Petition for a Writ of Certiorari — Cardwell v. Lewis

Supreme Court brief1974

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ster Writ of Certiorari.. 1

eink ae baatea at 2

3 2

estion Presented - ae

petitutional Provisions __ anes

ment of the Case 3

ment of Facts Pe

m for Granting the Writ eee

| THE UNITED STATES COURT OF APPEALS

“ERRED IN AFFIRMING THE DECISION OF

/ UNITED STATES DISTRICT COURT

| THAT PAINT SAMPLES TAKEN FROM RE-

_ SPONDENT’S AUTOMOBILE WHICH HAD

» BEEN LEGALLY SEIZED AS INCIDENT TO

| HIS ARREST WERE ADMITTED IN EVI-

_ DENCE AT RESPONDENT'S TRIAL IN VIO-

LATION OF HIS RIGHTS UNDER THE

A "Opinion of the United States Court of Appeals

| for the Sixth Circuit

B. - Opinion and Order of the United States Dis-

- » trict Court for the Southern District of Ohio

Eastern Division

TABLE OF AUTHORITIES

Cases

Page

Brinegar v. United States, 338 U.S. 160 (1949) _____ 15

ne v. Dombrowski, ___ U.S. ___, 37 L. Ed. 2d 706

- (1973) -23, 24, 25

Carroll v. United States, 267 U.S. 132 (1925) ______ 15

Chambers v. Maroney, 339 US. 42, at 51-52

C8 SERIES Ege 0 REE AEA a Pao Sl 90 17, 0

Cook v. Johnson, 459 F. 2d 473 (6th Cir., 1972)_____ ry

Coolidge v. New Hampshire, 403 U. S. 443

EEE TERETE A, PCTS GATOS TU 20, 24

Cooper v. California, 386 U.S. 58 (1967) __._______ 14

Cotton v. United States, 371 F. 2d 385 (9th Cir.,

) Spentic Witney nat Ate ee Cena aa De ec 13

Cupp v. Murphy, __. U.S. ___, 36 L. Ed. 2d 900

BEES Ta Se SYBIL Soe or 9g SER LOE YG le 26

' Dyke v. Taylor Implement Mfg. Co., 391 US. 216,

a 15

LaVallee v. Rose, _.» U.S. ___, 35 L. Ed. 2d 637

(1973) ae

Lewis v. Ohio, 400 U.S. 959 (1970) 4

Lundberg v. Buckhoe, 338 F. 2d 62 (6th Cir., 1964) 14

People v. Teale, 450 P. 2d 564 (Calif., 1969’) _____ 14, 15

_ Preston v. United States, 376 U.S. 364 (1964) ____13, 17

Schneckloth v. Bustamonte, otis US. . cee a L. Ed

‘2d 854 (1973) %6

Suste v. Lewis, 22 O'S. 2d 125 _._-.----..---____- 3

United States v. Dadurian, 450 F. 2d 22 (1st Cir.,

1971) ---------------------------- ~--------- 14

United States v. Graham, 391 F. 2d 439 (6th Cir.,

ESERIES eae ae SR mea aa 13

United States v. Johnson, 413 F. 2d 1396 (5th Cir.,

SEE eo Sa ea EN ea cc ST ck 3 ae

United States v. Powers, 439 F. 2d 373 (4th Cir.,

ERS Sal A AND CO OE 14

United States v. Rabinowitz, 339 U.S. 56 (1950) ___ 15

United States v. Rodgers, 442 F. 2d 902 (5th Cir., |

EGRESS Si a aie cane 3 Ce 21

United States v. Wade, 457 F. 2d 828 (7th Cir.,

ES eee, RS See eie eee 14

Constitution |

Constitution of the United States:

Amendment IV ____________ 2, 4, 6, 12, 13, 16, 17

Amendment XIV _________ 2246 % 13:18

Statutes

$2901.01, Ohio Revised Code _______ == 3.

$2933.21, Ohio Revised Code _________ os Seaton ing -

ek | ema

Supreme Court Rule 19(b) ________ a e ae

No. 72-1603

IN THE

Supreme Court of the United States

October Term, 1972

HAROLD J. CARDWELL, Warden,

Ohio Penitentiary,

Petitioner,

Vv.

ARTHUR BEN LEWIS,

. Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

To The Honorable, the Chief Justice and Associate Jus-

tices of The Supreme Court of the United States:

The petitioner, Harold J. Cardwell, prays that a Writ

of Certiorari issue to review the judgment and final order

of the United States Court of Appeals for the Sixth Cir-

cuit entered on April 5, 1973, which judgment affirmed

the granting of the writ of habeas corpus to respondent

by the United States District Court for the Southern

Division of Ohio, Eastern Division.

OPINIONS BELOW

The opinion of the United States District Court appears

at page 35, infra. The opinion of the United States Court

of Appeals, Sixth Circuit, affirming the district court

appears at page 27, infra.

JURISDICTION

The jurisdiction of this Court is invoked under the

provisions of §1254(1), Title 28 U.S.C.; and pursuant to

Rule 19(b) of the Supreme Court Rules. Petitioner be-

lieves that the decision of the Court of Appeals is in

conflict with the decisions of this Court and raises an

important question of Federal law which should be

decided by this Court.

QUESTION PRESENTED

Should a federal court invalidate the admission of the

evidence in a state criminal prosecution when the record

shows that the evidence was seized as an instrumentality

of the crime incident to the defendant’s arrest which

seizure was necessitated by exigent circumstances?

_ CONSTITUTIONAL PROVISIONS

Constitution of the United States, Amendment IV:

“The right of the people to be secure in their per-

sons, houses, papers, and effects, against unreason-

able searches and seizures, shall not be violated, and

no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly

describing the place to be searched, and the pa

or things to be seized.”

Constitution of the United States, Amendment XIV,

Section 1:

—

“All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State .

deprive any person of life, liberty, or property, with-

out due process of law; nor deny to any person wi

its jurisdiction the equal protection of the laws.”

‘

STATEMENT OF THE CASE +

On November 8, 1967, the Delaware County Grand

Jury returned an indictment charging respondent with

murder in the first degree in violation of §2901.01, Ohio

Revised Code. He was tried before a jury on March 4-21,

1968, and found guilty with the recommendation of -

mercy. On March 29, 1968, he was sentenced to a term

of life imprisonment in the Ohio Penitentiary. -

Respondent appealed his case directly to the Fifth Dis-

trict Court of Appeals for Delaware County which af-

firmed the judgment of conviction on February 6, 1969.

Thereafter, respondent appealed to the Supreme Court

of Ohio which affirmed his conviction on May 13, 1970.

See State v. Lewis, 22 O.S. 2d 125.

Respondent then filed a Petition for Writ of Certiorari

in the Supreme Court of the United States. Included

among those questions presented by that petition was

the following question:

“Were appellant’s (sic) rights under the Fourth

and Fifth Amendments abridged where appellant’s

automobile, parked on a private lot one-half block

from site of appellant’s arrest, was seized and

searched without legal process of any kind — even

though appellant had been out of the automobile for

over eight hours — and where the fruits obtained by

such search were received in evidence at appellant’s

trial in the state court?”

This Court denied the Petition for Writ of Certiorari,

See Lewis v. Ohio, 400 U.S. 959 (1970).

In April of 1971, respondent filed a petition for the writ

of habeas corpus in the United States District Court for

the Southern District of Ohio, Eastern Division alleging

the following as a basis for his claim for relief:

1) His arrest was unlawful because it was predi-

cated upon a warrant that had issued under

§§2935.09, 2935.10, 2935.17 and 2935.19 of the

Ohio Revised Code, which sections are unconsti-

tutional on their face in that they;

a) fail to provide that a judicial determina-

tion be made prior to issuance of a warrant;

b) fail to provide that facts be set forth in the

affidavit that would permit an impartial

judicial determination as to the existence

of probable cause for issuance of the arrest

warrant;

c) fail to require the officer to state his source,

or to aver that such source had previously

been reliable.

The subsequent eliciting of the petitioner's

statements and the seizure of his automobile

incident to the arrest when entered as evidence

in the trial of this cause served as a basis for his

conviction, contravening the petitioner’s rights

_ under the Fourth and Fourteenth Amendments.

2) His interrogation and subsequent arrest and

seizure of his automobile by a vigilante com-

mittee (Division of Criminal Activities — osten-

sibly at the direction of Deputy Sheriff Lavery)

was in violation of his right of Fourteenth

Amendment’s procedural due process, where

such committee, assigned by the Ohio Attorney

General, was, in actual point of law, operating

without legal authority where the Attorney

General had no such statutory appointive pow-

ers and the subsequent seizure of evidence as

a result of this action by the Attorney General

when entered. as evidence during the trial of

this matter served as a basis for petitioner’s

_ conviction.

3) His Fifth Amendment rights were infringed

where the vigilante committee (Division of

Criminal Activities) summoned the petitioner

to the Office of the Attorney General, initiated

an interrogation of the petitioner prior to hav-

ing given him the warning required by Miranda,

and that when the purported warning was

given, he was not apprised of certain facts, i.e.,

that anything said can and will be used against

_ him in court, or that an arrest warrant had been

issued for his arrest, or that his conversation,

prior to the warning as well as after, was being

monitored by a hidden electronic eavesdropping

apparatus thereby denying the petitioner his

Sixth Amendment right to counsel during a crit-

ical stage of the proceedings, and the surrepti-

tiously acquired statement when entered as evi-

dence in the trial of the cause served as a basis

of his conviction.

4) He was deprived of a fair trial where after the

trial court overruled State’s Exhibit III, the trial

court erred in permitting the State to present

into evidence the hearsay contents of the exhibit

in toto, by means of a witness for the State recit-

- ing verbatim therefrom; such testimony serving

as a basis for conviction and violation of peti-

tioner’s rights under the Sixth and Fourteenth

Amendments.

5) The warrantless seizure of his automobile,

parked on a private lot one-half block from site .

—

of his arrest, for purpose of ascertaining as to

whether said automobile had been an instrv.

mentality of the crime, violated Fourth Amend.

ment prohibition where such seizure was justi-

' fied only after the seizure; (in theory of the

State’s case), further, the automobile was not

seized contemporaneous in time and place with

petitioner’s arrest, and evidence seized there.

from served as a basis of his conviction.

6). He was deprived of any chance he may have

had for a fair trial where a woman, whom the

State alleged, by pre-trial press releases, was his

“second wife,” was issued a subpoena by the

State in such flamboyant manner as to maximize

newspaper, radio and television coverage and,

where, this “witness” was never called to

testify; and where the State with manifest in-

tent, branded the petitioner as a “beast” in the

eyes of the jurors, by parading her through the

courtroom after the jury was seated, and kept

her within the eyesight of the jury by the seat-

ing arrangement provided by the State of Ohio;

hénce, the misconduct by the Office of the Prose-

cuting Attorney in perpetuating the prejudicial

publicity which was crucial to, and denied the

petitioner’s right to a fair trial and served asa

basis of his conviction by denying him the right

of due process under the Fourteenth Amend-

ment.

7) Hearsay evidence of the most flagrant kind was

adverted to with the manifest intent of depriv-

ing him o* his right to a fair trial where the

contents of an unrelated telephone call was ad-

mitted under the trial court’s misinterpretation

of the hearsay rule and constituted a deprive

tion of petitioner’s right of confrontation and

cross-examination under the Sixth Amendment.

8) His right to a fair and impartial trial by a jury

free of prejudice was impaired where evidence,

known to be incompetent when offered, was

wrongfully admitted for consideration of the

jury and served as a basis of conviction violat-

ing the petitioner’s constitutional rights as pro-

vided by the Fourteenth Amendment.

9) The trial court’s arbitrary limitation as to scope

allowed in the direct examination of a defense

witness militated against the fairness of the trial

and served as a basis of his conviction, depriv-

ing him of his Sixth Amendment right to effec-

tive assistance of counsel and his Fourteenth

Amendment’s right to due process.

10) The trial court’s denial of his Motion for a New

Trial based upon newly discovered evidence was

a flagrant abuse of the discretion lodged in that

court and served to perpetuate petitioner’s im-

prisonment for a crime of which he is innocent,

denying him due pfocess under the Fourteenth

Amendment.

Following the filing of a Return of Writ and appoint-

ment of counsel, an evidentiary hearing was held on

April 20, 1972.

Thereafter, on May 19, 1972, the court issued an Opin-

ion and Order finding nine of the ten issues to be with-

. out merit. (See Appendix) However, as to issue five, the

court found that respondent had been denied due process

of law and ordered “that the writ of habeas corpus issue

ninety days after the filing of this Opinion and Order,

and that petitioner be released from custody, unless

within such ninety day period State officials initiate

action for a new trial of petitioner. If State officials initi-

ate action for a new trial, it is ORDERED (sic) that no

writ of habeas corpus shall issue.”

Petitioner then filed a timely Notice of Appeal and

obtained a Stay of Execution. Oral argument was heard

by the United States Court of Appeals for the Sixth Cir-

SS ae

cuit on December 8, 1972 and on April 5, 1973, the Court

of Appeals issued its decision affirming the Opinion of

the District Court. (See Appendix) It is of this Opinion

from the Court of Appeals which petitioner seeks the

Writ of Certiorari.

STATEMENT OF FACTS

At the trial of respondent, one Steven Molnar, Jr., a

laboratory technician and firearms examiner for the Ohio

State Bureau of Criminal Identification and Investiga-

tion, testified for the State. He testified as to his opinion

of the type of tire that made certain tracks at the scene

of the homicide of July 19, 1967, for which respondent

was charged. Furthermore, he testified as to his opinion

‘regarding samples of paint scraped from respondent's

automobile, which had been impounded.

Initially, he testified that he took paint scrapings from

respondent’s car while it was at the Columbus Police im-

pounding lot. He also said that he had paint scrapings

which had been taken from the murder victim’s car,

which, it was thought, was pushed over the river bank

at the scene of the crime, by another car. This examina-

tion occurred on October 11, 1967, and the paint was

taken from the right rear and the left front of respon-

dent’s car, and from the right rear fender and the right

side of the rear fender of the victim’s car for purposes of

comparison. He went on to testify that, in his opinion,

there was

. . no difference in color, texture, or order of

layering of the paint samples that I was comparing.”

(Bill of Exceptions, p. 221)

Furthermore, the color of paint was the same.

The paint samples from respondent’s car and testi-

mony were admitted over objection.

There was, however, a pre-trial hearing on a motion

to suppress filed by respondent. The motion concerned

the evidence and testimony referred to above. The hear-

ing was held in the trial court on January 25, 1968. Testi-

fying were Clyde Mann, then Chief Investigator for the

Division of Criminal Activities of the Attorney General

of Ohio, David Tingley, Attorney at Law, and Sgt. Wil-

liam Lavery, of the Delaware County, Ohio, Sheriff's

Office.

Facts adduced at this hearing were as follows:

Respondent was interrogated in the office of the At-

torney General, 40 S. Third Street, Columbus, Ohio, on

October 10, 1967, pursuant to a request to come to the

office. He was served with an arrest warrant and placed

arrest late in the afternoon, after which his car

was impounded by the Columbus, Ohio, Police Depart-

ment.

Mr. Mann testified at the hearing that present during

the interrogation of respondent of October 10, 1967, in

the Attorney General’s Office, were Lavery, Jim Heise,

David Kessler, Ed James, respondent and himself. He

said that he told respondent, after he was arrested, that

he, Mann, was going to impound respondent’s car be-

cause it was used in a felony, and that he had no war-

rant. On direct examination, Mr. Mann revealed that

respondent asked him to have his car impounded or put

in a police lot for safekeeping.

Next to testify was David E. Tingley, Attorney at Law,

who testified that he witnessed the facts surrounding the

seizure of the automobile. He testified that at about 5:30

pm. on October 10th, respondent was in custody and

that Clyde Mann indicated to Mr. Scott that he wanted

possession of some books and records respondent brought

with him as well as the automobile, because it was used

in the commission of a felony. Scott then, according tp

Mr. Tingley, said that he would not enter into a physical

fight over the car and gave the keys to Mann. He then

got the parking ticket from respondent and gave it to

Mann.

Next to testify was Sergeant William Lavery. He

stated that he obtained a warrant for respondent’s arrest

on the morning of October 10, 1967. Furthermore, he

stated that he requested Mr. Mann to have the automo

bile impounded but that, according to his recollection,

respondent had asked the officers to watch the car as he

was concerned about it.

_— trial court made the following finding:

“In this Court’s opinion the seizure of this car was

incident to a lawful arrest. In this Court’s opinion

the subsequent search of this car was a reasonable

search of a legally impounded vehicle and was inci-

dental to the crime for which the Defendant was

arrested.”

At the evidentiary hearing of April 20, 1972, in the

court below, there was much testimony concerning the

alleged illegal search and seizure. Paul Scott, defense”

counsel at the trial, testified that respondent gave him

the keys to his car shortly before or subsequent to his

being arrested, with instructions to return the automo

bile to his (respondent’s) family. He also gave Scott the

parking lot claim ticket. Furthermore, after Scott’s ar

rival at the Attorney General’s Office and after a confer-

ence with respondent, the arrest warrant was served @

meapehtiat, Atias Satt, novendling 06 Seat, Gipge Ep

confronted Scott and demanded respondent’s briefcase

and automobile. Rather than get into a physical confron-

tation with Mann, Scott relinquished the keys and the

daim check to Mann with the admonition that he would

‘see Mann “in court on a Motion to Suppress on that.”

(Transcript of evidentiary hearing, p. 28)

On cross-examination, Mr. Scott testified that, al-

though there was no real threat from Mann, he did not

willfully turn the automobile over to Mann, that it was

done under protest, subject to what would heppen in‘a

court of law. (T., pp. 47-48)

Sergeant Lavery testified first for the respondent. He

stated that, prior to the actual seizure of the car, he did

know the description of respondent’s car, that on the day

of the seizure he had no search warrant, and that respon-

dent asked that his car be taken care of. (T., pp. 76-78)

The Columbus police actually towed the car.

On cross-examination, he stated that he believed the

_Tequest by respondent that his car be taken care of was

made about 5:00, while Mr. Scott was present. He fur-

ther said that, in his opinion, respondent’s ‘request was

-a general request made of no one in particular. He could

recall no discussion between Scott and Mann relative to

the car. He also stated that he did not know that respon-

dent’s car was parked on the lot south of the Attorney

«General’s Office. (T., p. 92)

Respondent himself was next to testify on the issue

of illegal search and seizure at the evidentiary hearing.

He testified that he drove to the attorney general’s of-

fice and parked on a parking lot near that office. He also

denied that he asked anyone from the attorney general’s

office to remove his car saying that he gave his keys and

claim check to Paul Scott before he was arrested so that

Scott could take the car home for respondent’s family’s

use. Furthermore, he testified that the police officers dig

have a description of his car.

Clyde Mann was the first witness for petitioner tp

testify relative to the search and seizure issue. He testi.

fied again that respondent requested Mr. Mann to take

care of his car and claim ticket. Furthermore, this oo

curred at approximately 5:00 p.m., on October 10, 1967,

in the hallway inside the attorney general’s office and

that, to the best of his knowledge, the claim check was

handed directly to him by. respondent. This confronta

tion apparently occurred close.in time to Mr. Mann's re.

quest of Scott for possession of respondent’s briefcase.

Mr. Mann also again testified that he believed the car was

used in the commission of the crime and for this reason

wanted the car.

Sergeant Lavery was called by petitioner as his wit-

ness and testified on direct examination. He testified as

to facts he had in his possession on October 10, 1967,

relative to respondent’s involvement in the crime and the

role his automobile played in the commission thereof.

(T., pp. 139-142, 147)

REASON FOR GRANTING THE WRIT

I. THE UNITED STATES COURT OF APPEALS

ERRED IN AFFIRMING THE DECISION OF THE

UNITED STATES DISTRICT COURT THAT PAINT

SAMPLES TAKEN FROM RESPONDENT'S AUTO-

MOBILE WHICH HAD BEEN LEGALLY SEIZED

AS INCIDENT TO HIS ARREST WERE ADMITTED

IN EVIDENCE AT RESPONDENT’S TRIAL IN

VIOLATION OF HIS RIGHTS UNDER THE

FOURTH AND FOURTEENTH AMENDMENTS TO

THE CONSTITUTION.

The United States District Court authored a lengthy

analysis of the allegation that admission of certain paint

scrapings at trial against respondent was violative of the

Fourth and Fourteenth Amendments. The court con-

cluded that the evidence was not seized as incident to a

valid arrest, that respondent did not consent to its seizure,

and that the search was not justified as having been seized

in “plain view.” The court of appeals indicated it was in

“full agreement” with this opinion. Petitioner submits

such a conclusion was erroneous.

Petitioner initially notes that the evidence complained

oflby respondent in the courts below was paint scrapings

taken from the exterior surface of his car while it was

in the Columbus, Ohio, police impounding lot. No evi-

dence was admitted as a result of any intrusion to the

car’s interior.

Petitioner contends, therefore, that such paint scrap-

ings were properly admitted against respondent at trial

as such scrapings were the result of a scientific examina-

tion of an instrumentality of the crime for which re-

spondent was arrested. Cf: Cotton v. United States, 371

F. 2d 385 (9th Cir., 1967); United States v. Graham, 391

F. 2d 439 (6th Cir., 1968), wherein it is stated at page

442:

“While it is true that the Constitutional proscription

against unreasonable searches and seizures extends

to automobiles, since they, like houses, legitimately

serve as repositories for personal effects and belong-

ings of the owners and occupants, this is immaterial

to the question presented at bar. No articles of evi-

dence separate from and independent of the cars

themselves were obtained as a result of the police

examination, as was true in such cases as Preston v.

United States, 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed.

2d 777 (964), and Cooper v. State of California, 386

U.S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1967).”

See also, United States v. Wade, 457 F. 2d 828 (7th Cir,

1972); United States v. Dadurian, 450 F. 2d 22 (1st Cir,

1971); Lundberg v. Buckhoe, 338 F. 2d 62 (6th Cir,

1964).

Even assuming that this examination did constitute a

search within Fourth Amendment contemplation, which

petitioner denies, such was valid as

“.... the search of the car - - - whether the state had

legal title to it or not - - - was closely related to the

- eason petitioner was arrested, the reason his car

~ had been impounded, and the reason it was being

. Tetained.” Cooper v. California, 386 U.S. 58 (1967).

The record clearly indicates that the inspection of

respondent’s car was consistent with the reason the car

was impounded and with the reason for which respondent

was arrested. No intrusion was made to the interior and

no general exploratory search for evidence of any kind

complained of in the courts below was conducted. The

car itself was evidence and the police had complete

dominion and control over it. As such, there could be no

further trespass committed by a subsequent examination.

Under the circumstances, therefore, it cannot be said

that the inspection and examination of the paint samples

in question for purposes of identification, which iden-

tification was consistent with the reason the car was

seized, was unreasonable. See, United States v. Powers,

439 F. 2d 373 (4th Cir., 1971); United States v. Johnson,

413 F. 2d 1396 (Sth Cir., 1969).

In its simplest form the situation presented here in-

volves the propriety of the examination of a piece of

. evidence after seizure. The case of People v. Teale, 450

P, 2d 564 (Cal., 1969) speaks to this proposition at foot-

note 10, p. 572:

“Only an object reasonably believed to be itself

evidence of the charged crime is subject to seizure

and, therefore, to detailed examination subsequent

to seizure.”

Respondent’s automobile was reasonably believed to

have been evidence of the crime itself. (See, pp. 139-142,

147, transcript of the evidentiary hearing. )

An analogous situation would be where perhaps a gun

believed to have been a murder weapon, or blood-stained

clothing believed to have been worn by*a suspected offen-

der were in police possession. Can it be doubted that the

police have every right to examine such items consistent

with the reasons they were seized? Obviously not. Such,

then, is the instant situation.

As to the seizure of the car, it must first be noted that

“automobiles, because of their mobility, may be searched

without a warrant upon facts not justifying a warrant-

less search of a residence or office.” Dyke v. Taylor Imple-

ment Mfg. Co., 391 U.S. 216, 221 (1968). See also, Brine-

gar v. United States, 338 U.S. 160 (1949); Carroll v.

United States, 267 U.S. 132 (1925). Petitioner submits

that such a proposition is equally applicable to seizures of

automobiles as it is to searches. Accordingly, the seizure

of the automobile was necessitated by the exigencies of

the situation compounded by the fact that the item or

evidence to be seized was a large, readily mobile entity

such as an automobile.

| Additionally, at the time of the seizure and at the time

of the trial, the “relevant test (was) not whether it is

reasonable to procure a search warrant, but whether the

search was reasonable.” United States v. Rabinowitz,

339 U.S. 56 (1950). Petitioner submits that the actions

of the investigating authorities were at all times reason-

able and consistent with respondent’s Fourth Amend.

ment protections.

The record from the trial court and the record from the

district court shows that respondent relinquished pos-

session of the keys and claim check to his car which was

parked approximately one-half block away. He gave the

keys and claim check to his attorney, Paul Scott, who

then turned them over to the investigating authorities

under circumstances found not to have constituted con-

sent. These events occurred at the attorney general's

office at 40 S. Third Street, Columbus, Ohio.

Petitioner submits that the seizure of those items at

that time constituted the intrusion into respondent’s

Fourth Amendment protected area, which intrusion was

justified as being incident to the valid arrest of re

spondent. By seizing the keys and the claim check at that

time, respondent’s control and dominion over the car ef-

fectively ceased. Quite obviously, without either of these

items, the complete use of the automobile by respondent

was tremendously, if not completely, limited. Respon-

dent’s “possession” of the car was dependent upon the

keys and claim check.

Of equal effect would have been the only other prac-

tical alternative available to the investigating authorities

at the time; that being to have placed a guard at the car

and make it inaccessible to Scott until a warrant could

be obtained to remove the car. In either case, an intru-

sion into respondent’s Constitutionally protected domain

would have occurred, either of which would have been

justified. This Court has spoken to the practice of allow- -

ing a “lesser” intrusion to justify a “greater” intrusion

of an individual’s Fourth Amendment rights:

—

“Arguably, because of the preference for a magis-

trate’s judgment, only the immobilization of the car

should be permitted until a search warrant is ob-

tained; arguably, only the ‘lesser’ intrusion is per-

missible until the magistrate authorizes the ‘greater.’

But which is the ‘greater’ and which the ‘lesser’

intrusion is itself a debatable question and the an-

swer may depend on a variety of circumstances. For

constitutional purposes, we see no difference be-

tween on the one hand seizing and holding a car

before presenting the probable cause issue to a

magistrate and on the other hand carrying out an

immediate search without a warrant. Given probable

cause to search, either course is reasonable. under

the Fourth Amendment.” Chambers v. Maroney,

399 U.S. 42, at 51-52 (1970).

The actions of the investigating authorities were justi-

fied as being incident to a valid arrest, having occurred

at a place and time contemporaneous with the arrest.

Preston v. United States, 376 U.S. 364 (1964). The

seizure of the car at that time was necessitated as the

authorities had reason to believe that a very valuable

piece of evidence was likely to be moved or destroyed.

The record bears out their fears.

At the time of the seizure of the keys and the claim

check, Paul Scott was zealously protecting the rights

of his client and the property of his client. In that pur-

suit he felt constrained to vigorously object to the seizure

of respondent’s briefcase and car. There could be no

doubt that he was going to comply with his client’s

wishes regarding the automobile regardless of the desires

of the authorities. (T., pp. 26, 45-46)

The authorities had cause to believe that respondent

had on prior occasions concealed or destroyed evidence.

(T., p. 141; Bill of Exceptions, pp. 500-504, 515-516, 274-

275, 213, 545-548) Also during the interrogation session

eng

of October 10, 1967, in the attorney general’s office,

respondent was made acutely aware of how the author.

ities felt the car figured into the crime and what part of

the car was thought to have been used. There was no

reason to think that respondent could not have contacted

someone, friends or family, with instructions to repair

those portions of the automobile immediately. In any

event, there was no reason, under all of the circum-

stances, for the police to have been required to speculate

about what might take place or what might happen to

the evidence.

The United States District Court correctly says, at

page 22 of its Opinion and Order, that a warrantless

search incident to arrest may be justified if

“{tIhe vehicle is mobile, and if officers delay to

obtain a search warrant, one of defendant’s con

federates will remove the automobile and prevent

the police from searching for the object or objects

subject to seizure.”

Petitioner does not intend to characterize Paul Scott

as a “partner in crime” by implying he was respondent's

confederate. Such is not necessary. The fact is he was

going to do with the car what respondent wanted done »

with it, while acting in the role of respondent’s pro

tector. For the police to have required anything less of

him, including relinquishing the keys and claim check,

would have constituted an invasion into respondent's

control and dominion over the automobile, which under

the circumstances would have been justified.

The district court found that there was no facts

present to justify the seizure, an opinion joined in by

the court of appeals. However, petitioner contends that

it was those facts, as set out above, which constituted

the very real prospect of destroyed or at least moved evi-

dence which necessitated the seizure of the car in the

manner and method it was seized and at the time it

was seized. The facts, which are largely uncontradicted,

are ignored by the courts below yet were apparently

given much consideration by the trial court, who was in

the best position to make the most valid judgment. The

courts below are clearly in error. Cf., LaVallee v. Rose,

— US. —, 35 L. Ed. 2d 637 (1973).

The record from the District Court clearly affirms

the fears of the authorities at the time of the seizure,

when Paul Scott reiterates that his sole purpose in

having possession of the keys and claim check was to

move the car subject to his client’s wishes.

Yet it is not surprising that the Courts below would

chose to ignore these uncontradicted facts. Both courts

were laboring under a misapprehension regarding the

necessity of a warrant. Both courts seem to believe that

because a warrant might have been readily obtained to

effectuate a seizure at an earlier time, the conditions

otherwise justifying a seizure as incident to a valid

arrest are either absent or of no force or effect. Petitioner

does not understand this to be the crux of the law relat-

ing to the validity of a search incident to a valid arrest.

The district court delineates at p. 22 of the Opinion

and Order two conditions, one or both of which must be

met, before a search can be justified as being incident

to an arrest:

a. The circumstances establishing probable cause

for search of the vehicle were unknown to the

police prior to the defendant’s apprehension.

b. The vehicle is mobile, and if the officers delay

to obtain a search warrant, one of defendant’s con-

federates will remove the automobile and prevent

the police from searching for the object or objects

subject to seizure.

The court obviously considers the fact that a warrant

could have been obtained to be the primary reason

condition b., above, was not met. As stated above, there

is no doubt that the car would have been moved thereby

preventing the police from seizing the evidence and sub-

jecting such evidence to possible destruction. This is

the crux of the seizure of respondent’s car as incident to

his arrest. Bear in mind that it is not disputed that the

authorities had probable cause to believe that the car

played a role in the murder for which respondent was

charged. (T., pp. 139-142, 147)

Whether or not the seizure of respondent’s car can

be justified as incident to his arrest, there is no doubt

that the seizure can nevertheless be justified on the basis

of the existence of probable cause to seize the automo

bile. Chambers v. Maroney, supra; Carroll v. United

States, 267 U.S. 132 (1925). “Exigent circumstances”

appear to justify the seizure in this regard considering

also the very mobile nature of an automobile. Coolidge

v. New Hampshire, 403 U.S. 443 (1971). Petitioner, there-

fore, submits that “exigent circumstances” justified the

seizure of the automobile in the instant situation, and a

finding otherwise by the courts below was clearly «

erroneous.

But, again, it is not surprising that the courts below

would ignore those facts constituting the “exigent cir-

cumstances”, for these courts again appear to have been

preoccupied with the possible opportunities the author-

ities might have had to obtain a warrant.

It cannot be doubted that the quantum of pre-seizure

information known to the authorities at the time of the

seizure, especially considering the unsatisfactory am

swers to questions regarding damage to his car given

by respondent during the interrogation of October 10,

1967, established probable cause to seize the car when

the authorities did. United States v. Rodgers, 442 F. 2d

902 (5th Cir., 1971). The “exigent circumstances”, justify-

ing seizure at that time have been reviewed already in

this argument. Briefly, they include the fact that Mr.

Scott most definitely would have moved the car to

wherever he or respondent desired. The police suspected

respondent of concealing evidence on prior occasions.

It is notable that respondent at the time had many bases

of operations including his home and businesses where

he might have legitimately put his car. These places

included locations in Franklin and Delaware Counties.

Petitioner submits that what opportunity the authori-

ties had to secure a warrant prior to the seizure of the

car is not particularly relevant to the existence of “‘exi-

gent circumstances”. Petitioner does not intend to dero-

gate the necessity of a warrant or the judgment of a

detached and neutral magistrate in determining the

existence of probable cause, but we do contend that,

even assuming a warrant may have been obtained at an

earlier time, such does not attenuate the urgency of a

warrantless seizure at a later time, when probable cause

still exists for the seizure and it is otherwise justifiable.

If it is feared that the authorities either by design or

by negligence failed to get a warrant at an earlier time

so they could seize the car at the time of his arrest

without the intervention of a magistrate’s judgment,

such fears are not well taken. First, the authorities are

taking a great chance the evidence will be destroyed or

otherwise made unavailable to them while they delay.

In any event, if they did have facts sufficient to establish

probable cause in the mind of a magistrate, of what value

would it be for them to fail to obtain a warrant at that

time? Bear in mind that the seizure in question still

requires probable cause. The rewarding of devious police

practices is not to be feared by upholding the seizure in

question.

‘ In any event, petitioner contends it is at least question.

able that a search warrant could have been obtained

prior to the seizure. Admittedly, the authorities did sus-

peet the car played a role in the crime for some time

prior to its seizure. Admittedly, the authorities had

knowledge of the identity of respondent’s car. How-

ever, these facts alone are hardly enough to believe a

warrant may have been issued.

The fact that the authorities obtained an arrest war-

rant on the morning of October 10, 1967, prior to inter.

rogating respondent is of little consequence. Note that

the arrest warrant was obtained in Delaware County,

Ohio and the interrogation was going to take place in

Columbus, Franklin County, Ohio. The Municipal Court

in Delaware, Ohio has no jurisdiction to issue search

warrants for Columbus, Ohio. See, §2933.21, Ohio Re

vised Code.

The courts below also assume that during the entire

period of time on October 10, 1967 that respondent was

at the attorney general’s office, it was known to the

authorities that respondent drove the car in question to

the office and that he parked the car on the parking lot

from which it was seized. The implication from this is

that they could have obtained a warrant in the course of

the day. However, there is no support in the record for

the conclusion that the location of the car was known to

the authorities. In fact, there is uncontradicted support

for the contrary. Sgt. William Lavery of the Delaware

County Sheriff’s Office testified as follows at page 92 of

the transcript of the evidentiary hearing:

“The Court: Did you know this car was parked

on the lot south of the office?

The Witness: No, I didn’t know that and I don’t

believe Mr. Mann did. I didn’t kno

| it personally.

The Court: You say you didn’t?

The Witness: I did not.”

As recently stated by this Court in Cady v. Dombrow-

ski, —— U.S. ——, 37 L.Ed. 2d 706, the question in this

case was whether the search was unreasonable solely

because the local officer had not previously obtained a

search warrant. In Cady after citing several cases deal-

ing with the search of an automobile seized and searched

without a warrant by the police, this Court stated:

“The Court’s previous recognition of the distinction

between motor vehicles and dwelling places leads

us to conclude that the type of caretaking “search”

conducted here of a vehicle that was neither in the

custody nor on the premises of its owner, and that

had been placed where it was by virtue of lawful

police action, was not unreasonable solely because

a warrant had not been obtained. The Framers of the

Fourth Amendment have given us only the general

standard of “unreasonableness” as a guide in deter-

mining whether searches and seizures meet the

standard of that Amendment in those cases where

a warrant is not required. Very little that has been

said in our previous decisions, see Cooper, supra,

Harris, supra, Chambers, supra, and very little that

we might say here can usefully refine the language

of the Amendment itself in order to evolve some

detailed formula for judging cases such as this.

Where, as here, the trunk of an automobile, which

the officer reasonably believed to contain a gun, was

vulnerable to intrusion by vandals, we hold that the

search was not “unreasonable” within the meaning

of the Fourth and Fourteenth Amendments.”

Petitioner believes that the conditions surrounding the

search and seizure in this case are not unlike those in

Cady.

For the foregoing reasons, petitioner submits that

the finding that there were no “exigent circumstances”

justifying the seizure of respondent’s car with the re

sultant finding that the seizure of the automobile vio.

lated respondent’s Fourth Amendment rights was clearly

erroneous.

CONCLUSION

Petitioner feels that the Courts below have improp-

erly gauged the impact of Coolidge v. New Hampshire,

supra, and Cook v. Johnson, 459 F. 2d 473 (6th Cir.,

1972) in the process of invalidating the seizure of re

spondent’s automobile. While on the surface both cases

seem to be factually in point with the instant situation,

and while the state has, in all the cases, attempted to

justify the search for a number of similar reasons, there

are significant factors in both, which factors are not

present in the instant case, and which make the instant

seizure allowable. In both cases an individual’s private

property was entered and taken therefrom, in each case,

was the individual’s automobile where there was no

prospect the automobile was about to be moved. Peti-

tioner would not contest if respondent’s car had been

seized from his private property where there were no

real prospect of the car being moved.

In the instant situation, the intrusion into respondent's

control over his car was not dependent upon an invasion

of his physical premises. The car itself was seized from

a public parking lot, upon which police needed no specific

authorization to enter.

In neither of the two cases was there any significant

prospect of the car in question being moved while in

the instant situation such was actually a certainty. While

the authorities had information relating to the car, prior

to the seizure, there is no indication such information

amounted to probable cause to obtain a warrant. Nor

can it be said that on the morning of the interrogation

it was reasonable to procure a warrant considering the

mobile nature of the item to be seized and the uncer-

tainty of its location at any particular time. Petitioner

believes rather, that the decision in Cady v. Dombrowski,

supra, should govern this case.

Accordingly, petitioner submits that the admission

of the paint scrapings in question were admitted at re-

spondent’s trial without violating his rights under the

Fourth and Fourteenth Amendments to the Constitu-

tion. A finding to the contrary by the courts below and

the granting of the Writ of Habeas Corpus were con-

clusions clearly erroneous.

Lastly petitioner iterates that the question of the

legality of the seizure of the paint samples was, after

a motion to suppress and voir dire hearing, determined

by the trial court. The question was raised by respondent

and rejected by two Ohio appellate courts and this Court.

Petitioner believes that the district court was in error in

relitigating the matter. As enunciated by Mr. Justice

Powell in his concurring opinion:

“Where there is no constitutional claim bearing on

innocence, the inquiry of the federal court on habeas

review of a state prisoner’s Fourth Amendment

claim should be confined solely to the —

whether the defendant was provided a fair op-

portunity in the state courts to raise and have ad-

judicated the Fourth Amendment claim. Limiting

the scope of habeas review in this manner would

reduce the role of the federal courts in determinj

the merits of constitutional claims with no relation

to a petitioner’s innocence and contribute to the

restoration of recently neglected values to their

proper place in our criminal justice system,”

Schneckloth v. Bustamonte, ___ aS: _.~ 36 L. Ed. 24

854, 855 (1973).

See also: Cupp v. Murphy, ___ U.S. ___ 36 L.Ed. 2d 900

(1973).

Wherefore petitioner prays that this Court grant the

- writ of certiorari sought herein.

Respectfully submitted,

WiLiaM J. Brown,

Attorney General,

Leo J. Conway,

JEFFREY L. McCLELLanp,

Assistant Attorneys General,

Attorneys for Petitioner.

APPENDIX A

OPINION OF THE

United States Court of Appeals

FOR THE SIXTH CIRCUIT

ArTHuR Ben LEwIs,

Petitioner-Appellee,

Vv.

Harotp J. CARDWELL, Warden,

Respondent-Appellant. |

AppgaL from the

United States Dis-

trict Court for the

Decided and Filed ‘April 5, 1973.

Before: Putuuips, Chief Judge,

Circuit Judges.

WEIcK and MILLER,

Murr, Circuit Judge. This appeal is before the Court

for review of a judgment and order

of the district court

conditionally granting a writ of habeas corpus pursuant

to the power vested in that court by 28 U.S.C. §2241.*

1 The district court opinion states:

The case arises from a brutal shotgun slaying for which

the appellee, Arthur Ben Lewis, Jr., was indicated, tried

and subsequently found guilty of first degree murder

by a state trial court jury. It is well to remember that

this Court’s sole duty in this case, as in all similar cases,

is to determine whether the petitioner’s constitutional

rights were violated, regardless of the evidence pointing

to the guilt of the accused.

The single issue presented for resolution is the correct-

ness of the District Court’s holding that the appellee's

fourth and fourteenth amendment rights were violated

by the admission at his trial of evidence obtained from a

warrantless seizure and subsequent search of his auto

mobile. The District Court’s exhaustive and comprehen-

sive opinion is reported in —— F. Supp. —— (S.D. Ohio

1972). Since we are in full agreement with the opinion,

we find it unnecessary to do more than to emphasize and

further clarify several points made below. Only the

skeletal facts relevant to the single search and seizure

question need be summarized here.

During the course of investigating this July 19, 1967,

slaying, the law enforcement officers focused their atten-

tion on the appellee. On July 24, 1967, Delaware County

Deputy Sheriff Lavery, one of the officers assigned to

the case, talked with the appellee at his place of business

and at that time viewed his 1966 Pontiac automobile.

From other information gathered in the investigation

Lavery believed that the appellee’s car had been used

to push the murder victim’s automobile over a river em-

bankment at the scene of the crime. On September 28,

1967, Deputy Lavery and an official from the State At

torney General’s office again interviewed the appellee

and on October 9, 1967, the appellee was contacted by

telephone and requested to appear the next day at the

icabrilleiaintitiaiemniiiniiiaiiagalll

offices of the Division of Criminal Activities in Colum-

bus, Ohio, for further questioning. Early the next morn-

ing, October 10, 1967, Deputy Lavery obtained a warrant

for the appellee’s arrest but did not attempt to procure

a warrant for the search of his car.

The appellee arrived at the offices of the State Attor-

ney General shortly after 10:00 A.M. October 10, 1967,

where several staff members of the Division of Criminal

Activities and Deputy Lavery questioned the appellee.

for a substantial part of the day. The arrest warrant was

not served on the appellee until approximately 5:00 P.M.

that afternoon, an event which occurred shortly after the

arrival of his attorneys. Around the time of appellee’s

arrest the law enforcement officials obtained the keys

and the claim check for the appellee’s car which was

parked in a pay parking facility about a half block from

the state offices.? One of the state officials then called a

wrecker to seize the automobile. The seizure was effected

in this manner, with the result that none of the investi-

gators personally viewed the vehicle or ascertained

whether the car was in fact parked in the lot. The seigure

was made without obtaining a warrant.

A lab technician viewed the car in the impounding lot

on October 11, 1967, and searched the trunk of the car.

He also removed paint samples from the exterior surface

of the appellee’s automobile, consisting of the outer coat

of paint and the two primer coats underneath. At the

appellee’s trial this technician testified that he found no

difference in the color, texture or the order of layering

of paint of these samples as compared with foreign paint

marks found on the victim’s car.

The respondent raises three grounds in attempting to

support the warrantless seizure and subsequent search

of the appellee’s automobile: first, that the search of the

automobile was with the consent of the appellee; second,

that the search was incident to a valid arrest; and third,

that the vehicle itself was an instrumentality of the

crime in plain view which the officers had probable cause

to believe was used in the commission of a felony. As a

corollary to the third contention, the respondent claims

that no search was in fact conducted since no items were

seized from the interior of the car but rather that the

paint scrapings were removed from the exterior surface

of the vehicle as a result of a scientific examination of

an instrumentality of the crime.

The district court’s finding, which we deem to be cor-

rect, that the first two contentions were without merit

is so fully discussed in its opinion that nothing further

need be said with respect to these issues. We confine

ourselves to some additional observations concerning

respondent’s third contention.

Initially, what may be termed a point of semantics

needs clarification. The respondent’s use of the term

“fnstrumentality of the crime” is an attempt to raise the

ghost of an outmoded concept which was laid to rest by

the Supreme Court in Warden v. Hayden, 387 U.S. 294

(1967), where the Court dispensed with the “mere evi-

dence” distinction which had worked its way into the

law of search and seizure. Mr. Justice Brennan’s words

deserve repetition:

Nothing in the language of the Fourth Amend-

ment supports the distinction between “mere evi-

dence” and instrumentalities, fruits of crime, or

contraband. On its fact, the provision assures the

“right of the people to be secure in their persons,

houses, papers, and effects . . .,” without regard to

the use to which any of these things are applied.

This “right-of the people” is certainly unrelated to

the “mere evidence” limitation. Privacy is disturbed

no more by a search directed to a purely evidentiary

object than it is by a search directed to an instru-

mentality, fruit, or contraband. A magistrate can

intervene in both situations, and the requirements

of probable cause and specificity can be preserved

intact. Moreover, nothing in the nature of property

seized as evidence renders it more private than

property seized, for example, as an instrumentality;

quite the opposite may be true. Indeed, the distinc-

tion is wholly irrational, since, depending on the

circumstances, the same “papers and effects” may

be “mere evidence” in one case and “instrumental-

ity” in another. 387 U.S. at 301-302.

Mr. Justice Stewart also reiterated the demise of the

“instrumentality of a crime” and “mere evidence” dis-

tinction in Coolidge v. New Hampshire, 403 U.S. 443,

464 (1971).

The respondent’s third contention is thus premised on

an unwarranted assumption. As aptly stated by the dis-

trict court: “The instrumentality theory assumes that

any object used in the commission of a crime may be

seized at any time without a warrant as long as the offi-

cers have probable cause to believe that the object was

used in the commission of a crime and the officers are

lawfully in a position to view the object.” —— F.Supp.

at ——. We fully approve the district court’s answer to

this premise: “The police cannot seize an automobile on

the theory that it is an instrumentality of a crime which

is in plain view in calculated disregard for the Fourth

Amendment requirement that application be made to a

judicial officer for a search warrant absent exigent cir-

cumstances.” —— F.Supp. at ——. Since no exigent cir-

cumstances existed in this case the respondent's instru-

mentality theory must fail.*

*The district court spells out the lack of exigent circumstances at

several points in its opinion. Of particular significan

had planned for several =

our interpretation of the ‘automo * and ‘plain view’ ex ons to

the warrant requirement.” Coo v. pen Ramestis, 403 U.S. 443,

reaffirm the correctness of that tion. See Annot.,

1067, 1073-78 (1972). ~—

have prior knowledge amounting to probable cause es-

tablishing the nexus between the article sought and the

place of seizure a warrant must be obtained in order to

protect the fourth amendment principle that warrantless

seizures are per se unreasonable in the absence of exigent

circumstances.

The respondent’s contention that no search was in fact

conducted of the vehicle because the paint scrapings

were removed from the exterior surfaces of the car dur-

ing a scientific examination of evidence of the crime is

also untenable. This reasoning is unsound because it is

based on the premise that the car was properly seized

without a warrant —a contention which we have held

to be incorrect under any of the theories advanced by

the respondent.’ Also we cannot agree that standing

alone, the police actions involving the vehicle were not

a search. As correctly stated by the district court in foot-

note 10 of its opinion:

Respondent also apparently argues that there was

no search and seizure because the only thing seized

— paint — was from the exterior of the car. No

cases are cited supporting this novel proposition.

Admittedly, testimony describing the exterior color

of the car would not run afoul the Fourth Amend-

ment if the witness had lawfully been in a position

to observe its color. However, the intrusion herein

was not limited to an observation of the exterior of

the automobile. A search was conducted of the lay-

5 This same error appears in the Ohio Supreme Court’s opinion on

pag oe et eae a Benes ute eae

" e court, relying on People v. Teale Cal2d

497, 450 P.2d 564 (1969), upheld the search as since the car was

an instrumentality of the crime. However, Supreme Court

failed to note t in Teale the initial seizure of the automobile was

justified as being incidental to the defendant’s arrest.

Respondent’s reliance upon Cooper v. California, 386 U.S. 58 (1967)

is misplaced since the underlying premise of the Supreme 's

—

ers of paint beneath the visible surface of the ve

hicle. —— F.Supp. at ——.

In our view the action of the police lab technician in

lifting the layers of paint from the exterior car body was

as much a search as his opening the trunk of the vehicle.

The judgment of the district court is affirmed.

On this.a the respondent cites two cases which he considers

analogous to police actions here. Both cases involve the police

obtaining a vehicle’s serial number by opening the door of a car

ee eee ee ee In both cases the police acted

" bn United States Graham, 391 F.2d 439, 442 (6th Cir. 1968), this

taken into custody + ee oe, =

which requ them to get a search warrant before

Be ee iat te ecerctole denied. (Knaneds

es a the article might be accurately identified. [Emphasis

This Court went on to hold:

It is here concluded and held that an examination of an auto-

mobile properly in police custody is not a search thereof, and

that evidence of the serial number of such car is not excludable

from evidence because it was obtained in the course of such

an examination. 391 F.2d at 443 [Emphasis added].

This Court relied on Cotton v. United States, 371 F.2d 385 (9th Cir.

1967), in Graham, supra. In agree cage | Circuit stated:

They [the police] also had a d keep a record of the

property that they had impound © eT ft Sa we

turned to the suspect or to owner in due course. For rea-

sons stated below, we do not think that the mere opening of

the door of the car for the purpose of making such a record

was, under the circumstances, a search, but if it was, the cir-

cumstances under which it was done make that search an en-

tirely reasonable one. 371 F.2d at 392.

The court in Cotton, supra, also specifically limited its holding, stating:

When Cotton acq the car serial number and motor |

camber setae, orth.tt, Ama: whe weeebl ‘Sonit to t to check

the identification number] to those cases in which there is a |

gitimate reason to do so. 371 F.2d at 393. |

See also, United States v. Pearson, 448 F.2d 1207 (5th Cir. 1971);

United States v. Johnson, 431 F.2d 441 (5th Cir. 1970).

We would note that other courts have held that obtaining vehicle

Fe yarn wf + aay a car door under similar circumstances is

illegal search. impson v. United States, 346 F.2d 291 (loth

for identification purposes.

APPENDIX B

OPINION AND ORDER OF

THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Civil Action 71-76

ARTHUR BEN LEWIS, JR.,

Petitioner,

HAROLD J. CARDWELL, Warden, et al.,

Respondent.

Petitioner, a state prisoner, brings this action for a

writ of habeas corpus under the provisions of Title 28,

United States Code, Section 2241(c)(3).

This matter is before the Court on the petition, return

of writ, briefs and exhibits of the parties, the bill of

exceptions in State v. Arthur Ben Lewis, Jr., No. 3952

(Delaware Cty. C.P. Ct. 1968) and an evidentiary hear-

ing held on April 20, 1972.

On November 8, 1967, the Delaware County Grand

Jury returned an indictment charging petitioner with

the crime of murder in the first degree. He was tried

before a jury on March 4-21, 1968, and found guilty with

the recommendation of mercy. On March 29, 1968, he

was sentenced to life imprisonment in the Ohio Peniten-

tiary.

Petitioner appealed to the Fifth District Court of Ap-

peals for Delaware County which affirmed the judgment

of conviction. He then appealed to the Ohio State Su-

preme Court which, in State v. Lewis, 22 Ohio St. 2d 125

(1970), also affirmed the judgment of conviction.

Petitioner alleges that he is in the custody of respon-

dent in violation of the Constitution of the United States,

in that:

1. His arrest was unlawful because it was predi-

cated upon a warrant that had issued under

§§2935.09, 2935.10, 2935.17 and 2935.19 of the

Ohio Revised Code, which sections are uncon-

stitutional on their face in that they:

a) fail to provide that a judicial determination

be made prior to issuance of a warrant;

b) fail to provide that facts be set forth in the

affidavit that would permit an impartial ju-

dicial determination as to the existence of

probable cause for issuance of the arrest

warrant;

c) fail to require the officer to state his source,

or to aver that such source had previously

been reliable.

The subsequent eliciting of the petitioner’s state-

ments and the seizure of his automobile incident

to the arrest when entered as evidence in the

trial of this cause served as a basis for his con-

viction, contravening the petitioner’s rights un-

der the Fourth and Fourteenth Amendments.

2. His interrogation and subsequent arrest and

seizure of his automobile by a vigilante commit-

tee (Division of Criminal Activities — ostensibly

at the direction of Deputy Sheriff Lavery) was

in violation of his right of Fourteenth Amend-

ment’s procedural due process, where such com-

mittee, assigned by the Ohio Attorney General,

was, in actual point of law, operating without

legal authority where the Attorney General had

no such statutory appointive powers and the sub-

sequent seizure of evidence as a result of this

action by the Attorney General when entered as

evidence during the trial of this matter served

as a basis for petitioner’s conviction.

3. His\ Fifth Amendment rights were infringed

where the vigilante committee (Division of Crim-

inal Activities) summoned the petitioner to the

Office of the Attorney General, initiated an in-

terrogation of the petitioner prior to having

given him the warning required by Miranda, and

that when the purported warning was given, he

was not apprised of certain facts, i.e., that any-

thing said can and will be used against him in

court, or that an arrest warrant had been issued

for his arrest, or that his conversation, prior to

the warning as well as after, was being moni-

tored by a hidden electronic eavesdropping ap-

paratus thereby denying the petitioner his Sixth

Amendment right to counsel during a critical

stage of the proceedings, and the surreptitiously

acquired statement when entered as evidence in

the trial of the cause served as a basis of his

conviction.

4. He was deprived of a fair trial where after the

trial court overruled State’s Exhibit 111, the trial

court erred in permitting the State to present

into evidence the hearsay contents of the exhibit

in toto, by means of a witness for the State recit-

ing verbatim therefrom; such testimony serving

as a basis for conviction and violation of peti-

tioner’s rights under the Sixth and Fourteenth

Amendments.

5. The warrantless seizure of his automobile.

parked on a private lot one-half block from site

of his arrest, for purpose of ascertaining as to

whether said automobile had been an instrumen-

tality of the crime, violated Fourth Amendment

prohibition where such seizure was justified only

after the seizure; (in theory of the State’s case),

further, the automobile was not seized contem-

poraneous in time and place with petitioner’s ar-

rest, and evidence seized therefrom served as a

basis of his conviction.

paper, radio and television coverage and, where,

this ‘witness’ was never called to testify; and

where the State with manifest intent, branded

petitioner as a ‘beast’ in the eyes of the jurors,

i courtroom after

was crucial to, and denied the petitioner’s right

to a fair trial and served as a basis of his convic-

tion by denying him the right of due process

and served as a basis of his conviction, depriving

him of his Sixth Amendment right to effective

assistance of counsel and his Fourteerith Amend-

ment’s right to due process.

10. The trial court’s denial of his Motion for a New

Trial based upon newly discovered evidence was

a flagrant abuse of the discretion lodged in that

court and served to perpetuate petitioner’s im-

prisonment for a crime of which he is innocent,

denying him due process under the Fourteenth

Amendment.

Each of the claims for relief will be considered below.

First, the Court will summarize the relevant facts

underlying the judgment of conviction as they appear

in the bill of exceptions in State v. Arthur Ren Lewis, Jr.,

No. 3952 (Delaware Cty. C.P. Ct. 1968) and as found by

this Court after the evidentiary hearing.

On July 19, 1967 at approximately 2:35 p.m., the body

of Paul Radcliffe was found in the brush along the bank

of the Olentangy River near the old Tilton building in

Delaware County, Ohio. Radcliffe had been killed by

multiple pellet wounds of the chest, right arm and right

hip.

Delaware County Deputy Sheriffs arrived on the scene

shortly after the discovery of the body. They, together

with employees of the Bureau of Criminal Investigation

and Identification (BCI), investigated the murder scene.

Radcliffe’s automobile, a 1963 Oldsmobile, was found

over the bank of the Olentangy River in the brush near

the victim. No weapon was found.

The investigators made casts of tire tracks found at

the scene." They also removed foreign paint scrapings

1 of a Starfire Imperial tire made the Cooper Tire &

Rubber Co, Cast #2 was of a safety model low profile tise made by

from the right rear bumper and fender of Radcliffe’s car.

Delaware County Sheriff Eugene Jackson requested

the assistance of the Division of Criminal Activities of

the Office of the Attorney General of Ohio to investi-

gate the murder. In the succeeding months, the inves-

tigation was conducted by Delaware County Deputy

Sheriff William Lavery and Chief Investigator Clyde

Mann of the Division of Criminal Activities.

Early in the investigation it was learned that in May

of 1967 a Columbus businessman, Jack Smith, had be-

come interested in purchasing a business owned by peti-

tioner, Graham’s Auto Specialists. They had entered into

a contract of purchase at $30,000.00 with a closing date

of July 22, 1967. Smith employed Paul Radcliffe, an ac-

countant, to look at petitioner’s books for Graham’s Auto

Specialists.

On July 24, 1967, Deputy Lavery talked with peti-

tioner at Graham’s Auto Specialists. Lavery testified at

the evidentiary hearing that he considered petitioner a

suspect from that time forward.

Mann and Lavery talked with petitioner again on

September 28, 1967. At this time the investigation had

focused in on petitioner as the prime suspect. Mann

called petitioner on October 9, 1967 and requested that

he come to the offices of the Division of Criminal Activi-

ties at 40 S. 3rd Street, Columbus, Ohio for additional

questioning.

On the morning of October 10, 1967 at approximately

8:00 a.m., Deputy Lavery appeared before Delaware

County Municipal Judge Thomas C. Clark and filed the

following affidavit in support of an arrest warrant:

Before me, a Notary Public, personally came

William B. Lavery, Deputy Sheriff, who, being duly

sworn according to law, deposes and says, that one

Arthur Ben Lewis, Jr., on or about the 19th day of

July, 1967, at or about the hour of nine o’clock, A.M..,

within the State of Ohio, County of Delaware afore-

said and in the Township of Liberty unlawfully then

and there did purposely, and of premeditated malice,

kill Paul L. Radcliffe, then and there being a human

being contrary to Section 2901.01 of the Revised

Code in such case made and provided, and against

the peace and dignity of the State of Ohio.

Judge Clark issued an arrest warrant for petitioner. The

only sworn facts before the Municipal Judge were con-

tained in the affidavit.

At the time he procured the arrest warrant, Lavery

had knowledge of the following facts establishing prob-

- able cause to believe that petitioner murdered Paul Rad-

cliffe on July 19, 1967 in violation of §2901.01, Ohio

Revised Code:

Ruth Burns and Alice Stone, residents of the

area surrounding the murder site, heard gun

shots between 8:00 a.m. and 8:30 a.m. on July 19,

1967.

After hearing the gun shots, Ruth Burns heard

tires spinning on gravel and the sound of dry

wood crackling. She then observed a tan GM

product with a black top traveling toward Co-

lumbus on Route 315, which passes in front of

her house. The automobile was similar in design

to her 1966 Corvair.

Petitioner owned a beige or gold colored 1966

Pontiac.

Gold or beige colored paint was found on the

rear bumper and fender of Radcliffe’s 1963 Chev-

rolet.

It was Lavery’s opinion from observing the mur-

der scene that a vehicle had pushed Radcliffe’s

automobile over the Olentangy River embank-

ment.

10.

11.

The Federal Bureau of Investigation laboratory

reported that the paint found on the rear bumper

and fender of Radcliffe’s automobile was from a

1965 or 1966 GM product.

Mrs. Jack Smith received a telephone call “

tween 9:00 a.m. and 9:30 a.m. on July 19, 1967.

The caller identified himself as “Radcliffe.” He

said that the books for Graham’s are in “A-1

condition.” The caller concluded by saying that

he was leaving town and wouldn’t be back until

Tuesday, July 25, 1967. Mrs. Smith, who had

known the victim, said the caller was not Paul

Radcliffe.

Paul Radcliffe could not have made the call be-

cause the observations of Ruth Burns and Alice

Stone establish the time of death at around

8:30 a.m.

Only petitioner benefited by the information con-

tained in the phone call.

Petitioner brought-his car to the M & R Garage

at approximately 12:00-12:30 p.m. on July 19,

1967 to arrange for repairs to damage to the front

grille panel, hood, right front fender, left rear

panel and door, and left driver’s door of

his 1966 Pontiac. The repair work was performed

July 20, 1967.

On the victim’s desk calendar the notation “Call

Ben Lewis” appeared on the page dated July 19.

At the time he obtained the arrest warrant for peti-

tioner, Lavery believed petitioner’s 1966 Pontiac had

been used in the commission of the murder and he

wanted to seize the automobile.* Lavery did not attempt

to obtain a search warrant for petitioner’s 1966 Pontiac.

Lavery proceeded with the warrant to the Criminal

Activities Division’s offices at 40 S. 3rd Street, Columbus,

2 Lavery first Nae any J 1967 when

he saw petitioner’s Or gold ort cored 1986 1 at ¢ ticteess Auto Spe-

Ohio. Petitioner arrived at the offices sometime after

10:00 a.m. At 10:30 a.m., investigator Mann began ques-

tioning petitioner. Petitioner signed a waiver of his right

to remain silent and his right to the assistance of coun-

sel at 10:40 a.m. From that time on the interrogation was

recorded, without petitioner’s knowledge, by a hidden

tape recorder.

Although Lavery was present during the interroga-

tion and other events of October 10, 1967, he did not

execute the arrest warrant until approximately 5:00 p.m.

in the evening. He testified at the evidentiary hearing

that it was a “tactically” better “interrogation tech-

nique” to question petitioner before advising him that a

warrant had been issued for his arrest.

The questioning covered petitioner’s activities on the

morning of July 19, 1967; the damage to his 1966 Pontiac;

his contacts with Radcliffe prior to July 19, 1967; the

type of guns he owned; and his financial condition. Sev-

eral of petitioner’s statements were potentially incrim-

inating.” Taken as a whole, the statements were consis-

tent with the defense presented at trial.‘

The interrogation continued until around noon. Be-

tween 12:30 p.m. and 1:00 p.m., petitioner was taken to

his home by the investigators and Deputy Lavery. There

the investigators searched for a shotgun. Nothing was

seized. Everyone returned to the offices of the Division

of Criminal Activities.

*Petitioner’s recounting of how the 1966 Pontiac was

At no time after his arrival at the Criminal Activities

Division office around 10:00 a.m. was petitioner permit-

ted to leave these premises. Furthermore, he had to ob-

tain permission to use the telephone. ° ,

The questioning continued for a brief period following

the return from petitioner’s residence. Around 3:30 p.m.,

petitioner said he wanted to talk with his attorney. He

was permitted to call David E. Tingley, who had previ-

ously represented him in civil matters. Mr. Tingley

called Paul Scott with respect to representing petitioner.

Mr. Tingley and Mr. Scott arrived at the offices of the

Division of Criminal Activities at approximately 4:00

p.m. Mr. Scott conferred with petitioner. The interroga-

tion did not continue.

Sometime after 5:00 p.m., Deputy Lavery formally

executed the arrest warrant, taking custody of petitioner.

As they were leaving the offices of the Criminal Activi-

ties Division, Lavery obtained possession of the keys to

petitioner’s 1966 Pontiac which was parked approxi-

mately one-fourth of a block away in a private parking

lot open to the public. The manner in which Lavery

obtained possession of the keys is in dispute.

At the hearing on a motion to suppress the fruits of a

search of the automobile, Mann testified that he, Lavery

and David Kessler’ talked the matter over and decided

to impound the automobile. Mann recalled telling peti-

tioner, probably prior to the arrival of Mr. Tingley and

Mr. Scott, that he was going to impound the automobile

because it was used in a felony. Mann testified that after

his arrest, petitioner requested that his automobile be

5 Mr. Kessler was the Asisstant Attorney General of Ohio in charge

Delaware County Prosecutor to assist in the prosecution of petfone

Delaware County Prosecutor to assist e prosecution

He presented the State’s case at petitioner’s trial.

put in a police lot for safekeeping.* Mann then seized the

automobile under the authority that it was used in the

commission of a felony. Lavery’s testimony was sub-

stantially the same as Mann’s.

Mr. Tingley testified at the hearing on the motion to

suppress that Mann told Mr. Scott that he wanted peti-

tioner’s automobile. Mr. Scott asked, under what author-

ity? Mann replied that it was used in the commission of

a felony. Mr. Scott then relinquished the keys, stating

he was “not going to enter into a physical fight with

(Mann] if the was] taking custody of the automobile.”

At the evidentiary hearing herein Mr. Scott and peti-

tioner testified that around the time of the arrest, ie.,

5:00 p.m., petitioner gave Mr. Scott the keys to the

automobile and a claim check for it, requesting Mr. Scott

to see that his wife and family got the automobile. After

the arrest, Mann demanded a briefcase containing per-

sonal papers belonging to petitioner. Mr. Scott refused.

Mann also said that he was going to take the automobile.

Mr. Scott testified that to avoid becoming involved in a

physical confrontation, he gave the keys to Mann, tell-

ing him that he would “see [Mann] in court on a motion

to suppress.”

Mann and Lavery also testified at the evidentiary hear-

ing. Their testimony did not materially differ from that

at the hearing on the motion to suppress. Lavery did

concede that he probably would have taken the auto-

mobile regardless of whether or not petitioner had asked

him to take it for safekeeping.

* Mann testified at the hearing on the motion to suppress that peti-

——=y

The automobile was impounded by the Columbus

Police Department. Steve Molnar, Jr., a BCI lab tech-

nician, viewed the automobile on October 11, 1967 in the

impounding lot. He searched the trunk and found a new

Uniroyal tire. He observed that there were two almost

new Hercules Safety Cream 855.14 tires on the front of

the automobile. He noted that the right rear tire was

made by U.S. Royal and could have made one of the cast

impressions made at the murder scene. Molnar then took

paint scrapings from the right rear and left front of the

automobile. He was not acting pursuant to a search war-

rant.

At trial, Molnar testified that the foreign paint scrap-

ings found on the right rear bumper and fender of Paul

Radcliffe’s 1963 Oldsmobile were beige painted over a

grey primer which, in turn, was over a black primer next

to metal. The paint samples taken from petitioner’s car

on October 11, 1967 were also beige painted over a grey

primer, over a black primer next to metal. Molnar testi-

fied that it was his expert opinion that there was no differ-

ence in the color, texture or order of layering of the paint

samples. taken from the right rear bumper and fender of

Radcliffe’s automobile and the right rear and left front

of petitioner’s automobile.

Additional facts relevant to the decision will be set out

below with respect to the specific claims for relief.

L t OL AND IV

Petitioner’s first four claims for relief were not pre-

sented to the Fifth District Court of Appeals for Delaware

County, Ohio or to the Ohio Supreme Court.

In Picard v. Connor, 404 U.S. 270, 275 (1971), the

United States Supreme Court held that a federal claim

for relief must be fairly presented to the state courts

before it may be considered by a United States District

Court in habeas corpus. See, 28 U.S.C. §2254(b), (c). A

state prisoner cannot bypass the state courts. But a peti-

tioner need not pursue state court remedies if there is “an

absence of available State corrective process or the exis-

tence of circumstances rendering such process ineffective

to protect the rights of prisoners.” 28 U.S.C. §2254(b).

Petitioner could have presented these claims for relief

to the Ohio courts in his direct appeal. At the eviden-

tiary hearing in this Court, Mr. Scott-and petitioner

testified that petitioner sought to have the issues pre-

sented to the Ohio courts but that Mr. Scott, in his pro-

fessional judgment, decided against raising them.

Fifty per cent of Mr. Scott’s practice is in the area of

criminal law. He is a respected and competent trial at-

torney both in the criminal and civil fields. His decision

not to raise the issues in the direct appeal represents his

best professional judgment which is within the range

of reasonably competent judgment constitutionally man-

dated. See, McMann v. Richardson, 397 U.S. 769, 772-773

(1970).

On the other hand, there is no evidence that petitioner

decided to voluntarily forego his right to present these

claims to the Ohio courts.”

The question remains: is there an available Ohio pre-

cedure in which petitioner can raise the first four claims

for relief alleged herein. Respondent asserts that peti-

tioner has available the remedy of a delayed appeal from

the judgment of conviction to the Fifth District Court of

salle osiey cone, Ci nw. Dut, cosuming these claims for

Telief 's conduct

amount to “an intentional 01 US dee en eee

tight or privilege.” Johnson v. Zervst, 304 U.S. 458, 464 1838).

sought to have the claims presented ta the Ohip eorin ,

aay

Appeals under the provisions of §2953.05, Ohio Revised

Code. Alternatively, respondent contends petitioner has

available the remedy of a petition to vacate sentence

under the provisions of §2953.21, et seq., Ohio Revised

Code.

A prisoner is not required to undertake a futile ex-

haustion of State remedies. See, e.g., Terry v. Wingo, 454

F.2d 694 (6th Cir. 1972); Woodards v. Cardwell, 430 F.2d

978 (6th Cir. 1970); cert. denied, 401 U.S. 911 (1971);

Allen v. Perini, 424 F.2d 134 (6th Cir. 1970), cert. denied,

400 U.S. 906 (1970); Lucas v. Michigan, 420 F.2d 259, 261

(6th Cir. 1970); Duke v. Wingo, 386 F.2d 304, 306 (6th

Cir. 1967), cert. denied, 397 U.S. 1013 (1970).

Presenting the claims for relief in a post-conviction

petition would be futile. In State v. Duling, 21 Ohio St. 2d

13 (1970), the Ohio Supreme Court held that constitu-

tional claims could not be considered in proceedings

under §2953.21, et seq., Ohio Revised Code if they have

already been or could have been fully litigated on direct

appeal. The first four claims for relief herein could have

been raised on direct appeal, therefore post-conviction

relief is unavailable.°

The Court now turns to the question of the availability

of a delayed appeal. The general rule is that an Ohio

prisoner who was convicted after trial is required to raise

his claims for relief in a direct or delayed appeal under

the provisions of $2953.05, Ohio Revised Code to exhaust

his available state court remedies as required by 28

U.S.C. §2254(b), (c). See, Mackey v. Koloski, 413 F.2d

1019 (6th Cir. 1969). Section 2953.05, Ohio Revised

Code provides, in relevant part:

Appeal . . . may be filed as a matter of right

within thirty days after judgment and sentence or

from an order overruling a motion for a new trial.

... After the expiration of the thirty day period .. .

such appeal may be taken only by leave of the court

to which the appeal is taken.

Ohio courts have uniformly held that a defendant must

show good cause why he did not file a direct appeal to be

granted leave to file a delayed appeal. State v. McGahan,

86 Ohio App. 283, 284 (Franklin Cty. Ct. Apps. 1949);

Ex parte Hertz, 74 Ohio L. Abs. 71 (Franklin Cty. Ct.

Apps. 1953). See, State v. Sims, 27 Ohio St. 2d 79 (1971);

Toledo v. Reasonover, 115 Ohio App. 434 (Lucas Cty. Ct.

Apps. 1962); State v. Steele, 30 Ohio Ops. 2d 41, 42 (Ross

Cty. Ct. Apps. 1964).

This Court can find no reported case deciding whether

a delayed appeal lies to raise issues which were not raised

on direct appeal.

This Court believes that $2953.05, Ohio Revised Code

should be construed liberally in favor of granting a

remedial process through which constitutional questions

may be raised. See, Case v. Nebraska, 391 U.S. 336

(1965).

The existing Ohio case law is consistent with this in-

terpretation. Therefore, the Court concludes that if

petitioner can show good cause why these issues were

not presented on direct appeal, he has available the state

court remedy of a delayed appeal. But cf., Woodards v.

Cardwell, supra.

The Court HOLDS that petitioner has not exhausted

his available state court remedies with respect to the first

four claims for relief as required by 28 U.S.C. §2254(b),

(c).

We reach now the fifth claim for relief. Petitioner

contends the warrantless seizure of his 1966 Pontiac, its

subsequent search and resultant seizure of paint scrap-

ings and the admission of evidence and testimony relating

to analysis of the paint samples was in violation of the

Fourth and Fourteenth Amendments.’

Respondent argues that the search was justified either

on the theory that it was incident to a valid arrest or be-

cause the officers had probable cause to believe the car

was an instrumentality of a crime. If these arguments

fail, respondent alleges that petitioner voluntarily sur-

rendered the keys to the automobile and requested that

the officers take the car into custody. Finally, no items

were seized from the interior of the car. The exterior of

the automobile was in plain view and consequently the

paint scrapings were subject to seizure because the offi-

cers had probable cause to believe the automobile was

used in the commission of a crime.”

Petitioner’s fifth claim for relief has been raised at

every stage of the Ohio proceedings. After the hearing

®In addition to taking t samples, Molnar opened the trunk and

prey as saath - beg igs Bove Fie also cone’ the make of all the tires on

automobile. A photograph was taken of the automobile and intro

ek tee eotlinen an Petitioner tends the admission of

ee a so a en en

this

igure Because the only ting selaed — ps that there was no search and

seizure use the Peat Gade

on the motion to suppress, the Delaware County Common

Pleas Court made no detailed findings of fact. The Com-

mon Pleas Court made the general finding that “the car

was seized, impounded and searched because of the crime

for which the defendant was arrested. . . .” Upon con-

sideration of the evidence as a whole the Common Pleas

Court concluded:

It appears to this court that it was reasonable for

law enforcement officers to immediately seize a car

which their investigation gave them reasonable

cause to believe it had been used in the commission

of a felony charge. The car was in the possession

or constructive possession of the defendant; he had

the keys and parking ticket for it. It was on a public

parking lot adjacent to the building which public

state offices are located and where the defendant

had just been arrested.

This is not a case in which a person’s home or

private structure has been unreasonably invaded.

This is not a case in which an individual’s person

has been unreasonably searched.

In this court’s opinion the seizure of this car was

incident to a lawful arrest. In this court’s opinion

subsequent search of this car was a reasonable search

of a legally impounded vehicle and was incidental to

the crime for which the defendant was arrested.

The Fifth District Court of Appeals for Delaware

County on consideration of petitioner’s appeal held:

Defendant-appellant sets forth ten assignments of

error. We have carefully examined the record,

assignments of error, bill of exceptions, heard the

oral arguments of counsel, and find no error preju-

dicial to the defendant-appellant.

The Ohio Supreme Court found that petitioner’s auto-

mobile was used as an instrumentality of a crime:

Pe ONE Se SRK,

In the instant case, the investigating authorities

had reasonable grounds to believe that the car had

been used in the furtherance of the commission of

the crime; that because it was used to push the vic-

tim’s car over the river embankment, it was an in-

strumentality of the crime. Therefore, two samples

were taken from the exterior of the car to compare

the paint found on decedent’s car.

The Ohio Supreme Court then held:

that the examination by the police of an automobile

which is an instrumentality of a crime, for evidence

in connection with the crime in which the automobile

was used, is not an unlawful search and seizure even

though the examination is conducted at a time and

place remote from the time and place of the arrest

of the owner and seizure of the automobile.

Since the seized car was an instrumentality used

in the crime, the authorities had as much right to

examine it as they would to examine a weapon

claimed to have been used in the commission of a

crime.

Each of the above courts was presented with the argu-

ment that petitioner had consented to the search by

voluntarily relinquishing the keys to the officers. The

consent rationale was not adopted by any Ohio court.

However, respondent again asserts that petitioner’s

“consent” to police officers taking custody of the auto

mobile is a factor which contributes to the lawfulness of

the search and seizure of the automobile.

The following general rules govern the determination

of whether a defendant has given his consent to a search:

1. The government has the burden of proving con-

sent was given. Bumpers v. North Carolina, 391

US. 543, 548 (1968); Rosenthall v. Henderson, 389

F.2d 514, 515-516 (6th Cir. 1968); Simmons v.

Bomar, 349 F.2d 365 (6th Cir. 1965); Kovach v.

United States, 53 F.2d 639 (6th Cir. 1931); Judd v.

United States, 190 F.2d 649, 651 (D.C. Cir. 1951);

Watson v. United States, 249 F.2d 106, 108 (D.C.

Cir. 1957); Villano v. United States, 310 F.2d 680,

684 (10th Cir. 1962); United States v. Page, 302

F.2d 81, 83 (9th Cir. 1962); State v. McCarthy, 20

Ohio App. 2d 275, 284-285 (Cuyahoga Cty. Ct.

Apps. 1969).

. The prosecution must demonstrate that the con-

sent is uncontaminated by any duress or coercion,

either express or implied. Simmons v. Bomar,

supra; Judd v. United States, supra; United States

v. Page, supra; Watson v. United States, supra.

. The consent must be “unequivocal, specific and in-

telligently given.” Simmons v. Bomar, supra; Ko-

vach v. United States, supra; Judd v. United States,

supra; United States v. Page, supra; Villano v.

United States, supra.

. If the defendant was in custody, there must be clear

and positive testimony that he voluntarily con-

sented to the search. Catalanotte v. United States,

208 F.2d (6th Cir. 1963); Judd v. United States,

supra; United States v. Smith, 308 F.2d 657, 663 (2d

Cir. 1962), cert. denied 372 U.S. 906 (1963); United

States v. Page; see also, Hubbard v. Tinsley, 350

F.2d 397, 398 (10th Cir. 1965).

. Courts indulge every reasonable presumption

against the waiver of fundamental constitutional

rights. United States v. Page, supra; Weed v. United

States, 340 F.2d 827, 829 (10th Cir. 1965); see gen-

erally, Johnson v. Zerbst, 304 U.S. 458, 464 (1938).

. Consent to search is not lightly to be inferred.

Simmons v. Romar, supra; Rosenthall v. Hender-

son, supra; United States v. Como, 340 F.2d 891, 893

(2d Cir. 1965).

7. Whether consent was given is an issue of fact which

must be determined by the United States District

Court in a habeas corpus action where there is no

state court finding of fact which complies with the

requirements of 28 U.S.C. §2254(d). Rosenthall ».

Henderson, supra.

Cases collected in ANNO: VALIDITY OF CONSENT

TO SEARCH GIVEN BY ONE IN CUSTODY OF OFFI-

CERS, 9 ALR 3d 858 (1966 and 1971 Supp.) indicate

that if a defendant who has been stopped in an automo-

bile either gives the keys to the automobile to officers

for the express purpose of facilitating a search of the

automobile, McDonald v. United States, 307 F.2d 272

(10th Cir. 1962); Grice v. United States, 146 F.2d 849

(4th Cir. 1945); Robinson v. United States, 325 F.2d 880

(5th Cir. 1964); United States ex rel Anderson v. Rundle,

274 F.Supp. 364 (E.D. Pa. 1967), or tells the officers to go

ahead and search the automobile because he has nothing

to hide, Hughes v. United States, 377 F.2d 515 (9th Cir.

1967); Gorman v. United States, 380 F.2d 158 (1st Cir.

1967); United States v. Bonano, 390 F.2d 647 (3d Cir.

1968) the consent to search is valid. But, when police

officers announce that they are going to seize the auto-

mobile and the defendant then hands over the keys to it,

the consent is invalid. Weed v. United States, supra; also

see, United States v. Nikrasch, 367 F.2d 740 (7th Cir.

1966); United States v. Barton, supra.

‘Viewing the evidence in the light most favorable to the

State, petitioner did not clearly and unequivocally con-

sent to the seizure and search of the automobile. The

testimony of Deputy Lavery and investigator Mann estab-

lished, at most, that petitioner consented to their taking

of the car for safekeeping. There is no evidence

titioner consented, expressly or impliedly, to a

of the automobile for purposes of a search. All

vidence demonstrates petitioner desired that the

bile be maintained in a safe condition for the

liate or ultimate) use of his wife and family.”

fact, the arresting officers assé that they were

the automobile on a different ground—that it was

umentality used in the commission of a felony. By

te, they rejected petitioner’s alleged “consent”

. it was too limited.

Court further finds the defendant’s counsel, Mr.

rho is experienced in the practice of criminal law,

rything within his ability to protect petitioner’s

Amendment rights.

r the circumstances of this case, the Court

> that petitioner did not consent to the seizure and

ent search of his automobile.

Sourt now turns to the two main justifications as-

for the warrantless search and seizure of peti-

; automobile: (1) it was seized incident to peti-

arrest, and (2) it was seized as an instrumentality

nurder in plain view of the officers.

»olidge v. New Hampshire, 403 U.S. 443, 454-55

, Mr. Justice Stewart succinctly stated the govern-

iciple of search and seizure:

searches conducted outside the judicial process,

thout prior approval by judge or magistrate, are

r se unreasonable under the Fourth Amendment—

subject only to a few specifically established and

well-delineated exceptions.” ° The exceptions are

“jealously and carefully drawn.” * and there must be

“a showing by those who seek exemption .. . that

the exigencies of the situation made the course im-

perative.”* “[Tlhe burden is on those seeking the

exemption to show the need for it.” *

Thus, this Court starts with the premise that the war-

rantless search and seizure herein was unconstitutional,

and its fruits inadmissible at trial, unless the State can

prove that it fell within one of the well-delineated ex-

ceptions to the general rule. Each justification asserted

will be discussed in turn.

A. Search Incident to an Arrest.

In Chambers v. Maroney, 399 U.S. 42, 47 (1970), the

Supreme Court recognized that a search cannot be justi-

fied as incident to an arrest if it is not contemporaneous

in time and place to the arrest. See also, Preston v. United

States, 376 U.S. 364, 367 (1964); Dyke v. Taylor Imple-

ment Mfg. Co., 391 U.S. 216 (1968). Nonetheless, if the

vehicle is seized at the time of arrest and the circum-

stances of the arrest would have justified a search of the

vehicle incident to the arrest, a search of the vehicle

conducted at a later time and place is reasonable under

the Fourth Amendment. Chambers v. Maroney, supra at

52.

The search of petitioner’s automobile was not inci-

dent to his arrest because it was conducted at a time and

place remote from it. The question remains, could the

8 Katz v. United States, 389 U.S. 347, 357.

¢ Jones v. United States, 357 U.S. 493, 499.

™ McDonald v. United States, 335 U.S. 451, 456.

8 United States v. Jeffers, 342 U.S. 48, 51.

See Coolidge v. New Hampshire, su 403 U.S. at 481, 484;

TAlda-des aah tebe Dacian Atuiecets agicies TA un a

’s opinion at pp.

455 approvingly).

State have seized the car incident to the arrest, thus plac-

ing the search within the Chambers exception.

The rationale permitting warrantless searches incident

to an arrest rests upon the conclusion that one or both of

the following factors precluded the police from obtaining

a search warrant and made it reasonable for the officers

to search the automobile rather than obtain a warrant:

a. The circumstances establishing probable cause

for search of the vehicle were unknown to the

police prior to the defendant’s apprehension.

b. The vehicle is mobile, and if officers delay to

obtain a search warrant, one of defendant’s con-

federates will remove the automobile and pre-

vent the police from searching for the object or

objects subject to seizure.

Carroll v. United States, 367 U.S. 132 (1925); Cham-

bers v. Maroney, supra, 399 U.S. supra at 50-51.

Cases involving asserted searches of automobiles in-

cident to an arrest fall into four factual categories:

1. Defendant lawfully arrested inside an automobile

and the arresting officers had probable cause to

believe that contraband or other evidence of a crime

was concealed in the automobile.

Chambers v. Maroney, supra; Arwine v. Bannan,

346 F.2d 458 (6th Cir. 1965); cert. denied 382 U.S.

882 (1965); United States v. Dento, 382 F.2d 361

(3d Cir. 1967), cert. denied 389 U.S. 944, rehearing

denied 389 U.S. 997 (1967).

2. Defendant lawfully arrested at or near the scene of

a crime soon after its commission, and the police

had probable cause to believe that contraband or

other evidence of a crime was concealed in the auto-

mobile which was parked at or near the scene of the

crime. Other known accomplices are still at large.

—

United States v. Mazzochi, 424 F.2d 49 (2d Cir.

1970); Moodyes v. United States, 400 F.2d 360 (8th

Cir. 1968), cert. denied 397 U.S. 998 (1970); Cy.

United States v. Roth, 430 F.2d 1137 (2d Cir. 1970),

cert. denied 400 U.S. 1021 (1970); Harris v. Steph-

ens, 361 F.2d 888 (8th Cir. 1966), cert. denied 386

US. 964 (1967).

3. Defendant arrested lawfully some time after the

commission of the offense (usually a day or more)

and at a place removed from the vehicle searched.

Police had probable cause to believe that contra-

band or other evidence was concealed in the auto-

mobile. . '

United States v. Marti, 421 F.2d 1263 (2d Cir.

1970); Staples ». United States, 320 F.2d 817 (5th

Cir. 1963); United States v. Stoffey, 279 F.2d 924

(7th Cir. 1960); Williams v. United States, 323 F.2d

90 (10th Cir. 1963), cert. denied, 376 U.S. 906

(1964); Derby v. Cupp, 302 F.Supp. 686 (D. Ore.

1969); United States v. Barton, 282 F.Supp. 785 (D.

Mass. 1967); Conti v. Morgenthau, 232 F.Supp.

1004 (S.D. N.Y. 1964); Lucas v. Mayo, 222 F.Supp.

513 (S.D. Tex. 1964); Commonwealth v. Togo, 248

N.E. 2d 285 (Mass. S. Ct. 1969). But see, Drum-

mond v. United States, 350 F.2d 983 (8th Cir. 1965),

cert. denied 384 U.S. 944 (1966); McCoy v. Cupp,

298 F.Supp. 329 (D. Ore. 1969); United States v.

Francolino, 367 F.2d 1013 (2d Cir. 1966), cert.

denied 386 U.S. 960 (1967); Browning v. United

States, 366 F.2d 420 (9th Cir. 1966).

4. Defendant arrested without probable cause and

his automobile searched.

Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216

(1968).

Searches made in the first two categories have been

held to be reasonable under the Fourth Amendment.

Cases falling within the fourth category are clearly un-

constitutional because the searches were made without

probable cause. Searches in the third category have gen-

erally been held invalid.

The United States Supreme Court recently considered

a factual pattern falling within the third category in

Coolidge v. New Hampshire, 403 U.S. 443 (1970). The

facts in Coolidge are substantially identical to those in

the instant case. Coolidge was the prime suspect in a

murder investigation. Police talked with him on several

occasions. Eventually, they obtained an arrest warrant

for Coolidge and a search warrant for his automobile.

The warrants were invalid, but the officers did have

probable cause to arrest Coolidge without a warrant.

Coolidge was arrested in his home pursuant to an invalid

warrant and his automobile, which was parked outside

his home in the driveway, was seized under the invalid

warrant. The Supreme Court held that under its decisions

prior to Chimel v. California, 395 U.S. 752 (1969), which

substantially restricted the scope of searches incident to

an arrest, the seizure of the car the night of Coolidge’s

nee ee tele oes tt nent

to an arrest.

Assuming that the sie herein was lawful,” the

search of petitioner’s car was not incident to the arrest

12 The affidavit in ct the arrest warrant merely recited the

elements of degree murder. It contained no facts from

which = magistrate a that there was cause to

ent Sommsinied tae exiane: “lip was insuffi-

cient to issuance of the warrant. White v. Werden,

wi us. Sob cist): United States v. V 380 US. 102 (1965);

36 US. 528 118 (1964 z_s78 US. 108 (i964); Ruge US 257 (190087

‘ones v. ;

Giordenello v. United States, 987 US ten niabee

But the facts known to the officer, see 6-7, supra, were

sufficient to establish probable cause the areat

within the exception created by Chambers. The auto-

mobile was not in petitioner’s immediate possession or

control at the time of the arrest. Cf. United States v.

Rabinowitz, 339 U.S. 56 (1950).

Neither of the two reasons advanced to justify searches

incident to an arrest were existent. See pp. 22-23, supra.

The first condition was not met because the reasons

establishing probable cause to search the automobile

were known to officers days, if not weeks, prior to its

seizure and subsequent search. The second condition

was not met because the officers knew the whereabouts

of the car prior to its search and seizure. They could have

obtained a warrant at any time, including the morning of

October 10, 1967 or any time following petitioner’s arrest.

There was no danger a confederate would remove the

vehicle and destroy evidence. The murder occurred July

19, 1967. Petitioner was first interviewed July 24, 1967.

He was again interviewed on September 28, 1967. He

knew that he was a prime suspect when he was requested

to meet with investigators on October 10, 1967. Petitioner

had already been afforded ample opportunity to destroy

evidence. If there were any further danger that a con-

federate would destroy evidence following petitioner’s

arrest, the State had ample opportunity to obtain a search

wafrant and eliminate the risk.

The Court HOLDS that the search of petitioner’s

automobile was not incident to his arrest and did not fall

within the Chambers exception to the prohibition against

unwarranted searches. See, Coolidge v. New Hampshire,

403 U.S. supra, at 455-457, 473-484; Cook v. Johnson, No.

71-1997 (6th Cir. April 18, 1972).

B. Instrumentality.

The Ohio Supreme Court held that the automobile

was subject to seizure as an instrumentality of the mur-

der which was in plain view. See p. 17, supra. This theory

was also rejected by the United States Supreme Court

in Coolidge.

The instrumentality theory assumes that any object

used in the commission of a crime may be seized at any

time without a warrant as long as the officers have prob-

able cause to believe that the object was used in the

commission of a crime and the officers are lawfully in a

position to view the object.* See, State v. Lewis, 22

Ohio St. supra at 128-130 and the cases cited therein.

In rejecting this theory, the United States Supreme

Court held that all warrantless searches are per se un-

reasonable absent “exigent circumstances” and that when

police plan to seize an automobile prior to the time of

arrest but fail to obtain a valid warrant, the search vio-

lates the Fourth Amendment. Coolidge v. New Hamp-

shire, 403 U.S. supra at 478, 481. The police cannot seize

an automobile on the theory that it is an instrumentality

of a crime which is in plain view in calculated disregard

for the Fourth Amendment requirement that application

be made to a judicial officer for a search warrant absent

exigent circumstances."* |

The Court HOLDS that the seizure and subsequent

search of petitioner’s automobile cannot be justified on

Respondent’s contention that officers were lawfully

in the }

ence of the automobile to view its exterior because petitioner “con.

sented” to their taking custody of it is irrelevant to a determination

of this issue. Assuming officers were legally in position to view the

the grounds that it was seized in plain view as an instru-

mentality of the murder. Coolidge v. New Hampshire,

403 U.S. supra, at 464-473, 478, 481, 484; Cook v. Johnson,

supra.

There were no exigent circumstances permitting the

warrantless search of petitioner’s automobile. Therefore,

the Court HOLDS that the fruits of the search should

have been excluded from evidence at trial and were er-

roneously admitted into evidence in violation of the

Fourth and Fourteenth Amendments.

The error requires the issuance of the writ of habeas

corpus, because the Court cannot declare that the ad-

mission into evidence of the paint scrapings was harmless

beyond a reasonable doubt.” Chapman v. California, 386

U.S. 18, 21-24 (1967).

Petitioner’s conviction rested entirely upon circum-

stantial evidence. The laboratory analysis of the paint

scrapings taken from petitioner’s car and the expert’s

opinion that there was no difference in color, texture or

order of layering of the paint from petitioner’s automo-

bile and the foreign paint found on the victim’s auto-

mobile was an important link in the prosecution’s case.

The evidence was offered to prove that petitioner was at

the murder scene and had used his automobile to push the

victim’s automobile over the embankment.

Under these circumstances, the Court cannot say that

the evidence did not contribute to petitioner’s conviction.

15 The only evidence seized was the . emer nee fee

rear and left front of the automobile. Steve Molnar, Jr., the BCI

technician who seized the paint from the automobile also opened the

that he observed a

Chapman. v. California, supra; Rosenthall v. Henderson,

389 F.2d supra at 516.

Therefore, the Court HOLDS that petitioner’s fifth

claim for relief is MERITORIOUS.

Petitioner alleges that the State denied him his right

to a fair trial when the prosecutor issued a news release

announcing that the prosecution had subpoenaed Mrs.

Betty Cummins Lewis, petitioner’s “other wife,” as a

witness, but subsequently did not call her as a witness.

The evidence at the evidentiary hearing was that news-

paper articles did appear the week before the trial stating

that the State’s first subpoena was issued for Mrs. Betty

Cummins Lewis. Later, the issuance of other subpoenas

were not announced individually.

The State intended to call Betty Cummins Lewis to

prove petitioner’s indebtedness. During the trial, the

trial court admonished the prosecutor to avoid getting

into the alleged relationship between Mrs. Betty Cum-

mins Lewis and petitioner if she was called to the stand.

The State announced to the court its intention to call

her, but after a recess decided that it had already pre-

sented sufficient evidence of petitioner’s indebtedness and

did not, in fact, call her as a witness.

The Court has carefully reviewed the evidence offered

by petitioner to prove this allegation and concludes that

there was not such a probability of prejudice from the

pretrial publicity as to prevent a fair and impartial trial

by jury. See, Estes v. Texas, 381 U.S. 532, 542-543 (1965);

Sheppard v. Maxwell, 384 U.S. 333, 350 (1966). Further,

there is no evidence that the State knowingly engaged in

tactics calculated to deprive the petitioner of his right to

a fair trial. See, Mooney v. Holohan, 294 U.S. 103 1935);

Pyle v. Kansas, 317 U.S. 213 (1942); Chambers v.

309 U.S. 227 (1940); Alcorta v. Texas, 355 U.S. 28

(1957); Napue v. Illinois, 360 U.S. 264 (1959); Miller »v.

Pate, 386 U.S. 1 (1967); Brady v. Maryland, 373 U.S. 83

(1963); Giglio v. United States, —— U.S. —— (1972).

Therefore, the Court HOLDS that the sixth claim for

relief is without merit, and therefore it is DENIED.

Petitioner objects to the admission into evidence of the

hearsay testimony of Mrs. Jack Smith that she received

a call from a person who identified himself as “Rad-

cliffe.”** In State v. Lewis, 22 Ohio St. 2d 125, 131-134

(1970), the Ohio Supreme Court held that the testimony

was admissible under Ohio law to establish the fact that

the phone call was made but not to establish the truth of

the caller’s statements. The testimony was admitted at

trial for that permissible purpose.

The Confrontation Clause does not constitutionalize

the rules governing the admission of hearsay evidence.

Each State may establish its own rules of evidence. The

Confrontation Clause is not a mechanism by which fed-

eral courts propeund state court rules of evidence. Dutton

v. Evans, 400 U.S. 74, 80, 86 (1970), Cf. Spencer v. Texas,

385 U.S. 554, 563-564 (1967). A United States District

Court does not sit as a court of appeals to review allega-

tions of state trial court error. See, Reese v. Cardwell,

410 F.2d 1125 (6th Cir. 1969).

There was no violation of the Confrontation Clause.

Mrs. Smith testified under oath and was available for

cross-examination. The jury had an opportunity to view

16 At trial, Mrs. Smith testified that she had received a telephone

wha jetpeee nameey a0 Redchay of . Radcliffe.” She

over objection, tha

her demeanor and judge her credibility. This is all the

confrontation clause requires under the circumstances.

California v. Green, 399 U.S. 149, 158-159 (1970). The

truth or falsity of the extra judicial declarant’s statement

that he had examined the books, found them in A-1 condi-

tion, and was going out of town was not at issue. There-

fore, petitioner was not deprived of his right to cross-

examine the caller.

The Court HOLDS that petitioner’s seventh claim for

relief is without merit.

VOL Ix

Petitioner’s eighth claim for relief is an allegation

that the trial court erroneously admitted incompetent and

irrelevant testimony into evidence. His ninth claim for

relief is that the trial court erred in arbitrarily limiting

defense counsel in the scope of his direct examination of

a defense witness. Both of these claims for relief are

allegations of State trial court error.

Errors in the admission of evidence committed by a

state trial court, which do not violate any specific consti-

tutional guarantee, are not cognizable in habeas corpus.

See, Reese v. Cardwell, supra; Schalf v. Bennet, 408 F.2d

325 (8th Cir. 1969), cert. denied, 396 U.S. 887 (1969);

Crisafi v. Oliver, 396 F.2d 293 (1968), cert. denied, 393

US. 889 (1968); Durham v. Haynes, 368 F.2d 989 (8th

Cir. 1968); Trujillou v. Tinsley, 333 F.2d 185 (10th Cir.

1964), see also, Ballard v. Howard, 403 F.2d 653 (6th Cir.

1968); Fernandez v. Klinger, 346 F.2d 210 (9th Cir.

1965), cert. denied, 382 U.S. 895 (1965); Edmondson v.

Warden, 355 F.2d 608 (4th Cir. 1964). , |

The errors alleged in the eighth and ninth claims for

relief are of State law and they do not amount to a de-.

privation of a specific constitutional right.

Therefore, the Court HOLDS that the claims for relief

numbered eight and nine are without merit, and there

fore they are DENIED.

x ,

Petitioner’s final claim for relief is that newly dis-

covered evidence entitled him to a new trial.

This claim is a matter of State law and was fully and

fairly considered by the Ohio Supreme Court.

There is a suggestion in petitioner’s brief that law en-

forcement officers or the prosecution may have sup

pressed the potentially exculpatory evidence. See, Brady

v. Maryland, supra; Giglio v. United States, supra.

- The evidence adduced at the evidentiary hearing is as

follows. In May, 1967, Paul Radcliffe told Harrison S.

Berlin, a client, that he had been threatened by a man

with a shotgun. Mr. Radcliffe gave no details of the

threat. He did not say where or when the threat occurred.

Shortly after the murder, Mr. Berlin called the Franklin

County Sheriff’s Office and reported his earlier conver-

sation with Mr. Radcliffe. Det. Samuel Powers of the

Franklin County Sheriff’s Office received the report of

the threat. He did not consider it important because

neither the time nor place of the incident was known.

He did tell Deputy Lavery about the report, although he

could not recall whether he ever knew Mr. Berlin’s first

name.

‘On July 25, 1967, an article appeared in the Columbus

Dispatch reporting the May threat incident in detail. Jay

Gibian, ‘the newsman who wrote the article, testified at

the evidentiary hearing that he had been told of the

threat by Deputy Lavery and Det. Powers. Mr. Gibian

néver knew the name of the person who made the report

of the threat to the Franklin County Sheriff's Office.

Before trial, Paul Scott talked with Deputy Lavery

about the reported May threat on Radcliffe’s life. Deputy

Lavery told Mr. Scott that the report of the threat was

made by a person named Berlin. Lavery may have said

“Roger Berlin.” Mr. Scott testified that he didn’t believe

Deputy Lavery had attempted to mislead him.

The defense subpoenaed Roger Berlin at trial because

he would not talk to Mr. Scott prior to trial. Roger Ber-

lin was called as a witness but gave no testimony relevant

to the case. Mr. Scott then learned that Roger Berlin had

a brother, Harrison. The defense did not subpoena Har-

rison Berlin.

The Court finds that there was no deliberate misrepre-

sentation regarding the identity of Harrison Berlin as

the person who reported a May, 1967 threat on Paul Rad-

cliffe’s life to the Franklin County Sheriff’s Office. There-

fore, the Court concludes that petitioner was not de-

prived of any right under the Constitution of the United

States.

The Court HOLDS that petitioner’s tenth claim for re-

lief is without merit.

WHEREUPON, the Court HOLDS that the petition

is without merit with respect to the claims for relief num-

bered 1-4, 6-10, and therefore it is DENIED with respect

to these claims. The Court FURTHER HOLDS that the

petition is meritorius with respect to the fifth claim for

relief, and therefore it is GRANTED with respect to that

claim.

Accordingly, it is ORDERED that the writ of habeas

corpus issue ninety days after the filing of this Opinion

and Order, and that petitioner be released from custody,

unless within such ninety day period State officials initi-

ate action for a new trial of petitioner. If State officials

initiate action for a new trial, it is ORDERED that no

writ of habeas corpus shall issue.

/s/ Josepu P. Krnneary

United States District Judge

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