Reply Brief — Whiteley v. Warden, Wyoming State Penitentiary

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IN THE E. ROBERT SE Vi Cua

Supreme Court of the United States |

OCTOBER TERM, 1970

No. 136

HAROLD WHITELEY,

Petitioner,

Vv.

THE WARDEN OF THE WYOMING

STATE PENITENTIARY,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

REPLY BRIEF FOR PETITIONER

WILLIAM J. KNUDSEN, JR.

Director, Wyoming Defender

Aid Program, College of Law,

University of Wyoming RICHARD A. MULLENS

Laramie, Wyoming 82070 1776 K Street, N.W.

of Counsel Washington, D.C. 20006

August, 1970 Counsel for Petitioner

(i)

TABLE OF CONTENTS

Page

re re ee ee ee ]

TABLE OF AUTHORITIES

Cases:

Chapman v. California, 386 U.S. 18 (1967) ......------ 3

Draper v. United States, 358 U.S. 307 (1959) .......-..-..- ee

Fahy v. Connecticut, 375 U.S. 85 (1963) ........-.----: 3

Wong Sun v. United States, 371 U.S. 471, 479-

eee ee eee eee eee ee 3

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1970

No. 136

HAROLD WHITELEY, Petitioner

Vv.

THE WARDEN OF THE WYOMING STATE PENITENTIARY,

Respondent

On Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit

REPLY BRIEF FOR PETITIONER

ARGUMENT

In the sub-section captioned “Facts” in the STATEMENT

portion of Respondent’s Brief (p. 3) reference is made to

the fact that State Highway Patrol Item 881 (App. 31, 37)

described petitioner “with particularity” with respect to his

height, weight and color of hair, petitioner’s automobile and

the stolen property. If this is an attempt to come within

Draper v, United States, 358 U.S. 307 (1959) insofar as

credibility is concerned it must fail. First, the unidentified

informer apparently advised Sheriff Ogburn that Whiteley

had committed the crime, but the record is barren as to any

description of Whiteley by said informer. We must there-

fore conclude that the informer knew Whiteley and merely

gave his name to the Sheriff. Since Whiteley had a prior

record (he was convicted of (a) breaking and entering, and

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5

(b) being an habitual criminal), it is obvious that the

authorities had a physical description of him which they

used in State Highway Patrol Item 881. At any rate, there

is no evidence in the record tending to show that the infor.

mant gave the particulars of Whiteley’s physical appearance

to the sheriff.

Second, in Draper the informant placed Draper at a certain

place at a specific time and doing a particular thing, indicat-

ing that Draper himself had told the informant that he

would be doing these acts and exactly when and where he

would be doing them. Such specifics of time, place and

action are lacking in this case.

Third, Draper involved a warrantless arrest, while this

case—at least at the time of arrest—depended on a warrant.

and, indeed, cannot be justified as a warrantless arrest for

the reasons set forth in Petitioner's opening Brief at pp. 12-

15.

Fourth, in Draper, the informant was found to be reliable.

No such evidence exists in the case at bar. This alone, of

course, is fatal to Respondent's case.

Respondent contends that both the Wyoming Supreme

Court and the Circuit Court of Appeals for the Tenth Cir-

cuit “have made the factual determination that there existed

the requisite probable cause for arresting officers to make

the arrest of petitioner without a warrant” (p. 4, Respond-

ent’s Brief). Since the facts are not in dispute the question

rather is whether the arresting officers had, as a matter of

law, probable cause to make an arrest without a warrant.

As indicated above, this issue was argued by Petitioner in

his opening Brief at pp. 12-15. We merely stress here that

the question is not a factual one, but rather a question of

law.

At page 6 of its Brief Respondent states that the probable

cause for a warrantless arrest ‘can be something less” than

that required for the issuance of a warrant. This, of course,

is not the law as was so aptly put by the Court in Wong Sun

», United States, 371 U.S. 471, 479-480 (1963):

3

Whether or not the requirements of reliability and

particularity of the information on which an officer

may act are more stringent where an arrest warrant

is absent, they surely cannot be less stringent than

where an arrest warrant is obtained. Otherwise, a

principal incentive now existing for the procurement

of arrest warrants would be destroyed.

The State also argues (p. 8, Respondent's Brief) that “the

introduction of the seized evidence at petitioner’s trial” has

not been shown by petitioner to constitute prejudicial error.

it is submitted that the answer to this contention can be

found in Fahy vy. Connecticut, 375 U.S. 85 (1963) and

Chapman v, California, 386 U.S. 18 (1967) where, in the

latter case, the burden of showing the absence of prejudicial

error was placed on the prosecution side and not “the per-

son prejudiced by it.’’ Moreover, even Daley who testified

for the State would have been unavailable as a witness had

it not been for the illegal arrest. His testimony was “fruit

of the poisonous tree” just as much as the seized contraband.

Finally, Respondent asks for an opportunity “to develop

a record which would reflect the basis upon which the

Wyoming judicial officer issued the arrest warrant” if this

Court should “consider petitioner's legal arguments as meri-

torious” (p. 8, Respondent’s Brief). The short answer to

this is that both sides stipulated to the facts upon which

this habeas corpus proceeding was to depend (App. 10-12)

and it is too late at this stage of the proceedings to ask to

develop a record. Furthermore, in counsel’s opinion, White-

ley should have been acquitted in his original trial in May

1965 and, if this assumption is correct, then Whiteley has

4

been illegally imprisoned for well over five years. It is time

to end this case once and for all.

Respectfully submitted,

Richard A. Mullens

1776 K Street, N.W.

Of Counsel: Washington, D.C. 20006

William J. Knudsen, Jr.

Director, Wyoming

Defender Aid Program

College of Law, University

of Wyoming

Laramie, Wyoming 82070

Counsel for Petitioner

August, 1970

ee eee ne er ee ee

NOTE: Where it is deemed desirable, a syllabus (headnote) will

be released, as is being done in connection with this case, at the time

the opinion is issued. The syllabus constitutes no part of the opinion

of the Court but has been prepared by the Reporter of Decisions for

the convenience of the reader. See United States v. Detroit Lumber

Co., 200 U.S. 321, 337.

SUPREME OOURT OF THE UNITED STATES

Syllabus

WHITELEY v. WARDEN, WYOMING STATE

PENITENTIARY

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

No. 136. Argued January 13, 1971—Decided March 29, 1971

A sheriff, acting on a tip, made a complaint before a magistrate charg-

ing that petitioner and another individual on the date and at the

place named “did then and there unlawfully break and enter into

[the described] locked . . . building,” and a warrant was issued.

A police radio bulletin named and described the two persons, the

type of car they were probably driving, and the amount and type

of money taken. Relying on the bulletin, an officer in another

county made a warrantless arrest of the suspects. The car was

then searched and various incriminating items removed, which were

later used at petitioner’s trial, which resulted in his conviction.

Petitioner filed a habeas corpus petition reiterating the challenge

he had made at his arraignment and trial to the constitutionality

of the use of evidence seized during a search incident to the as-

sertedly illegal arrest. The District Court denied the petition,

and the Court of Appeals affirmed. Held:

1. Petitioner’s arrest violated his rights under the Fourth and

Fourteenth Amendments and the evidence secured incident thereto

should have been excluded from his trial. Pp. 48.

(a) The complaint, which did not mention that the sheriff

acted on an informer’s tip, and which consisted of no more than

the sheriff's conclusion that the individuals named committed the

offense, could not support the independent judgment of a dis-

interested magistrate. P. 5.

(b) The standards applicable to the factual basis for an ar-

resting officer’s probable cause assessment are no less strict than

those applicable to the magistrate’s assessment. Here the arrest-

ing officer had no information to corroborate the report that the

suspects had committed the crime and the fact that the

I

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II WHITELEY v. WARDEN

Syllabus

warrantless arrest was based on a police radio bulletin cannot sup-

ply the element of probable cause that the officer who issued the

bulletin lacked. Pp. 6-7.

2. Since, notwithstanding petitioner’s constitutional challenge

at each stage, respondent made no attempt to show that the

magistrate had more information than was presented in the com-

plaint, he may not attempt to do so now on remand; and the writ

must issue unless the State appropriately arranges to retry the

petitioner. Pp. 8-9.

416 F. 2d 36, reversed and remanded.

Haran, J., delivered the opinion of the Court, in which Dovetas,

BRENNAN, STEWarT, WHITE, and MarsHALL, JJ., joined. Biack, J.,

filed a dissenting opinion, in which Burcer, C. J., joined. Burack-

MUN, J., filed a dissenting statement.

NOTICE : This opinion is subject to formal revision before publication

in the preliminary print of the United States Reports. Readers are re-

td to notify the Reporter of Decisions, Supreme Court of the

Pnited States, Washington, D.C. 20543, of Se raphical or other

formal errors, in order that corrections may made before the pre-

liminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 136.—Ocroser TeRM, 1970

Harold Whiteley, Petitioner,}On Writ of Certiorari to

v. the United States Court

Warden of Wyoming State] of Appeals for the Tenth

Penitentiary. Circuit.

[March 29, 1971]

Mr. Justice Hartan delivered the opinion of the

Court.

Petitioner Whiteley, in 1965, was convicted in the Dis-

trict Court of the Second Judicial District of the State

of Wyoming on charges of breaking and entering and

being an habitual criminal.’ Both at his arraignment and

at trial Whiteley challenged the constitutionality of the

use of evidence seized during a search incident to an ar-

rest which he claimed was illegal. The trial court over-

ruled petitioner’s motion to suppress, and on appeal the

Supreme Court of Wyoming affirmed. W hiteley v. State,

418 P. 2d 164 (1966). This proceeding commenced with

a petition for habeas corpus in the United States District

Court for the District of Wyoming, which was denied on

November 25, 1968.2 Whiteley v. Wyoming, 293 F. Supp.

381. On appeal, the United States Court of Appeals for

1 He was given concurrent sentences on the breaking and entering

charges of one to 10 years and, in consequence of the recidivist

charge, imprisonment for life.

2 Prior to commencing federal habeas corpus proceedings, Whiteley

had filed a petition for post-conviction relief pursuant to the Wyo-

ming statutes. No appeal was taken from the denial of that petition.

Same por

2 WHITELEY v. WYOMING PENITENTIARY WARDEN

the Tenth Circuit affirmed. Whiteley v. Meacham, 416

F. 2d 36 (CA10 1969). We granted certiorari, limit-

ing the writ to the issue of the constitutionality of the

arrest and ensuing search and seizure. 397 U. S. 1062

(1970).* We reverse the judgment of the Tenth Circuit

for the reasons stated herein.

I

The circumstances surrounding petitioner’s arrest and

the incidental search and seizure, as stated by the

Wyoming Supreme Court, 418 P. 2d 164, 165-166, are

as follows: *

“On November 23, 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

[Sheriff Ogburn] who, acting on a tip, the next day

signed a complaint charging defendant and another

$In his petition for habeas corpus, Whiteley raised several other

issues which had previously been advanced in his state petition for

post-conviction relief, but not in his direct appeal to the Supreme

Court of Wyoming. On these other issues, both lower federal courts

held that failure to appeal the denial of his state post-conviction

petition constituted nonexhaustion of state remedies. Petitioner

sought to raise the exhaustion issue in his present petition for

certiorari, but, as noted in text, we granted the writ limited to

the search and seizure issue decided by the lower federal courts.

* At the outset of the federal habeas corpus proceeding now before

us, both parties entered into the following stipulation, App., at 10:

“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 February 16, 1968, both sides will rely

exclusively on the record before the trial court in the original case

of the State of Wyoming v. Harold Whiteley . . . and any and.all

parts of the record on appeal to the State of Wyoming . . . in the

hearing on the merits of this case beiore the [U. S. District Court].”

WHITELEY v. WYOMING PENITENTIARY WARDEN 3

with breaking and entering the building identified

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 in-

vestigation, the sheriff put out a state item on the

radio to pick up two suspects of the breaking and

entering, defendant and another. The message 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 descrip-

tions of the two persons and advising the type of

car probably being driven and the amount of money

taken, including certain old coins with the dates.

Late at night on November 24, a Laramie patrolman,

in reliance on the information in the radio item, ar-

rested the defendant and his companion. At the

time, the patrolman had no warrant 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 Hard-

ware... .”

Sheriff Ogburn’s complaint, which provided the basis

for the arrest warrant issued by the justice of the peace,

is as follows:

“TC. 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 Whiteley and Jack Daley, defendants, did

then and there unlawfully break and enter a locked

and sealed building [describing the location and

ownership of the building].” Appendix, at 28.

4 WHITELEY v. WYOMING PENITENTIARY WARDEN

A state item 881, the bulletin which Sheriff Ogburn

put out on the radio and which led to petitioner’s arrest

and search by the Laramie patrolman, is as follows:

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

Subj) #1. Jack Daley, WMA, 38, D. O. B. 2-99.

[26], 5°10’’, 175, med. build, med. comp., blonde and

blue. Tat. left shoulder: ‘Love Me or Leave Me’

+2. Harold Whitley, WMA, 43, D. O. B. 6-22-2).

5’ 11’’, 180, med. build, fair comp. brown eyes. Tat.

on right arm ‘Bird.’ Poss. driving 1953 or 1954

Buick, light green bottom, dark top. Wyo. lic. 2-bal.

unknown. Taken: $281.71 in small change, numer-

ous old coins ranging from .5¢ pieces to silver dollars,

dated from 1853 to 1908. Warrant issues, will extra-

dite. Special attention Denver ....” Appendix,

at 31.°

II

The decisions of this Court concerning Fourth Amend-

ment probable cause requirements before a warrant for

either arrest or search can issue require that the judicial

officer issuing such a warrant be supplied with sufficient

information to support an independent judgment that

probable cause exists for the warrant. Spinelli v. United

States, 393 U.S. 410 (1969) ; United States v. Ventresca,

380 U. S. 102 (1965); Aguilar v. Texas, 378 U. S. 108

(1964) ; Rugendorf v. United States, 376 U.S. 528 (1964):

5A second version of state item 881 is identical in all relevant

respects except that it omits reference to the arrest warrant. See

Appendix, at 37.

®In Ker v. California, 374 U. S. 23 (1963), the Court held that

the same probable cause standards were applicable to federal and

state warrants under the Fourth and Fourteenth Amendments. In

Mapp v. Ohio, 367 U.S. 643 (1961), the Court held the exclusionary

rule was applicable to state prosecutions.

—

WHITELEY v. WYOMING PENITENTIARY WARDEN 5

Jones v. United States, 362 U. S. 257 (1960) ; Giordenello

y. United States, 357 U. S. 480 (1958). In the instant

case—so far as the record stipulated to by the parties

reveals '—the sole support for the arrest warrant issued

at Sheriff Ogburn’s request was the complaint reproduced

above. That complaint consists of nothing more than

the complainant's conclusion that the individuals named

therein perpetrated the offense described in the complaint.

The actual basis for Sheriff Ogburn’s conclusion was an

informer’s tip, but that fact, as well as every other oper-

ative fact, is omitted from the complaint. Under the

cases just cited, that document alone could not support

the independent judgment of a disinterested magistrate.

7 See n. 4, supra.

‘The dissent seems to imply that “this record shows” that Sheriff

Ogburn received the description of the car contained in the radio

bulletin from someone who also informed him that he also saw the

car at the scene of the crime. The record wholly fails to support any

such implication. Sheriff Ogburn, who testified on four separate oc-

casions at the trial, see R. 105-112, 187-191, 310-314, 335-337, said

nothing of the sort. Only one other witness, Leonard Russell Marion,

testified to having given Ogburn any information about the car prior

to Whiteley’s arrest; Marion never testified to seeing the car near the

scene of the crime. R. 317-322; 329-330. Indeed, it is quite ap-

parent from reading Marion's testimony that his observations of

Whiteley on the day of the robbery took place at his own house.

R. 320-321.

More importantly, even the dissent apparently concedes that as

far as the record in this case reveals, the only information Sheriff

Ogburn communicated to the magistrate issuing the warrent was

contained in his written complaint reproduced above. Under the

eases of this Court, an otherwise insufficient affidavit cannot be

rehabilitated by testimony concerning information possessed by the

affant when he sought the warrant but not disclosed to the issuing

magistrate. See Aguilar v. Teras, 378 U.S. 108, 109 n. 1. A con-

trary rule would, of course, render the warrant requirements of the

Fourth Amendment meaningless.

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6 WHITELEY v. WYOMING PENITENTIARY WARDEN

The State, however, contends that regardless of the

sufficiency of the complaint to support the arrest war-

rant, the Laramie police officer who actually made the

arrest possessed sufficient factual information to support

a finding of probable cause for arrest without a warrant.

In support of this proposition, the State argues that a

reviewing court should employ less stringent standards

for reviewing a police officer's assessment of probable

cause as a prelude to a warrantless arrest than the court

would employ in reviewing a magistrate’s assessment as

a prelude to issuing an arrest or search warrant.’ That

proposition has been consistently rejected by this Court.

United States v. Ventresca, 380 U.S. 102, 105-109 (1965);

Aguilar v. Texas, 378 U. S. 108, 110-111 (1964); Jones

v. United States, 362 U. S. 257, 270-271 (1960). And

the reason for its rejection is both fundamental and obvi-

ous: less stringent standards for reviewing the officer's

discretion in effecting a warrantless arrest and search

would discourage resort to the procedures for obtaining

a warrant. Thus the standards applicable to the factual

basis supporting the officer's probable cause assessment

at the time of the challenged arrest and search are at

least as stringent as the standards applied with respect

to the magistrate’s assessment. See McCray v. Illinois,

386 U.S. 300, 304-305 (1967).

Applying those standards to the instant case, the

information possessed by the Laramie police officer at

the time of arrest and search consisted of: (1) the data

*“The legal principles relied upon by the State throughout this

entire litigated process have been based on the premise that a law

enforcement officer may make a warrantless arrest if he has the

requisite probable cause, which can be something less than the

requisite probable cause that must be presented to a judicial officer

prior to the issuance of an arrest or search warrant.” Brief for

Respondent, at 6.

—=

—

—

WHITELEY v. WYOMING PENITENTIARY WARDEN 7

(2) the knowledge, obtained by personal observation, that

two men were driving a car matching the car described

in the radio bulletin; (3) the knowledge, possessed by

contained in state bulletin 881, reproduced, supra; '

one of the arresting officers, that one of the people in the '

car was Jack Daley, Appendix, at 71; (4) the knowl-

edge, acquired by personal observation, that the other

individual in the car fitted the description of Whiteley

contained in state bulletin 881, and (5) the knowledge.

acquired by the officer after stopping Whiteley, that he

had given a false name.”

This Court has held that where the initial impetus

for an arrest is an informer’s tip, information gathered t

by the arresting officers can be used to sustain a finding

of probable cause for an arrest that could not adequately

be supported by the tip alone. Draper v. United States, :

358 U.S. 307 (1959). See Spinelli v. United States, 393

U. S. 410 (1969). But the additional information ac-

quired by the arresting officers must in some sense be

corroborative of the informer’s tip that the arrestees

committed the felony or, as in Draper itself, were in

the process of committing the felony. See the opinions

i at

ST IO II IEA,

of the Court and that of Mr. Justice WHITE concurring '

in Spinelli v. United States, 393 U. S. 410 (1969). In :

the present case, the very most the additional informa- p

tion tended to establish is that either Sheriff Ogburn, or ¢

his informant, or both of them, knew Daley and Whiteley t

and the kind of car they drove; the record is devoid of f

any information at any stage of the proceeding from i

1 After arresting Whiteley and Daley, the officers searched the car :

and discovered in the car's interior the old coins taken in one of the E

burglaries and described in the radio bulletin. In addition, they 7

found burglar’s tools in the trunk of the ear. Of course, the dis- :

coveries of an illegal search cannot be used to validate the probable &

cause judgment upon which the legality of the search depends.

i

8 WHITELEY v. WYOMING PENITENTIARY WARDEN

the time of the robbery to the event of the arrest and

search that would support either the reliability of the

informant or the informant’s conclusion that these men

were connected with the crime. Spinelli v. United

States, 393 U. S. 410 (1969); McCray v. Illinois, 386

U.S. 300 (1967) ; Aguilar v. Texas, 378 U.S. 108 (1964).

The State, however, offers one further argument in

support of the legality of the arrest and search: the

Laramie police relied on the radio bulletin in making the

arrest, and not on Sheriff Ogburn’s unnamed informant.

Clearly, it is said, they had probable cause for believing

that the passengers in the car were the men described in

the bulletin, and, in acting on the bulletin, they reason-

ably assumed that whoever authorized the bulletin had

probable cause to direct Whiteley’s and Daley’s arrest,

To prevent arresting officers from acting on the assump-

tien that fellow officers who call upon them to make an

arrest have probable cause for believing the arrestees

are perpetrators of a crime would, it is argued, unduly

hamper law enforcement.

We do not of course question that the Laramie police

were entitled to act on the strength of the radio bulletin.

Certainly police officers called upon to aid other officers

in executing arrest warrants are entitled to assume that

the officers requesting aid offered the magistrate the

information requisite to support an independent judicial

assessment of probable cause. Where, however, the con-

trary turns out to be true, an otherwise illegal arrest

cannot be insulated from challenge by the decision of

the instigating officer to rely on fellow officers to make

the arrest.

In sum, the complaint on which the warrant issued

here clearly could not support a finding of probable cause

by the issuing magistrate. The arresting officer was not

himself possessed of any factual data tending to cor-

_—_—

a

WHITELEY v. WYOMING PENITENTIARY WARDEN 9

roborate the informer’s tip that Daley and Whiteley

committed the crime." Therefore, petitioner’s arrest vio-

jated his constitutional rights under the Fourth and Four-

teenth Amendments; the evidence secured as an incident

thereto should have been excluded from his trial. Mapp

y. Ohio, 367 U. S. 643 (1961).

Ill

There remains the question as to the proper disposition

of this case. The State urges us to remand so that it

will have an opportunity to develop a record which might

show that the issuing magistrate had factual information

additional to that presented in Sheriff Ogburn’s com-

plaint. Brief for Respondent, at 8-9. Yet the State

concedes, as on the record it must, that at every stege

in the proceedings below petitioner argued the insuffi-

ciency of the warrant as well as the lack of probable

cause at the time of the arrest. Brief for Respondent,

at 4. Knowing the basis for petitioner’s constitutional

claim, the State chose to try those proceedings on the

record it had developed in the state courts. See n. 4,

supra. Its sole explanation for this state of affairs is

that “the state has felt, based on precedent and logic,

that no court would accept the legal reasoning of peti-

tioner.” Brief for Respondent, at 9. In the circum-

stances of this case, that justification, as we have shown,

is untenable.

Pursuant to our authority under 28 U. S. C. § 2106

to make such disposition of the case “as may be just

The arrest warrant issued at about noon on November 24,

1964. See Appendix, at 53. State bulletin 881 was broadcast at

3:03 p. m. that same day. App., at 31. It is apparent that

Sheriff Ogburn did not himself acquire additional corroborative data

possibly supporting a probable cause arrest after securing the

warrant.

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10 WHITELEY v. WYOMING PENITENTIARY WARDEN

under the circumstances,” we reverse the judgment of

the Tenth Circuit and remand with directions that the

writ is to issue unless the State makes appropriate

arrangements to retry petitioner.’ Cf. Giordenello y.

United States, 357 U. S. 480, 487-488 (1958).

It ts so ordered.

12 The State makes a halfhearted attempt to argue that the intro-

duction of the illegally seized evidence was harmless error. The

evidence, of course, was damning, to say the least. See n. 10, supra.

The only other evidence implicating Whiteley was his accomplice’s

testimony. It is clear that the error cannot be said to be harmless

under applicable standards. Chapman v. California, 386 U. S. 18

(1967); Harrington v. California, 395 U. S. 250 (1969).

Contrary to the implications in the dissenting opinion, see post,

—, no witness at trial other than the accomplice placed Whiteley

“near the scene of the crime” on the night of the robbery.

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SUPREME COURT OF THE UNITED STATES

No. 136.—Ocroser TerM, 1970 :

r

Harold Whiteley, Petitioner, On Writ of Certiorari to ;

v. the United States Court F

Warden of Wyoming State} of Appeals for the Tenth t

Penitentiary. Circuit. ‘

[March 29, 1971]

Mr. Justice Buack, with whom THE CHIEF JUSTICE

joins, dissenting.

With all respect to my Brethren who agree to the

judgment and opinion of the Court, I am constrained t

to say that I believe the decision here is a gross and

wholly indefensible miscarriage of justice. For this rea-

son it may well be classified as one of those calculated

to make many good people believe our Court actually

enjoys frustrating justice by unnecessarily turning pro-

fessional criminals loose to prey upon society with im-

punity. Here is what this record shows:

On the night of November 23, 1964, several establish-

ments, including a bar and hardware store were broken

into at the village of Saratoga, Wyoming. Some old

coins and other items were taken from the hardware

store. Some people saw petitioner and his companion

that night in or near Saratoga. The next morning the

sheriff. who lived at Rawlins, the county seat, another

village in sparsely settled Carbon C ounty,’ investigated

the burglaries. In addition to viewing the scene of the

crimes. the sheriff received a rather detailed description of

the car, including a portion of the license plate number,

said to have been used by the burglars. The sheriff also

received a tip that persuaded him that petitioner and his

companion, Jack Daley, were probably guilty of the bur-

‘The population of Carbon County according to the 1970 census

is about 13,000 persons.

A UN aS el WUE SSS EE EE OREN ET eS ce I Re A BT ee ee RE NE TY

2 WHITELEY v. WYOMING PENITENTIARY WARDEN

glary. Upon the strength of this tip, coupled with his

observation of the scene of the crimes and the description

of the vehicle, the sheriff personally appeared before the

justice of the peace in Rawlins to secure a warrant for

the arrest of petitioner and his companion. After secur-

ing the warrant he authorized and sent a statewide radio

police alert describing the men and their car and calling

upon officers to arrest them. The night of November 24

policemen at Laramie, Wyoming, learned that petitioner's

companion, Daley, was in the city. They located and

stopped the car described in the alert, finding it occu-

pied by two men matching the descriptions contained

in the message. One of the officers personally recognized

Jack Daley. In response to a request for identification,

Harold Whiteley gave police a false name. At that point

the two men were arrested and the car was searched,

Old coins, tools, and other items later identified at trial

as having been taken from the burglarized hardware

store were found in the trunk and interior of the car.

At the trial the seized items were introduced into evi-

dence over petitioner’s objection. In addition, petitioner

was identified as having been near the scene of the crime

on the night of November 23d.* Jack Daley, peti-

tioner’s companion, told the jury in vivid detail how

he and Whiteley jimmied open the back door and bur-

? Leonard Russell Marion testified at trial that he had seen White-

ley at his home in Saratoga, a town of about 1,000 population, on

the day of the robbery. Mr. Marion further testified that he ob-

served Whiteley’s car and a portion of the license plate number and

gave that information to the sheriff. See R. 248-252, 260-261. The

majority fails to recognize that Saratoga is a very small country

town and that strangers are most unlikely to move about unnoticed.

Something obviously aroused Mr. Marion’s suspicion or else he would

not have reported the observation of petitioner and his car to the

sheriff.

WHITELEY v. WYOMING PEN ITENTIARY WARDEN 3 4

glarized the hardware store.’ Petitioner took the stand 4

and presented an alibi defense which was discredited

by several witnesses including Jack Daley. Peti-

tioner was convicted and sentenced to 10 years for bur-

glary and concurrently for life imprisonment under

Wyoming law because of his several prior convictions.

It was charged and proved that he had been convicted :

of three felonies and the record shows that he was 43 :

year of age and had already served six times in the :

penitentiary. The Supreme Court of Wyoming affirmed :

the conviction September 15, 1966, Whiteley v. State, ;

418 P. 2d 164 (1966), holding that the Laramie officers

had a right and duty to arrest the men in their vehicle

because they had reasonable ground to believe the men

had committed a burglary and that they had the fruits

of their crime in the car, citing among other cases Carroll

y. United States, 267 U. S. 182 (1925). See also Cham-

1. ET NEA

bers v. Maroney, 399 U. S. 42 (1970). F

I think it is a distortion of the Fourth Amendment’s &

meaning to hold that this petitioner’s arrest and the i

seizure of the goods he had stolen were an “unreasonable :

arrest” and an “unreasonable seizure.” In deciding this ¢

question it should always be remembered that the Fourth i

Amendment itself does not expressly command that §

evidence obtained by its infraction should always be ex- :

cluded from proof. :

There was certainly probable cause to arrest this man. s

The store was burglarized. The county was a sparsely E

3 Daley’s testimony was not uncorrobated. He testified in detail :

about the trip from Laramie to Saratoga where the crime was com- &

mitted with stops in Medicine Bow and Elk Mountain. Ernest .

Hornden testified at trial that Daley and Whiteley were in the Dip &

Bar in Medicine Bow on the night of November 23, 1964, shortly

before the robbery. Another witness, LeRoy Hansen, testified that

Whiteley was in Elk Mountain on the day of the robbery, see R.

246-247.

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4 WHITELEY v. WYOMING PENITENTIARY WARDEN

settled one in which people know one another. Petj.

tioner, whose previous life would appear to have earned

for him the title of professional in the stealing vocation,

was seen around the store with his car the very night of

the burglary. Undoubtedly this longtime county sheriff

(who appears still to be sheriff) was bound to know peti-

tioner. The tip he received was so persuasive to him

that in the performance of his official duty he was Willing

to assume all the risk incident to having petitioner ar-

rested. It surely cannot be said that when a sheriff,

with his prestige and standing, and bond against civil

suit, communicates an emergency message to arrest men

in cars as burglars, a policeman must stand supinely by

while two people denounced as burglars go along their

way. Of course these policemen had enough information

from the sheriff to have probable cause to arrest

petitioner.

My disagreement with the majority concerning the

wisdom and constitutional necessity of a “little trial”

before a magistrate or justice of the peace prior to the

issuance of a search or arrest warrant is a matter of

record. See Aquilar v. Teras, 378 U. S. 108, 116 (Clark,

J., dissenting) ; Spinelli v. United States, 393 U. S. 410,

429 (Buack, J., dissenting). But even accepting those

decisions arguendo, they do not control the dispositon of

this case which involves the apprehension of criminals in

an automobile moving away from the scene of the crime

less than 24 hours after its commission. The sheriff's be-

lief that Whiteley and Daley were guilty, even if it was

only a “suspicion” as the majority seems to label it, gave

police officers proper grounds to stop petitioner's car and

inquire about its passengers, Terry v. Ohio, 392 U.S. 1

(1968). And once the officers stopped the car and posi-

tively identified Jack Daley, they had every reason to

believe that Whitely was lying and attempting to escape

detection when he reported a false name. At least at

WHITELEY v. WYOMING PENITENTIARY WARDEN 5

that point, if not before, the Laramie police had probable

cause to arrest petitioner and Daley. With probable

cause to arrest the men, they also had authority to search

the car. Such a search could be justified under either

of two theories. Even under Chimel v. California, 395

U.S. 752 (1969), the search of an automobile incident

to the arrest of the occupants is permissible. And in this

very case, the officers found a fully loaded handgun in the

glove compartment. The search was also permissible

under the “moveable vehicle” exception ‘to the usual

requirement for a search warrant. Chambers v. Maroney,

399 U, S. 42 (1970); Carroll v. United States, 267 U.S.

132 (1925). I consider it a travesty of justice to turn

this man out of jail or give him a new trial six years

after he was convicted.'

Fay v. Noia, 372 U. 8. 391 (1963), does not, in my

judgment, justify what the Court is doing. The trial

court passed on this issue of validity of petitioner’s arrest

some years ago. Later he asked for relief through state

post conviction procedures on the same ground and his

claim was rejected. He has now sought relief through

federal habeas corpus. After the United States District

Court and the Court of Appeals rejected his unlawful

search claim, bringing to 10 the number of state and fed-

eral judges who have consistently and unanimously

rejected petitioner's claim, this Court reverses his judg-

ment of conviction, although petitioner does not, of

4 The search in this ease took place on November 24, 1964.

Although I disagreed with Spinelli v. United States, 393 U. 8. 410

(1969), I have always believed that constitutional decisions should

be fully retroactive in their application, See Linkletter v. Walker,

381 U. S. 618 (1965) (Brack, J., dissenting). I am thus glad to

see that the majority has apparently decided to apply constitu-

tional decisions retroactively even when they do not affect the

“integrity of the fact-finding process,” see id., at 639, and will

greatly burden the administration of justice, see Desist v. United

States, 394 U.S, 244, 250 (1969).

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6 WHITELEY v. WYOMING PENITENTIARY WARDEN

course, now allege his innocence. As I said in United

States v. Kaufman, 394 U. S. 217, 231 (Brack, J., dis.

senting), the Fay v. Noia remedy should be limited as it

was by its own facts, and convictions should remain

final unless a petitioner seeking habeas corpus alleges

that he can currently show he was innocent. There jg

not even a suspicion here that this hardened criminal js

innocent and I would let him stay in confinement to serve

his sentence,

Mr. Justice BLACKMUN agrees with much that is said

by Mr. Justice Buack and also dissents from the opinion

and judgment of the Court.

NEONATAL PILL SER AMEE ATOR IRATE PACE A EAE AI GEL NAD AIR eR REUNITE AE Sm, ARAN PN ES