Appeal from the United States District Court for the District of New Jersey (D.C. Civil Nos. 1252-73 & 1808-73).
Weis, Staley and Garth, Circuit Judges.
This is New Jersey's second appeal from a district court order granting petitioner-appellee a writ of habeas corpus under 28 U.S.C. § 2254 (1970). We previously vacated the district court's initial judgment, issued after a hearing on petitioner's fourth amendment claims, and remanded for reconsideration in light of the Supreme Court's intervening decision in Stone v. Powell, 428 U.S. 465, 49 L. Ed. 2d 1067, 96 S. Ct. 3037 (1976).*fn1 United States ex rel. Petillo v. New Jersey, 541 F.2d 275 (3d Cir. 1976).*fn2 The lower court reissued the writ, 418 F. Supp. 686 (D. N.J. 1976), incorporating by reference its original opinion at 400 F. Supp. 1152. The court found that Stone v. Powell did not foreclose application of the exclusionary rule in this proceeding. Stone's limitations on habeas review affect only those state prisoners whose fourth amendment claims have been afforded "an opportunity for full and fair litigation" in the state courts. 428 U.S. at 482. The district court held that petitioner's fourth amendment claim was not barred by Stone v. Powell. Since New Jersey had adopted a rule precluding challenges to the truthfulness of allegations in an affidavit for a search warrant, the application of that rule "deprive[d] all defendants of a state forum 'for the full and fair litigation' of such Fourth Amendment claims." 418 F. Supp. at 688. Because we find that petitioner Petillo was not prejudiced by the operation of New Jersey's rule*fn3 and was afforded the "opportunity for full and fair litigation" contemplated by Stone v. Powell, we vacate the district court's order.
Petillo was convicted of violating the New Jersey gaming laws at a trial in which the prosecution introduced evidence seized during a search of Petillo's home. In the affidavit supporting the search warrant, a state trooper averred he had been told by a reliable informant that a certain male was conducting a gambling operation at 326 Bloomfield Avenue. The informant said he had placed numerous horse bets with this individual by calling telephone number 429-9377. An examination of telephone company records showed that number and an auxiliary number, 429-4933, listed to F. Petillo at the Bloomfield Avenue address. The officer stated that on two occasions in March 1970 he dialed 429-9377 and, after a male voice answered, handed the receiver to the informant who then placed a bet. (Appendix on behalf of Appellant at 64.)
Defendant attacked the truthfulness of the affidavit at his suppression hearing. The defense witness, a New Jersey Bell employee, testified from records which showed the telephone company had on its own initiative disconnected 429-9377 from the home office on December 18, 1969. The number had not been reassigned. Unless normal channels have been circumvented, calls placed to 429-9377 in March would have been routed to an intercept message recorded in a female voice.
The affiant was also called to testify for the defense. He essentially restated the facts set out in the affidavit, except that he claimed to have listened to the telephone conversations by cupping his ear to the receiver. The state requested time for an investigation of the inconsistency between the telephone company's records and the affiant's testimony which might produce additional evidence. When the hearing was reconvened, however, the state offered no new evidence and the prosecuting attorney actually conceded that the alleged telephone calls could not have been made.
The trial judge denied the motion to suppress because he was not convinced the trooper had lied.
After reading the affidavits particularly after hearing the testimony of the police officer who testified before me as a defendant's witness, I not only disagree with the argument as to his testimony but I feel it dehors the basic grounds to be considered on the motion.
I am not completely satisfied nor do I feel it is conclusive that the testimony by the representative of the New Jersey Bell Telephone Company would exclude all possibilities of the phone ringing at the address in Bloomfield Avenue. Even if I were to accept this testimony to eliminate the phone calls which were part of the affidavit, I would hold that the remaining allegations in the affidavit would be sufficient for the issuing Judge to find probable cause on which to issue a search warrant. (11/13/70 T100a-101a).
The district court concluded that the state court judge "necessarily" predicated his acceptance of the trooper's version of the facts on an "erroneous characterization" of the testimony of the telephone company witness. In his ruling on the motion to suppress, the trial judge stated the witness had said it was "probable" that, through some technical irregularity, the trooper could have reached the defendant by dialing the disconnected number. Actually, the witness only admitted it was "possible" to circumvent the interceptor, although she herself did not know how this might be done. 400 F. Supp. at 1165 & n.6. During oral argument on the suppression motion, the prosecutor stated that unauthorized equipment could not have been placed on the line without collusive help from within the telephone company. Id. at 1163. At the habeas hearing another prosecutor acknowledged that the finding of "probability" was unsupported by the record. (Transcript 8/27/74 at 99).
Given these circumstances, it is necessary to restate once again the post-Stone v. Powell role of a federal habeas corpus court faced with a petitioner's fourth amendment claim. The question is not whether the trial court "correctly" decided the fourth amendment issue, but whether the petitioner was given an opportunity for full and fair state court litigation of his fourth amendment claim. Holmberg v. Parratt, 548 F.2d 745, 746 (8th Cir. 1977) (under Stone incorrect application of fourth amendment principles by state is irrelevant in habeas review); cf. Hines v. Auger, 550 F.2d 1094, 1097 (8th Cir. 1977) (Stone emphasizes opportunity for, not fullness or fairness of, litigation of claim).
Some circuits have found the defendant has been afforded a "full and fair opportunity" if the state courts considered his claim at all. E.g., Cole v. Estelle, 548 F.2d 1164 (5th Cir. 1977); Corley v. Cardwell, 544 F.2d 349 (9th Cir. 1976), cert. denied, 429 U.S. 1048, 97 S. Ct. 757, 50 L. Ed. 2d 763 (1977); Roach v. Parratt, 541 F.2d 772 (8th Cir. 1976); George v. Blackwell, 537 F.2d 833 (5th Cir. 1976). In other cases courts have noted specific factors as indicative of adequate consideration in state court of the petitioner's fourth amendment claim. Jordan ...