Vito Giacalone v. William Lucas, Sheriff

Mississippi jail in and the other in a depositions

State Louisiana. Both expense

еntailed a substantial government. against taxed judgment is affirmed. GIACALONE, Petitioner-Appellant,

Vito LUCAS, Sheriff, Respondent-

William Appellee.

No. 20707. Appeals,

United States Court of Sixth Circuit.

July 30, 1971. Louisell, Detroit,

Joseph Mich., for W. petitioner-appellant. Gen., Freeman, Sol. H. Stewart Asst. Mich.,

Lansing, respondent-appellee; Atty. A. Kelley, Gen., Robert J. Frank Mich., Gen., Lansing, Derengoski, Sol. on brief. Judge, PHILLIPS, Chief

Before McCREE, Circuit CELEBREZZE Judges. Judge.

CELEBREZZE, Circuit appeal is of order This Unit- the Eastern District Court ed States Michigan dismissing, without District of petition Appellant’s hearing, petition corpus. The writ of habeas conviction, Appellant’s arises out of the by possession jury, for unlawful 28.421, blackjack, M.C. Mich.Stat.Ann. § imposi- (1960), and the L.A. 750.224 § four-year nine-month five- tion During prison year him. sentence Appellant trial, raised and after his first, issues, following inter alia: judge’s refusal the state whether until grant Appellant a continuance (7th his chief counsel released States, United 332 F.2d 36 Cir. diag- hospital, undergoing 1964), denied, where he was cert. 379 U.S. 85 S. tests, deprived 566; nostic Ct. 13 L.Ed.2d Mende v. Unit process law; second, 1960), due whether ed 282 F.2d 881 Appellant’s home, denied, search of the incident cert. 364 U.S. 81 S.Ct. arrest, denied, to his which resulted in dis- 5 L.Ed.2d reh. covery blackjack, 704; and seizure 689, was 81 S.Ct. 5 L.Ed.2d Relerford These issues treated States, (9th unreasonable. v. 706, United 309 F.2d 708 scholarly, 100-page 1962); in a States, unre- series of Cir. Relerford v. United ported opinions by judge, 298, 1961); (9th the trial Hon- 288 F.2d 301-302 Cir. Baum; orable States, Victor J. were con- Lee U.S.App.D.C. v. United 98 Michigan Ap- sidered 272, 219, the (1956); Court F.2d 221 235 Shores peals, Appellant’s States, which affirmed the (9th v. United 80 F.2d 942 Cir. conviction, People Giacalone, Mich. 1936), v. 23 denied, 705, cert. 297 U.S. 56 S. App. 163, (1970); 501, 993; 178 N.W.2d 162 and Ct. 80 L.Ed. Lias v. United Michigan Supreme Court, States, (4th the 1931), 383 51 F.2d 215 Cir. (1970), Ap- рer 786 curiam, Mich. which denied the aff’d 584, 284 U.S. 52 S.Ct. pellant’s appeal, 128, 505; motion for leave to two 76 L.Ed. Hardie United v. justices dissenting. Having States, (5th exhausted 1927), 22 F.2d 803 Cir. cert. remedies, sought Appellant his state denied, the 276 48 U.S. S.Ct. 72 L. corpus habeas in the District Court. Ed. 744. Some of the factors to be con Having there, appeals lost to this sidered in the determination of reason Court. We length affirm. delay ableness are: the re

quested; whether lead the counsel has prepared associates the case in his I. absence; whether other continuances A motion a criminal defend requested received; have been and ant for a continuance of the trial until convenience inconvenience liti present his retained counsel can be is di gants, witnesses, opposing counsel, and rected to the sound discretion of the court; delay whether seems to Ungar Sarafite, trial court. legitimate reasons, be for or whether 575, 589-590, 11 L.Ed.2d dilatory; purposeful and and other (1964); Kobey v. United Considering relevant factors. the totali (9th 1953); F.2d 592-594 Cir. ty case, circumstances the instant Arlen, (2d United States v. 252 F.2d 491 .judge’s we believe that the trial refusal 1958). Cir. Russell, Cf. Callahan v. grant Appel a continuance until (6th 1970); F.2d 454-456 Cir. counsel, Joseph lant’s chief Mr. Loui W. Knight, United States v. 443 F.2d sell, hospital left where he un was 1971). diagnostic dergoing tests a heart condition, proper, was and that it did Proper exercise of this discre infringe upon Appellant’s consti requires tion a delicate balance between rights. tutional right adequate repre dеfendant’s Appellant trial, May sentation counsel at arrested on and public charged prompt 1968 and interest in the with the unlawful and effi possession blackjack. justice. cient of a administration The case was On the Michigan hand, may one upon a court docketed before insist Circuit expeditiousness 14, 1968, sake, but, Court for on October how- for its own other, ever, judge granted defense a defendant cannot be allowed upon request delay to insist for a continuance until October unreasonable in 21, 1968, completion convenience in order that Louisell have of his Mr. argue delay ‍‌‌‌​​​​‌​​‌‌​‌​‌​‌​​​‌‌‌​‌​​‌‌​​‌‌​‌​​​‌‌‌​‌​​​​‍opportunity prepare trial. What is a reasonable varies depending surrounding all another case that week. One other con- facts and circumstances. of defense Williams v. tinuance the convenience practices granted by Mr. the trial court Louisell in the firm of counsel ultimately Barris, to trial. Louisell came two other with law- the case before yers. Barris, partner, Mr. Ivan his E. Appellant arrest- At time Fink, associate, Neil H. col- Mr. charged possession with ed blackjack, laborated, according undisputed charged with two also he was findings court, of the trial all docketing The task other felonies. cases in which the in- times eases trials three these volved. Fink and Mr. Barris shared be available Louisell would when Mr. responsibilities of examination one For proved one. to be a formidable arguing jury witnesses and reason, Louisell suffered According Mr. Louisell. to the trial condition, required atten- heart court, the three worked a team. As 2, 1968, September Mr. Loui- On tion. ability lawyers, for the three arrangements completed to enter the sell trial court stated: Michigan hospital Arbor, for cer- Ann diagnostic non-emergency, lawyers tests on tain “The three are indeed re- Sunday, 10, 1968. Com- November markable men. are All three excellent problem outstanding pounding further was the Each advocates. is an heavy very gifted had a that Mr. Louisell craftsman of the fact law. Each is establishing particular, Mr. Louisell in maintaining rap- In and caseload. port juries. in case in a criminal was defense counsel with Each is in talented Detroit, eliciting testimony. in which was federal court direct is Each The district tried in brilliant in to be judge November. cross-examination. Each superb arguing juries. case had the federal in to whom to Each assigned anticipated arguing judges. that would be is a master in law to affair, protracted capable giving two hundred with over Each is the defend- outstanding ant witnesses. defense.” record, undisputed From the it is that negotiations, After delicate some lawyers with, all three familiar agreement Mr. was reached between prepared blackjack and try, to case Louisell, judge, and trial the district on November 1968. judge, four cases under which the Tuesday, 12, 1968, which Mr. Louisell was defense counsel On November Mr. time, judge be heard within a reasonable Fink could informed the Mr. trial that interfering longer and with each without other Louisell’s tests would last than appointment previously anticipated, or with had Mr. Louisell’s and that agreement, to Ann Mr. Under the Louisell would not be Arbor. available gave assent, complete Thursday, which Louisell trial on Mr. November Appellant blackjack would be tried on first when the was case scheduled. charges early November, requested of his then Mr. Fink a continuance in or- blackjack charge tried on on Thurs- der that to Mr. Louisell be able remain day, 14, 1968, try hospital then tried on in the November still the case. charge long federal the third case When asked how a continuance after necessary, Mr.. Louisell defense was coun- would Fink un- be Mr. agree- completed. say. sel was Under able to No medical certificate ment, presented in the federal court the trial affidavit was trial begin Monday, judge spoke November 1968. court. The trial on more gave his assent than Mr. Louisell agreement one occasion Louisell’s with Mr. Arbor, Ac- 1968. doctor in Ann and was November informed cording judge, Mr. the trial Louisell that Mr. Louisell’s life was not in dan- ger, that tests would assured the court but that it was recommended pre- completed, hospital complete and that would be he remain in the blackjack pared. try case on No- tests. Fink reminded trial court Mr. although case vember federal had been denying opinion said motion the district court’s scheduled for November willingness “Appendix expressed be- attached as A”.] court gin days later, if neces- trial a few Appellant cites United States sary; and he stated that 1963) Johnston, 318 F.2d 288 day to case would not take more than a precedent argument in his try. Nevertheless, denied the trial court judge in the instant case abused continuance, compelling Appel- refusing his discretion in the continu- Barris lant to trial with Messrs. Johnston, ance. the defendant attorneys. Appellant Fink as his fraud, charged with mail fraud and wire protests did make oral that he wanted conspiracy commit each of- counsel, but, Louisell as his Mr. when represented also fense. He was informed of the denial of the continu- ap- who, trial, Louisell on the date of ance, objection made no whatsoever peared Barris, and in- court with Mr. being represented by Barris and Messrs. of an formed the court that because Fink, attempt no made to obtain argue “imperative commitment” other counsel. Supreme case before the Court of Michi- gan, he the de- would be unable to was tried and convict- court, fendant’s case. He informed the ed. There is no contention that Messrs. however, that Barris had collaborat- perform well, Barris and Fink did every ed with him in case he had han- Appellant’s any- itself eight years, dled Mr. and that since thing other than a model of fairness. pre-trial participated Barris had in the Nevertheless, Appellant the continued phase and of the case was conversant object to to the denial of the continu- indictment, the to he would be able 29, 1968, On ance. November he filed try case stead. The the in Mr. Louisell’s trial, reciting motion for a deni- new the arrangement, objected to defendant this al of a continuance as one of the Louisell said he had confidence Mr. grounds. no No affidavit was filed and Barris, but did not and re- know Mr. testimony regard- proffered sworn was lawyer quested time retain a he had to ing unavailability, Mr. re- Louisell's de- confidence in. The District Court garding danger any Mr. life Louisell’s forcing request, nied the defendant the appeared if health he had the go to trial with Barris. Our Mr. blackjack trial of the ease. On Decem- holding reversed, District Court 6, 1968, argument ber an oral made was allowing erred in defend- Court During argu- on the motion. the oral opportunity a fair and reasonable ant ment, neither affidavits nor testi- sworn employ time counsel of his own choos- mony proffered, Appel- was nor did the ing. orally writing supple- lant move or in distinguishable Johnston The case is record, ment the even when told he could respects in- in several critical 9, 1968, supple- do On so. December First, had stant the defendant case. filed, mental motion for new trial was vigorous another made efforts to obtain days hearing place. and four later a took lawyer Mr. after Louisell abandoned hearing Neither in the motion nor at the His In the efforts were in vain. him. testimony prof- was there sworn case, Appellant at- made no instant presented. fered or Second, lawyer. tempt another retain Only January 31, 1969, Ap- did the case, Johnston in the had the trial court pellant file а “Motion For delay Order Grant- no would be a reason believe the ing Evidentiary Hearing,” long one; case, he whereas, in the instant requested evidentiary hearing virtually request Appellant’s was proffered testimony regarding given open-ended. Mr. as- court was no unavailability. pre- Louisell’s trial court surance that Louisell would be Mr. held that pared the time for such a motion had case before expired, began, and, had and denied trial if he was it. the federal case [The showing petent proof proffered how much delay have been not, could Mr. had that much notice the year. In the Johnston aof as one-third unavailable; ac- no Louisell would be con- he had no stated case, defendant ceptable reasons documentation In the instant Barris. in Mr. fidence delay proffered until over preferred for the Appellant stated case, the trial; delay objection months after Louisell, three no made but very incon- work a considerable would Messrs. representation of Barris addition, In court. venience indicate does Johnston Fink. sight that the the fact do not lose for or we asked the defendant whether Barris issue here is whether Messrs. the in- real In prior continuances. received competently rep- properly and Fink had two. case, Appellant had stant v. Appellant. why Williams resented the counsel Johnston, reasons open 36, 332 F.2d stated United be unavailable would cert, denied, 1964), 85 S. case, documen- no In the instant court. why trial 13 L.Ed.2d 566. The the reasons Ct. made of tation ever proceed- judge, entire to attend. who witnessed the unable would be Mr. Louisell position ing, in a favorable is tradi- “The matter of continuance judge aspect stated: of the case tionally the discretion within * * blackjack case was “The instant no judge. are by Ivan Bar- tried for the defendant deciding when mechanical tests ris, Mr. Barris arbitrary assisted Neil Fink. is so a continuance denial of firm is a member of the law Louisell process. answer due as to violate associate, and Barris. Fink is an circumstances in the must be found employed firm. Mr. time full particularly every case, present in highly experienced and Barris is a presented reasons lawyer. He is one of skillful trial outstanding request judge is de- the time Michigan members of supra, Ungar Sarafite, nied.” surpassed ability If he is bar. any (empha- at 849 at U.S. lawyer, has this observer added.) sis experience is Fink’s met him. Neil provide ap- Mr. Louisell’s propriate the failure However, he is licensed limited. the at the time documentation gifted practice phenomenally and is a least, evidenced, request a was made at lawyer as- which are trial tounding with skills disregard process cavalier for of experi- his limited in view of rights court of his client. We Apart pretrial mo- from the ence. need not find- consider the trial court’s tions, the de- in connection with which ing part of a concerted was deprivation claim of fendant makes no upon perpetrate scheme a fraud counsel, a case was of simple system justice. court and of day. only Trial one one. lasted skillfully brilliantly and The case was summary, we do not believe the by Barris and tried for the defendant judge’s denial of a continuance was than defendant was more following The Fink. an abuse of discretion for the adequately represented by For them. hospi- reasons: Mr. Louisell was skill, could have all his Mr. Louisell voluntarily, nonemergency tal for a The defendant was done no better. checkup; associate availa- counsel were prejudiced by Louisell’s fail- prepared case; ble re- appear.” ure to quest delay open ended—it could been four have months or more before Appellant Due The had a fair trial. again Louisell would become availa- process requires no more. case; request ble for trial of the first,

a Appellant’s continuance was not the but The contention that made, refusing third that had been all the District Court erred counsel; grant hearing evidentiary convenience of defense no com- an on this is- Appellant per- sue is without merit. 2254(d) (1964). U.S.C. and thirteen other § conspiracy sons for commit extortion. stipulated warrant, The arrest II. face, procured to be valid on its aft- preliminary er a a examination before Appellant The contends that the black- magistrate. mag- proofs The before against jack introduced him which was Michigan istrate established that prosecution as in his statе was obtained Investigator police, the State Chief a result a in viola- search conducted Attorney General’s and De- office Fourteenth tion of his Fourth and police carrying troit vestigation in- on an rights. Amendment alleged conspiracy following facts statement The probable extort and there cause record, factual derived from the Appellant par- to believe that the was a findings and the memorandum of the ticipant conspiracy. in this findings state trial court’s court. That a After conference at the Federal of fact on the lawfulness issues of the Building Detroit, a task force consist- Appellant’s a of his arrest and search agents ing of four of the Federal Inter- hearing six-day home were based Sterling Service, nal Revenue two suppress motion to evidence. Heights officers, po- police two Detroit There is no indication that the “fact officer, police lice officers and one State finding procedure employed the state Sergeant Mull, charge who was adequate a full court was not to afford force, Appellant’s appeared the task hearing” Appellant and fair or that the May 14, residence at a. 6:00 m. full, adequate “did not receive a fair and arresting may party The size hearing” fully opportunity explained part by fact that on develop all of the “material facts.” 28 prior occasion an officer was assaulted U.S.C. amended in 1966. § Ap- lawfully while pellant’s in the envirоns of the permitted to call wit- composition home. nesses with relevant information and arresting including party, members was allowed broad latitude in cross-ex- Intelligence Division of the Internal testimony brought amination. suggests Service, contem- Revenue hearing forth at the on the motion to poraneous with the lawful arrest of suppress fully evidence reflected all of Appellant, the intention of some it was the relevant available evidence which arresting conduct officers to Appellant’s present. counsel chose to incident the ar- for evidence Indeed, scope only Appellant. of of their the claim which rest lodges against Appellant any pro and their intentions intended search finding regard throughout are rele- cedures used with to the arrest the fact process vant the is that the trial court to the instant case because state judge against prejudiced was not dis- him. As which was seized general thorough any the District covered as a result of ex- Court found after reviewing ploratory search, ly record, shown later. the there is no mer will be vague it in this claim. We conclude that Sergeant Appellant met and Mull findings the judge of fact made the arresting door. four officers at the front “reliably have been found.” Un the The other officers had surrounded circumstances, der these we must defer prevent escape. officer house to One “pre his findings, to factual which are person quickly open saw an unidentified sumed to correct.” be C. 2254 U.S § Ap- the and close the back door before (as amended, 1966); Sain, Townsend v. pellant opened his of the front door 293, 745, L.Ed. door, Ap- he answered the house. When (1963). 2d “shorty pair pellant clothed in a robe, May 1968, Michigan pajamas,” slippers and a On bedroom State leg. police prosthesis attached to his secured a warrant for the arrest and a foyer just enabling house, purpose in- front intention or In the Sergeant police door, Mull to search the announced bedroom side the finding Appellant ar- other that he was under This is corrobo- area. extort, quickly conspiracy rated for to the fact the officers rest person Appellant upon entering and the defendant’s bed- searched the immediately begin room did to read arrest warrant. started it, as will seen. be Appellant announced he was go. Sergeant responded, ready Immediately exchange, Mull after this room, go Sergeant “Well, Appellant, we into another Mull can and three stairway up I want to read rest of this four where officers went Appellant’s and Miranda into the get bedroom material warrant so he could [arrest you” warning] Upon entering to the ef- and words dressed. the bed- go you room, “Well, found fect don’t want trial court [before magistrate that, and the like court] gesture act, By word, and overt pajamas way you’re dressed, shorty [Appellant] showed that defendant Sergeant then and a robe.” Mull walked get out clothеs wanted and intended foyer Appellant from the front of a drawers his bedroom. chest of light dining into the where the room only the defendant mani- It was after Sergeant reading. Mull was better Lieutenant fested such intention that reading completed the of the arrest war- said, minute,’ in order Oakes ‘Wait gave Appellant a rant and Miranda pos- chest of drawers search the warning. Thereafter, Appellant read weapon. He searched the draw- sible the arrest warrant to himself and stated Immediately he ers in the chest. go.” “ready he was top found a arsenal. In small Sergeant suggested response, In Mull slap- blackjack or drawer he found that it for the would be well jack re- caliber six-shot and two .38 change from bed clothes street volvers, another In loaded. both leaving for the clothes before station a third drawer of the chest he found arraignment on the warrant found He .38 caliber six-shot revolver. Municipal before Point Grosse five-shot revolver fourth .38 caliber court, Court. of the trial words drawers, also same chest willingly accepted “Vito Giacalone single-shot in that of drawers a chest suggestion.” possi- In reference to the handguns altogether Derringer. Five Sergeant ble coercive Mull’s effect drawers, were taken from chest suggestion, the court found as fol- loaded at least two of which were lows: ready to fired. “Vito Giacalone was dressed The course events from pajamas short and a He had a robe. arresting party, the arrest arrival of the prosthesis right leg. on his He was Sergeant reading Mull, the go about to ato court of law. The warrant, giving Miranda suggestion Court finds that Mull’s ap warnings, conversation about change that Vito Giacalone from bed pearance Appellant in be bed clothes of perfectly clothes to clothes street was court, repairing fore a and the proper; reasonable and a it was bedroom, Appellant where to suggestion, not a or directive an or- blackjack drawer in a der; discovered was readily that Vito ac- Giacalone Appellant about cepted into which the was it without sense of duress sin events form one reach—all of compulsion; these suggestion that Mull’s gle which was flow of action good continuous in faith, was made without hid- consequence the arrest the natural motive; finally den or ulterior and person and a. at his home suggestion 6:30 m. of a that Mull’s de- about the

fendant’s made attire was in without his bed clothes.

1246 unquestionably significant support the con- the trial court It to note that is Sergeant Ap- Appellant the conclusion that arrest of and versation pellant probable cause, ensuing re- was based on was search which Mull and the “good faith,” blackjack discovery and was not used as a sulted in the engage pretext largely mere in an otherwise unrelated to the more wide- being spread warrantless The ex- con- unlawful search. for evidence investigation tensive law enforcement ducted certain of members of рrior arrest, arresting during at, officials the evidence party and after magistrate police adduced to a arrest. state issued, the arrest before warrant and Based on these facts District diligent attempts by Michigan law en- Appellant’s petition ha Court denied Appel- forcement officials to convict the corpus. doing, District beas In so charge lant on the which he ar- Appellant’s arrest Court held that ample rested are evidence that the arrest good upon probable made faith and subterfuge Appellant was not a mere subterfuge cause and not used as a justify an incidental search. pretext impermis to make an otherwise search, States, sible Jones v. 357 United course, true, It that con 493, 1253, U.S. 78 2 1514 S.Ct. L.Ed.2d temporaneous with the lawful arrest of (1958); James, States 378 F. United v. it was the intent of at 1967); further, 2d 88 it of the least some law enforcement offi held that the search which uncovered engage gen cers involved to in a rather blackjack awas reasonable search inci Appellant’s eral search of house after Appellant’s arrest, dent to and that —in Appellant had been arrested and their discovery sofar as safety had been The desire of assured. concerned —the search was not arresting officer to initiate a search general exploratory expedition. of a We “good incident lawful faith” arrest agree. does not convert lawful arrest into subterfuge an unlawful to conduct dispute Appellant’s We do not conten- impermissible prior search. arrests may tion that an arrest not be used California, 752, 395 89 to Chimel v. U.S. subterfuge by mere law enforcement 2034, (1969), S.Ct. 23 L.Ed.2d 685 which gain impermissible otherwise access ato see, applied retroactively, person’s house, papers possessions. 646, States, Williams v. United 401 U.S. States, supra; Jones v. United United (1971), 1148, 91 28 L.Ed.2d 388 S.Ct. James, supra. States v. In both Jones arresting police unusual was not James, primary purpose contemporaneous have an intent arresting law enforcement officials was arrest to search arrestee’s lawful making general warrantless, explor- home, papers possessions, and for evi atory posses- search of the arrestee’s purported crime or related dence James, sions. And in both Jones and Hill crimes of the arrestee. v. Califor arresting law enforcement officials nia, L. U.S. S.Ct. engaging “good were not in a faith” ar- (1971); Ra Ed.2d 484 United States v. rest of the accused. As the United binowitz, 70 S.Ct. 339 U.S. Supreme States Court v. stated Jones (1950); Harris United L.Ed. 653 v. United States: testimony “The of the federal offi- (1947). prin Applying the L.Ed. 1399 beyond dispute cers makes clear Rabinowitz, Hill, ciples Harris— purpose entering their thorough search each of involves * * * premises] search [the apartment es of an entire office or —we petitioner.” to arrest may prior to Chimel conclude that California, supra, The did not be rationale of the Jones and a search James inapplicable contemporaneous сases is instant case. come unlawful because good upon produced hearings The facts at faith arrest based

1247 gun arresting in a drawer “A on a probable cause, also table officer arrested can be as front of one is of the who search evidence intended to dangerous arresting alleged officer to the crimes. See Williams arrestee’s clothing of the States, supra. one concealed in v. United ample jus- person is arrested. Appellant contends that even The also therefore, tification, for a search of lawful, if the ensu- his arrest was person area the arrestee’s ing blackjack revealed the search which immediate control’— ‘within his general exploratory was an unreasonable construing phrase mean the agree. search. do not We might gain area from within need not We concern ourselves possession weapon or destructible of a with the activities of each 763, of offi 89 S.Ct. evidence.” 395 U.S. arresting only party. cers in the at 2040. sought evidence in this to be introduced Applying principles, the arrest these blackjack case is the discovered law Appellant the decision of was lawful Appel after enforcement authorities Appellant his bedroom to enter lant had been arrested and informed reasonably time and close rights by word, gesture, his and as pursuant a reason- place of arrest and act, overt manifested an changing purpose out of lawful able reaching intention of into a drawer leaving. one’s bed clothes before his bedroom bureau which contained the blackjack discovery in the bed- of the blackjack weapons. and other lethal directed a search room was result of support There is sufficient evidence to arresting the area officer every the determination court which the arres- reach of within the intended has Appel reviewed the evidence ‍‌‌‌​​​​‌​​‌‌​‌​‌​‌​​​‌‌‌​‌​​‌‌​​‌‌​‌​​​‌‌‌​‌​​​​‍that circumstances, the dis- tee. Under such dining lant’s decision to walk from the reasonably covery of change room to his bedroom order to Appellant’s arrest. incident appropriate clothing into more was vol necessary explore the was not It untary Certainly, and consensual. im if relates to as it lawfulness the search mediately after a arrest, lawful ar seized, nor other items which restee reads the arrest warrant speculate on the law- necessary it go without coercion consents to his arrestee had the search fulness change appropri bedroom to into more compelled bedroom at his to enter clothing, arresting ate officers —in offi- enforcement direction of law may cident arrest — cials. areas which the arrestee focuses remaining is- have considered the We his attention and are within reach find them Appellant and raised sues gain weapon destroy access to a or to merit. without evidence. Court de- District The decision principle law of- enforcement petition habeas nying Appellant’s may protect safety ficials to their own hereby corpus affirmed. search the area the immediate within person control of a whom ar- have A APPENDIX seriously rested has never been chal- lenged. York, See v. New 392 Sibron EVIDEN- FOR ON MOTION OPINION 40, 1889, U.S. 917 S.Ct. L.Ed.2d TIARY HEARING (1967); Agnello States, 269 United Wayne) County (1925). (Circuit U.S. 70 L.Ed. Court — California, And in Chimel v. 1969) February 11, (Filed 89 S.Ct. L.Ed.2d Giacalone) (People v. Vito (1969), Supreme the United States validity continuing or about November Court affirmed the On blackjack trial principle short when observed: continuance presented en- sworn evidence granted 14 to was until November or offered was hospital regarding hospitalization, Mr. Louisell’s to enter Mr. Louisell able motion, was there diagnostic his assurance nor written or tests on for oral, supplement present trial on to the record for connec- be that would hospitalization. tion with Mr. adjourned Louisell’s date. 29, morning de- On or about November November On to written motion oral motion for new trial was filed. made an fense counsel indefinitely motion, grounds urged In this one trial of the continue by defendant to was that he was would be available unconsti- Mr. Louisell until tutionally deprived right support try In of the motion of the to coun- case. alleged orally unconstitutionally Louisell sel and that Mr. denied it due was process affida- hospital. law in that he was forced No to could not leave accompanied testimony this counsel while choice was un- vit sworn or available. No affidavit was filed and motion denied. no was motion. regard- testimony proffered sworn was day, de- in the on November Later ing unavailability sup- Mr. Louisell’s for motion counsel made an oral fense port of the motion for new trial. Nor change of venue. rescission accompa- was motion for new ground principal Mr. Louisell that was supplement nied a motion case would not available be regarding hospital- record Mr. Louisell’s empathy uneasy Fink was about and Mr. ization. Joseph Coun- himself and a between St. ty On December the defendant jury. affidavit or was was no sentencing hearing, regarding At sentenced. testimony submitted sworn regarding unavailability. no affidavits Mr. mo- Louisell’s Mr. Louisell’s proofs change hospitalization and no filed ven- were rescission of the tion for subject prof- presented on this were ue denied. was fered, filed, nor was a motion either counsel defense On November orally writing, requesting supple- or in pro- it clear that Court was made respecting mentation of the record Mr. ceeding contrary to the defend- to trial hospitalization. Louisell’s preference should Louisell ant’s Mr. present This was argument as defense counsel. On December oral position taken earlier renewal heard on the new trial. motion for 12. On argument, on November the defendant course of oral af- neither again ap- testimony it was made November nor fidavits sworn pear by Mr. Loui- proffered concerning presented defensе counsel hospital, and hospitalization. sell was confined to the Nor did Louisell’s request for a orally writing there in effect another move defendant or in among ground, oth- continuance this opportunity supplement on the record request. likewise an oral regard. Indeed, ers. This was in this Mr. Louisell said “ adjourn- prior request * * * Like the oral reading transcript unaccompanied ment, request proceedings Centreville, I no- by supporting testi- affidavit or sworn you Barris that Mr. tice told Mr. mony regarding unavaila- Mr. Louisell’s might, might, Barris or I be accorded Barris, bility. 14, Ivan On November supplement opportunity sought attorneys, the defendant’s one of my hospitaliza- respect record with right supplement reserve tion. remarks clear- record. The of the Court posture “I don’t think at this ly encouraged filing a motion ger- we are a matter with which However, supplement no record. manely the motion concerned supplement accompanied such motion to trial.” new pleading appearance. next or court 15, 1968, on to make went On November Thereafter Louisell there pronouncements post hearing con- No unsworn conviction on bond. certain cerning hospitalization any his which tended trial. Nor was there sworn testimo- ny presented hearing proffered confirm this Court’s belief that at the or elective, upon hospitalization supplement non- was the motion for a diagnostic emergency place for tests visit for new trial which on took Deсember convenience, for the his own disabling treating any purpose illness. Only long by after and arduous toil argument research, studying In the oral the Court in au- course of trial, thorities, arriving for the Court made it at a decision on motion new lacking trial, Mr. a clear that evidence was the motion for new ing reduc- said, availability. writing, The Court did the de- Louisell’s the decision to supplement record fendant seek to “If a man be from wants to excused concerning hospitalization. Louisell’s Mr. ought illness, he trial because only One can conclude defend- that the present testimony, some solid or speculated upon ant and defense counsel affidavit at least.” outcome of motion for new argument To Mr. unsworn Louisell’s trial, only adversely de- after it was hospital beyond that he remained in the evidentiary cided seek an hear- did insistence of four November 14 ing respecting hospitaliza- Mr. Louisell’s physicians, replied, the Court tion. “Well, may your have been Rule 503 deals with General Court choice. was no court order continuances. 1 is as fol- Subsection keeping you hospital.” in that lows: skepticism The Court’s is further Policy. policy “1 It is the following reply demonstrated in encourage diligent prepara- rule to argument Louisell’s that he had an tion and trial cases. Continuance obligation children, family, to his to his granted un- for cause shall not be as well as to the Court: showing made and the court less obligation “The Court: That didn’t grounds finds that the for continuance keep you bеing actively prac- out negli- do not arise out of fault ticing day law on 18th of Novem- gence moving party and the ber.” justice court finds that substantial Further the Court said: nearly more will be obtained.” “Well, it, you as I see did not Wayne make rule The local Circuit Court any adequate predicate applicable postponements continu- in criminal ** it, you ance. I see provides: As cases expected a ease on behalf of “No trial of criminal case shall be your client on November and for Presiding adjourned except by the your own convenience did not.” Judge good cause shown party seeking written motion of the Despite the clear manifestation adjournment.” Court on December 6 that Mr. Louisell’s incapacity spirit Neither nor these established to the the letter of satisfaction, oppor- complied Court’s rules defend- at the next “showing” “grounds” tune ant. moment no affidavits A for con- were filed testimony presented required and no sworn tinuance un- was not as made proffered regarding timely hospi- der Rule nor motion Louisell’s was a writing Judge Presiding talization. filed before B, required Subpara- Rule Part opportune The next moment came on graph 9 of rule. local court 9, 1968, sup- or about December when a plement rules, Apart if to the motion for a new and even from these regard concerning directory was filed. than No Mr. we them as rather affidavit evidentiary hospitalization accompanied mandatory, Louisell’s this motion for hearing supplement to the motion for new comestoo late. proper proof physician’s of Mr. still no affidavits time there are disability accompanying on November this motion. Louisell’s motion for continuance when the pre- If a modicum order is be Perhaps proofs would first made. such courts, proceedings in the of trial served when not have too late if offered points urged must with evidence opened the 14th court day in Centreville on support timely moment. at the relevant proofs were not of Such November. evidentiary support The time for of the point preserved proffered in the nor the petition oral for continuance was before hearing 15. Such November on bond on evidentiary support trial. The time for proofs proffered not nor was right of the assertion of the to chosen point preserved sen- the time of the if counsel was likewise trial. Or before hearing. Certainly proofs such tence of this could not done in the exercise be proffered later not should have been diligence, sworn reasonable the time for filing motion for than the date of of the request support of the for continuance Extending trial on November 29. new support and the time for sworn of asser- defendant, great charity perhaps right tion of the to chosen counsel was of would not have been abuse dili- as soon after trial as reasonable judge’s consid- discretion to have gence permitted. jury trial hаs Now proofs proffered by De- ered if sworn effort, completed. Much human December or December 13. cember inconvenience, expense, much much argu- last date is the date of oral much tribulation attended trial. supplement ment on the to the motion post There followed ings, conviction hear- two for new trial. It is date on which hearings and fol- after such there for motion new trial was submitted to trial, motion for filed and lowed a new disposition. the Court for argued steps. in two At none of these stages proceedings in the were sworn Up very moment, has there proofs presented none or tendered. At showing been no that in the of exercise these acts in drama there an of diligence, proof reasonable sworn could oppor- application oral or written for have been offered on or not before regard- tunity supplement record trial on November 14. A fortiori there ing hospitalization. Mr. Louisell’s showing proof has been no that sworn not, could of the exercise reasonable anguish and of Much human effort diligence, have been submitted in con- disposition attended the decision nection with the motion for new True, decision motion for new trial. supplement and thereto. considered motion new trial incapaci- possibility genuine physical everything season, “To there is a and ty disability part lead coun- on the every purpose a time under disability sel and held that even such timely heaven.” On November continuance would sought warrant showing oath, moment for a under delay sought (since was un- altogether yet trees were not barren of reasonably long dura- and uncertain in long autumn leaves. The leaves have tion). disposition However, gone. Indeed, since the first snows heavily unquestionably motion relied fallen the time the motion for new competent dis- absence evidence trial was filed. winter solstice has ability. very latest, such At the evidence gone. Only told, come and now we are should have been submitted before after a decision adverse to the defendant placed motion for in the new trial trial, aon motion for that an evi- new particularly decision, Court’s hands for hearing dentiary sought supple- skepticism expressed in view of the regarding ment the record Mr. Louisell’s argument during oral Court hospitalization. parenthetically, And motion on December 6. Ecclesiastes, Ch. v. 2. thing in public is such a the law as prompt interest in the ef- and being simply late. The instant mo- too justice.” ficient administration This just re- approach that. If courts do not tion is inconsistent with our deci- issues, timely presentation quire our sion in Johnston, United States v. system justice will of criminal F.2d beset Cir.1963), in which we delay, disarray. disorder, If held that the Sixth requires Amendment require timely presenta- do courts that a defendant who is informed short- issues, ly tion wasted time effort before trial that counsel of his choice into the administration will be built will not represent him, be available to justice, along with one more criminal must be afforded a opportunity “fair loophole loophole-seekers. employ reasonable time to counsel of choosing.” his own Id. at 291. We held everything, There is a season period Friday that a follow- everything The season for season. ing Tuesday, day trial, “was not a long motion such as since this one is reasonably give appel- sufficient time to season, past. judicial drama has In opportunity lant fair to select and em- had a amount tremendous of time ploy choosing,” counsel of his own must in fairness attention. Court we “[a]ctually also stated: it seems to litigants to other heedful other be appellant us prejudiced by was not cases, number, about in are which Judge action of the District in this responsibility. this Court’s individual respect but this situation does not satis- The motion for continuance must be fy appellant rights [’s] under the Sixth showing by accompa- tested which Amendment [citations Id. omitted].” at nied the motion. The motion for new 291. showing by trial must tested be accompanied It that motion. majority’s attempts distinguish to judicial would be a misallocation of time argued unconvincing. Johnston are It is to hear stale no evidence which can (the appellant that Balk successful in longer properly judg- affect the Court’s Johnston) personally desire asserted his this, approximately ment. To do attorney to obtain an other than his cho- awaiting hearing, 1300 other cases some attorney’s associate; whereas, sen in years, for over three would mоst un- be personally this case the defendant did litigants. fair to other Vito Giacalone However, neither. this states a distinc- ju- has had than fair more his share tion which makes substantial differ- no dicial attention. It is time for appears appellant ence. It was not ju- drop trial court curtain to on this attorney informed his would not be dicial drama. It is time for the Court’s present at trial on until November 14 litiga- attention to directed to other days two three before date. tion. For these is reasons the motion informed, attempted When so he first denied. through Fink, Mr. Louisell’s rela- tively associate, inexperienced to obtain day February,

Dated this 11th a continuance until Louisell could be present, and that an effort consumed ad- Victor Baum J. day ditional until late in afternoon Judge Circuit obtaining

on November 12. The task willing substitute counsel enter McCREE, Judge (dissenting). Circuit criminal case on November 12 or 13 to majority I correctly do not believe the be tried at 8:30 a.m. on November applicable states the law either issue. Centreville, Michigan, easily surpasses To determine whether the trial court difficulty faced Mr. Balk in his denying appel- abused its discretion in unnecessary It re- case. would seem continuance, lant majority would quire appellant object proceeding appellant’s “right adequate balance representation trial, attorney, of counsel at and with Mr. Fink as when his ap- the contin- is further asserted that the court It himself stated to Fink long, sought too uance hаve been

pellant’s presence: would perhaps months, other four because favorable I find it much more * * * Mr. Louisell’s foreseeable obstacles to my standpoint the case participation first an- in this case. The County. Wayne argument four that a swer to this rap- any I I don’t know that have delay permit representation month ** jury *. port a nonurban with fact, attorney seem does not choice have out I never been [I]n only one inordinate a man who had when ** rep- going city am *. If I faced with misdemeanor conviction was felony 5-year resent a man on a years imprison- possibility of five place charge, where I it to be want ment. most I will feel I’m used to and where appellant Second, comfortable. the assertion that wants to Mr. Wayne ly. contemplated then that Mr. Louisell would posture ask on in Centreville and I mean am calone am made for a event, up to Centreville ? stipulating place I Here going asking I don’t feel Giacalone wouldn’t know what of his home try voir upon County, you have, your ^[*] it has to stay Wayne the case. At this dire. to on the record that try change the Court’s order. competent ^[*] stay in become time the motion was is why this case * * asking vicinage. ^[*] should we Wayne County, obvious that Honor, venue, it was to that sincere- for Mr. Gia- questions County, ^[*] to particular stay in a trial a man all ^[*] If I go to I motions. lant prosecution. The case was thereafter uances ment record. On sition diligently suant sel’s date was set in consideration of without in the District hearings a cated ed to October hospital Further, previously long-standing appointment admittedly cardiovascular adjourned to contradiction that choice between preliminary motions, pursued, and However, during proceedings simply on scheduled September October November arguments order to Court, appellant requested until October 21 judge granted diagnostic supported October provide following dispo- 30, 1968, appel- immediate trial request was not the case had for preliminary two 8 trial to tests. the trial adjourn- time for sophisti- asserted to contin- limit- coun- enter pur- might delay. not or a four month He have The decision in does Johnston days delayed permit attempt trial a few turn Balk’s unsuccessful acceptable appellant notice. to obtain substitute substitute counsel short obtain only elapsed Here, attorney hours be- unavail- counsel. In fact his chosen day denied a tween the time when the court able because he elected to use the argument trial, prepare continuance until and most of this set trial to Michigan presented Supreme of normal time was outside business to the likely is time than that held hours. This inadequate less Court. A continuance most would securing availability other counsel have resulted in the original appears attorney Johnston. it that Balk’s choice. That Since entirely upon appellant sought here, case what he State’s but was based given testimony police neither that nor officers who consideration appellant’s home, potential acceptable reasonable time to obtain searched delay alternative counsel.1 inconvenience to witnesses peared represent appellant Barris, No- On November Mr. Ivan partner, Louisell’s that time lie asserted settled a ease which vember 14. At rejection precluded participa appellant’s had of both himself theretofore his blackjack trial, ap- tion in the Fink as trial counsel. compared minor to that the balance this fair struck be a one. It case imagine at 290. is difficult a case in Johnston. Id. the witnesses would be more accessible stating real issue that prosecution, likely re- or more competent appellant counsel whether so, main than in this case. represented, ma properly and was silentio, overrule, jority perceive ap- sub our I do not would the relevance of authority pellant’s As decision Johnston. failure to offer sworn or writ- decision, they regarding v. Unit ten cite Williams statements Mr. Louisell’s (7th 1964), Following ed F.2d 36 Cir. condition. at least two tele- phone denied, cert. conversations between the trial (1965). However, doctors, court 13 L.Ed.2d 566 Mr. Louisell’s dissenting judge decision, would seem that 2-1 the situation was clear. rejected majority tests, pointed After initial Louisell’s out doctors stated, hospital advised him our He to remain in the Johnston rule. id. days Although few for additional tests. jeopardized his life would not have been for his dеnial of continuance [t]he so, rescheduling had he failed to do employed unfair [citation counsel was busy of the tests at a medical center ag- omitted], and this unfairness was presented would have substantial diffi- forcing gravated ‍‌‌‌​​​​‌​​‌‌​‌​‌​‌​​​‌‌‌​‌​​‌‌​​‌‌​‌​​​‌‌‌​‌​​​​‍peti- by the court’s appeared culties. It therefore advisable employed without tioner to trial complete physicians the tests as the giving counsel, further instead him advised. employ time a substi- reasonable Johnston, 318 tute. United States The trial court listed ten reasons for 1963). This F.2d 288 his conclusion that Mr. Louisell’s ab- procedure “fundamental unfair- promote delay.2 sence was a ruse to ness” It is of no omitted]. [citation 1-6) (numbers Six those reasons substitute counsel has relevance that emphasized ap- fact irrelevant incompe- not shown to have been been pellant did not assert that Mr. Louisell inept. tent United States v. John- physically incapable trying was the ston, 318 F.2d (num- case. Two asserted reasons other * * 1963). 8) express merely bers 7 and the trial judge’s suspicion. appropriate and And if it were to bal- frustration even reason, appellant’s ninth factors, competing asserted failure ance I would not find 2. ^{[5] [3] [2] [4] [1]} In energy soon after was ized— November before the brief to In In view of the after deed, In immediately In view jack the and vember cases as that he Louisell’s gency, try view view of view hospital trying vigor trial— he the 14— diagnostic would of the fact the second hospitalization— completion early displayed with which Mr. Louisеll he left cases blackjack his the before he was the on November 16— the last be positive extraordinary delay elective, as November as late as great out, the nature in the trial of of the black case, working that working was fit hospital, talent assurances non-emer- and able hospital of Mr. granted on No Friday, he left skill day day in ^{[10] [9] [8] [7] [6]} In In In the to seek counsel In for the short sworn marathon defendant that testimony Mr. be avoided Louisell’s In presence try gun a [order view of long view view of view of the office of view of and Louisell Mr. Louisell evidence blackjack of Mr. blackjack trials— delay presented the case— Rubino first became the convenient for a few hospitalization showing the absence the Court’s Louisell numbering blackjack the adjournment would other than of his Giacalone’s case— trial, absence as a condition days— the guarantee and Harris— not disability aware if case could excuse for supplied]. time insistence of sworn only those in between failure that Mr. any the the the his to counsel, Well, has con- I don’t he seek Court: think substitute Finally, issue, re- took I think he court but rather sidered above. quickly circumstances, un- appellant’s failure state described ferred indicating he, doctor, in- der time when he was first that wanted oath the Mr. Louisell in at that time. Mr. Louisell not be formed that would trial. This last factor available for Mr. that’s fair Fink: I think a only propriety of material to the one just sup- statement. I wanted also continuance, denying it does not but extent, plement to this that knowledge prior appear appellant’s that past plan keep Mr. Louisell 13th subject tests was the scheduled only at after Mr. Loui- was arrived the court reached discussion at the time entry hospital; sell’s into the Instead, its decision. focus least, when doctor indicated—at I of the tests and the status got the inference he found that judgments Louisell’s Mr. doctors. something had, well, that worried him telephone regard, after conversa- opened thinking along his mind to involving court, tion Mr. one of direction, another and that he wanted doctors, Fink, Mr. and state Louisell’s counsel, pursue that. following colloquy occurred: * * * appears Since it that the decision to Goussy: Mr. the doctor beyond keep Mr. saying hospital, Louisell November after he came into the hospital keep made after entered that he wished to Mr. Louisell implication November of some that further because tests plot by appellant something and his earlier counsel run on wished gratuitous.3 judg- physicians’ up. that had shown ments further tests were indicated sup- Mr. Fink The Court: wants enough attorney. should to excuse plement by stating record a rule which re- We should announce took issue doctor statement endangered quires showing that life telephone Loui- me on may a continuance before counsel obtain entry sell’s was elective. I do under- medical reasons. judge Goussy: I tak- stand the trial have found that don’t him recall ing that, conspiracy Loui- еxisted between Mr. no. issue with arrested, judge frequently been I the trial defendant has observe that was of opinion figure only prior appellant major conviction was a deny- opinion organized a for which in In misdemeanor crime. an days ing pending appeal in the to 90 Detroit the court sentenced bail stated: Second, investigation $300 and a fine. of House of Correction based on substantiality ap- being department probation to the tes- and the deny peal, timony given bond unless should not under oath we before bail should be we are that convinced United Subcommittee States Senate danger flight, Congress of Investigations of the denied because of the 88th community potential might (testimony which, add, harm to I of jus- proper knowledgeable given by honest, of risk to administration men who subject penalty per- tice. to the of testified jury) Jjs that Vito I satisfied Giacalone am *1* *1* virtually which defendant has is, of The of all his adult crime and for large- participant assaultive is not been a in a convicted life has conspiracy. was not found organized crime. The criminal scale person drawer in reversing in dresser but to allow bail In the refusal Michigan no defendant has pending appeal, of The his bedroom. Court of for commission Appeals of conviction record stated: reputation papers Iiis as an moving con- assaultive crime. state without The years considera- relevant is not a defendant is 46 evil doer that tradiction Giacalone, rang- People 16 Mich. age, children tion. has 7 married and of 871, 360-361, 352, years, App. N.W.2d age 167 ing up has a 18 of (1969). deeply im- large roots has 876 home and community. While bedded

1255 specialists .episodes doctors, approach Crete and his who sell —an serving repute support without on the law and distorts international of reality.4 University Hospital technique ap- Ar- in Ann This makes staff of pear Michigan, teaching facility bor, that the arrest near occurred appellant’s University Michigan. the search bedroom that of the dresser drawer where the black- issue, since proceed I second jack simply was found was an incident granting of the denial the writ because legal significance strips thereof. It by opportunity represented to be undisputed preceded events which pre- appellant’s choice would counsel discovery. and followed this sumably a new trial and would result in question appellant, leave unanswered the serious conclusion that without validity coercion, proceeded foyer revealed the search which from the front blackjack. that the where he I conclude first admitted the officers to illegal upstairs two reasons. bedroom where the incul- pating primary purpose discovery First, the arrest- occurred illustrates the ing general viewing ex- officers to make a distortion which occurs from home, ploratory appellant’s morning the several search of incidents of as second, prologue, the search was too extensive isolated events. Without no upheld impute anything one as incident to the arrest. would but inno- suggestion cence to a man opinion adopts majority the con- sleepwear put clothing should on outdoor judge found of the trial who clusion going police before station. How- * * weapons that “the were seized ever, happened is not what here. quite early in the law enforcement en- terprise found, product appellant, As law- the trial court the direct of a response Sergeant good search, ful to a command faith arrest limited Mull, promptly incident thereto.” This answered the front door determination supportable only segmenting Sergeant and admitted the this officers. Mull, carrying shotgun, enterprise” “law sawed-off enforcement into dis- Agnello States, 4. The In v. United cases relied on the trial 269 U.S. court do 20, 31, support (1925), approach: Wong 46 70 145 L.Ed. Sun Ag- States, v. United the Court sustained the searches of 371 U.S. 83 S.Ct. codefendants, (1963), nello and his ar- L.Ed.2d 441 who were the Court held immediately unsigned government rested after confession admitted against agents Wong illegal Sun was witnessed an sale of the “fruit” illegal narcotics, of his arrest and and the seizure of narcotics was hence ad- ; illegal missible and that either plain revealed those searches or in seizure of against heroin admitted view arrest. into at the scene of the evidence right privacy However, illegal per- him “invaded no held the sub- the Court premises sequent Agnello’s son or which would search of house several entitle Wong object Sun to blocks from the of the arrest. to its use at his scene trial.” Id. In Vanella v. United F.2d S.Ct. at 419. denied, 1966), heroin had been seized as a result cert. illegal (1967), Wong arrest of one of L.Ed.2d Sun’s co- 87 S.Ct. defendants and this issue turned the court sustained a search of Vanella’s on lack standing. residence incident to his arrest conspiracy In Nardone v. United warrant for violate nar illegal (1939), laws, 60 84 L.Ed. 307 cotics but held the search S.Ct. ap- prior person the Court reversed the in Van affirmance of to arrest of a found pellant’s conviction, Ap- ella’s home. Court peals, Hayden Warden, and remanded the case to Dis- 363 F.2d 647 proceedings, 1966), rev’d, 294, 87 trict Court for further there- U.S. 387 erroneously (1967), tofore denied the District S.Ct. 18 L.Ed.2d 782 only Court, “evi- whether evidence held that evidence of to determine used court against messages illegally him seized at was the “fruit” of dential value” had been despite intercepted by government Hayden’s in viola- arrest the time of seqreh revealed tion of the Communications Act of fact that which illegal. U.S.C. 605. evidence was itself § change Appellant con- clothes. to street walked into several other officers Sergeant him appellant, that Mull ordered who tended informed Mull house. change had al- wearing “shorty and that Mull pajamas” to ready clothes that there was to be stated robe, under arrest for con- that he was appellant’s One of spiracy quickly search of bedroom. searched extort аrresting that foyer testified officers also place the front This took in him. he intended Mull then that announced of the house. Nevertheless, a search. conduct reading the Mull had finished Before suggestion court found that Mull’s warrant, he announced that Giacalone “* * * or- a directive or an not ready Meanwhile, as some to leave. accept- ; readily der that Vito Giacalone purpose of the ex- indication of the real any ed it sense of duress without officers, pedition, limit- other instead of sugges- compulsion; Mull’s that [and] ing foyer, out their search fanned good faith, without tion was made through basement, os- the first floor and * * motive hidden or ulterior making tensibly eye inspection quick “a might persons hinder the arrest who appellant accepted The conclusion that escape.” or assist defendant suggestion voluntarily unsupport- appears appel- motivation no able, rejected. It is in- and it should be lant announced readiness to to have his previous appellant’s two consistent with go in his as he front robe stood prepared to announcements that he was foyer other than desire to limit the his Supreme leave. As the Court stated privacy of officers’ intrusion into the Sain, Townsend v. U.S. home had no warrant (1963): 745, 758, 9 L.Ed.2d Sergeant Nevertheless, search. Mull consistently that held This Court has dining moved into the room “where the * * * fairly state factual determinations light reading was better for supported by record cannot be con- the warrant” and аdvised defendant of rights. federal rights. [Citations clusive of his Miranda fundamental lib- Where omitted]. Upon completion reading person are claimed erties of the again warrant, appellant announced that carefully infringed, prepared go we have been station. Again Sergeant [Ci- record. the state-court scrutinize Mull deferred their de- parture suggested appellant omitted]. tations that preliminary Sergeant testimony page examina- I observe that 62 of Mull’s demonstrably on cross-examination was tion? (referring respects: him called inaccurate some You “Q you any Schwartzendruber), Well, you him that to tell Q event have ac- bringing you you knowledged call, Mr. Gia- made one would were — phone call to Lieutenant in?” Schwartzend- calone “Yes.” ruber? And the answer: completed you Yes, hadn’t A sir. Q That you yet? Q And told Lieutenant Schwartz- “Yes, you your not, bring sir.” endruber did “We can’t And answer: * * testimony yet through your then him in we’re not Is because upstairs searching you with the search”? bedroom No, Giacalone’s A sir. house say you weapons? Q You didn’t? persons. right. A And other That’s A persons? you Q Do remember —so we don’t have And other Q misunderstanding Mull, I am A Yes. you right? asking you if it is not a fact Q Is Yes, when sir. told Lieutenant Schwartzendruber A you bring talk about you Well, all let’s first of called him that couldn’t Q preliminary Page yet you the weapons. of 75 hadn’t com- because him pleted the search? examination. looking you bed- in these I “Q that recall." Now A Not guns? being you this remember asked rooms DoQ answer, your giving No.” questiоn this the answer: And

1257 accompany “suggestion” of Also, ed that he be allowed acquiescence to the didn’t a sawed-off their search them on because policeman armed a wearing up. and com officer his house torn One shotgun, a sidearm want eight manding can posse follows: a of officers recalled statement “ * * * my Giacalone, Mi hardly as volitional. See if be viewed Arizona, 436, S.Ct. memory correct, that, 86 384 U.S. ahead randa v. said ‘Go (1966); Bumper v. 1602, up 694 search, 16 L.Ed.2d but the house don’t tear ” 543, 550, S. Carolina, you 88 391 North U.S. did the last time.’ like (1968). considering Under L.Ed.2d 797 Ct. no more tenable basis appropriate circumstances, sepa- we can appellant’s these the search of bedroom regarding ly rately separately own conclusion reach our con- than there is for suggestion. sidering ap- Mull’s the coerciveness of search each room in of Supreme in Brown pellant’s Court stated As house. Allen, S.Ct. v. My all conclusion that search was (1953) (opinion of L.Ed. 469 strengthened by one is further the fact speaking Frankfurter Justice primary purpose in the officers’ ar- that Court): majority of resting to conduct Giacalone was his- the ascertainment Where latter fact search of his home. And the dispose enough facts torical does is itself to invalidate the search. interpretation James, calls for claim but States 378 F.2d 88 United v. facts, legal significance Harris, (6th Cir.1967); of such United States Judge (6th Cir.1963). District omitted] [citation F.2d judgment on must exercise his own judge trial characterized the ac- legal facts and their val- blend of Internal Revenue tivities of the Service Thus, questions mixed so-called ues. Heights Sterling components Police application constitutional arresting expedition as follows: principles leave to the facts as found protes- Despite their uncontroverted duty adjudication with the fed- contrary, I the record to the tations in judge. eral circumstantial on the believe basis instance, question For whether objec- had some IRS evidence that underlying primary facts established reduction of tive than the mere other prove confession the confession custody. police to state Vito Giacalone voluntary rest was coerced or cannot Similarly contrary undisputed to the on the decision. [Citations State Sterling Heights po- testimony of the omitted]. officers, infer- the basis of lice but on Sain, supra, 372 See Townsend v. U.S. arising evidence, I be- from the ences in this 309 n. goal pur- .A they fortiori had some lieve case, where the court’s conclusions pose to the mere arrest in addition legally predicated upon are erroneous con- on the extortion Vito Giacalone piecemeal view of the activities of the spiracy warrant. they party seach should not be consid- He found that: also binding. ered * * * , agreed from the It had been segmented A view of events and an tangible evidence would start jus- concept unrealistic of consent would * * Mull. turned over tify appel- virtually the sеarch of all of throughout. charge Mull was During lant’s home. course of discovery subsequent Events appellant led into each impugn mo- further upstairs three or four other bedrooms. arresting theAs officers. tives kitchen, He was then conducted to the judge found: family room, and to the basement required open offi- where he information locked From arrest, prior doors for the searchers. to this Several of cer [s] appellant request- under a safe concealed officers testified were aware of 1258 pulled They Sterling Heights

the bedroom closet floor. police were from the up gain some floorboards ac- loose force and the Internal Revenue Serv- Upon request cess. the offi- ice. cers, opened the defendant the safe. appears inescapable It thus inspected The officer its content. beginning officers intended from the spent appellant’s About an hour general conduct and did conduct a ex bedroom. ploratory Although, search. as the trial The search in the fol- bedroom was judge found, the arrest warrant was ob by thorough, systematic lowed far- good faith, tained in the selection of the ranging of the search house which place time and of its execution and the Every lasted an hour about more. manner of its execution it abun make quick eye room least a received dantly pri the search was the clear gone inspection. Certain rooms were mary purpose ap visit officers’ by thoroughly meticulously over pellant’s home. See United States v. expert searchers. James, ‍‌‌‌​​​​‌​​‌‌​‌​‌​‌​​​‌‌‌​‌​​‌‌​​‌‌​‌​​​‌‌‌​‌​​​​‍supra; Harris, United States v. supra. The officers in their testified that they looking extensive search were primary purpose But even if the respondents concealed named 14- the officers was not to conduct warrant, man for means instru- arrest, but to effect the search conspiracy, mentantes extortion constitutionally permissible exceeded conspiracy, for evidence of the and for Judge bounds. As Learned Hand stated weapons. Regarding offensive Kirschenblatt, in United States F. 16 quest which followed the in- bedroom 202, (2d Cir.1926): 2d 203 vestigation, the officers were rather put any particular hard in- describe arresting house, After a man in his piece strumentality of evidence rummage among papers at will searching. were in search of whatever will convict two Heights ment was not the extortion also that spiracy. Admittedly, record, rest calls while search was agents, was the chief law enforcement Service of the United ^[*] photographs He Mull in various To be aAs ^{[*] [*]} X- investigation arrest crew, although investigation, also officers ^[*] IRS -x- ^[*] Police part sure, answered crew, were made conspiracy investigation. of the extensive search X- -X- directly Department in terms of from the the evidence in this with its four rooms of the extortion con- nothing about a dozen color that Police Internal X- X- several there concerned with States. being X- ^[*] to do with the house. in the agency telephone numbers, Sergeant Revenue Sterling Depart- special ^[*] made True also ar- v. United analysis, Ed.2d is no need to are es and nia, I agree would would not so know that one’s trate. fender were not found on the sumably able from what general warrant; ises; him, appears Supreme 90 S.Ct. long 28 L.Ed.2d 388 development seizures applicable but U.S. give made as one is not at home. True, by hypothesis it must be issued (1969), the standards enunciated Court in Chimel v. Califor exist, more repeat to us incident is small consolation to to this case. Williams might the Court reh. papers of the law of search if the L.Ed.2d protection, indeed, to be (1971). here the denied, be done indistinguish- are safe arrests. supposed by magis- But there thorough 396 U.S. 91 S.Ct. warrant Chimel, under (1969), power prem- 23 L. only pre- of- Supreme approved Further, Court has never it must be conceded that most active searchers in the incident home arrest a search as exten- stated the Court articles. As thousand case.6 See in this that conducted sive Hampshire, in that case: Coolidge v. New generally 2022, 443, L.Ed.2d 29 91 S.Ct. 403 U.S. v. United Harris the facts of Even Stew- Mr. Justice (1971), in which States, supra search of 564 which —in 456, at 2033: stated, 91 S.Ct. apartment at and the seizure art a four-room containing envelope altered that, repeatedly held has Court [T]his sus- were documents Selective Service Rabin- v.] States under [United even they ground were that tained on 430, 94 56, 70 S.Ct. U.S. owitz [339 contemporaneous arrest a lawful with may (1950,)] search “[a] 653 L.Ed. cry those of —are a far from ‘only is if it an arrest be incident * * * hesitation have no case. [W]e contemporaneous substantially concluding action of the in the im- is confined the arrest and combing three-story, police in ” here * * * vicinity of the arrest.’ mediate top 16-room house from bottom original) (Emphasis [Citations away papers, carting thousand several omitted.] publications, cannot and other items approved search extensive The most the Fourth Amend- under view of by in Harris v. Unit the Court occurred justified ar- ment as “incident be 1098, 145, 91 S.Ct. 331 U.S. 67 ed rest.” overruled, U.S. (1947), 395 L.Ed. 1399 816, at 89 at 2052. 395 U.S. S.Ct. 2034, 685 L.Ed.2d 752, 23 89 S.Ct. convincing precedent is sus- no California, (1969). 401 Hill v. also See arrest, a taining, as incident to a valid 1106, 484 797, L.Ed.2d 28 91 S.Ct. U.S. intensity scope search of the spent (1971). Harris, the searchers In by was convicted this case. searching apart a four-room hours five the use evidence seized violation floor, single ment, located on rights. rep- His his Fourth Amendment containing envelope several seized figure major utation as a criminal illegally by possessed Harris. cards draft deny should not him the constitutional search, upholding reaf the Court every protection person. created principle is case that “[e]ach firmed Supreme two former Court words of cir its facts and to be decided on own applicable Justices are here: 331 cumstances [citations omitted].” also at * x at 67 S.Ct. 1101. See [ap- U.S. if fate 0f the -¿he onjy California, 72 S. might Rochin v. 342 U.S. pellants] involved, one (1952). by And the ways brutally Ct. L.Ed. indifferent to the difficulty determining case in each get But which their deserts. is under the precisely whether a search unlawful appeal is because applied the ma uncertain standards Fourth Amendment is so often made jority by Mr. in Harris was stressed in- dubious characters its fringements Justice Jackson in dissent. 331 U.S. call for alert and stren- Supreme But the speech, S.Ct. 1098. uous Freedom of resistance. clearly, press, easily Court later indicated more religion, sum- Jersey, against powerful Von Cleef support New mon en- (1969) against 23 L.Ed.2d 728 prohibition croachment. (per curiam), pre-Chimel line unreasonable seizure significantly beyond normally to be drawn invoked those accused In Von held il crime, Harris. the Court and criminals have few friends. Cleef legal, pr standards, implications under e-Chimel of such encroach- ment, however, beyond three hour search of a room house reach far resulted the seizure several thief or the I can- black-marketeer. Supreme I am aware of no deci- different Court that on which the arrest upheld, sion which has to an as incident was made. pre-CMmel arrest, a floor search on legal give to what was sanction accepting in this case without done a decision implications of such por- future, implications which against precious serious threats tend aspects freedom. of our traditional States, 331 U.S. v. United Harris L.Ed.

156-157, 67 S.Ct. J., (Frankfurter, (1947) dissent-

ing).

* * * laws, government of In a government will be

existence

imperilled it if fails to observe government is scrupulously. Our

law potent, omnipresent teacher. good ill, teaches the or for it For example. people Crime is its whole

contagious. government be- If lawbreaker, con-

comes a it breeds law; every tempt man it invites himself;

become a law unto invites

anarchy. ad- To declare that

ministration of the criminal law justifies

end the means—to declare government may commit

crimes in order to secure the convic- private

tion of a criminal—would

bring Against terrible retribution. pernicious doctrine court resolutely

should set its face.

Olmstead v. United 564, 575, L.Ed. 944 (1928) dissenting). (Brandeis, J.,

I would order the issuance of the writ.

NATIONAL LABOR RELATIONS Petitioner, ‍‌‌‌​​​​‌​​‌‌​‌​‌​‌​​​‌‌‌​‌​​‌‌​​‌‌​‌​​​‌‌‌​‌​​​​‍BOARD, BUILDINGS, INC.,

DIXISTEEL Respondent.

No. 71-1053. Appeals,

United States Court of Eighth Circuit.

July 26, 1971.

Case Details

Case Name: Vito Giacalone v. William Lucas, Sheriff

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jul 30, 1971

Citation: 445 F.2d 1238

Docket Number: 20707

Court Abbreviation: 6th Cir.