New York courts, it appears that he has raised substantially the same arguments in the state courts that he is raising here. Respondent Attorney General so concedes. Thus, it would appear that relator is properly before this Court, having exhausted his state remedies, both procedurally, Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); and with respect to the specific subject-matter raised in the state courts, Picard v. Conner, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971).

Questions of Law Presented:

I. Was relator's automobile stopped without probable cause and was the search after arrest illegal?
II. Are the various perjuries purportedly committed by witnesses before the Grand Jury and at trial cognizable under habeas jurisdiction?
III. Was relator denied a speedy trial?
IV. Was relator denied effective assistance of counsel?

Statement of Facts:

Frank Cole is no stranger to either the state or federal courts of New York. His last brush with the law, commencing in 1956, led to a thirteen year incarceration in mental hospitals and prison before a writ of habeas corpus was sustained. United States ex rel. Cole v. Follette, 301 F.Supp. 1137 (S.D.N.Y. 1969), aff'd, 421 F.2d 952 (2 Cir. 1970). In that case, Cole had been accused of attempted sodomy, assault and criminal sexual practices upon an eleven-year old boy.

After his release by the state, he was indicted and convicted for the crime here involved, sodomy in the second degree against a thirteen-year old boy.

According to testimony at the trial, two detectives were sitting in an unmarked police car on an unrelated stake-out when they observed the defendant driving a car bearing Florida license plates to the top of a hill next to a Yonkers train station one evening in March, 1971. The detectives testified that the car proceeded down the street very slowly, weaving erratically, and returned in the direction whence it came. They observed one head visible in the car as it first passed them going down the hill with two heads seen on its return trip.

The police officers decided that the erratic driving and out-of-state license plates merited investigation and they attempted to make the car pull over for a routine license and registration check. As soon as the police turned on their police lights, however, the relator sped up his vehicle and attempted to elude them, leading the officers on a high speed chase for three to four miles until his car went into a ditch.

The officers ordered the relator out of the car, from which he emerged looking disheveled, with his fly open and his shirt pulled out. The passenger in the car, a thirteen-year old boy, whom the trial judge in marshalling the evidence in his charge to the jury, described as "young, immature, highly nervous, below average mentally, and a confused youth" told the police on the scene that he had just voluntarily committed oral sodomy with the defendant. The officer spotted a handkerchief in the front seat of the car in plain view and found it to be moist. The car was locked up at the scene and towed to the police station where, several days later, a police chemist tested the handkerchief and noted the presence of seminal fluid.


The defendant contends that there was no probable cause for the police to stop his car and that the handkerchief was not in plain sight, but on the floor of the car rather than in the front seat. He argues that it was not seized incident to a lawful arrest, and that its "seizure" several days after the arrest was unlawful in the absence of a search warrant.

Petitioner's claim is premised upon a purported lack of probable cause to stop his vehicle and subsequently to arrest him. He also contends that a subsequent seizure after the arrest had been completed required a search warrant for justification.

The police attempted to stop the car for a routine traffic law check, which is provided for by statute. Vehicle and Traffic Law, § 401(4), McKinney's Consol.Laws, c. 71. Instead of acceding to their obvious request to pull over, petitioner immediately sped away and attempted to elude the police, leading them on a high speed chase for three to four miles. When apprehended, he emerged from the car with his fly open and his shirt out. Upon speaking to the passenger and eliciting his statement of what had occurred, the police placed relator under arrest. It was contemporaneous with this arrest that the handkerchief was discovered.

Petitioner argues, inter alia, that the later warrantless seizure of the handkerchief in his car, days after arrest, was improper. The legality of the alleged later warrantless seizure turns on the validity of the initial search and seizure the evening of the arrest.

After the car was lawfully stopped, the statement of the young passenger was more than sufficient ground for probable cause to arrest the petitioner for the crime of sodomy. When the defendant was arrested in a vehicle capable of movement, search was permissible "of the area within the control of the arrestee." United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 471, 38 L.Ed.2d 427 (1973); Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed. 2d 456 (1973); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The handkerchief was plainly accessible to the defendant and under his immediate control at the moment he was placed under arrest. United States v. Artieri, 491 F.2d 440, 443 (2 Cir. 1974).

In any event, the state court found, after hearing the evidence, that the handkerchief was in plain view on the front seat, rather than, as petitioner contends, on the floor of the car. This Court has no basis for setting aside that finding of fact as it cannot be said to be clearly erroneous or the product of an improper constitutional standard. 28 U.S.C. § 2254(d); La Vallee v. Delle Rose, 410 U.S. 690, 93 S.Ct. 1203, 35 L. Ed.2d 637 (1973). In the circumstances found, the handkerchief could be valuable evidence to corroborate the young passenger's statement. Robinson, supra; Gustafson, supra; Chimel v. California, supra. Since it was observed by the police from a place where they had a lawful right to be, the handkerchief could be seized because it was "in plain view." Harris v. United States, 390 U. S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1967). Here the police officers had ample justification for their intrusion and the discovery of the obvious item of evidence was legitimately "inadvertent" rather than planned. United States v. Artieri, supra.

Under either the "plain view" doctrine or as a search incident to a lawful arrest, the evidence was properly received. Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); United States v. Carneglia, 468 F.2d 1084, 1090 (2 Cir. 1972), cert. denied, 410 U.S. 945, 93 S.Ct. 1391, 35 L. Ed.2d 611 (1973).

The petitioner apparently contends, however, that the handkerchief was not actually "seized" until several days later when the chemist received it for analysis. The petitioner accordingly relies on Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), and argues that there was sufficient time for the authorities to have obtained a judicial warrant which they failed to do. The difficulty with the argument is twofold. In Coolidge, the car itself was unlawfully searched, under no exigent circumstances, several days after the defendant had been arrested, where the vehicle itself was not seized incidental to his arrest either in time or place. The seizure of the handkerchief here was contemporaneous with the seizure of the car and relator's arrest. United States v. Edwards, 415 U. S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (March 26, 1974). Once the accused had been lawfully arrested, the effects in his possession that were subject to search at the time and place of arrest may be seized later for use as evidence without a search warrant. United States v. Edwards, supra. Here, since the police had authority to retain the car, Chambers v. Maroney, supra; United States v. Edwards, supra; United States v. Carneglia, supra; United States v. Ellis, 461 F.2d 962, 965-967 (2 Cir.), cert. denied, 409 U.S. 866, 93 S.Ct. 162, 34 L.Ed.2d 115 (1972) they surely had authority to retain the handkerchief, which they did. Nothing required the police to keep the handkerchief in a vault rather than in the car over which they had control. United States v. Edwards, supra; see United States v. Caruso, 358 F.2d 184, 185-186 (2 Cir. 1966).


Perjury at Trial:

Petitioner hurls many...

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