Rex Hubbard v. Harry C. Tinsley, Warden, Colorado State Penitentiary

Tenth Circuit

Rex Hubbard v. Harry C. Tinsley, Warden, Colorado State Penitentiary

350 F.2d 397, 1965 U.S. App. LEXIS 4645

CourtCourt of Appeals for the Tenth Circuit

DecidedAugust 16, 1965

Docket8165

StatusPublished

Cited by13 cases

This text of 350 F.2d 397 (Rex Hubbard v. Harry C. Tinsley, Warden, Colorado State Penitentiary) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rex Hubbard v. Harry C. Tinsley, Warden, Colorado State Penitentiary, 350 F.2d 397, 1965 U.S. App. LEXIS 4645 (10th Cir. 1965).

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Opinion

LEWIS, Circuit Judge.

This appeal is taken from an order of the District Court for the District of Colorado denying relief upon appellant’s petition for a writ of habeas corpus after a full evidentiary hearing. Such hearing was held pursuant to the directions of this Court indicated in an earlier consideration of appellant’s contentions, Hubbard v. Tinsley, 10 Cir., 336 F.2d 854, and extensively probed the factual question of whether appellant had voluntarily consented to a search by state officers which had resulted in the seizure of evidence used against him in his state trial. The trial court has now specifically found that appellant intended to, and did, freely consent to the subject search.

Appellant and two state officers each testified as to the circumstances and background leading to appellant’s alleged consent to the search. In brief summary, appellant, while lawfully under arrest, was found to have in his possession a key to a locker located in a bus depot. Upon being questioned as to the contents of the locker appellant stated: “You have got the key; go see for yourselves.” This the officers did and seized the evidence which subsequently was used against appellant at his trial.

Although consent to a search made by one in custody may be suspect, particular words of consent must “always be weighed in light of the atmosphere and totality of circumstances in which they are spoken in order to determine the intent and voluntariness of the words.” Weed v. United States, 10 Cir., 340 F.2d 827, 829. The trial court found from substantial evidence that appellant made the quoted statement after being fully advised of his constitutional rights and that he was knowledgeable in investigative and legal proceedings. The record also shows that appellant was calm and cooperative and that the statement was unsolicited and untainted by promise or threat. We conclude that the totality of circumstances is such as to support the trial court’s finding.

Other contentions asserted by appellant were not raised in the court below and are not properly before us.

Affirmed.

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LEWIS, Circuit Judge.

This appeal is taken from an order of the District Court for the District of Colorado denying relief upon appellant’s petition for a writ of habeas corpus after a full evidentiary hearing. Such hearing was held pursuant to the directions of this Court indicated in an earlier consideration of appellant’s contentions, Hubbard v. Tinsley, 10 Cir., 336 F.2d 854, and extensively probed the factual question of whether appellant had voluntarily consented to a search by state officers which had resulted in the seizure of evidence used against him in his state trial. The trial court has now specifically found that appellant intended to, and did, freely consent to the subject search.

Appellant and two state officers each testified as to the circumstances and background leading to appellant’s alleged consent to the search. In brief summary, appellant, while lawfully under arrest, was found to have in his possession a key to a locker located in a bus depot. Upon being questioned as to the contents of the locker appellant stated: “You have got the key; go see for yourselves.” This the officers did and seized the evidence which subsequently was used against appellant at his trial.

Although consent to a search made by one in custody may be suspect, particular words of consent must “always be weighed in light of the atmosphere and totality of circumstances in which they are spoken in order to determine the intent and voluntariness of the words.” Weed v. United States, 10 Cir., 340 F.2d 827, 829. The trial court found from substantial evidence that appellant made the quoted statement after being fully advised of his constitutional rights and that he was knowledgeable in investigative and legal proceedings. The record also shows that appellant was calm and cooperative and that the statement was unsolicited and untainted by promise or threat. We conclude that the totality of circumstances is such as to support the trial court’s finding.

Other contentions asserted by appellant were not raised in the court below and are not properly before us.

Affirmed.

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Bluebook (online)

350 F.2d 397, 1965 U.S. App. LEXIS 4645, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rex-hubbard-v-harry-c-tinsley-warden-colorado-state-penitentiary-ca10-1965.

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