Caver v. Kropp
306 F. Supp. 1329
E.D. Mich.
1969
Check Treatment

*1 bar, employer failed at In the case go the evidence. forward with CAVER, Petitioner, Carl cross examination his rested on he could to show failed defendant which George KROPP, Warden, A. Prison State station, gasoline other or had at the work Michigan, Respondent. of Southern follow light It must work. available Civ. A. No. 33418. intellectual his within

this means work ability. United States District Court physical as aswell Michigan, E. D. D. S. of train man reason aWhen Nov. 1969. longer ing capacity and education is Rehearing Denied Dec. necessary job, it then is to find a able point employer out where for the jobs are. those Alden Glen in Unora v. As stated 107: Co., 104 at 104 A.2d

Coal Pa.

“Thus, of total dis- the determination requires consid-

ability one is ** * weighing eration mental claimant’s as the

such factors outlook, background, his industrial his any, he education, occupation, if particular perform his where

could impairment not be a

physical would bar, such work and whether

total injured person can Where exists. job, one only specially-created handle light responsibility but of effort and * * * rest and comfort

laden with defendant-employ- burden is on the job er to show that such fact proof reach. within If fact presented, then the claimant

is not finding total dis-

is entitled to a supplied) ability.” (Emphasis meaningless incapacity be

Total would consideration

if such divorced context. within this evaluated testimony bar, In the case at Corpora- plaintiff, Perini

shows

tion, to the claim- offered no such work elsewhere. nor available

ant suggest nothing record to There is physical in-

that work within powers of claimant this

tellectual to him.

available plaintiff meet failed to has ruling proof. It is the

its burden of compensation or

of this court that complained in accordance with

der of is

the law.

Judgment for the defendants. hereby

complaint dismissed. *2 highly upset to

became and started stut- response In to the ter and stammer. Ser- geant’s petitioner question, him told that envelopes “payroll contained checks.” Pontiac, Mich., Sergeant Henry, to that the for Widner was able tell Milton R. envelope payroll plaintiff. did not contain checks. opened envelope an found heroin. and Gen., Kelley, Atty. Frank J. J. Ronald suspi- petitioner on While was arrested Atty. Gen., Lansing, Kaplansky, Asst. assault, rape attempted and at- cion of Mich., for defendant. robbery, brought tempted he was never charges. to trial on these OPINION AND ORDER provides Amendment that The Fourth LEVIN, Judge. THEODORE District people from unreasonable shall be secure petition a This is a for writ of habeas Mapp Ohio, searches and seizures. corpus. Petitioner was in The convicted 1684, 1691, 643, 655, 6 81 S.Ct. 367 U.S. City Recorder’s Court of the of Detroit (1961), the Court L.Ed.2d 1081 violating laws, of the state narcotics “that all evi United held of the States August 22, was sentenced on to 1967 ten by and seizures obtained searches dence twenty (10) (20) years’ imprisonment to is, by of in violation the Constitution Michigan, in the State Prison of South- authority, in a inadmissible that same Division, Jackson, Michigan. ern at Pe- long been establish It has state court.” alleges titioner that his current detention carry a permissible out to that it is ed constitutionally defective, insofar as a incident to lawful search warrantless evidence used to convict him was received scope a search ex The of such arrest. objection, over his in violation of the weapons, which instruments tends to might Fourth Amendment of the Constitution escap person in assist the accused of the United States. crime, imple ing, the fruits of the evidence connect 28, of the crime and A.M., On ments pe- October 1966 at 11:30 Agnello v. United the crime. sitting a ed with titioner and parked friend were in a 4, 20, 30, States, 70 46 269 S.Ct. U.S. car in the northwest section of States, Detroit, 145; 376 Sergeant United L.Ed. Preston v. Widner and Officer 364, 881, 11 L.Ed.2d 777 patrol 84 cruising Maisano U.S. S.Ct. were on Penitentiary Warden, (1964); Sergeant Md. area. Widner testified that “we 1642, 18 Hayden, pulled alongside U.S. S..Ct. a car and I noticed However, search “a [petitioner], L.Ed.2d 782 defendant the driv- inception may er, at its is reasonable had which on his scar cheek and that he by virtue Fourth Amendment description fitted violate the subject of a that scope. intensity and seeking we intolerable were of its * * for an assault and at- * tempted scope must rape be happened The of the day pre- that by’ ‘strictly justified cir tied to and produce vious”. Petitioner was asked to registration initiation rendered its cumstances which for the car and was un- Ohio, permissible.” 392 U.S. able to step do so. He was asked to out 20 L.Ed.2d 18, 19, placed 88 S.Ct. car and was under arrest. (1968), therein. cited and cases Sergeant Widner was unable to recall opened, if he petitioner envelope informed the that he At the time attempted rape. under arrest for car and in the scout petitioner He did was seated petitioner not in question ask envelopes were about the offense. all of Following arrest, Sergeant. en- Sergeant The possession of the petitioner five transparent. searched The velopes and found five two- inch of 308.6 envelopes total envelopes three-inch contained what appeared average approx- large to him grains an be of heroin or amount of grains per money. enve- Sergeant (62) imately sixty-two testified approximately envelopes, lope equivalent he petitioner when found which arrest, Sergeant supra. As an incident of envelope. per tablespoon one only may “looking for for officer conduct a search that he was testified Widner incriminating weapons, escape instruments weapon or any offensive de- fruits or of the crime evidence taken should be articles making had a he is the arrest. before [petitioner] fendant However, he dispose of them.” chance Peters v. New relies on that there tell he could testified York, 40, 48, 392 U.S. S.Ct. *3 envelope. also testi- weapon no (1968). in Pe- L.Ed.2d 917 The search looking the for not he was that fied arrest, ters to which was was incident an rape. attempted of of the crime fruits burglary. suspicion The of- based on of weapons, “patted for be- ficer Peters down connection no reasonable is There pock- charges object the ba- a in his formed and discovered hard which the tween thought object possible con- The that the and et.” might officer arrest the for the sis Terry object envelopes. v. The have been a small of the knife. tents facts, petition- opened opaque Ohio, It was and supra. these an container. Under stammering burglar’s stuttering do not The tools found. contain- and er’s may weapon impermissible search and the have contained a an otherwise er render Perini, relationship F.2d an arrest Riccardi v. between based on reasonable. 1969). burglary suspicion (6th of the October and container Cir. Supreme is clear. Court noted that The the officer not that it is claimed Since Lasky engage not “Officer did an envelope open to to the had intended thorough-going exam- unrestrained and weapons or for instruments search for personal of and his ination Peters ef- might petitioner to ef- the enable which fects.” escape, or evi- or for the fruits fect an was ar- for he of the crime which dence rested, In this the officer not case did right do so to the officer had envelope a believe the contained arrest, unless, independently he of the weapon right he did not have the to question right. To state the had such open Accordingly, envelope. the I hold differently: officer discovered When the envelope the of un search envelope, reason- did he have sealed reasonable. posses- grounds to believe able petitioner The his Federal asserted felony envelope itself a ? sion of the applications for constitutional claims in Michigan appeal, leave to filed with the envelope transparent was not The and, Appeals of after Court leave was de- on was no trace of its its there contents Court, Michigan by nied with the hearing suppression At the outside. Court, also denied Court he did not claim that before officer opened leave. 381 Mich. 794 The or- thought envelope con- he it denying did ders leave not state rea- any event, ap- tained In it narcotics. refusing appellate peti- review of son pears opened envelope that before he Respondent not tioner’s conviction. does suspicion, officer had at most a independent adequate that an contend believe, reasonable cause to that it con- denying ground supports state orders tained narcotics. appeal. leave thought apparently officer The he had to defend va- seeks right open because, envelope a as lidity petitioner’s of conviction on the testified, police “the of duties offi- Michigan exception in of the basis any weapons cer are to seize offensive weapons or for a seizure of Constitution incriminating or from a articles defend- curtilage of a dwell- narcotics outside the ing. dispose ant before he has a chance to of police not, them.” A officer how- does ever, right houses, pos- person, papers have of as incident “The general every person arrest to conduct a search for sessions of be secure shall incriminating Ohio, and sei- articles. from unreasonable searches any (E.D.Mich.1968), place Supp. warrant to zures. No rev’d on oth any things grounds, (6th person 1968). or seize or shall er F.2d 661 Cir. describing them, Judge Court, without nor Keith issue of this in the unre cause, by opinion probable supported ported People, without Lucas No. (E.D.Mich. provisions 4, 1968), adopted oath or affirmation. Oct. reasoning supra. Kropp, of this section shall not be Winkle v. construed any to bar evidence in criminal light Mapp Suprem In and the firearm, proceeding any drug, narcotic acy Clause, the third sentence of Article bomb, danger- explosive or other Michigan 11 of the Constitution § weapon, peace ous seized officer unconstitutional. curtilage any dwelling outside Accordingly, being petitioner house in this state.” Mich.Const. held in violation of his Federal constitu- Art. M.C.L.A. § guarantees, discharg- tional and shall be Ohio, Mapp supra, the United custody ed from unless an order is en- *4 States Court held that the days by appropri- tered within fifteen pre Fourth and Fourteenth Amendments court, granting trial, ate state him a new clude the admission in of ille state courts forty days unless is retried within gally seized evidence. date thereof. At new trial Michigan Supreme Court has con person the heroin seized from his shall sistently deciding refrained from wheth not be in admitted evidence. Mapp supersedes exception er Michigan Constitution for certain sei MOTION FOR REHEARING curtilage dwelling. zures outside the of a 10, 1969, On November is- this Court People Blessing, 51, See v. 378 Mich. 142 granting peti- petitioner’s sued order (1966), N.W.2d 709 cert. denied 387 U.S. corpus. tion for a writ of habeas Sub- 914, 1692, 637; 87 S.Ct. 18 L.Ed.2d sequently, respondent moved for re- Winkle, 292, re 372 Mich. 125 N.W.2d hearing. 645, (1964), 875 cert. denied 379 U.S. respond Each of the matters in raised 611, 551, rehearing 85 S.Ct. 13 L.Ed.2d motion ent’s and brief were considered 967, 1102, denied 380 U.S. 85 S.Ct. 14 ruling petition in on the for a of ha writ People L.Ed.2d Harper, v. 365 corpus. beas well aware The Court was 494, (1962). N.W.2d Mich. 113 808 Terry Ohio, that the facts in v. 392 U.S. Michigan Appeals Court of in has 1, 1868, (1968), 88 20 L.Ed.2d S.Ct. 889 implied several cases held or 294, Hayden, and in Warden v. 387 U.S. exception People Monroe, is valid. See v. (1967), 18 87 S.Ct. L.Ed.2d are 782 Mich.App. 165, ; (1966) 141 N.W.2d 679 distinguishable from the facts of this People Vanlandingham, v. Mich.App. However, case. the standards set forth (1967); People 148 N.W.2d 523 v. applicable in and Warden are Dillon, Mich.App. 151 N.W.2d 365 the facts in case. The facts this (1967); People Goliday, Mich.App. v. contends sufficient were 171 N.W.2d 25 probable open create velope cause to the en VI, Article 2 of the § Constitution were considered in determina provides probable United States tion that that: cause not exist. did * * * “This Constitution shall be probable if there were Even supreme Land; the Judges law of the and the envelopes con cause to believe that the every in State shall be bound narcotics, petitioner tained under ar thereby, any Thing in the Constitution envelopes pos rest and the or Contrary Laws of State to the police session officers. There was notwithstanding.” danger en contents velopes Michigan to effectuate an would be used Article 11 of Con § escape de directly or evidence would be stitution “collides with teach stroyed. circumstances, ing Mapp.” these F. Under Kropp, Winkle v. have secured police should officers opening prior warrant Perini, envelopes. Colosimo sealed therefore, 1969), (6th Cir. 415 F.2d 804 hereby motion ordered that It is hereby rehearing and the be, same denied. al., Plaintiffs, et

John ASTOR COMPANY

TEXAS GULF SULPHUR al., And et Defendants. 51 other

actions. Plaintiffs,

Betty al., et B. ALEXANDER

TEXAS GULF SULPHUR COMPANY al., et Defendants. And 19 other

actions. al., DARRAUGH,

William H. Jr. et Plaintiffs, al.,

Francis G. COATES et Defendants.

Nos. 65 Civ. 1421.

United States District Court

S. D. New York.

Oct.