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July 25, 1966

Dennis George KING, Petitioner,
Warren PINTO, Superintendent, New Jersey Prison Farm, Rahway, New Jersey, Respondent

The opinion of the court was delivered by: COHEN

 COHEN, District Judge:

 Petitioner, Dennis George King, seeks a Writ of Habeas Corpus, under 28 U.S.C. 2241 et seq., inquiring into the legality of his detention at the New Jersey State Prison Farm, Rahway, New Jersey. He urges that he was victimized by an unlawful search and seizure, and that his privilege against self-incrimination was violated by the improper manner in which the police conducted a "lineup" resulting in his identification as an armed robber.

 An Order issued out of this Court directed to Respondent to appear and show cause why, if petitioner's allegations were sustained, the writ should not issue. On an adjourned day testimony was taken on behalf of both the petitioner and the State of New Jersey, and oral arguments were made by respective counsel who subsequently filed briefs.

 As stated in the Court's memorandum issuing the Order to Show Cause, this matter has a history. *fn1" In addition to the issues raised in the State Courts, the present proceeding includes that of an asserted improper use at trial of petitioner's admission of ownership of items seized at his apartment, being a revolver, a rain cap and a raincoat, in violation of the rule of law declared in Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964). And while in the strict sense, petitioner may not have exhausted remedies available to him within the state courts, there was not an intentional by-pass of the state courts as the remedy may have been illusory at the time of the filing of his petition. Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963). Cf. United States ex rel. Russo v. State of New Jersey (United States ex rel. Bisignano v. State of New Jersey) 351 F.2d 429 (3 Cir. 1965), and State v. Coleman, 46 N.J. 16, 35-38, 214 A.2d 393 (1965). The constitutional dimensions of this issue, along with other issues, bring it within the reach of federal jurisdiction. While this Court does not sit in review of those issues determined in the state courts, the present application presents questions of such federal constitutional impress, Mapp v. State of Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), that deferential comity between Federal and State Courts must give way to independent fact finding. Ker v. State of California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963); Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963); Green v. Yeager, 223 F. Supp. 544, 546 (D.N.J 1963), affirmed per curiam, 332 F.2d 794 (3 Cir. 1964). The guilt or innocence of petitioner is not an issue here; the present concern is in regard to whether or not the state conviction was based upon evidence prejudicially infected by violation of his constitutional rights.

 Turning to the testimony taken in this Court, and assisted by a review of the transcript of the state court proceedings, Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963), the following narrative appears to fashion the sequence of events. On January 15, 1962, at approximately 6:00 P.M., Mrs. Jean Ireland, the owner and operator of a dress shop in Atlantic City, New Jersey, was the victim of an armed robbery. The facts developed at trial indicate, that as she stooped to unlock the glass door at the front of her shop to let herself out, a light complexioned negro man dressed in a rain cap and trench style raincoat forced his way in at gun point and told her to "get back in there. You heard me, get back in there." (Meaning to the rear of the shop.) She grappled with the intruder, extricated herself and struggled out the door, falling to the ground. The robber rushed to her, tore her pocketbook from her grasp and made off with the week's receipts of $1,020.00.

 Following report of the robbery, police investigation was initiated by Detective Robert Shepperson of the Atlantic City Police Department. On the night of the robbery, he questioned Mrs. Ireland, who being in shock and medically sedated was of little assistance to him. However, Miss Pearl Hamm was returning from a local movie theatre at the time and place in question and stated that she saw petitioner, known to her but not by name, coming from the direction of the dress shop wearing a rain cap and raincoat, which garb she identified at trial. Detective Shepperson's investigation also led to Mrs. Helen Clancy, who had worked at the shop that day. She stated that she left the shop at 6:00 P.M., somewhat concerned about leaving Mrs. Ireland alone. As she was departing, she noticed a man standing in the doorway next to the shop; he was wearing an unbuttoned rain cap and raincoat. She looked at him several times, as a street lamp shone on his face disclosing sharp features, which she later identified with the petitioner.

 The night after the robbery, Miss Hamm and Mrs. Clancy were shown "mug shots" by the police, among which was a photograph of the petitioner. They both identified him from his photograph, as the robber. Both women were out of the presence of each other and made their separate identifications at different times. Subsequently, at a police "line-up", Mrs. Clancy further identified the petitioner as the robber, when he was required to don the described rain cap and raincoat. Additionally, when he was instructed to recite and did, the words alleged to have been uttered by the robber, "get back in there," Mrs. Ireland also made positive identification of petitioner. Thus, the record convincingly demonstrates that the raincoat and rain cap, identified as being similar to those worn by the robber, and which in addition to the seized gun were admitted by the petitioner to be his property at the time of the arrest and seizure, played an important role in his prosecution and conviction.

 The events leading to the acquisition of these items are the circumstances upon which the present application must turn. Transcribed prior trial testimony in this matter affords ample backdrop against which to view the testimony received in the present proceeding. Here, petitioner maintained the same position as he did in the state proceedings. He claims that on January 17, 1962, while he was being driven to the Atlantic City Hall by Officer William Shepperson and Detective Robert Shepperson, for questioning in regard to the Ireland Dress Shop robbery, he was informed by Detective Shepperson that he was under arrest. (Detective Shepperson is the uncle of Officer Shepperson.) He denied committing the crime and insisted he didn't know where the money was. "Then we turned around to go back to the house to look for the money. I had a key to the house, the street level door, but our apartment was on the second floor." Petitioner was not handcuffed, nor was any violence or coercion exerted against him. All three, he and the police officers entered the apartment building, after using his key to open the door. Mrs. Alice Ford, with whom petitioner lived "as man and wife" was told by petitioner to get out of bed, to put on a robe, as the police officers wanted to search the apartment. Such was the testimony of petitioner, which included a denial that he had given his consent to search the apartment.

 Mrs. Alice Ford testified that petitioner left with Officer Shepperson, whom she knew, and returned shortly thereafter to the apartment. She stated she was not asked for permission to search the apartment, nor did she consent or object to it.

 In the present inquiry, the testimony of both Sheppersons followed closely that given by them at both state trials, as well as at the intervening motion to suppress the physical evidence. Detective Shepperson stated that his nephew went to the front of petitioner's apartment building, and he was watching the rear to prevent escape. When petitioner was brought down to the car, he "padded him down" and told him he was under arrest for the Ireland Dress Shop robbery. He placed him in the rear of the car and he and his nephew sat in the front, and questioned petitioner for a few minutes. It was at this precise point in time that petitioner was advised of his constitutional rights. Cross examination of Shepperson by Mr. Kmiec, counsel for petitioner, in pertinent part, was as follows:

"Q. Did you ever advise him that he had a right to consult an attorney about this charge, after you placed him under arrest?
A. I told him of his rights.
Q. Did you tell him of his right to consult ...

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