Marshall Roy Lurie v. E. J. Oberhauser, Warden, Peter Gary D'AllessAnDro v. C. J. Fitzharris, Superintendent, Etc.

On June 1, 1966 petitioners Lurie and D’Allessandro were convicted in the Superior Court of the State of California, of burglary and grand theft. Their convictions were affirmed by the California Court of Appeals. The California Supreme Court denied their petitions for a hearing.

The petitioners’ applications for the issuance of writs of habeas corpus were denied by the District Court after a review of the transcripts of their preliminary examination and trial. This appeal followed.

The facts are not materially disputed. Two officers of the Los Angeles Police Department were conducting a stakeout at the Los Angeles International Airport for two out-of-town suspects they believed were involved in a robbery at I. Magnin’s in Beverly Hills. The suspects, Lurie and D’Allessandro, were thereafter observed at the Trans-World Airlines Terminal in the company of a young lady. When they presented their tickets at the gate one of the officers stepped forward and placed all three un *332 der arrest. The officers then obtained seven baggage claim checks from the possession of D’Allessandro. The claim checks were handed to an airlines agent who secured the luggage which was transported to…

(dissenting in part):

While the question of the existence, vel non, of probable cause for the appellants’ arrest is, in my judgment, extremely close, I have decided to accept the majority’s resolution of that ques *334 tion. I cannot, however, agree with the decision of my Brothers that the appellants have forfeited all right to challenge the admittedly unconstitutional search of their property. The majority reasons that the appellants have no sufficient standing to make the challenge because they did, in effect, abandon their property by disclaiming its ownership. I cannot accept that rationale, for, as I see it, the appellants really had no choice, when met with the questions put to them without adequate advance warning of their rights, except to utter their disclaimers of ownership or to sacrifice the right guaranteed to them by the Fifth Amendment. See Jones v. United States, 362 U.S. 257 , 80 S.Ct. 725 , 4 L.Ed.2d 697 (1960), wherein the Supreme Court specifically limited its opinion to crimes for which mere possession of contraband is sufficient for conviction (e. g. narcotics). I see no compelling distinction between that situation and that here involved, especially since…

431 F.2d 330 Marshall Roy LURIE, Appellant, v. E. J. OBERHAUSER, Warden, Appellee. Peter Gary D'ALLESSANDRO, Appellant, v. C. J. FITZHARRIS, Superintendent, etc., et al., Appellee. No. 23917. No. 24247. United States Court of Appeals, Ninth Circuit. August 14, 1970. Rehearings Denied October 14, 1970. 1 Richard G. Sherman (argued), of Sherman & Sturman, Beverly Hills, Cal., for appellants. 2 Mark Christiansen (argued), Deputy Atty. Gen., Thomas C. Lynch, Atty. Gen., Wm. E. James, Asst. Atty. Gen., Thomas S. Kerrigan, Deputy Atty. Gen., Los Angeles, Cal., for appellees. 3 Before HAMLEY and ELY, Circuit Judges, and POWELL, District Judge * . 4 POWELL, District Judge, 5 On June 1, 1966 petitioners Lurie and D'Allessandro were convicted in the Superior Court of the State of California, of burglary and grand theft. Their convictions were affirmed by the California Court of Appeals. The California Supreme Court denied their petitions for a hearing. 6 The petitioners' applications for the issuance of writs of habeas corpus were denied by the District Court after a review of the transcripts of their preliminary examination and trial. This appeal followed. 7 The facts are not…