United States of America Ex Rel. Francisco Castillo, Relator-Appellant v. Edward M. Fay, as Warden of Greenhaven State Prison, Stormville, New York

MARSHALL, Circuit Judge

(dissenting) :

I agree with my brothers that the prosecutor’s statements in open court were not so inflammatory as to render the trial constitutionally unfair. However, the accused’s constitutional rights guaranteed by the Fourth and Fourteenth Amendments were violated by the admission of testimony of a prosecution witness describing the fruits of an illegal search, and I believe that the writ of habeas corpus should be granted on this ground. I therefore dissent.

Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), held that for state trials the Due Process Clause of the Fourteenth Amendment required the exclusion of all evidence obtained in violation of the search and seizure provision of the Fourth Amendment. Admittedly, this search was unconstitutional and it is also undisputed that the admission of oral testimony describing the fruits of the search was equivalent to the admission of the fruit itself, especially since the testimony characterized the matter found as “an instrument * * ■ * used * * * in the cutting of narcotics.” It would thus seem, as a prima facie matter, that the exclusionary rule of Mapp v. Ohio was violated.

In a sense the State does not deny this. Instead, it takes the position that this violation of the exclusionary rule was justified because defense counsel had “opened the door.” The state trial court, which introduced the door-opening concept into this case, did not make this judgment, for Mapp v. Ohio was decided only after the trial was completed. Yet even if that court had reached the question, it would not foreclose the federal habeas court. Whether defense counsel’s conduct, described by the state trial court as “opening the door,” justified the admission of evidence otherwise constitutionally required to be excluded is a federal question; it is for a federal court to independently assess the sufficiency of the purportéd justification.

I do not believe that the conduct of the defense counsel justified the admission of this evidence. It was the prosecutor, not the defense counsel, who brought up the whole matter of the search, even though a similar attempt to introduce testimony relating to the search had, on the first trial, resulted in a mistrial. In that trial, the judge char*406acterized testimony relating to the search as “irrelevant, inflammatory and prejudicial” and it is difficult to perceive what legitimate interest the prosecutor sought to satisfy by reintroducing the search in the second trial. What the prosecutor lacked in concern for fairness he made up for in his shrewdness.

Q. Did you search the apartment? A. Yes, we gave it a search.

Q. Did you find anything? A. Yes.

[Prosecutor]: * * * Your witness.

The officer’s carefully solicited affirmative answer, high-lighted by the immediate termination of the questioning, was prominently pregnant with adverse inferences. The door the defense counsel was charged with subsequently opening was now open. Defense counsel then sought to close the door, to allay the jury’s suspicion, and he did so by asking whether narcotics were found, to which question he received the unusually measured answer, “I did not find any narcotics in that apartment.” It was this last exchange that, according to my brothers, rendered the officer’s later1 description of the fruits of his unconstitutional search constitutionally tolerable.

In reality then, it is the door-closing technique chosen by defense counsel and not the fact that he opened any doors which is held to justify that violation of the Mapp v. Ohio exclusionary rule. This seems to me, not as my brothers suggest, to defer “to local trial practice” or to respect “the principles of party autonomy,” but to deprive an accused of certain of his constitutional rights because defense counsel fell into the trap unconscionably laid by the prosecutor. I find this intolerable. Of course, defense counsel could have moved to strike the line of questioning initiated by the prosecutor instead of inquiring whether the “anything” found was narcotics. However, the accused’s constitutional rights should not be made to hinge on our retrospective evaluation of the technique used to avoid the trap, and, in any event, it is not at all clear that an order granting a motion to strike would have been granted, or, if granted, whether it could have effectively allayed the suspicion the prosecutor had deliberately planted in the jurors’ minds.

Thus the admission of the officer’s testimony describing the fruits of an illegal search violated the accused’s federal constitutional rights; and since there is a reasonable possibility that this evidence contributed to the verdict, an issue upon which we seem to all agree, the accused is constitutionally entitled to a new trial. Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963). It demeans the Great Writ to deprive the accused of its assistance, as my brothers do, because they are of the opinion that this error is not sufficiently “robust.”

I would reverse.

. It is passing strange to find my brothers invoking, though somewhat obliquely, Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 303 (1954). The accused testified subsequent to the testimony describing the fruit of the illegal search, and thus it could hardly be said that this testimony was introduced in order to rebut an untruthful statement by the accused. Moreover, it is possible that tbe accused’s later testimony, in which he denied selling or using narcotics, fell within the exception set out by Mr. Justice Frankfurter in Walder: the accused “must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured * * * ” 347 U.S. at 65, 74 S.Ct. at 356.