Wheeler v. Goodman, 2431.

• Decision Date: 05 March 1969
• Docket Number: No. 2431.,2431.
• Court: U.S. District Court — Western District of North Carolina
• Parties: Mrs. Raymond M. WHEELER, Next Friend of Harry Anthony Blackburn; Thomas Richard Bowen, alias Thomas Richard Brown; Wayne Eugene Funderburk; Marcus Corbett Helms; Merita Bridget Hummel; Joy Louise Kelley; Michael Dennis Lee; Jimmy Lee McKinney; Roberta Jean Shaw; Carlton Tadlock; Gay Dawn Smith and Mary Jean Wagner, Plaintiffs, v. J. C. GOODMAN, Jr., as Chief of Police of Charlotte, North Carolina; Robert M. Blackburn, as Clerk of Superior Court, Mecklenburg County, North Carolina; Captain William McCall; Sergeant L. L. McGraw; John Doe et al.; Richard Roe et al.; and Attorney General of North Carolina, Robert Morgan, Defendants.

298 F. Supp. 935

Mrs. Raymond M. WHEELER, Next Friend of Harry Anthony Blackburn; Thomas Richard Bowen, alias Thomas Richard Brown; Wayne Eugene Funderburk; Marcus Corbett Helms; Merita Bridget Hummel; Joy Louise Kelley; Michael Dennis Lee; Jimmy Lee McKinney; Roberta Jean Shaw; Carlton Tadlock; Gay Dawn Smith and Mary Jean Wagner, Plaintiffs, v. J. C. GOODMAN, Jr., as Chief of Police of Charlotte, North Carolina; Robert M. Blackburn, as Clerk of Superior Court, Mecklenburg County, North Carolina; Captain William McCall; Sergeant L. L. McGraw; John Doe et al.; Richard Roe et al.; and Attorney General of North Carolina, Robert Morgan, Defendants.

No. 2431.

United States District Court W. D. North Carolina, Charlotte Division.

March 5, 1969.

George S. Daly, Jr., Casey & Daly, Charlotte, N. C., Charles F. Lambeth, Jr., Thomasville, N. C., and Adam Stein, Chambers, Stein, Ferguson & Lanning, Charlotte, N. C., for plaintiffs and North Carolina Civil Liberties Union.

Frank B. Aycock, III, G. Patrick Hunter, Jr., Henry W. Underhill, Jr., and William Allen Watts, Charlotte, N. C., for defendants.

Andrew A. Vanore, Jr., Asst. Atty. Gen., of North Carolina, amicus curiae.

MEMORANDUM OF DECISION AND JUDGMENT

McMILLAN, District Judge.

PRELIMINARY SUMMARY

This case was heard on February 13 and 14 and February 20, 1969, upon the petition of the plaintiffs, the "hippies," for injunctive and other relief against the Charlotte Police Department, the vice squad, and others. The court is of the opinion that although the petitioners' conduct under inquiry is fully shown to be unconventional, unproductive and unattractive by everyday standards, the conduct is not shown to be unlawful; that the constitutional rights of the petitioners to freedom of assembly and expression and association, and their rights to be secure in their private dwelling, free from unreasonable searches and seizures, have been violated and threatened and suppressed by the actions of the police; and the police are directed in this order to refrain from such actions in the future.

The court makes the following

FINDINGS OF FACT

1. The plaintiffs, twelve in number, are minors varying in age from sixteen to twenty years, and pursuant to the rules of procedure have brought this action through a court appointed next friend, Mrs. Raymond M. Wheeler. Several of them lived and all of them visited from time to time at the "hippie house" at 216 East Kingston Avenue in Charlotte. In dress, manner, length of hair, speech, slouch and activity most of the plaintiffs appear to fit the "hippie" image. In court some wore beards and love beads. The gait and stance of the boys was anything but military. Some of the girls wore long pants. None fit the Horatio Alger picture of a young person setting out to "strive and succeed." None had much money. Most had no job. Some appeared truly to have "tuned out of the rat race." Their rented house was old, dirty, ill-furnished and poorly maintained. There was conflict in the testimony as to the respective parts which the landlord, the plaintiffs and the police played in the condition of the house. Window panes were broken; the roof leaked; heat, when they had it, came from wood fires in the fireplaces up and downstairs. The plumbing froze interrupting the water supply to the toilet. Mattresses on the floor were the chief items of furniture. They had parties. Guests and visitors sometimes drank, sometimes smoked, sometimes played guitars and sometimes made other loud noises. Visitors were numerous— more numerous than "normal."

2. The "hippie house" was a two-story private home at 216 East Kingston Avenue in the Dilworth section of Charlotte. It was the private home of several of the plaintiffs at all times pertinent to this case. In November of 1968 it was rented through a real estate agent by Joy Kelley; her fiance, Carlton Tadlock; the plaintiff Michael Dennis Lee and two other boys not actual parties to the suit. They occupied the house sharing rent and expenses. They drew up some house rules about expense sharing, room assignment, noise, drinking visitors and other items, and put these rules in a little "blue book." The rent was fully paid up at all times pertinent to this decision.

3. The plaintiffs on this record were law abiding. No crime was ever shown to have been committed at the "hippie house." In fact, so far as the record shows only one of the twelve plaintiffs was ever shown to have been convicted of crime anywhere. No narcotics were ever found nor anyone smelling like narcotics. No neighbors came to testify about noise disturbance although "complaints from neighbors" were covered in hearsay testimony. The only competent evidence about relationship with neighbors was testimony that the neighbors were noiser than the "hippies." Several of the plaintiffs who testified displayed a high degree of intelligence, clarity of speech, frankness and sense of relevance. Living or visiting at the "hippie house" or being a "hippie" was not shown to be unlawful and is not understood to be unlawful.

4. Starting shortly before mid-December, 1968, members of the vice squad of the Charlotte City Police and other local law enforcement officers commenced a series of unsolicited visits to the house. According to the testimony there were at least fourteen uninvited visits to the premises in the month covered by the testimony, and additional visits to the street outside, accompanied by accosting of guests or tenants, or by flashing of searchlights on the house, on several other occasions during the same period. Always, there were at least two and usually four or more officers—usually from the vice squad. No warrant was obtained for any visit or any search except the search of December 27, 1968.

5. A summary of the police action is as follows:

December 13, 1968, or thereabout: Police officers from the vice squad visited the house, searched the house, searched some of the occupants, searched suitcases and other personal effects. No warrant was displayed. Different officers gave different reasons why the search was made. No crime nor evidence of crime was found.

December 15, 1968: Police officers (four or more) from the vice squad came, without a warrant, and searched the house, "frisked" various occupants, took photographs, woke up Joy Kelley and Carlton Tadlock who were asleep, fully clothed, on a mattress on the living room floor. Joy Kelley was sick with `flu at the time. No evidence of crime was found. Guests in the house were ordered to leave the premises. Arrest of the occupants was threatened. The blue book which contained the house rules was made the subject of some sport by police officers and was taken from the house by the police. Joy Kelley and Carlton Tadlock were threatened with arrest if they continued to live together in the house without getting married. Kelley was instructed to get a license to run a boarding house. (There was no evidence that food was served or even prepared in the house except that some of the photographs show some open tin cans and a peck-sized plastic bag full of popcorn.')

December 27, 1968: Police knocked on the door. This time they had a warrant to search the premises for "narcotic drugs." One of the visitors in the living room went to the door; the doorknob pulled out of the lock in his hand (whether by design or by decrepit nature of the lock is not clear); within ten seconds the police had splintered the door open and were running through the living room without displaying the warrant, headed for the upper reaches of the house searching for narcotics. They also searched the persons of all occupants, tenants and visitors. The visitors were ordered to leave and threatened with arrest if they did not leave. No narcotic drugs nor any use of narcotic drugs was discovered. Joy Kelley demanded to see the warrant but it was not displayed.

January 5, 1969: Three policemen in plain clothes came to the house. A metal dummy of a policeman was hanging on the front porch. These officers said that the display of the metal policeman was making other police officers angry. They took it to the police station where it was being kept on the day of trial.

January 7, 1969: Police in a car accosted Roberta Shaw walking down the sidewalk away from the house. No particular untoward event occurred on that encounter.

January 8, 1969: Officers in uniform visited the house and gave notice to the occupants that if the premises were not "cleaned up" the health department would be called.

January 8, 1969: Officers visited the house, entered, and found a girl, said to be a South Carolina runaway wanted by her parents, and took her away.

January 9, 1969: Four officers from the vice squad, with some prearranged help from four officers of the county ABC Board, went to the scene on a "routine patrol," waited a couple of minutes in the street outside the house, heard some "profane talk" through a broken window, and then (eight officers in number) entered the house. Eighteen persons were searched and arrested for vagrancy and taken to the police station. Some were photographed. All were thumbprinted. Bonds were set for all of them and they were scheduled for trial next morning before the district criminal court. This was the first occasion, according to Officer Rowland, that he had ever arrested anybody for "vagrancy" while he was inside his own occupied house. Joy Kelley was threatened with arrest if she ever returned to the house. Some physical force was used to suppress those who complained most loudly over the arrest.

January 10, 1969: Several of the plaintiffs and the other "vagrancy" defendants were brought up for trial in the district criminal court, and had some discussion with the court and the prosecuting attorney. All defendants were ordered back into custody and within a few minutes thereafter they were ordered released. The technical status of the prosecution was that of "nolle prosequi with leave" which means

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