Walker v. Nelson, 71-2442.

• Decision Date: 24 October 1972
• Docket Number: No. 71-2442.,71-2442.
• Citation: 468 F.2d 451
• Parties: Alfred WALKER, Petitioner-Appellant, v. Louis S. NELSON, Warden California State Prison at San Quentin, and California Adult Authority, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

468 F.2d 451 (1972)

Alfred WALKER, Petitioner-Appellant, v. Louis S. NELSON, Warden California State Prison at San Quentin, and California Adult Authority, Respondents-Appellees.

No. 71-2442.

United States Court of Appeals, Ninth Circuit.

October 24, 1972.

Kenneth Drexler (argued), J. Thomas Rosch, of McCutchen, Doyle, Brown & Enersen, San Francisco, Cal., for petitioner-appellant.

Charles R. B. Kirk, Deputy Atty. Gen. (argued), Joyce F. Nedde, Deputy Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., Evelle J. Younger, Atty. Gen., San Francisco, Cal., for respondents-appellees.

Before LUMBARD,^* HUFSTEDLER and CHOY, Circuit Judges.

LUMBARD, Circuit Judge:

Alfred Walker appeals from an order of the District Court for the Northern District of California, entered July 6, 1971, denying his petition for a writ of habeas corpus. He questions the validity of his 1963 conviction in Alameda County for the possession for sale of marijuana on the ground that there was no probable cause for his arrest and the seizure of marijuana under the mattress of the bed on which he had been sleeping. We hold, as found by Judge Harris in the district court, that there was ample evidence before the Superior Court for Alameda County to show probable cause for Walker's arrest. In addition, we find that the lengthy proceedings in the federal courts commencing November 1965,¹ have failed to develop any evidence from which it may be argued that full and fair consideration was not given to petitioner's claim by the Alameda County Court. Accordingly, the petition was properly denied. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); 28 U.S.C. § 2254.

For the facts established at the 1963 state trial, it suffices to quote from the opinion of Presiding Judge Shoemaker of the California District Court of Appeal, First Appellate District, filed October 15, 1964:

"At approximately 12:30 p. m. on August 9, 1963, Edward Hilliard, an Oakland police officer attached to the Vice Control Section, received a telephone call from a female informant. The officer had known the informant, a special employee of the section, for two years. He considered her a reliable informant and testified that she had previously furnished him with information leading to the arrest and conviction of at least one person.

"On this occasion, the informant reported that she had met a man who had just come to Oakland from San Francisco and who had five bags of marijuana for sale. Although she did not know the man\'s name, she stated that he had taken Room 3 at the Dunbar Hotel, and that he intended to sell the marijuana as soon as possible and return to San Francisco.

"Upon receiving this information, Hilliard instructed the informant to meet him near the Dunbar Hotel. He and Officer Walker then proceeded to the agreed location, furnished the informant with a $20 bill, the serial number of which had been recorded, and instructed her to go to Room 3 of the hotel and attempt to make a purchase of marijuana from the person in question. No attempt to search the informant was made.

"The informant then drove to the hotel in her own car, with the officers following at a distance in another car. She entered the hotel and remained out of sight of the officers for approximately five minutes. Upon emerging from the hotel, she got into her car and drove to a prearranged spot, with the officers following. She then gave Hilliard a brown paper bag containing a vegetable substance which he took to be marijuana. The informant stated that she had purchased the bag from the man who was in bed in Room 3. She further stated that he had taken it from a larger bag which was under the mattress and which contained several other small bags. The officers did not search the informant to see if she still had the $20 bill in her possession.

"The officers then returned to the Dunbar Hotel, and Hilliard proceeded to Room 3 while Walker remained on the street where he could observe the window of said room. After Hilliard had knocked repeatedly on the door of the room without receiving any response, he went to the hotel manager\'s room to obtain a key. The manager then accompanied Hilliard and Walker to Room 3 and unlocked the door. Appellant was asleep in bed. Hilliard awakened him and identified himself as a police officer. Upon observing certain scars on the inside of appellant\'s elbows, Hilliard inquired as to their nature, and appellant replied that he had been using Percodan, a synthetic narcotic, for the last five days. Upon further questioning, he admitted that he had obtained the Percodan without a prescription. When asked whether he had Percodan or the equipment for injecting it in the hotel room, appellant replied in the negative, stating that he had used it up. The officer then asked if he could look around the room, and appellant replied, `Sure, go ahead and look. There is nothing here.\'

"After placing appellant under arrest for the illegal use of narcotics, Hilliard lifted the mattress on the bed and recovered a brown paper bag which contained four small bags, three cigarettes, and a package of wheat straw papers. The cigarettes and the contents of the four small bags were subsequently analyzed and found to be marijuana. When Hilliard showed

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