Walker v. Beto
| Decision Date | 10 March 1971 |
| Docket Number | No. 30026.,30026. |
| Citation | 437 F.2d 1018 |
| Parties | Billy Mack WALKER, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert L. Owens, Dallas, Tex., for appellant.
Crawford C. Martin, Atty. Gen. of Texas, Nola White, First Asst. Atty. Gen., Alfred Walker, Executive Asst. Atty. Gen., Robert C. Flowers, Charles R. Parrett, Asst. Attys. Gen., Austin, Tex., for appellee.
Before JONES, BELL and SIMPSON, Circuit Judges.
This appeal is from the denial of habeas corpus relief to a Texas prisoner by the district court. We conclude that the appellant, Billy Mack Walker, did not demonstrate deprivation of any federally guaranteed constitutional rights, and accordingly affirm.
On June 20, 1964, about 3:45 A.M., Officer Gerald Husketh of the Garland, Texas, Police Department was on duty patrolling in a police cruiser north-bound on Shiloh Road in Dallas County, Texas. As he neared Halford Park he saw a vehicle without lights travelling south on Shiloh Road. The vehicle was stopped, turned around, and headed in a northerly direction on Shiloh Road still without the aid of headlights or tail-lights. The officer followed the automobile for approximately one quarter of a mile, whereupon the driver gave a right hand turn signal and proceeded to turn left on to Belt Line Road, when the lights of the automobile came on. Officer Husketh at this point observed a passenger in the car. The officer followed a short distance along Belt Line Road and signaled the vehicle to halt. It did so and the police car was stopped a short distance to its rear.
The car was a 1959 Ford with Oklahoma license plates. Appellant Walker, the driver, emerged from the car, met the officer between the two cars. Upon request he displayed a valid Oklahoma driver's license. The officer inquired as to the identity of the passenger in the car, now no longer visible, and was told by appellant that "some friends" were in the car. The officer then approached the Ford and with the aid of the flashlight, looked into the window of the car. Inside the car he observed two males lying on the seats, one in front and one in back. The passenger in the back seat had a brown jersey glove on his right hand. On the floor of the car the officer saw two steel pry bars protruding from a briefcase. He also observed two walkie-talkie sets on the seat of the car, and another object covered by a coat.
The officer then told the passengers to get out of the car and searched them for weapons. When several other officers arrived the automobile was searched. The object under the coat was found to be a safe which had been stolen from a grocery store in Garland. In addition to the pry bars, the briefcase contained bolt-cutters, a large concrete chisel, a drill, a screwdriver, vice grip pliers, a punch, and drill bits. A revolver was found tucked under the front seat.
Appellant was convicted of burglary by a jury in the Criminal District Court of Dallas County, Texas, on January 9, 1965 upon a plea of not guilty and received a confinement sentence to an indefinite term of two to ten years. The Texas Court of Criminal Appeals affirmed the conviction.
The appellant's first contention is that the shining of a flashlight through the window of the car to aid the policeman's view of the contents within constituted an illegal search of the car.1 The answer to that assertion was given by the Second Circuit in United States v. Barone, 1964, 330 F.2d 543, simply "That which is in plain view is not the product of a search." It is now settled law that criminal objects falling within the plain view of a police officer who has a right to be in a position to have the view are subject to seizure and may be introduced into evidence. Harris v. United States, 1968, 390 U.S. 234, 88 S. Ct. 992, 19 L.Ed.2d 1067; Theriault v. United States, 8 Cir. 1968, 401 F.2d 79, cert. denied 393 U.S. 1100, 89 S.Ct. 898, 21 L.Ed.2d 792; United States v. Bourassa, 10 Cir. 1969, 411 F.2d 69; Creighton v. United States, 1968, 132 U.S.App. D.C. 115, 406 F.2d 651. We reject the proposition urged by appellant that nothing untoward had been observed by the officer when he inspected Walker's valid driver's license between the two cars and walked forward to take a better look at the car. The argument is that Officer Husketh should then have permitted Walker to depart in peace, and violated Fourth Amendment rights by walking forward and looking into the car. We think the turning around of the car without lights, the misleading turn...
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