Winkle v. Kropp, Civ. A. No. 28558.
| Citation | 279 F. Supp. 532 |
| Decision Date | 02 February 1968 |
| Docket Number | Civ. A. No. 28558. |
| Parties | George H. WINKLE, Petitioner, v. George A. KROPP, Warden, State Prison of Southern Michigan, Respondent. |
| Court | U.S. District Court — Western District of Michigan |
D. Michael Kratchman, Detroit, Mich., for petitioner.
Frank J. Kelley, Atty. Gen. of Michigan, and Robert C. Goussy and William J. Mullaney, Asst. Attys. Gen., for respondent.
McCREE, Circuit Judge (sitting by designation).
This is a petition for a writ of habeas corpus. Petitioner, George H. Winkle, was convicted in a Michigan circuit court of carrying a concealed weapon and of having possession of burglar tools, and is presently incarcerated in the State Penitentiary of Southern Michigan. He contends that the evidence upon which his conviction was based was obtained through an unreasonable search in violation of the Fourth Amendment to the United States Constitution, which applies to the states by virtue of the Fourteenth Amendment, and which provides:
The right of the people to be secure in their houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Respondent contends that the search which disclosed the damaging evidence was, by accepted judicial standards, a reasonable one, and that, in any event, the evidence was rendered admissible by the following proviso in the section of the Michigan Constitution which prohibits unreasonable searches and seizures:
Provided, however, That the provisions of this section shall not be construed to bar from evidence in any court of criminal jurisdiction * * * any narcotic drug or drugs, any firearm, rifle, pistol, revolver, automatic pistol, machine gun, bomb, bomb shell, explosive, blackjack, slungshot, billy, metallic knuckles, gas-ejecting device, or any other dangerous weapon or thing, seized by any peace officer outside the curtilage of any dwelling house in this state. Mich.Const. of 1908 (as amended), Art. II, § 10.
Petitioner contends, with regard to this proviso, that it violates the Fourth Amendment and can therefore not be relied upon by state courts to render evidence admissible.
Winkle's conviction was affirmed by the Michigan Supreme Court in People v. Winkle, 358 Mich. 551, 100 N.W.2d 309 (1960). The petition for habeas corpus and certiorari which he filed in the Michigan courts was denied. He then sought Supreme Court review of this denial of post-conviction relief, and in Winkle v. Bannan, 368 U.S. 34, 82 S.Ct. 146, 7 L.Ed.2d 91 (1961), the Supreme Court remanded the case to the Michigan Supreme Court for consideration in light of Mapp v. State of Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed. 2d 1081 (1961), which had been decided shortly after the filing of Winkle's petition for certiorari. On remand, the Michigan Supreme Court again denied relief. In re Winkle, 372 Mich. 292, 125 N.W.2d 875 (1964), cert. denied, 379 U.S. 645, 85 S.Ct. 611, 13 L.Ed.2d 551 (1965), rehearing denied, 380 U.S. 967, 85 S.Ct. 1102, 14 L.Ed.2d 157 (1965). Having thus exhausted the remedies provided by the state, Winkle filed the instant petition.
The facts of the case are these. At approximately 2:00 a. m. on July 21, 1957, in Madison Township, Michigan, state policemen Golm and Pandol observed a car make a left turn against a red light and proceed to a motel 100 feet further along the highway. The car was driven by Winkle, who was accompanied by Lee Casteel. The troopers followed the Winkle car up to the motel driveway, honking twice. Winkle, who had previously telephoned the motel to inquire about accommodations, got out out of the car and walked toward the police car, and met Golm on the way. While Golm was conversing with Winkle, Pandol questioned Casteel.
Golm informed Winkle that the car had been stopped because it went through a red light. Golm asked for Winkle's driver's license, and Winkle displayed a Florida license bearing the name of George Henry Winkle. Winkle also displayed registration bearing the name of Henry Williams and explained that the car belonged to his brother-in-law. Winkle told Golm that he and his companion (whom he referred to as Philbrick, although his name was Casteel) intended to go fishing for 2 or 3 weeks around Detroit, and then return to Indianapolis, where he lived in a motel and his companion lived in an apartment on Central Avenue. In the meantime, Casteel told Pandol that he was going to see some girls in Toledo and return to Indianapolis in a few days, where he and Winkle shared an apartment on Central Avenue. Golm later questioned Casteel and Pandol questioned Winkle, and, although it is disputed, we accept the conclusion of the Michigan Supreme Court that both officers were aware of the conflicting stories.
Following the questioning, Pandol removed the keys from the ignition of the car and opened the trunk, where he found drills, chisels, keys, nitroglycerine, and other items ultimately introduced to prove Winkle's possession of burglar tools. Also found in the trunk was a bowling ball bag, which contained the 38-caliber revolver introduced to prove Winkle's possession of a concealed weapon.
When Golm was cross-examined at Winkle's trial, the following colloquy took place:
And the following transpired during the cross-examination of Pandol:
In considering Winkle's contention that the search of the car violated his rights under the United States Constitution, attention will first be directed to the matter of the reasonableness of the search. Only if the search is found to be unreasonable need there be any discussion of the proviso of the Michigan Constitution set forth above.
Seven of the justices of the Michigan Supreme Court considered Winkle's request for post-conviction relief, and all seven determined that the warrantless search had met the standard of reasonableness established by the Fourth Amendment. The justices differed, however, in the reasoning upon which their common conclusion rested.1
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...federal courts had not hesitated to reverse Michigan courts that failed to recognize the supremacy of federal law. In Winkle v. Kropp, 279 F.Supp. 532, 539 (ED Mich., 1968), rev'd on other grounds 403 F.2d 661 (CA6, 1968), Federal District Judge Wade McCree held:Whatever innovations might b......
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