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UNITED STATES EX REL. GRIFFIN v. VINCENT

April 18, 1973

UNITED STATES of America ex rel. Russell GRIFFIN and Paul Knapp, Petitioners,
v.
Leon VINCENT, Superintendent of Green Haven Correctional Facility, Respondent


Pollack, District Judge.


The opinion of the court was delivered by: POLLACK

POLLACK, District Judge.

Petitioners Griffin and Knapp were convicted on June 18, 1971 of felony murder, robbery in the first degree and assault in the first degree. Each was sentenced to twenty-five years to life imprisonment on the murder conviction, an indeterminate term of twenty-five years on the robbery conviction, and an indeterminate term of fifteen years on the assault charge, the terms to run concurrently. Petitioner Griffin was also convicted of manslaughter in the first degree and assault in the first degree; he was sentenced to additional concurrent indeterminate terms of twenty-five years and fifteen years, respectively, on these other convictions. These convictions were appealed and upheld in the state courts; petitioners are presently in custody of the warden of Green Haven Correctional Facility.

 Petitioners now move this Court to issue a writ of habeas corpus, asserting two grounds. First, petitioners contend that the New York City police conducted an illegal search and seizure and that the evidence obtained thereby should have been suppressed at trial. Second, petitioners assert that the testimony at trial of state's witness Michael Williams, which is characterized as the only evidence linking petitioner Knapp to this crime, was perjured, and, therefore, insufficient to support a conviction.

 I. Search and Seizure

 On April 3, 1973, this Court, in its discretion, ordered an evidentiary hearing to be held April 13, 1973 "to determine the facts and circumstances in relation to the search of petitioner Griffin and the seizure of evidence from him, particularly with regard to the stopping of the taxicab in which he was a passenger, the propriety thereof and the applicability thereto of the Fourth Amendment." See Lavalle v. Delle Rose, 410 U.S. 690, 701 n. 2, 93 S. Ct. 1203, 35 L. Ed. 2d 637 (1973), (Brennan, J., dissenting); United States ex rel. Clayton v. Mancusi, 326 F. Supp. 1366, 1373 (E.D.N.Y. 1971), aff'd, 454 F.2d 454 (2d Cir. 1972); Developments in the Law -- Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1138-1140 (1970). This order represents a rare exception to the general principle of directing a federal habeas hearing only when so required by 28 U.S.C. § 2254(d). However, the Court was faced herein with subtle issues of constitutional law lurking potentially in the background, with factual disputes seemingly unresolved in essential totality, and with petitioners sentenced to especially long prison terms. Of dubious necessity at most, a hearing would nonetheless afford petitioners an opportunity to explore every aspect of their apprehension and search properly to be considered under their federal contentions. Counsel was appointed to represent petitioners at the hearing. 18 U.S.C. § 3006A(g).

 Unless petitioners can show that the state proceedings suffered from any of the defects enumerated in § 2254(d) or, "by convincing evidence that the factual determination by the State court was erroneous," § 2254(d), the state findings are presumed to be correct and it would be improper for a federal court to make new findings on the same matters. A review of its proceedings and decision shows that the state court properly applied constitutional principles and fairly resolved the disputed issues of fact upon a full and adequate record. *fn1" Moreover, at the federal hearing, petitioners failed to overcome the presumption of § 2254 that the state court's findings of fact were correct; indeed, the evidence adduced at that hearing squarely confirms the state's version of the facts accepted by the state judge in his findings.

 The basic fact pattern of the case can be stated as follows. At about 4 P.M. on Saturday, September 12, 1970, Michael Frank and Waldo Howell, employees of a branch of Woolworth's, were carrying the store's money, amounting to $13,000, to a night depository of the Irving Trust Company, located at Madison Avenue and East 39th Street in Manhattan. While at the depository, they were approached by a man with a gun, who ordered Howell to drop the money bags. When Howell hesitated, the man knocked the bags away. Both employees bent down to retrieve the money; shots were fired by the robber, killing Frank and wounding Howell.

 At about 4:15 that day, cab driver Kenneth Murray hailed Patrolman William Casey, who was standing on 49th Street and 5th Avenue and told him that the passenger in the cab then in front of Murray's cab was one of two men who had fled in opposite directions, in the 43rd Street and Madison Avenue area, the scene of a purported automobile accident. Casey and his partner, Patrolman Peter Curley, entered Murray's cab, instructing Murray to overtake the other cab, which he did. Curley and Casey got out of Murray's cab, went to the other cab and Casey spoke to the passenger. In the course of the events that followed, the officers took from petitioner Griffin, who was the passenger, a gun later established to be the murder weapon and money bags marked "Irving Trust" and "WOOL" containing $13,000, which were in a plastic bowling bag.

 An automobile accident had, in fact, occurred in the vicinity in that time period, although not involving petitioners.

 The state's version of the facts of the investigation as given by the officers, properly accepted by the trial judge, is that upon overtaking the cab containing Griffin, Officer Casey commenced some routine questioning. Casey perceived that Griffin appeared nervous and responded equivocally with regard to any involvement in an auto accident. Casey noticed that Griffin's hand was skinned or bruised. Griffin claimed he carried no evidence of identification. At this point, when circumstances began to corroborate Murray's report, Casey asked Griffin to step out of the cab, and Griffin complied by getting out on the traffic side of the cab and bringing with him a plastic bowling bag. Within moments thereafter a report came over Curley's walkie-talkie radio to the effect that a robbery and attempted murder had occurred in the 17th Precinct, the vicinity of the purported automobile accident, and that the perpetrators had fled the scene. Murray, the informant, on hearing this report over Curley's radio asked that his identity be kept from the passenger ahead, stating in effect that Griffin might be the wanted felon. After hearing the report, Curley called to Casey, telling him, "I think he's [Griffin] wanted for a shoot-out in the 17th Precinct." Griffin tensed visibly and made a sudden reach toward his inside pocket. The officer reacted by stopping Griffin's hand, saying "I thought you said you had no identification," and receiving no response and suspecting some danger to his safety, he then frisked the area where Griffin reached, finding the gun. Griffin was then placed under arrest, was handcuffed, and the officers unzippered his bowling bag, discovering the money bags within.

 Griffin testified that the officers took positions on either side of the cab and ordered Griffin to leave the cab at once and, in doing so, he cut his hand. He claimed he equivocated about his involvement in an auto accident because he confused the question about an "accident" as a reference to the cut on his hand. He claimed he denied any involvement in an auto accident and said that without further ado the officers searched his bowling bag, where the money was found, and his person, where the gun was found and seized. Griffin denied that either officer had a walkie-talkie and averred that neither had received an alarm concerning a robbery or shoot-out.

 Murray, the cab driver, was called to the stand at the federal hearing and testified unequivocally that a walkie-talkie was in operation, and he corroborated the police testimony of the robbery and shooting alarm.

 The investigation by officers Curley and Casey proceeded from a reasonable suspicion that an automobile accident involving petitioner Griffin had occurred and that Griffin was leaving the scene of such an accident without filing proper reports. See New York Vehicle and Traffic Law § 600, McKinney's Consol. Laws, c. 71. When cab driver Murray hailed the officers and gave his report he provided a sufficient basis for making an immediate routine inquiry before Griffin left the area. An informant who accompanies the police to a confrontation with the accused is unlikely to be perpetrating a deliberate fabrication, People v. Moore, 32 N.Y. 2d 67, 343 N.Y.S. 2d 107, 295 N.E. 2d 780 (1973), especially since civil or criminal liabilities may exist for inducing a false arrest. Adams v. Williams, 407 U.S. 143, 147, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972). This is more particularly true where the informant is a cab driver, whose professional status -- and perhaps even his hack license -- might be endangered by a false report to purposely mislead police officers. While Murray's information may not have provided probable cause for an arrest then and there, it provided a rational basis for an investigatory stop, routine inquiry and request for identification. This was a limited, reasonable and permissible intrusion into petitioner Griffin's rights. See People v. Moore, 32 N.Y. 2d 67, 343 N.Y.S. 2d 107, 295 N.E. 2d 780 (1973); United States v. Scheiblauer, 472 F.2d 297, 300 (9th Cir. 1973). As the Supreme Court recently stated in Adams v. Williams, 407 U.S. 143, 145, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612 (1972):

 
In Terry [v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)] this Court recognized that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Id., at 22 [88 S. Ct., at 1880]. The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response.

 In the situation facing officers Curley and Casey, the "essence of good police work" required the "intermediate response" of stopping Griffin for routine questioning, to verify, refute, and generally probe the cab driver's report. The alternative was to allow the suspect to escape all present and likely future investigation.

 Even if the cab driver's report proved, in retrospect, to be mistaken, *fn2" that is not dispositive of the validity of the stop. United States v. Riggs, 347 F. Supp. 1098, 1103 (E.D.N.Y. 1972), aff'd 474 F.2d 699 (2d Cir. 1973). The test of "reasonable suspicion" is applied through the perspective of the officers at the time of the investigation, not through the luxury of retrospective contemplation. Indeed, the entire thrust of the federal exclusionary rule, see, e.g., Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), focuses not on afterthoughts concerning a stop or search but rather on the contemporaneous appearances and ...


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