343 F. Supp. 200 | D. Del. | 1972
MEMORANDUM OPINION AND JUDGMENT
Anthony Hawkins (“Hawkins”), á State prisoner, has petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He was permitted to proceed in forma pauperis.
Hawkins and a co-defendant, Cleveland Reed, were convicted in the Superior Court of the State of Delaware for armed robbery upon a Wilmington merchant, Max Feldman (“Feldman”). Petitioner was sentenced to ten years imprisonment and placed in the custody of the respondent at the Delaware Correctional Center. His conviction was affirmed by the Delaware Supreme Court. Hawkins v. State of Delaware, 281 A.2d 142 (Del.Supr.1971).
Petitioner advances the following three reasons why the writ should issue:
First, Hawkins contends that following his arrest, while he was in custody, the robbery victim made an out-of-court identification of Hawkins from photographs, without the presence of Hawkins and his counsel in violation of the rule laid down in United States v. Zeiler, 427 F.2d 1305 (C.A. 3, 1970).
Second, that the photographic identification of Hawkins by • the victim from the batch of ten photographs shown was impermissibly suggestive contrary to the rule in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) because the photograph of Hawkins and the one of Reed, his co-defendant, carried a date of 8/10/68 (the day following the robbery) while the other eight photographs shown to the victim bore considerably earlier dates.
Third, that his initial arrest was illegal because the police lacked probable cause to make it.
With respect to petitioner’s first two contentions this Court finds that neither of these questions was raised or passed upon by the State Courts. Hawkins appealed to the Delaware Supreme Court “on the grounds of unlawful arrest, procurement of evidence during unlawful detention, and failure to give proper Miranda warnings.” Hawkins v. State of Delaware, supra, 281 A.2d at 144. Thus, it is clear that petitioner has failed to exhaust his available State remedies as required by 28 U.S.C. § 2254(b). United States ex rel. Austin v. Anderson, 293 F.Supp. 1356 (D.Del. 1969).
Under Delaware law, an arrest without a warrant is valid in the case of a misdemeanor when the offense is committed in the officer’s presence. 11 Del.C. § 1906. Federal constitutional law permits an arrest without a warrant where the arresting officer has “probable cause” to make an arrest, that is, whenever “the facts and circumstances within [the officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964).
In this case when the officer confronted Hawkins in his investigation of the robbery and Hawkins admittedly lied about his age indicating that he was a minor under 18 years of age when in fact he was not, the officer had sufficient cause to make an arrest without a warrant for the misdemeanor which took place in his presence.
No probable cause exists for an appeal. Fitzsimmons v. Yeager, 391 F.2d 849, 854 (C.A. 3, 1969).
. United States v. Zeiler was reversed by the United States Court of Appeals For the Third Circuit, sitting en banc, in United States ex rel. Reed v. Anderson, 461 F.2d 739 (C.A.3, 1972).
. The dates appearing on the eight photographs shown to the victim were: 6/29/57, 12/21/62, 12/21/62, 10/3/63, 5/20/64, 7/1/64, 9/29/64 and 12/30/66. Trial Transcript of State Court (“Tr”) p. 24.
. Under Delaware law, a minor offender under 18 years of age is a juvenile delinquent subject to the processes and procedures of the Family Court, whereas an 18 year old offender is subject as an adult to the ordinary criminal justice processes. A police officer’s duties vary from each such situation, commencing with arrest and the procedures to be followed immediately thereafter. Thus, in any criminal investigation, it is extremely important for the police officer to ascertain the true age of the person under investigation.