Fred Dean Manning v. Gale Jarnigan, Sheriff

501 F.2d 408, 1974 U.S. App. LEXIS 7407

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 30, 1974
• Docket: 73-1463
• Status: Published

Opinions

EDWARDS, Circuit Judge.

This is an appeal from the denial without an evidentiary hearing of a petition for writ of habeas corpus. We reverse and remand for such a hearing.

Appellant had been convicted by a jury in a Tennessee state court on two charges of unlawful sale of legend drugs (barbituates) and one charge of unlawful possession of such drugs without a prescription, in violation of Tenn.Code Ann. §§ 52-1204 and 52-1206 (1966). On each count he received a sentence of five years imprisonment, with the three sentences to be served consecutively. His convictions were reversed by the Court of Criminal Appeals of Tennessee, the conviction for unlawful possession was dismissed, and two convictions of unlawful sale were remanded for a new trial. The Tennessee Supreme Court, however, reversed the Court of Criminal Appeals and reinstated the convictions. State v. Manning, Tenn., 490 S.W.2d 512 (1973).

The facts disclosed by the record of the state court trial include the following. Appellant was stopped by police while driving about 20 miles per hour in a 30 mile per hour zone about 4 a. m. in Morristown, Tennessee. The officer who arrested him called another squad car to the scene and then stopped appellant by flashing a spotlight on his car. The officer admitted that appellant was not violating any traffic law and that he had no reason to believe he had committed any crime. The officer testified at the state court trial that he stopped appellant because the chief of police had issued an order “to check out all cars late at night.” He testified that he thought this car was suspicious because it was out late and driving slowly.

Upon stopping appellant’s car, the first police officer on the scene testified that he recognized the driver as appellant whom he knew as a bootlegger. The officer testified that he then asked if they could search his car and that appellant said that they could and opened the trunk. Appellant testified that the officer told him to open his trunk and that he did. Two officers then searched the trunk and the car. They seized some books described as “sex books” and some women’s bikini pants from the trunk, and some pills and a pengun from the car.

Appellant contends that the search of the automobile was illegal and that the evidence seized should not have been admitted at the trial. The government asserts that appellant consented to the search. The first basis for appellant’s objection is that the stopping of appellant was unlawful because it was not based on probable cause.

Of course, “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). However, the circumstances in the case before us are different from those in Terry.1 This record offers no other explanation for the stop than the testimony of one of the officers that “we like to check them out to see who they are.”

The difference between an investigatory stop and an arrest has yet to be spelled out. See generally Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). The Supreme Court of the United States has said this about the question as to when an arrest occurs :

“When the officers interrupted the two men and restricted their liberty of movement, the arrest, for purposes of this case, was complete. It is, therefore, necessary to determine whether at or before that time they had reasonable cause to believe that a crime had been committed. The fact that afterwards contraband was discovered is not enough. An arrest is not justified by what the subsequent search discloses, as Johnson v. United States [333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436], supra, holds.” Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959).

This court has held:

“It appears to this court that the arrest was actually made by Officer Miller when he detained Baxter for the several minutes before Reimer’s arrival. The government concedes that this was an arrest. Further, this was clearly a deprivation of liberty under the authority of law. It does not take formal words of arrest or booking at a police station to complete an arrest. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Long v. Ansell, 63 U.S.App.D.C. 68, 69 F.2d 386 (1934), aff’d, 293 U.S. 76, 55 S.Ct. 21, 79 L.Ed. 208 (1934); Coleman v. United States, 111 U.S.App.D.C. 210, 295 F.2d 555 (1961) cert. denied, 369 U.S. 813, 82 S.Ct. 689, 7 L.Ed.2d 613 (1962); cf. (dictum), United States v. Vita, 294 F.2d 524, 529-530 (C.A. 2, 1961), cert. denied, 369 U.S. 823, 82 S.Ct. 837, 7 L.Ed.2d 788 (1962).” United States v. Baxter, 361 F.2d 116, 118-119 (6th Cir.), cert. denied, 385 U.S. 834, 87 S.Ct. 79, 17 L.Ed.2d 69 (1966).

See also Young v. United States, 140 U.S.App.D.C. 333, 435 F.2d 405 (1970); Bailey v. United States, 128 U.S.App.D.C. 354, 389 F.2d 305 (1967); Brown v. United States, 125 U.S.App.D.C. 43, 365 F.2d 976 (1966).

Our view on this score is strengthened by the recent opinion of the United States Supreme Court in Almeida-San-chez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). In holding a stop and search of a car within 25 miles of the Mexican border to be invalid without a search warrant, the Court said:

“No claim is made, nor could one be, that the search of the petitioner’s car was constitutional under any previous decision of this Court involving the search of an automobile. It is settled, of course, that a stop and search of a moving automobile can be made without a warrant. That narrow exception to the warrant requirement was first established in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. The Court in Carroll approved a portion of the Volstead Act providing for warrantless searches of automobiles when there was probable cause to believe they contained illegal alcoholic beverages. The Court recognized that a moving automobile on the open road presents a situation ‘where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.’ 267 U.S., at 153, 45 S.Ct. at 285. Carroll has been followed in a line of subsequent cases,¹ but the Carroll doctrine does not declare a field day for the police in searching autonlobiles. Automobile or no automobile, there must be probable cause for the search.²

We recognize that Almeida-Sanchez is not precisely in point since in that case there was neither probable cause for the arrest nor even (as here) arguable consent to the search. (Cf. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), where both probable cause for the stop (arrest) and voluntary consent to the search were found.)

We believe, however, in view of the deterrent purposes of the exclusionary rule (see United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), any illegal arrest must require suppression of the evidence subsequently seized as a result under the rationale of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). See also Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

Also applicable to our instant case is a recent case from the Ninth Circuit. In United States v. Mallides, 473 F.2d 859 (9th Cir. 1973), there was testimony that after a stop held by the court to be completely without probable cause, Mal-lides gave permission to examine the trunk which resulted in damaging evidence which was admitted at trial. The Court of Appeals reversed for dismissal of the indictment, holding:

“Neither the Supreme Court nor this court has ever upheld the legality of a detention based upon an officer’s unsupported intuition, and we refuse to do so now.

“The stop and detention were illegal, and the fruit of the illegal conduct was inadmissible.” United States v. Mallides, 473 F.2d 859, 862 (9th Cir. 1973). (Footnotes omitted.)

The critical question in our instant case appears to be when the arrest occurred. More precisely, was the appellant free to leave (at any time prior to the search) after the police officer flashed his spotlight on appellant’s car? The only trial record is that in the state court which did not focus on this question at all. Since the question is essentially an unresolved question of fact, we believe an evidentiary hearing and findings of fact are required.

If the first question is answered favorably to the prosecution, the second question to be answered after evidentiary hearing is: Based on the totality of the circumstances, was the consent to search appellant’s car freely and voluntarily given under the standards set for this in Schneckloth v. Bustamonte, 412 U.S. 218, 228-229, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) ? Appellant had been stopped late at night; there were three armed officers on the scene; appellant had only a third-grade education and had been in a state hospital for the insane on six occasions; and appellant was never advised that he had the right to refuse to consent to the search. On cross-examination, however, he said that he knew he did not have to agree to the search, although the record does not make clear whether he knew this at trial or the time of the search.

Testimonial exploration of these facts will be required to answer the “consent” questions stated or implied above.

The search and seizure issues in this case, of course, pertain only to appellant’s conviction on the count alleging possession of legend drugs. He also attacks his convictions on all counts, including. two counts of sale of legend drugs, claiming due process violations in his state court trial.

In this regard appellant asserts that the conduct of the prosecuting attorney during trial was both improper and so prejudicial as to violate his federal constitutional right to a fair trial.

Three of the incidents relied on involve prosecutorial reference to appellant’s alleged prior involvement in criminal acts concerning bootlegging and other incidents of possession of legend drugs not charged in the indictment, and not probative of either scheme or intent.

Even more disturbing, there is evidence in this record that the prosecutor subsequently boasted in effect that he knew that his questions were objectionable, but that, even if they were stricken, the jury would not forget.

Finally, it is asserted that the prosecuting attorney made a prejudicial statement before the jury when he realized that he would not be able to make a closing argument, because appellant’s counsel had waived closing argument. The following exchange occurred between defendant’s counsel and the prosecuting attorney :

MR. QUILLEN: May it please the Court, we would like to be informed just what the remark was — if the Attorney General did make one awhile ago in the presence of the Jury. Was there a comment made ?

MR. WINSTEAD : Yes, I threw my notes back down on the table and I said that maybe I’d get to use that argument next year. I hope not against this defendant.

MR. QUILLEN: I think that was improper and I further renew my motion for mistrial.

MR. WINSTEAD: I think you’ve thought just about everything was improper, Mr. Quillen.

With regard to the prosecuting attorney’s conduct, we call attention to prose-cutorial duty as described by the Supreme Court:

“[The prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a. wrongful conviction as it is to use every legitimate means to bring about a just one.

“It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935).

Berger, of course, was a federal case wherein the Supreme Court’s superintending control afforded stricter supervision than is available to us in a federal habeas corpus proceeding attacking a state court conviction. But the facts we have referred to are disturbing enough to remand these issues also for an evidentiary hearing and findings of fact on appellant’s claims of federal due process violation. In this regard the District Judge will, of course, have to determine the issue in accordance with the recent opinion of the Supreme Court in Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), and decide whether “this incident made respondent’s trial so fundamentally unfair as to deny him due process.” Id. at 645, 94 S.Ct. at 1872.

The judgment of the District Court is reversed and the case is remanded for hearing in accordance with this opinion.

1 . This case is also clearly distinguishable from two recent cases, United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), and Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). In both of those cases the officers involved clearly had probable cause for arrest.

1 . E. g., Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629.

2 . Moreover, “[n] either Carroll, supra, nor other oases in this Court require or suggest that in every conceivable circumstance the search of an auto even with probable cause may be made without the extra protection for privacy that a warrant affords.” Chambers v. Maroney, [supra], [399 U.S.], at 50, [90 S.Ct., at 1981.] See also Coolidge v. New Hampshire, 403 U.S. 443, 458-464, 91 S.Ct. 2022, 2033-2037, 29 L.Ed.2d 564]. Almeida-Sanchez v. United States, 413 U.S. 266, 269, 93 S.Ct. 2535, 2538, 37 L.Ed.2d 596 (1973).