# United States Ex Rel. George Angelet v. Honorable Edward M. Fay, as Warden of Green Haven State Prison, Stormville,new York

> Court of Appeals for the Second Circuit · October 12, 1964 · 333 F.2d 12

URL: https://www.frixlaw.com/law-library/cases/9450107

## Case

- **Full name:** UNITED STATES Ex Rel. George ANGELET, Petitioner-Appellant, v. Honorable Edward M. FAY, as Warden of Green Haven State Prison, Stormville, New York, Respondent-Appellee
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** October 12, 1964
- **Citations:** 333 F.2d 12
- **Precedential status:** Published
- **Opinion:** Dissent by Marshall
- **Judges:** Lumbard, Medina, Waterman, Moore, Friendly, Smith, Kaufman, Hays, Marshall
- **Cited by:** 58 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

MARSHALL, Circuit Judge (with whom SMITH, Circuit Judge, concurs),
dissenting:
I respectfully dissent. I cannot, and as I read the opinion in Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961), we may not restrict its application to illegal searches and seizures, or convictions based upon illegally seized evidence, occurring after that decision. “It is significant that the Supreme Court did not specifically declare that the effect of its decision was to operate only in the future, as it might have done.” Hall v. Warden, 313 F.2d 483, 496 (4 Cir. 1963). We are not free to circumscribe the application of a declared constitutional right.
The majority finds “the search and seizure was illegal and an invasion of An-gelet’s constitutional rights.” There is no question of the jurisdiction of the trial court and this court to pass upon the merits of the petition. Why, then, should not this conviction based upon evidence admittedly obtained by an invasion of petitioner’s constitutional rights, be *22 subject to the usual form of post-conviction relief? Rogers v. Richmond, 365 U.S. 534 , 81 S.Ct. 735 , 5 L.Ed.2d 760 (1961); Fay v. Noia, 372 U.S. 391 , 83 S.Ct. 822 , 9 L.Ed.2d 837 (1963). I believe it should, for the reasons set out below.
The scholarly majority opinion cites and discusses everything from Blackstone to Cardozo, from state court cases to a Learned Hand opinion to occasional expressions in other opinions of the Supreme Court in its philosophical quest for the elusive “purpose” of the exclusionary rule set out in Mapp. By contrast, I believe that the starting point of the inquiry must be the text of the Mapp opinion. And I believe that a careful examination of that text will show two things: first, that the exclusionary rule, whatever its supposed “purpose,” is a fundamental constitutional guarantee and personal right of an accused and second, that the Supreme Court considered the issue of retroactivity and did not shrink from it.
The majority opinion in Mapp v. Ohio concluded:
“The ignoble shortcut to conviction left open to the State tends to destroy the entire system of constitutional restraints on which the liberties of the people rest. Having once recognized that the right to privacy embodied in the Fourth Amendment is enforceable against the States, and that the right to be secure against rude invasions of privacy by state officers is, therefore, constitutional in origin, we can no longer permit that right to remain an empty promise. Because it is enforceable in the same manner and to like effect as other basic rights secured by the Due Process Clause, we can no longer permit it to be revocable at the whim of any police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment. Our decision, founded on reason and truth, gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and to the courts, that judicial integrity so necessary in the true administration of justice.” 367 U.S. at 660 , 81 S.Ct. at 1694. (Emphasis added.)
The majority opinion is premised upon the proposition that the primary reason for the Mapp decision was to deter illegal searches and seizures in the future. This premise completely ignores the actual effect of Mapp in overruling Wolf v. Colorado, 338 U.S. 25 , 69 S.Ct. 1359 , 93 L.Ed. 1782 (1949). The Mapp decision declared and defined the constitutional right of a defendant not to be convicted upon illegally seized evidence. All the arguments concerning the deterrent effect inherent in cases following Weeks v. United States, 232 U.S. 383 , 34 S.Ct. 341 , 58 L.Ed. 652 (1914) were discussed by Mr. Justice Clark in Mapp. After this discussion he recognized the constitutional right involved and stated:
Indeed, we are aware of no restraint, similar to that rejected today, conditioning the enforcement of any other basic constitutional right. The right to privacy, no less important than any other right carefully and particularly reserved to the people, would stand in marked contrast to all other rights declared as “basic to a free society.” Wolf v. Colorado, supra, 338 U.S. at 27 , 69 S.Ct. at 1361 . This Court has not hesitated to enforce as strictly against the States as it does against the Federal Government the rights of free speech and of a free press, the rights to notice and to a fair, public trial, including, as it does, the right not to be convicted by use of a coerced confession, however logically relevant it be, and without regard to its reliability. Rogers v. Richmond, 365 U.S. 534 , 81 S.Ct. 735 , 5 L.Ed.2d 760 (1961). And nothing could be more certain than that when a coerced confession is involved, “the relevant rules of evi *23 dence” are overridden without regard to “the incidence of such conduct by the police,” slight or frequent. Why should not the same rule apply to what is tantamount to coerced testimony by way of unconstitutional seizure of goods, papers, effects, documents, etc.? We find that, as to the Federal Government, the Fourth and Fifth Amendments and, as to the States, the freedom from unconscionable invasions of privacy and the freedom from convictions based upon coerced confessions do enjoy an “intimate relation” in their perpetuation of “principles of humanity and civil liberty [secured] * * * only after years of struggle,” Bram v. United States, 168 U.S. 532, 543-544 , 18 S.Ct. 183, 187 , 42 L.Ed. 568 (1897). They express “supplementing phases of the same constitutional purpose — to maintain inviolate large areas of personal privacy.” Feldman v. United States, 322 U.S. 487, 489-490 , 64 S.Ct. 1082, 1083 , 88 L.Ed. 1408 (1944). The philosophy of each Amendment and of each freedom is complementary to, although not dependent upon, that of the other in its sphere of influence — the very least that together they assure in either sphere is that no man is to be convicted on unconstitutional evidence. Cf. Rochin v. California, 342 U.S. 165, 173 , 72 S.Ct. 205 , 96 L.Ed. 183 (1952). 367 U.S. at 656-657 , 81 S.Ct. 1684 .
The simple fact is that, in the view of the Supreme Court, the right not “to be convicted on unconstitutional evidence,” is a fundamental ingredient of the due process of law guaranteed state criminal defendants by the 14th Amendment to the Constitution of the United States. However, the majority in this ease, by focussing almost exclusively on a supposed “purpose” which it attributes to the exclusionary rule has obscured this basic point.
Again looking to the text of the Mapp opinion, which the majority scarcely mentions, we find footnote 9, at 367 U.S. 659 , 81 S.Ct. at 1693:
“As is always the ease, however, state procedural requirements governing assertion and pursuance of direct and collateral constitutional challenges to criminal prosecutions must be respected. We note, moreover, that the class of state convictions possibly affected by this decision is of relatively narrow compass when compared with Burns v. State of Ohio, 360 U.S. 252 [ 79 S.Ct. 1164 , 3 L.Ed.2d 1209 ]; Griffin v. People of State of Illinois, 351 U.S. 12 [ 76 S.Ct. 585 , 100 L.Ed. 891 ] and Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116 [ 76 S.Ct. 223 , 100 L.Ed. 126 ], In those eases the same contention was urged and later proved unfounded. In any case, further delay in reaching the present result could have no effect other than to compound the difficulties.”
Two points are unmistakably clear about this footnote. First, the likelihood of retroactive application was clearly before the Court. Otherwise why cite such cases as Burns, Griffin and Herman, which could “affect” state convictions only if they were given retroactive effect? Second, to the extent that the footnote conditions application of the new doctrine on state procedural grounds, it no longer represents the law. Fay v. Noia, 372 U.S. 391 , 83 S.Ct. 822 , 9 L.Ed.2d 837 (1963). Thus, the only real comfort for the majority comes from the use of the word “possibly.” But this may refer to a number of matters, e. g., the state procedural grounds discussed above, or the possibility that few convictions were in fact obtained by use of unconstitutionally seized evidence, which would tend to limit the Mapp holding’s effect on existing convictions without impairing its retroactivity under other conditions. I believe that footnote 9, taken in context, reflects an intention that the rule of the case be applied to past as well as future convictions.
*24 Next to the Mapp opinion itself, the most authoritative source of guidance is what the Court has done in similar situations. Without exception, retroactive application has been given to the principles of constitutional law developed over the years. Only a few months ago, as we pointed out in U. S. ex rel. Durocher v. LaVallee, 330 F.2d 303 (1964), the Supreme Court reversed a 1959 Ohio conviction, based on a guilty plea entered without counsel, on the basis of Gideon v. Wainwright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963), Doughty v. Maxwell, 376 U.S. 202 (1964). See also House v. Mayo, 324 U.S. 42 , 65 S. Ct. 517 , 89 L.Ed. 739 (1945). Again, in Eskridge v. Washington State Board of Parole, 357 U.S. 214 , 78 S.Ct. 1061 , 2 L.Ed.2d 1269 (1958) the Court applied Griffin v. Illinois, 351 U.S. 12 , 76 S.Ct. 585 , 100 L.Ed. 891 (1956) involving the right of an indigent to a transcript for the purpose of taking an appeal without payment of fees, to a 1935 conviction. 1 See also Burns v. Ohio, 360 U.S. 252 , 79 S.Ct. 1164 , 3 L.Ed.2d 1209 (1959); Douglas v. Green, 363 U.S. 192 , 80 S.Ct. 1048 , 4 L.Ed.2d 1142 (1960); Smith v. Bennett, 365 U.S. 708 , 81 S.Ct. 895 , 6 L.Ed.2d 39 (1961); Lane v. Brown, 372 U.S. 477, 483 , 83 S.Ct. 768 , 9 L.Ed. 2d 982 (1963). 2
The Supreme Court has also given retroactive application to the increasingly stringent tests employed by it in evaluating the voluntariness of confessions. In Reck v. Pate, 367 U.S. 433 , 81 S.Ct.. 1541, 6 L.Ed.2d 948 (1961), the court ordered the release of Reek, a prisoner convicted in 1937, when it found that the-circumstances of obtaining a confession were inherently coercive in the light of' such cases as Blackburn v. Alabama, 361 U.S. 199 , 80 S.Ct. 274 , 4 L.Ed.2d 242 (1960); Payne v. Arkansas, 356 U.S. 560 , 78 S.Ct. 844 , 2 L.Ed.2d 975 (1958) ; Fikes v. Alabama, 352 U.S. 191 , 77 S.Ct. 281 , 1 L.Ed.2d 246 (1957) and Turner v. Pennsylvania, 338 U.S. 62 , 69 S.Ct. 1352 , 93 L.Ed. 1810 (1949), all of which were decided many years after Reek’s trial. Indeed, the District Court which held a hearing on Reek’s petition recognized that, under the present-day standards expounded in the above and other-cases, the confession would have to be-excluded, but declined to apply those cases retroactively. See United States ex rel. Reck v. Ragen, 172 F.Supp. 734, 747 (N.D.Ill.1959). The Supreme- *25 Court’s opinion did not even allude to the problem of retroactivity.
The confession cases are a particularly persuasive analogy, not only because of their discussion in the Mapp opinion, but also because in them, as in the cases arising under the Mapp decision, there is often no doubt whatever of the defendant’s guilt. The traditional basis for excluding confessions obtained under •duress may have been their unreliability. But if any principle is clear in this area, it is that the presence of corroborative independent evidence of guilt should have no bearing on the federal court’s consideration of the issue of coercion in a habeas corpus proceeding. See Haynes v. Washington, 373 U.S. 503 , 83 S.Ct. 1336 , 10 L.Ed.2d 513 (1963); Rogers v. Richmond, supra.
The only distinction between the confession cases and the one before us is that the former did not involve overruling prior precedents. But this is a distinction which makes no difference. Surely the state cannot here claim any “good faith reliance” on the Wolf doctrine. It was on notice, at Angelet’s trial, that the narcotics introduced into evidence had been seized in violation of the defendant’s constitutional rights under the Fourteenth Amendment. It was on notice that the Supreme Court did not condone this procedure, and looked to the states to provide adequate corrective process. It was on notice that no such process had been provided.
But even if we assume that some importance should be accorded the fact that Mapp was an overruling decision, we must still weigh the interest of the state in relying on the Wolf decision at this time against the interest of the petitioner in not being confined under a judgment secured through the use of unconstitutional evidence. We now know that Angelet’s trial was tainted by error of constitutional dimensions, although this was not known at the time.- He is still suffering the consequences of that error —deprivation of his liberty. The writ of habeas corpus is available as a means of rectifying that deprivation. As Judge Hastie well stated, in the recent case of United States ex rel. Craig v. Myers, 329 F.2d 856, 859 (3 Cir. 1964) :
“In actuality, all criminal convictions, all appellate judgments reversing convictions and, most notably, all judgments sustaining collateral attacks on convictions impose legal consequences upon the basis of the court’s present legal evaluation of past conduct. It is irrelevant that the judge’s views of what constitutes a denial of due process may have changed since the occurrence of the events in suit, or that he or some other judge might have rendered a different decision had the same matter reached his court years earlier. The petitioner is entitled to the most competent and informed decision the judge can now make whether there was fundamental unfairness in his past conviction. Our system is not so unenlightened as to require that in attaching present consequences to 1931 occurrences, a judge must ignore all of the insight that men learned in the law and observant of human behavior have acquired concerning the essentials of tolerable criminal procedure during the past 30 years.”
I do not believe it is possible to draw lines between the several constitutional rights guaranteed by the 14th Amendment as interpreted by the Supreme Court of the United States. How can the right not to be convicted on unconstitutionally seized evidence not be deemed “fundamental,” when the Court was willing to overrule a prior decision to establish it? The majority provides no satisfactory answer.
Moreover, I believe that the thrust of the Craig case, which, to put the matter quite baldly, requires a federal judge acting on a petition for habeas corpus to judge the constitutional validity of a state prisoner’s confinement by assuming that the trial was held on the very day that he is considering the petition, is a necessary implication of Fay v. Noia, 372 U.S. 391 , 83 S.Ct. 822 , 9 *26 L.Ed.2d 837 (1963). I might note first that this decision will doubtless result in the release of far more state prisoners than those entitled to relief under Mapp. The “adequate state ground” doctrine was unquestionably the largest single limitation on federal habeas corpus relief, and it no longer exists. It was destroyed because of the Court’s belief that a forum must be provided for the vindication of constitutional claims.
“The breadth of the federal courts’ power of independent adjudication on habeas corpus stems from the very nature of the writ, and conforms with the classic English practice. * * * It is of the historical essence of habeas corpus that it lies to test proceedings so fundamentally lawless that imprisonment pursuant to them is not merely erroneous but void. Hence, the familiar principle that res judicata is inapplicable in habeas proceedings * * * is really but an instance of the larger principle that void judgments may be collaterally impeached. * * * So also, the traditional characterization of the writ of ha-beas corpus as an original * * * remedy for the enforcement of the right to personal liberty, rather than as a stage of the state criminal procedings or as an appeal therefrom, emphasizes the independence of the federal habeas proceedings from what has gone before. This is not to say that a state criminal judgment resting on a constitutional error is void for all purposes. But conventional notions of finality in criminal litigation cannot be permitted to defeat the manifest federal policy that federal constitutional rights of personal liberty shall not be denied without the fullest opportunity for plenary federal judicial review.” Fay v. Noia, 372 U.S. at 422-423 , 83 S.Ct. at 840 .
To be sure, Fay v. Noia did not directly involve the question of retroactive application of substantive principles of constitutional law, as distinguished from the procedural mechanisms whereby they may be asserted. 3 But if the federal writ of habeas corpus is to issue to redress a constitutional deprivation and terminate a detention despite the fact that state procedures could have been employed, then I can see no reason for declining to issue the writ where, during the course of a detention, it becomes clear . that fundamental error was committed at the trial. The Court in Noia focussed almost exclusively on the fact of deprivation of liberty, and insisted that the federal courts be at all times prepared to restore liberty if the circumstances warranted.
A final practical difficulty with the majority approach to this case is that it presents the courts with the necessity of fixing an arbitrary date when the Mapp rule must begin to take effect. If the “deterrence” rationale is followed in all its implications, the Mapp should apply only to convictions involving evidence seized after the date of its decision. As the majority recognizes, Ker v. California, 374 U.S. 23 , 83 S.Ct. 1623 , 10 L.Ed.2d 726 (1963); Fahy v. Connecticut, 375 U.S. 85 , 84 S.Ct. 229 , 11 *27 L.Ed.2d 171 (1963) and Stoner v. California, 376 U.S. 483 , 84 S.Ct. 889 , 11 L. Ed.2d 856 (1964), preclude this result. If a state court should nevertheless admit such evidence in a post-Mapp trial, no one could possibly contend that federal habeas corpus would not lie. The same three cases also indicate that, even as to pre-Mapp convictions, Mapp must be applied by state appellate courts which review such convictions after the decision, a result that does not in any way further “deterrence.” To this extent, the purity of the majority’s “ideal” view of Mapp has necessarily been compromised.
Next comes the question, already before this court, of an affirmance before Mapp but a petition for rehearing of the appeal afterward. If the petition is timely filed and denied, can there be much doubt that the Mapp issue is open on habeas corpus? Then, too, suppose that a defendant had lost his appeal in an intermediate state court and sought discretionary review in the highest court after Mapp came down. If this is refused, is the prisoner entitled to federal habeas corpus relief? If yes, should it really matter whether the order came on the Friday before Mapp was handed down, or the Tuesday afterward? Still other variations on the theme are possible, but I do not think it necessary to set them out. The point is simply that, under the majority approach, assertion of fundamental rights will depend on strained distinctions and accidents of timing which, I submit, have no place in the orderly administration of law.
Alternatively, the majority seems to suggest that convictions based on evidence illegally seized on or after the seizure date in Mapp, May 13, 1957, would be subject to habeas corpus relief but convictions on evidence illegally seized prior to that date would be immune. “ * * * We think this purpose is sufficiently, if not completely served by refusing to apply the rule to seizures long prior to the decision in Mapp v. Ohio or occurrences involved in that case * * * ” To make the eon-stitutional rights of prisoners throughout the nation depend on when three Cleveland police officers happened to conduct a routine investigation, rather than on what the Supreme Court has said and done, is, to me at least, the height of unreason.
It may be objected that these problems do not arise in this particular case. But they are present in several appeals now pending in this very court, and are undoubtedly involved in many habeas corpus petitions now in the district courts of this and other circuits. I submit that the effect of the majority decision will be only to confuse the issues further. I believe we should say here, as we did in Durocher, supra, “against such casuistry, we hasten to add our simple point: Constitutional rights should not depend on arcane logic or trivial events.” 330 F.2d 303 , 310 n. 4.
The majority here puts its greatest stress on the alleged interest of the State of New York in insisting on Angelet serving his sentence and fears of other convicted criminals being released. Constitutional rights are personal and may not be so conditioned or balanced away. New York’s interest in enforcing its criminal laws is limited by the Constitution of the United States. At least since Wolf v. Colorado, supra, New York has been on notice that evidence of the type used to convict Angelet was illegally seized in violation of his constitutional rights. This evidence was knowingly introduced by the State. The judgment based upon this illegally seized evidence was pronounced by the State. The State has refused to correct this. After Mapp there is clearly no constitutionally recognized interest of the State of New York to continue this illegal detention of Angelet. Why is the conviction of An-gelet any more immune from attack than the conviction of Miss Mapp? Perhaps the answer is suggested by the majority’s argument in favor of stare decisis and res judicata. However, to hold that ha-beas corpus is available to challenge a conviction based on illegally seized evidence in violation of constitutional rights *28 would actually be an application of stare decisis, for the reasons set out above. “Moreover, our holding that the exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments is not only the logical dictate of prior cases, but it also makes very good sense.” Mapp v. Ohio, 367 U.S. at 657 , 81 S.Ct. at 1693 .
I would reverse the judgment below and direct the writ to issue, subject to the right of the State to order an immediate retrial of the prisoner if it be so advised.
. It is true that in Norvell v. Illinois, 373 U.S. 420 , 83 S.Ct. 1366 , 10 L.Ed.2d 456 (1963), the Court affirmed a decision of the Illinois Supreme Court that denied an indigent prisoner a transcript of his 1941 trial, where the court reporter had died in the interim and it was impossible to transcribe his notes or reconstruct the evidence from the testimony of witnesses. The prisoner had a lawyer at his trial, who did not pursue an appeal, and was apparently not requested to do so at that time. The Court’s decision was based on the narrowest possible ground, saying that “where transcripts are no longer available, Illinois may rest on the presumption that he who had a lawyer at the trial had one who could protect Ms rights on appeal.” Mr. Justice Goldberg, for himself and Mr. Justice Stewart, dissented. They believed that the Illinois state court erred in holding that Griffin operated “prospectively and not retroactively, in the sense that it invalidated only ‘existing financial barriers’ to appeal.” Thus, that court did not reach the question whether Griffin had been deprived of bis constitutional rights in 1941. The dissenters urged that, although the majority opinion did not go off on this analysis, the case should nevertheless be remanded for reconsideration in the light of the correct interpretation of' Griffin, which was that it was fully retroactive. “Griffin was a constitutional decision vindicating basic Fourteenth Amendment rights and is no more to be restricted in scope or application in time-than other constitutional judgments.” 373 U.S. at 425, 83 S.Ct. at 1369.
. The Supreme Court has applied the exclusionary rule to three cases which involved the legality of searches conducted-before the date of the decision in Mapp. Stoner v. California, 376 U.S. 483 , 84 S. Ct. 889 , 11 L.Ed.2d 856 (1964) ; Fahy v. Connecticut, 375 U.S. 85 , 84 S.Ct. 229 , 11 L.Ed.2d 171 (1963) ; Ker v. California, 374 U.S. 23 , 83 S.Ct. 1623 , 10 L.Ed. 2d 726 (1963).
. It is noteworthy, however, that in footnote 35 of the Noia opinion, Mr. Justice Brennan cast doubt on the precedential importance of Sunal v. Large, 332 U.S. 174 , 67 S.Ct. 1588 , 91 L.Ed. 1982 (1947), which held that a prisoner who did not appeal his conviction for violation of the Selective Training and Service Act, might not obtain habeas corpus. The trial court there had held that no challenge to validity of the defendant’s classification might be lodged at tmal, a position later rejected by the Supreme Court. Mr. Justice Bren-man noted that the Sunal opinion “expressly excluded errors so grave that they ‘cross the jurisdictional line’, * * * and implied that the claimed error was not even of constitutional dimension.” He then cross-referred to previous pages in the opinion which noted the habeas relief has often been denied “upon allegations merely of error of law and not of a substantial constitutional denial” and that “such decisions are not however authorities against applications which invoke the historic office of the Great Writ to redress detentions in violation of fundamental law.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9450107. Public record. Not legal advice.