# Reply Brief — Whiteley v. Warden, Wyoming State Penitentiary

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1971
- **Citation:** 401 U.S. 560

## Text

Ld — ~~ ‘ 7 RHNPARmE TRUITT Nowe
SA ans ae F F i

SEP 8 19IC

——_

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

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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).

ITE —

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SEE LE

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0255%3A4. Public record. Not legal advice.