Warren H. Byrd v. Ward Lane, Warden of Indiana State Prison and David P. Morton, Superintendent of Dr. Norman B. Beatty Memorial Hospital
398 F.2d 750
7th Cir.
1968
Check Treatment

*1 provided by Act Natural Gas nullify authority Peti it.

are BYRD, Petitioner-Appellant, Warren H. invalid assert no constitutional tioners ity practice contend that but LANE, Ward of Warden Indiana State holding by us circumstances warrant Morton, Superin- Prison and David P. of the five Commission’s exercise Beatty tendent of Dr. Norman B. Me- major suspension period in the months’ Hospital, Respondents-Appellеes. morial ity independent ‍​‌​​‌‌​​​‌​‌‌‌‌‌​​‌​​‌‌​‌‌​‌​​​‌‌‌‌​​‌‌‌​​​‌​‌‌‌‍producer filings, when of No. 16535. pending, area case is rate is an of unable discretion. abuse areWe Appeals States Court of agree, apparent Seventh for that Con Circuit. gress protect from intended to consumers July 25, 1968. Commission until increased rates just rates, fix but would reasonable period it considered months five .8 permitted be maximum

would

Being belief that the Com authority

mission has undoubted 4(e) suspend involv

Section the rates part

ed and that used this time as requirement

of the overall the time

necessary to make a determination

price in proceeding, the area affirm holdings. suspen

the Commission’s period petitioners’ long

sion for rates has expired currently

since and the rates are

being collected. for will sufficient parties final to await

determination of the Texas Gulf ‍​‌​​‌‌​​​‌​‌‌‌‌‌​​‌​​‌‌​‌‌​‌​​​‌‌‌‌​​‌‌‌​​​‌​‌‌‌‍Coast finding proceeding, upon

area rate by appro

the Commission determine

priate re to show cause amount, required, are what

funds involved, period including

period suspension. agree plaintiffs

We do not Commission has not stated suspension.

reasons Its order proposed

clear were 3 rates per higher

cents Mcf than the 14-cent ceilings for

rate the railroad districts petitioners’ leaseholds located.

Affirmed. provisions 4(d), required. period Under the Section combined with thirty days’ possible Commis- suspension notice to ‍​‌​​‌‌​​​‌​‌‌‌‌‌​​‌​​‌‌​‌‌​‌​​​‌‌‌‌​​‌‌‌​​​‌​‌‌‌‍the initial period five-month gas public by sion natural makes a maximum total of six months. change company contemplated rate *2 corpus, complaining that he was

beas by Indiana in viola- tained the State rights Constitution tion of his supplemental A the United States. alleging petition exhaus- filed see court remedies. We tion of all State discussing relating in no by proceedings the State court in alleged have been such remedies were respond- reason exhausted for thе respect; in in ents take no issue tacitly that such rem- concede do we edies were exhausted. Neither Mapp need to discuss v. Ohio because concededly is insofar the instant situation. petition unique The is predicated solely upon premise attorneys represented peti- the two who in- State court trial were competent and that the “restrаint and de- Bowman, tention of Samper, violation of his Forrest Ferdinand rights guaranteed by Ind., petitioner-ap- Jr., Indianapolis, for the Sixth and Fourteenth Amendments pellant. of the United Constitution States Davis, Dillon, Indian- F. John J. John specifically rights his constitutional respondents-appellees. Ind., apolis, process equal due law protection laws, by all reason of Judge, MAJOR, Circuit Senior Before * * following facts: Then FAIRCHILD, Circuit KILEY pages allegations, follow some fifteen Judges. premise. all directed to such Judge. MAJOR, Following Senior Circuit lengthy hearing a devoted in the main to contention in a State is incarcerated Petitioner that his Sixth Amendment prison in the Northern located violated, Judge Robert Grant ren- Indiana, pursuant a commitment dered a memorandum in Henry of that State. Circuit Court he competency noted that of one of guilty charged and found He was attorneys by petitioner was conceded murdering by adminis- wife proof found on the the other poison. He was tration of arsenic attorney competent. was also and the trial rested commenced June Among the State allegations numberous 1961, resulting in verdict on June tained in the para- was that Supreme graph (j): the same date announced Court of “That at the trial of the cause here- Ohio, Mapp its decision in the State of Indiana introduced 1081. The objection evidence without State’s Ex- judgment of affirmed conviction was hibit which was a bottle labeled #1 Court, Byrd Supreme the Indiana poison. That Eugene State’s witness State, 243 Ind. N.E.2d Short testifiеd that he found said bot- (1962). tle behind the Byrd furnace of the The before us was initiated case home a search he made of the twenty-page petition for a ha- writ of on March 1961. That place often found It has been held that same he ten or similar search is twelve bottles that dirty; question cov- the trier facts that Exhibit #1 finding, substantially supported, ered with or soot.” dust Drum not be on review. will disturbed petition alleged this evidence mond v. United illegal was obtained as result of an *3 Thompson, 983, 988; States v. United home, petitioner’s of admitted 220, Cir., 216, cert. den. objection part peti- on of the 16 L.Ed.2d tioner’s of and was violation States, 9 Ruud United and his the Fourth, Fifth and Fourteenth Amend- unnecessary to recite ments deem to Constitution We response testimony allegation, In Davis States. this Shеriff to detail (not five the court three other officers memorandum and the its. suggested by petitioner) six, stated: or concerning peti- to the circumstances argues “Finally, petitioner that evi- to the tioner’s and his consent upon dence discovered search of search of his home. Davis testified by police his and re- admitted or that he the other officers went аnd ferred to the trial was not ad- p. petitioner’s m. home at about 4:30 missible because obtained as a result sitting March and found him illegal (Petition 8) search. at a car man. Petitioner with another hearing May At the petitioner’s held in this Court house into Davis went son, daughter, 12, 1967, Respondent’s where his brother Exhibit A was present. pe- Either sister-in-law were being admitted, petitioner’s suggested they titionеr or Davis that have his house residence step shop into the barber which was Davis, Henry searched” Warren in the room of When front the house. County Sheriff, and other officers. there, petitioner he Davis advised It further found: charging him warrant v/ith Byrd signed “All testified that wife, gave murder of he his presence their and that it was done petitioner petitioner. if Davis asked voluntarily. Byrd All that testi- cоuld permission could have to search fy to was that he did remember house, freely his signing light ‍​‌​​‌‌​​​‌​‌‌‌‌‌​​‌​​‌‌​‌‌​‌​​​‌‌‌‌​​‌‌‌​​​‌​‌‌‌‍such form. all nothing gave, stating, “I have to hide. testimony hearing, you nothing Sure search. can have the Court can conclude that hide.” evidence obtained as a result properly time, At admissible.” same Davis informed sign did not he By August 10, 1967, its order entered written consent which Davis the court denied for writ of аuthorizing search, such he would be corpus, habeas from which order warrant, forced to obtain appeals. signed testified, it. Davis The sole issue before this testimony corroborated petitioner’s home, whether officers, search of promise other that no or resulting in seizure threat was made and no form coer- poison, violated his constitutional employed cion or intimidation dependent The resolution of this issue obtain such consent. Petitioner testi- petitioner voluntarily fying con- on own his stated that no behalf sented to such permission search or whether one asked his to search his pursuant premises, they (referring to lawful arrest. to the home on charged he made of officers) “just on allegation in re- denied nothing present- 1961.” This house,” petition. spondents’ response Re- signature. After him for his ed state, spondents consent, on “In brief the ease he being the written shown Appellant arrested with a bar the not remember he did lawful warrant and the paper being presented with temporaneous space signa- although time, he admitted challenge arrest.” Petitioner does not apрeared his. to be ture directly indi- either agree rectly. to search Court appears to us that given freely and voluntari home was his contention that abandons coercion; duress, promise or ly, without immediately follow- testimony unmis we think argument he *4 takably that such consent discloses states, “The evidence shows that at the writing. orally in both four, po- five or six in of cases a number cites Petitioner lice officers went into the home of the that under support of his contention company Sheriff, in the any obtained circumstances who had with him a warrant for the involun- a matter of law search was as charge rest of the aon of these tary. discussion defer a We degree Referring murder.” many of them that for the reason cases signed by pe- written consent which was legality made consider the arrest, titioner at the time of his by or incident either states, petitioner agreed “The to a lawful arrest. sign document, and stated that he nothing to hide. The document was brings us to contention This signed by petitioner, and the search in upon by respondents the search was made.” is not reasonable to proper made inсi- question was because think any question that if there was as Unfortunately lawful arrest. dent to a to when the search was made refer- developed trial in the this issue was arrest, petitioner ence to the time of might Neither have been. court as inquiry would have made of the officers in here nor the court on brief arrest, who made the conducted the any opinion mаkes its memorandum search and testified in the instant mat- suspect sit- that this it. of We mention ter. testimony point on this noted, fact, already due to uation is by Davis, elicited the court from as in- in the counsel able follows: main effort their matter devoted stant “The Court: Then the search that incompetency attempt prove was made time, at that aft- is- that the petitioner’s trial er the arrest signing? and after the merely in- regarding sue The search conducted; was then is cidental. what I am to understand ? in his own arrested Petitioner “The Witness: We did conduct a war- a lawful home, execution in the search, yes, yes. p. m. 4:30 rant, at about engendered some “The Court: 1961. Petitioner Thereafter? to whether as confusion “The right.” Witness: That’s next following re- need alleging dwell in his by day by сases cited facts, “That clearly reveal peating in his that Mapp Ohio, Eugene Short testified witness U.S. State’s fur- behind said he found during a search instant situation judg- where nace of 649. Both of in the State court these cases are distin- ment of conviction guishable upon that of the the marked difference was entered Judd, Mapp. Ker et the factual situation. in- was stated in cоurt in As stance, California, 374 the defendant was arrested with- ux. State of p. m., jail out a 10 L.Ed.2d 726: warrant at held 83 S.Ct. open charge interrogated for sev- Mapp specifically held “We concerning police eral hours officers prohibition is en- this constitutional general activity. m., criminal At a. against through forceable the States custody four officers Amendment. the Fourteenth handcuffed, he was taken to means, Mapp, we said in home, in- own which was searched and Fourth Amendment ‘is enforceable criminating evidence found. Defendant against them the same [the states] against testified ‍​‌​​‌‌​​​‌​‌‌‌‌‌​​‌​​‌‌​‌‌​‌​​​‌‌‌‌​​‌‌‌​​​‌​‌‌‌‍of this that all sanction of used exclusion consent; will and against Government,’ by the Federal one of the officers application same constitu- give thе defendant “didn’t actual con- us prohibiting tional standard ‘unreason- sent to search it.” Under these circum- ” able searches and seizures.’ stances the consent supports Ker that a valid voluntary, the search was not Thus, be made incident to a lawful reversed the conviction. the facts In that case the cry defendant’s Judd far from those here. *5 room was searched either an ar- without Nikrasch, In this court reversed a rest or search warrant. The court stat- ground conviction on the that evidence (page 1634) page ed 83 : S.Ct. at the trial was obtained an unrea- “Having petitioners’ held the ar- sonable and seizure. Petitioner lawful, rests particularly upon remains to consid- relies the statement (367 er page 744): whether the search which F.2d leading the evidence to their convic- appeal “On this the Government has tions was lawful as incident to those argued not that defendant waived arrests. The doctrine that a search protection accorded the Fourth lawfully without warrant by ‘consenting’ Amendment ducted if incident to a lawful arrest 9:00 A.M. car search at the sta- long recognized been as consistent tion search at protec- with the Fourth Amendment’s agency. Mancuso Chevrolet Since against tion unreasonable searches arrested defendant was then custo- cases.) (Citing and seizures.” dy in Skokie cell-block had The court affirmed conviction in apprised been Fourth Amend- premise that case on the that the search rights, correctly ment the trial court and sеizure was incident to a lawful observed no consent had true rest. The of Ker rationale given to Detective Reiter.” to the instant situation where the search Respondents urge and seizure followed arrest us to “re-examine admittedly holding on an lawful warrant. re-evaluate” our in Ni- krasch no true consent Petitioner contends that the consent apprisement cаn be absent an to search his home be- petitioner’s rights. Fourth Amendment apprised cause he was not We note that First Circuit Gor- his Fourth Amendment Two States, man v. 380 F.2d strongly support cases are 158, stated: of this contention. United States v. Ni- krasch, Cir., accept sug- recently “We a de- recent cannot gested court, specific warning cision of Judd v. United U.S.App.D.C. necessary fourth F.2d аmendment eight department after some hours after a warrantless validate (Cit- jail. committed to fendant was suspect arrested.” has been recognized propriety cases.) of a ing and other Nikrasch search made to a valid arrest incident in Ni- think our While 883): page (page but propriety, are not krasch of dubious giv- “Once accused is under arrest and rejeсt it was disposed it because custody, then a at an- search made application situation factual en place, warrant, other is sim- great In that here. variance ply not incident companions arrest.” case, were the defendant and 1 a. about warrant at arrested without the instant case charge, disorderly conduct m. on a legal arrested his own home aon jail. At the were committed permitted arrest warrant which he was arrest, car of defendant’s read, charging to murdering him with the crime of one of the was made with poison. his wife There eight parties. after hours Some support is substantial evidence in lodged jail, searched the officers finding that this consent to search was at the station car voluntarily given. event, again to an removed search was made anas incident ato law agency. As to the automobile poison ful and the bottle of page (367 search this court stated 742): seized was relevant to the crime with charged. found Court “The appealed The order from is the fill- seized 1957 Chevrolet Affirmed. to a lawful pursuant station companions, that and his of defendant Judgе FAIRCHILD, (concur- Circuit constitu- Village ordinance ring) . probable tional, that the officers ground I concur on making thereun- the arrests cause for voluntarily consented *6 der, and seizure search and that the search. arrests.” incidental the approved of evidently court (dissenting). Judge KILEY, Circuit arrest. the at the made The issues which this dissent. 743): (page stated deciding case this must resolvе right to police had the if the “Even voluntarily consented station, gas this at the car the home which the of his to the question the not decide does poison introduced as evidence a bottle of against him, A.M. 9:00 the reasonableness search, if or whether and subse- police station at the search quently justi- to, not was nevertheless consented agen- Chevrolet аt Mancuso’s petitioner’s arrest. fiable incidental to cy.” my us now the record before view searches, purportedly The contain sufficient information does consent, were defendant’s intelligent made with to make an to enable us defendant’s to violation be issues. termination these theory petitioner relied The on which in his court is that pertinent to this observe It also house, heavily sent which he Preston to Nikrasch signed 15, 364, on March because States, 84 S.Ct. was invalid v. United signed, warning, proper without which reversed 881, 11 L.Ed.2d ground upon was under arrest. Dur- judgment of conviction argument prosecuting the oral incident not made was the search peti- Preston, attorney stated that the record of the search arrest. a lawful police tioner’s state trial showed car was defendant’s 756 States, U.S.App.D.C. yield- 190 United petitioner’s home which

search of poison on was made ed the 15 when and not on March March gleaned from most that can The signed. us is that the record before record A of the trial court review police his home met outside officer who found shows March 1961. He was escorted inside poison unequivo- the bottle where him he told was cally that found on March the bottle was sign a rest and him asked itself and the bottle was labeled signed the search his home. He consent. policeman’s “3- date initials twenty- poison A bottle of was found 16-61.” four hours later a search of his strong light Important questions In the indication in home. of fact left the record made on unresolved include: what did thе con- ignore sig- signed by petitioner say; should sent was there nificance of information this initial search made on March questions signed, the determination of the when the consent or was the was made; before us. search on the 16th the first to be petitioner aware, was questions of law that must be signing consent, the search considered us are: was the consent delayed would be or that more than one signed to a search of made, search would be or was he under on March 15 an effective waiver of impression agreeing that he tioner’s Fourth Amendment regard single search; immediate search; to the March 16 and was aware that the March 16 search was the search made on March 16 incidental being made; custody he in when it to thе arrest on March 15. made; represented by was he coun- justifiable In order for a search to be sel time March 16 search was as incident to an arrest it must be con- made, lawyer so was his aware of temporaneous place in time and with the the consent and of the March 16 search. arrest. If the search in this case was my day one court can- not, not mаde contemporaneously with the answers least questions, some of arrest and was therefore these not incidental determine that the state has met proving Preston v. burden unequivocal there spe- cific 777; Harvey, consent to the March 16 7th Cir. search. *7 speculate presume cannot July F.2d favor of the waiver of a vital constitutional must decide in the district cоurt right. question factual instance jurisdiction consent to the would whether there was valid retain and re- government mand March 16 search. The directions to the trial court proving by posi- clear and conduct hearings further burden and to make specif- unequivocal, findings additional tive evidence that ic, intelligent to be certi- us, fied to consent for the search has in order that we make a given. Smith, sound v. determination of the issues before Cir., 657; Willing us. Binenstock, Channel v. See 217; Judd L.Ed. 248.