Bennie Joe Hayden v. Warden, Maryland Penitentiary

what occur- nature voluntariness Thus, appellant that the

red. admitted hospital in which the room door kept occurred had been

conversation testimony

open, full recol- and his showed respects in other of the incidents

lection morning involved.

and details of the ' extension, we Without further appellant has

are satisfied day proceeding full in court

this his confession, and voluntariness of the Judge, Bryan, dis- Albert V. Circuit Court was warranted the District sented. concluding that the admission his committed the

he made as to product of an over not the

bearing will, nor were the cir or his condition such as

cumstances lingering any doubt as to knowl leave understanding

edge, in re intention said and did.

lation what he case, noted,

As we have held given accordingly consideration

we light

to the situation in Miranda Arizona,

v. Jersey, New

16 L.Ed.2d Johnson v. 16 L.Ed.2d Carolina, and Davis North v. 1761, 16 737, 86 L.Ed.2d 895.

Affirmed. HAYDEN, Appellant,

Bennie Joe

WARDEN, MARYLAND PENITEN-

TIARY, Appellee.

No. 10061. Appeals

United States Court of

Fourth Circuit.

Argued Oct. 1965. April 21,

Decided Rehearing En Banc

Petition

Denied June Turnbull, Va., Norfolk,

Albert R. Fine, (Court-assigned [Fine, counsel) Va., Legum, Fine, Norfolk, on Schwan & brief], appellant. for Atty. Goldstein, Franklin Asst. Gen. Maryland (Thomas Atty. Finan, B. Gen. brief), Maryland, appellee. SOBELOFF, Before BOREMAN Judges. BRYAN, Circuit Judge. SOBELOFF, Circuit Hayden serving Appellant a sen- years Maryland tence fourteen Penitentiary, been convicted of Balti- sentenced the Criminal Court robbery City June, 1962, more hearing deadly weapon. with a After application in the District Court on his corpus, for writ of habeas denied, relief was appeal and from this action an was taken. petitioner’s con-

In this court basic tention is that certain evidence admitted product of an at trial was the unconstitu- tional search and The state seizure. that the search and the seizure maintains lawful, urges that, were further petitioner unlawful, even if waived has right in the federal raise issue object courts because of his failure trial, appeal failure to from the con- viction, appeal and withdrawal of his post- from the state court’s denial conviction relief. eight

An armed occurred at morning o’clock on the of March premises on the of the Diamond Company in cab Cab Baltimore. Two running drivers man saw a stop up, scene heard shouts “hold drivers, proceeding that man.” The cab independently, suspected followed the robber 21Í1 Lane. Cocoa One actually him drivers saw enter the house. immediately notified and in a few minutes arrived at that address. They had been offender told Negro years old, 5'8", about light cap jacket. wore a and dark door knocked at the The officers wife answered. again judge post-conviction they had denied her that information told relief, holding holdup “that the search of his in the house. There man was ques- dispute home seizure of the or not Mrs. to whether is some entry objected proper.” offi- tion were may be, several offi- cers. However this Hayden applied Thereupon, for leave floors, went all three cers entered and appeal Appeals to the Court Hayden other and when no man than Maryland. application Before his was house, found in the arrested was requested upon, however, its acted he shotgun They a him. seized sawed-off granted.1 request The was withdrawal. pistol found in and a the corpus peti- filed the instant habeas He toilet, ammunition, flush of the some tank right His tion three months to later. gray sweater, cap, found un- and a dark a Mary- appeal Appeals to the Court of of mattress, shotgun Hayden’s shells der by land now barred is time. lying drawer, a in a bureau and man’s II jacket belt, with a discover- and trousers washing machine in basement. the ed a A. We deal first with the failure however, no stolen found police, contemporan of trial to make counsel a money. objection to eous admission the were admitted items evi- seized articles. The state contends that objection by defend- dence without the object the trial failure constitutes to ant’s retained counsel. The Hayden right by of to a his waiver identity Hayden fix of used to assert constitutional claim in a fed running from man seen scene corpus proceeding. In order eral habeas Lane. crime into Cocoa preclude to the consti consideration Hayden appeal conviction, corpus his failed to on tutional claim federal habeas Mary- acting upon Hayden, the state show that confinement must petitioned Penitentiary promptly attorney, voluntarily through land he relin Mary- right by failing quished under the to ob state court relief a known ject ob land Procedure Act. Re- the failure to Post-Conviction at trial2 taking ject independent lief ade was denied without an constitutes testimony. appeal ground. Henry quate On from this action See v. State state Maryland Appeals Mississippi, Court remanded hearing evidentiary relying the case for an with L.Ed.2d 408 challenged respect 438-439, Noia, Fay lawfulness of on testimony, (1963).3 the search and seizure. After L.Ed.2d meantime, during pendency thought 1. In the could not be ex- application post-convic- of his is for state from the fact there cluded. Aside relief, Hayden testimony support tion had filed two habeas to a total absence corpus petitions hypothesis, ma- the federal District the tactical the state’s wholly Court, postulated by both of which been denied for state neuver unrealistic, lawyer to laid failure exhaust available state remedies. could have for the argument to same a foundation speculates 2. The state in its brief by jury cross-examination object the failure to tactical was a ma- argument would have officers. The part on neuver trial coun- subjecting readily available without been sel. state to him a attributes de- obviously damage to the defendant purpose liberate to allow the admission resulting of the cloth- from the admission clothing, might so that create he n ing. reasonable doubt the minds by coming jurors arguing Henry, to Su- to them that In a case usually appeal preme from a state conducted a than on more direct thorough yet conviction, search and unable to it was said: “ * * * any money. Hayden’s find stolen trial on the basis dismissal counsel, however, adequate ground not end in the District would testified state hearing case; petitioner might pursue still Court habeas did not that he ob- this ject impression in a claim was under vindication of his federal because he proceeding corpus the arrest habeas and the-search were lawful federal ground Peters, proceeded also ent state and has Dillon v. 1965). (10th question, Cir. the merits a federal it would incongruous for a federal court to unnecessary case It is ground assert the state its shut off question of whether reach question. review of the federal There voluntarily relinquished his constitution appears be no reason for federal post-conviction claim, for in state al court to refuse to vindicate a federal Appeals of proceedings the Court exacting claim more on insistence upon Maryland the failure look did not procedural requirements state than the object his constitutional as a bar to state itself court demanded. The so- the case Instead it remanded claim. independent ground, called for a determination lower court state, been simply relied ir- legality seizure. of the search relevant. Maryland Warden, Penitenti Hayden v. respect Hayden’s B. With to (1963). 613, ary, A.2d Md. prosecute appeal an failure to his from Maryland Appeals of the Court of Since ap conviction plication the withdrawal of his object interpose to as not the failure did appeal for leave from of merits consideration of the bar post-conviction decision, state the Dis issue, of state denial constitutional the post-conviction trict Court determined that no such de said relief cannot be bypass pre liberate occurred as would ground. independent state on an rest raising vent from in the federal not was therefore Court District illegal the constitutional of court issue considering constitu precluded from uphold search and seizure. We Dis question Cf. Hen on merits. its tional Hayden’s trict determination. Court’s (9th Heinze, Cir. v. 349 F.2d derson Ap letter to clerk of the Court of 1965); People State of Nelson v. of peals Maryland requesting withdrawal California, 1965); (9th Cir. F.2d application appeal of his for leave to dis (9th Rhay Browder, Cir. v. F.2d 345 ignorance plays complete both 1965). judicial process consequences and the highest court of a When the pursuing judicial not orderly his an remedies in independ- has declined to an state invoke fashion.4 Under these circuirí procedural which will not question, default an affirmative answer to as claim, preclude Henry alone consideration penetrating analysis well as a peti- at least unless it is that Mississippi Fay Noia, shown v. State of v. deliberately bypassed Ground,” Hill, Inadequate tioner the or- see “The State derly procedure courts. the state 65 Colum.L.Rev. cf. But Fay Noia, supra, U.S.] v. at Heinze, (9th [372 v. Henderson 349 F.2d 67 [83 1965); at People 822].” 379 U.S. Nelson Cir. v. State S.Ct. at California, (9th 1965). 346 F.2d 73 Cir. page page And at at Henry opinion observed: the Court letter reads : litigant’s “[It is defaults Young: settled] that a “Dear Mr. prevent proceedings in state application do “I leave rights appeal post vindication of his unless pro- federal under conviction compliance with the State’s insistence on cedure act which is No. docketed at legitimate procedural Sept, its rule serves a opinion term 1964. Since the every by Judge state interest. In we must case Sodaro is based on assertions inquire contrary whether of a testimony enforcement to the trial procedural transcript. forfeiture such a serves in the trial considering state interest.” opinion “After and the Supreme transcript Whether has fact appeal I feel that this is worth- adequate “independent abolished the opinion less since statements procedural ground” being true, being state denying as a basis are far I this so corpus again relief in federal habeas feel wiser course to refile proceedings not, in- need text will in the lower State Court and since dicate, pending For be determined in case. this can not have two actions at floor, Hayden. Learn- Dis- find error where found we cannot stances no he was the male deliber- determination trict Court’s house, him, Fay Noia, bypass. 372 U.S. arrested con- v. ate Pey- (1963); ducted search.6 The arrest and search Pruitt v. 83 S.Ct. 822 (4th ton, In Cir. lasted one hour. its extent the search 860-861 F.2d Warden, Maryland Peni- did not exceed limits tolerated 1964); broad Hunt v. (4th tentiary, Cir. in Harris United 1964). 91 L.Ed. 1399 where the Court affirmed the Ill validity of an five-hour search intensive Hayden’s peti- Turning the merits apartment, of all rooms of an four under- disagree tion, with the District we do not taken as an incident to a lawful arrest. the arrest Court’s determination brings principal B. This us to the the search conducted was lawful presented by ap substantive issue constitutionally per- thereof an incident petitioner peal. The contends that even missible. legal, if itself were the arti the search cles of Appellant not strenu A. does only” “of under legality ously arrest. contest principle repeatedly declared proba He the officers concedes Court, items felony had that a ble cause to believe the felon was been committed and that must trial. Gouled v. excluded hiding was testi in the house. There 298, 310, States, 255 S. United U.S. 41 mony on officers knocked 261, (1921); Ct. 65 L.Ed. United 647 purpose of their door and announced the Lefkowitz, 452, States v. 285 464- U.S. entry. found the Court so District (1932). 466, 420, 52 76 L.Ed. S.Ct. 877 regardless of and concluded that facts States, Abel 362 U.S. also v. United part lack of consent on the the asserted 217, 234-235, 683, 4 L.Ed.2d S.Ct. 80 Hayden to of Mrs. the entrance of States, (1960); Harris v. 331 United police, were their within 154, 145, U.S. S.Ct. 1098 legal entering pursuit” powers “hot petitioner that un maintains therefore suspected aof felon.5 643, Mapp Ohio, der v. 367 U.S. S. Although appellant concedes 1684, (1961), Ct. 6 L.Ed.2d 1081 right to conduct a search clothing admission the articles arrest, he to the lawful an incident his state trial violated his constitutional maintains its extent the search rights. constitutionally permissible lim exceeded testimony its. The showed when It cannot be doubted against officers, approximately proscription five num seizure of articles ber, man entered knew that a value is one of con suspected g., had E. run into the stitutional dimensions. Gouled v. finding suspect States, 310, 298, on the house. Not' United 255 U.S. floor, proceeded (1921); first one officer S.Ct. 261 United States Lef kowitz, 452, 464-467, basement while others went to second 285 U.S. S.Ct. my application post-convie- judge time I must withdraw same 5. The trial the state appeal. proceeding leave tion found that Mrs. sorry entry police. I to make “I am waited so late consented lawyer my up no mind but am clothing It unclear whether taken quite me time make the took some washing from the machine the base- wiser decision. procured or after ment was before Very Truly “Your In the view take of the case arrest. we Hayden” Bennie Joe /s/ unnecessary ambiguity it is resolve testimony. States, 199, 74, (1927) (1932).7 In Harris v. United 72 L.Ed. 231 48 S.Ct. 1098, (business ledger 145, 154, bills 331 U.S. 67 S.Ct. various used Vinson, relying operate illegal business); Chief Justice Gottone (10th cases, others, States, 165, said: v. United F.2d the above cited Cir.), denied, cert. 86 S.Ct. recognized frequently “This Court has (lists (1965) 15 L.Ed.2d 155 merely the distinction between evi- unexplained names and addresses with dentiary materials, hand, on the one notations, results, race track odds may under which not be seized either illegal gambling operate sheets business); used authority of a search warrant Boyette, 299 United States v. during inci- the course a search denied, (4th Cir.), 94-95 cert. arrest, hand, dent to and on the other Mooring States, sub nom. v. United objects validly may those which be L.Ed.2d 848 including the instrumentalities (1962) (guest opera checks used in the by and means mitted, which crime is com- brothel). tion of a There is no contention the fruits of crime such as by that the articles seized here used property, weapons by stolen which es- disguise. the felon as a cape person might arrested effected, property possession possession Nor did the cloth- a crime.” “continuing constitute a crime.” Examples types posses- of articles the dissenting opinions of Justices continuing sion of which constitutes Frankfurter, 155, 165-166, pp. 67 S.Ct. crime can be found in United States v. pp. Murphy, pp. 183, 187- Rabinowitz, 56, 64, 339 U.S. 188, 191, pp. 1113, (forged (1950) 94 L.Ed. 653 specifically recognized the distinction postage stamps), altered United States made between items and Harris v. United to seizure and items which 145, 154-155, (false (1947) 67 S.Ct. 1098 lawfully Thus, be seized. in the case cards). selective service No discussion is dealing with the most extensive search required to demonstrate that the Supreme Court, ever validated we was neither contraband nor the fruit find the in Justices the the crime. those in dissent unanimous in condemn- by seizures the and the later No Court ease has discussed by prosecution use the of articles clothing. of seizure Cf. Kremen v. evidentiary only. States, 346, United 828, 353 77 U.S. (1957) (indiscrimi- 1 L.Ed.2d 876 clothing way in this case in no nate seizure of the entire contents of a by constitutes the “means which a crime illegal). courts, .cabin Lower federal committed,” things is unlike the law however, have had occasion to consider fully States, taken in Abel v. United 362 subject. See Morrison v. United 217, 237-238, (1960) S.Ct. 683 States, U.S.App.D.C. 352, 262 F.2d (forged graph paper birth certificate 449, (1958) (handkerchief 450-451 con- message with coded used to conduct es taining tangible evidence of morals of- pionage activities); Zap States, v. United only” of fense “evidential value and there- 624, 328 U.S. 629 & n. 66 S.Ct. subject seizure); fore held not (1946) (cancelled United L.Ed. 1477 check Government); Lerner, used to F.Supp. 765, defraud States v. Mar ron v. United (N.D.Calif.1951) (identification 275 U.S. 198- brace- 7. proscrip- Procedure, state 41(b), may contends that be § 18 U.S.C.A. against only tion interpreted preclude seizures, the seizure of articles of such merely evidential value an exercise of Court has not relied on mere supervisory power supervisory support the federal rules to its decisions courts point, specifically and does not rise to constitutional on this grounded but has instead proportions. While it is true that Rule its decisions on Fourth 41(b) of the Federal Rules of Criminal Amendment. that concluded evidentiary court defendant. documents, “merely let, and reason- was search itself while the tending even the defend- to connect materials clothing produced able, was ar- he was crime for which ant with the only constitu- and hence concealing fugi- harboring rested” — tionally immune from seizure. constitutionally held tive —and therefore before the fact that stresses The state seizable); Rich- United States house, entering Hayden’s offi- (S.D.W.Va. mond, F.Supp. description given a brief been cers had (articles wearing apparel use- 1944) wearing, suspect was of what of the ful the identification defendant pro- clothing seized articles seizure). that But cf. held strong prosecution’s link (7th Guido, vided States v. United Hayden. potency against But the denied, case Cir.), cert 78 S.Ct. not ac- was to convict evidence (shoes of the (1958) 2 L.Ed.2d worn justification its cepted in Gouled by “the bank robber held seizable as at offense); admission. committing means” officers’ case neither In that Stephens, F.Supp. 33, 40- Trotter v. foreknowledge existence (articles clothing (E.D.Ark.1965) by prior seized, issuance nor the rapists article possession seiz- of accused judicial warrant of a search officer although able, court not advert does describing to validate item served prohibiting articles taking material. “evidential” value). U.S. at In case before us the recognize conducted the search We at introduced trial either lawful; law but the was aid witnesses their identification types of arti- imposes limitations or to create an adverse defendant agents Government cles by arguing inference consciousness of of a search execution seize either guilt from the unusual condition of the lawful with a or in connection warrant washing par clothes machine and explanation of the succinct arrest. A ticularly presence of the belt in the principle underlying was constitutional compellingly suspi trousers. However Hand: provided Learned circumstances, cious it cannot de to observe fair “[I]t garment nied the value of the by the Fourth aimed real evil only.” “evidential itself, search is the Amendment case, cited, The Richmond above 57 F. privacy which con- a man’s invasion Supp. 903, bears a remarkable resem- among rummaging about sists blance the one under consideration. against him. to secure effects There, agent a federal observed a man all, per- permitted at If the search working following at an illicit still. The much differ- haps so does not make it day agent went to the defendant’s away, since the is taken ence what purpose arresting home him if ordinarily inter- not be will person should turn out that he was the incriminate, does ested in what agent seen at the still. The made the policy in no can be sound and there arrest, and as an incident to this lawful Nevertheless, protecting does. what arrest several articles of defend- gather- upon to he limitations fruit * clothing ant’s which were later used in quest limit the ed tend to itself purpose evidence for the 911, of demonstrat- Poller, 43 F.2d United v. States clothing 1930) (2d that other at 914, found Cir. the still 1382 A.L.R. 74 added.)8 admittedly belonging (Emphasis matched that Objects approval ‘Evidentiary’ passage in Search Rule 8. This was cited with —A 319, Reason,” 56, Rabinowitz, 327 20 U.Chi.L.Rev. v. States 339 U.S. United has 6, (1950). McCormick Professor also n. S.Ct. 430 64 70 Me- Comment, praised “extensive.” “acute” and as “Limitations on Seizure 654 only, produced has if

From to time the line wavered even the search which time adjudication lawfulness of of the them was itself reasonable and lawful. Traynor searches, sharply has the Su- in no instance Chief Justice has criti- ** adherence preme in its “an faltered cized rule as unfortunate clearly legal argued absurdity” enunciated and has further the distinction so may impor- by what of such fundamental Hand between it is not may applicable in a lawful not be seized to the states what tance as to be through Fourth Fourteenth search.9 Thayer, People 63 Cal. Amendments. v. any perceive rational Nor do we 108, 635, Cal.Rptr. 780, 408 P.2d 2d 47 private papers that distinction between Weintraub, (1965).11 109 Chief Justice articles are of expressing the states while doubt character. same leeway adopt search a rule for guarantees Fourth Amendment fash- with the federal variance right people be secure “[t]he Court, reasoned ioned houses, papers, persons, in their heels worn that shoes with distinctive against searches unreasonable effects committing an arm- while the defendant seizures, not be violated.” shall instrumentality ed Papers (Emphasis added.) evi for and could be searched the crime and im the sole items dential value specifically de- seized under a warrant mune from seizure.10 Bisaccia, scribing 45 them. State v. judges Directly We are mindful that eminent 504, (1965). A.2d 185 N.J. 213 challenged correct- rule, confronting scholars have the mere pre- rule that argues cogently ness and wisdom Chief Weintraub Justice and admission evi- cludes the seizure “things in- for their be seized value dence evidential culpatory a search alone and that 1(b), p. Evidence, 139 n. authority § Cormick In state such a distinction. Comment, “Eavesdropping But cf. jurisdictions, well federal Amendment,” 66 against and the Fourth Orders proscription of articles 355, (1966). proscrip having only Columb.L.Rev. 367 value is a grounded Amendment. tion on the Fourth 298, States, 255 See Gouled v. United U.S. it abundant Court has made 310, (1921); 41 261 Marron v. S.Ct. ly process clause of the clear that the due States, 198-199, 192, 275 48 United U.S. requires that all Amendment Fourteenth (1927); v. Lef S.Ct. 74 United States in violation of the Fourth evidence seized kowitz, 452, 464-466, 52 S.Ct. 285 U.S. Amendment be excluded at state shall (1932) ; States, Davis v. 328 United Ohio, v. trials. See Beck State 1256, 582, 587-589, U.S. L.Ed. 66 S.Ct. 223, 85 S.Ct. 13 L.Ed.2d U.S. States, (1946); Zap v. United (1964) Texas, ; Aguilar v. State of (1946); U.S. 66 S.Ct. 1277 12 L.Ed.2d U.S. S.Ct. 145, 154, States, v. Harris United 331 U.S. Comment, (1964) ; “Search and Seizures (1947); Trupiano v. United 67 S.Ct. 1098 to Or. of ‘Mere Evidence’—Amendment States, 334 U.S. on Prior Rev.Stat. Sec. 141.010—Effect (1948); L.Ed. States United Constitutionality,” Law 43 Or.L.Rev. Rabinowitz, 56, 64, v. (1964). 346-349 Cf. Ker State (1950); Abel v. United California, 23, 34, 217, 234-235, (1960) ; 80 S.Ct. 683 1623, 10 L.Ed.2d 726 Shellow, Continuing Vitality “The Gouled Rule: The for and Seizure Search though Traynor, express Justice Chief Marq.L.Rev. Evidence,” of 48 175 rule, of the doubt as to the wisdom (1964). records under con held that medical argues exclusionary actually state that instruments sideration were applicable by Mapp billing rule made for welfare to the states crime—fraud in Ohio, characterizing disputed U.S. services—thus (1961), traditionally applied rec should be to items within a records as subject pursuant search, ognized category seized As to an to seizure. unlawful things illegally already pointed out, main and not to in the it cannot be ap of a course search which is itself not un- this characterization could tained that ply lawful. or in our case. We find no basis reason depart posi- valid, long fit from its oft reiterated as so it is to to end ** judges tion, of subordinate courts otherwise unreasonable obligated adhere it. to to staunch an ex- A.2d at 193. Even so ponent Pro- of “individual liberties” outlined, For the the order reasons rule as fessor Kamisar has criticized the District must be reversed and Court Kamisar, “unsound and undesirable.” case with to remanded directions Safety “Public v. Individual Liberties: grant corpus dis- the writ of habeas and ” ‘Theories,’ and J.Crim. Some ‘Facts’ charge petitioner unless the state L., (1962). C. & also P.S. See retry will him within a time. reasonable Comment, “Eavesdropping and Orders Reversed and remanded. Amendment,” the Fourth 66 Colum.L. (1966). Note, Rev. But cf. Judge BRYAN, ALBERT Y. Circuit “Evidentiary The Rule and Searches: (dissenting): Reason,” (1966). 54 Geo.L.J. 593 Judge’s Because the District conclu- practical prob aware Judges, irrefutable, sions are for me I cannot by police prose officers and lems faced join overturning decision, notwith- performance du cutors in the their standing trenchancy of the mightily ties, strained to have sometimes opinion. altogether untenable, I find exclusionary of the overcome the effect here, the circumstances its determinative by stretching rule mere evidence jacket truck basis: driver’s and category point “in distortion the petitioner Hayden trousers worn crime,” in strumentalities order when he committed the un- of ar achieve the admission in evidence lawfully seized because were “of only. manifestly of ticles only”, evidential value and so ad- Guido, example, For in United States v. missible at his trial. (7th Cir.), denied, cert. and rule of search sei- The evidential S.Ct. it was in other situa- sustained zure has been broadly shoes declared could be setting inapposite in the tions instrumentality crime, for a robber facts, preliminary un- of this case. hardly escape could if he was facilitate now, the Dis- questioned were stated “fleeing barefooted from the scene of follows: trict hold-up.” 251 F.2d at 4. While particular may result in a case not be 16, 1962, a March “On or before unreasonable, hardly squared it can be Hay- Miller man named delivered pronouncements with the shotgun P .38 den sawed-off Note, “Evidentiary Court. Search Hayden acquired Luger pistol, Reason,” es: Rule and the 54 Geo. through some am- Miller otherwise (1966). L.J. n. 106 weapons. (sic) both muntion recognize with armed on March While we rationale About 8 a.m. immunizing pistol perhaps also with from ar- only evidentiary gun, Hayden Mc- E. struck Charles ticles value has been pistol vigorous debate, on the head with we do not Guirk liberty f363, which he him of feel to abandon so robbed some doctrine cage firmly just cashier’s from obtained established Company. thought timely Two Cab decisions.12 It the Diamond Hayden running expose saw doctrine to re-examination cab drivers crime, looking reinterpretation, back to for- with view the scene gave shoulder; mulating sufficiently guidelines flexible over his pro- alarm, him endangering of them without constitutional both followed However, home at sees several blocks tections. unless the Court seizing impropriety putting 29 L.Ed. 746 12. The items of Boyd States, 116 traces back v. United Lane, clothing Koko luhich one the driv- house. The seizure of [sic] the oc- felon, ers saw him enter. Diamond Cab in curred the and hunt for hue the dispatcher reported police money, pistol to the what as for well the the and shotgun. and he had learned from the the victim had over radio what he learned the Obviously using he was his home as a cab drivers. This in- one hideout. Not until the search of after relayed police formation was over the felon, the cellar or basement patrol cars, radio to a number of found, when the was or was promptly, came to Koko Lane [sic] Hayden could be accused. Not until in some less than five minutes after then were the assured no Hayden had entered the house. One other man was in the house. On this drivers, parked the cab who had point, the District found: the corner 2111 Koko [sic] nearest “Hayden feigning' sleep in the was Lane, pointed out to the officers room on the second floor. Two back entered; Hayden house which had question- or three officers roused door, officers knocked at the which was him, who ed and when officers opened by Hayden; they Mrs. told searching the and the were first floor they looking her that were for a rob- reported no other man was cellar reported ber was who to have entered house, they in the arrested him. At house, they and said would like to one of the officers about the same time speak to her husband and search the adjoin- in toilet noticed that objection. house. She offered no running was continu- bathroom ” * ** (Accent added.) shotgun pis- ously, and found the validity entry As the of the officers’ flush tank. tol immersed in the clip search of the house are uncontested officers found a of ammunition uncontestable, pivot pres- cap pistol, a sweater Hayden’s bed, ent decision is the seizure of the cloth- mattress of under ing. Hayden escape shotgun ran “hot” home for the in a ammunition pursuit by persons had who been at the in room. bureau drawer go Meanwhile, scene of the and saw him in officer who was They dutifully searching the house. were and law- for a man or the the cellar’ fully attempting apprehend money jacket him. and trousers found a initially type fleeing While the were not in the man was said chase, they joined worn, while it was still belt with a leather still cry. they Hayden (Ac- washing full place, Had collared machine.” be- threshold, added.) he crossed fore or after- cent undressed, wards before but he conclusively finding While demon- unquestionably clothes he could wore un- strates the arrest was not made have been introduced in as iden- clothes, til seizure of the after purposes. tification or for other Rob- times of the two incidents relative are U.S.App.D.C. inson v. United important not critical. The fact 283 F.2d 508 How these tracking the seizure was made instantaneously immunized collecting evidence, felon and not in by his disrobement is unclear to me. precept would basis holding authority enforce. No cited garments These were clues in a hunt for a that an article seized whereabouts the robber. The criminal is inadmissible because it is “of they did not know knew his only”. Nor is the item pursuit, they attire. In fresh knew that untouchable because found in rendered sought asylum robber quest quarry’s home. refuge house; did not know the fugitive Again, Hayden’s was his home. As discard conceal- sight entry, obliged on their in which he had the habit been ment throughout to undertake a manhunt observed on the street were indicative himself as the rob- secreting eliminate flight. nudeness to guilt as was his merely proof They bery suspect. are not anywhere house of himself in the —in They establish his attic, bedroom, identification. basement, or on the closet offense; perpetrate preparedness to provable incriminat- be as roof —would they his alibi. belie ing Had he a different conduct. donned cap- garb disguised himself to avoid or employed to be thus If nakedness can certainly ture, the dissemblance would guilt, surely raise a doubt reasonable proof proof open be at trial. by production of the refuted it can be production of the clothes would include ran. when he clothes he wore robbed as he re- he hid as which well those not, impede a identification If then to appeared. immediately only strip need criminal Indeed, door. his front frequently after he is inside Deceptions speak force- as Court, ruling need he words, surely under fully a as whatever Left to hide his clothes. not bother fugitive is said to mislead the officer they plainly visible, be would not against still Simply him. be- fair evidence of “evidential for would be touchable occur in the cause the conduct or words only”. ad- home does bar their accused’s not designs to thwart mission. Devices agree I cannot release or never, my or have arrest conviction simply re-trial because clothes were knowledge, as evidence been excluded in evidence. admitted against the schemer. Rehearing Finally, important, a On Petition the cloth- and most something En Banc was seizable as used coneededly crime, the commission Judge: HAYNSWORTH, Chief recognized exception against a rule join my denying I brothers in an order only. Pretending petition rehearing banc, en but I finally asleep, be when discov- advantage take occasion for Assured- ered undressed and abed. explanation. word of ly, purpose was to show that he was question equipped crime this case commit a has been the subject only cab terminal a few minutes before extended debate within the city away. court. Bell and were and several blocks He thus I not mem- panel originally apparel it, bers of heard made the issue whether participated actively which' he had been but we have seen was aid —a in the result, apparent discussion. means an instrument —in his criminal As a it act. of the court apply view that we are bound to Examples personal effects convert- “mere evidence” because implements ed into of crime would be language employed broad the Su- eyeglasses by. an he worn accused when preme opinions holding in those crime, ap- committed a but not found on private papers could prehension, later without which he been classed as instruments the crime see; or demonstrates he artificial cannot are not to seizure. hidden, time, limbs worn at the later Nevertheless, which he cannot walk or and without think that lan- virtually weapon. guage employed handle This was Court has reasoning Guido, light in United States v. it has must read in of what 1958), (7 Cir. cert. den. 356 nor in in what has held held. Neither it 915, treating shoes I find an what it has said can inexorable an instrument of the crime. command that we hold inadmissible these reasonably course This is in no to declare sense clothes of a reasonable search. qua Here, to be of crime. clothes tools prohibits category repeat, put The Fourth Amendment unreasonable, those seizures that are on' his accused’s reliance near- nothing prohibits searches that are I find unreasonable those thing say majority’s preference one unreasonable. It is that the diary containing but, of a incrim- deal with matter a until it inating explicitly, as is a entries is unreasonable so think subordinate does I objective as its the discov- courts are free to search ery seizures declare of such a document. such and the seizure as these to be reasonable prohibited Merely Fourth and and not unconstitutional. be- Each quite difficulty stretching It is an- cause of in Fourteenth Amendments. term thing however, say, encompass tan- other “instruments of the crime” to gible them, in the course I do articles discovered not think immune are sanctity a from reasonable search have reasonable seizure in course readily private papers if cannot be lawful search. The fact that articles incriminatory classified as instruments or fruits of are has never itself cap objection crime. An accused’s on his head been an to their seizure. sanctity, his shoe on his foot has no such court, however, A and, my view, acquire such articles of the view that we not consider the person from when removed none question Since, informally, unsettled. placed in If his closet. the shoe is useful thoroughly the entire court has can- comparison footprint with the which vassed our freedom to follow our own culprit left when he fled the scene notions, unlikely it is most that a re- crime, cap or if is useful in resolv- hearing any en bane would serve useful ing the identifi- uncertainties visual purpose whatever. It is for that reason cation, immunity an neither should have join denying peti- I the order from seizure when discovered in the tion. course of a reasonable and lawful search. proscription With the amendment’s

unreasonable searches unreasonable mind, nothing find

seizures can

what the Court has done and requires rejection

said which

evidence of these articles of

reasonably seized in the course of search, which, concededly, was reason- COMPANY, UNITED STATES LINES able and lawful. We are not instructed Appellant, apply underlying reason- ableness in an unreasonable manner. Stevedoring Rufus KING and Southern Corporation, As the standards for the Appellees. admission undergoing continuing confessions are process No. 10181. stiffening, ad- are Appeals United States Court of place greater dependence monished to Fourth Circuit. upon their resources scientific inves- Argued Feb. tigation. impression Make Decided June footprint scene, they discovered at the told, prepared

are to make exten- laboratory analyses

sive of the dried investigatory

blood on the shirt. Such

procedures use, however, be of will little investigators rea-

unless afforded a opportunity possession

sonable to obtain comparison

of the shoe for im- with the

pression bloody and of shirt for labo-

ratory analysis.

Case Details

Case Name: Bennie Joe Hayden v. Warden, Maryland Penitentiary

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jun 3, 1966

Citation: 363 F.2d 647

Docket Number: 10061_1

Court Abbreviation: 4th Cir.