Arthur Richard Gates v. Robert J. Henderson, Superintendent, Auburn Correctional Facility ( 1978 )

On Rehearing En Banc.

Before KAUFMAN, Chief Judge, and SMITH, FEINBERG, MANSFIELD, MULLIGAN, OAKES, TIMBERS, GURFEIN, VAN GRAAFEILAND and MESKILL, Circuit Judges.

MULLIGAN, Circuit Judge:

The petitioner-appellant Gates appealed from an unreported decision in the United States District Court for the Southern District of New York, Hon. Robert L. Carter, Judge, dated May 27, 1976, which denied without a hearing his habeas corpus application. The district court granted him a certifícate of probable cause. On appeal a panel of this court, Judge Timbers dissenting, by a 2-1 vote reversed and remanded for an evidentiary hearing. On the suggestion of Robert J. Henderson, Superintendent, Auburn Correctional Facility, respondent-appellee, and at the request of a member of the panel of this court for an en banc poll, we granted rehearing en banc. We vacate the panel judgment and decision, supra, and affirm the order of the district court dismissing the petition for a writ of habeas corpus.

I

At approximately 1:00 a. m. on the morning of September 7, 1966 a policeman, attracted by screaming, entered the Spring Valley, New York apartment of Patricia Gates. He and her upstairs neighbor, Mrs. Mierop, found Patricia Gates mortally wounded by knife stabs, lying on her bed in a pool of blood. She was removed to a hospital and was pronounced dead at 1:20 a. m. Patricia Gates was the estranged wife of the petitioner Arthur Richard Gates, having received a decree of separation from him in June of that year which awarded her custody of their four children. As they left the courthouse petitioner told his wife in the presence of her attorney, “You will never live to enjoy the children. I will see to it myself.” The awarding of custody of the children to his wife rankled Gates. Mrs. Mierop was later to testify at his murder trial that two days before the murder she heard Gates tell his wife, “You better enjoy the kids while you have them. You won’t have them for long.”

At about 1:45 a. m. on the morning of the murder Gates was stopped by a police officer in the business district of Spring Valley for failing to dim his headlights. Upon learning his identity, the officer arrested Gates for assault apparently having received a wanted person bulletin for Gates some ten minutes before. Gates was brought to police headquarters and without protest was fingerprinted and palmprinted.

The investigation of the murder by the police revealed that entrance to Patricia Gates’ apartment had been obtained through a bathroom window which had been opened after the screen had been removed. A set of fresh fingerprints was found on the screen so positioned that the prints could have only been made by someone standing outside the first floor apartment and pulling the screen from its place. A palmprint with the fingers pointing into the room was also found on the bathroom windowsill. One fingerprint and one palm-print were positively identified as those of appellant.

Gates was convicted of murder in the first degree in County Court, County of Rockland, New York. On February 14, 1967 Judge Morton B. Silberman sentenced Gates to a mandatory life sentence noting that the jury verdict of premeditated and deliberate murder was fully justified by the evidence. Gates’ conviction was affirmed without opinion by the Appellate Division, 29 A.D.2d 843, 288 N.Y.S.2d 862 (2d Dep’t 1968) and by a unanimous opinion of the Court of Appeals, 24 N.Y.2d 666, 301 N.Y. S.2d 597, 249 N.E.2d 450 (1969). Chief Judge Fuld in his opinion for the court noted, “The defendant’s palm and fingerprints were located on the window through which the murderer apparently entered the house. Such proof, not susceptible of any other explanation, pointed ineluctably to the defendant’s guilt and was sufficient to exclude to a moral certainty any other reasonable hypothesis.” Id. at 669, 301 N.Y. S.2d at 600, 249 N.E.2d at 451. Gates then applied for a writ of error coram nobis which was denied. People v. Gates, 61 Misc.2d 250, 305 N.Y.S.2d 583 (Rockland County Ct. 1969), aff’d, 36 A.D.2d 761, 319 N.Y.S.2d 569 (2d Dep’t 1971), motion for leave to appeal denied (1972).

II

In August 1973 Gates filed a habeas corpus petition in the Southern District of New York raising as the only constitutional issue the lack of probable cause for his arrest. Counsel was appointed for him under the Criminal Justice Act. 18 U.S.C. § 3006A. Counsel argued that the taking of Gates’ palmprints¹ was in violation of his rights under the Fourth and Fourteenth Amendments since probable cause for his arrest did not exist. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). Judge Carter, in denying relief, held that Judge Fuld’s opinion had already ruled that the Court of Appeals did not reach the merits of Gates’ “fruit of the unlawful arrest” argument since “it was not raised below at all” and that that conclusion had been already upheld “by two courts on state collateral attack.” As the district court noted, “The Court of Appeals was merely enforcing procedural requirements under New York law and chose to follow its policy of ignoring claims judged not »to have been adequately raised below.” Gates v. Henderson, No. 73 Civ. 3865, slip op. at 7-8 (S.D.N.Y. May 27, 1976).

On appeal to this court, a split panel reversed the district court. Judge Oakes, writing for the majority held that counsel’s objection to the prints was “ambiguous” and could have been on both Fourth and Fifth Amendment grounds; that under Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), which had been decided after Judge Carter’s opinion, habeas corpus review of search and seizure claims was foreclosed in the federal court only when the petitioner had an opportunity for full and fair litigation of the Fourth Amendment claims; that petitioner had no such opportunity here since the majority found he had made a Fourth Amendment objection at the trial level which was never considered by the state courts. The majority further concluded that even if no Fourth Amendment objection had been made, under Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) the district court could deny federal habeas relief only if Gates had deliberately by-passed state procedures. Gates v. Henderson, supra, 568 F.2d 844 at 850. Judge Timbers dissented.

Ill

The record of the trial of Gates in the Rockland County Court demonstrates beyond doubt that the objections of his counsel to the taking of the palmprints on September 7, 1966 were on Fifth and Sixth Amendment and not at all on Fourth Amendment grounds. Captain Eisgrau of the Clarkstown Police Department was called as a witness by the state. Mr. Newman, counsel for Gates stipulated outside the presence of the jury that Eisgrau had taken Gates’ fingerprints and palmprints. The following colloquy ensued:

The Court: Mr. Newman, you inform me you want to make an objection outside the presence of the jury.

Mr. Newman: Right. As I understand it, the District Attorney is about to introduce into evidence fingerprints which were taken by the present witness, Captain Eisgrau of the Clarkstown Police Department.

Mr. Meehan: Did you say fingerprints?

Mr. Newman: Hand prints, and which were taken at the Clarkstown Police Department on the morning of September 7, 1966. While there is no question, and we will stipulate, that they were taken of the defendant in this case, we raise objection not to the fact that they are or not his prints but to the introduction of those prints on the basis that this man’s constitutional rights both under the State and Federal Constitution have been violated by the taking of these prints and as such we object to them.

The Court: Your objection is then on constitutional grounds to the mere fact of the taking of the prints?

Mr. Newman: Yes, sir.

The Court: As such?

Mr. Newman: Right, sir.

The Court: I will overrule that objection.

(Emphasis supplied.)

Subsequently, John A. Slater, Identification Officer, Bureau of Criminal Identification, Rockland County Sheriff’s office, who also took Gates’ prints was called as a witness for the state. Gates’ counsel on voir dire outside the presence of the jury made objection to the use of the palmprints taken by Slater and this exchange took place:

The Court: Do you want to be heard on that, Mr. Newman?

Mr. Newman: Other than what I have said, I don’t think there is too much further to say. I don’t think this defendant has been properly advised of his right prior to the time that this palm print was taken and as such I feel it would be a violation of both the State and federal constitutions to permit this document to be received in evidence at this time.

The testimony is clear, there is no question that no advice of rights was given to the defendant and as such it is prejudicial.

(Emphasis supplied.)

Moreover, Mr. Newman further clarified his constitutional objections of the day before to the Eisgrau palmprinting of Gates:

Mr. Newman: I want the record to indicate, sir, that actually in making this objection yesterday it was intended, although not spelled out in this degree for the reason that trial strategy, if you would call it that, would dictate that I do it this morning after the attempt to get this into evidence, so that the record is clear my objection yesterday on the constitutional grounds also was on the basis that there was no showing that this was free, voluntary giving or necessary, nor was there any advice given to the defendant that this would or could be used against him in evidence at the trial of this matter.

(Emphasis supplied.)

In addition to these colloquies out of the presence of the jury the cross-examination of both officers by Newman makes it crystal clear that his constitutional objection to the palmprints was primarily based on the Fifth Amendment, whether force had been employed to take the prints and whether Gates had been warned that they could be used in evidence against him. The fingerprints were viewed as taken for the purpose of identification but the palmprints were singled out by counsel as being an unusual step only taken for their use on trial. There is not a single mention of the Fourth Amendment and the record is barren of any discussion at any time of the legality of the arrest. No suppression motion was ever made.

In his post-trial motion the only constitutional issue raised by Gates’ counsel involving the taking of both fingerprints and palmprints was as follows:

Mr. Newman: Along the same general lines concerning the fingerprints and self-incrimination, I think that our stage of society now, Your Honor, has reached the position where we can no longer consider the taking of fingerprints which are used by police authorities as being a proper way of identifying a person.

I think that we have now reached the stage where our constitutional safeguards are such that I would advance here that in this particular ease the taking of the fingerprints themselves constituted a violation of this man's constitutional safeguards.

This is especially true, I would respectfully submit, where they were taken under the circumstances as they were in this particular case, before the man had been convicted of the crime, and I think that as I said before, our society now has reached the intelligent position whereby this can no longer be condoned because, in effect, what we are saying is that although you can not speak to this man, you cannot take his statement from him without certain advice and certain safeguards, you can do physical things to him which compels him to be a witness against himself, and I would respectfully submit that on the basis of both the State and Federal Constitutions that this man’s rights had been violated by the mere taking of the fingerprints and palmprints themselves.

(Emphasis supplied.)

On his appeal to the Appellate Division, Second Department, Gates was represented by the same firm which had appeared for him on trial. Two points in the brief were addressed to the constitutional issues involved in the taking of the prints. Point IV raised squarely the Sixth Amendment issue that Gates’ prints were taken for evidentiary purposes without his counsel being present. It was argued that under United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), Gates was entitled to have his counsel present at the time his palmprints were taken since this step represented a “critical stage” of the proceeding tantamount to a line-up. Point V of the brief was primarily devoted to the Fifth Amendment claim that the taking of the prints was for evidentiary and not identification purposes and therefore constituted testimonial compulsion. A reading of the eight pages of the brief devoted to the alleged errors of constitutional dimension attributed to the trial judge, demonstrates conclusively that counsel had not raised and did not intend to raise any issue at all with respect to the propriety of Gates’ arrest. If the omnibus constitutional argument had been related to the incident of his early morning arrest, allegedly made without probable cause, the issue could have been fairly brought to the court’s attention without specific reference to the Fourth Amendment. But reading the trial record here makes it certain that the thrust of Gates’ argument was that he had been forced to submit to the fingerprinting procedure without being advised chat the tests could be used against him on trial and that he was entitled to counsel at the time the test was being administered.

Aside from the clear evidence in the record itself, there is support from the lacunae in the record. Had the issue of the propriety of his arrest been in the mind of Gates or his counsel then surely a suppression motion would have been necessary to develop the facts surrounding the arrest and the reliability of the evidence depended upon by the police. No request for such a hearing was made. Our reading of the record is further supported by the brief of Gates’ new counsel retained for the appeal to the New York Court of Appeals. It contains this language with respect to the Fourth Amendment claim:

The Court may consider the question of the admissibility of the fingerprint identification evidence on the ground now urged although an objection was made at the trial only on Fifth and Sixth Amendment grounds.

For the first time, as Chief Judge Fuld correctly observed, the Fourth Amendment issue surfaced in that court.

Although the defendant now asserts that his arrest was unlawful, his failure to object to the use of the evidence on that ground, or even to intimate that such an issue was in the case, deprived the People of any opportunity to show the information in the possession of the police at the time of Gates’ arrest. It may well be that, when the arrest was effected— though only 45 minutes after the commission of the crime — the police had already gathered facts, such as the defendant’s threats against his wife, which actually furnished reasonable grounds for believing that he had committed the crime. Certainly, on the basis of the record now before us, we should not presume otherwise.

24 N.Y.2d at 670, 301 N.Y.S.2d at 601, 249 N.E.2d at 452 (footnote omitted).

We conclude therefore that the panel’s finding that Gates’ objection on constitutional grounds was “regrettably ambiguous” is not substantiated by a reading of the entire trial record. As the highest court of the state found, as well as two reviewing coram nobis state courts and the district court here, no Fourth Amendment claim based on the alleged illegality of Gates’ arrest was ever made in or suggested to the trial court.²

IV

In Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) the Supreme Court reversed cases from both the Eighth and Ninth Circuit Courts of Appeals which had granted federal habeas corpus relief under 28 U.S.C. § 2254 to state prisoners whose convictions of murder in state courts had been affirmed on appeal.³ In each case the prosecution relied on evidence obtained by alleged unconstitutional searches and seizures. Mr. Justice Powell, writing for the majority, sharply curtailed federal habeas review of state convictions by stating;

We hold, therefore, that where the State has provided an opportunity for full and fair litigation of the Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.

Id. at 481-82, 96 S.Ct. at 3045-3046 (footnote omitted).

The issue before us then is whether the State of New York provided Gates with the opportunity for full and fair litigation of his Fourth Amendment claim. That the state did so cannot be open to serious challenge. In response to Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) the New York Legislature provided a statutory mechanism for the suppression of evidence obtained through an unlawful search or seizure in violation of the defendant’s Fourth Amendment rights. N.Y.Code Crim.Proc. §§ 813-c through e.⁴ The motion to suppress is generally to be made prior to trial but it may be made during trial where the defendant was unaware of the seizure or did not have either material evidence or the opportunity to make a pretrial motion. There is no contention here that the State of New York failed to provide the procedural devices affording Gates an opportunity to raise the issue of his allegedly unlawful arrest. It is undisputed, as we have indicated, that Gates’ counsel made no pretrial motion to suppress. The record further reveals that during trial when the fingerprint and palmprint evidence was offered, Gates was provided with the opportunity to raise his constitutional objections out of the presence of the jury. As pointed out in Part III of this opinion, Gates never raised any Fourth Amendment objection. This is clearly established by the record and was the view of the New York Court of Appeals when Gates’ counsel candidly admitted in his brief that that appeal was the first occasion on which the Fourth Amendment objection was raised. Thus Gates had the opportunity at the trial court but waived it; raised it belatedly, after already having had review in the Appellate Division, in the Court of Appeals where it was rejected. He later raised it in coram nobis applications in the state court where it was again rejected because it was not raised on trial.

How then can we possibly find that Stone v. Powell, supra, does not control the outcome here? The majority for the panel based its argument on two earlier Supreme Court cases, Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) and Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Neither case in our view is relevant.

a) Townsend v. Sain

In Townsend v. Sain, supra, the Supreme Court listed six circumstances where a federal court must grant an evidentiary hearing to a habeas petitioner.⁵ These situations obviously relate to what constitutes a full and fair evidentiary hearing in a state court but Stone announced a new rule — was the state prisoner afforded the opportunity for full and fair litigation of his Fourth Amendment claim. Had Gates requested gnd been given a hearing but it was deficient, an issue under the Townsend criteria might possibly surface. But since Gates did not seek a hearing Townsend is irrelevant. The majority of the panel imported Townsend here because Mr. Justice Powell, while referring to the opportunity for a full and fair litigation several times in his opinion without definition, 428 U.S. at 469, 480, 482, 486, 489, 494 n. 37, 96 S.Ct. 3037, 3044, 3046, 3047, 3049, 3052 n. 37 in one place after reciting that phrase, id. at 494, 96 S.Ct. at 3052, makes a cf. reference to Townsend. As the panel majority recognized a cf. signal refers to an “authority supporting] a proposition different from that in text but sufficiently analogous to lend support”. 568 F.2d at 848 quoting A Uniform System of Citation 7 (12th ed. 1976). While we are not fully appreciative of the significance of the footnoted reference, we are persuaded that it cannot be reasonably interpreted to require a federal court to conduct a hearing on an issue where the state prisoner, having an opportunity to do so, never tendered the question to the state court. Such a proposition would totally undercut the thrust and rationale of Stone. In fact, it is not even required by Townsend.

The panel majority relied on the first situation listed in Townsend v. Sain, supra, 372 U.S. at 313-16, 83 S.Ct. 745, which would require a hearing if the merits of the factual dispute were not resolved in the state hearing. But the Court there said, “There can not even be the semblance of a full and fair hearing unless the state court actually reached and decided the issues of fact tendered by the defendant.” 372 U.S. at 313-14, 83 S.Ct. at 757 (emphasis supplied). The issue of fact pertinent here related to the probable cause for Gates’ arrest by the police on the morning of his capture. But that issue was never raised in the trial court as we have indicated. Hence, Townsend did not mandate a hearing even before the opinion of the Court in Stone.

b) Fay v. Noia

The fifth category mentioned in Townsend and relied upon by the panel was, “If, for any reason not attributable to the inexcusable neglect of petitioner, see Fay v. Noia [372 U.S. 391, 438, 83 S.Ct. 822, 848, 9 L.Ed.2d 837 (1963)], evidence crucial to the adequate consideration of the constitutional claim was not developed at the state hearing, a federal hearing is compelled.” The panel concluded therefore that even if the state had properly found that the constitutional issue had not been raised, the power to deny federal habeas does not exist unless the federal habeas court finds that there was a deliberate bypass or knowing waiver of the federal claim. 568 F.2d at 850.

We read Stone as effectively overruling Fay with respect to Fourth Amendment exclusionary rule claims.⁶ Fay was premised on the hypothesis that “conventional notions of finality in criminal litigation cannot be permitted to defeat the manifest federal policy that federal constitutional rights of personal liberty shall not be denied without the fullest opportunity for plenary federal judicial review.” 372 U.S. at 424, 83 S.Ct. at 841. Mr. Justice Brennan’s dissent in Stone is indeed based on the premise that the exclusionary rule was a constitutional ingredient of the Fourth Amendment. Therefore, those denied the federal writ on such Fourth Amendment issues are “persons whom society has grievously wronged”. Fay v. Noia, supra, 372 U.S. at 441, 83 S.Ct. at 850.

However, Stone v. Powell, supra is of major jurisprudential significance because these tenets have been reexamined and rejected. The Stone majority has determined that the exclusionary rule in Fourth Amendment cases is not a personal constitutional right but rather a judicially created remedy, 428 U.S. at 486, 96 S.Ct. 3037, now judicially curtailed. Hence, the rationale of Fay that plenary federal review is mandated to one grievously wronged by a denial of constitutional rights has been destroyed, as Mr. Justice Brennan recognized, with respect to search and seizure claims.

The majority in Stone v. Powell, supra, further found that while the goal of deterrence of law enforcement officials from the violation of Fourth Amendment rights supports the implementation of the exclusionary rule at trial and on direct appeal of state court convictions, “the additional contribution, if any, of the consideration of search-and-seizure claims of state prisoners on collateral review is small in relation to the costs.” Id. at 493, 96 S.Ct. at 3051. The costs include intrusions on limited judicial resources, undermining the necessary principle of finality in criminal trials, heightening of friction between the federal and state systems of justice and erosion of the doctrine of federalism.⁷ See id. at 491 n. 31, 96 S.Ct. 3037. The cost is particularly high because the exclusionary rule “deflects the truthfinding process and often frees the guilty.” Id. at 490, 96 S.Ct. at 3050.

In Stone all that the Court required was that the state have provided the opportunity to the state prisoner for full and fair litigation of the Fourth Amendment claim; it did not further indicate that such opportunity, if not exercised in the state court, was only lost when the defendant or his counsel deliberately and intentionally sought to by-pass the state process. Had the Court intended to so drastically qualify its rule, it certainly would have so stated. The resurrection of a now discredited Fay in a case such as this is indeed contrary to the Court’s analysis in Stone. Requiring the federal court to make collateral investigations of the subjective motivation of the state prisoner which would involve the expenditure of sorely pressed federal judicial resources and exacerbate possible friction between the federal and stape judiciary, is antithetical to the very factors which motivated the Stone majority to sharply limit the role of the federal court in Fourth Amendment state habeas procedures.⁸

This very case illustrates the conceptual basis for Stone. Gates was convicted of murder, presumably on the basis of the finger and palmprints found at the scene of the crime. Any illegality surrounding his arrest would not render the evidence any less genuine or damning. The state court provided every opportunity for him to have raised the issue. He was vigorously represented by counsel who pressed constitutional issues to the taking of the prints but never to the legality of his arrest. Gates has never raised any issue as to the competence of his counsel. He was afforded full appellate review and further coram nobis procedure. No attack is mounted on the state procedure requiring that the Fourth Amendment issue be raised at trial. The Fourth Amendment objection was raised for the first time in the Court of Appeals as his then counsel conceded. To permit a hearing now eleven years later, after memories have long since dimmed, to determine what cause the police had at that time to make an arrest would be neither just to society nor effectuate the rationale of the exclusionary rule — police deterrence. The Supreme Court in Stone held that under these circumstances federal intrusion is unwarranted.

If the state provides no corrective procedures at all to redress Fourth Amendment violations, federal habeas corpus remains available. United States ex rel. Petillo v. New Jersey, 4Í8 F.Supp. 686 (D.N.J. 1976) rev’d 562 F.2d 903 (3rd Cir. 1977). It may further be that even where the state provides the process but in fact the defendant is precluded from utilizing it by reason of an unconscionable breakdown in that process, the federal intrusion may still be warranted. See Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969 (1915); Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441, 456-57 (1963). But that is not this case. Stone v. Powell, supra, holds that we have no authority to review the state record and grant the writ simply because we disagree with the result reached by the state courts. The basic inquiry is whether the state prisoner was given the opportunity for full apd fair litigation of his Fourth Amendment claim. We find that Gates was given that opportunity and hence we affirm the district court dismissal of his petition for habeas relief.

OAKES, Circuit Judge, with whom Judges J. JOSEPH SMITH and FEINBERG concur (concurring in the result):

Two developments in the period since the panel decision was filed lead me to change my vote from one of reversal to one of affirmance. First, additional facts not mentioned in the State’s brief to the panel or in its petition for rehearing and presented for the first time in conjunction with its en banc brief make it clear that appellant’s trial-level objection to the admission of palmprint evidence was not based on the Fourth Amendment. Second, a recent Supreme Court decision, Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), indicates that appellant’s lack of trial objection amounted to the type of state procedural default that forecloses federal habeas consideration of whether he was denied his constitutional rights. Accordingly, I concur in the judgment of the court.

I.

The only trial objection brought to the attention of the panel is the one printed in its opinion, ante, 568 F.2d at 845. That objection, as the panel majority wrote, is “regrettably ambiguous,” id. at 845, in that it is susceptible to interpretation as either a Fourth or a Fifth Amendment claim. This ambiguity perplexed Judge Carter below as much as it perplexed the panel, and the State, responding to his injury, gave him no more information about this objection than it later gave the panel.¹ One could have interpreted the opinions in the state courts, both on direct appeal and on coram nobis, as necessarily meaning that no objection on Fourth Amendment grounds had been made, and perhaps the State thought that by furnishing references to those, it had done all that was necessary. To the panel majority, however, the state court opinions were simply inexplicable in view of the objection we had before us,² and unfortunately the State’s petition for rehearing shed no further light on the problem.

When the State filed its en banc brief in this case, it also filed and referred to three key documents. The first of these was a trial transcript, which was not part of the original panel appeal record. This transcript reveals three instances other than the one called to the panel’s attention in which appellant’s counsel discussed the palmprint evidence, and in all of these other instances it is clear, as the quotations in the en banc majority opinion demonstrate, ante, 568 F.2d at 831, that the objection to the evidence was on Fifth and Sixth, not Fourth, Amendment grounds.³ The second key document filed at the en banc stage is appellant’s Appellate Division brief, in which, as the en banc majority opinion notes, id., 568 F.2d at 833, points are made relating only to the Fifth and Sixth Amendments. Finally, appellant’s brief in the New York Court of Appeals, also filed with us only at the en banc stage, conceded that no Fourth Amendment objection had been made at trial, a fact that explains the Court of Appeals’ conclusion, puzzling to the panel majority, see ante, 568 F.2d at 849, that appellant had failed “even to intimate that such an issue was in the case.” 24 N.Y.2d at 670, 301 N.Y.S.2d at 601, 249 N.E.2d at 452.

II.

These three documents, not presented to the panel, are convincing proof that appellant did not make a Fourth Amendment objection at trial. This lack of objection means that appellant did not even attempt to invoke the New York procedure available at that time for obtaining the suppression of evidence, N.Y.Code Crim.Proc. §§ 813-c, 813-d (predecessor to N.Y.Crim.Proc.Law § 710.40 (McKinney 1971 & Cum.Supp. 1976-77)), and this alone might bar his federal habeas claim under our holding in United States ex rel. Tarallo v. LaVallee, 433 F.2d 4, 7-8 (2d Cir. 1970), cert. denied, 403 U.S. 919, 91 S.Ct. 2235, 29 L.Ed.2d 697 (1971). See LiPuma v. Commissioner, 560 F.2d 84, 88-90 (2d Cir. 1977). A legitimate inquiry prior to the Supreme Court’s most recent Term, nevertheless, was whether appellant’s failure to object amounted to a deliberate bypass of “the orderly procedure of the state courts”, Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963), or whether instead it was an inadvertent omission, entirely unrelated to trial strategy, see Kibbe v. Henderson, 534 F.2d 493, 496-97 (2d Cir. 1976), rev’d on other grounds, 431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977).

Contrary to the suggestion in the en banc majority opinion, ante, 568 F.2d at 831; Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), in my view did not overrule Fay v. Noia with respect to the deliberate bypass standard. See O’Berry v. Wainwright, 546 F.2d 1204, 1219-24 (5th Cir.) (Goldberg, J., dissenting), cert. denied, 433 U.S. 911, 97 S.Ct. 2981, 53 L.Ed.2d 1096 (1977). Indeed, by citing to Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), in its summary of the “opportunity for full and fair litigation” test, 428 U.S. at 494 n.36, 96 S.Ct. at 3045-3046, the Stone opinion appears to consider Fay v. Noia of some importance, since Townsend contains a crucial citation, to Fay, 372 U.S. at 317, 83 S.Ct. 822. Two other decisions from the Supreme Court’s 1975 Term, Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), and Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), could have been read as undercutting Fay’s deliberate bypass standard, see Estelle, 425 U.S. at 526, 96 S.Ct. 1691 (Brennan, J., dissenting); Francis, 425 U.S. at 545-47, 552-53 & n.4, 96 S.Ct. 1708 (Brennan, J., dissenting), but the Court, which had ample opportunity, certainly did not say that it was affecting Fay in any way.⁴ Until the Supreme Court spoke more definitively, we as an inferior court were bound by Fay v. Noia, and thus the panel majority applied the deliberate bypass standard.

The Supreme Court has now spoken more definitively. In Wainwright v. Sykes, supra, the Court stated that Francis, had significantly restricted Fay’s “dicta” concerning deliberate bypass. 433 U.S. at 85, 97 S.Ct. at 2505. In the context of a failure to object at trial to admission of a confession, a failure that precluded later state relief under the state’s contemporaneous objection rule, the Court held in Wainwright that federal habeas relief was also precluded by the operation of such a rule. In the process the Court “rejectfedj” the “sweeping language of Fay v. Noia,” which language went, in the Court’s view, “far beyond the facts of the case eliciting it”. Id. at 88, 97 S.Ct. at 2507. Wainwright’s discussion of problems with Fay’s deliberate bypass test, id., is underscored by its adoption of a sweeping rule, first used in a more limited context in Francis v. Henderson, supra⁵ under which a bypass of state procedures forecloses all habeas relief unless both prejudice from the alleged state error and cause for the bypass are shown, 425 U.S. at 542, 96 S.Ct. 1708. In the instant case, while actual prejudice from the evidence’s admission might be shown, compare 433 U.S. 92-93 at 2509 (substantial other evidence of guilt in Wainwright) with panel op., ante, 568 F.2d at 845, (recognition by New York court of critical importance of print evidence to appellant’s conviction), there is no explanation for the failure to object, see, 433 U.S. at 88-90, 97 S.Ct. 2507-2508.⁶ Appellant’s Fourth Amendment claim is therefore not cognizable in a federal habeas court under the Francis-Wainwright standard.

III.

Although this case can now be resolved on the basis of appellant’s failure to comply with New York’s contemporaneous objection rule, the en banc majority opinion goes on to discuss extensively the ramifications of Stone v. Powell In light of this, a brief discussion of the Stone test of “an opportunity for full and fair litigation of a Fourth Amendment claim,” 428 U.S. at 482, 96 S.Ct. at 3045-3046, is necessary. My principal concern is with the en banc majority opinion’s statement that federal habeas consideration of a Fourth Amendment claim is only warranted if either “the state provides no corrective procedures at all” or “the defendant is precluded from utilizing [the state procedures] by reason of an unconscionable breakdown in that process”. Ante, 568 F.2d at 840.

While these two situations are unquestionably ones in which the requisite Stone “opportunity” has not been given a defendant, they do not, I believe, cover the entire range of cases in which such an opportunity might be found lacking. An example is provided by the case with which the panel majority here thought we were dealing, one in which an objection had seemingly been ignored by several state courts, in apparent violation of those courts’ own rules. See panel op., ante, 568 F.2d at 847 & n.3 849. A federal habeas judge might term such ignoring of a Fourth Amendment claim “unconscionable” in the en banc majority opinion’s terms, but, without additional facts, such terminology would be unfortunate⁷ in a case in which the habeas judge really meant only that there had been no “meaningful inquiry by the state courts” into the defendant’s asserted claim, Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L. Rev. 441, 457 (1963). Cf. United States v. Robinson, 560 F.2d 507 (2d Cir., 1977) (en banc) (Gurfein, J., dissenting) (problem of appellate court being forced to call trial judge “arbitrary” or “irrational” when it means something less serious).

I believe that the Supreme Court in Stone v. Powell, had it intended to apply as stringent an “opportunity” test as that suggested by the en banc majority opinion, would have said so in unambiguous terms. Instead, the Court repeatedly used quite general language. See 428 U.S. at 480, 482, 486, 489, 494, 495 n.37, 96 S.Ct. 3037. I take it from this that what the Court was really indicating is that each case must be examined on its particular facts. The term “fair,” used so often in Stone, implies such an examination, connoting as it does a role for equitable discretion. The federal courts that have been faced with Fourth Amendment habeas claims after Stone have all viewed the question before them as whether, in the individual case, the state courts had in fact meaningfully considered the defendant’s claim.⁸ I would follow these decisions and require the district court to make an examination of individual circumstances, with the standard for testing the defendant’s treatment in the state courts simply the one given to us by the Supreme Court: whether the defendant had an opportunity for full and fair litigation of his Fourth Amendment claim, having in mind now that, where there is a failure to object at trial, there must, in addition to prejudice, be at least a satisfactory explanation therefor under Wainwright v. Sykes, supra, 433 U.S. at 88-94, 97 S.Ct. 2507-2510.

I concur in the judgment.

1 . The court appointed counsel for Gates raised only the issue of the unlawful taking of palm-prints and not of fingerprints. The opinion of Judge Carter is limited to the palmprint issue. The habeas petition prepared by Gates pro se refers only to his allegedly unlawful arrest and makes no mention of either fingerprints or palmprints. In his brief here Gates’ counsel limits the objection to the taking of palmprints. The panel opinion in this court, Gates v. Henderson, 568 F.2d 844, 845 (1977) refers to “prints” generally and makes no distinction. A reading of the trial record discloses that Gates’ counsel in his trial argument emphasized the taking of palmprints as an evidentiary use and not for the purpose of identification. The state has argued here that since Gates had already been arrested for a 1964 felony in New York, his fingerprints were already available to the state and that therefore the objection now made to the palmprint taking was in any event harmless since the fingerprint evidence was damning per se. We do not address the point further since we hold that in any event there was no error in denying federal habeas relief.

2 . Since no objection was made at the trial level as required under the then governing New York procedural law, N.Y.Code Crim.Proc. § 813-d now codified as N.Y.Crim.Proc.Law § 710.40, the defendant is deemed to have waived any objection during trial to the admission of evidence based on the ground that it was unlawfully obtained. We have held that failure to raise the objection at the time required by § 813-d precludes raising the question on the habeas corpus petition. United States ex rel. Tarallo v. LaVallee, 433 F.2d 4 (2d Cir. 1970), cert. denied, 403 U.S. 919, 91 S.Ct. 2235, 29 L.Ed.2d 697 (1971). This rule accords with our own practice of barring suppression of evidence claims on appeal where there was no suppression motion or objection on trial. United States v. Bianco, 534 F.2d 501, 508 (2d Cir.), cert. denied, 429 U.S. 822, 97 S.Ct. 73, 50 L.Ed.2d 84 (1976); United States v. Indiviglio, 352 F.2d 276, 277 (2d Cir. 1965) (en banc), cert. denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966).

In O’Berry v. Wainwright, 546 F.2d 1204 (5th Cir. 1977), cert. denied, 433 U.S. 911, 97 S.Ct. 2981, 53 L.Ed.2d 1096 (1977), a convicted state defendant had similarly failed to raise his Fourth Amendment claim on trial. He did raise it on appeal to the state court where it was rejected because of a Florida procedural requirement comparable to that of New York requiring that the issue be raised on trial. The Fifth Circuit found that under Stone v. Powell, supra, he had the opportunity to present the issue even though the state court chose to resolve the claim on an independent, adequate, non-federal basis. In Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) petitioner who failed to raise a Fifth Amendment claim at trial as required by Florida law was held precluded from raising it on federal habeas corpus.

3 . In Stone v. Powell which came to the Court from the Ninth Circuit, the defendant was convicted in state court on a murder charge. His conviction rested to a large degree on testimony concerning a revolver found in his possession when he was arrested for violating a vagrancy ordinance. The trial court rejected the defendant’s contention that this testimony should have been excluded because the ordinance was unconstitutional and the arrest therefore invalid. The state appellate court affirmed and this judgment was concurred in by the federal district court when ruling on defendant’s application for habeas corpus. The Ninth Circuit, 507 F.2d 93 (1974), reversed, finding the vagrancy ordinance unconstitutional and consequently defendant’s arrest illegal. That court recognized that the application of the exclusionary rule in this instance would not act as a deterrent with respect to police officers but assumed that it would deter the legislature from passing unconstitutional statutes.

In Rice v. Wolff the companion case to Stone, the defendant was convicted of murder in a state court on the basis of evidence seized pursuant to a search warrant which he claimed on a suppression motion was invalid. The trial court denied this motion and was affirmed on appeal. The defendant sought relief by filing a habeas petition pursuant to 28 U.S.C. § 2254 in the federal district court. The court found that the warrant was invalid and was affirmed by the Eighth Circuit. 513 F.2d 1280 (1975).

The Supreme Court in an opinion by Mr. Justice Powell reversed both these cases. Chief Justice Burger concurred in a separate opinion calling for the abandonment of the exclusionary rule. Id. at 496, 96 S.Ct. 3037. Mr. Justice Brennan, joined by Mr. Justice Marshall, dissented on the ground that the application of the exclusionary'rule by state courts was mandated by the Constitution and that 28 U.S.C. § 2254 was available to redress any denial of asserted constitutional rights. Id. at 502, 96 S.Ct. 3037. Mr. Justice White, while noting the inefficacy of the exclusionary rule, also dissented on the grounds that the instant petitions were cognizable under 28 U.S.C. § 2254. Id. at 536, 96 S.Ct. 3037.

4 . Now codified as N.Y.Crim.Proc.Law Art. 710.

5 . The Court held in Townsend:

that a federal court must grant an evidentiary hearing to a habeas applicant under the following circumstances: If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.

372 U.S. at 313, 83 S.Ct. at 757.

6 . Chief Justice Burger pointed out in his concurring opinion in Stone v. Powell, supra, 428 U.S. at 496, 96 S.Ct. 3037, at 3053, the distinction between evidence obtained as a result of an alleged violation of the Fifth Amendment and the reliable evidence obtained in an allegedly unlawful search and seizure under the Fourth Amendment:

The operation of the [exclusionary] rule is therefore unlike that of the Fifth Amendment’s protection against compelled self-incrimination. A confession produced after intimidating or coercive interrogation is inherently dubious. If a suspect’s will has been overborne, a cloud hangs over his custodial admissions; the exclusion of such statements is based essentially on their lack of reliability. This is not the case as to reliable evidence — a pistol, a packet of heroin, counterfeit money, or the body of a murder victim— which may be judicially declared to be the result of an “unreasonable” search. The reliability of such evidence is beyond question; its probative value is certain.

Id. at 496-97, 96 S.Ct. at 3053 (emphasis in original).

It is noteworthy that the deliberate by-pass rule of Fay v. Noia, supra, has recently been severely limited even in the case of alleged violations of Fifth and Sixth Amendment rights where the constitutional violation reflects on the reliability of the evidence. In Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the claim belatedly made related to the voluntariness of a confession. In his review of Fay v. Noia which has now been limited to its facts, Mr. Justice Rehnquist discussed Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976) and Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) which had already intimated Fay's mortality. As Mr. Justice Rehnquist indicated with respect to alleged Fourth Amendment claims, “Only last Term in Stone v. Powell, 428 U.S. 465, [96 S.Ct. 3037, 49 L.Ed.2d 1067] (1976), the Court removed from the purview of a federal habeas court challenges resting on the Fourth Amendment, where there has been a full and fair opportunity to raise them in the state court.” 433 U.S at 79, 97 S.Ct. at 2502 (emphasis supplied).

7 . Mr. Justice Powell had previously set forth these views in his concurring opinion in Schneckloth v. Bustamonte, 412 U.S. 218, 259, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In both Schneckloth and Stone, Mr. Justice Powell referred to Judge Henry Friendly’s article, Is Innocence Irrelevant? Collateral Attacks on Criminal Judgments, 38 U.Chi.L.Rev. 142 (1970). Judge Friendly there stated that while the Fourth Amendment protects against unreasonable searches,

it is a serious confusion of thought to transpose this doctrine of substantive law into the courtroom.91 At that stage the defendant’s constitutional right is to have a full and fair opportunity to raise his claims on trial and appeal and the assistance of counsel in doing so. There is no need to find a “waiver” when the defendant or his counsel has simply failed to raise a point in court, since the state has not deprived him of anything to which he is constitutionally entitled.

91 The fountainhead of this error is Fay v. Noia, 372 U.S. 391, 439-40, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).

Id. at 159-60 (footnote omitted).

8 . These same policy considerations militate against the panel majority’s view that a Townsend hearing was necessary to determine if the state court had properly decided that no Fourth Amendment claim had been made. The panel opinion was critical of the conduct of the trial judge in overruling appellant’s objections without articulation of reasons as well as the state appellate court’s alleged unawareness or decision to ignore the appellant’s constitutional claim. On this point, the observation of the Chief Justice in Estelle v. Williams, supra, is enlightening.

Nor can the trial judge be faulted for not asking the respondent or his counsel whether he was deliberately going to trial in jail clothes. To impose this requirement suggests that the trial judge operates under the same burden here as he would in the situation in Johnson v. Zerbst, 304 U.S. 458, [58 S.Ct. 1019, 82 L.Ed. 1461] (1938), where the issue concerned whether the accused willingly stood trial without the benefit of counsel. Under our adversary system, once a defendant has the assistance of counsel the vast array of trial decisions, strategic and tactical, which must be made before and during trial rests with the accused and his attorney. Any other approach would rewrite the duties of trial judges and counsel in our legal system.

425 U.S. at 512, 96 S.Ct. at 1697.

1 . Judge Carter had asked counsel, by letter dated February 10, 1976:

1. Is it true, as the portions of the record quoted by [defense counsel] seem to show, that objection was made at trial to the admission of the evidence in question?

By letter dated March 2, 1976, the State answered this question in part as follows:

The objections referred to are catch-all constitutional objections on constitutional grounds. Nowhere in the colloquy cited by petitioner is the specific grounds of the objection set forth. Nowhere in the colloquy is the Fourth Amendment even mentioned. The objection could have been made on other (Fifth Amendment) grounds, for example.

2 . Judge Carter had also found the state court opinions inexplicable. In the letter cited in note 1 supra, he asked a second question referring to the objection before him:

2. If such objections was made, how is it that three New York State courts’ decisions were premised on the belief that such objection was not made?

The State’s response to this second question was in essence that the state courts had ignored the apparent objection because they thought it “inadequate under state law to preserve the issue for appeal.” As the panel majority pointed out, however, none of the state opinions said that the objection was inadequate; from what the State had told Judge Carter and the panel, it appeared that the state courts had simply ignored the objection. We thus stated:

[I]f the state courts were holding, as the court below believed, that the objection appellant did make was inadequate for state law purposes, the normal and proper course would have been for them to state that holding and supporting reasons. Cf. Arlinghaus v. Ritenour, 543 F.2d 461, 464 (2d Cir. 1976) (per curiam) (“A decisionmaker obliged to give reasons to support his decision may find they do not; ‘the opinion will not write.’ ”). Since they made no such statement, it remains inappropriate for a federal court to dismiss a habeas petition on the basis of pure speculation as to what the state courts might implicitly have been holding.

Ante, 568 F.2d at 849.

3 . These objections place in a more coherent context the fact that the objection before the panel, ante, 568 F.2d at 850, was “to the mere fact of the taking of the prints". In the State’s original brief to the panel, no help on this point was provided, the State arguing simply that the objection was insufficiently specific and that it “could have been on Fifth Amendment grounds.” Brief for Respondent-Appellees at 13. See also note 1 supra.

4 . This fact led some commentators to question whether the Court was exercising its power responsibly. See P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart and Wechsler’s The Federal Courts and the Federal System 356-58 (2d ed. Supp. 1977).

5 . The rule announced in Francis was expressly applicable only to the issue of timely challenges to grand juries. The principal concern of the Supreme Court was with not having different, more stringent standards on collateral review of state convictions challenged on grand jury-related grounds than it had with regard to collateral review of federal convictions challenged on the same grounds. See 425 U.S. at 541-42, 96 S.Ct. 1708. As to the latter, the Court had held in Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), that grand jury challenges not raised before the federal trial, which are therefore deemed waived, absent a showing of cause under Fed. R.Crim.P. 12(b)(2), (f), could not be raised on collateral review absent a showing of both cause and actual prejudice, 411 U.S. at 243-45, 93 S.Ct. 1577. Hence Francis derived directly from a narrow federal rule of procedure and appeared to be designed merely to ensure symmetry in the law, a conclusion underscored by its failure to discuss Fay v. Noia. See panel op., ante, 568 F.2d at 851, O’Berry v. Wainwright, 546 F.2d 1204, 1223 (5th Cir.) (Goldberg, J., dissenting) (Francis is “sui generis”), cert. denied, 433 U.S. 911, 97 S.Ct. 2981, 53 L.Ed.2d 1096 (1977).

6 . The most likely explanation is one relating to negligence or inadvertence on the part of trial counsel. Such an explanation was apparently also involved in Wainwright v. Sykes, however, see, 433 U.S. at 99, 97 S.Ct. 2513 (Brennan, J., dissenting); but see id. at 94-97, 97 S.Ct. 2497. (Stevens, J., concurring), yet the Court held that the petitioner thereuhad not met the Francis “cause” standard, id. at 90, 97 S.Ct. 2497.

7 . This choice of words would not exactly assist the very type of harmony between state and federal courts, based on a recognition of the competence of state courts, with which Stone v. Powell was concerned. See 428 U.S. at 493-94 n.35, 96 S.Ct. 3037.

8 . See, e. g., O’Berry v. Wainwright, supra, 546 F.2d at 1215-16; Bracco v. Reed, 540 F.2d 1019, 1020 (9th Cir. 1976) (“No claim is made here that Braceo did not have, a full and fair hearing in the Oregon court”); Chavez v. Rodriquez, 540 F.2d 500, 502 (10th Cir. 1976) (per curiam) (noting that the issue is “whether the state of New Mexico provided Chavez an opportunity for full and fair litigation”; he had a suppression hearing — “We have reviewed the state court transcript and find that this hearing was full and adequate”); George v. Blackwell, 537 F.2d 833, 834 (5th Cir. 1976) (per curiam) (“A review of the record in this case demonstrates beyond doubt that appellee received a full and fair hearing in the state court . ..”); Losinno v. Henderson, 420 F.Supp. 380, 382 (S.D.N.Y.1976) (Weinfeld, J.) (question whether “ ‘an opportunity for full and fair litigation’ of such claim was afforded petitioner in the state courts”; careful consideration of petitioner’s state court treatment); Pulver v. Cunningham, 419 F.Supp. 1221, 1224 (S.D.N.Y.1976) (Ward, J.) (citing Townsend v. Sain and considering trial and appellate hearings in petitioner’s case), appeal docketed, No. 76-2133 (2d Cir. Oct. 15, 1976). I have not located any case contra. In United States ex rel. Petillo v. New Jersey, 418 F.Supp. 686, 688-89 (D.N.J.1976), the court did not have to reach this issue because it found inadequate the entire state procedure with regard to certain types of Fourth Amendment claims.