author: LEVIN H. CAMPBELL, Circuit Judge.

text:
    D. Franklin WISHART, Plaintiff, Appellee and Appellant, v. Paul J. McDONALD et al., Defendants, Appellants and Appellees.
    Nos. 74-1010, 74-1011.
    United States Court of Appeals, First Circuit.
    Argued April 1, 1974.
    Decided July 10, 1974.
    Jeffrey M. Freedman, Boston, Mass., with whom Dan S. Chill and Brown, Rudnick, Freed & Gesmer, Boston, Mass., were on brief, for D. Franklin Wishart.
    John H. Henn, Foley, Hoag & Eliot, Michael B. Elefante and Hemenway & Barnes, Boston, Mass., on brief for Civil Liberties Union of Mass., amicus curiae.
    Richard A. Howard, Boston, Mass., with whom Brickley, Sears & Cole, Boston, Mass., was on brief, for Paul J. McDonald and others.
    Austin Broadhurst, Philip S. Lapatin and Gaston, Snow, Ely & Bartlett, Boston, Mass., on brief for Mass. Ass’n of School Committees, amicus curiae.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

D. Franklin Wishart, a tenured sixth grade teacher in Easton, Massachusetts, was dismissed from his job for conduct unbecoming a teacher, following a hearing before the school committee on charges that he had carried in public view on his property located in the town where he taught, in a lewd and suggestive manner, a dress mannequin that he had dressed, undressed and caressed.

Instead of pursuing the de novo hearing available to him in the state court, see M.G.L. c. 71, § 42, he filed a federal action under 42 U.S.C. §§ 1983 and 1985. He has alleged that the individual defendants, among them the superintendent of schools Paul J. McDonald and the members of the Easton school committee, deprived him of constitutional rights by removing him arbitrarily and capriciously, by penalizing “private” conduct which did not interfere with his teaching duties, and by applying an unconstitutionally vague statute. He sought an injunction, an order directing reinstatement and payment of damages, and a declaratory judgment that the phrase “conduct unbecoming a teacher” in M.G.L. c. 71, § 42, was unconstitutionally vague. After a hearing on the request for a preliminary injunction, which by stipulation was consolidated with the trial on the merits, the district court ruled against Wishart. 367 F.Supp. 530 (D.Mass.1973). We affirm.

The evidence in the district court disclosed the following: Wishart, who taught for several years in another school system, was employed by the Easton system in September, 1968. He subsequently acquired tenure by operation of M.G.L. c. 71, § 41. A tenured teacher “shall not be dismissed, except for inefficiency, incapacity, conduct unbecoming a teacher or superintendent, insubordination or other good cause, . . .” M.G.L. c. 71, § 42. That same section provides numerous procedural safeguards, none of which Wishart claims were denied to him: the teacher must be given 30 days’ notice of the meeting of the school committee at which his discharge will be considered; charges against him must be in writing; he may be represented at the meeting by counsel and may call witnesses and present evidence; the superintendent must make a recommendation to the committee; and the committee must find that the charges brought against the teacher are “substantiated” before dismissing him. After dismissal, a teacher has 30 days in which to petition for a de novo hearing in the state’s Superior Court, at which the committee must try to sustain its decision. If the court rules in favor of the teacher, he shall be reinstated “without loss of compensation.” M.G.L. c. 71, § 43A. If the Superior Court agrees with the school committee, the teacher may appeal to the higher Massachusetts courts.

In the Easton schools Wishart received from his superiors ratings of slightly above average. In his last evaluation, in March 1972, his principal wrote that “Mr. Wishart is an excellent teacher. He has a genuine enthusiasm for pupils and teaching, making him a valuable member of the Middle School staff.”

Sometime about the fall of 1971 Wis-hart began to engage in unusual conduct which his psychiatrist testified was symptomatic of a personality disorder characterized by the displacement of sexual interest into a dress. Occasionally until the spring of 1972, and weekly on Thursday evenings thereafter until March of 1973, Wishart took a mannequin outdoors and moved about his yard. The mannequin, according to Wishart, was a camera tripod to which he had strapped a pillow and covered with his wife’s dress. His immediate neighbors, three of whom testified in court, thought the contraption was an actual mannequin, and that it was draped in a negligee. In any event, Wishart could be observed readily from nearby houses handling the mannequin at different places on his lot, including in his well illuminated front yard. Neighbors testified that they observed him caressing the mannequin in the area of the breast, and that once he had placed it on top of a car. One neighbor observed him lifting the skirt and placing it between his legs. Two neighbors thought they observed masturbation; he denied it. There was no testimony of actual exposure. Wishart testified that he did not think he was observed, but conceded that possibility. In fact he was regularly observed by the neighbors who paid considerable attention to these evening activities. Wishart’s testimony to a desire to keep, the conduct private was offset by testimony of neighbors that, in their opinion, he acted as if he wished to be seen. He did not stay inside; his property fronted on a well-travelled street; he carried out the activity in illuminated places; on one occasion he entered a neighbor’s lot. There was abundant evidence from which it might be concluded both that he was observed and that he should have expected to be observed. There was also evidence that besides the three nearby, neighbors who testified, other persons in Easton, a small town, became aware of the conduct. Superintendent McDonald testified that it had become such public knowledge that even prior to the dismissal it was being discussed among his wife’s friends in another area of Easton. The school psychologist told Wishart in mid-December 1972 that she had been made aware of strange conduct taking place on his property. She offered help, which he refused. After stopping for two weeks, he recommenced the conduct.

One of Wishart’s neighbors informed McDonald via a school committee member of Wishart’s behavior. After speaking with another neighbor, McDonald went to Spooner Street one night and observed the conduct for himself from both across the street and the house next door. He observed from both locations as Wishart carried the contraption to the front, side and rear of his house.

McDonald met with Wishart after school on March 9, 1973, informing him orally and by letter that he was relieved of classroom duties and transferred to nonteaching duties; his compensation was continued pending a- meeting of the school committee to decide whether he should be fired. Prior to March 9, McDonald had not advised Wishart that his conduct would be viewed as a cause for discharge. On May 16, 1973, McDonald formally notified Wishart that he had been charged with “conduct unbecoming a teacher” pursuant to § 42, and that a discharge hearing would be held before the school committee. The letter made two particularized charges of “unbecoming” conduct:

“a. That you have on various occasions displayed and carried a dress mannequin in the public view on your Spooner Street property, have dressed said mannequin in feminine attire, and have on occasion caressed said mannequin.
“b. That your actions in the public view on your Spooner Street property in regard to the dressing and undressing of said dress mannequin in feminine attire have been on various occasions of a suggestive or lewd nature.”

Wishart and his counsel attended the meeting on June 18 at which the school committee, after hearing the recommendation and testimony of McDonald, several neighbors, Wishart, and a police officer who had accompanied McDonald on his sojourn, voted unanimously to discharge Wishart. Wishart received his salary for the entire 1972-73 school year. The record on appeal does not include a transcript of that meeting, nor is it clear whether one was made. The school committee gave no reasons, other than those in the May 16 letter, for the discharge. McDonald testified at trial that he recommended Wishart’s dismissal on the grounds that his conduct had become notorious in the town and that this would impair his ability to function as a sixth grade teacher, and, moreover, that Wishart’s conduct indicated possible emotional instability unbefitting a teacher. Wishart’s psychiatrist testified that Wishart’s conduct was unrelated to his performance as a teacher and would not affect classroom conduct.

Wishart appeals from the rulings of the district court denying him relief on the merits and defendants appeal the court’s denial of their motion to dismiss the complaint for failure to exhaust state remedies. The court found that under the standards set out in Drown v. Portsmouth School District, 451 F.2d 1106 (1st Cir. 1971), the action of the school committee was not arbitrary or capricious. Because Wishart admitted engaging in the conduct with which he was charged, the district court reasoned, the only open question was whether the reasons given were related to the educational process. The court noted the un-contradicted testimony of Wishart’s psychiatrist that his personality disorder would have no effect on classroom performance, and observed that Wishart’s teacher evaluations (including one filed after his public conduct had commenced), rated him generally above average to excellent. But the court wrote:

“Even if the Court were to agree (which it is not altogether prepared to do), that plaintiff’s problem would in no way reflect on his performance in the classroom, there is still the problem of notoriety and its effect on ‘relationships within the educational process.’ The extent of the pre-March 9 notoriety of plaintiff’s conduct is uncertain as is the extent of the notoriety to date. . . . The Court feels that there was a basis, if somewhat meager, for McDonald’s belief that the conduct had, or certainly would in the future, gain a degree of notoriety which would damage plaintiff’s effectiveness as a teacher in the school system and his working relationships within the educational process. It cannot be said that the school committee acted arbitrarily or capriciously in sharing in that opinion and following the recommendation to dismiss. Whether or not some of the notoriety was caused by the defendants’ investigations and hearings cannot change that result.” 367 F.Supp. at 535.

The court also rejected Wis-hart’s contention that the school committee was punishing him for constitutionally protected “private” conduct. The court agreed with plaintiff that the conduct occurred on his “private property” but refused to equate “on private property” with “in private”. The district court was correct on this point. The right of privacy, even as advocated in Warren & Brandéis, The Right to Privacy, 4 Harv.L.Rev. 193 (1890), may be surrendered by public display. The right to be left alone in the home extends only to the home and not to conduct displayed under the street lamp on the front lawn. Compare Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), with Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65-67, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973). See generally W. Prosser, The Law of Torts § 117 (4th ed. 1971).

Finally, the district court declined to decide Wishart’s contention that the standard of “conduct unbecoming a teacher” is unconstitutionally vague. The court wrote:

“Whether or not this is a determination which can be made by a single judge is questionable and whether or not it belongs in the federal court at all in the first instance is even more questionable. The statute could easily be interpreted by the state court to refer only to conduct which is job related. Such a construction would most probably save the statute from being attacked as vague.” 367 F.Supp. at 536.

The district court should, we think, have decided the vagueness issue. Wis-hart had requested only a declaratory judgment that the statute was too vague; a single judge may enter a declaratory judgment. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). Unless the specific factors favoring Pullman abstention are present, see Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 1805 n. 5, 40 L.Ed.2d 224 (1974); Bag-gett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964), a vagueness challenge to a state law does not call for abstention; a plaintiff is entitled to the forum of his choice. In the instant case abstention seems inappropriate. The Massachusetts court, after opportunity to interpret the statute, has shown no inclination to narrow its meaning. See MacKenzie v. School Committee, 342 Mass. 612, 174 N.E.2d 657 (1961).

There are, then, three issues for our decision: first, was Wishart required to exhaust his state judicial remedies; second, was the dismissal arbitrary or capricious within the meaning of Drown-, and third, was the dismissal predicated on a statute too vague to afford notice of the prohibited conduct ?

EXHAUSTION

Although Wishart was entitled to a de novo hearing in a state court, he was not required to exhaust the state remedies before coming into federal court. The federal remedy is separate, and supplements the state remedy. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1963); Palmigiano v. Mullen, 491 F.2d 978 (1st Cir. 1974); Raper v. Lucey, 488 F.2d 748, 751 n. 3 (1st Cir. 1973). Even though exhaustion of judicial remedies is not required, nonexhaustion can be costly both to the parties and to the dual court system that characterizes our federalism. A § 1983 plaintiff could submit his case voluntarily to the state courts, while reserving the federal constitutional issues under the doctrine of England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964). Thus he could litigate his claim that the school committee’s findings were erroneous, and receive as well an authoritative construction of the state statute. This course might be particularly appropriate where the state judicial hearing is de novo; Wishart would seek not some restrictive “review” in state court, but would receive an entirely new hearing at which the school committee has the burden of supporting the discharge. State courts alone can limit the meaning or operation of the state statute. It may be that the state courts would declare that the statute does not authorize dismissal for conduct of the sort engaged in by Wishart. The state might set up evidentiary standards that the school committee would have to meet in order to demonstrate the relationship of Wishart’s conduct to some detriment to the educational policy. We can do neither.

Perhaps more important for most § 1983 plaintiffs, the state Superi- or Court’s offer of de novo factual hearing, with appellate review for “error”, cannot be duplicated in the federal court. Our system is far more tolerant; we seek not “error” but flaws of constitutional magnitude. Palmigiano v. Mullen, 491 F.2d 978, 980 (1st Cir. 1974). We will leave the state’s decision and action alone even though we believe its assessment of the facts, and its judgment about the impact of those facts on the educational system, to be in error. The Constitution is not a shield against error of the ordinary sort. The § 1983 plaintiff must be prepared to show that he has been acted against for a constitutionally prohibited reason, or under a constitutionally repugnant standard, or for no reason whatsoever. He does not prevail here if he can show only that he was dismissed from a job because the reason was not “weighty” enough to support “industrial capital punishment.”

ARBITRARY AND CAPRICIOUS ACTION

Wishart attempts to bring himself within our narrow scope of review by claiming that the school committee has acted arbitrarily and capriciously. In Drown v. Portsmouth School District, 451 F.2d 1106 (1st Cir. 1971), we held that dismissal of a school teacher could be arbitrary and capricious in any of three ways. The reason given to support the dismissal might be “trivial”, but our review would be limited to “egregious cases”. This standard does not govern here — Wishart’s conduct was not trivial and the school committee’s action is not egregious. A second way would arise if the school committee’s actions were “wholly unsupported” by facts. Again this standard does not govern here. Many facts are undisputed, and there is substantial evidence supporting the reasons advanced by the Superintendent for discharge. The adequacy of the school committee’s hearing is not challenged and, to the extent there are material differences of fact, the committee was entitled to resolve the differences in a way that most fully supports the action it took.

The most persuasive argument that the dismissal was arbitrary or capricious is that the reasons for the dismissal are “unrelated to the educational process or to [the] working relationships within the educational institution.” Drown, supra at 1108. But we think fair minded men could reasonably dispute whether public conduct and a “personality disorder” of the sort described by Wishart’s psychiatrist are “related” to the educational process, especially in the case of a small town elementary school teacher. Precisely because the question could be disputed, we should not overturn the action of the school committee on constitutional grounds, whatever our own preferences. We have no doubt that the conduct would seem sufficiently bizarre and threatening so that, in the minds of many, it would destroy his ability to serve as a role-model for young children. This may be an overly strict view, and it may be that Wishart’s abilities and future could both be preserved by a more tolerant and understanding course. But this is the sort of judgment a school committee is elected to make, and the committee is entitled to prevail unless plainly wrong. If the cause for dismissal were speech or some other constitutionally protected activity, the matter would be entirely different. Keefe v. Geanakos, 418 F.2d 359 (1st Cir. 1969).

“If [the defendants] acted in good faith, treating the suspension as a matter of ordinary procedure, even if they might be thought to have been over-demanding, plaintiff has no federal claim.” Moran v. Bench, 353 F.2d 193, 194 (1st Cir. 1965), cert. denied, 384 U.S. 906, 86 S.Ct. 1341, 16 L.Ed.2d 359 (1966).

Cf. Acanfora v. Board of Education, 491 F.2d 498 (4th Cir. 1974).

VAGUENESS

Wishart’s vagueness challenge is foreclosed by Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 1647, 40 L.Ed.2d 15 (1974). Although the plurality opinion spoke for only three justices, Justices Powell and Blackmun, and Justice White, indicated in their separate opinions that they joined the plurality’s treatment of the vagueness issue.

The only argument that might be made to distinguish Arnett, which found that “such cause as will promote the efficiency of the service” was not too vague, is that the federal employees there had the benefit of a personnel manual adding some flesh to the bones of the statute, and that the general counsel of the agency stood ready to construe the statute for the employees in advance of any possibly offending behavior. Cf. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); CSC v. National Ass’n of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973). We do not find the difference material. The Federal Personnel Manual referred to in Arnett included the following “specifics”:

“Basically a ‘cause’ for disciplinary adverse action is a recognizable offense against the employer-employee relationship. Causes for adverse action run the gamut of offenses against the employer-employee relationship, including inadequate performance of duties and improper conduct on or off the job. . . .”

This added nothing of value to the statutory standard except to give notice of its enormous breadth. Nor do we find the availability of counsel significant when, in Wishart’s case, there is no indication that the sort of conduct in which he engaged is one for which he was apt to seek legal advice.

If the conduct had been so inoffensive —such as not wearing a tie — that a teacher might not be aware of the prevailing standard, we would require evidence that the required standard had been communicated, and that the teacher had nonetheless refused to adhere. In such a case, persistent failure to wear a tie would be less itself conduct unbecoming a teacher than it woud be evidence of a more serious refusal to follow a reasonable and express rule. But we cannot say that Wishart’s behavior was not fairly identifiable in advance as conduct unbecoming a teacher. True it was probably not criminal, nor was it seriously disruptive. But we think it was sufficiently odd and suggestive that the ordinary person would know, in advance, that his image as an elementary school teacher would be gravely jeopardized. Similarly, there was no warning in Ar-nett. Humanly it is perhaps unfortunate that there was no warning; on the other hand, the message of the school psychologist in December can be described as a guarded warning which Wis-hart chose to ignore or at least was unable to do anything about.

The choice between specific rules and general standards is a difficult one; each has its unique costs. See generally Ehrlich & Posner, An Economic Analysis of Legal Rulemaking, 3 J. Legal Studies 257 (1974). The real safeguard under a general standard is the commonrlaw adjudicatory process coupled with judicial review. See NLRB v. Bell Aerospace Co. Division, 416 U.S. 267, 94 S.Ct. 1757, 1770-1772, 40 L.Ed.2d 134 (1974). That administrative and adjudicatory process is present here and we hold that the statutory standard is not unconstitutional. Cf. In re Bithony, 486 F.2d 319 (1st Cir. 1973).

Affirmed.

      . M.G.L. c. 71, § 41 provides that “Every school committee, in electing a teacher . . . who has served in its public schools for the three previous consecutive school years, . . . shall employ him to serve at its discretion; . . . ” A teacher serving at discretion is entitled to the safeguards of §'42.

      . The psychiatrist, who testified in the district court but not before the school committee, said that the disorder “had its beginning in adolescence” but had been controlled successfully until the first child, born with a severe neurological deficit, had died about a month after its birth. Wishart then became depressed and commenced the behavior that led to his dismissal.

      . McDonald testified that he believed that he was forbidden by state law to inform Wis-hart of the possible consequences of his actions. This, of course, was a misreading of Massachusetts law. M.G.L. c. 71, § 42D states that no teacher shall be “interrogated” prior to any notice given him relative to a suspension hearing “unless he is notified of his right to be represented by counsel during any such investigation.” It was not necessary to “interrogate” Wishart in order to inform him that his conduct was considered serious misbehavior.

      . This is not to say that a plaintiff in a § 1983 action is never required to utilize state judicial remedies. The Supreme Court has recently held in Dillard v. Industrial Commission, 416 U.S. 783, 94 S.Ct. 2028, 40 L.Ed.2d 540 (U.S. May 15, 1974), that a § 1983 plaintiff must use any “automatic” state judicial remedy that would entirely avert the harm of which he complains. Plainly, however, the de novo Superior Court suit was not of this type. Under some conditions, moreover, an aggrieved party might be required to use speedy and effective administrative procedures that might avert the harm before it occurs. Gibson v. Berryhill, 411 U.S. 564, 574-575 n. 14, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973); Blanton v. State University, 489 F.2d 377, 382-384 (2d Cir. 1973). However, we cannot say that Wishart is required to do more than he has done.

      . We think those eases imposing more stringent standards of job-relatedness, in which the court substantially substitutes its judgment for that of the hiring and firing authority, can be explained either as instances in which the criterion used was constitutionally forbidden, such as speech or privacy, or cases in which federal courts were able to use the more expansive Administrative Procedure Act to review the acts of federal agencies under federal statutes. See, e. g., Norton v. Macy, 135 U.S.App.D.C. 214, 417 F.2d 1161 (1969); Mindel v. CSC, 312 F.Supp. 485 (N.D.Cal.1970).

      . Cf. Mailloux v. Kiley, 448 F.2d 1242 (1st Cir. 1971). To the extent Mailloux is inconsistent with Arnett, the latter obviously governs.

      . This would be a different case if the cause for dismissal were speech or another constitutionally protected activity, even one considered “odd or suggestive” by the community. Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Keyishian v. Board of Regents, 385 U.S. 589, 603-605, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    John L. REEDY, Sr., et al., etc., Plaintiffs-Appellants, v. The TRAVELERS INSURANCE COMPANY, Defendant-Appellee.
    No. 74-2100
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 19, 1974.
    Opinion vacated Nov. 27, 1974. See 504 F.2d 1380.
    William H. Roundtree, Cocoa, Fla., for plaintiffs-appellants.
    John G. Rooney, Cocoa, Fla., for defendant-appellee.

      Before GEWIN, GODBOLD and CLARK, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N. Y., 431 F.2d 409, Part I (5th Cir. 1970).

   PER CURIAM:

The claim of the co-administrator plaintiffs that the decedent employee should have been classified at a higher salary level for death benefits under a group life insurance policy was ended by summary judgment and they appeal. We affirm.

The principal appellate contention involves the extent of the limitation placed upon the trial court by a pretrial stipulation between counsel for plaintiffs and the defendant insurer. This stipulation described the dispute as limited to whether any company payments other than regular monthly salary were to be included within the policy’s expression “Base Annual Salary”, which was the determinant of employee classification for benefit purposes. The district judge construed the policy to provide that overtime payments only should be included, but additionally decided that because the decedent had received a salary increase ten months prior to his death, another provision of the policy fixed his classification at that which had been determined proper by the insurance company. After announcing this decision, the court allowed plaintiffs an additional opportunity to present further facts and argument in support of their position. Following supplementary proceedings, the court adhered to its original decision that the decedent had been properly classified and entered a final summary judgment for the insurer.

Plaintiffs insist that the court committed reversible error and denied them due process of law by “breaking” and “going beyond” the written stipulation which listed as the only issue in dispute the inclusion or exclusion of overtime pay and other emoluments in “Base Annual Salary.” Defendant denies that it ever waived other legal defenses under the terms of the policy because it included only the contention as to the scope of “Base Annual Salary” in the pretrial document.

On a motion for summary judgment, this court is rule-bound by the material facts which are without genuine dispute, whether stipulated or not. Fed.R.Civ.P. 56(c); cf. McDaniel v. California-Western States Life Ins. Co., 181 F.2d 606 (5th Cir.), cert. denied, 340 U.S. 822, 71 S.Ct. 56, 95 L.Ed. 604 (1950). However, in interpreting the obligations of the insurer under its contract the court is not limited to the theories of liability contended for by the parties by virtue of their embodiment within or omission from a pretrial stipulation. C. Wright and A. Miller, Federal Practice and Procedure § 1527, pp. 608-11.

The remaining contentions of appellant do not warrant discussion.

Affirmed.


author: McWilliams, circuit judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Barry SIGAL, a/k/a Barry Edwards, a/k/a David Allen Spector, Defendant-Appellant.
    No. 73-1934.
    United States Court of Appeals, Tenth Circuit.
    Argued May 13, 1374.
    Decided July 17, 1974.
    Certiorari Denied Oct. 21, 1974.
    See 95 S.Ct. 216.

      Stephen K. Lester, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., on the brief), for plaintiff-appellee.
    Robert I. Kalina, New York City (Christopher J. Redmond, Wichita, Kan., on the brief), for defendant-appellant.
    Before LEWIS, Chief Judge, and Mc-WILLIAMS. and BARRETT, Circuit Judges.
   McWilliams, circuit judge.

This is a search and seizure case. Barry Sigal was convicted in a trial to the court of unlawfully possessing 445 pounds of marijuana with an intent to distribute in violation of 21 U.S.C. § 841(a)(1). Prior to trial, Sigal filed a motion to suppress the use upon trial of the 445 pounds of marijuana obtained by United States Customs Agents from his airplane in Liberal, Kansas, on the grounds that such was obtained in an unlawful search and seizure. Also, Sigal sought to suppress the use upon trial of certain statements he made to the arresting agents at the Liberal, Kansas, airport on the grounds that such had been made under duress and prior to the time he had been advised of his constitutional right to remain silent. After an extended evidentiary hearing, the trial court denied the motion to suppress.

When the matter came on for trial, Sigal waived his right to jury trial and the case was tried on the basis of various Stipulations, which included the right of the trial court to consider the testimony given at the hearing on the motion to suppress. No other evidence was offered by either side. Based, then, on such evidentiary matter, the trial court found Sigal guilty of having violated 21 U.S.C. § 841(a)(1). Sigal now appeals his conviction, and we affirm.

The principal matter on appeal is whether the Government obtained the 445 pounds of marijuana from Sigal’s airplane at the Liberal, Kansas, airport in a search and seizure which had been tainted by a prior unlawful intrusion. Our study of the matter leads us to conclude that the search and seizure was a lawful one, even though no search warrant had ever been issued, because the search and seizure was based on probable cause under exigent circumstances which obviated any necessity to obtain a search warrant. The facts as developed at the hearing on the motion to suppress will be summarized briefly in order to give meaning to our conclusion.

Barry Sigal crossed the border into the United States from Mexico at El Paso, Texas, under circumstances which aroused the suspicion of the Customs Inspector. Among other things, Sigal tried to “palm’! a key bearing a tag marked “N4270T.” The inspector related the circumstances of Sigal’s entry to one Jerald G. Weatherman, a special agent for the United States Customs. Weatherman was the only witness called by the Government at the hearing on the motion to suppress and this recital is necessarily based, in the main, on his testimony. Sigal did not himself testify at the suppression hearing, though he did call three employees of the Liberal Airport, who testified concerning Si-gal’s arrest.

Armed with the information which he had acquired from the Customs Inspector, agent Weatherman went to the El Paso International Airport and located a Piper Cherokee-6 airplane bearing the number “N4270T.” Four of the six seats inside the Piper had been removed and approximately 20 flattened-out cardboard boxes and two large boxes that were sealed occupied the space where the seats had been. Weatherman watched- this plane until late in the evening, when he was relieved by another agent. Weatherman was advised the following day by the agent who had relieved him that the Piper had taken off about 2:30 A.M. and was followed by Customs Agents to the airport in Wilcox, Arizona, where somehow the agents lost contact with the Piper.

Shortly thereafter word was received that the Piper had landed in Holbrook, Arizona, and Weatherman proceeded at once to Holbrook where he observed the Piper bearing number “N4270T.” Weatherman testified that he saw Sigal enter the Piper and take off. Weatherman followed Sigal in a Government plane to Long Beach, California. Weatherman was then called off the case.

About ten days later, Weatherman was contacted in El Paso by another Customs agent who informed him that numerous boxes had been loaded into Sigal’s plane in Los Angeles, and that Sigal’s plane had then taken off with a Customs aircraft in pursuit. Weatherman, as requested, took off in another Government plane and made visual contact with Sigal’s plane and the other Customs aircraft near Holbrook, Arizona. The two Customs planes followed Sigal’s airplane as it apparently headed towards Albuquerque, New Mexico. However, before reaching Albuquerque, Sigal’s plane turned sharply to the left and landed at Grants, New Mexico, some ninety miles west and north of Albuquerque. The Customs planes maintained aerial surveillance for about an hour and then, when it became obvious that Sigal had landed for something other than refueling, they too landed. What happened thereafter in Grants, New Mexico, is of paramount importance.

Upon landing in Grants, Weatherman learned from airport employees that although Sigal had gone to a local motel, “he said he would be back as soon as it [presumably the plane] got cool.” At this time Weatherman looked inside the suspect aircraft and saw numerous large cardboard boxes. Upon an inspection around the air vents, Weatherman detected what he described as the “strong odor of marijuana.” After revealing this fact to a fellow agent, Weatherman checked the door of the aircraft, which he found to be locked. However, upon further investigation, he found the front baggage compartment to be unlocked. Weatherman testified that he then opened this compartment, reached inside and opened one of the large cardboard boxes which had been sealed with masking tape. Inside the box Weatherman saw that which he believed to be some 20 pounds of marijuana. He later resealed the cardboard box and closed the baggage compartment. Weatherman and his fellow agent then waited for Sigal to return to his plane.

Sigal did not return to his plane until early the following morning, when it was just beginning to get light. Si-gal then took off, followed shortly thereafter by the Government planes.

Sigal next flew to Liberal, Kansas, where he landed his plane. The Government planes landed very shortly thereafter. Sigal got out of his plane and was thereupon arrested by the Customs agent. Weatherman testified that he identified himself as an agent and inquired as to what was in the plane, to which Sigal replied, “grass.” Weatherman then asked if he could have the key so as to search the Piper, to which inquiry Sigal stated that the aircraft was unlocked. Weatherman thereupon searched the Piper and removed cardboard boxes containing some 445 pounds of marijuana.

As indicated, Sigal did not testify at the hearing on the motion to suppress, though he did call as witnesses three employees from the Liberal, Kansas, airport. Each testified as to what he saw and heard at the time of the arrest, with emphasis being made of the fact that at least some of the Customs agents drew their guns.

The main thrust of Sigal’s search and seizure argument is that Weatherman's search of Sigal’s plane in Grants, New Mexico, was an unlawful one, and that the subsequent search and seizure in Liberal, Kansas, was thereby rendered unlawful under the fruit of the poisonous tree doctrine. Wong Sun v. United States, 371 U.S. 471, 83 S.St. 407, 9 L.Ed.2d 441 (1963). Let us now analyze Weatherman’s search of Sigal’s plane in Grants, New Mexico.

Weatherman’s search and inspection of Sigal’s aircraft in Grants, New Mexico, was conducted without the sanction of a search warrant. However, the absence of a search warrant does not necessarily mean that Weatherman’s search of Sigal’s plane was unreasonable under the Fourth Amendment. Under the authorities, if Weatherman’s search was in fact based on probable cause and if there existed exigent circumstances which made impractical and unreasonable the obtaining of a search warrant prior to conducting a search of Sigal’s aircraft, then Weatherman’s search was not itself unreasonable, and was lawful. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), and United States v. Pollard, 466 F.2d 1 (10th Cir. 1972), cert. denied, 409 U.S. 1127, 93 S.Ct. 946, 35 L.Ed.2d 259 (1973). Before considering the issues of “probable cause” and “exigent circumstances,” as such relate to the facts of the instant case, we do note that we are not here concerned with a search of a home, but of an airplane, which certainly is as mobile, if not more so, than an automobile. The search of an automobile, for example, is far less intrusive on Fourth Amendment rights than the search of one’s person or home. Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974); and Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). Clearly, then, the mobility of the thing searched in the instant ease is a most significant factor in determining whether Weatherman’s search of Sigal’s aircraft was constitutionally permissible.

Our study of the record leads us to conclude that Weatherman did have probable cause to search Sigal’s aircraft in the airport at Grants, New Mexico. Weatherman knew of the suspicious circumstances under which Sigal crossed the border in El Paso, Texas. Weatherman then himself followed Sigal all over the southwest. The facts concerning Sigal’s suspicious conduct prior to his flight from Los Angeles to Grants have not been detailed in this opinion, but they are in the record, and may of course be considered in our determination as to whether Weatherman had probable cause when he searched the plane in Grants, New Mexico. In the light of Sigal’s prior suspicious conduct, any possible doubt as to probable cause was dispelled when, at the Grants airport, Weatherman detected the strong odor of marijuana emanating from the vents of Sigal’s aircraft. Under such circumstances, Weatherman indeed had probable cause to believe that marijuana was in Sigal’s aircraft. United States v. McCormick, 468 F.2d 68 (10th Cir. 1972), cert. denied, 410 U.S. 927, 93 S.Ct. 1361, 35 L.Ed.2d 588 (1973); United States v. Miller, 460 F.2d 582 (10th Cir. 1972).

Counsel argues that even assuming the existence of probable cause, the search was an unlawful one inasmuch as there were no exigent circumstances which prevented Weatherman from obtaining a search warrant before searching the plane. It is agreed that the nearest available Magistrate was in Albuquerque, New Mexico, 90 miles distant from Grants. Counsel in this regard emphasizes that Sigal was in Grants, New Mexico, for approximately 15 hours before departing for Liberal, Kansas, which provided ample time for Customs agents to drive to Albuquerque and obtain a search warrant.

Much of counsel’s argument on the lack of exigent circumstances is based on 20/20 hindsight. Based on all of the facts and circumstances, the trial court concluded that exigent circumstances did exist. We agree. In fact, the trial court’s findings adequately sum up our views on the matter, and we repeat them here. In this connection the trial court commented as follows:

“Probable cause by itself does not justify a warrantless search. In addition, there must be ‘exigent circumstances’ which preclude the securing of a warrant. The testimony shows that a period of as long as fifteen hours intervened between the time Agent Weatherman searched the baggage compartment and the time defendant departed the Grant-Milan airfield. Retrospectively, it appears one of the surveilling agents could have driven or flown to Albuquerque, some 160 miles round-trip distance, and procured a warrant. However, the Court is concerned with the facts and circumstances as they appeared to the agents at the time. The prime fact to be considered is the airplane which defendant was flying. An airplane is exceedingly mobile and can carry its pilot for great distances in any direction. Moreover, the agents had no inkling as to defendant’s schedule, he could have returned and departed at any time. Secondly, the agents did not know if defendant was acting alone. Someone else could have appeared and either unloaded the plane or taken off. Consequently, the agents not only had to be concerned with the defendant, but also with the possibility of others appearing on the scene. Thus, they could not afford to disengage an agent or an airplane. Finally, there is the testimony as to the weather conditions that night. Apparently there were storms in the area which would have made flying hazardous. Combined, these facts and circumstances were of such exigency as to obviate the necessity for a warrant. Here, there is presented the classic case of law enforcement officials confronted with a highly mobile vehicle and complete uncertainty as to its future use or ultimate destination. These facts and circumstances likewise are well within the holdings in Miller and McCormick.”

As indicated, in the main counsel challenges the presence of exigent circumstances. In this regard, with reference to the Government’s lengthy surveillance of Sigal, any suggestion that exigent circumstances cannot be claimed at the time of the search in Grants because, well before that time, the agents were purportedly aware of probable cause sufficient to seek a search warrant, but did not do so, is fully answered in the Supreme Court’s most recent automobile search case, Cardwell v. Lewis, supra. We agree with the following observation from Justice Blackmun’s plurality opinion : “Assuming that probable cause previously existed, we know of no case or principle that suggests that the right to search on probable cause and the reasonableness ' of seizing a car under exigent circumstances are foreclosed if a warrant was not obtained at the first practicable moment.”

In sum, then, for the reasons set forth above, we conclude that Weatherman’s search of Sigal’s plane in Grants, New Mexico, was not offensive to the Fourth Amendment and that he could have, if he had been so inclined, seized the marijuana at the Grants airport and proceeded to arrest Sigal forthwith. The fact that he determined to continue the pursuit a bit further to see what developed does not render his search and inspection of Sigal’s plane improper. Accordingly, what thereafter occurred at the airport in Liberal, Kansas, was not the fruit of any tree that had been poisoned in Grants, New Mexico.

Nor do we believe that Sigal’s arrest in Liberal, Kansas, or the search of his plane at the airport in that city were themselves constitutionally infirm. For all the reasons set forth above, the Customs agents had ample probable cause to arrest Sigal without first obtaining a search warrant. And the ensuing search of his plane was justified under such authorities as Chambers v Maroney, supra; Carroll v. United States, supra; and United States v. Pollard, supra.

To reiterate, we deem the search and seizure matter to be the real issue in this appeal. The other matters argued here are in our view minor and merit no particular mention. It should be remembered that this case was by agreement tried to the court on the basis, in the main, of testimony adduced at the hearing on the motion to suppress. At such hearing, there was no error in permitting Weatherman to relate information which he had acquired from other Customs agents in determining the question of probable cause. Cf. United States v. McCoy, 478 F.2d 176 (10th Cir. 1973), cert. denied, 414 U.S. 828, 94 S.Ct. 53, 38 L.Ed.2d 62 (1973). Nor was there any error at the hearing on the motion to suppress in the trial court’s refusing to let counsel inspect a report which Weatherman had not himself prepared, and to which he apparently referred for the limited purpose of refreshing his memory as to a proper name. Lastly, any possible error in connection with Sigal’s statement at the time of his arrest that he had “grass” in his plane, which under the circumstances is difficult to see, is harmless beyond reasonable doubt. Accordingly, we need not here be concerned with whether the utterance was voluntary, or made under duress. Independent of this one word utterance is overwhelming evidence that Sigal did in fact possess 445 pounds of marijuana. And the quantity involved permits the inferences that he possessed the marijuana with an intent to distribute it. United States v. King, 485 F.2d 353 (10th Cir. 1973).

Judgment affirmed.


author: DUNIWAY, Circuit Judge:

text:
    Paul HARRIS, Petitioner-Appellant, v. SUPERIOR COURT OF the STATE OF CALIFORNIA For the COUNTY OF LOS ANGELES, and Peter Pitchess, Sheriff of Los Angeles County, Co-Respondents, The STATE OF CALIFORNIA, Real Party in Interest, Appellees. Fawn HARRIS, Petitioner-Appellant, v. SUPERIOR COURT OF the STATE OF CALIFORNIA For the COUNTY OF LOS ANGELES, and Peter Pitchess, Sheriff of Los Angeles, County, Co-Respondents, The PEOPLE of the State of California, Real Party in Interest, Appellees.
    Nos. 72-2849, 72-2852.
    United States Court of Appeals, Ninth Circuit.
    July 12, 1974.
    Rehearing Denied Aug. 30, 1974.

      Michael Korn (argued), Sherman Oaks, Cal., for petitioners-appellants.
    Michael Buzzell, Deputy Atty. Gen. (argued), Los Angeles, Cal., for real party in interest, appellees.
    Before CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE and SNEED, Circuit Judges:
   OPINION

DUNIWAY, Circuit Judge:

It is the practice of the Supreme Court of California, when it denies a petition for a writ of habeas corpus, to enter a very brief order, usually, as in these cases, merely stating “Petition for Writ of Habeas Corpus denied.” A postal card notice, reciting the denial, is then sent to the petitioner. Such orders are generally referred to as “postcard denials.” In many cases a California prisoner, after exhausting his remedies by direct appeal, seeks post conviction relief by filing a petition for a writ of habeas corpus with the Supreme Court of California. If he receives such a postcard denial, he turns to a Federal district court, seeking habeas corpus under 28 U.S.C. § 2254. The California Attorney General then argues that the petitioner has not “ . . . exhausted the remedies available in the courts of the State [of California] . . . ” as is required by § 2254(b).

On that question the decisions of this court are in disarray. In the following cases, we have held that the petitioner had exhausted his remedies: Wade v. State of California, 9 Cir., 1971, 450 F.2d 726, 728; Barquera v. People of the State of California, 9 Cir., 1967, 374 F.2d 177, 180; Castro v. Klinger, 9 Cir., 1967, 373 F.2d 847, 850. On the other hand, in other cases we have held that the petitioner had not exhausted his remedies on the ground that the California Supreme Court may have based its denial on procedural grounds: Moreno v. Nelson, 9 Cir., 1973, 472 F.2d 570; Baskerville v. Nelson, 9 Cir., 1972, 455 F.2d 430; Turner v. Lloyd, 9 Cir., 1971, 439 F.2d 138; Conway v. Wilson, 9 Cir., 1966, 368 F.2d 485.

Not surprisingly, decisions of the district courts are also in disarray. In Hamilton v. Craven, N.D.Cal., 1971, 350 F.Supp. 1251, 1254, aff’d, 9 Cir., 1972, 469 F.2d 1394, the court held that the petitioner had exhausted his remedies, and our affirmance was “for the reasons stated in the opinion of the district judge.” (469 F.2d at 1394) In contrast, several district court opinions hold or say that the petitioner has not exhausted his remedies: Rawlins v. Craven, C.D.Cal., 1971, 329 F.Supp. 40 (dictum); Gingrich v. Oberhauser, C.D.Cal., 1969, 305 F.Supp. 738, 741 (dictum); Rogers v. Nelson, N.D.Cal., 1969, 300 F.Supp. 421, 422; Gardella v. Field, C.D.Cal., 1968, 291 F.Supp. 107, 114-117.

At the suggestion of the panel that heard the appeals at bar, we have taken these cases in banc to settle the question.

The petitions in these cases are virtually identical. Petitioners Paul and Fawn Harris, husband and wife, were convicted on March 19, 1971, in a California Superior Court, of receiving stolen property. Their convictions were affirmed by the California Court of Appeal on May 23, 1972, but no petition for a hearing before the California Supreme Court was filed because, they allege, they were not notified of the appellate court’s action by their attorney until the time for petitioning the California Supreme Court had expired. Petitioners next filed petitions for writs of habeas corpus in the California Supreme Court. They received a postcard denial, quoted above. They then petitioned the district court for writs of habeas corpus and that court dismissed the petitions on the ground that petitioners had not exhausted state remedies. They then appealed to this court.

The district court cited our decision in Williams v. Nelson, 9 Cir., 1970, 431 F.2d 932, concluding that “there has not been an exhaustion of state remedies in that the petitioner [s] . . . failed to request permission for filing a late appeal pursuant to California Court Rules 31a.” In his brief, the California Attorney General does not rely upon the rationale of the district court’s opinion. The provision in California’s Rule 31(a) on which the district judge relied, and on which this court relied in Williams v. Nelson, supra, was deleted from the California Rules of Court, effective January 1, 1972. 23 West’s Ann.Cal.Codes, Court Rules, 1974 pocket part, p. 31. Moreover, our decision in Williams v. Nelson, supra, insofar as it relates to California Rule 31(a) as it then read, was wrong. The rule did not apply to a petition for a hearing by the Supreme Court after a decision by the Court of Appeal. In Re Wallace, 1970, 3 Cal.3d 289, 293, 90 Cal.Rptr. 176, 475 P.2d 208.

The California Attorney General argues that the petitioners failed to exhaust their state remedies because the California Supreme Court may have denied their habeas corpus petitions on procedural rather than on substantive grounds. He relies upon the fact that California appellate courts may refuse to entertain habeas corpus petitions where no previous application for such relief has been made in the Superior Court. See In Re Hillery, 1962, 202 Cal.App.2d 293, 294, 20 Cal.Rptr. 759. Thus, if the California Supreme Court denied the Harris’ petitions because they did not first seek relief in a lower court, the denial would be procedural. As we have seen, some of our decisions have accepted this reasoning, while others have rejected it.

If a state court denies a petition for post conviction relief on procedural grounds, the petitioner has not exhausted his state remedies. He can still use the proper procedure, thus giving the state court the first opportunity to rule on the merits of his federal claims. This is what 28 U.S.C. § 2254(b) requires. Wilwording v. Swenson, 1971, 404 U.S. 249, 250, 92 S.Ct. 407, 30 L.Ed.2d 418.

This doctrine, however, has its limits. As the Supreme Court has often said, the doctrine which requires the exhaustion of state court remedies before the federal court will entertain habeas corpus petitions is based upon comity and is not a limitation on the power or jurisdiction of the federal courts.

“Section 2254 does not erect insuperable or successive barriers to the invocation of federal habeas corpus. The exhaustion requirement is merely an accommodation of our federal system designed to give the State an initial ‘opportunity to pass upon and correct’ alleged violations of its prisoners’ federal rights. Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 848, 9 L.Ed.2d 837 (1963). Petitioners are not required to file ‘repetitious applications’ .in the state courts. Brown v. Allen, 344 U.S. 443, 449 n.3, 73 S.Ct. 397, 403, 97 L.Ed. 469 (1953). Nor does the mere possibility of success in additional proceedings bar federal relief. Roberts v. LaVallee, 389 U.S. 40, 42-43, 88 S.Ct. 194, 196-197, 19 L.Ed.2d 41 (1967).” Wilwording v. Swenson, supra, 404 U.S. at 250, 92 S.Ct. at 408.

“[0]nce the federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied,” Picard v. Connor, supra, 404 U.S. at 275, 92 S.Ct. at 512. No interest of comity is served by burdening the state and federal courts with repetitious applications for habeas corpus “in the guise of requiring petitioners to exhaust state remedies.” Ross v. Craven, 9 Cir., 1973, 478 F.2d 240, 241; Wilwording v. Swenson, supra.

In the case of California petitioners, we have had difficulty in determining whether the California Supreme Court’s denial of a petition for habeas corpus was on procedural grounds or was on the merits. The use by that Court of the postcard denial has been at the root of the problem. As we have noted before, “[fjrom our standpoint, the failure of the California court to reveal the basis of its denial, whether substantive or procedural, is unfortunate.” Castro v. Klinger, supra, 373 F.2d at 850.

Much of the problem stems from the fact that the California Supreme Court, along with the courts of appeal and the superior court, has original jurisdiction over habeas corpus petitions, Cal.Const. Art. VI § 10; In Re Hochberg, 1970, 2 Cal.3d 870, 87 Cal.Rptr. 681, 471 P.2d 1, 3. As a result, many California prisoners seeking post conviction relief file their petitions for writs of habeas corpus in the Supreme Court in the first instance.

The California Attorney General asserts that the California Supreme Court is likely to deny such a habeas corpus petition on the ground that the petitioner has failed to apply for the writ in the Superior Court or the Court of Appeal. There is no doubt that the California Supreme and appellate courts have the power to dismiss habeas corpus petitions on these grounds. In Re Hillery, supra; In re Elias, 1962, 209 Cal.App.2d 262, 25 Cal.Rptr. 739; B. Witkin, California Criminal Procedure § 795 at 767-8 (1963). Moreover, there is little doubt that in the past the practice of the California appellate courts was to decline to entertain habeas corpus petitions when the petitioners had not filed in the lower courts in the first instance. In Re Trainor, 1935, 5 Cal.App.2d 593, 594, 43 P.2d 579; In Re Brune, 1931, 113 Cal.App. 254, 298 P. 80; 24 Cal. Jur.2d Habeas Corpus § 68 at 522-26, § 76 at 541-2.

However, the California Supreme Court has changed its practice in this regard. In 1969, the Court slightly revised the form of its postcard denials. In denying habeas corpus petitions without opinion the Court now frequently cites either a California Supreme Court case or some other authority which indicates to the petitioner the grounds for the denial. For example, if the petitioner did not “allege with particularity the facts upon which he would have a final judgment overturned,” the California Supreme Court will cite In Re Swain, 1949, 34 Cal.2d 300, 209 P.2d 793, in its postcard order. These citations may indicate to the petitioner that his petition has been denied on procedural grounds (such as a citation to Swain), or on substantive grounds, see Ross v. Craven, supra. Since it has begun this method of citation of cases, the California Supreme Court has never cited In Re Hillery, supra, the case upon which the Attorney General relies. In fact, the California Supreme Court has never cited In Re Hillery nor has it cited any other case in at least ten years which would indicate that the filing of a habeas corpus petition in the lower court is a prerequisite to consideration of a habeas corpus petition in the Supreme Court.

On the contrary, the California Supreme Court has accepted numerous habeas corpus petitions in the last few years despite the failure of the petitioners to file below. Moreover, the Court has stated that it does exercise its original habeas corpus jurisdiction and it has laid out a procedure whereby the appellae courts can refer a habeas corpus petition to the Superior Court by an order to show cause returnable in the Superior Court. In Re Hochberg, supra, 471 P.2d at 3-4. There is now no reason to suppose that a postcard denial without opinion is indicative of anything but a decision on the merits of the petition, except where a citation in the order tells us so.

For the purposes of the exhaustion doctrine, this practice of the California Court is beneficial. If the denial of the habeas corpus petition includes a citation of an authority which indicates that the petition was procedurally deficient or if the California Supreme Court so states explicitly, then the available state remedies have not been exhausted as the California Supreme Court has not been given the required fair opportunity to correct the constitutional violation. Daniels v. Nelson, 9 Cir., 1972, 453 F.2d 340, 342; Picard v. Connor, supra. Cf. Humphrey v. Cady, 1972, 405 U.S. 504, 516, 92 S.Ct. 1048, 31 L.Ed.2d 394. However, when the California Supreme Court denies a habeas corpus petition without opinion or citation, or when it otherwise decides on the merits of the petition, the exhaustion requirement is satisfied. Brown v. Allen, 1953, 344 U.S. 443, 449 n.3, 73 S.Ct. 397, 97 L.Ed. 469.

Our decisions in Moreno v. Nelson, supra, Baskerville v. Nelson, supra, Turner v. Lloyd, supra, and Conway v. Wilson, supra, to the extent that they are inconsistent with this opinion, are overruled.

The orders appealed from are reversed, and the cases are remanded to the district court for further proceedings, consistent with this opinion.

      . See The Minutes of the California Supreme Court in The Official Advance Sheets of the California Supreme Court; A Study of Postconviction Procedures in California, Cal. Judicial Council 1971 Annual Report; 22, 31 (1971).

      . Each petitioner was granted probation for five years, conditioned upon payment of a fine and as to Paul upon spending fourteen days and as to Fawn seven days in the Los Angeles county jail. When their federal petitions for habeas corpus were filed on October 12, 1972, a stay of execution until October 24, 1972 had been granted by the state court. Nevertheless, the petitioners were sufficiently “in custody” (28 U.S.C. § 2254(a)) to give the Federal court jurisdiction. See Hensley v. Municipal Court, 1973, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294, reversing our decision, reported at 9 Cir., 453 F.2d 1252.

      . Picard v. Connor, 1971, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438; Fay v. Noia, 1963, 372 U.S. 391, 419, 438, 83 S.Ct. 822, 9 L.Ed.2d 837; Ex Parte Royall, 1886, 117 U. S. 241, 250-251, 6 S.Ct. 734, 29 L.Ed. 868; R. Sokol, Federal Habeas Corpus, 162 (2d ed. 1969).

      . In Erenyi v. Fitzharris, C.D.Cal., 1971, 331 F.Supp. 918, the district court stated that the California Supreme Court had denied a petition for habeas corpus on January 8, 1970, without opinion, but citing In Re Hillery. An independent review of the order issued on January 8, 1970 (Crim.—13791— In Re Erenyi on Habeas Corpus) reveals that the California Supreme Court did not cite In Re Hillery but rather cited In Re Sterling (1965) 63 Cal.2d 486, 47 Cal.Rptr. 205, 407 P.2d 5. In Re Sterling is often cited by the California Supreme Court in denying habeas corpus petitions because it stands for the proposition that habeas corpus relief is not available in California courts for constitutional claims that do not attack the reliability of the fact finding process. See In Re Sterling, 1965, 63 Cal.2d 486, 47 Cal.Rptr. 205, 407 P.2d 5.

      . A petitioner cannot appeal from the denial of his petition for a writ of habeas corpus by the Superior Court or by the Court of Appeal. In Re Crow, 1971, 4 Cal.3d 613, 94 Cal.Rptr. 254, 483 P.2d 1206, 1212 n. 8. His only remedy lies in successive petitions in the higher state courts and the doctrine of res judicata does not operate to bar these actions. Id. Hence, the only posture in which the California Supreme Court rules upon a petition for a writ of habeas corpus is within its original jurisdiction (unless the writ has been issued below and the State exercises its right of appeal, Id.). Therefore as a general rule the California Supreme Court will not even mention whether an application for a writ of habeas corpus was applied for below. See, e. g., In Re Brown, 1973, 9 Cal.3d 612, 108 Cal.Rptr. 465, 510 P.2d 1017; In Re Underwood, 1973, 9 Cal.3d 345, 107 Cal.Rptr. 401, 508 P.2d 721; In Re Crumpton, 1973, 9 Cal.3d 463, 106 Cal.Rptr. 770, 507 P.2d 74.

      . The preferred forum for the filing of ha-beas corpus petitions in California is, of course, still the Superior Court as the discussion in Ilocliberg makes clear. See In Re Elias, supra; In Re Cortez, 1971, 6 Cal. 3d 78, 98 Cal.Rptr. 307, 490 P.2d 819, 825. As to this procedure, see our decisions in Palmer v. Comstock, 9 Cir., 1968, 394 F.2d 395, and Morehead v. State of California, 9 Cir., 1964, 339 F.2d 170.

      . This assumes that there has been no deliberate bypass of state remedies, Fay v. Noia, supra, that the claim presented to the state court was the substantial equivalent of the claim presented to the federal court, Picard v. Connor, supra; Rose v. Dickson, 9 Cir., 1964, 327 F.2d 27, and that no other bar to the consideration by the federal court remains.


text:
    Carlotta Mozelle BREWER and Demetria Yvonne Brewer, infants by Oner Brewer, their father and next friend, et al., Appellants, v. The SCHOOL BOARD OF the CITY OF NORFOLK, VIRGINIA, et al., Appellees.
    No. 71-1900.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 2, 1973.
    Decided July 31, 1974.
    S. W. Tucker, Richmond, Va. (Henry L. Marsh, III, James W. Benton, Jr., Hill, Tucker & Marsh, Richmond, Va., Jack Greenberg, James M. Nabrit, III, Norman Chachkin, New York City, and Victor J. Ashe, Norfolk, Va., on brief) for appellants.
    Allan G. Donn, Norfolk, Va. (Toy D. Savage, Jr., Willcox, Savage, Lawrence, Dickson & Spindle, Norfolk, Va., and Leonard H. Davis, City Atty., for the City of Norfolk, Va., on brief), for ap-pellees.
    Before HAYNSWORTH, Chief Judge, and WINTER, CRAVEN, BUTZNER, RUSSELL, FIELD and WIDENER, Circuit Judges, sitting en banc.
   PER CURIAM:

We are concerned with an award of attorneys’ fees in a school desegregation case.

In 1972 we held that our direction that the School Board be required to provide free transportation to the pupils requiring transportation under a court-ordered desegregation plan conferred an economic benefit upon their parents which was somewhat analogous to the creation of a special fund. On that basis, we directed the District Court to determine and award fees for the plaintiffs’ attorneys. Brewer v. School Board of City of Norfolk, Virginia, 4 Cir., 456 F.2d 943. This the District Court did, limiting its determination of compensable time to the time the attorneys devoted to the free transportation issue.

After our decision in March 1972, the Congress enacted § 718 of the Education Amendments Act of 1972, providing, generally, for an award of attorneys’ fees to the prevailing party in appropriate school desegregation cases upon entry of a final order.

This appeal was brought by the plaintiffs contending that the fee award was inadequate. After argument we held the case pending the Supreme Court’s construction of § 718 in the then pending case of Bradley v. School Board of City of Richmond, Virginia. The Supreme Court announced its decision in Bradley on May 15, 1974, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476. As construed in Bradley, it now appears that § 718 provides a vehicle for an award of fees for the plaintiffs’ attorneys for services rendered without limitation to what they did with respect to the issue of free transportation.

Accordingly, without intimation of any opinion that the District Court’s award was inadequate on the basis of our direction to it in March 1972, the award is vacated and the case is remanded to the District Court with instructions to determine and award to the plaintiffs such reasonable attorneys' fees as may be appropriate under § 718 as construed by the Supreme Court in Bradley.

Vacated and remanded.


text:
    Edgar D. SMITH and Hugh E. Smith, etc., Plaintiffs-Appellants, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY et al., Defendants-Appellees.
    No. 74-1843.
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 19, 1974.
    Wendell G. Lindsay, Jr., Baton Rouge, La., for plaintiffs-appellants.
    Donald S. Zuber, William C. Kaufman, III, Baton Rouge, La., for defendants-appellees.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N. Y., 431 F.2d 409 (5th Cir. 1970), Part I.

   PER CURIAM:

This is the second appearance of this legal malpractice case in this court. On the former appeal, 471 F.2d 840 (5th Cir. 1972), we reversed and remanded an order of the district court, 344 F.Supp. 555, granting summary judgment in favor of the appellee because we felt that the facts with respect to negligence and proximate cause had not been sufficiently developed to support summary judgment. Upon remand the district court held a full evidentiary hearing and made detailed findings of fact and conclusions of law. After careful consideration of the briefs, trial record and the opinion and findings of the district court, 366 F.Supp. 1283 (M.D.La.1973), we are unable to conclude that the district court committed error.

Judgment affirmed.


author: ALFRED T. GOODWIN, Circuit Judge: CARR, District Judge,

text:
    UNITED STATES of America, Appellee, v. Juan Guadalupe GALVAN, Appellant.
    No. 73-3195.
    United States Court of Appeals, Ninth Circuit.
    July 15, 1974.
    Matthew N. Lees, San Diego, Cal., for appellant.
    James Meyers, Asst. U. S. Atty., San Diego, Cal., for appellee.
    Before CHAMBERS and GOODWIN, Circuit Judges, and CARR, District Judge.

       The Honorable Charles H. Carr, United States District Judge for the Central District of California, sitting by designation.

   OPINION

ALFRED T. GOODWIN, Circuit Judge:

This judgment is vacated and the case is remanded to the United States District Court for the Southern District of California for reconsideration in view of our intervening decision in United States v. Brignoni-Ponce, 499 F.2d 1109 (9th Cir. 1974) (en banc).

Vacated and remanded.

CARR, District Judge,

(dissenting):

I dissent.

It seems to me that this court continually overlooks the fact that the prohibition is not against searches but against “unreasonable searches.”

In the instant case I cannot conclude from the facts surrounding the apprehension of the defendant that the questioning and ultimate arrest amounted to an unreasonable search.

The transcript of evidence discloses that Agent Socci was at the checkpoint, saw the defendant pull up in a pickup truck, driving northbound on 1-5, at approximately 9:00 p. m. He testified that the occupants were “appearing very nervous, and avoiding looking in my direction.” [R.T. 7, 8]; that he directed the vehicle to the secondary position [R.T. 9]; that he noticed that two of the persons on the front side were dark, curly headed, full-set eyes, etc; that he has seen and knows from experience persons of Mexican descent [R.T. 9, 10].

Agent Banzin testified that he inquired at the secondary area “ * * * what is your citizenship?” They did not respond. Then he asked them in Spanish and they said they were born in Mexico and had no immigration papers [R.T. 21].

Shortly prior to stopping the defendant’s truck, a person in a passing car told Banzin that a dark-colored truck down the road pulled off to the side of the road [R.T. 22]. Banzin stated that many times this was done to get rid of aliens [R.T. 23].

The court in United States v. Brignoni-Ponce, 499 F.2d 1109 (9th Cir. 1974) (en banc), stated “ * * * in United States v. Bowen, 500 F.2d 960 (9th Cir. 1974) (en bane), we also held that, although searches by border-patrol agents at fixed checkpoints violated the Fourth Amendment, * * In Bowen defendant was convicted of smuggling and transporting drugs and marijuana. The Bowen opinion was en banc, but it did not set out the facts surrounding the search. The opinion did announce that the ruling in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), applied to fixed checkpoint searches.

A careful reading of Almeida-Sanchez leads me to conclude that it is doubtful that the Supreme Court will uphold the decision of this court respecting checkpoint searches. Four of the Justices dissented in the case, and Mr. Justice Powell pointed out, at page 276, 93 S.Ct. at 2541: “Nor does this case involve the constitutional propriety of searches at permanent or temporary checkpoints removed from the border or its functional equivalent.”

I am certainly not convinced that Al-meida-Sanchez, Bowen, or Brignoni-Ponce, is authority for a reversal of this conviction. There appears to be a wide difference between the search of an automobile and the finding of narcotics, and the instant case in which two Mexican nationals were in plain view of agents who had considerable experience with such persons attempting to illegally enter the United States.

It seems to me that this court has extended the Almeida-Sanchez case beyond its holding.

To reverse this case would, in my judgment, be to completely ignore everyday practicalities and ordinary experience. I certainly am not anxious to add further obstructions to the enforcement of the criminal laws of the country.

I should think that any person proceeding on the highway in or near San Diego, at least traveling north, could be asked the question if he were a citizen of this country. Every nation in the world, insofar as I am aware, takes occasion to inquire of the citizenship of persons who look or act like foreigners. Even the hotels require a person to deposit his passport. I cannot believe that the founding fathers of this country intended to have the Fourth Amendment destroy the power of this nation to protect itself from invasion by persons illegally entering the country. The decisions of some of the courts at the present time seem to be moving in that direction.

I would affirm the judgment of conviction.