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Defendant Contends Violations of Search and Seizure Law

Seldom has this Court considered a more spectacular or bizarre case than this habeas corpus petition of an experienced Texas criminal lawyer, former mayor of the City of Pasadena, Texas, who was found guilty in Texas State Court of being the mastermind and accomplice in an especially brutal and horrible assault and robbery, but who contends that he was invalidly convicted in violation of federal constitutional rights.

A New York Criminal Lawyer said that, the is presently serving a sixty-year sentence imposed by the Criminal District Court of Harris County, Texas. A jury found him guilty in a separate trial as an accomplice to the crime of robbery by firearms, committed by three principals. The defendant has appealed from the denial of his petition for habeas corpus by the United States District Court for the Southern District of Texas, Houston Division.

On appeal Hoover has asserted two claims of error to the denial below of his habeas corpus petition based on federal constitutional grounds. First, he contends that the Court erred in refusing to sustain alleged violations of his Fourth and Fourteenth Amendment rights to be free from unreasonable search and seizure. The State Trial Court admitted into evidence two diamonds seized from the defendant’s home during a nighttime search conducted by the Houston Police Department. Defendant argues that the search was made without his voluntary consent, by police officers acting under color of a search warrant which was invalid. Secondly, the defendant asserts that his right to confrontation under the Sixth and Fourteenth Amendments was infringed when the State Trial Court admitted into evidence the oral confession of alleged principal and co-indictee. A Nassau County Criminal Lawyer said the confession, which also implicated the defendant as an accomplice, was admitted during the testimony of the police officer to whom the defendant confessed, pursuant to a well-established Texas exception to the hearsay rule which allows the confession of a principal to be admitted at the trial of an accomplice to prove the principal’s guilt, proof of such guilt being a necessary prerequisite to conviction of an accomplice to the offense.

The panel of this Court which originally heard the case decided in the defendant’s favor on both claims of error, reversed the judgment of the District Court denying the defendant’s petition for habeas corpus, and remanded the case with directions to grant the writ and discharge the defendant, unless the State elected to retry him within a reasonable time.

The issues in this case are whether the two diamonds seized from the defendant’s home was obtained against the rule on unreasonable searches and seizures; and whether the defendant’s right to confrontation was infringed when the State Trial Court admitted into evidence the oral confession of the alleged principal and co-indictee.

Pursuant to Rule 35 of the Federal Rules of Appellate Procedure, the case was placed en banc by the Court. Upon rehearing en banc, after careful consideration of the issues presented and review of the entire record before us, a majority of this Court is of the opinion that the panel decision should be reversed, and the judgment of the District Court denying Hoover’s petition for a writ of habeas corpus is therefore affirmed.

The facts and circumstances surrounding the search of the defendant’s home and seizure therefrom of two diamonds stolen from the victim’s residence are uncontroverted. An officer testified that during the early morning hours of March 18, 1964, in the company of nine other law enforcement officers and the Justice of the Peace who had issued a search warrant for the search in question, he went to the defendant’s home, knocked, and the defendant answered the door. The officer announced who he was and that he had a warrant to search his home. The defendant told him “that the search warrant was unnecessary, for him to come on in his house and look wherever he pleased.” None of the officers was in uniform, but several of them would have been well known to the defendant because of his criminal law practice in the Houston area.

The officer had the warrant in his hand when he knocked on the door. The officer asked to see the warrant after the defendant was inside. The State Trial Court upheld the search on the ground that “The defendant said it’s not necessary to have a search warrant, come on in and search the residence.”

There is no dispute as to what happened and what was said. The controversy concerns inferences and conclusions to be drawn from a known set of facts. Appellant acknowledges that the words he spoke constituted an invitation to the police to enter and search. Nevertheless, he argues in reply brief on rehearing that “The invitation which appellant extended to the searching officers to come into his home upon his being presented with that misrepresentation the allegedly invalid search warrant was induced by, and solely a product of, that misrepresentation. “Therefore any consent evidenced by that invitation could not have wholly been a product of the appellant’s free will.”

A New York Sex Crimes Lawyer said there is no affirmative evidence in the record to support the contention that the invitation was actually involuntary. Hoover did not testify at the voir dire hearing pertaining to the validity of the search when the matter was considered out of the presence of the jury during his trial in State Court, or in the proceedings below on his petition for habeas corpus. Rather, we are asked to draw the inference that the statement of the officer that he had a warrant weakens the meaning of defendant’s subsequent words of invitation and the intent which those words convey in the ordinary course of human experience namely, consent.

The State Trial Judge ruled that the words uttered by defendant meant that the defendant was inviting the police officers to search his home, without reference to any search warrant which they possessed. The District Court below felt that while it was not bound by the findings of the State Trial Court, those findings were nevertheless entitled to great weight. Independently, the District Court below held that the evidence was uncontradicted and established that the defendant not only consented to the search, but even invited it. The Court pointed out that the Texas Court of Criminal Appeals also found that there was invitation to search, which finding of fact affirmed the State Trial Court’s ruling.

Whether consent to search has been given is a question of fact. The Court’s own view of the testimony is that when the defendant told the police officer that his warrant was not necessary and to come on into his home and search wherever he wanted, this constituted clear and convincing evidence of voluntary consent to the search, irrespective of the validity of the warrant. The defendant voluntarily consented to and invited the search. That consent was neither coerced nor compelled by the search warrant. The argument that express declarations of invitation and consent, such as were present here, constitute nothing “more than acquiescence to a claim of lawful authority” neither comports neither with reason and logic nor with human experience and common sense.

The Texas State rule of law prior to Bumper was not substantially different from the principles upon which Bumper is based. In one case, on which the Texas court relied to find consent, the Texas Court of Criminal Appeals stated: “This court has frequently held that when a party was advised that officers had a warrant to search the premises the mere statement of the party that it was all right to go ahead was not regarded as a waiver of the right to question the regularity of the warrant nor of consent to the search. On the other hand, where the party tells the officer that a warrant to search is unnecessary, and no issue is made on the question, consent is shown. The question turns on the point as to whether the party really gives consent for the search, or merely acquiesces in the officer pursuing his legal rights under a valid warrant.”

The Court holds that the search of the defendant’s home was not constitutionally invalid. The State of Texas concedes that if Aguilar applies to the search of defendant’s home, the affidavit supporting the search warrant does not meet the probable cause standards prescribed by Aguilar. The State argues, however, that Aguilar does not apply to the search in question which occurred about three months before Aguilar was decided on June 15, 1964. The original panel held that “Defendant need not rely on Aguilar retroactively since he had not been tried and convicted when the decision in Aguilar was rendered.” Subsequent to the panel decision, however, the Supreme Court decided that a prior decision which narrows the scope of permissible searches is not to be retroactively applied to searches conducted prior to the date of decision. Thus, because the Defendant search was made prior to the Supreme Court’s decision in Aguilar, it is not affected thereby. The panel’s holding that the search of defendant’s home was constitutionally invalid is expressly rejected by this Court.

As for the second issue, the Court said that, the Sixth Amendment to the United States Constitution provides that “In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.” The Court held that “the Sixth Amendment’s right of an accused to confront the witnesses against him is a fundamental right and is made obligatory on the States by the Fourteenth Amendment.” At the defendant’s trial, the State Trial Judge admitted into evidence the oral confession of Sellars through the testimony of Houston Police Officer Stone. The confession made reference in part to alleged accomplice defendants participation in the crime committed by the principals. The confession was admitted pursuant to Texas law on the basis of a well-established exception to the hearsay rule. The defendant contends, however, that he was denied the right to confront and cross-examine Sellars, the confessor, all in violation of the Sixth and Fourteenth Amendments. After careful consideration of the record, the Court holds that under the facts and circumstances before us, defendant’s Sixth and Fourteenth Amendment rights were not violated. Moreover, if there was error of constitutional proportions, the record shows that it was harmless beyond a reasonable doubt.

Thus, in view of the foregoing, the Court ordered that the panel decision be reversed, and the Court of Appeal’s decision in denying the writ of habeas corpus is affirmed.

Everyone has the right to be protected against unreasonable searches and seizures. If you have been charged of a crime, and the evidence used against you was unlawfully obtained, you need the help of a Suffolk Criminal Attorney to explain to you the legal consequences in criminal law. Without the help of a Suffolk Assault Attorney, you will lose your constitutional rights. Suffolk Order of Protection Attorney at Stephen Bilkis and Associates can represent your day in Court.

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