Warren Carl Sherrick v. Frank A. Eyman, Warden, Arizona State Prison

389 F.2d 648 Warren Carl SHERRICK, Appellant, v. Frank A. EYMAN, Warden, Arizona State Prison, Appellee. No. 21876. United States Court of Appeals Ninth Circuit. Feb. 7, 1968, Rehearing Denied March 29, 1968. Gerald Francis Sullivan (argued), Phoenix, Ariz., for appellant. Norval Jespersen (argued), Asst. Atty. Gen., Darrell F. Smith, Atty. Gen., James S. Tegart, Asst. Atty. Gen., Phoenix, Ariz., for appellee. Before MADDEN, Judge of the United States Court of Claims, and DUNIWAY and ELY, Circuit Judges. MADDEN, Judge: 1 The appellant Sherrick, hereinafter called the petitioner, was convicted of first degree murder in a state court of Arizona. His conviction was affirmed by the Supreme Court of Arizona. State v. Sherrick, 98 Ariz. 46 , 402 P.2d 1 (1965). His petition to the Supreme Court of the United States for a writ of certiorari was denied. Sherrick v. Arizona, 384 U.S. 1022 , 86 S.Ct. 1938 , 16 L.Ed.2d 1024 . He filed, in the United States District Court for the District of Arizona, a petition for a writ of habeas corpus. That court held a hearing and took the case under advisement. At that point the petitioner's attorney requested the court to consider a ground, additional…

The appellant Sherrick, hereinafter called the petitioner, was convicted of first degree murder in a state court of Arizona. His conviction was affirmed by the Supreme Court of Arizona. State v. Sherrick, 98 Ariz. 46 , 402 P.2d 1 (1965). His petition to the Supreme Court of the United States for a writ of certiorari was denied. Sherrick v. Arizona, 384 U.S. 1022 , 86 S.Ct. 1938 , 16 L.Ed.2d 1024 . He filed, in the United States District Court for the District of Arizona, a petition for a writ of habeas corpus. That court held a hearing and took the case under advisement. At that point the petitioner’s attorney requested the court to consider a ground, additional to the two grounds asserted in the petition, for granting the writ of habeas corpus. The court refused to grant that request unless the petitioner would first petition the Supreme Court of Arizona for a writ of habeas corpus on that ground. The petitioner did file such a petition, and the Supreme Court of Arizona denied it. Then the petitioner filed an amended petition in the United. States District Court, which amended petition included the two grounds asserted in the original petition and the third ground referred to…

(dissenting in part):

I concur in the result reached by the majority, and I do not quarrel with most of the reasoning which produces it. I do, however, sharply disagree with that portion of the majority opinion in which the validity of the search warrant is upheld.

Before the trial was held in the Arizona state court, a hearing was conducted pursuant to Sherrick’s motions to suppress certain evidence which had been seized in the search conducted pursuant to the warrant. During the hearing, the police officer who obtained the search warrant testified as follows:

In the testimony of the magistrate who issued the search warrant, there appears the following:

Neither the police officer nor the magistrate testified, or apparently could testify, as to the nature of any unrecorded information which might have been given to or received by the magistrate and .which might have supplied the requirement of probable cause.

When the question of the validity of this search warrant was presented to the Supreme Court of Arizona, that court conceded that it would be compelled, upon the authority of Aguilar v. State of Texas, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 (1964), to hold that the…