John M. Little v. B. J. Rhay, Superintendent, Washington State Penitentiary, Walla Walla, Washington

Ninth Circuit

John M. Little v. B. J. Rhay, Superintendent, Washington State Penitentiary, Walla Walla, Washington

439 F.2d 765, 1971 U.S. App. LEXIS 11179

CourtCourt of Appeals for the Ninth Circuit

DecidedMarch 24, 1971

Docket26622

StatusPublished

Cited by3 cases

This text of 439 F.2d 765 (John M. Little v. B. J. Rhay, Superintendent, Washington State Penitentiary, Walla Walla, Washington) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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John M. Little v. B. J. Rhay, Superintendent, Washington State Penitentiary, Walla Walla, Washington, 439 F.2d 765, 1971 U.S. App. LEXIS 11179 (9th Cir. 1971).

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Opinion

PER CURIAM:

Little appeals from the denial, without an evidentiary hearing, of his application for a writ of habeas corpus. Convicted of aiding and abetting the possession of narcotics, Little argues that the heroin introduced at his trial was the fruit of an illegal search and seizure.

The availability of a full record of the state hearing on the motion to suppress and the lack of a substantial dispute as to the evidentiary facts render an evidentiary hearing unnecessary. 28 U.S.C. § 2254(d); Townsend v. Sain, 372 U.S. 293, 314, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Rainsberger v. Fogliani, 380 F.2d 783, 785 (9th Cir. 1967).

Little argues that the use of an ex parte affidavit signed by the arresting officers in a prior habeas proceeding before the Supreme Court of Washington abridged his right of confrontation. Whatever the merits of that view, the alleged error did not infect the District Court’s independent review of the state record because the district judge declined to consider the supplemental affidavit.

The rule of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), does not apply to this 1959 search. See Williams v. United States, 397 U.S. 986, 90 S.Ct. 1120, 25 L.Ed.2d 394 (April 5, 1971). The search of Little’s apartment, incident to the arrest of a codefendant therein, was limited to one shelf in a passage between the kitchen and living room. The arresting officer had observed the codefendant withdrawing his hand from the shelf, and the search took place substantially simultaneously with the arrest. We do not understand Little to argue that the officer had no probable cause to arrest the eodefendant at the time the officer *766 entered the apartment. Under the pre- Chimel totality of the circumstances test, the warrantless search here was reasonable. See Stamps v. United States, 436 F.2d 1059 (9th Cir. 1971); Williams v. United States, 418 F.2d 159 (9th Cir. 1969), aff’d 397 U.S. 986, 90 S.Ct. 1120, 25 L.Ed.2d 394 (April 5, 1971).

Affirmed.

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PER CURIAM:

Little appeals from the denial, without an evidentiary hearing, of his application for a writ of habeas corpus. Convicted of aiding and abetting the possession of narcotics, Little argues that the heroin introduced at his trial was the fruit of an illegal search and seizure.

The availability of a full record of the state hearing on the motion to suppress and the lack of a substantial dispute as to the evidentiary facts render an evidentiary hearing unnecessary. 28 U.S.C. § 2254(d); Townsend v. Sain, 372 U.S. 293, 314, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Rainsberger v. Fogliani, 380 F.2d 783, 785 (9th Cir. 1967).

Little argues that the use of an ex parte affidavit signed by the arresting officers in a prior habeas proceeding before the Supreme Court of Washington abridged his right of confrontation. Whatever the merits of that view, the alleged error did not infect the District Court’s independent review of the state record because the district judge declined to consider the supplemental affidavit.

The rule of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), does not apply to this 1959 search. See Williams v. United States, 397 U.S. 986, 90 S.Ct. 1120, 25 L.Ed.2d 394 (April 5, 1971). The search of Little’s apartment, incident to the arrest of a codefendant therein, was limited to one shelf in a passage between the kitchen and living room. The arresting officer had observed the codefendant withdrawing his hand from the shelf, and the search took place substantially simultaneously with the arrest. We do not understand Little to argue that the officer had no probable cause to arrest the eodefendant at the time the officer *766 entered the apartment. Under the pre- Chimel totality of the circumstances test, the warrantless search here was reasonable. See Stamps v. United States, 436 F.2d 1059 (9th Cir. 1971); Williams v. United States, 418 F.2d 159 (9th Cir. 1969), aff’d 397 U.S. 986, 90 S.Ct. 1120, 25 L.Ed.2d 394 (April 5, 1971).

Affirmed.

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439 F.2d 765, 1971 U.S. App. LEXIS 11179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-m-little-v-b-j-rhay-superintendent-washington-state-ca9-1971.

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