Appendix — Whiteley v. Warden, Wyoming State Penitentiary

Supreme Court brief1971

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OCTOBER TERM, 1969

No. 1486

HAROLD WHITELEY,

— —

OF APPEALS FOR THE TENTH CIRCUIT

INDEX

Chronological List of Relevant Docket Entries

Petitioner’s Amended Petition for Writ of Habeas Corpus,

Filed July 22, 1968

Stipulation of parties that they would rely exclusively on

the record before the trial court in the original case of the

State of Wyoming v. Harold Whiteley, Criminal No, 2885

in the Carbon County District Court, Rawlins, Wyoming,

and on the record on appeal to the Wyoming Supreme

Court in Case No. 3461, Filed July 22, 1968

Order limiting record to that agreed upon by the parties in

accordance with the foregoing stipulation, Filed —* 22,

1968 ; Mie

Respondent’s Answer to Amended Petition, Filed August 7,

1968

Transcript of Petitioner’s Arraignment sialaaaaacns (in

part) (Criminal No. 2885) —

State of Wyoming’s Exhibit 2—Laramie Police diseascaius

Report (Criminal No. 2885) ;

Supreme Court of the United States

Petitioner,

THE WARDEN OF THE WYOMING STATE PENITENTIARY,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

Page

—

ii INDEX (Continued)

Page

State of Wyoming’s Exhibit 3—Warrant of Arrest re

Whiteley’s breaking and entering a ati owned wd

one Charles Gould (Criminal No. 2885) - Ranson 26

State of Wyoming’s Exhibit No. 4—Complaint re Whiteley’s

breaking and entering a building owned val one Charles

Oe Gee oe ee 8...

State of — s Exhibit No. 5—State Radio sah (Crimi-

nal No. 2885) - PE ae 99

State of — s Exhibit No. 6—State Radio dosiue (Crimi-

nal No. 2885) - eee 35

State of Wyoming’s Exhibit No. 7—Warrant of Arrest re

Whiteley’s breaking and entering a — owned by

one Edward Shively (Criminal No. 2885) - fod oad 39

State of Wyoming’s Exhibit No. 8—Complaint re Whiteley’s

breaking and entering a building owned by one Edward

Shively (Criminal No. 2885) —........ pelea eee ee 4]

Transcript of Proceedings (Criminal No. 2885) :

Testimony of Jack Oliver Daley, Witness on Behalf of

State of Wyoming

NE MN iiss cnciciss steeieensares-arehanonnbocdeeshes oo a

Cross Examination tanks 48

Testimony of C. W. Ogburn, Witness on Behalf | of

State of Wyoming

Cem Ennion —__.........._____.._...... 54

Testimony of Kenneth Lankford, Witness on Behalf of

State of Wyoming

Direct Examination ip uealsicleeaienseneauinasianinbalmalice 55

Cross Examination . pest 69

Testimony of Delbert C. ‘Sees Witness on Behalf of

State of Wyoming

Direct Examination sedges ansaid. iaeamae

Judge’s Memorandum, Filed November 25, 1968 ae

Judgment, Filed November 25, 1968 _ By ELACL EN Ro e 83

Opinion of Court of Appeals, Filed September 30, 1969 _ . 85

Judgment of Court of Appeals, Filed September 30, 1969 .. 98

Order of the Supreme Court Granting Certiorari in Part,

Filed April 27, 1970 a gh Cen Cee ce tOT 22a me can Cie

CHRONOLOGICAL LIST OF

RELEVANT DOCKET ENTRIES

Nov. 21, 1967—Petition for writ of habeas corpus,

with application for leave to proceed in forma pauperis,

filed.

Nov. 21, 1967—Order granting leave to proceed in

forma pauperis, filed.

Nov. 21, 1967—Order to show cause giving respondent

20 days to show cause why writ of habeas corpus should

not be granted, filed.

Dec. 7, 1967—Motion of respondent to dismiss, filed,

asserting that petitioner failed to exhaust his state reme-

dies as required by 28 U.S.C. Section 2254.

Feb. 13, 1968—Petitioner’s Response to Respondent’s

Motion to Dismiss, filed.

Feb. 16, 1968—Hearing on Respondent’s Motion to

Dismiss. Court announces motion is denied, Respondent

given 20 days to answer, order to be submitted by Re

spondent.

Feb. 28, 1968—Order denying respondent’s motion to

dismiss and giving respondent 20 days to answer appli-

cation for writ of habeas corpus, filed,

March 7, 1968—Answer of respondent to petition for

writ of habeas corpus, filed.

July 22, 1968—Stipulation for filing amended petition

filed.

July 22, 1968—Order allowing the filing of amended

petition, filed.

July 22, 1968—Amended Petition for writ of habeas

corpus, filed.

July 22, 1968—Stipulation of record to be relied upon

in hearing before this court, filed.

July 22, 1968—Order limiting evidence to be used in

hearing before this court, filed.

CNA TESS RTA ORS RE Smet

PORTA OAR IATA AMOS CDNA AES AARNE —

August 7, 1968—Answer of respondent to amended

petition for writ of habeas corpus, filed.

August 29, 1968—Petitioner’s memorandum in support

of amended petition for writ of habeas corpus, filed.

August 29, 1968—Respondent’s memorandum in oppo-

sition to petition for writ of habeas corpus, filed.

August 29, 1968—Record, per stipulation of 7-22-68,

to be relied upon, including No. 2885 Crim. Carbon

County, No. 3461, Wyo. Supreme Court, and exhibits, 2

briefs, received, and list filed.

Sept. 4, 1968—Petitioner’s reply memorandum filed.

Sept. 6, 1968—Trial to Court. Commenced and con-

cluded this date, Counsel for both parties given 30 days

in which to file simultaneous briefs with proposed find-

ings of fact and conclusions of law.

Nov. 25, 1968—Judge’s memorandun, filed.

Nov. 25, 1968—Judgment denying petition of Harold

Whiteley for writ of habeas corpus.

Dec. 19, 1968—Notice of Apeal filed by Petitioner.

Dec. 24, 1968—Motion of Petr. for leave to proceed on

appeal in forma pauperis, filed.

Dec. 24, 1968—Order granting leave to proceed on

appeal in forma pauperis, filed.

Sept. 30, 1969—Opinion and judgment of the Court

of Appeals for the Tenth Circuit.

UNITED STATES DISTRICT COURT

DISTRICT OF WYOMING

Case No. 5185

Bahk ti Meee acs

HAROLD WHITELEY, Register Number 9789, PETITIONER

——('S——

STATE OF WYOMING, RESPONDENT

AMENDED PETITION

Filed July 22, 1968 b

1. Place of detention Wyoming State Penitentiary

2. Name and location of court which imposed sentence

Carbon County District Court, Rawlins, Wyoming.

8. The case number and the offense or offenses for

| which sentence was imposed:

(a) Criminal Number 2885

(b) Breaking into a locked or sealed building

4, The date upon which sentence was imposed and the

terms of the sentence:

(a) June 1, 1965

(b) One to ten years

5. Check whether a finding of guilty was made after

a plea:

(a) of guilty; or

(b) of not guilty X; or

6. If you were found guilty after a plea of not guilty,

check whether that finding was made by:

(a) a jury X; or

(b) a judge without a jury; or

10.

Did you appeal from the judgment of conviction oy

the imposition of sentence? Yes

If you answered “yes” to (7), list:

(a) the name of each court to which you appealed:

i. Supreme Court of the State of Wyoming

(b) The result in each such court to which you ap.

pealed and the date of such result:

i. Judgment affirmed, September 15, 1966

If you answered “no” to (7), state your reasons for

not so appealing:

Not Applicable

State concisely the grounds on which you base your

allegation that you are being held in custody unlay-

fully:

(a) The imposition of one penalty for the crime of

breaking and entering (one to ten years), plus

the imposition of an additional penalty under

the Habitual Criminal Act (life imprisonment),

constituted a violation of petitioner’s rights (1)

not to be put in jeopardy twice for the same

offense under the Fifth Amendment, and (2) to

due process of law under the Fourteenth Amend-

ment, of the United States Constitution, since,

in effect, the court convicted and sentenced peti-

tioner twice for one illegal act.

(b) The trial court deprived petitioner of his rights

to counsel and due process under the Sixth and

Fourteenth Amendments of the United States

Constitution when that court imposed sentence

upon petitioner under the Wyoming Habitual

Criminal Act without evidence that petitioner's

right to representation by counsel was adequate

ly protected in the proceedings resulting in those

prior convictions on which the Habitual Crimi-

nal penalty was based.

arrest petitioner, because the warrant pursuant

to which they acted was not valid. It was not

valid because it was issued upon an invalid

complaint. Thus, the search and seizure at the

time of the arrest was not made incident to a

lawful arrest, and was therefore invalid. The

evidence obtained by the officers at that time

should not have been admitted at petitioner’s

trial.

11. State concisely and in the same order the facts which

support each of the grounds set out in (10):

(a)

(b)

(¢c)

Evidence taken from the trunk of petitioner’s

car was introduced to establish the guilt of

petitioner on the charge of breaking and enter-

ing, to which charge petitioner pled not guilty.

Evidence as to three prior convictions for fel-

onies was admitted to establish petitioner’s

guilt on the charge of being an habitual crimi-

nal, to which charge petitioner also pled not

guilty. On the first charge, petitioner was found

guilty and sentenced to prison from one to ten

years. On the second charge, petitioner was

found guilty and sentenced to life imprisonment.

Both sentences were based upon the commission

of one illegal act.

During the course of the trial, the state offered

three judgments in evidence as proof of three

prior convictions. The 1942 judgment (State’s

Exhibit 23) bears no evidence that petitioner

was afforded representation in the course of said

proceeding, nor is there contained therein any

evidence that with respect to this conviction

petitioner intelligently waived his right to coun-

sel, under the rule of Gideon. Nor was any

independent evidence offered at the trial to

establish these facts.

The warrant was issued upon an affidavit which

was merely conclusory and which did not indi-

cate any probable cause. This affidavit, in the

complaint, said, “I, C. W. Ogburn, do solemnly

swear that .. . the said Harold Whiteley and

Jack Daley, defendants, did then and there un-

12.

13.

lawfully break and enter a locked and sealed

building owned by Charles Gould, to-wit: [de

scribing the realty] . . . Contrary to the form

of the Statute in such case made and provided

and against the peace and dignity of the State

of Wyoming.” No facts indicating probable

cause are included in this complaint. The affiant

Sheriff of Carbon County put out a state item

requesting that I be apprehended. Officers jp

Laramie made the arrest.

Prior to this petition have you filed with respect to

this conviction:

(a) any petition in a State Court? Yes

(b) any petitions in a State court by way of statv-

tory coram nobis? No

habeas corpus? No

(d) any petitions in the United States Supreme

Court for certiorari other than petitions, if any,

already specified in (8)? No

(e) any other petitions, motions or applications in

this or any other court? No

If you answered “yes” to any part of (12), list with

respect to each petition, motion or application:

(a) the specific nature thereof:

i. An application for post-conviction relief

(b) the name and location of the court in which

each was filed:

i. Carbon County District Court, Rawlins, Wy-

oming

disposition :

i. Denied, June 5, 1967

(d) If known, citations of any written opinions or

orders entered pursuant to each such disposi-

tion:

i. None

14, Has any ground set forth in (10) been previously

15.

16.

17.

18.

presented to this or any other court, state or federal,

in any petition, motion or application which you

have filed? Yes

If you answered “yes” to (14), identify:

(a) which grounds have been previously presented:

i. There was no probable cause supporting the

arrest.

(b) the proceedings in which each ground was raised:

i. The appeal to the Wyoming Supreme Court

from the original conviction, and in the ap-

plication for post-conviction relief.

If any ground set forth in (10) has not previously

been presented to any court, state or federal, set

forth the ground and state concisely the reasons why

such ground has not previously been presented:

Not Applicable.

Were you represented by an attorney at any time

during the course of:

(a) your arraignment and plea? Yes

(b) your trial, if any? Yes

(d) your appeal, if any, from the judgment of con-

viction or the imposition of sentence? Yes

(e) preparation, presentation or consideration of

any petitions, motions or applications with re-

spect to this conviction, which you filed? Yes

If you answered “yes” to one or more parts of (17),

list:

(a) the name and address of each attorney who

represented you:

i. Mr. C, L. Bates, Rawlins, Wyoming

ii, Mr, Richard V. Thomas, Cheyenne, Wyo-

ming

iii. Mr. Samuel T. Ishmael, Rawlins, Wyoming

Se EON SP OR RI OS RE Ne aS Me an wre — ae a a |

LE ENE AID hp AP ELE OD A,

PLD NRL OL IL OID

aed sn ARSE: = |

“wea

(b) the proceedings at which each such attorney

represented you:

i. Arraignme=t and plea, trial, sentencing

ii. Appeal to Wyoming Supreme Court

iii. Post-conviction relief hearing

i. appointed by the Court? Yes; or

ii. of your own choosing? - Sone

. If your petition is based upon the trial court’s re.

fusing you counsel, attach the transcript of the pro-

ceedings which supports your allegation.

. If your petition is based upon the failure of counsel

to adequately represent you, state concisely and in

detail what counsel failed to do in representing your

interests:

Not Applicable.

. If you are seeking leave to proceed in forma pav-

peris, have you completed the sworn affidavit setting

forth the required information (see instructions,

page 1 of this form)? Yes

/s/ HAROLD W. WHITELEY

Signature of Petitioner

State of Wyoming )

) ss

County of Carbon )

|, Harold Whiteley, being duly sworn upon my oath de-

and say that I have subscribed to the foregoing

petition; that I know the contents thereof; and that the

matters and allegations therein set forth are true.

/s/ HaRoLD W. WHITELEY

Signature of Affiant

SUBSCRIBED AND SWORN to before me this 3rd

day of July, 1968.

/s/ JAMES ENGSTROM

Notary Public

My commission expires:

May 1, 1970

(month, day, year)

FORMA PAUPERIS AFFIDAVIT

I, Harold Whiteley, being first duly sworn according

to law, depose and say that I am the defendant in the

above-entitled cause, and, in support of my application

for leave to proceed in said cause without being required

to prepay fees or costs, state as follows:

1, That I am a citizen of the United States.

2. That because of my poverty I am unable to pay the

costs of this action.

3. That I am unable to give security for the same.

4, That I was unable to pay the costs of my trial, my

appeal to the Supreme Court of Wyoming, or my

application for post-conviction relief.

5. That I believe I am entitled to the redress I seek

in this action.

/s/ HAROLD W. WHITELEY

Signature of Petitioner

State of Wyoming )

County of Carbon )

I, Harold Whiteley, being first duly sworn upon my oath,

depose and say that I have subscribed to the foregoing

affidavit; that I know the contents thereof; and that the

matters therein set forth are true.

/s/ HAROLD W. WHITELEY

Signature of Affiant

SUBSCRIBED AND SWORN to before me this 3rd

day of July, 1968.

/s/ JAMES ENGSTROM

Notary Public

My commission expires:

May 1, 1970

(month, day, year)

STIPULATION

Filed July 22, 1968

IT IS HEREBY STIPULATED by and between the

parties through their respective counsel that, pursuant

to the agreement of the parties in open court on Febrv-

ary 16, 1968, both sides will rely exclusively on the ree-

ord before the trial court in the original case of the

State of Wyoming v. Harold Whiteley, Criminal No.

2885 in the Carbon County District Court, Rawlins, Wy-

oming and any and all parts of the record on appeal to

PRT ‘ . _

OSA RAL NE MATC NT RRR TREAT! —

saber quee rs

the State of Wyoming in Case No. 3461 in the hearing

on the merits of this case before the above entitled court.

DATED this 22 day of July, 1968.

ATTORNEYS FOR PETITIONER

3/ MAXWELL E, OSBORN

' MAXWELL E. OsBorRN

js) WILLIAM J. KNUDSEN, JR,

WILLIAM J. KNUDSEN, JR.

WYOMING DEFENDER AID PROGRAM

Room 109, Law School

University of Wyoming

Box 3035 University Station

Laramie, Wyoming 82070

LLIN OLIN A AE MN PLE ES LL OLT ET GOODE ILE ELLIE DLL AALS. EME

STATE OF WYOMING,

Respondent

By /s/ JACK SPEIGHT e

JACK SPEIGHT '

Assistant Attorney General

State of Wyoming

210 Capitol Building

Cheyenne, Wyoming

ORDER 3

Filed July 22, 1968 :

Pursuant to the stipulation of the parties dated July

22, 1968, it is hereby ordered, adjudged and decreed that

the hearing on the merits of this case shall be limited

to evidence contained in the record before the trial court

in the original case of the State of Wyoming v. Harold

Whiteley, Criminal No, 2885 in the Carbon County Dis-

trict Court, Rawlins, Wyoming and any and all parts

DL PLY OPERA IIS BaP

{

SESS OR dae a Ne eu ok ed UR ey Gk ny :

of the record on appeal to the State of Wyoming in Case

No. 3461 in the hearing on the merits of this case before

the above entitled court.

DATED this 22 day of July, 1968.

EWING T. KERR

Judge

ANSWER TO AMENDED PETITION

FOR WRIT OF HABEAS CORPUS

Filed August 7, 1968

COMES NOW Respondent, through its attorney, Jack

Speight, Assistant Attorney General for the State of

Wyoming, and for its answer to the Amended Petition

of Harold Whiteley states:

FIRST DEFENSE

The Petitioner has failed to state sufficient facts and

information in his Petition to present a claim upon which

relief can be granted.

SECOND DEFENSE

The Respondent admits all of the allegations contained

in paragraphs 1 through 8, 12, 18, 14, 17 and 18 of

Petitioner’s Amended Petition For Writ of Habeas Cor-

pus submitted to this Court.

THIRD DEFENSE

Respondent denies each and every allegation and con-

clusion of law set forth in paragraphs 10 and 11, and

further, specifically states in response to Petitioner’s al-

legations contained in paragraph 15 of his Amended

Petition that all issues that are raised before the United

States District Court for the District of Wyoming are

issues that have been raised and fully litigated and dis-

—— - —

BR SR ASR eee ty tua ay tp aeons rms —_ ————————

e PEER PORE CRN sna en mus ue NNO TEOETS ; AT

sed of before. These issues have been raised either

in the State District Court for the Second Judicial Dis-

trict, State of Wyoming, or the Wyoming State Supreme

Court.

FOURTH DEFENSE

Respondent further states that an answer is not re-

quired to paragraphs 9, 16, 19 and 20 of Petitioner's

Amended Petition for habeas corpus relief.

WHEREFORE, Respondent prays that the Amended

Petition for Habeas Corpus relief of Harold Whiteley be

dismissed and disallowed, and that the Petitioner be re-

manded to the care, custody and control of the Warden

of the Wyoming State Penitentiary, Rawlins, Wyoming.

STATE OF WYOMING,

Respondent

By: /s/ JACK SPEIGHT

JACK SPEIGHT

Assistant Attorney General

State of Wyoming

210 Capitol Building

Cheyenne, Wyoming

CERTIFICATE OF SERVICE

I, Jack Speight, Assistant Attorney General, State of

Wyoming, do hereby certify that a true and correct copy

of the foregoing “ANSWER TO AMENDED PETITION

FOR WRIT OF HABEAS CORPUS” was served upon

the Petitioner, Harold Whiteley, by placing a copy of

the same in the United States Mail, postage prepaid,

this 6 day of August, 1968, addressed as follows:

Mr. Harold Whiteley, Register No. 9789

c/o Warden, Wyoimng State Penitentiary

Rawlins, Wyoming 82301

In addition I further certify that a true and correct

copy of the foregoing “ANSWER TO AMENDED PETI-

SASP SA PESOS Pe ey

TR RS DTA RS, SOLAR a NUTR EI TE —

TION FOR WRIT OF HABEAS CORPUS” was serveg

upon William Knudsen, Director of the Wyoming De

fender Aid Program and Maxwell E. Osborn, Attorney

for Petitioner, by placing separate copies of the Answer

in the United States Mail, postage prepaid, this 6 day

of August, 1968, addressed as follows:

Mr. William Knudsen, Director

Wyoming Defender Aid Program

College of Law

University of Wyoming

Laramie, Wyoming 82070

Mr. Maxwell E. Osborn

Attorney at Law

1807 Capitol Avenue

Teton Building

Cheyenne, Wyoming 82001

/s/ JACK SPEIGHT

JACK SPEIGHT

Assistant Attorney General

SPO a xtgagines - 4 ‘ = 50%

a ik SE Re arse creer ge STORER NEL PL CE A

IN THE DISTRICT COURT

SECOND JUDICIAL DISTRICT

SraTE OF WYOMING )

) ss

CoUNTY OF CARBON )

Criminal Case #2885

THE STATE OF WYOMING, PLAINTIFF

—vs—

HAROLD WHITELEY, DEFENDANT

ee.

GP. SARE ELLIO ELOISE RD ILE LLIEB ION AMAL ILENE ti PES ERE OE ROI ITI

TIME: 3:20 P.M. ARRAIGNMENT DATE: 12-22-64

BEFORE THE HONORABLE GLEN G. STANTON,

DISTRICT JUDGE, SECOND JUDICIAL DIS-

TRICT OF WYOMING.

APPEARANCES: Mr. John V. Crow, County & Prose-

cuting Attorney, Sheriff Ogburn, Carbon County,

Wyoming and Mr. C. L. Bates, Attorney at Law,

representing defendant, Whitley.

* * * *

Q. Do you wish the Information to be read?

MR. BATES: No, if the Court please, we would

waive the reading of the Information and the defendant

would like to enter a plea of not guilty, but before he

enters a plea of not guilty, he would like to have the

right to attack the search and seizure and it would cer- s

tainly justify the same for the purpose of the record if &

we would but he is ready to plead with that reservation. :

THE COURT: Do you know about that? i

MR. BATES: Just merely for protection. There is 5

a question that when they plead, if they want to attack

the search and seizure, after they would plead but they

could reserve the right. We don’t know where we are

going—whether we are going to avail ourselves of that,

but just merely to protect the record, if they did subse-

SAS EGE IID ERT FEIT HEARNE ree ag

MAO TAY NII NOOR A Ene —_—

quently want to file a motion to attack this search and

seizure.

MR. CROW: If the Court please, it is my under.

standing, during the preliminary hearing, the defendant

made a motion to quash the evidence on the grounds that

it was illegally obtained. Is that the same motion?

MR. BATES: Yes, exactly the same motion and just

merely for protection.

THE COURT: I will allow a plea of not guilty and

waive any rights.

MR. BATES: I don’t think it would Judge. Just to

be sure and to be sure the rights are protected.

MR. CROW: I don’t have any objection to that ob-

servation so long as the plea is made, your Honor.

THE COURT: All right. I don’t think it’s necessary,

I think if you plead not guilty, you—

MR. BATES: Everything at issue. I think your

point is very well taken, Judge. I feel that I’m obligated

to them to do that.

THE COURT: Well, it’s a little—do you wish to

plead not guilty?

A. Yes,

———

RON! SNR es ns RE RANT wien

SOSA ARS EE CN ALISO INARA ALBIN ARE NENT Seley at EEG POLE CRI —F

17 ;

STATE’s EXHIBIT 2

Filed September 6, 1968 ;

PD-4 ;

LARAMIE POLICE DEPARTMENT :

COMPLAINT REPORT C No. D 265

Name of Complainant: '

S. 0. State item 881 '

Address of Complainant: Telephone: :

Crime Classification : Place of Occurrence: f

PU and H

Date and Time of Occurrence:

11/24/64

Subjects or Suspects:

No. 1 Jack Daley Address Unknown

No. 2 Harold Whitley Address Unknown

Ss Fee NE hiesdenedibalths

Details of Complaint: These two suspected in several

burglaries in Carbon County in the past few days. S. 0.,

Laramie has reason to believe a warrant will be issued

on these two subjects.

Subjects driving a tutone green (dark over light)

Buick, Model somewhere in the 1950’s 1964 Wyoming

2—balance unknown.

Property Stolen: (Describe and Give Value) —..... ;

(Use over if more space needed)

4 USP Maras tey SUCRE, aot Seamed: esrcaet. sam adeyt Tbe 1 PORE IMPERRMNTIY COr IRR bias oh RW 8 IES

oO ana ee } BX FOE LLL IN MEI TO Cs MM LEERY EE Te RAN A site she AS ant aT saaeet ‘eit, a

Description of Subjects No. 1

or Suspects

Color (race) —.. Ses ;

Age (Girth date) (place) — ££

RR ap ler

Complaint received by: Date and Time Received:

Sinon 11/24/64 4:00 p.m.

Assigned to: Date and Time Assigned:

All 19 m.,

Investigation: I observed this vehicle going east over the |

Clark Street viaduct and followed it to Ivinson where it _

turned west and stoped this vehicle in front of the Hoppe

Hotel. At this time I radioed the other units that I had

stopped the vehicle in front of the Hoppe Hotel. The

subjects were then arrested for Investiagtion. By this

time Sgt. Kersting and Undersheriff Lankford arrived

at the scene. Sgt. Kersting and Undersheriff searched

the car. In the car was found a large quanity of burglar

tools and old &&& coins.

(Attach sheet if more space needed)

Also submitted or to be submitted:

I sc iicniiidncolntsinidcs nie” MIN eosin

EES 8 erat

mrenetien Beet OM.

A CNN fe ickr

ITT NS ee

Be Gaia Gola Con ottt eet te

QOD LEP LOE IGLOS AOD A PAIL AOE ALE AION DEBAEAD ET TG Ay tee a ee Te

In the glove compartment of the car was found a loaded

p-38 pistol, This pistol was found by Sgt. Kersting. The

subjects were then taken to the Sheriffs Office.

D. C. ROGERS

/s/ D. C. Rogers

November 24, 1964

ATTENTION ALL OFFICERS

PU & H for Investigation of burglary:

1. Jack DALEY

2. (2?) WHITLEY

driving a tutone green (dark over light) Buick, model

somewhere in the 1950’s, 1964 Wyoming 2—balance un-

known.

These two subjects are suspected in several burglaries in

Carbon County in the past few days. S. O., Laramie has

reason to believe a warrant will be issued on these two

subjects.

State Item—881

Auth: CHIEF TRABING

I observed this vehicle going east over the Clark Street

viaduct and followed it to Ivinson where it turned west

and stopped this car in front of the Hoppe Hotel. Both

Subjects were placed under arrest for Investigation. The

car was then searched by Undersheriff Lankford and Sgt.

Kersting. There was a large quantity of burglar tools

found in the car with a large quantity of old coins. There

was loaded P-38 pistol found in the glove Compartment

of the car. Subjects were then taken to the Sheriffs

Office.

D. C. ROGERS

ae re

° <a

11/30/64

LaVerne Trabing

Chief of Police

Laramie, Wyoming

Dear Sir:

On the 24th of November, 1964, Jack O. Daley and

Harold Whitley were arrested by Laramie Police Officers

Kersting, Rogers and Norberg and Undersheriff Lank.

ford. This arrest was made for the Carbon County

Sheriff, Rawlins, Wyoming, in connection with four (4)

burglaries in the Carbon County area. A large assort-

ment of burglar tools and stolen property from these

burglaries was found in the car. Both subjects were

turned over to Carbon County authorities on Nov. 25,

1964.

Officers Overman and Foreman went to Rawlins Nov.

25, 1964 and Officer Foreman interrogated Jack Daley.

Daley admitted participating in some way in the follow-

ing burglaries: (Daley at this time would give no de

tails as to who was involved, how committed, what ob-

tained, etc. He stated that at a future date he would

contact Officer Foreman and ailvise on other burglaries

and details).

Sally’s Cafe—C+64-00625, 4/1/64—$91.00 taken.

The Bowl—C#63-01497, 8/28/63 (valuable coin col-

lection taken) or C#64-00839, 5/4/64—$60.00 and

9MM Luger taken.

McConnell Brothers—C #64-00871, 5/13/64—approx-

imately $45.00 taken from safe.

Medical Dental Group—C#64-00923, 5/21/64—Un-

determined amount of money taken from safe.

Laramie Auto Parts—D-049, 7/30 or 7/31/64—

$1500.00 taken from safe.

Buckhorn Bar—C#61-02878, 10/26/61—$600.00

taken.

Greens’ Groceries & Meats—C#64-00322, 1/31/64—

Nothing reported missing.

Also admitted burglarizing Pat Self’s Old Corral,

Centennial, Wyoming, date and details unknown.

(This place has been burglarized 3 or 4 times in

the past 2 years). :

a i i a —_

Jack O. Daley also stated that the following subjects he

knew were in some B & E’s that he would give to the

Laramie Police Department when he knew he was safe

from harm.

bs titel a!

Lonnie C. Norman

Charles Patton

Henry Phillips

McKinnley Benson

Lonnie Cotton

Tree Top Swinton.

Respectfully submitted,

/s/ Jerry Overman

JERRY OVERMAN

Sgt. Detectives 2

88 OYE PAS SCRE, ELE BIOL GH

/s/ Stanley E. Foreman

STANLEY E. FOREMAN

Patrolman

PANE PLE LEI LM LOPE. REIS BOE L ACY

te eR

——

— _ SENS RRR ERE toe ERR UR RT Mea gets |

. a ee AS

Re Saar ine e ateet Reeeem

PD-10—1.5M—1-65

LARAMIE POLICE DEPARTMENT

Laramie, Wyoming

DATE 11/24/64

TIME

C. No. D-265

I was on duty, as a Patrolman for the Laramie Police

Department, on the 4 to 12 midnight shift the evening

of November 24, 1964. When I reported for duty at

3:15 p.m. I found a state message 881 had been given

to the Laramie Police Department to pick-up and hold

one Jack Daley and one Harold Whitley for investigation

of breaking and entering at Saratoga the night of No

vember 23, 1964.

At 7:00 p. m., after my dinner, I made several tele

phone calis to people in Laramie who know Daley. I

asked them if they had seen either Daley or Whitley in

the City of Laramie during that day. One of the persons

I called said that he had seen Daley the day before

working in a lumber camp on Spruce Mountain. Det.

Bernaski was notified of the information I received on

the phone. Det. Bernaski then talked to the informant

in person, and it was discovered that the informant had

either given us wrong information or misunderstood the

name of the suspect. The informant had thought the

name of the suspect was Jack Taylor. At about 10:30

p. m. the same informant called the Police Station and

asked for an officer to come to his home and talk about

Jack Daley. Sgt. Kersting was sent to answer this call.

A short time later Sgt. Kersting radioed all units that

Daley had just left a house across from the Laramie

airport and was on his way to Cheyenne, At the time of

the radio call from Sgt. Kersting I was checking build-

ings at 2d and Lewis Streets. Occupants in my patrol-

car at this time were John Norberg, an off-duty patrol-

man, and myself, Delbert C. Rogers. After receiving the

radio call we proceeded to Clark St. and travelled west

over the Clark St. viaduct to wait for the suspects at

— aoe

the West Laramie interchange at highway 130-230 and

interstate 80. While we were crossing the viaduct I

asked Norberg to load the shotgun. In the 200 block of

North Cedar St. a blue and white 1955 Buick was spotted

coming north on Cedar St. This vehicle had one male

subject driving and a second male in the front passen-

ger seat. The vehicle also had a 1964 Wyo. license plate

9.496. After spotting the above vehicle we turned around

and followed it east over the Clark St. viaduct. As we

drove across the viaduct all other units were radioed

giving them information as to the license number, color,

year and make of the vehicle. Sgt. Kersting radioed

back to us to follow the vehicle and not stop it if it drove

east on Grand Ave. At the foot of the viaduct the ve-

hicle turned south on 3rd St. The vehicle proceeded to

8rd and Ivinson and turned west. The vehicle stopped

for a stop light at 2d and Ivinson and then parked in

front of the Hoppe Hotel at 115 Ivinson Ave. As soon

as the vehicle stopped the driver got out and started

across the street. I called to the driver and asked him

to return to the patrolear, which was then parked. When

he returned to the patrolear, I asked his name. He re-

plied, giving me a name that I cannot remember at this

time, but it was not Whitley. We then placed the suspect

against the patrolear and asked him if Daley was in the

car. The person thought to be Whitley remarked, “Is

that his name?” I looked through the back window of

the Buick at the person thought to be Daley in the front

seat. Patrolman Norberg, with the shotgun, watched the

suspected Whitley, while I walked to the front door of

the Buick and reached down to open the door. The door

was locked, and then the suspect in the front seat turned

and unlocked the door with his left hand. After he un- {

locked the door, I opened it and preliminarily identified

him as the suspect Daley. I asked him to get out of the

car and walked with him back to the patrolear. Patrol-

man Norberg stayed with him on the right side of the

patrolear, while I returned to the left side of the car to

watch the person thought to be Whitley. At this time

Undersheriff Langford drove up from the east and got

out of his car. Also at this time Sgt. Kersting drove up

across the street from the west. As Sgt. Kersting drove

Re ee may oa

REALILES LIL SORT IO

cen

IIRL OO LIL”

TER PRAT A ROR s te |

$e MOT ~ a

up Undersheriff Langford walked up beside Daley. As

to reassure myself that we had stopped the right vehicle,

I asked Langford “That is Daley, isn’t it?” Langford

replied that it was. Sgt. Kersting got out of his car and

walked across the street to us. Undersheriff Langford

then told both suspects that they were under arrest for

investigation of burglary. Whitley looked up and asked

burglary of what? Langford answered “Four burglaries

in Saratoga last night.” From this time on Whitley

made only one or two more statements. When Sgt. Kers-

ting arrived he searched Whitley. When he finished |

handcuffed Whitley and placed him in the back seat of

the patrolear on the left side. I don’t know whether

Langford or Kersting searched Daley, but when they

were finished he was placed in the back seat of the patrol-

ear on the right side. Sgt. Kersting and Undersheriff

Langford then proceeded to search Whitley’s vehicle, I

stayed by the front door of the patrolear in order to

watch both suspects and hear anything that might be

said between them. Sgt. Kersting searched the front of

the vehicle, while Undersheriff Langford searched the

trunk. I took a hand spot-light from the patrolcar and

turned it on with the light directed to shine inside the

trunk of Whitley’s vehicle, in order to assist Undersheriff

Langford. Sgt. Kersting removed a German made auto-

matic piste] from the vehicle, and after unloading it, he

returned to the search. The next items that were found,

came from the trunk. They were a carpenters’ wrecking

bar, a black bag with a zippered top, which was opened

by Langford, and from where I was standing I noticed

it contained a hammer, punch and number of other tools.

The search was continued inside of the vehicle, but from

where I was standing I didn’t see any other items that

were found. As Sgt. Kersting finished the search inside

of the car he removed a brown paper sack. Patrolman

John Norberg then got into Whitley’s car and started

the vehicle. Sgt. Kersting and Undersheriff Langford

both returned to their vehicles with the items of evidence

they had found. Undersheriff Langford backed up his

vehicle and made a U turn and led the line of cars to

the Sheriff’s Office. As Langford turned into the street,

Fo NE er Ret, ER RE ER ee a eee ——F

25 ;

[ started the patrolear with both suspects in it, and after

backing up and making a U turn, I followed Under-

sheriff Langford, with Sgt. Kersting behind me, and Pa- :

troman Norberg in the rear with Whitley’s vehicle. ;

From the time that Whitley had stopped his vehicle

in front of the Hoppe Hotel until we were proceeding

in line to the Sheriff’s Office, the time lapse amounted

to about 10 minutes.

At the Sheriff’s Office we took Daley and Whitley from

the patrolear and led them inside. Sgt. Kersting and

Undersheriff Langford brought the items of evidence con-

fiscated from Whitley’s car into the Sheriff’s Office. In-

side the Office Whitley had his handcuffs removed, was

again searched, and was placed inside of a small room.

About one-hundred and seventy dollars was removed from

Whitley’s billfold. Daley was then searched and placed

in another room. His billfold contained about seventy

dollars. We then checked the cotnents of the black bag

and the paper sack. The black bag contained two punches,

one chisel, one 6 or 8 lb. hammer, one small ball-peen

hammer, one pair of water pump pliers, three screw-

drivers, and the wrecking bar that Undersheriff Lang-

ford had placed in it from the trunk of Whitley’s vehicle.

These items were all tagged as evidence. From the brown

paper sack we removed a pair of socks. Inside the socks

were found a number of old coins. These coins matched

the description of a list of coins that Sheriff Osburn had

given us, and were taken in the burglaries. The coins

were returned to within the socks and tagged as evi-

dence. Sgt. Kersting and myself then turned Whitley

and Daley over to Undersheriff Langford along with the

tools, money, and car, and we returned to the Police

Station to make out our reports.

We left the Sheriff’s Office at 11:30 p. m. From the

time that the vehicle was first stopped until Whitley and

Daley were turned over to Undersheriff Langford the

time lapse had amounted to about 40 minutes. The ma-

jority of “his time was consumed in the searching and

tagging of all evidence found on the suspects and in

their vehicle.

/s/ Delbert C. Rogers

SLO ey 6 NP WRN RRR RTT ALS TREN (ote

STATE’S EXHIBIT 3

Filed September 6, 1968

CRIMINAL WARRANT—FORM No. 94—SPECIAL

THE STATE OF WYOMING )

) ss,

County of Carbon )

TO THE SHERIFF OR ANY CONSTABLE OF SAID

COUNTY, GREETING:

Whereas C. W. Ogburn has this day complained to me,

on oath, that Harold Whitely and Jack Daley did on or

about the 23 day of Nov. A. D. 1964, at Saratoga in

the County and State aforesaid did then and there un-

lawfully break and enter a locked and sealed building

owned by Charles Gould, to-wit: the building located on

the West 22’ and West 14’ of the East 38’ of the South

75’ of Lot 1, Block 1, of the Hugus and Chatterton’s

First Addition to the Town of Saratoga, Carbon County,

Wyoming, Contrary to the form of the Statute in such

case made and provided and against the peace and dig-

nity of the State of Wyoming and prayed that the said

Harold Whitely and Jack Daley might be arrested and

dealt with according to law. Now, therefore, in the name

of the State of Wyoming, you are hereby commanded

forthwith to apprehend the said Harold Whitely and

Jack Daley and bring them before me to be dealt with

according to law.

Given under my hand this 24 day of Nov. A. D. 1964.

/s/ O. E. Castle

Justice of the Peace

THE STATE OF WYOMING )

SS.

County of Carbon )

I hereby certify that I received the within Warrant

on the 24th day of November 1964 at 4:00 o’clock P.M., .

and served the same at the County and State aforesaid

by arresting the within named Defendant Harold White-

ley and Jack Daley and by informing him of the within

contents, and brought him into Court before J. P. O. E.

Castle, a Justice of the Peace in and for Carbon County,

Wyoming, this, the 25th day of November, 1964.

DEL PL INE

/s/ C. W. Ogburn

Sheriff

By /s/ Frank McDonald

Deputy Sheriff

SEE MLO IT ORES MOT EF

Depa

Sheriff’s Expense, $_..._________.

RE ee NRO ty ENR Le I ONDINE RESET MR KOO ce |

LR ante PE Dee BPD ins A EL LPR, Se 2

STATE’S EXHIBIT 4

Filed September 6, 1968

Before O. E. CASTLE, Justice of the Peace

THE STATE OF WYOMING

vs.

HAROLD WHITELY and JACK DALEY, DEFENDANTS

THE STATE OF WYOMING )

SS,

County of Carbon )

I, C. W. Ogburn, do solemnly swear that on or about

the 23 day of November, A. D. 1964, in the County of

Carbon and State of Wyoming, the said Harold Whitely

and Jack Daley, defendants did then and there unlaw-

fully break and enter a locked and sealed building owned

by Charles Gould, to-wit: the building located on the

West 22’ and West 14’ of the East 38’ of the South 75’

of Lot 1, Block 1, of the Hugus & Chatterton’s First

Addition to the Town of Saratoga, Carbon County, Wyo-

ming. Contrary to the form of the Statute in such case

made and provided and against the peace and dignity

of the State of Wyoming.

Signed C. W. Ogburn

Subscribed and sworn to before me this 24 day of

Nov., 1964.

/s/ O. E. Castle

Justice of the Peace

Rawlins 12/7/64

Waived reading of Complaint

Pleas of not guilty

Bound to District Court $10,000 Bond each

STATE’S EXHIBIT 5

Filed September 6, 1968

WYOMING STATE HIGHWAY DEPARTMENT

COMMUNICATIONS DIVISION

BASE STATION LOG

Sheet No. 4

Date Nov. 24, 1964

Location Rawlins

Frequency 42:82 Power Input 500 Call Letters KOF268

Frequency 47:22 Power Input 500 Call Letters KOF270

POR GUNA SERA WB RN DBT SEIN SOARS ORIN AE SARE AE EON 5 SARE EP HOI _

Frequency .. PowerInput...._ Call Letters

STATION

“To FROM TEXT OF MESSAGE TIME

C44 Ref. 2-448N - green with black

passed car last night about

9:00 P.M. 11-23-64 headed W. 2:13

X51 Ref. Whitley dr. green & black

Buick [illegible] 2:20

X24 Msg +28K10 2:22

X24 Ref. Msg +28K10 2:25

C-366 PX Pen Need info on Donald

Redman CRR 2:36

P-76 10-10 2737 CRR 2:41

X44 Ref-info on red & black ’54 or

55 Buick Belongs to Chester

Daniels CRR 2:47

C-366 Will be in upper valley out of

contact CRR 2:53

SETA ener concen:

SO IE SET SIN RAR ATR te ey: Taxagl

PMS Ne EE CEE

PAL EN NT SON HOON BASRA IN NED PaO te I a ety

a aaa TEXT OF MESSAGE TIME

X24 Item #880 CRR 2:58

*X24 10-52 10-60 Item #881 CRR 3:03*

X24 Item #882 3:26

P-75 Shop y 3:28

P-76 10-8 . 3:30

P-75 10-8 4:00

P-75 2741 4:11

P-75 10-8 Sinclair West bound 4:18

P-49 Ref. PackageP [illegible] 4:27 P.M.

P-49 10-58 on Robert Pountney 4:39

X-44 Mess 12-K-24 4:46

P-49 it will be tomorrow on that

mess 10-9 4:46

C438 Eastbound 4:47

X-44 Mess 13862 KAA 594 5:11

P-8 10-42 5:12

P-75 Mess 1362 KAA 594 5:18

WyoMING STATE HIGHWAY PATROL OFFICIAL RADIO LOG

Page Number 219

Radio Station KOF268 42.82 MC

Location Rawlins, Wyoming

Power 500 Watts

[881]

ACTIVE CANCELLED

D 303 P.M. 11-25-64

A Nov. 24, 5:30 A.M.

T 1964

Casper

, All Casper

CRR CWP

All

[Cancelled]

P & H for B & E Saratoga, early A.M. 11-24-64. Subj.

#1. Jack Daley, WMA, 38, D.O.B. 2-29-65, 5’10”, 175,

med. build, med. comp., blonde and blue. Tat. left shoul-

der: “Love Me or Leave Me”. #2. Harold Whitley,

WMA, 48, D.O.B. 6-22-21, 5’11”, 180, med. build, fair

comp. brown eyes. Tat. on right arm “Bird”. Poss. driv-

ing 1953 or 1954 Buick, light green bottom, dark top.

Wyo. lic. 2- bal. unknown. Taken: $281.71 in small

change, numerous old coins ranging from .5¢ pieces to

silver dollars, dated from 1853 to 1908. Warrant issues,

will extradite. Special attention Denver. Use CODE 10-50.

Auth. 8.0. Rawlins

Cnel. Info.

Auth: S. O. Rawlins

[Cancelled]

Ne a ee a ee EL ea —F

[882]

ACTIVE CANCELLED

A 11/24/64 12-5-64

T 3:26 P.M. 9:16 P.M.

FR. Casper Casper

TO. All All

OPR. DDS CWP ‘

Vv All All

[Cancelled]

Stolen Gillette, sometime night 11/20/64. Coin collection

valued at approximately $4,000. Large amount of Silver

Dollars. List available.

Auth. S.O. Gillette

Cncl. Info.

Auth: S. O. Gillette

[Cancelled]

EY pert - : “Ah 9tG

a id et et oN Re

[883]

ACTIVE CANCELLED

A 11/24/64 12-1-64

T 9:33 P.M. 7:25 P.M.

FR. Casper Casper

TO. CWP All

OPR. All CWP

—

V All All

[Cancelled]

10-75 Memphis, Tenn. since 11/5/64. Lt blue 1965 Ford

Galaxie 2dr. Tenn. lic. AD-1230. ID#5U66C108563. Poss.

driven by Jerry lee Roger alais William Loomis, WMA,

42, 62”, 160, Blond and blue. Acc. by deformed subject

18, lite build, blond bushey hair, old looking face Subject

poss. involved in murder. Code 10-50 Notify FBI Chey-

enne.

Auth. F-92 Cheyenne

Cnel. Info.

Auth: F.B.I. Cheyenne

{Cancelled}

as —

[884]

ACTIVE CANCELLED

A Nov. 25 11-25-64

T 1964 9:16 P.M.

FR. Casper Casper

TO. All All

OPR. CRR CWP

5 oom

V All All

TO =

[Cancelled]

P & H runaway boy Worland, since 10:30 A.M. 11-24-64,

James Miller, WMA, 15, 5’6”, 130, brown and blue.

Wearing tan cord pants, red, White & blue stripped shirt,

reversable dark green and black jacket. Maybe with Ed-

ward Hourt, driving light blue 1956 Olds conv. Wyo. lic.

1-911V. Transportation furriished for Miller only.

Cnel. Info.

Auth. S.0. Worland

Auth: S. O. Worland

{Cancelled |

STATE’S EXHIBIT 6

Filed September 6, 1968

WyoMmING STATE HIGHWAY PATROL OFFICIAL RADIO LOG

Page Number

Radio Station 42.82 MC

Location Wyoming

Power Watts

[879]

: ACTIVE CANCELLED

—

FR.

TO.

OPR.

Cnel. Info.

Auth:

PE LOL DE ee PP ,

[880]

ACTIVE CANCELLED

FR.

TO.

OPR.

California MFO-78

Cnel. Info.

Auth:

a LoS

(881]

ACTIVE CANCELLED

11/24 11/24

6/P

JOF JOF

P & H for B & E Saratoga since early AM 11/24/64

+1 Jack O. Daley WMA 88 years, DOB 2-29-26 510”

175+ Medium build, Medium Complexion, Blond and

Blue Has Tattoo left Shoulder “Love Me or Leave Me”

+2 HAROLD WHITELY WMA 43 years DOB 6-22-21

511” 180% Medium build, fair complexion. brown eyes

Tattoo right arm of a bird. Possibly driving a 1953 or

1954 Buick lite green bottom, dark green top WYO 2-

Balance Unknown. Taken $281.71 small change. Numer-

ous old coins from .05 to $1 dates from 1853 to 1908

Warex

Cnel. Info. Code 10-50

Auth: S.0. Rawlins

RIN LD DR DAE OIE as SDA ERRNO NS

[882]

ACTIVE CANCELLED

A 11/24 12/5/64

T 6/P 9:20/

KOF

FR. 265

TO. APB

OPR. JOF JOF

[Cancelled]

Stolen late night of 11/20/64 Coin collection valued at

$4000.00 large amount of silver dollars List available

Cnel. Info.

Auth: S. O. Gillette

[Cancelled]

EE ee ee ———

STATE’S EXHIBIT 7

Filed September 6, 1968

CRIMINAL WARRANT—FO0RM No. 94—SPECIAL

THE STATE OF WYOMING )

ss.

County of Carbon )

TO THE SHERIFF OR ANY CONSTABLE OF SAID

COUNTY, GREETING:

Whereas C. W. Ogburn has this day complained to me,

on oath, that Harold Whitley did on or about the 23

day of Nov. A. D. 1964, at Saratoga in the County and

State aforesaid did then and there unlawfully break and

enter a locked and sealed building owned by Edward

Shively, to-wit: the building located on Lots 1, 2, 3 & 4

the East 16’ of Lot 5, in Block 27, of the Saratoga Real

Estate and Improvement Company’s First Addition to

the Town of Saratoga, Carbon County, Wyoming. Con-

trary to the form of the Statute in such case made and

provided and against the peace and dignity of the State

of Wyoming and prayed that the said Harold Whitley

might be arrested and dealt with according to law. Now,

therefore, in the name of the State of Wyoming, you

are hereby commanded forthwith to apprehend the said

Harold Whitely and bring him before me to be dealt

with according to law.

Given under my hand this 27 day of Nov. A. D. 1964.

/s/ O. E. Castle

Justice of the Peace

THE STATE OF WYOMING )

) ss.

County of Carbon )

I hereby certify that I received the within Warrant

on the 27 day of Nov. 1964 at 10:00 o’clock A.M., and

served the same at the County and State aforesaid by

arresting the within named Defendant Harold Whiteley

and by informing him of the within contents, and brought

him into Court before O. E. Castle a Justice of the Peace

in and for Carbon County, Wyoming, this, the 27 day

of Nov., 1964.

/s/ C. W. Ogburn

Sheriff

By /s/ Chuck Ross

Deputy Sheriff

Sheriff’s Expense, $.

STATE’S EXHIBIT 8

Filed September 6, 1968

CRIMINAL COMPLAINT—FORM No. 94—SPECIAL

Before O. E. CASTLE, Justice of the Peace

THE STATE OF WYOMING

vs.

HAROLD WHITLEY, DEFENDANT

THE STATE OF WYOMING )

) ss.

County of Carbon )

I, C. W. Ogburn, do solemnly swear that on or about

the 23 day of Nov., A. D. 1964, in the County of Carbon

and State of Wyoming, the said Harold Whitley, de-

fendant, did then and there unlawfully break and enter

a locked and sealed building owend by Edward Shively,

to-wit: the building located on Lots 1, 2, 3 & 4, the East

16’ of Lot 5 in Block 27, of the Saratoga Real Estate

and Improvements Company’s First Addition to the Town

of Saratoga, Carbon County, Wyoming. Contrary to the

form of the Statute in such case made and provided and

against the peace and dignity of the State of Wyoming.

Signed C. W. Ogburn

Subscribed and sworn to before me this 27 day of

Nov., 1964.

/s/ O. E. Castle

Justice of the Peace

Waived reading of Complaint

Pleas of not guilty

Motion to suppress evidence $10,000 Bond

TESTIMONY OF JACK OLIVER DALEY

Filed September 6, 1968

In United States District Court, Civil No. 5185

IN THE DISTRICT COURT

SECOND JUDICIAL DISTRICT

Criminal Action No. 2885

STATE OF WYOMING )

) ss

COUNTY OF CARBON )

THE STATE OF WYOMING, PLAINTIFF

—V3-—

HAROLD WHITLEY, also known as HAROLD W. WHITELEY,

DEFENDANT

DIRECT EXAMINATION

Q. And what part of town is that?

A. Well, it’s in the main part of the town. The first

place we went to was in back of the Rustic Bar.

Q. What did you do there?

A. I climbed up on a shed—

MR. BATES: Now, if the Court please, I would ob-

ject to this line of questioning, because he is now going

to testify to—well, his testimony—let me object to it

first on the grounds where they went to other than the

Shiveley Hardware Store would be incompetent, irrele-

vant and immaterial, would have no bearing whatsoever

upon the issues in this case.

MR. CROW: Your Honor, may I address the Court.

THE COURT: Is this going to be an argument as to

the admissibility of his testimony?

MR. CROW: No, if the Court please. I don’t object

to our restriction of the testimony, except that I want

to outline it for the purposes of showing times, etc.,

where they were, what they did, etc..

THE COURT: Not what they did, just where they

went?

MR. CROW: That is right.

THE COURT: [I'll let it go in where they went, but

not to go into detail; if there were other things done by

them that were not pertinent to the charge.

MR. CROW: Yes, Your Honor.

Q. Now, Mr. Daley, you went to the back of the

Rustic Bar?

A. Yes, sir.

Q. And from the back of the Rustic Bar, where did

you go?

A. Well, I went down into the bar.

THE COURT: I think now we are getting into de-

tails of some other doings there that shouldn’t be in the

record; so I will strike that answer. I mean, that has

nothing to do with the time, as you see it, does it?

MR. CROW: Id like to ask one further question—

and then don’t answer, Mr. Daley.

Q. How long were you in the Rustic Bar, or at the

Rustic Bar?

MR. BATES: Now, if the Court please I will object

to that on the grounds it is incompetent, irrelevant and

immaterial, no bearing whatsoever upon the issues in

this case as to how long they were any place other than

Shiveley’s Hardware.

THE COURT: May I see counsel at the bench here.

(WHEREUPON, a discussion was held off the

record. )

Q. Mr. Daley, after you arrived at the back of the

Rustic Bar, how much time later was it that you left

the Rustic Bar?

A. Approximately 30 minutes.

Q. And who was with you at that time?

A. Mr. Whiteley.

Q. Now, don’t answer this question until Mr. Bates

has an opportunity to object. Where then did you go?

A. We left the Rustic Bar and went across the street

to the Shively Hardware.

Q. What did you do there?

A. We went around to the back side and proceeded

to jimmy in the back door.

MR, BATES: Now, if the Court please, I didn’t un-

derstand, may I ask the Court Reporter, Judge to—Mr.

Reporter, will you read the answer please.

(WHEREUPON, answer number 7, was read by the

reporter. )

Q. What did you do at the Shively Hardware?

A. We jimmied the back door.

Q. By, “we,” who do you mean?

A. Harold Whiteley.

Q. What did Mr. Whiteley do?

A. What did he do?

Q. Yes?

A. He was working with the screwdriver to jimmy

open the door.

Q. Was the door locked, Mr. Daley?

A. Yes, sir, from the inside.

Q. Where is that door located in the building?

A. About the center of the building.

Q. Where is the building located with reference to

the Rustic Bar?

A. Across the street.

Q. Which direction, if you know?

A. South.

Q. And with respect to direction, where is the door

in the building?

Be on the south side.

And is that the side that faces the street.

No, sir, it is on the back side.

Was it lighted?

No, it was reasonably dark.

Was the building itself lighted?

There was a light on inside, yes, sir.

- Do you know who owned the building?

MR. BATES: Now, if the Court please, I will object

to that on the grounds that it would merely be hearsay,

it isn’t the best evidence. He wouldn’t have no knowl

edge as to who owned the building.

THE COURT: If he knows, he can answer.

OPOPOrPOD

THE WITNESS: I don’t know.

THE COURT: Do you want to ask him if he knows.

Go ahead and ask him.

THE WITNESS: I didn’t know for sure who owned

the building. I presumed—

MR. BATES: Now, if the Court please, I think he’s

answered. He says he doesn’t know for sure who owned

the building.

Q. (By Mr. Crow): Did you know what business

was conducted in the building?

Yes, sir.

And what business was conducted in the building?

It was a hardware business.

Had you ever been in the store?

Yes, sir, I had.

When had you been in the store before?

It was in June, in ’64,

Mr. Daley, didn’ t you and Mr. Whiteley then gain

admission through the back door by jimming the lock?

MR. BATES: Now, if the Court please, I would ob-

ject to that on the grounds that it is leading.

THE COURT: It is leading.

Q. Did you enter the building, Mr. Daley?

A. Yes, sir.

Q. Who entered with you?

A. Mr. Whiteley.

Q. How did you get in?

A. After breaking the windows out and reaching

down inside and lifting the bar, we pushed the door open.

Q. What did you do after you entered the building?

A. We went towards the front of the building where

I could watch out the windows to see if anybody was

coming, and Mr. Whiteley went towards the safe.

Q. Where was the safe located?

A. There’s kind of a little hallway going through the

door, and as you get to the end of this hallway you have

to turn to your right and then back to your right again,

and then there’s an office there where the safe is.

Q. Had you seen that safe before?

A. Yes, sir, I had.

‘OPOoPOoPop

Q. Did you know where it was located?

A. Yes, sir, I did.

Q. Do you know whether Mr. Whiteley knew where

the safe was located?

MR, BATES: Now, if the Court please, that should

be answered “yes” or “no.”

THE COURT: He may answer, “yes” or “no.”

. I don’t know.

Q. Did Mr. Whiteley go to where the safe was?

A. Yes, sir, he went there.

Q. Did you see him there?

A. Yes, sir.

Q. What did you do next, Mr. Daley?

. I stayed around the front of the building for five

or 10 minutes while Mr. Whiteley worked on the safe.

Q. Did Mr. Whiteley get the safe open?

A. He got two doors open, yes.

Q. What happened then?

A. I came back to the office where he was working

and told him I could watch better from there, as I could

see out the window on the east and also the window on

the north, which is the front window.

Q. You testified that Mr. Whiteley had two of the

doors open on the safe at this time?

A. Yes, sir.

Q. Was there another door?

A. There was a small compartment in the bottom of

the safe which had another combination on it.

Q. Was that open, or closed?

A. It was closed.

Q. Did it remain closed?

A. Yes, sir.

Q. What did you do next?

A. Well, he tried to open it for a while and couldn’t,

so he thought about drilling, and I went to the front of

the store and found a drill there and looked around in

the store and found some drill-bits and brought them

back to him.

Q. What did he do with them, if anything?

“. He tried to drill on the safe.

Q. Was he successful?

A. No, sir.

. What did you do next?

A. We left there and went across the street into a

garage, and broke into the garage.

(Record, Vol. III, 77-83)

* . * *

MR. BATES: Now, if the Court please, I think this

evidence is incompetent, irrelevant and immaterial, has

no bearing whatsoever on the issues.

THE COURT: I think this is a little different situ-

ation. This is an itinerary, as I take it to be. You may

answer.

A. Will you repeat the question again.

Q. Yes. How long did you remain at this lady’s

house across from the airport?

A. We left there about 11:30.

Q. Where did you go?

A. Into town.

Q. What happened next?

A. Mr. Whiteley wanted to see somebody in at the

Buckhorn Bar.

Q. Did you go to the Buckhorn Bar?

A. We drove to across the street from it.

Q. What did you do there?

A. We noticed a squad car behind us and we pulled

over to the curb. The squad car pulled in behind us and

the red light came on.

Q. And what happened?

A. Mr. Whiteley got out of the car and started across

the street to the Buckhorn. I sat in the car.

THE COURT: Can you hear at the other end of

the box?

JUROR: Pretty good.

(Record, Vol. III, 89)

* * * *

Q. Mr. Daley, who was present during that conver-

sation, besides yourself and Mr. Lankford?

A. The officer that first asked me to get out of the

car, the one who was driving the squad car that was

parked behind us. Kenneth Lankford, the Undersherif,

two more officers was there, and Mr, Whiteley was on

the other side of the car, his own car, and I was back

by the police cruiser, which was about 10, 12 feet parked

in back of Mr. Whiteley’s car.

Q. Was anyone with Mr. Whiteley at this time?

A. Yes, sir.

Q. Who was with him?

A. One of the police officers.

Q. What was Mr. Whiteley doing?

A, At the time that Mr. Lankford arrived, one of

the police officers was shaking him down.

Q. By shaking him down, what do you mean, Mr,

Daley?

A. He had Mr. Whiteley put his hands up on the

car and was patting his pockets and checking to see if

he had any weapons or anything like that.

Q. Do you know whether Mr. Whiteley had a Weapon?

A. Not on him.

Q. Well, did he have one somewhere else?

MR. BATES: I would object on the grounds that it

is incompetent, irrelevant and immaterial.

THE COURT: Objection sustained,

(Record, Vol. III, 92-93)

CROSS EXAMINATION

Q. Did they serve any warrant on you?

A. Not at the time, no.

Q. Did they present you with any papers of any kind?

A. No, sir.

Q. Did they tell you what you were under arrest for?

A. Well, they said, “Suspicion of burglary in Sara-

toga.”

Q. Was the trunk on the car locked?

A. Yes, sir.

Q. And where was the key to the trunk of the car?

A. I believe it was in the ignition switch.

Q. Who took the keys out of the car?

A. One of the arresting officers,

_ Who opened the rear of the car?

A. I believe it was Kennie Lankford.

Where were you and Whiteley when he took the

keys out of the car?

A. Sitting in the back seat of the town police car.

Q. Sitting in the back seat of the police car?

A. Yes, sir.

_ So then they had taken you and Mr. Whiteley

from the Whiteley car and had han you into the police

car?

A. Yes, sir.

Prior to the time that they opened the Whiteley

car, is that correct?

A. Yes, sir.

. And Prior to the time that they took the keys out

of the ignition switch?

A. Yes, sir.

Q. Did they serve you with a search warrant?

A. No, sir.

Q. Did they say that they had a search warrant?

A. No, sir, they didn’t.

Q. Was a search warrant discussed by anycne?

A. No, sir.

Q. In who’s bag were the tools and the instruments

that you say they took?

A. In who's bag was it?

A. Yes?

A. It was in Whiteley’s bag.

Q. What kind of a bag was that?

A. A black leather satchel.

Q. Could you describe it with a little more detail for

me?

A. It was approximately that long, 24 inches, and

approximately that high, 12 to 18 inches high.

Q. A black suitcase, wasn’t it?

A. No, it was a satchel type.

Q. And that bag belonged to Mr. Whiteley?

A. Yes, sir.

(Record, Vol. III, 97-98)

eee tee HTT En rm

Q. (By Mr, Bates): As a matter of fact, you were

the one that entered the Shively Hardware store in Sara-

toga, Wyoming, weren’t you?

A. No, sir.

Q. You weren’t the one that opened the door?

A. No, sir. Mr. Whiteley reached through and lifted

the bar off and pushed the door open.

Q. Then who opened the safe?

A. Mr, Whiteley opened the safe.

Q. You didn’t have anything to do with it?

A. I was there, yes, I was watching out.

Q. Where were you located in the store?

Bia When ke opened the first two doors, I was to-

ards the front part of the store.

"O. You had been in the store on several occasions,

hadn’t you, before?

A. Once.

Q. You had lived and worked in Saratoga, hadn't

you?

A. I had lived there, I didn’t have—officially have

a job there, I was helping a friend of mine cooking in

one restaurant, yes.

(Record, Vol. III, 103)

oo 8 * 2

TESTIMONY OF C. W. OGBURN

Filed September 6, 1968

In United States District Court, Civil No. 5185

DIRECT EXAMINATION

Q. Mr. Ogburn, you were the sheriff in November of

1964, is that correct?

A. Yes, sir.

Q. On the 24th of November, 1964, did you have

occasion to go to Saratoga?

A. Yes.

Q. And Saratoga is in Carbon County, is that cor-

rect?

A. Yes, sir.

State of Wyoming, is that correct?

A. Yes, sir.

' And therefore within your jurisdiction as sheriff

of this county?

A. Yes, sir.

Q. Where did you go in Saratoga?

A. I went to the Shively Hardware store.

Q. Did you have a deputy in Saratoga at this time?

A. Yes, sir.

Q. Had you received a call from your deputy in Sara-

toga?

Yes, sir, about 8:15 on this date.

On the morning of November 24th?

Twenty-fourth, yes, sir.

(Record, Vol. III, 106)

Q. What did you find at the Shively Hardware when

you arrived, if anything?

A. An attempted safe job.

Q. Where is the safe located in the Shively building?

A. It is in the back room in an office to the south—

it would be to the southeast, more-or-less the southeast

part of the building in the hardware store.

Q. By attempted safe job, what do you mean?

A. Attempted safe job, That it had been attempted,

but never actually got the safe open.

(WHEREUPON, State’s exhibit 1, was marked for

identification. )

Q. What, if any, were the indications on the safe

that an attempt had been made to open it?

MR. BATES: Now, if the Court please. May I ap-

proach the bench—Mr. Crow.

THE COURT: Just a minute, don’t answer, sheriff.

(WHEREUPON, a discussion was held of the rec-

ord.)

—w

Q. Sheriff Ogburn, after you went to the Shively

Hardware store, did you conduct your investigation any-

where else?

A. Yes, sir.

Q. Where else?

A. Throughout the store and across the street at two

other places.

Q. After you had finished your investigation, what

did you do?

A. After we finished our investigation we come back

to Rawlins, and through a tip, why, we put out an item,

state item on two suspects of the robbery.

Who were the two suspects?

Jack Daley and Mr. Harold Whiteley.

Was a warrant issued for their arrest?

Yes, sir.

At about what time, if you know?

- That would have been approximately noon on the

24th, 1964, November.

Q. Who was the complaining witness in that warrant

and complaint. Was it yourself?

A. Yes, sir, I signed the warrant.

Q. And who was the Justice of the Peace before whom

this complaint was made?

A. That was O. E. Castle.

Q. Did you then receive a warrant from the Justice

of the Peace?

MR. BATES: If the Court please, I suggest that the

warrant and the complaint would be the best evidence.

THE COURT: Well, he can answer the question, then

if you want him to produce it.

POPO PO

A. Yes, sir.

Q. At approximately what time did you receive the

warrant?

A. That was around 11:30 a.m.

Q. Now, you testified that you put out a state item.

Tell the jury what a state item is?

A. We have throughout the state, radio networks

which we put out our state items for felonies, etc., in

an attempt to locate susnects in the State of Wyoming.

It is located—we put it through Casper and it is given

“|

to the whole state. We keep a radio log. We cannot

alter the log, they have to be kept in order, and you

can’t change them once that you put down a message or

an item; and that’s what radio messages are or items

are in the state. They are for police and sheriff’s officers,

game and fish, law enforcement only.

Q. Now, Mr. Sheriff, did you relate in your item the

fact that a warrant had been issued?

A. Yes, sir.

MR. BATES: If the Court please—well, I’m sorry.

A. Yes, sir.

Q. Do you have the radio log that reflects the matters

that you have testified to?

A. Yes, sir.

Q. Where is it?

A. It is on my desk.

THE COURT: May I see counsel at the bench a

minute.

(WHEREUPON, a discussion was held off the

record. )

MR. CROW: If the Court please, may I dictate a

stipulation into the record?

THE COURT: All right.

MR. CROW: It is stipulated by the defendant and

the State of Wyoming, that a warrant was issued from

the Justice of the Peace Court in Rawlins by O. E. Castle,

Justice of the Peace at about noon on November 24,

1964, ordering the arrest of Jack Daley and Harold

Whiteley, charging the crime alleged in the information.

MR. BATES: Now, if the Court please, I think the

original—could I see the original, Mr. Crow, just to

check the day.

MR. CROW: I don’t have it.

MR. BATES: So stipulated, if the Court please.

Q. Mr. Sheriff, after the warrant was issued and the

state item was put out, did you receive word that an

arrest had been made of the two suspects named?

A. Yes, sir.

Q. Where were they located, if you know?

A. In Laramie, Wyoming, Albany County.

Q. Did you go to Laramie?

A. Yes, sir.

Q. What time did you go to Laramie?

A. I left here about, oh, it was a little after midnight

on the 25th.

(Record, Vol. III, 108-11))

CROSS-EXAMINATION

BY MR. BATES:

Q. Now, Mr. Ogburn, just one or two short questions,

Did you take any fingerprints?

A. No, sir.

Q. Did you make an effort to take any fingerprints?

A. Yes, sir.

Q. You couldn’t get any fingerprints of any kind?

A. No, sir.

Q. Now, Mr. Ogburn, was a search warrant issued at

your request, or by your office in connection with the

warrant for the arrest of the suspects?

a Te

Q. A search warrant?

A. No, sir, not a search warrant. It was just the

warrant for arrest.

Q. And as I understand it, when this warrant was

issued, you merely communicated that information to

the sheriff in Laramie County—or in Albany County?

A. No, sir, it was the complete state.

Q. Throughout the entire state?

A. The message, yes, sir.

MR. BATES: That’s all, and thank you, Mr. Ogburn.

(WHEREUPON, the witness was excused.)

MR. CROW: The state calls Kenneth Lankford.

(WHEREUPON, the witness was sworn by the

Clerk of Court.)

2 Sw Fe

TESTIMONY OF KENNETH LANKFORD

Filed September 6, 1968

In United States District Court, Civil No. 5185

DIRECT EXAMINATION

BY MR. CROW:

_ Will you state your name, please?

A. Kenneth Lankford.

_ And your official capacity, if any?

MR. BATES: Mr. Crow, we would be happy—if you

want us to, we will admit that Mr. Lankford is a duly

elected, appointed and qualified acting Deputy Sheriff of

Albany County, and was such on November 23rd and

94th, of 1964, and his official duties were in connection

with his duties as Deputy Sheriff of Albany County.

Q. Mr, Lankford, on the 24th of November, 1964,

did you have an occasion to arrest the defendant in court

here today?

A. Yes, sir, I did.

Q. Do you know this defendant?

A. I didn’t know him at that time, no.

Q. Is this the man. Calling your attention to the

man seated by Mr. Bates at the defense counsel table;

is this one of the men you arrested?

A. Yes, sir.

Q. And his name?

A. Harold Whiteley.

Q. Who was the other man that you arrested?

A. The other man was Jack Daley, Jack Oliver Daley.

Q. Mr. Lankford, approximately what time did you

arrest Daley and Whiteley?

A. It was approximately 11:00 o’clock p.m., Novem-

ber 24th.

Q. And who was present with you at the time?

A. There were two Laramie police officers, Sergeant

Ted Kersting and Petrolman Delbert Rogers.

Q. Was anyone else present?

A. There was another off-duty patrolman with Patrol-

man Rogers. I do not recall his name at this time.

Q. Was anyone present with Whiteley and Daley?

A. No, sir, they were alone.

Q. Where did you arrest Whiteley and Daley?

A. In the City of Laramie, on Ivinson Avenue be

tween First and Second streets.

Q. Were they driving a car?

A. Yes, sir.

Q. Describe the car?

A. The car was a 1955 Buick, bearing Wyoming |i-

cense, ’64, 2-A96, light blue—or correction, it was light

colored on top with a blue bottom.

Q. At the place where you arrested them, what busi-

nesses are around there, locally?

A. The car, at the time we arrested them, was fac.

ing west on Ivinson Avenue, and on the righthand side

or the north side of the street is the Hoppe Hotel. Im.

mediately across the street is the Buckhorn Bar, to the

south.

Q. After you had arrested Whiteley and Daley, did

you make a search of their automobile?

A. Yes, sir, I did.

Q. What did you find?

A. The search was conducted by myself and Sergeant

Kersting. I searched the trunk of the vehicle and in the

trunk of the vehicle I found—

MR. BATES: Now, if the Court please, before he

testifies to anything he found, I would like to question

him on the search and seizure.

THE COURT: All right.

MR. CROW: He wants to question this witness?

THE COURT: On the search.

VOIR DIRE

BY MR. BATES:

Q. As I understand it, you picked up these two indi-

viduals pursuant to a request from the Rawlins Sheriff’s

Office?

A. On the basis of that request, sir, and a Wyoming

State item.

That was a state item that was put out by the

Carbon County local sheriff’s office, state wide?

A. Oh, yes, sir.

Did you have a warrant in your possession at the

time that you arrested the two suspects?

A. No, sir, I did not.

_ Did any of the other officers have a warrant for

the arrest of either Daley or Whiteley?

A. No, sir.

_ Did you have a search warrant to search their

automobile at the time that you arrested them?

A. No, sir, I did not.

Q. Did you have a search warrant in your possession

at the time that you searched the automobile in question?

A. No, sir, I did not.

Q. Where was Mr. Whiteley at the time that you

searched the automobile?

A. Mr. Whiteley was sitting in the patrol car of

Patrolman Rogers, immediately behind the 1955 Buick.

Q. Mr. Whiteley was sitting in the patrolman’s car?

A. During the search?

Q. Yes?

A. Yes.

And where was the patrolman’s car located in

relation to the Whiteley automobile that you were search-

ing?

A. Immediately behind it, sir. Oh, I would say there

was probably six feet between the two vehicles.

Q. And this search was made during the night time?

A. Yes, sir.

Q. At about 11:00 o’clock at night?

A. Yes, sir.

Q. The articles that you are going to testify to, where

did you find those?

A. Well, part of them were found in the trunk of

the vehicle.

Q. How did you get into the trunk of the vehicle?

A. With keys from the ignition switch of the vehicle.

Q. Who took the keys out of the ignition switch?

A. Sergeant Kersting, to the best of my memory, sir.

Q. Did he have any discussion with anyone prior to

the time that he took the keys?

A. I don’t recall, sir.

Q. Then after he took the keys out of the ignition

switch, what did he do?

A. He handed them to myself and I opened the trunk.

Q. Now, wait a minute. Now, he handed them to

you?

A. Yes, sir.

Q. Did you have any discussion with reference to the

keys with any person at that time?

A. No, sir.

Q. Then what did you do?

A. I opened the trunk.

Q. And was the trunk locked?

A. The trunk was shut and locked, sir.

Q. And you opened it with a key. You had to have

the key in order to open the trunk?

A. Yes, sir,

Q. Did you discuss with Mr. Whiteley the fact that

you were going to search his automobile?

No, sir.

Q. Before you took the keys out of the ignition?

A. No, sir, I did not.

Q. Did you have any discussion with Mr. Whiteley

as to whether or not it was permissible for you to take

the keys and open the back of his car?

A. Not to the best of my recollection, no, sir.

Q. Did you tell Mr. Whiteley what you were looking

for?

A. It seems as though we did, but I couldn’t swear

to that, sir.

Q. Well, he was sitting in the patrolman’s car, wasn’t

he?

A. Yes, sir.

Q. And the patrolman’s car was a little distance,

wasn’t it, from the Whiteley car?

A. A short distance, yes.

Q. How far from the Whiteley car?

A. Oh, I would say not over six feet.

But you didn’t after you got the keys out of the

_from the man that took them out of the ignition switch,

you didn’t go to the patrolman’s car and say anything

to Mr. Whiteley?

A. No. I had a discussion with Mr. Whiteley when

he was arrested, not in the patrol car.

Q. Do you know what you were looking for?

A. Yes, sir.

Q. And how did you know what your were looking

or?

A. On the basis of Wyoming State item number 881.

You didn’t serve any papers of any kind either,

a search warrant or a warrant for arrest upon either

Mr. Whiteley or Mr. Daley before you arrested them?

A. No, sir, I did not.

Q. When did you tell them that they were under

arrest?

A. Immediately upon my arrival at the scene.

Who arrived at the scene first?

A. Patrolman Rogers.

And how much time expired from the time that

he got there until you got there?

A. I would say less than a minute.

Q. Where was Whiteley when you arrived at the

scene?

A. He was out of his car, both defendants were—

excuse me. I shouldn’t say, “both defendants.” The de-

fendant, Mr. Whiteley was out of his car. Mr. Daley

was on one side, and as I recall, Mr. Whiteley was on

the other side of the car and leaning up against the

fender of the vehicle.

Q. And the officers were shaking them down and

feeling of their clothing, their bodies at that time?

A. YR, Oe

Q. And they were leaning with their hands, as I

understand it, up against the car?

A. Yes, sir.

Q. When you drove up to the scene, did you see

Whiteley any other place in the street?

A. No, sir.

Q. Do you know whether or not he had been over to

the Buckhorn Bar?

A. No, sir.

Q. You didn’t see him walk from the Buckhorn Bar

back to the car?

A. No, sir.

MR. BATES: That’s al!.

FURTHER DIRECT EXAMINATION

BY MR. CROW:

Q. Mr. Lankford, did you find anything inside the

car proper. Not in the trunk, but in the automobile

itself?

A. Yes, sir.

Q. What did you find?

MR. BATES: Now, if the Court please, we would

make a motion at this time that no testimony be per-

mitted with reference to any articles found in the car,

by virtue of the fact that such articles were obtained or

taken by virtue of an illegal search and seizure without

a warrant.

THE COURT: You don’t intend to argue it here, do

you?

MR. CROW: No, sir.

MR. BATES: No, sir.

MR. CROW: Do you want to recess?

THE COURT: Yes. You intend to argue the motion,

I presume.

MR. BATES: Now, if the Court please, could we

maybe go into other matters with this Witness and maybe

conclude that phase of it as far as this witness is con-

cerned, and then consider this.

THE COURT: Have you any further questions to ask

this witness?

MR. CROW: No, Your Honor, I think this matter

should be disposed of now.

THE COURT: May I see counsel at the bench.

(WHEREUPON, a discussion was held off the

record. )

THE COURT: It will be necessary for the Court to

hear arguments on the motion outside the hearing of the

jury; so I will have to have another recess. I will have

to caution you again, you are not to talk to anyone, in-

cluding your fellow jurors, about this case, nor form or

express an opinion until you go to the jury room. I will

start listening to the arguments, and if you will stay

around the courthouse somewhere we will get in touch

with you. We might be able to call you back, and if it

gets too long, we will dismiss you until tomorrow morn-

ing at 9:30. So stick around a little while and I will

see how it goes. If you prefer to leave the building and

go out for coffee, that’s fine. Just don’t talk to anybody

about the case, and whatever you want, you do, just so

you are around here convenient when we need you. Court

will be in recess.

(WHEREUPON, at the hour of 3:45 o’clock, p.m.,

on the 18th day of May, 1965, the Court stood in

recess. )

(WHEREUPON, the following proceedings took

place in judge’s chambers) :

MR. CROW: The State would offer to prove by the

witness, Kenneth Lankford, if permitted to testify, that

after the arrest of Whiteley and Daley, a search of the

interior of the automobile in which the defendants were

riding, not including the trunk, revealed a loaded pistol

and certain old coins, similar to the coins described in

State item 881, calling for the arrest of the defendants,

and that thereafter a further search of the defendant’s

automobile, by opening the locked trunk, revealed a valise

and tools, alleged to be burglary tools.

MR. BATES: I would object to the introduction of

any evidence pertaining to any items taken by Mr. Lank-

ford, Deputy Sheriff of Albany County, Wyoming, out of

the Harold Whiteley 1955 Buick Automobile in this case,

upon the grounds and for the reason that the search and

seizure of the contents of the automobile, the interior of

the automobile, the glove compartment or the luggage

compartment and I object to any of the contents, etc.,

the interior of the automobile, the glove compartment or

the luggage compartment of the automobile, the t

for the reason and upon the grounds that the sus

were picked up by Mr. Lankford, Deputy Sheriff of Al-

bany County, and the other arresting officers upon a

state-wide release from the Carbon County Sheriff’s office

of Carbon County, Wyoming. That no consent was asked

or received from either Mr. Daley or the defendant in

this case for permission of the arresting officers to search

the trunk, interior or glove compartment of the Whiteley

car. The search was made outside of the presence of

the defendant Whiteley, who at the time that the search

was made, was sitting in a patrol car located approxi-

mately six feet from the Whiteley automobile. That the

only items taken by the arresting officers which could

be introduced in evidence in this case would be those

items upon the persons of the suspects. That the sus.

pects had been arrested, were in the custody of the police

officers and in the process of being taken from the place

where they were arrested to the Albany County Court-

house and there held to be picked up by the Sheriff of

Carbon County, Wyoming, or any of his deputies, and

to be transported to Rawlins, Carbon County, Wyoming.

That the arresting officers took possession of the automo-

bile at the scene where the men were picked up. The

automobile, together with the defendants was being trans-

ported to the Albany County Jail to be held and subse

quently turned over to the Sheriff of Carbon County,

Wyoming. There was no possible chance of the defend-

ants escaping, or leaving, or anyone taking anything out

of the automobile; that the officers were actually taking

into their possession. That it was incumbent upon the

arresting officers to procure a search warrant from the

proper magistrate upon proper affidavit for the issuance

of a search warrant to authorize and direct them to make

a search of the automobile and to take into their posses-

sion any items which might have been specified in any

search warrant issued.

(Record, Vol. IIT, 122-134)

PP ge ae ON tea,

I MP TN

The question the Court will have to decide on this mo-

tion is whether the items seized by the officers in Lara-

mie, Wyoming, from the car belonging to the defendant,

Whiteley, were the results of a lawful search based on

the complaint issued on the robbery of the Rustic Bar

on November the 24th, 1964, and the Court will decide

that it was; and the further question whether the items

so seized could be used in the prosecution of this case

and not be confined solely to the prosecution for the de-

fendant for the robbery of the Rustic Bar, and the Court

will decide they were. So the motion of the defendant is

hereby denied and the defendant is granted an exception.

(WHEREUPON, at the hour of 10:15 o’clock, a.m.,

on the 19th day of May, 1965, the Court was held

in session.)

(WHEREUPON, State’s exhibit 9, was marked for

identification. )

THE COURT: Court is in session, you may be seated.

Sorry the Court was late, but we had to decide some

matters this morning and we couldn’t do it any sooner.

But I think we have got them decided now and things

will go faster. You may proceed.

MR. CROW: If the Court please, I would ask that

the reporter read the last question asked by the State

prior to the objection by counsel for the defense on yes-

terday’s session.

(WHEREUPON, question numbered 24, on page 61

and question numbered 2, on page 62, was read by

the reporter. )

(KENNETH LANKFORD, the witness on the

stand. )

A. In the car proper was a quantity of personal cloth-

ing belonging to both defendants. There was a sack with

some dirty underclothing and in it there was another

sack, paper sacks, both of these containing a quantity of

AAPA LONI EAST NOD OL IM LL TE RI 8 TR 1 ceed

toilet articles, personal toilet articles, and in the bottom

of the second sack was a pair of men’s stockings, grey

in color, which were rolled up as if they were neatly

rolled up as you would find them in your dresser drawer.

In the pair of socks was a quantity of old coins. There

was found in the glove box a loaded automatic pistol,

P.38, Walther, some liquor and various other papers and

what not, At this time I do not recall what they were,

Q. (By Mr. Crow) Now, thereupon, Undersheriff,

did you make a further investigation and examination of

the automobile?

A. Yes, sir.

Q. Tell the jury what you did?

A. The trunk of the—I took the ignition keys from

the vehicle and opened the trunk of the vehicle and there

in I found a black valise-type bag containing a quantity

of tools, which I felt were burglary tools.

MR. BATES: Now, if the Court please, I would ob-

ject to the witness drawing any conclusions. I have no

objection to his testifying as to what he found.

THE COURT: Objection sustained.

MR. BATES: And ask that the jury be instructed to

disregard his conclusion.

THE COURT: The jury will be so instructed.

A. I found a quanity of tools laying alongside the

black valise bag on the floorboards of the trunk. I found

a carpenter’s crowbar about, oh, two, two and a half feet

long, and these I removed from the trunk and placed in

my patrol car.

Q. All of the items that you removed from the auto-

mobile in which the defendants were arrested, was taken

by you to your patrol car, is that right?

A. Everything but the—to the best of my recollec-

tion, everything with the exception of the revolver, which

Sergeant Kersting of the Laramie Police Department re

tained in his possession until we got to the sheriff's office.

Q. Was this property delivered to the Sheriff of Car-

bon County?

A. It was.

Q. And was it all delivered to him?

A. It was all delivered to him.

* *

— . - - tt Pe a alee athe te ne

—_ semen

_ Handing you what has

of identification as State’s exhib

what this is?

A. This is the black valise

the trunk of the automobile. ae

Q. Does the tag on the bag jbear your initials or other

mark? in ed

. Yes, it does. :

- Was that mark or initial placed on the bag by

yourself?

A. Yes, sir.

Q. Attached to the bag?

A. Yes, sir. ner

Calling your attention tt0 the interior of the bag;

I ask you whether you know what the items are inside

the bag?

A. Well, everything with the exception of the two

envelopes, I do not recognize.

Q. If you will hand me the’ two envelopes, please. The

items that are now in the bag are the same items that

were in the bag when you miade the arrest of this de-

fendant.

A. No, sir. The saw blade was not in the bag.

Q. Where was the saw blade?

A. The saw blade was under the rear seat of the

vehicle; and the bottle of 7-UP in here was not in the

bag, sir.

(WHEREUPON, State’s exhibit 10, was marked for

identification. )

Q. Were all of the other items that are now in the

bag, in the bag at the time you made the arrest?

A. I would say so, sir.

Q. Handing you what has been marked for purposes

of identification as State’s exhibit numbered 10; I ask

you what that is?

A. This is a saw blade, a carpenter’s saw blade, or

I would determine it as such, which was removed from

under the rear seat of the vehicle.

(WHEREUPON, State’s exhibit 11, was marked for

identification. )

been marked for purposes

bit numbered 9; I ask you

bag that I removed from

see et de a

Q. Calling to your attention to what has been marked

for purposes of identification as State’s exhibit numbered

11; I ask you what that exhibit is?

A. This exhibit is a quanity of tools which are very

similar—

MR. BATES: Now, if the Court please—I have no

objection to the witness identifying those tools and if he

wants to take each individual item and say what they

were; but I think they speak for themselves.

Q. Well, Mr. Lankford, you have seen me remove the

tools from the black bag?

A. Yes, sir.

Q. Will you so testify?

A. Yes, sir.

Q. Now, Mr. Lankford, calling your attention to what

has been marked

(WHEREUPON, State’s exhibit number 12, was

marked for identification. )

(continuing) for purposes of identification, State’s ex-

hibit 12; I hand you that exhibit and ask you what it

is, if you know?

A. This is the pair of men’s stockings that was re

moved from the interior of the vehicle that was in the

paper sack that I have previously testified to.

Q. Does the tag on the pai: of socks bear your ini-

tial?

A. Yes, sir.

Q. And was that tag placed on the pair of socks by

yourself?

A. Yes, sir.

Q. And initialed by you?

A. Yes, sir.

(WHEREUPON, State’s exhibit 13, was marked for

identification. )

Q. Calling your attention to what has been marked

for purposes of identification as State’s exhibit number

13; I ask you what that is, if you know?

A. This is the P.38 automatic pistol recovered from

the glove compartment of the automobile.

_ —

Q. Does the tag on the pistol bear your initial?

A. Yes, sir.

Q. Was the tag placed on the pistol by yourself?

A. Yes, sir.

g. And initialed by you?

A. Yes, sir.

(WHEREUPON, State’s exhibit 14, was marked for

identification. )

Q. Handing you what has been marked for purposes

of identification as State’s exhibit numbered 14, Mr. Un-

dersheriff; I ask you what this is?

A. This is the carpenter’s crowbar which was laying

alongside the black valise in the trunk of the automobile

there that I have previously mentioned.

(WHEREUPON, State’s exhibit number 15, was

marked for identification. )

Now, handing you what is marked for purpose of

identification as State’s exhibit number 15; I ask you

what this is?

A. This is a six pound sledge hammer which was in-

side the black valise bag at the time I removed it from

the vehicle.

Q. Were there any more tools, if you know, in the

black bag or in the automobile which have not been

marked for purposes of identification?

A. Well, it seemed to me as though there were some

chisels, but I don’t recall seeing—there was also a ball-

peen hammer, smaller in size than the sledge hammer.

Q. Now, Mr. Undersheriff, was each of the items

which has been marked for purposes of identification as

State’s exhibits 9 through 15, delivered by you to the

chert of Carbon County on the 24th day of November,

1964?

A. No, sir, I didn’t deliver those tools to him.

Q. To whom did you deliver them to?

A. I delivered the tools to the Sheriff in Albany

County and they were in turn turned over to Sheriff

Ogburn early in the morning.

BEMIS AISI Re ES VE

sseenenmeehien + ot mat sea ns i...

Q. Now, Mr. Lankford, were all of the tools that

were in the black valise, marked for purposes of iden.

tification as State’s exhibit numbered 9, were all of those

tools delivered also in the bag by the sheriff’s office from

Albany County to Sheriff C. W. Ogburn?

. Yes, sir.

MR. BATES: Now, if the Court please, first I’d like

to ask him—may I ask him one question?

THE COURT: Yes.

VOIR DIRE

BY MR. BATES:

Q. Do you know of your own personal knowledge that

all the tools were delivered to C. W. Ogburn, of your

own personal knowledge?

A. No, sir, I do not.

FURTHER DIRECT EXAMINATION

BY MR. CROW:

Q. Where did you take the black bag, Mr. Lankford?

A. I took the black bag—we have an evidence locker

which contains various compartments assigned to various

cases, All the evidence that was removed from the vehi-

cle was stored in the locked evidence locker; and upon

my return to work the following morning at 8:00 o'clock

they were gone. I don’t know how to answer the balance

of that, sir.

Q. Do you know where they had gone?

A. Only from what I have been told.

Q. And where had they gone?

MR. BATES: Now, if the Court please, he’s asking

the witness if he—it is strictly hearsay and I would

object to it, unless he knows of his own knowledge.

THE COURT: Objection sustained.

MR. CROW: You may cross-examine,

‘ae

PARI TT IR HORNA RES ETN BE BEEN CONE

CROSS-EXAMINATION

BY MR. BATES:

_ Just a few questions, Mr. Lankford, and we will

make it pretty rapid-fire. Now, you don’t know who put

these items that you took out of the car, into the car?

A. No, I do not.

- Do you know who owned the ear?

A. I know who the car is purported to be registered

to, sir.

But you don’t know of your own knowledge who

owns the car?

A. No, sir.

_ Do you know who owns this black valise bag that

has been marked for purposes of identification as State’s

exhibit numbered 9?

A. No, sir.

Q. You wouldn’t know where the tools—any of the

tools came from?

A. No, sir.

Q. And you wouldn’t know who put the coins into

the sock?

A. No, sir.

Q. And you wouldn’t know who put the the tools into

the car?

A. No.

Q. And you wouldn’t know who put the tools into

the bag?

A. No, sir.

Q. Do you know who the owner of the pistol was?

A. No, sir.

Q. Did you try to determine, or did you check in any

manner to determine who the owner of the pistol was?

A. Certainly did.

Q. Were you able to do so?

A. No, sir.

Q. Now, just generally, what items were taken out

of the car, the interior of the car?

A. Everything that was contained therein was re-

moved from the vehicle.

acacia

NESSES NS IEE LINE POE ANAL TOE A NN OOD ATONE REIN ORE

Q. And I want to know if you remember just what—

specifically what items were taken out of the interior of

the car—not the trunk now?

A. Not the trunk. All right, sir. To the best of my

memory, it was the loaded pistol, all the personal cloth-

ing, the two paper sacks, one containing dirty clothes

and the other the coins and toilet articles, the saw blade

and a partially empty bottle of liquor, a quart bottle of

7-UP, and that’s all I remember right now, sir.

Q. All right. Now, all the rest of the stuff, all the

other exhibits were taken out of the trunk of the car

or out of the black bag in the trunk of the car?

A. Yes, sir.

Q. And these are the only items that you mentioned

that were taken out of the interior of the car?

A. To the best of my memory it is, sir.

MR. BATES: That’s all, Mr. Lankford, and thank

you.

(WHEREUPON, the witness was excused.)

MR. CROW: The State calls Officer Rogers.

(WHEREUPON, the witness was sworn by the

Clerk of Court.)

TESTIMONY OF DELBERT C. ROGERS

Filed September 6, 1968

In United States District Court, Civil No. 5185

DIRECT EXAMINATION

BY MR. CROW:

Q. Siate your full name, please?

A. Delbert C, Rogers.

Q. And you official duties, if any?

MR. BATES: Now, if the Court please, we would

be most happy to admit that Patrolman Rogers is a

patrolman duly employed by the City of Laramie, Al-

bany County, Wyoming, and that he was such during

the month of November, 1964—and still are, aren’t you

Mr. Rogers?

THE WITNESS: Yes, sir.

MR. BATES: And his official duties in connection

with his capacity as a police officer.

THE COURT: All right.

. (By Mr. Crow): Mr. Rogers, on the 24th of No-

vember, 1964, did you have occasion to see this defend-

ant, Harold Whiteley?

A. I did.

Q. Where did you see him?

A. I first noticed him in the 200 block of North Cedar

in the City of Laramie.

Q. Where is North Cedar in the City of Laramie?

A. Its on the west side of the railroad tracks, it is

highway 130-230.

Q. What called you attention to the defendant, if

anything?

A. I received a description of a vehicle that he was

supposed to be driving.

Q. Had you received anything other than a descrip-

tion?

A. Not of the vehicle, no. Partial license plate num-

ber was all.

Q. And how about the defendant or the people driv-

ing the automobile?

A. I had their names and I personally knew one of

them that was in the vehicle.

Q. How did you receive this information?

A. It was typewritten notes on the bulletin board at

the police station.

Q. Did the information identify the sender who had

sent the message?

A. Yes, sir, it did.

Q. Who was the sender?

A. It was, “Authority, Sheriff’s office, Rawlins.”

Q. Where did you next see the defendant after you

saw him on Cedar Street in the City of Laramie?

A. I followed him back over the Clarke Street viaduct

to the 100 block of Ivinson where he got out of the ve-

hicle there.

LAPIN PEA POLE IP 56

Q. What did you do then?

A. I stopped him.

Q. Did you identify him as being one of the persons

in your communication from the sheriff’s office at Raw.

lins?

A. I asked him his name at this time, and he gave

me a name that I don’t remember, but it was not “White.

ley.”

Was he alone in the automobile at that time?

No, he was not.

Who was with him, if you know?

Jack Daley was with him.

Did you know Jack Daley at the time.

I do. I knew him at the time, yes,

What did you do then?

. I placed Mr. Whiteley on the front fender of the

patrol car and I had with me an off-duty police officer

which was watching Mr. Whiteley while I removed Mr.

Daley from the vehicle parked at the curb.

Q. And what did you do then?

A. I brought Mr. Daley back to the patrol car and

placed him on the right fender of the patrol car and

then I returned back to the left side where I could watch

Mr. Whiteley.

Q. Were you alone all this time with the other off-

duty patrolman?

A. I was up to this time, yes.

Q. What happened then?

A. At this time Undersheriff Lankford and Sergeant

Kersting arrived almost together, Undersheriff Lankford

driving up from the east, Sergeant Kersting driving up

from the west end of Ivinson there.

Q. Were you present when a search was made of the

automobile in which the defendant was riding?

A. I was.

Q. Who conducted that search?

A. Sergeant Kersting and Undersheriff Lankford.

(Record, Vol. III, 137-150)

POPOPOP-O

73 }

OPINION OF UNITED STATES DISTRICT COURT

For THE DISTRICT OF WYOMING

Filed November 25, 1968

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING

-O-

No, 5185 Civil

SaaS oe

See aie Bee Soe

eps

HAROLD WHITELEY, No. 9789, an inmate of the

Wyoming State Penitentiary, Rawlins, Wyoming,

PETITIONER

22 SSE

v8.

STATE OF WYOMING, RESPONDENT

JUDGE’S MEMORANDUM

This is a habeas corpus proceeding brought by peti- ,

tioner, Harold Whiteley, in which he asserts that he is i

unlawfully held in custody in the Wyoming State Peni- :

tentiary, located in the City of Rawlins, County of Car-

bon, State of Wyoming.

The parties stipulated the record to be filed with this

court, namely, the original record of the trial court and

the record on appeal to the Wyoming Supreme Court.

At the hearing on September 6, 1968, in this court,

petitioner was represented by his attorneys and the re-

spondent was represented by the Office of the Attorney

General of the State of Wyoming. The Court heard oral

arguments of both counsel and studied their briefs and

authorities.

Petitioner was tried in the District Court, Second

Judicial District, Carbon County, Wyoming, for the crime

of breaking and entering a locked building. The jury

returned a verdict of guilty and answered in the affirma-

tive the three interrogatories concerning the three prior

felonies. Petitioner was sentenced to the Wyoming State

Penitentiary for a term of not less than one nor more

—_—_— =

Me Tak 6

than ten years and committed for the remainder of his

natural life for being a person judicially determined of

being an habitual criminal. The trial Court ordered said

terms of sentences to run concurrently. At the arraign-

ment, trial and sentencing, petitioner was duly repre.

sented by court appointed counsel.

On appeal to the Wyoming Supreme Court, each and

every argument presented by petitioner’s counse] was

considered and in a unanimous opinion the Supreme

Court, duly constituted, found no reversible error and

affirmed the judgment of the trial court, Whiteley y,

The State of Wyoming, Wyo. 1966, 418 P.2d 164, The

Supreme Court found that there was no error in amend-

ing the information in a matter of substance without

obtaining leave of court, and that the defendant, Harold

Whiteley, had been arraigned on the amended informa-

tion and no error existed as to that aspect of the case,

The Supreme Court held, also, that there was no abuse

of discretion by the trial judge in allowing a witness to

testify contrary to the court’s prior order excluding wit-

nesses, and that there was no showing of any construc-

tive fraud having been perpetrated upon the trial court

by the actions of the county attorney. The Supreme

Court found that the arrest of petitioner was reasonable

and proper, and stated that the search of his automobile

was justified.

On January 4, 1967, petitioner filed an application for

post-conviction relief pursuant to Wyoming law, in the

District Court, Second Judicial District, Rawlins, Wyo-

ming. Section 7-408.1 through 7-408.8, W.S. 1957 as

amended. In that application petitioner raised three new

issues and repeated the claim pertaining to the alleged

unlawful search and seizure and subsequent admission

into evidence of the items obtained through the search

and seizure. The three new grounds for relief in the

post-conviction proceedings were: (1) that petitioner was

denied his right to a fair and impartial trial by jury

and the right not to be twice put in jeopardy for the

same offense insofar as the jury had knowledge of his

prior criminal record which was alleged in the informa-

tion and in turn read to the jury; (2) that petitioner

was denied his constitutional right of effective assistance

of counsel because of certain alleged failures on the part

of petitioner’s appointed trial counsel ; and (3) that

petitioner was twice placed in jeopardy and denied due

process and equal protection of the law wherein he was

sentenced to two concurrent sentences for the commis-

sion of a single crime.

After hearing petitioner’s application for post-convic-

tion relief, receiving evidence, and considering the oral

arguments and briefs of petitioner’s counsel and opposing

counsel, the District Court found against the petitioner

on all points raised in his application for post-conviction

relief. Petitioner took no appeal to the Wyoming Su-

preme Court from the trial court’s order denying post-

conviction relief.

Petitioner did not exhaust his state court remedies

with respect to the three new claims raised in the post-

conviction proceedings: they have not been considered

or determined by the Wyoming Supreme Court. Direct

appeal is expressly provided by the Wyoming Post-Con-

viction Relief statute. Sec, 7-408.7 W.S. 1957. Peti-

tioner cannot be heard to say, therefore, that an appeal

from the post-conviction order would be repetitious or

futile. Petitioner is no stranger to the right of review

by the Supreme Court nor to the procedure for perfecting

an appeal. Habeas corpus proceedings in the United

States District Court are improper substitutes for state

appellate procedure available to state prisoners.

On November 21, 1967, petitioner filed his petition for

a writ of habeas corpus with this court. The motion to

dismiss filed by the State of Wyoming was heard and

denied, Thereafter, in petitioner’s amended petition he

alleged the following grounds on which he claimed the

right to relief: (1) that he was denied his right to coun-

sel and due process of law under the federal constitution

when the court imposed the sentence upon petitioner

under the Habitual Criminal Act without obtaining evi-

dence that his right to representation by counsel was

adequately protected in the proceedings resulting in the

prior felony convictions on which the habitual criminal

penalty was based. This issue is raised for the first time

—

and has not been presented to any state court for con.

sideration. (2) That petitioner was denied his federal

constitutional guarantees in that he was twice placed in

jeopardy for the same offense and was denied due process

and equal protection of law when he was given one

penalty for the crime of breaking and entering and an

additional penalty for being an habitual criminal. This

issue was decided against petitioner in the post-convic.

tion proceeding. (3) That petitioner’s arrest was illegal

for want of a valid complaint and valid arrest warrant;

that the search of his automobile was not made incident

to a lawful arrest and that the subsequent seizure of

evidence was invalid; and that the introduction of the

illegally seized contraband obtained in the unlawful

search and seizure at his trial was prejudicial and in

violation of the federal constitution. This issue has been

decided by both the trial court in the post-conviction

proceedings and by the Wyoming Supreme Court.

The stipulated record shows beyond cavil that the peti-

tioner has not exhausted his state remedies as to the

first ground on which he bases his claim for relief, and

that his petition for writ of habeas corpus is in effect

an appeal from the State District Court’s order in the

post-conviction proceeding as to the second ground, and

an appeal from the Wyoming Supreme Court as to the

third ground on which he claims relief. The petition for

writ of habeas corpus, is, therefore, without merit.

The record shows that the Supreme Court of the State

of Wyoming, in a unanimous opinion, clearly and con-

clusively passed upon each and every matter raised by

petitioner in his appeal to that court. The judgment of

a state court is ordinarily res judicata, not only of those

issues which were raised and determined, but also of

those issues which might have been raised.

The writ of habeas corpus may not be used as an

appeal or writ of error to review proceedings in the state

court. Woolsey v. Best, 299 U.S. 1; Moore v. Dempsey,

261 U.S. 86; Alexander v. Daugherty, 189 F.Supp. 956,

aff'd 10 Cir., 286 F.2d 645, cert. den. 366 U.S. 939. The

Wyoming State Supreme Court is competent to consider

and determine the matters before it and I am reluctant

to invade the sovereign jurisdiction of that court.

‘ I

PAY nat

= — - —_

Petitioner improperly asserts a new claim in this court

to the effect that his constitutional rights were abridged

by the trial court for the reason that it did not obtain

‘gence that petitioner was represented by counsel in

the proceedings which resulted in the prior felony con-

vietions on Which the habitual criminal charge was based.

Failure to raise any claim of substantial denial of con-

titutional rights in the trial, on appeal, or in the post-

conviction proceedings constitutes a waiver of such claim.

Section 7-408.3 W.S. 1957 as amended; Alexander v.

Daugherty, supra. There is no evidence that petitioner’s

failure to raise the new issue in any of prior proceedings

was due to ignorance, duress or any other reason for

ghich petitioner could not be held responsible.

Lest petitioner ultimately complain that there was such

a gross Violation of his constitutional rights as to deny

him the substance of a fair trial and thus oust the court

of jurisdiction to impose sentence, I shall briefly comment

on the following claims which have not been adjudicated

by the Wyoming Supreme Court. Contrary to petition-

er’s first claim in the post-conviction proceeding, he was

not denied the right to a fair and impartial trial by jury

and the right not to be twice put in jeopardy for the

same offense by reason of the amended information which

recited three prior felony convictions and sentences nor

by reason of the reading thereof to the jury. The jury

was not asked to, nor did it try and determine petition-

er’s innocence or guilt of those prior felonies. The role

of the jury in this respect, clearly explained and de-

lineated by the trial judge in his instructions,’ was mere-

iInstruction No. 10 given by the trial court reads in part as

follows: “With reference to Counts 2, 3, and 4 of the Informa-

tion the State must prove beyond a reasonable doubt that the

defendant; Harold Whiteley, who the State has charged in Count

1 of the Information is the one and same person that the State

charges with having been convicted of the crimes charged in

Counts 2, 3, and 4 of the Information. You should consider the

evidence on each of the alleged prior convictions individually.

You will be asked to determine the number of times the defendant

has been previously convicted of felonies, as alleged in the Infor-

mation, if any, and so state in your verdict.”

oo eee

on en ae a als

sah tides

OF PEO YO LEE NIE.

Po POT.

EOI

ly to determine the number of times, if any, the peti.

tioner had previously been convicted of felonies as al.

leged in the information.

On the trial of the breaking and entering charge

against petitioner, he was interrogated by his own coun.

sel concerning past felony charges that had been made

against him. He stated unequivocally that he had plead

guilty to all of them. On direct examination by his coun.

sel, petitioner testified that he had been in the peniten-

tiary at Leavenworth, Kansas, and that he had served

six sentences in penitentiaries. At no time did he com-

plain that his right to representation by counsel had not

been adequately protected in the proceedings resulting in

the prior felony convictions on which the habitual crimi-

nal charge was based. The convictions on which the

habitual criminal charge was based occurred on Febru-

ary 24, 1942, April 13, 1956, and November 17, 1959.

Petitioner’s counsel objected to the introduction in evi-

dence of the certified copies of the judgment and sen-

tence in those prior proceedings on the general grounds

that they were incompetent, irrelevant, immaterial and

prejudicial and on the ground that they were offered

without sufficient foundation; counsel did not claim that

petitioner had not been represented by counsel in the

proceedings which resulted in the prior convictions, The

record contains no evidence from which it could be in-

ferred that petitioner was denied his constitutional rights

of counsel] at the time of his prior felony sentences. In

the absence of evidence to the contrary, it must be pre

sumed that the acts of the sentencing courts which heard

the 1942, 1956 and 1959 charges, were proper and that

the constitutional rights of petitioner were adequately

protected during those proceedings. Likewise, in the ab-

sence of specific objections made at the proper and op-

portune time during the trial, petitioner cannot raise

the new objections for the first time in the United States

District Court in a habeas corpus proceeding. For the

foregoing reasons, petitioner is not entitled to a writ

of habeas corpus on the first ground alleged in his peti-

tion.

& = 8 NER te Ree Rect =<

On ee eee ees —

ing), is that the trial judg \oferred to the habitual

criminal aspects of the judg

rate crime. At the time of Sitencing on June 1, 1965,

counts taken together const!

habitual criminal”.

be the sentence of the Court

in the State Penitentiary of

life”.

_ ~ gy vere F ntence of the Court filed

- on } ware that the. emonstrate that the Court

Habitual Criminal Act. Afte*"’.

. ¢ t reciting that the defendant

had been found guilty OF time of breaking into a

building, °

ae oa bet ‘persind also having been found

. : a who had prior hereto been

eal pong yom Seats . wees under the habitual crim-

gered, adjudged and decreed™ 1S * * *", the Court or-

and confined in the Wyomihat petitioner be imprisoned

term of not less than 1 yea State Penitentiary “for a

the first count charging (siM0P more than 10 years, on

Breaking into a Locked or ' the Information, towit:

remainder of your naturaealed Building, and for the

allegations laid under and life under the charge and

ual Criminal Act set forth conformity with the Habit-

in, all of said terms of se the Information filed here-

hard labor”. Whereupon tence to run concurrently at

warden of the State Penit trial judge commanded the

petitioner in the penitentiaitiary to keep and imprison

1 nor more than 10 year “for a term of not less than

the remainder of his naton the first count; and for

Criminal Act of the Stateal life under the Habitual

currently”. if Wyoming, all to run con-

The record does not su}

was sentenced to two comrt petitioner’s claim that he

mission of a single crinrrent sentences for the com-

or that he was given one

then said, “* * * it will

at you shall spend a term

ot less than your natural

FL LEPC III 6

penalty for the crime of breaking and entering and an-

other penatly for being an habitual criminal. The re

quirements of the Wyoming Statutes were followed with

respect to the habitual criminal charge against peti-

tioner: the previous convictions were set forth in the

Information, and proof thereof was made in the trial,

Section 6-11, W.S. 1957. Upon proof that petitioner had

been convicted of a felony three times previous to the

conviction about which he now complains, the trial court

properly enhanced petitioner’s punishment by imprison-

ment in the state penitentiary for not less than life,

Section 6-10, W.S. 1957. The judgment and sentence of

the trial court filed June 1, 1965, was proper and did

not violate petitioner’s constitutional rights. He is, ac-

cordingly, not entitled to a writ of habeas corpus based

on his second ground.

In his petition for a writ of habeas corpus, petitioner

has alleged grounds for relief under the Federal Con-

stitution. It is the duty of this Court “to make an inde-

pendent determination that due process has been observed

in the factual and legal support for state adjudication”.

Maes v. Patterson, 10 Cir, —— F.2d —— (October 2,

1968) ; Dentis v. Oklahoma, 10 Cir., 376 F.2d 590 (1967),

I advert, therefore, to petitioner’s claim that his arrest

was illegal for want of a valid complaint and valid ar-

rest warrant; that the search of his automobile was not

made incident to a lawful arrest and Subsequent seizure

of evidence was invalid; and that the introduction of the

illegally seized contraband obtained in the illegal search

and seizure at petitioner’s trial was prejudicial in viola-

tion of the federal constitutional provisions. The Su-

preme Court of Wyoming, as I have already said, made

a full and final determination of this issue and upheld

the validity of the arrest and seizure.

The material facts with respect to the arrest, search

and seizure are these: on the evening of November 23,

1964, several business establishments in Saratoga, Car-

bon County, Wyoming, were broken into. On November

24, 1964, the Sheriff of Carbon County investigated the

offenses. Acting upon a “tip”, the Sheriff signed a com-

plaint charging petitioner and one other with breaking

and entering a locked and sealed building. The complaint

was made to the Justice of the Peace and a warrant of

arrest Was issued. A radio broadcast, Item 881, was

made that same day, and was received by the Sheriff’s

Office in Laramie, Albany County, Wyoming, and com-

municated to the Laramie Police Department on Novem-

her 24, 1964. Late that night, the Laramie Police stopped

and detained petitioner in Laramie, Wyoming, and al-

most simultaneously he was arrested by the deputy sheriff

of Albany County, Wyoming. The Laramie police and

the deputy sheriff had neither an arrest warrant nor a

search warrant. They searched petitioner’s automobile

without his consent, and removed several items of per-

sonal property which were later introduced into evidence

at the trial. The Laramie police acted in reliance upon

the information furnished in the notice posted in the

Laramie Police Department which was authorized by Item

881 sent out by the Carbon County Sheriff; the deputy

sheriff of Albany County acted in reliance upon Item

981. Thus, the officers were acting on reliable informa-

tion which caused them to believe that Whiteley had

committed a felony.

It may be said that the information received by the

Laramie police officers and the Albany County Sheriff’s

office was hearsay as to them. Such information, how-

ever, came from an official source, specifically provided

and customarily used to transmit such information. The

Sheriff’s office and the Police officers were not entitled

to discredit the information thus released and trans-

mitted. Had they not pursued Item 881 and the police

department notice, they would have been derelict in their

duties. The Police officers who stepped and detained

petitioner, and the deputy sheriff who made the arrest

and searched petitioner’s automobile were acting on

trustworthy information which warranted them, as rea-

sonably prudent men, to believe that an offense had been

or was being committed.

I find, under the facts and circumstances in the case

before me, that the police officers and the deputy sheriff

had probable cause to believe that at the time they de-

tained and arrested him, the petitioner had violated the

a FEB Ce»

law of the State of Wyoming related to breaking and

entering a locked or sealed building. It follows that the

arrest was lawful and that the subsequent search and

Seizure were made incident to that lawful arrest and

were valid. The contraband seized was, therefore, com-

petent evidence lawfully received at the trial of peti-

tioner. Petitioner’s third claim for relief does not entitle

him to a writ of habeas corpus.

The petition for writ of habeas corpus is, therefore,

denied.

This memorandum sufficiently states the findings of

fact and conclusions of law and no additional findings

are necessary.

Dated this 25th day of November, 1968.

EWING T. KERR

Judge

JUDGMENT

Filed November 25, 1968

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING

No. 5185 Civil

HaROLD WHITELEY, No. 9789, an inmate of the

Wyoming State Penitentiary, Rawlins, Wyoming,

PETITIONER

—vs—

STATE OF WYOMING, RESPONDENT

JUDGMENT

The above-entitled matter having come on regularly

for hearing before this Court, petitioner, Harold White-

ley, being represented by his attorneys William J. Knud-

sen, Jr., and the Wyoming Defenders Aid Program, by

and through its student interns, and respondent, the

State of Wyoming, being represented by the office of the

Attorney General of the State of Wyoming, Jack Speight,

Assistant Attorney General, and the Court having before

it the stipulated record of prior state court proceedings,

and having heard oral arguments of counsel on behalf

of petitoner and on behalf of the respondent, took the

matter under advisement; and having considered the

pleadings and the stipulated record consisting of the orig-

inal court file, with exhibits, of the Second Judicial Dis-

trict, State of Wyoming, Docket No. 2885, and the origi-

nal record on appeal in the Wyoming Supreme Court,

Docket No, 3461, and having examined the briefs and

authorities submitted by counsel in support of their theo-

ries of the case, the Court prepared and filed its memo-

randum opinion finding that the petitioner is not entitled

to a writ of habeas corpus, and treated said memorandum

opinion as constituting the Findings of Fact and Conclu-

Jee TY ERD me raw Ape ec

ONE LET, OR NCR ae BET I ER re ene

a : TNO oe

. >

SPD ISO eT ONT

sions of Law of this case, and being fully advised jp

the premises, it is

ORDERED that the petition of Harold Whiteley for

writ of habeas corpus, be, and the same is hereby, de

nied, each party to pay its own costs.

Dated this 25th day of November, 1968.

EWING T. KERR

Judge

OPINION OF CoURT OF APPEALS

For THE TENTH CIRCUIT

Filed September 30, 1969

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT f

enti

DrRint Pe rey

SEPTEMBER—1969

No. 39-69 :

HAROLD WHITELEY, APPELLANT

Vv.

LENARD MEACHAM, Warden

Wyoming State Penitentiary, APPELLEE

ApPpEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING

WILLIAM J. KNUDSEN, JR., Wyoming Defender Aid Pro-

gram, University of Wyoming, Laramie, Wyoming, for

appellant.

Jack SPEIGHT, Assistant Attorney General, Cheyenne,

Wyoming (JAMES E. BARRETT, Attorney General, Chey-

enne, Wyoming, with him on the brief) for appellee.

Before PHILLIPS, LEWIS and HICKEY, Circuit Judges

Hickey, Circuit Judge

Petitioner Whiteley sought a writ of habeas corpus

pursuant to 28 U.S.C. § 2254 against the State of Wyo-

ming charging it had unconstitutionally incarcerated him.

At the time of oral argument the court permitted the

substitution of Lenard A. Meacham, Warden of the State

Penitentiary for the State of Wyoming as the proper

respondent appellee.

edie ne eee eR ANI AN AO NRE Be RAR EEL + eOR EE :

The trial court determined the issues presented on an

original and amended petition and denied the applica.

tion. This is an appeal from that action.

Petitioner presents for review the following issues:

1. The trial court’s determination that petitioner had -

not exhausted his state remedies before filing in the

United States District Court was error;

2. The constitutional issues adversely decided by the

State court were erroneuosly adopted as res judicata in

the federal habeas proceedings by the trial court;

3. Petitioner’s failure to object to the introduction in

evidence of a 1942 judgment and sentence as evidence

or prior conviction on an habitual criminal charge does

not preclude the consideration by this court;

4. The introduction in evidence of the 1942 judgment

and sentence on the charge of recidivism for the purpose

of enhancing the guilt of petitioner was prejudicial error;

5. The sentence imposed on petitioner for the com-

mission of the offense of larceny and as an habitual

criminal constitutes two sentences for a single crime;

6. Petitioner’s arrest in Laramie, Wyoming, by a

Laramie police officer, was illegal and the search and

seizure incident thereto was thereby tainted, thus making

the admission of the fruits of that search as evidence at

petitioner’s trial, on the charge of burglary in 1965,

prejudicial error.

Neither the record on appeal nor the briefs question

the factual determination made by the Supreme Court

of the State of Wyoming in its consideration of a direct

appeal on the questioned 1965 conviction.

Title 28 U.S.C. § 2254 unmistakeably provides that the

factual issues determined by the state court shall be pre-

sumed to be correct.’

1§2254(d) provides: “In any proceeding instituted in a Fed-

eral court by an application for a writ of habeas corpus by a

person in custody pursuant to the judgment of a State court, a

determination after a hearing on the merits of a factual issue,

made by a State court of competent jurisdiction in a proceeding

to which the applicant for the writ and the State or an officer or

agent thereof were parties, evidenced by a written finding, written

opinion, or other reliable and adequate written indicia, shall be

Na eee 1D —

The foregoing directs us to accept the following as

salient facts:

“On November 28, 1964, certain business establish-

ments in Saratoga, were broken into, including the

Rustic Bar and Shively’s Hardware, the offenses be-

ing investigated by the Carbon County Sheriff, who,

acting on a tip, the next day signed a complaint

presumed to be correct, unless the applicant shall establish or it

shall otherwise appear, or the respondent shall admit—

(1) that the merits of the factual dispute were not resolved in the

State court hearing;

(2) that the factfinding procedure employed by the State court

was not adequate to afford a full and fair hearing;

(3) that the material facts were not adequately developed at the

State court hearing;

(4) that the State court lacked jurisdiction of the subject matter

or over the person of the applicant in the State court proceeding;

(5) that the applicant was an indigent and the State court, in

deprivation of his constitutional right, failed to appoint counsel

to represent him in the State court proceeding;

(6) that the applicant did not receive a full, fair, and adequate

hearing in the State court proceeding; or

(7) that the applicant was otherwise denied due process of law

in the State court proceeding:

(8) or unless that part of the record of the State court proceeding

in which the determination of such factual] issue was made, per-

tinent to a determination of the sufficiency of the evidence to sup-

port such factual determination, is produced as provided for here-

inafter, and the Federal court on a consideration of such part of

the record as a whole concludes that such factual determination is

not fairly supported by the record:

And in an evidentiary hearing in the proceeding in the Federal

court, when due proof of such factual determination has been

made, unless the existence of one or more of the circumstances

respectively set forth in paragraphs numbered (1) to (7), in-

clusive, is shown by the applicant, otherwise appears, or is admitted

by the respondent, or unless the court concludes pursuant to the

provisions of paragraph numbered (8) that the record in the State

court proceeding, considered as a whole, does not fairly support

such factual determination, the burden shall rest upon the applicant

to establish by convincing evidence that the factual determination

by the State court was erroneous.”

SIS Tipp. et

charging defendant and another with breaking ang

entering the building indentified as the Rustic Bar

This complaint was made before a justice of the

peace at approximately 11:30 a.m. on the 24th, and

a warrant issued. After the investigation, the sheriff

put out a state item on the radio to pick up two

suspects of the breaking and entering, defendant and

another. The inessage went to the network at Casper

and was transmitted over the State, received by the

Albany County Sheriff’s Office and communicated to

the Laramie Police Department, the message giving

names and descriptions of the two persons and ad-

vising the type of car probably being driven and

amount of money taken, including certain old coins

with the dates. Late at night on November 24, g

Laramie patrolman, in reliance on the information

in the radio item, arrested the defendant and his

companion. At the time, the patrolman had no war-

rant for defendant’s arrest nor search warrant. The

officer together with a deputy sheriff, who had come

up in the meantime, searched the car and removed

a number of items introduced in evidence, including

tools and old coins, identified at the trial as taken

from Shively’s Hardware. On the next morning, de-

fendant was taken to Rawlins and a new complaint

and warrant were issued for the breaking and en-

tering of the hardware store and defendant was

bound over and later tried.” Whiteley v. State, 418

P.2d 164, 165-166 (Wyo. 1966).

28 U.S.C. § 2254(c) provides:

“An applicant shall not be deemed to have exhausted

the remedies available in the courts of the State,

within the meaning of this section, if he has the

right under the law of the State to raise, by any

available procedure, the question presented.”

The trial court found:

“Petitioner did not exhaust his state court remedies

with respect to the three new claims raised in the

post-conviction proceedings; they have not been con-

sidered or determined by the Wyoming Supreme

Court. Direct appeal is expressly provided by the

Wyoming Post-Conviction Relief statute. Sec. 7-408.7

WSS. 1957. Petitioner cannot be heard to say, there-

fore, that an appeal from the post-conviction order

would be repetitious or futile. Petitioner is no

stranger to the right of review by the Supreme Court

yor to the procedure for perfecting an appeal. Habeas

corpus proceedings in the United States District

Court are improper substitutes for state appellate

procedure available to state prisoners.” Whiteley v.

Wyoming, 293 F. Supp. 381, 383-384 (D. Wyo.

1968).

Additionally, it is evident that the question of whether

or not a petitioner has exhausted remedies available in

the state court is a question of law and not of fact. Rose

y, Dickson, 327 F.2d 27 (9th Cir. 1964).

In addition to the appellate procedure noted by the

trial court, Article 5, §3 of the Wyoming constitution

establishes original jurisdiction in the Wyoming Supreme

Court to issue writs of habeas corpus. Therefore, we

cannot find error in the trial court’s determination that

petitioner had not exhausted his available remedies in

the state court. We are taught that a state prisoner

seeking federal habeas corpus relief in a federal court

who asserts several errors will only receive consideration

from the federal court on those which the state’s highest

court has considered. Watson v. Patterson, 358 F.2d 297

(10th Cir.), cert. denied, 385 U.S. 876 (1966).

Whiteley’s argument that the Wyoming Supreme Court

will not generally hear such petitions is not persuasive

because the “|p|robability of success is not the test for

determining the adequacy of state remedies. The fact

that the issue may be determined contrary to [the peti-

tioner}] does not establish any ground for questioning

the adequacy or effectiveness of the remedy provided for

the presentation and determination of that issue.” Boyd

v. Oklahoma, 375 F.2d 481, 482 (10th Cir. 1967). “ ‘In-

effectiveness’ of state relief cannot be established if no

attempt is made to obtain that relief.” Morehead v.

California, 339 F.2d 170, 171 (9th Cir. 1964).

The foregoing directs that Whiteley seek determination

of his issues 3, 4 and 5 in the state courts. While it js

true that post-conviction relief was sought in the state

trial court, an appeal from the ruling of that court Was

not taken to the Supreme Court of Wyoming. The fed.

eral trial court, conversant with all the facts, concluded

that Whiteley was no stranger to the right of review

by the Supreme Court nor to the procedure for effecting

an appeal. The record bears this out. The provision jn

the Wyoming constitution authorizing original jurisdic.

tion for writs of habeas corpus assures an additional

avenue for relief.

We agree with the trial court’s conclusion that “Tt)he

Wyoming State Supreme Court is competent to consider

and determine the matters before it and I am reluctant

to invade the sovereign jurisdiction of that court.” White.

ley, supra at 384,

In view of the foregoing, we turn to the question de-

termined by the Wyoming State Supreme Court in

Whiteley v. State, supra, of whether “|tjhe court ad-

mitted into evidence certain items of property obtained

by an unlawful search of defendant's automobile,” which

is the only question available to us for review.

It is evident from the facts that several crimes had

been committed in Saratoga, Wyoming, including the

breaking and entering of the Rustic Bar and Shively

Hardware. The Carbon County Sheriff investigated the

burglaries. He signed a complaint charging Whiteley

and another with breaking and entering the building

identified as the Rustic Bar. Immediately thereafter the

sheriff issued an item on the state radio to pick up two

suspects, Whiteley being identified as one of the sus-

pects. This information was transmitted over the state

and received by the officers in Laramie, Albany County,

Wyoming, which is contiguous to the county wherein the

crime was committed. The Supreme Court determined

from these facts that the arrest made by the officer of

the Laramie Police Department was a warrantless arrest.

The Supreme Court said:

—~7~7—7VmXH pt TE ED CRE ET CT

“It has long been settled in this jurisdiction that ‘a

peace officer may arrest, without a warrant, one

whom he has reasonable or probable grounds to sus-

pect of having committed the felony.’ State v.

George, 82 Wyo. 223, 231 P. 683, 690.” Whiteley,

supra at 167.

The immediate search at the time of arrest by the

Albany County under-sheriff discovered the evidence

which was introduced at a subsequent trial charging the

breaking and entering of Shively Hardware. The record

reflects that after the sheriff of Carbon County had been

notified of the arrest on November 24, 1964, he trans-

rted Whiteley from Laramie to Rawlins on November

95, 1964, and thereafter, on November 25, 1964, filed

a complaint and obtained a warrant on the Shively Hard-

ware robbery.

Wyo. Stat. § 7-178 (1957) provides:

“If upon the whole examination, it appears that

there has been no offense committed, or that there

is not probable cause for holding the prisoner to

answer the offense, he shall be discharged.”

It is apparent that one arrested in Wyoming is brought

before a Justice of the Peace for immediate examination

wherein the question of probable cause is determined.

The facts recited by the Supreme Court establish that

“(o]n the next morning, defendant was taken to Rawlins

and a new complaint and warrant were issued for the

breaking and entering of the hardware store and defend-

ant was bound over and later tried.” Whiteley, supra at

166. Thus, the probable cause for detention was estab-

lished at the preliminary hearing, and at the trial of

the case, and by the Supreme Court of the State of Wyo-

ming.

The offense charged in the complaint and warrant ques-

tioned was for breaking and entering the Rustic Bar.

The preliminary hearing and information upon which

Whiteley was convicted charged breaking and entry of

Shively Hardware.

£5 ELA BET LE ON

PERL TY AID

RR SP es gay,

The argument of counsel for Whiteley overlooks the

determination of the Supreme Court that the arrest Was

warrantless and relies upon the fact that a complaint

and warrant were issued prior to the apprehension charg.

ing Whiteley with a different crime than the one upon

which he was finally prosecuted. Whiteley’s contention

that the arrest was illegal because he was identified by

an unnamed informer not shown in the complain upon

which the warrant was issued has been answered by

the Supreme Court of the United States. McCray vy. Illi-

nois, 886 U.S. 300, 311 (1967). At the time of a war-

rantless arrest, the question of probable cause is deter-

mined by the arresting officer rather than a judicial

officer. Under the facts recited, it is evident that the

Laramie officers relied upon the state police bulletin

issued by the sheriff of Carbon County, known to them

to be reliable, and therefore the Supreme Court found

the warrantless arrest to be lawful. We have also held

that probable cause for an arrest without a Warrant

depends on whether, at the moment of the arrest, the

facts and circumstances within the arresting officer's

knowledge are sufficient to warrant a prudent man in

believing the arrested person has committed an offense.

Holbrook v. United States, 406 F.2d 44 ( 10th Cir. 1969):

Holt v. United States, 404 F.2d 914 (10th Cir. 1968),

cert. denied, U.S. —— (Feb. 24, 1969), rehearing

denied, US. ; Murray v. United States, 351

F.2d 330 (10th Cir. 1965): Draper v. United States,

358 U.S. 307 (1959).

We therefore are bound to conclude that the arrest

was legal and the evidence seized was not tainted and

was admissible in court as determined by the Supreme

Court of the State of Wyoming.

A review of the record of the original trial on the

burglary charge cast doubt upon the admissibility of evi-

dence not in plain view at the time of arrest. See Chimel

v. California, 395 U.S. 752 (1969). This is a pre-Chimel

case, and the Supreme Court expressly pretermitted a

decision whether the Chimel principle is to be applied

retroactively. We will not make the retroactive deter-

mination with regard to the exclusionary rule stated in

DESE RD see rere ita) SO SIR ORIN ot o pare, .

. a7 ee, Eas cl

- 2

ra. Under pre-Chimel standards, the Supreme

yoming specifically applied the principles then

by the Supreme Court of the United States,

the introduction of the evidence here in ques- ;

Chimel, Sup

Court of W

enunciated

permitting

tion.

We therefore affirm the trial court’s denial of the

application for the writ.

AFFIRMED.

JUDGMENT OF THE CouRT OF APPEALS

For THE TENTH CIRCUIT

Filed September 30, 1969

SEPTEMBER TERM, SEPTEMBER 30, 1969

Before HONORABLE ORIE L. Puutuirs, Senior Circuit

Judge; HONORABLE DAVID T. LEwIs, and HONORABLE

JoHN J. Hickey, Circuit Juages.

No. 39-69

HAROLD WHITELEY, APPELLANT

Vv.

LEONARD MEACHAM, Warden

Wyoming State Penitentiary, APPELLEE

This cause came on to be heard on the record on ap-

peal from the U. S. District Court for the District of

Wyoming and was argued by counsel. On consideration

whereof, it is ordered that the judgment of said court

is affirmed.

WILLIAM L. WHITTAKER

Clerk

By /s/ RuTH H. HACOBSON

Deputy Clerk

. 5 . oti . We nett + —— |

ORDER OF THE SUPREME CouRT

GRANTING CERTIORARI IN PART

Filed April 27, 1970

“The motion for leave to proceed in forma pauperis

is granted. The petition for a writ of certiorari is also

granted limited to the issue of the constitutionality of

the arrest and search. The cease is transferred to the

appellate docket and placed on the summary calendar”

YW U.S. GOVERNMENT PRINTING OFFICE. 1970 3865946 737

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