Wood v. Crouse, 125-68.

• Decision Date: 28 January 1971
• Docket Number: No. 125-68.,125-68.
• Parties: William Nay WOOD, Appellant, v. Sherman H. CROUSE, Warden, Kansas State Penitentiary, Lansing, Kansas, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

436 F.2d 1077 (1971)

William Nay WOOD, Appellant, v. Sherman H. CROUSE, Warden, Kansas State Penitentiary, Lansing, Kansas, Appellee.

No. 125-68.

United States Court of Appeals, Tenth Circuit.

January 28, 1971.

Duane F. Wurzer, Denver, Colo., for appellant.

Edward G. Collister, Jr., Asst. Atty. Gen., Topeka, Kan. (Kent Frizzell, Atty. Gen., Topeka, Kan., on the brief) for appellee.

Before TUTTLE,^* HILL and HOLLOWAY, Circuit Judges.

PER CURIAM.

In this case appeal was taken from a denial of Federal habeas corpus relief sought on the ground of the use of evidence obtained by an allegedly unconstitutional search of a car. We agreed with appellant that the Kansas convictions involved must be held invalid under Fourth Amendment principles and reversed. 417 F.2d 394. The Supreme Court vacated our judgment and remanded the case for further consideration in the light of its opinion in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, decided after our opinion on this issue. Crouse, Warden v. Wood, 399 U.S. 520, 90 S.Ct. 2234, 26 L.Ed.2d 778. We have now considered additional briefs submitted and have reexamined the record. We conclude that under the Chambers opinion the judgment of the District Court should be affirmed.

The sole issue raised in this habeas corpus proceeding was the Fourth Amendment claim. The relevant facts were not in material dispute and were stated in detail in the opinions of the Supreme Court of Kansas which sustained the convictions, State v. Wood, 190 Kan. 778, 378 P.2d 536; State v. Wood, 197 Kan. 241, 416 P.2d 729, and in our earlier opinion focusing on the search and seizure issue. We will summarize here only the controlling facts bearing on the existence of probable cause for search of the car.

A Sheriff stopped the car in which appellant and another man were traveling near Lyons, Kansas. He told appellant that this was in connection with some checks reported to have been stolen in Great Bend. The Sheriff had learned that an occupant of a car of a similar description had attempted to cash a check reportedly taken in the Great Bend burglary.¹ Another officer appeared shortly and searched appellant, finding in his shirt pocket a check of the Great Bend company that had been burglarized. The officers arrested the two men and took them to the county jail, leaving the car parked by the highway. The Sheriff testified that the arrests were for investigation.

The car was noticed on the highway by Kansas highway patrol officers who called in and were told the Sheriff would send the keys out and they were asked to bring the car to the county jail. One patrolman drove the car in as instructed and was then asked by the Sheriff to search the car at the jail. Before searching it he had learned of a report of the taking of some checks and of an attempt to pass such checks. He was not present when the arrests were made and did not know about the check that had been found on appellant's person. The search of the car involved looking under floormats, and into the trunk and similar searching. In the search without a warrant the patrolman found some 93 additional checks which were admitted in evidence and are the basis of the constitutional claim. The arrests and the search of the car occurred sometime after 6:30 p. m. on December 30, 1961, the search following the arrests by about twenty minutes. The patrolman said he supposed a warrant could have been obtained within an hour.

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