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March 31, 1980

MILTON CHAVIS, Petitioner, against ROBERT J. HENDERSON, Superintendent Auburn Correctional Facility, Respondent.

The opinion of the court was delivered by: LASKER

Milton Chavis, an inmate in Auburn Correctional Facility, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1970). He was convicted in New York State Supreme Court, Bronx County on October 8, 1975, of robbery in the first degree. On November 19, 1975, he was sentenced to an indeterminate prison term with a minimum of 121/2 years and a maximum of 25 years. By his petition, he alleges that: (1) the refusal of the state courts to consider conduct by other than policemen in assessing the propriety of his identification was violative of due process; (2) the actions of the police and their civilian interpreter were highly suggestive and rendered the identification unreliable, creating a substantial likelihood of misidentification; and (3) the identification was the "fruit" of an arrest made without probable cause.


On the afternoon of March 31, 1975, at approximately 4:30, the complainant, Mrs. Soto, returned from shopping. Upon entering her building at 1161 Shakespeare Avenue, she noticed a stranger waiting for an elevator at the other end of the lobby. As she approached, the man moved and stood beside her. When the elevator arrived, he held the door for her but she refused to enter. The man rode up alone.

 When the elevator returned to the main floor, it was empty. Mrs. Soto entered and pressed the button for her floor, but before she reached it, the elevator stopped and the doors opened. A man Mrs. Soto recognized as the stranger she had seen in the lobby stood in the doorway with a knife. He demanded her money. She took out her red change purse, containing 40 or 50 cents, and handed it to him. When the man demanded more money, she gave him her pocketbook and then her wallet. He examined both and, finding them empty, threw them on the floor and fled downstairs. The doors closed and Mrs. Soto continued to fifth floor.

 Mr. Rodriguez, a neighbor, was in the hallway working when Mrs. Soto emerged from the elevator, crying hysterically. She told him a black man had just mugged her, whereupon Mr. Rodriguez ran downstairs and into the street in pursuit. As he left the building, he noticed only one person in the vicinity, to whom he yelled out, "Yo". The man wheeled around, presented a knife, and said, "It wasn't me brother," then ran off. Mr. Rodriguez ran after him, and there followed a chase through the neighborhood. At one point, the man dashed across the street and a bus passed between them, causing Rodriguez temporarily to lose sight of his quarry. When the bus had passed, the man was gone. Rodriguez noticed a bar and assumed the man had run into it.

 Crossing the street, Rodriguez opened the bar door, looked inside and saw Chavis seated in a booth. Taking a knife from his pocket, he informed those in the bar that Chavis had just robbed "his mother". An auxiliary police officer seated at the bar declared Chavis under arrest and placed handcuffs on him. On the street, the trio were joined by two uniformed policemen who had been alerted by a passerby.

 The two officers, Rodriguez, the auxiliary policeman and Chavis then proceeded to the apartment building. There Rodriguez and a police officer went to Mrs. Soto's apartment in an effort to obtain an identification from her. The contents of the conversation that followed were disputed at the trial, but what is clear is that Mrs. Soto was initially reluctant to make an identification (T-74), that Rodriguez served as interpreter (since the police spoke no Spanish) and that he was able to persuade her to come downstairs for the identification (T-75).

 Much of the controversy concerns what Rodriguez told Mrs. Soto prior to her identification of the petitioner. At the Wade hearing, she testified that Rodriguez told her "he had the man downstairs in the car" (W-24). He "proved it with the small purse I was carrying in my raincoat pocket" which they told her came from the man (W-26-27). On cross-examination, Rodriguez said, "I have no recollection as to what I told her. I generally stated that Police Officer Powers asked me something to the effect could she come downstairs and identify the person we had in the car." (W-71). At the hearing and the trial, she stated she was told that the man was caught coming out of the building (T-73). On the other hand, Rodriguez testified "there was a small purse of change on the outside of the elevator" (W-76), and that when he emerged from the apartment "there was absolutely no one there except a person walking away" (W-65).

 Mrs. Soto came downstairs with Rodriguez and the officer, and identified Chavis as her assailant while he was handcuffed seated alongside a police officer in the back of a marked police car. At one point, the petitioner was made to stand alongside the car while Mrs. Soto described her attacker. This was Mrs. Soto's first description *fn1" and she described the handcuffed man who stood before her. The petitioner was then taken into custody.

 Chavis contends that the judge should have considered statements made by the civilian interpreter in determining whether or not the identification procedure was impermissibly suggestive. At the close of the hearing, the judge noted that if Mrs. Soto had been told that the police had the man who attacked her, it was by Rodriguez and not the officers (W-208). According to the trial judge, only actions by the police could establish a "taint", which made Mr. Rodriguez's comments irrelevant to the question of whether the identification should be excluded. In upholding the admissibility of the identification, the judge relied on various factors which indicated reliability, most notably the period of time Mrs. Soto had the defendant under observation, the short time between the incident and the identification, and a description of the petitioner's clothing (although this was given while the petitioner stood before her) (W-209).

 Petitioner was convicted at a jury trial. On November 12, 1976 the Supreme Court, Bronx County denied without opinion petitioner's motion to vacate his conviction (N.Y.Crim.Proc.Law § 440.10). On February 16, 1978, the New York Appellate Division, First Department, affirmed petitioner's conviction without opinion. On April 14, 1978, Chief Judge Breitel denied a petition for leave to appeal to the Court of Appeals. On October 2, 1978, the United States Supreme Court denied a petition for a writ of certiorari. Petitioner then filed this petition challenging both the illegal arrest and the identification.

 I. The Illegal Arrest

 A. Exhaustion

 The petitioner argues that the arrest by the auxiliary police officer, prior to any identification by the victim, was without probable cause and therefore an illegal "seizure" under the Fourth and Fourteenth Amendments. He first raised this objection in a single spaced, two page footnote in his brief to the Appellate Division. (See Brief for Defendant-Appellant at 24-25 n.*.) The respondent challenges this argument on the ground that petitioner did not afford the state court "(a) first opportunity to hear the claim", Picard v. Connor, 404 U.S. 270, 276, 92 S. Ct. 509, 512, 30 L. Ed. 2d 438 (1971), when he placed it in a footnote, and that he therefore has failed to exhaust his state court remedies as required by 28 U.S.C. § 2254.

 In the footnote, petitioner argued: 1) that an arrest was made without probable cause; 2) that petitioner's identification resulted from this arrest; and 3) that the Fourth Amendment required suppression of the identification. The same points are raised in an identical footnote in his Memorandum of Law in this proceeding. (See Memorandum of Law in Support of Petition for Habeas Corpus, at 23-24). Accordingly, this is not a case in which the petitioner "never . . . presented to the New York state courts the federal constitutional claims which (he) now seek(s) to have adjudicated in the federal courts", Cameron v. Fastoff, 543 F.2d 971, 977 (2d Cir. 1976); nor is it a case where the claim presented to the federal court "is not substantially the same as was presented to the New York courts", Fielding v. LeFevre, 548 F.2d 1102, 1107 (2d Cir. 1977). Other cases cited by respondent are also inapposite: Wilson v. Fogg, 571 F.2d 91, 93 (2d Cir. 1978) ("no mention" of constitutional rights in state court); United States ex rel. Aloi v. Arnold, 413 F. Supp. 1384, 1387 (S.D.N.Y.1976) (petitioner "did not clearly present to the state courts the same due process argument he presents here").

 In objecting to the placement of this argument in a footnote rather than in a separate point heading within the text, respondent argues that the use of a footnote "failed to adequately focus the attention of the Appellate Division on the merits of the claim . . .". However, the contention is not persuasive where, as here, the footnote is two pages long and raises both the constitutional question and the relevant case law. The Court of Appeals of this Circuit has even found a "fair opportunity" to exist where the issue was raised by only one sentence in the state court brief. United States ex rel. Leeson v. Damon, 496 F.2d 718 (2d Cir.) cert. denied, 419 U.S. 954, 95 S. Ct. 215, 42 L. Ed. 2d 172 (1974). The contention that petitioner has failed to exhaust his state court remedies is without merit.

 B. Lack of Probable Cause

 In support of his Fourth Amendment claim, petitioner argues: 1) that he was actually arrested by Officer Beasley, an auxiliary policeman; 2) that the arrest was without the necessary degree of probable cause; and 3) that his identification must be suppressed as the "fruit" of that illegal arrest. Respondent contends that the action taken by Beasley is more properly termed a "detention", or, assuming arguendo that it was an arrest, is supported by sufficient probable cause.

 Officer Beasley testified that, based on the statements made by Rodriguez in the bar, he "arrested" the petitioner (Tr. 222). This consisted of: a) informing the petitioner that he was under arrest; b) placing petitioner's hands on the bar; c) "patting" him down to check for weapons; and d) placing handcuffs on his wrists (T-222, 229). There can be little doubt that this action constituted an arrest. In this connection, it is worth noting also that Beasley was an auxiliary policeman and not a "police officer" (N.Y.Crim.Proc.Law § 1.20(34)). Officer Beasley had no authority to restrain petitioner in any manner other than by arresting him, pursuant to the authority granted any citizen to make an arrest (N.Y.Crim.Proc.Law § 140.30), and such an arrest requires the necessary degree of probable cause.

 To support an arrest by a police officer or civilian, there must be "reasonably trustworthy information" known to the arresting individual "sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 225, 13 L. Ed. 2d 142 (1964). In a case in which the knowledge of the person making the arrest is derived solely from another, the standard articulated in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969) *fn2" applies. As noted by the Second Circuit:

"The test under Aguilar and Spinelli, supra, requires the Government to show (1) that the informant received his information in a reliable way; and (2) that the informant was "credible'." United States v. Gonzalez, 555 F.2d 308, 312 (2d Cir. 1977).

 The information available to Beasley at the time of the arrest satisfied neither prong of this test. Rodriguez's information was not derived from his personal experience; he chased petitioner without even having a description of Mrs. Soto's assailant. Moreover, Beasley arrested Chavis based on charges made by Rodriguez, who was at that point an agitated man whom Beasley had never seen before and had no reason to assume was a credible informant.

 Respondent argues that a knife recovered from the booth where petitioner had been seated is sufficient "corroboration" to warrant a finding of probable cause. (Memorandum of Law, at 17). However, as Beasley himself testified at trial, the knife was not recovered until after petitioner's arrest ...

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