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September 24, 1975

Application of Richard MARTUZAS

The opinion of the court was delivered by: CURTIN

CURTIN, Chief Judge.

 This is a petition for a writ of habeas corpus. The petitioner, Richard Martuzas, was convicted after a jury trial in Jefferson County Court, on November 4, 1971, of the crime of criminal possession of a dangerous drug in the third degree. He was sentenced to an indeterminate term to have a maximum of five years and is presently on parole. His conviction was affirmed by the Appellate Division, Fourth Department, in July 1972 and leave to appeal to the Court of Appeals was denied in September 1972. His state remedies are exhausted.

 The petitioner was stopped for speeding by two New York State Troopers in the early morning hours of September 26, 1971. One of the officers made a search of the passenger compartment of Martuzas' vehicle and discovered two bags of marihuana. This contraband was used as evidence in the trial which resulted in his conviction. Petitioner attacks the conviction, contending that the marihuana was the product of an unconstitutional search and seizure and was inadmissible at trial.

 Before trial in the state court, a hearing was held on petitioner's motion to suppress. Trooper Gaebel, who discovered the marihuana and arrested Martuzas, testified that the petitioner exited his vehicle immediately upon stopping and met Gaebel at the left rear of Martuzas' car. He arrested Martuzas for speeding while they were at the rear of the vehicle. After the arrest, he went up to the car "looking closely" because he knew the petitioner had been previously convicted for possession of narcotics. State Court Hearing Transcript [hereinafter S.H.Tr.] at 5, 17. He testified that he saw a portion of marihuana leaf about 3/4 by 3/8 inches in size. S.H.Tr. at 6. Relying on this, he conducted a complete search and discovered two bags of marihuana under the front seat. Trooper Eisenhauer, the other officer present, testified that Gaebel looked through the window of the car with his flashlight. S.H.Tr. at 22. The floor of the vehicle was littered with paper cups and other trash. S.H.Tr. at 16. The state court judge found the facts as follows:

Well, the findings are brief. The car was stopped, allegedly speeding, that was being operated by Mr. Martuzas, in the early morning hours of September 26, 1971, on both Route 81 and Arsenal Street and Casey Street in Watertown, with a passenger in the car named Cathryn Lynn Guffey. Trooper Gaebel went to the car and asked -- it isn't quite clear whether he asked the driver for his license, or whether Mr. Eisenhauer did, but in any event, he was asked for his operator's license and registration and, while the trooper was looking in the car window, he saw what he described as a cannibas [sic] leaf on the floor. He had had training in identifying these, and did identify it as such, and thereafter he searched the car and found two bags of cannibas [sic] and an eyedropper and a bottle of white powder.

 S.H.Tr. at 27, 28.

 Because the State of New York did not permit a search incident to a traffic arrest as an exception to the warrant requirement, the state court judge had to determine if there was another basis for the search before he could hold that the evidence would be admissible at trial. People v. Marsh, 20 N.Y.2d 98, 281 N.Y.S.2d 789, 228 N.E.2d 783 (1967); People v. Coleman, 24 N.Y.2d 1005, 302 N.Y.S.2d 831, 250 N.E.2d 237 (1969). He determined that the leaf was in "plain view" and that this gave the officer the right to search. His conclusions follow:

Now, I appreciate that under People v. Marsh, reported in 20 N.Y.2d, at page 98 [281 N.Y.S.2d 789, 228 N.E.2d 783] that an arrest for a traffic infraction, immediately followed by a search, in and of itself does not create reasonable cause for a search. However, there are many authorities, both before and after the Marsh case which holds [sic] that an officer doesn't have to be blind to what he sees after having stopped the car for a traffic infraction, and when the officer saw what he identified as a cannibas [sic] leaf, he had authority to search, and he doesn't have to be blind to whatever he sees with his own eyes. If he saw a cannibas [sic] leaf on the floor of the car, under those circumstances he had reasonable cause for the search and the legal conclusion is that the search was authorized. There was reasonable cause for it.
The motions are denied.

 S.H.Tr. at 28.

 Officer Gaebel had testified that he spoke to Martuzas while they were both behind the Martuzas vehicle. A fair reading of the state judge's decision is that the officer was afforded a "plain view" into the car while he was asking Martuzas for his license. However, from the vantage point described by Gaebel in his testimony, it is clear that he could not have a "plain view" of the floor of the Martuzas vehicle. Furthermore, assuming that the officer went to the side door of the car, there did not seem to be any reason given in the evidence at the state hearing why this was done. In order for the "plain view" doctrine to support the confiscation, there had to be a valid reason for the officer to be in a position to afford him the plain view. Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971).

 Thus, after reviewing the state court record and the briefs of the attorneys, this court concluded that the material facts were not adequately developed at the state hearing and that the factual determination was not fairly supported by the record. Because the requirements of 28 U.S.C. § 2254(d)(3) and (8) were met, a hearing was ordered.

 At the hearing in this court, Officers Gaebel and Eisenhauer testified again. Gaebel testified that immediately upon stopping his car, Martuzas walked back to the troop car and the initial discussion took place between the Martuzas vehicle and the troop car. His testimony about the critical sequence of events surrounding the search was varied. Initially, Gaebel claimed that he discovered a leaf fragment of what he thought was cannabis while conducting a search for weapons and equipment violations. Federal Hearing Transcript [hereinafter F.H.Tr.] at 8. Later he said that the search was one for weapons or drugs. F.H.Tr. at 29. Finally, he revealed he had conducted two searches, one cursory for weapons and a second and more thorough search for weapons and drugs. F.H.Tr. at 27, 28, 37 and 38. He knew that Martuzas had been convicted of possessing narcotics and, therefore, went back for a closer look into the vehicle because he suspected he would find either weapons or drugs in the petitioner's car. F.H.Tr. at 13, 29. Gaebel said his suspicions were increased because Martuzas was extremely nervous compared to the other occasions when Gaebel had stopped him. F.H.Tr. at 11, 12.

 When he went to the petitioner's vehicle on the second visit, through the open door he saw a leaf fragment which he recognized as cannabis. F.H.Tr. at 37. This led to the complete search which produced the two bags of marihuana. He said that the troop car headlights were on and that there was a street light directly overhead. He had ...

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