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UNITED STATES EX REL. ANDERSON v. RUNDLE

September 29, 1967

UNITED STATES of America ex rel. Henry L. ANDERSON
v.
Alfred T. RUNDLE, Supt.



The opinion of the court was delivered by: BODY

 BODY, District Judge.

 After waiving his right to jury trial, relator Anderson was tried in the Court of Quarter Sessions of Philadelphia County and convicted of the felonious possession of narcotic drugs. He was sentenced to serve not less than two and one-half years nor more than ten years. The conviction was affirmed on appeal, *fn1" and Anderson was confined in the State Correctional Institution at Graterford to commence service of his sentence. Pursuant to an order entered by this Court on July 13, 1967, he was granted a federal habeas corpus hearing.

 The issues now before this Court have been fully raised and decided adversely to the relator by the state courts on the trial and appellate levels. State remedies have thus been effectively exhausted. Brown v. Allen, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469 (1953).

 Relator's petition is founded on two contentions: (1) that Anderson was illegally arrested without probable cause at some point in time before the search of his automobile, and that the evidence produced by the subsequent search was thus the "fruit of the poisonous tree" and should have been excluded at trial under the rule of Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); (2) that Anderson's alleged consent to the search of his automobile did not constitute a knowing, competent, and voluntary waiver of his right to be free from a search and seizure violative of the Fourth Amendment. See Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938).

 At the relator's hearing before this Court, the evidence presented consisted solely of the record of all the state proceedings related to his conviction. From that record the following facts appear:

 Upon request, Anderson gave the officers his driver's license and operator's card. Anderson's passenger had no identification, but alleged he was a garage attendant and intended to return the car to the garage after leaving Anderson at home. While one officer was examining Anderson's cards, the other officer shone his flashlight into the car. He then recognized Anderson as a "known narcotics man" from a photograph of the relator on the police bulletin board. The officer shone his light on the floor of the car to see if Anderson had a bottle of alcohol "or anything else" hidden there. The flashlight beam revealed a cylindrical package wrapped in brown paper partially protruding from beneath the front seat. Having recognized Anderson as a "narcotics man", the officer suspected that the package contained narcotics paraphernalia.

 Neither Anderson nor his passenger testified either at the trial or in the hearing before this Court. According to the officers' trial testimony, they informed Anderson that they recognized him as a "narcotics man", and asked him to accompany them to the district police station for further investigation. They did not charge him with any crime, nor did they formally place him under arrest. The state trial court and appellate court found that Anderson consented to the policemen's request and voluntarily drove to the police station for further investigation. One officer rode with Anderson and his passenger, the other officer followed in the squad car.

 Anderson locked his car when he arrived at the district police station. Approximately five to ten minutes after Anderson's arrival at the station, the police officers asked him for permission to search his car. There is no evidence nor does the Commonwealth of Pennsylvania claim that the officers informed Anderson of his constitutional right to be free from an unreasonable search and seizure or that any evidence found in the car might be used against him at trial. Anderson allegedly granted the officers permission to search his car, and gave them his car keys. He accompanied them to the car where he participated in their search by assisting them in removing the hubcaps from the tires. The policemen unlocked and searched the car; found and opened the plainly wrapped package; and discovered the contents to be narcotics paraphernalia and three bags of white powder. Anderson at no time objected to the search. He claimed he did not know how the package got under the front seat of his car.

 After opening the package, the officers called in a narcotics analyst; the analyst found the powder to be a mixture of heroin hydrochloride, quinine hydrochloride, and reducing sugar. The policemen then formally charged Anderson with the felonious possession of narcotics and placed him under arrest at 5:55 A.M., three hours and fifty minutes after they had originally signalled him to stop his car.

 1. ILLEGAL ARREST

 The relator contends that prior to the search of his automobile at the police station he had already been arrested; that the arrest was not authorized by a warrant nor founded on probable cause and was thus an illegal seizure; and that the evidence produced by the subsequent search was therefore the fruit of an illegal seizure and should have been excluded at trial. See Wong Sun v. United States, supra.

 Whether Anderson consented to the search of his car will be considered in part two of this opinion. For part one purposes, we will deal only with the legality of the interrogatory detention prior to the search. We note that after the search, the narcotics which were discovered gave the officers ample probable cause to believe Anderson guilty of a crime and to make an arrest. Therefore the question now presented is whether Anderson was illegally detained prior to the search.

 We hold that relator Anderson was never detained illegally. Our holding rests on two independently adequate conclusions: first, we conclude that the state court's finding that Anderson consented to the investigatory detention and that therefore his liberty was never restricted against his will is adequately supported by the evidence in the record; second, we conclude that even if Anderson submitted to investigation involuntarily, he was not "arrested" until after the ...


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