Donald Barnes Bradley v. Henry E. Cowan, Warden

561 F.2d 1213, 1977 U.S. App. LEXIS 11856
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 24, 1977
Docket76-2141
StatusPublished
Cited by6 cases

This text of 561 F.2d 1213 (Donald Barnes Bradley v. Henry E. Cowan, Warden) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Donald Barnes Bradley v. Henry E. Cowan, Warden, 561 F.2d 1213, 1977 U.S. App. LEXIS 11856 (6th Cir. 1977).

Opinions

EDWARDS, Circuit Judge.

This is an appeal from denial of a petition for writ of habeas corpus which had been remanded to the District Judge for hearing when it was first presented to this court. See Bradley v. Cowan, 500 F.2d 380 (6th Cir. 1974). After full hearing the District Judge has again denied the writ, this time holding as to appellant’s principal issue claiming violation of the Fourth Amendment by a warrantless search of his hotel room that his denial that the room in question was his warranted the police in relying upon the hotel manager’s consent to search that room. Hayes v. Cady, 500 F.2d 1212 (7th Cir.), cert. denied, 419 U.S. 1058, 95 S.Ct. 642, 42 L.Ed.2d 655 (1974).

Appellant claims that the warrantless search of a room which the police had probable cause to know he occupied was in violation of the Fourth Amendment. He claims that the admission, over objection, of objects found in that search requires issuance of the writ.

The state relies upon the District Judge’s opinion. It also argues that since Judge Gordon’s hearing and order denying relief, the Supreme Court’s opinion in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1046 (1976), now precludes relief to appellant, since the state asserts that appellant had a fair and full opportunity to litigate his Fourth Amendment claims before the state court.

Additionally, the state asserts that in the event we found a Fourth Amendment violation in the search of appellant’s room, the admission of evidence from that room was harmless error beyond reasonable doubt.

Appellant was convicted in the Jefferson County Circuit Court of armed robbery and sentenced to life imprisonment on November 1, 1967. The charge against him concerned the holdup of a drug store and the evidence disclosed that the drug store proprietor managed to get a description of the get-away car and its license plate so as to occasion police identification of the vehicle as belonging to appellant and arrest of the defendant in the car outside the hotel in question. Part of the loot from the robbery was seized from the floor of the car’s front seat at the time of appellant’s arrest. Testimony concerning this was not and is not the subject of any complaint.

After appellant’s arrest, he was taken by the police back to the hotel and with his consent a room (146) which he identified as where he had been staying was searched, with no results pertaining to the robbery. The hotel management then told one of the officers that appellant had been staying in another room (131) under an assumed name. The police asked appellant whether that was his room and he repeatedly replied that it was not. Thereupon the hotel manager opened the room, resulting in the seizure of a hat and coat, a paper bag, and a loaded [1215]*1215pistol. All of these items were introduced at appellant’s trial after being identified by the drug store owner as having been used in the robbery.

At appellant’s state court trial when these items were offered in evidence, there was an- objection based upon the Fourth Amendment which was abruptly denied without hearing. There had also been a preceding written motion to suppress this evidence filed in advance of trial which had been denied without hearing. I do not believe that Stone v. Powell, supra, eliminates the need for federal habeas scrutiny of this record. See Bradley v. Cowan, supra at 381.

The government in this appeal specifically disavows reliance upon any exigent circumstances as justifying this warrantless search.

In addition, there are factual distinctions between this case and Hayes v. Cady, supra. Appellant in this case had checked into this room, albeit under an assumed name, and had not checked out. No other occupant gave consent to the search in our instant case. Cf. Hayes v. Cady, supra, at 1214; Hayes v. State, 39 Wis.2d 125, 158 N.W.2d 545, 547-48 (1968), cert. denied, 394 U.S. 988, 89 S.Ct. 1474, 22 L.Ed.2d 763 (1970). Nor does appellant’s denial of possession of this room fit the consent search exception of Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

The officers who searched Room 131 clearly had probable cause to believe that it was a room which had been rented by appellant under an assumed name. In order to search it for evidence of the crime for which they had already arrested appellant, they needed either a search warrant, exigent circumstances which excused absence of the search warrant, or appellant’s voluntary and specific consent. See Bradley v. Cowan, supra at 381. Cf. United States v. Chadwick,-U.S.-, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). Since none of these prerequisites is present in this ease, I must conclude that the search was in violation of the Fourth Amendment.

The last issue in this case, however, concerns the government’s contention that even if the search was unconstitutional and the introduction of the evidence seized there was allowed in error, that the error was harmless beyond reasonable doubt under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). To determine this issue we examine the evidence of appellant’s guilt, other than that seized in the motel room, with a full awareness that that evidence was directly probative of the crime alleged.

The evidence properly and legally admitted at the state court trial included the following evidence pertaining to the store owner’s testimony:

Q. Will you tell the Court and the jury what, if anything, of an unusual nature occurred and happened to you on December 2nd, 1966 in the evening?
A. A little before 7:00 I had gone to the back of the store and I have a buzzer on the door that rings in the back of the store and when I heard this I walked up assuming I had a customer and this man was standing by my register. I said, “May I help you?” and there was a little space between the counter and the register and he walked up close and he had an automatic and just how he said it I don’t know but he told me to open the drawer and take the money out of the drawer. After I gave him the money he said, “Where’s the safe?” Well, I assumed he knew where the safe was because the safe was up in the front of my store there. He said, “Is there any money?” and I said “No” and he said, “Well, let’s go up and look at it.” And he came with me and I opened the safe and I have a cash box in the safe and it was open and he saw that there was money in it and he says, “Give me the whole thing. Don’t give me the box, just give me the money” and so I put it down on the case there and during that time several customers came in and I told them I’d be with them in a minute because I didn’t want them to realize what was going on and then they walked on around in the store. He had [1216]*1216this gun inside his coat during this time.

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Bluebook (online)
561 F.2d 1213, 1977 U.S. App. LEXIS 11856, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donald-barnes-bradley-v-henry-e-cowan-warden-ca6-1977.