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UNITED STATES EX REL. JENKINS v. BOOKBINDER

September 27, 1968

UNITED STATES of America ex rel. Robert JENKINS
v.
Saul BOOKBINDER



The opinion of the court was delivered by: TROUTMAN

 TROUTMAN, District Judge.

 Relator has collaterally attacked his conviction and sentence in the State Courts by way of the Post Conviction Hearing Act, 19 P.S. ยง 1180-1 et seq. He was denied relief by the lower court which was affirmed on appeal to the Superior Court and the Supreme Court denied allocatur. In this habeas corpus petition he seeks to have the convictions set aside because they resulted from the following alleged violations of his constitutional rights:

 1. In violation of due process the trial court admitted into evidence a "tacit admission" by realtor of a fact vital to the proof of the prosecution's case;

 2. Relator was seized and searched without sufficient probable cause;

 3. The convictions so lacked evidentiary support as to constitute a denial of due process.

 The Commonwealth was ordered to show cause why a writ of habeas corpus should not be granted and the Clerk of the Quarter Sessions Court was ordered to produce the record of the State Court proceedings in this Court. After an examination of the State Court record we have concluded that the merits of relator's contentions may be disposed of without the necessity of conducting an evidentiary hearing in this Court.

 The testimony at the trial reveals that upon receipt of a radio call at approximately 2:10 A.M. two police officers of the Philadelphia Police Department went to the parking lot of the Sheraton Hotel at 39th and Sansom Streets, Philadelphia, Pennsylvania. When they arrived on the scene they observed relator standing near a fence which encircles the lot. They observed no one else in the vicinity. As they approached, relator began walking from the fence and away from the parking lot. They stopped relator and a search along the fence disclosed that at the point where relator had been standing there was a suitcase and a black portable typewriter in a case. At this time the officers were approached by an unidentified man who in relator's presence informed them that he had seen relator get out of a 1958 Plymouth automobile which was then parked in the 3900 block of Sansom Street. Relator neither admitted nor denied it. The officers proceeded to the 1958 Plymouth and observed a tan suitcase and a briefcase in the rear seat. They then searched relator and found a set of keys that fit the ignition and trunk of this car. The arresting officer took relator into custody as well as the items found along the fence and in the rear seat of the Plymouth.

 A police detective then testified that subsequent investigation established that the 1958 Plymouth was a stolen car and none of the items found in the car were left there by the actual owner. He also testified that the items found along the fence and in the rear seat of the Plymouth were stolen from automobiles owned by residents of the Sheraton Hotel and parked in the Sheraton Hotel parking lot. In each instance access was gained to the interior of the automobile involved by breaking the vent window. The testimony of the owner of the 1958 Plymouth and the owners of the other items stolen was corroborative of the testimony of the police detective regarding his investigation.

 1. Tacit admission

 Relator contends that the admission into evidence of the hearsay statement of the unidentified man and the use of his failure to respond as a tacit admission of the contents of the statement was violative of due process. *fn1"

 In support of his contention that the use of his tacit admission was violative of due process relator relies upon the decisions of the Third Circuit in United States ex rel. Staino v. Brierly, 387 F.2d 597 (3rd Cir. 1967) and United States ex rel. Smith v. Brierly, 384 F.2d 992 (3rd Cir. 1967). In both Staino and Smith the Court held that the use of a tacit admission in a criminal trial is violative of due process only where its use is fundamentally unfair. Although the Court did not isolate those instances in which the use of tacit admissions would be fundamentally unfair, it did stress several factors - the fact that the tacit admissions were vital to the prosecution's case, *fn2" the presence of a warning of the right to remain silent given prior to the failure to respond *fn3" and the fact that the individual was being subjected to custodial interrogation by the police at the time of the tacit admission *fn4" - as indicia of when a tacit admission is fundamentally unfair. None of these factors are here present.

 The statement of the unidentified man, along with the other things then known to the police officers, certainly justified them in investigating the circumstances surrounding the car in question. When they did so they observed that the vent window was broken, that there was a tan suitcase and a briefcase in the rear seat and that keys found on relator's person fit the trunk and ignition. These factors even without the use of relator's failure to respond as a tacit admission, were sufficient to connect relator with the car in question so as to make out that element of the prosecution's case. *fn5" Furthermore, relator was not warned of any right to remain silent so as to induce him to tacitly admit that he did get out of the car. Nor was relator being subjected to custodial interrogation by the police at ...


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