318 F. Supp. 409 | N.D. Miss. | 1970
MEMORANDUM OPINION
This petition for writ of habeas corpus is brought by Melvin Evans Gann under 28 U.S.C. § 2241. Petitioner, presently on bond, attacks his conviction and sentence by the Circuit Court of Chickasaw County, Mississippi, on the ground that certain evidence introduced against him at trial was obtained under a search warrant based upon an invalid affidavit and also that the Circuit Court increased his sentence after a trial de novo following an appeal from his initial conviction in Justice of the Peace Court. After response to the petition by the State of Mississippi, briefing by counsel and submission by stipulation of the state court record, the ease is now before the court for decision on the merits, without necessity of a further evidentiary hearing.
The facts, as revealed by the record, are as follows: Shortly after noon on August 31, 1968, agent Keith Roberts of the Mississippi Alcoholic Beverage Control Board (ABC) made an affidavit charging petitioner with keeping intoxicating liquors at his home for unlawful purposes. Relying on Roberts’ affidavit, the Justice of the Peace for Chickasaw County, District #1, issued his warrant authorizing a search of petitioner’s premises. About 4 p.m. that afternoon ABC agents Roberts, Shanks, Braswell, Greer and Floyd proceeded to petitioner’s house, after having first raided several other suspected bootleggers. From their automobile the agents observed a man walking away from a side window of petitioner’s house carrying two cans of beer. While one agent spoke to that man, the other agents scattered out around the house, noticing a padlock on the front door and a sign taped thereto which read: “No Beer”. The agents announced their presence and purpose at the front door, back door and side window. Hearing no reply, agent Shanks kicked in the front door. The agents entered the house, and when Roberts saw petitioner emerge from the bathroom, he
On September 17, 1968, in Justice of the Peace Court, petitioner was tried, convicted and fined $500 for unlawful possession of beer. A timely appeal was taken to the Circuit Court, entitling him to a trial de novo. At that trial his counsel objected to the introduction of the affidavit and search warrant, which objection was overruled. Then without further objection the three agents testified as to the beer they had found in petitioner’s residence and offered into evidence 1 six-pack. At the close of the prosecution’s case, defendant moved to exclude the State’s evidence on the ground of his objections to the introduction of the affidavit for search warrant and the search warrant itself, as “not in proper form.” This motion was overruled. Again at the conclusion of his own case, defendant moved for a directed verdict, which was denied. Following a jury verdict of guilty, the court sentenced him to pay a $500 fine and serve 90 days in jail with 60 days to be “held up pending good behavior.” Petitioner moved for a new trial, which was denied, and appealed to the State Supreme Court, asserting that the affidavit for search warrant was invalid and that the prosecution had failed to prove that the alcoholic content of the beer exceeded 4% as required by state statutes and the local option liquor election of Chickasaw County, District #2.
The Supreme Court of Mississippi affirmed the conviction, holding that proof of the beer’s alcoholic content was unnecessary since the local option election in Chickasaw County had failed, and that, therefore, the general statute outlawing all alcoholic beverages regardless of percentage of alcohol was applicable.
Petitioner moved for rehearing, asserting for the first time that the Circuit Court had unlawfully increased his sentence after appeal. When the Supreme Court denied rehearing, petitioner sought state post-conviction review under Miss. Code Ann. § 1992.5. After denial of such relief, petitioner then instituted in federal court his present petition for writ of habeas corpus.
This court has jurisdiction under 28 U.S.C. § 2241. Petitioner has sufficiently exhausted his state-court remedies.
Normally, objections to the admissibility of evidence must be made when the evidence is offered, and must set forth with specificity the reason for the objection so that the trial judge may have the opportunity to rule on them, and if counsel fails to make a timely and specific objection, the point is waived and may not be raised on appeal.
“ * * * [F]or an otherwise valid state conviction to be upset, * * * surely something more than an evidentiary mistake must be shown. If mistake is enough, then never, simply never, will the process of repeated, prolonged, postconviction review cease. For in every trial, or at least nearly every trial, there will be, there are bound to be, some mistakes. What elevates the ‘mistake’ to a constitutional plane is at least twofold. First, the mistake must be material in the sense of a crucial, critical, highly significant factor. Second, it must have some State complicity in it.” (Concurring specially in Luna v. Beto, 395 F.2d 35 at 40, 41 (5 Cir., en banc, 1968).
In the Mize and Pope cases, supra, the Eighth and Tenth Circuits held that even where no objection at all was interposed at trial to the admission of the fruits of an unconstitutional search and seizure, the point was not waived unless the rec
The evidence in the present case also convinces us that neither petitioner nor his counsel had any intention of waiving his constitutionally-based objections to the affidavit, search and seizure in question by putting defendant on the stand. Even after petitioner had taken the stand and admitted possession of the beer, his counsel requested a peremptory instruction on the ground that the State’s evidence was inadmissible as the product of an invalid affidavit. In several cases similar to the present one, the Supreme Court has held that by voluntarily testifying a defendant does not necessarily waive his constitutional objections to prosecution evidence. In Lee v. Mississippi, 332 U.S. 742, 68 S.Ct. 300, 92 L.Ed. 330 (1948), a 17 year-old defendant took the stand and denied ever having made a confession after first objecting to the introduction of a confession by the prosecution on the ground that it was obtained by coercion. The Supreme Court held that even though his testimony sharply contradicted with the ground of his objection, his testimony was not a waiver of his objection, and reversed his conviction on that ground. In Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), defendant objected to the introduction of any evidence as to his failure to pay federal import tax on marijuana, claiming that to have done so would have been self-incriminatory. He later took the stand and admitted not having paid the tax, which the government argued was a waiver. The Supreme Court held that his admission was consistent with his contention that the tax was self-incriminatory, and that he had not, therefore, waived his objections. In the case at bar, petitioner’s admission that he actually possessed the beer is wholly consistent with his contention that the ABC agents unlawfully searched his house and seized his beer under an invalid affidavit, and in no way intimates any intention of petitioner to waive his objections to the search.
In Harrison v. United States, Fn. 9 supra, the Supreme Court held that where a defendant testifies after the prosecution has introduced illegally obtained evidence, the burden is on the prosecution to prove that the illegal evidence did not induce the defendant to testify. This “fruit of the poisonous tree” reasoning is equally applicable to the case at bar. It is apparent that nearly all of the evidence introduced by the State was the direct product of the affidavit and warrant here challenged. Without them the State would have had no evidence to present, and petitioner would have had no reason to testify. We conclude, therefore, that petitioner did not waive his right to object to the evidence introduced by the State. This brings us directly to a consideration of the validity of the affidavit upon which the search warrant was based.
The Fourth Amendment to the Constitution of the United States requires that no search warrants shall issue except upon probable cause.
The affidavit here in question, after specifically describing the premises to be searched and the contraband expected to be found, sets out the following:
“Information has been received from a confidential informer, who is a true and reliable person because several things he has told to the affiants in the past have checked out to be the truth, that beer and whiskey was being stored, kept, and controlled, for the purpose of sale at the above said place. On Feb. 8, 1968, Melvin Gann, agreed to pay a fine of $227.00 on all the charges that the ABC division had against him; possession of beer and whiskey on several counts. Also, in the past an ABC agent, through an informer, has purchased beer from subject, with the agent as an eye witness. On June 21, 1968, Gann was charged with possession of beer (16 cans). On Jan. 26, 1968, Gann was charged with possession of beer (1% of a case). Affiants are still receiving complaints on said subject.” (Note: The affidavit purports to be made by agents Roberts and Shanks, but is signed by Roberts only; see R. 2).
Stripped to its essentials, the foregoing affidavit relies on three things: (1) information of an anonymous informer who had told the affiant several unspecified “things” in the past which had proved to be true; (2) affiant’s personal and hearsay knowledge of similar past offenses by petitioner; and (3) affiant’s bald statement, unsupported by facts or circumstances, that affiant and others “are still receiving complaints” about petitioner. The affidavit does not disclose any of the underlying facts or circumstances causing the anonymous informer to believe that petitioner had beer and whiskey at his residence, or whether the informer’s belief was based upon personal knowledge or hearsay. Nor does the affidavit specify any facts on which the recurring complaints were based. Thus, the Justice of Peace was unable to make his own independent review of the facts to determine probable cause — the constitutional requisite of the Fourth Amendment. Similar affidavits have frequently been held invalid by both the Supreme Court of the United States and the Supreme Court of Mississippi.
“ * * * received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law.” (378 U. S. at 109, 84 S.Ct. at 1511).
In Aguilar the Supreme Court held the foregoing affidavit insufficient to establish “probable cause.” The Aguilar court articulated the “probable cause” standard as two-fold where the affidavit contains no information based on the affiant’s personal knowledge, but only hearsay information: (1) the affiant must state the reason why he believed what the informer said was true; and (2) the affiant must give the source of the informer’s information as the informer
The excellent opinion of Judge Thorn-berry,
In O’Bean, the Mississippi Supreme Court held invalid an affidavit conclusory in nature and quite similar to the one which we have here found to be defective. Mr. Justice Patterson, speaking for the Court, said:
“The standard required by Aguilar, which we are obliged to follow, is that an affidavit seeking a search warrant, though it may be based on hearsay information and need not reflect the direct personal observations of the affiant, must contain some of the underlying facts or circumstances from which a detached and neutral judge can fairly ascertain that probable cause does exist for the issuance of the warrant.” (Emphasis added). 184 So.2d 635, 638.
We also note that the search of petitioner’s house cannot be upheld as a warrantless search incident to a lawful arrest, since the testimony was clear that petitioner was not placed under arrest until after the search was made. The record is silent as to whether the unidentified man seen leaving the side window with two cans of beer was ever arrested, so the search could not have been incident to his arrest.
Because we hold the affidavit and search warrant were invalid and the search may not be upheld as incident to a lawful arrest, it follows that the state trial court erred in not excluding all evidence obtained by the ABC agents from their search of petitioner’s house, as violative of his Fourth Amendment rights. Having so ruled, we find it unnecessary to consider the additional question raised by petitioner concerning the constitutionality of the imposition of an increased sentence at a Circuit Court trial de novo following an appeal from Justice of the Peace Court.
An order shall be entered granting the writ of habeas corpus, setting aside the State conviction, but without prejudice to the State’s reprosecution for the offense within four months from this date.
. Miss.Code Ann. §§ 2613, 3239 and 10208 (a).
. Gann v. State, 234 So.2d 627, 628 (Miss. 1970).
. 28 U.S.C. § 2254; Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Murray v. Florida, 410 F.2d 393 (5 Cir. 1969).
. 1 Wigmore on Evidence § 18. Mississippi has long followed this rule, commonly known as the “contemporaneous objection” rule. Henry v. State, 198 So.2d 213 (Miss.1967).
. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Molignaro v. Smith, 408 E.2d 795 (5 Cir. 1969); Williams v. Alabama, 341 F.2d 777 (5 Cir. 1965); Emspak v. United States, 349 U.S. 190, 75 S.Ct. 687, 99 L.Ed. 997 (1955).
. Johnson v. Zerbst, supra; Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965).
. Zerschausky v. Beto, 396 F.2d 356 (5 Cir. 1968); Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965); Henry v. Williams, infra.
. Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
. Henry v. Mississippi, supra; Mize v. v. Crouse, 399 F.2d 593 (10 Cir. 1968); Pope v. Swenson, 395 F.2d 321 (8 Cir. 1968); Henry v. Williams, 299 F.Supp. 36 (N.D.Miss.1969).
. “The right of the people to be secure in their person, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants
. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).
. Aguilar v. Texas, supra; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); O'Bean v. State, 184 So.2d 635 (Miss.1966); Walker v. State, 192 So.2d 270 (Miss.1966).
. Gonzalez v. Beto, 425 F.2d 963, 5 Cir. 1970.