White v. Swenson
| Decision Date | 02 May 1969 |
| Docket Number | No. 1347.,1347. |
| Citation | 301 F. Supp. 447 |
| Parties | Charles Herbert WHITE, Petitioner, v. Harold R. SWENSON, Warden, Respondent. |
| Court | U.S. District Court — Western District of Missouri |
Robert G. Duncan, Kansas City, Mo., for petitioner.
John C. Danforth, Atty. Gen., State of Missouri, Jefferson City, Mo., for respondent.
MEMORANDUM AND ORDER GRANTING WRIT OF HABEAS CORPUS
This is a state prisoner habeas corpus case in which we need reach only the federal search and seizure question presented. For reasons we shall state, the writ must be granted. Execution of the writ, however, will be stayed in order to permit the State of Missouri to determine whether petitioner will be granted a new trial.
The first opinion written by the Supreme Court of Missouri in this case did not reach the federal search and seizure question on the merits. See State v. White, (Sup.Ct. of Mo.Div. 2, 1966) 408 S.W.2d 31, in which petitioner's conviction was affirmed on direct appeal. The court there applied its state rules of procedure in a manner which determined that "no point is preserved involving the court's action in overruling the motion to suppress" (408 S.W.2d at 34).1 Because it elected to postpone consideration of the federal search and seizure question on direct appeal, that question was not decided on the merits until the Supreme Court of Missouri heard a second appeal in which it affirmed the trial court's denial of petitioner's Missouri Rule 27.26, V.A.M.R. motion. See White v. State, (Mo.Sup.Ct., Div. 2, 1968) 430 S.W.2d 144. The question presented to this Court is whether controlling federal Fourth Amendment principles and standards were properly articulated and applied to the facts reliably found by the Missouri courts, to which appropriate deference may and will be given.
Although the Supreme Court of Missouri stated that its review of petitioner's state postconviction proceeding was "limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous" under Rule 27.26(j) (430 S.W.2d at 146), the findings of fact of the trial court were not set forth in its opinion. It is apparent that the findings of the Supreme Court of Missouri differed from those of the trial, both in form and in substance. The Supreme Court of Missouri stated the facts as follows:
At the hearing on the motion to suppress, and at the hearing on the motion filed pursuant to Rule 27.26, the testimony disclosed that Detective Sergeant Charles B. McKinnie was told by an informant that defendant was the person who committed a recent burglary of a drugstore in which narcotics had been stolen, and that defendant and narcotics which had been taken in that burglary, and possibly other narcotics, were in a house at 2104 East 59th Street, Kansas City, Missouri. Sergeant McKinnie knew the defendant, and he knew his reputation as a burglar and a narcotics user. He also knew that the robbery referred to had occurred. He had known his informant for 18 to 20 years, he knew him to be reliable, and he had many times received accurate information from him. Sergeant McKinnie stated that he considered the time element to be important, and approximately forty minutes after the information was received he and two officers arrived at the address furnished by the informant. One of the officers knocked on the door, and immediately thereafter they heard what they thought was a woman in the house screaming or calling for help. Sergeant McKinnie removed a screen from a window and looked in the house and saw defendant standing in the living room dressed only in shorts and holding a large roll of money. Defendant opened the door and he was told that he was under arrest. As the result of a search narcotics were found in the basement in a cereal box on the top of the furnace. While attempting to locate the woman that had been previously heard, Detective McKinnie looked in the bedroom and saw a hypodermic syringe and paraphernalia ordinarily employed in the use of narcotics. Defendant told the officers that the screaming of the woman was a part of a "soap opera" on the television, and no woman or person other than defendant was found in the house. 430 S.W.2d at 145-146
As they related to the search and seizure questions the trial court made the following findings:
The Supreme Court of Missouri obviously did not accept the emphasized portion of paragraph 6 of the trial court's finding that Detective McKinnie "saw narcotics on a chair" after he had removed a screen from a window and put his head inside the house immediately prior to the arrest of the defendant.
Under principles fully stated in Noble v. Swenson, (W.D.Mo.1968) 285 F.Supp. 385, we find that the Supreme Court of Missouri, in the exercise of its declared power of de novo review, reliably found the facts as they are stated in its opinion. We also defer to the Supreme Court of Missouri's determination that the trial court's finding that Detective McKinnie actually "saw narcotics on a chair" before petitioner was arrested should not be accepted. We agree with the implicit determination of the Supreme Court of Missouri that such a finding was not supported by any evidence in the record.2
Applicable federal standards command that evidence seized in a citizen's home as a result of a warrantless search must be excluded in the trial of a criminal case unless the search was in fact incident to a lawful arrest. And an arrest can not be said to be lawful unless, under the particular factual circumstances, it may be said that the arresting officer had probable cause to arrest the defendant. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), is the leading case governing criminal trials in the federal courts; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), is the leading case governing criminal trials in the state courts.
Proper application of the standards articulated in those cases and their progeny require a much more detailed examination of the particular facts involved than that accorded by the Supreme Court of Missouri. The relevant facts which control the disposition of this case are undisputed.
As a point of beginning, we defer to the Supreme Court of Missouri's finding that Detective McKinnie in fact accepted and acted solely on the word of an unnamed informer who told him that petitioner "was the person who committed a recent burglary and that defendant and narcotics which had been taken in that burglary, and possibly other narcotics, were in a house at 2104 East 59th Street" (430 S.W.2d at 145). We accept the Supreme Court of Missouri's findings that Detective McKinnie (a) "knew the defendant, and * * * his reputation as a burglar and a narcotics user;" (b) that he also "knew the robbery referred to had occurred;" and (c) that "he had known his informant for 18 to 20 years, he knew him to be reliable, and he had many times received accurate information from him". (Ibid). The Supreme Court of Missouri summarized its full factual findings by stating:
In this case Sergeant McKinnie knew defendant's reputation as a burglar and a narcotics user. He knew that a pharmacy had recently been burglarized and narcotics had been taken. The informant had been well known to Sergeant McKinnie for many years, and he had on numerous occasions supplied accurate and reliable information. Defendant was observed on the premises where the informant said he would be before he was placed under arrest. 430 S.W. at 146.
We accept that summary of findings of fact made by the Supreme Court of Missouri. Further deference to any factual findings made by the Missouri courts is unnecessary because no additional facts were or could have been reliably found. Detective McKinnie's testimony at the state postconviction evidentiary hearing establishes that he did not have any more information than that stated by the Supreme Court of Missouri. In regard to the extent of the information he had before he arrested petitioner and the sources of his informant's information, Detective McKinnie testified as follows:
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