Hastings, Chief Judge, and Knoch and Castle, Circuit Judges. Hastings, Chief Judge (dissenting).
The District Court granted the petition for Writ of Habeas Corpus filed by the petitioner-appellee, John Thomas Weaver, and entered an order discharging him and releasing him from custody subject to detention in custody pending review of that decision.
The District Judge conducted a full hearing on the issue of the legality of a search and seizure by the Indiana police prior to the trial in which the petitioner was convicted after jury trial in the Circuit Court of Madison County, Indiana, and sentenced to life imprisonment for rape, on May 19, 1961. That conviction was affirmed by the Indiana Supreme Court, Weaver v. State, 243 Ind. 560, 187 N.E.2d 485 (1963). The Court there dealt with the adequacy of the proof offered. At the trial venue had been proved by admissions of the petitioner made to a jail-mate that he had taken a 5-year-old girl to a place "between here and Linwood" which the Court judicially recognized as in Madison County, Indiana. Although the examining physician had testified that a complete vaginal examination of the child was not possible without use of anesthesia which was contra-indicated because she was then suffering from chicken pox accompanied by a high fever, the Court held that the jury might infer penetration from the physician's description of profuse bleeding and of his having to stitch multiple lacerations. The jury had also been allowed to hear evidence of admissions made by the petitioner to his aforesaid jail-mate and to one John Carroll at whose home he was staying, that the blood on his person had come from sexual intercourse. Petitioner was quoted by his jail-mate as having said he took the child because of some trouble he had with her mother. The petitioner had also verified in his own testimony that when asked if petitioner was the one who had taken her from her bed into his automobile and if he were the man who had hurt her, the child in question (who did not appear as a witness) had nodded her head affirmatively. The petitioner at one time had explained the blood found in his automobile as coming from a rabbit he had killed. The blood, however, was shown to be human and of the same type as that of the child involved.
The issues presented to the District Court were apparently not considered by the Indiana Supreme Court.
At the hearing in the District Court, Patrolman Clement Russell of the Anderson, Indiana, Police Department, testified that he went to the Adler Hotel to meet a Mrs. Harrison in response to her telephoned complaint of child molestation received about 6:10 a.m. on November 18, 1960; that he, Mrs. Harrison, whom he found in an hysterical condition, and the child, whose physical condition he described, all returned to the Harrison apartment, where Mrs. Harrison had said that "Tom Weaver" molested her child. She had described a blue, 1956 Dodge automobile which she thought belonged to Tom Weaver and which she had seen leaving the rear of her apartment building. As a result of Patrolman Russell's reports, he was relieved at about 7:00 a.m. by Detectives Omer Garner and Cage. Detective Garner testified that his questions of Mrs. Harrison and the child elicited similar information to that given Patrolman Russell. On further investigation and inquiry in the general area, they ascertained that John Thomas Weaver was living in Linwood, Indiana, at the John Carroll home, in the neighborhood of which Detective Garner looked in vain for the described automobile. He returned about 10:00 or 10:30 a.m. with Inspector Whittinger and waited for the appearance of the automobile. By this time the name given by Mrs. Harrison had been checked and the license number beginning with "FJ," an Alexandria issue, was known to the officers who had also been told that this was a 1955 Dodge of two-tone green color.
An automobile bearing license number FJ3808 shortly drove up and two women, one of whom proved to be Mrs. John Carroll, got out. The two police officers approached, identified themselves, and asked if the women knew John Thomas Weaver. Mrs. Carroll said he was staying in her home, and in response to the request of the officers, invited them in, saying that Mr. Weaver "should be in bed." Detective Garner asked for Mr. Weaver to come out to the living room where the officers were. He watched Mrs. Carroll go to a door, knock and say "There are two police officers from Anderson who would like to see you." Mr. Weaver had come out, partially dressed, was told the officers had a complaint of child molestation and would like him to come to police headquarters with them. He asked they wait till he was dressed. Detective Garner asked him to bring along the clothing he had worn before going to bed. The petitioner left the house with the police officers.
Although he testified that he would not have shot the petitioner to prevent his escape because he knew who petitioner was and presumably could find him again, Detective Garner said he would have used a certain minimum of force to hold the petitioner. The District Court concluded that the petitioner was under lawful arrest at that time without a warrant but pursuant to identification of him by Mrs. Harrison as the assailant of her child.
As they walked from the Carroll residence to the police car, the three passed the FJ3808 automobile and the petitioner got his coat out of it. While he did so, Detective Garner looked in and saw blood on the seat. There was a conflict in the testimony as to whether Detective Garner had the petitioner's permission to take an order book from the car at that time. He did take such a book. The District Court concluded it was taken without warrant or permission. The book was admitted in evidence at the original criminal trial without objection. The District Court expressed no opinion on the legality of its seizure.
The petitioner testified that he saw an Anderson City Policeman on a motorcycle guarding this car and he knew that when he and the arresting officers got back to town they sent a wrecker to tow his car into the City Police Garage. He testified that he gave no consent to that and was never given a warrant for seizure of his automobile.
The car was examined by technicians on the Anderson police force about 11:00 A.M. or 12:00 noon that day. A section of blood-stained seat cover, blood stains from the dash panel and the front seat were removed and were used in evidence at the original criminal trial.
The District Court held that search of the automobile hours later in the police lot was not substantially contemporaneous with the arrest nor confined to the immediate vicinity of the arrest.
We believe that the repeated references to the work of the technicians at the police lot as a "search" and the fact that only parts of the automobile were offered in evidence at the trial rather than the entire car have diverted the attention not only of petitioner's counsel but of the District Court from the unique circumstances of this case.
As a result the Preston Rule [Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1964)] as considered in Stoner v. California, 376 U.S. 483, 84 S. Ct. 889, 11 L. Ed. 2d 856 (1964); James v. State of Louisiana, 382 U.S. 36, 86 S. Ct. 151, 15 L. Ed. 2d 30 (1965); Sisk v. Lane, 7 Cir., 1964, 331 F.2d 235; ...