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UNITED STATES EX REL. DAVIS v. JENNINGS

June 9, 1976

UNITED STATES OF AMERICA ex rel. CURTIS DAVIS, Relator
v.
WILLIAM JENNINGS, Acting Warden, Respondent



The opinion of the court was delivered by: HIGGINBOTHAM, JR.

 A. LEON HIGGINBOTHAM, JR., J.

 INTRODUCTION

 In his original petition for a writ of habeas corpus, filed December 17, 1974, the relator, Curtis Davis alleged that he was being unlawfully held in custody on three grounds: (1) evidence seized and used against him at trial was obtained as a consequence of an unlawful search and seizure; (2) identification testimony based on an illegal lineup was introduced against him at trial; and (3) he was denied a full and fair hearing at the Post-Conviction Hearing Act proceeding in the Pennsylvania courts. With regard to the first ground, he alleged that on the night of October 23, 1968, Chester, Pennsylvania police seized his automobile and conducted a warrantless search of it; that during the search the police seized pay stubs which allowed them to determine the address of his girl friend; that a search warrant for his girl friend's apartment was executed the following morning; and that evidence seized at the apartment and testimony about the seizure of his automobile were offered against him at trial. With regard to the second ground, he alleged that on January 23, 1969 the trial judge, though he suppressed a lineup in which relator appeared because relator was not represented by counsel, nevertheless permitted witnesses present at the lineup to identify the relator at trial; and that another judge in a different case ruled on March 25, 1969 that the testimony of witnesses present at the lineup was tainted by the lineup and, further, that police had improperly influenced the identification of relator at the lineup. With regard to the third ground, he alleged that the trial judge at his Post-Conviction Hearing Act proceeding on March 12, 1971 precluded him from contesting the legality of the search of his girl friend's apartment, and from cross-examining the detective who seized and searched his automobile on October 23, 1968.

 On January 15, 1975, this Court approved and adopted the report and recommendation of United States Magistrate Richard A. Powers III, who had concluded that relator's third ground for habeas corpus review was meritorious and required this Court to accord relator a full, fair and complete hearing pursuant to 28 U.S.C. ยง 2254(d). As part of its January 15, 1975 Order, this Court scheduled such a hearing, which was eventually held on April 22 and 23, 1975. *fn1"

 Prior to the hearing, relator moved for leave to amend his habeas corpus petition. In that motion, relator raised an additional ground for relief, namely, the alleged denial of his right to counsel and to confront the witnesses against him at his original trial for robbery. *fn2" Specifically, relator states that prior to the start of that trial, he informed the court that he did not wish to present a defense; that, during a colloquy with the court, he agreed that he intended to rely on his constitutional rights and that his counsel would deliver a summation to the jury on his behalf; that the court did not adequately determine whether this original waiver of counsel's assistance was knowing and intelligent; that the court did not adequately determine whether relator's subsequent waiver of speeches to the jury by his counsel was knowing and intelligent; and that relator's counsel failed to raise several important issues in relator's behalf.

 At the hearing on April 22 and 23, 1975, relator was given full opportunity to present evidence on his constitutional claims. After reviewing all of this evidence and after examining the entire record of the state court proceedings in this case, I have concluded that relator has failed to prove a violation of his federal constitutional rights. Accordingly, for reasons that will hereinafter appear, his amended petition for a writ of habeas corpus will be denied, and will be dismissed with prejudice.

 I. The Search and Seizure Issue

 Realtor's first claim for relief is based upon the alleged illegality of a search and seizure of his automobile on the night of October 23, 1968. The state court record, the testimony given at the habeas corpus hearing and the exhibits presented during the hearing reveal that the claim is without merit.

 On the night of October 23, 1968, three gas stations in Chester, Pennsylvania were held up by an armed robber within the same approximate one hour period, from 9:30 P.M. to 10:30 P.M. Witnesses at all three robbery locations described the robber to Chester police in substantially similar terms. A witness to the second robbery saw the robber leave the scene in a red and white 1960 Chevrolet. A witness to the third robbery saw an automobile of the same color, year and make, driven by a woman, in the vicinity of the robbery location just prior to the robbery. Approximately 15 minutes after the third robbery, Chester police located a red and white 1960 Chevrolet parked at Third & Flower Streets in Chester. The automobile's engine was still warm. It bore only temporary registration tags, so that its owner could not be identified through the Pennsylvania Bureau of Motor Vehicles until the following morning. The witness to the third robbery identified it as the vehicle he had seen just prior to the robbery. A search of the immediate area failed to locate the owner. *fn3" After arranging to have the automobile towed away and impounded but before the tow truck arrived, Chester police conducted a warrantless search of it to ascertain the identity of its owner. They found two pay stubs in the car, one belonging to relator and the other to Elizabeth Lewis, his girl friend. A search warrant was subsequently issued for Ms. Lewis's apartment. When it was executed, police seized items that were eventually used against relator at his criminal trial. Relator now challenges the warrantless search of his automobile and the subsequent search of Ms. Lewis's apartment as violative of his Fourth and Fourteenth Amendment rights.

 In my judgment, the ultimate resolution of this claim by relator is controlled by Chambers v. Maroney, 399 U.S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975 (1970). *fn4" There, after reviewing a series of "automobile search and seizure" cases and noting that, if a search warrant has not been issued, "[only] in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search," id. at 51, Mr. Justice White said that:

 
For constitutional purposes, we see no difference between 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.

 In the instant case, the two requirements for a warrantless automobile search -- (1) probable cause, and (2) "exigent circumstances" -- are clearly satisfied. *fn5" On the basis of testimony by eyewitnesses, the police had reason to believe that relator's automobile had been used in the commission of one or more felonies, a fact that alone would justify seizure of the vehicle as evidence. The police officer who seized and searched the automobile reasonably believed that its owner was responsible for three armed robberies in the preceding hour and a quarter. The car was parked on a public street, with its engine still warm. Neither its owner nor his car keys were in police custody; the police did not even know who the owner was. Finally, the police had no assurance that the holdup man had ceased his illegal activity for the night. In light of all these facts, which establish the existence of both ...


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