Cleo Gene Roderick, Plaintiff-appellant, v. State of Oregon, H. C. Cupp, Warden, Respondent-appellee, 454 F.2d 214 (9th Cir. 1972)

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U.S. Court of Appeals for the Ninth Circuit - 454 F.2d 214 (9th Cir. 1972) Dec. 22, 1971. Rehearing Denied Jan. 21, 1972

John A. Pickard, of Dardano & Mowry, Portland, Or., for appellant.

Lee Johnson, Oregon Atty. Gen., John W. Osburn, Sol. Gen., Jim G. Russell, Asst. Atty. Gen., Salem, Or., for appellee.

Before CHAMBERS, WRIGHT and KILKENNY, Circuit Judges.

PER CURIAM:


The dismissal of Roderick's habeas corpus petition after a hearing is affirmed.

The arresting officers had reliable information that a felony warrant was outstanding in Idaho.

The search of the automobile which produced incriminating evidence was justified for the officers' own safety. And, when they found the gun, it was not required to be ignored legally.

Roderick's lineup is challenged. Although counsel was not present, Wade v. United States, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149, is not retroactive. Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199. Assuming counsel had been present, it is not clear that there was anything bad about the lineup.

We find the points about unreasonable delay and cruel and unusual punishment to be without merit.