William Cunningham v. Robert A. Heinze, Warden, California State Penitentiary

352 F.2d 1

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 24, 1965
• Docket: 19344_1
• Status: Published

Opinions

BROWNING, Circuit Judge:

Appellant was convicted of possessing narcotics in violation of state law. He filed a petition for habeas corpus in the United States District Court for the Northern District of California, alleging that his conviction was based upon evidence seized in violation of the Fourteenth Amendment. The district court dismissed the petition without an evidentiary hearing.

I

Appellant’s timely petition to the United States Supreme Court for a writ of certiorari to the California Supreme Court for direct review of the judgment of conviction was denied after the decision of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), overruling Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949). Cunningham v. California, 368 U.S. 933, 82 S.Ct. 370, 7 L.Ed.2d 195 (1961). The Mapp exclusionary rule applies to cases in which the state court judgment was not final when Mapp was annouced because in those cases the state could not justifiably have acted in reliance upon a judgment not yet final. The rule of Mapp therefore applies to appellant’s case. Linkletter v. Walker, 381 U.S. 618, 622 n. 5, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).

We cannot accept appellee’s suggestion that we should attach significance to the fact that the Supreme Court denied appellant’s petition for certiorari (Cunningham v. State of California, 368 U.S. 933, 82 S.Ct. 370, 7 L.Ed.2d 195, (1961)) while granting review and reversing in other cases (Ker v. State of California, 368 U.S. 974, 82 S.Ct. 480, 7 L.Ed.2d 437 (1962), 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Fahy v. State of Connecticut, 372 U.S. 928, 83 S.Ct. 871, 9 L.Ed.2d 732 (1963), 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963); Stoner v. California, 374 U.S. 826, 83 S.Ct. 1880, 10 L.Ed.2d 1050 (1963), 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964)) in which violation of the Mapp rule was urged. See Brown v. Allen, 344 U.S. 443, 489-497, 73 S.Ct. 397, 97 L.Ed. 469 (1953).

II

At appellant’s trial the state introduced in evidence three shoe boxes containing narcotics found by officers on a shelf in a bedroom closet in a private home. One of the officers testified that a Mrs. Schmidt, who was in the front room of the house when the officers arrived, invited them to enter and assented to the search.

Appellant presents two basic contentions : First, that Mrs. Schmidt did not verbally consent to the search, and, if she did, her consent did not meet federal standards for determining whether waiver of a constitutional right has occurred; and, second, that the bedroom closet was part of appellant’s personal living quarters and contained his personal effects, and Mrs. Schmidt had no authority to waive his constitutional right to privacy.

1. Consent and waiver. Appellant alleges that Mrs. Schmidt did not verbally assent either to the officers’ entry into the house or their search of the bedroom closet. Appellant also alleges that even if Mrs. Schmidt did assent, she did not know she could refuse to permit a search without a warrant, and that if she had known of her right she would not have waived it willingly. Appellant offers Mrs. Schmidt’s affidavit supporting these allegations. Appellant also alleges that Mrs. Schmidt, a crippled woman, was alone in the house; that three men, strangers to her, came to her door, identified themselves as police officers, and announced they were making a narcotics investigation; that the men opened the unlatched screen door and entered the house without consent; that they questioned her about appellant’s involvement with narcotics, and asked to be directed to his room; and that she inquired if they had a search warrant, and was told they didn’t need one because they were already in the house.

These allegations raise a substantial question, involving petitioner’s constitutional rights, as to whether Mrs. Schmidt verbally consented to the entry and search, and whether verbal assent if given constituted an “intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). See Cipres v. United States, 343 F.2d 95, 97-98 (9th Cir. 1965), and cases cited. The district court is therefore required to hold an evidentiary hearing “unless the state-court trier of fact has after a full hearing reliably found the relevant facts.” Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963).

The state trial court did not expressly find either that Mrs. Schmidt verbally consented to the search, or that the circumstances surrounding the asserted consent were not as appellant alleges. Nor did the state court impliedly make such findings. The state’s attorney supported the lawfulness of the search on a number of grounds, including the theory that the search was incident to an arrest supported by probable cause. The state court gave no reasons for its ruling admitting the evidence. Therefore, it is possible that the state court found appellant’s factual allegations to be true (or did not reach the factual issues), but concluded that the search was nonetheless valid on this alternate ground. Townsend v. Sain, supra, 372 U.S. at 313-314, 320, 83 S.Ct. 745.

Moreover, the state’s attorney argued to the state trial court (undoubtedly on the basis of Wolf v. Colorado, supra) that appellant’s reliance upon Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921), and Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), was misplaced because “federal cases are not controlling on the question of admissibility of evidence on search and seizure in California.” The state trial court’s failure to articulate the basis for its decision makes it impossible to determine whether it adopted this erroneous, pre-Mapp view of the law. “Since the decision of the state trier of fact may rest upon an error of law rather than an adverse determination of the facts”, the state court’s findings cannot be reconstructed, and “a hearing is compelled to ascertain the facts.” Townsend v. Sain, supra, 372 U.S. at 314, 83 S.Ct. at 758.¹

2. Authority to waive. An evidentiary hearing must also be held to determine whether appellant had a right to privacy, and, if so, whether Mrs. Schmidt had authority to waive it. There is no contention that the state court took evidence or made findings on these questions.²

Appellant alleges that the rear bedroom and closet were his private living quarters, containing his private effects — that Mrs. Schmidt occupied her own bedroom in another part of the house. He alleges that the search was directed against him and his quarters and effects, and not against Mrs. Schmidt — that the officers went to the house to investigate appellant and asked to be directed to “his bedroom.” Appellant alleges that he did not authorize Mrs. Schmidt, or anyone else, to search his personal quarters or his personal effects.

These allegations raise a substantial issue. Living quarters and effects no more private than these allegedly were have been protected from unreasonable search and seizure. McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948); Reeves v. Warden, 346 F.2d 915, 924-925 (4th Cir. 1965); Holzhey v. United States, 223 F.2d 823 (5th Cir. 1955); United States v. Blok, 88 U.S. App.D.C. 326, 188 F.2d 1019 (1951).

The state contends that effective consent to search may be given by one who shares control of the premises. But appellant alleges that the bedroom closet and effects it contained were his, and that he had not voluntarily shared their control with Mrs. Schmidt.³

The state argues that a search is reasonable if permission is granted by one whom “the officers reasonably and in good faith believe had authority to consent to their entry.” But we have held that “the crucial question is whether the citizen truly consented to the search, not whether it was reasonable for the officers to suppose that he did.” Cipres v. United States, 343 F.2d 95, 98 (9th Cir. 1965). Mrs. Schmidt’s mere presence in the house was not enough to establish as a matter of law that she had authority to waive appellant’s right to the privacy of his quarters and effects. Decisions of the Supreme Court “make clear that the rights protected by the Fourth Amendment are not to be eroded by strained applications of the law of agency or by unrealistic doctrines of ‘apparent authority.’ ” Stoner v. State of California, 376 U.S. 483, 488, 84 S.Ct. 889, 892 (1964).

Even if Mrs. Schmidt had express or implied authority to enter appellant’s bedroom for housekeeping purposes, it would not follow that she could permit a police search of appellant’s room, closet, and effects. Stoner v. California, supra, 376 U.S. at 489-490, 84 S.Ct. 889; Chapman v. United States, 365 U.S. 610, 616, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961); United States v. Jeffers, 342 U.S. 48, 51-52, 72 S.Ct. 93, 96 L.Ed. 59 (1951); Reeves v. Warden, supra, 346 F.2d at 924-925; Holzhey v. United States, supra, 223 F.2d at 826; United States v. Blok, supra, 88 U.S.App.D.C. 326, 188 F.2d at 1021.

Reversed and remanded for further proceedings.

1 . The state intermediate appellate court assumed the state trial judge decided the question of consent and waiver, and thought it “implicit” that the judge credited the officers and disbelieved Mrs. Schmidt. People v. Cunningham, 188 Cal. App.2d 606, 609-610, 10 Cal.Rptr. 604 (1961). For the reasons we have stated, we cannot agree.

The appellate court seems to have treated Amos and Johnson, supra, as distinguishable rather than not binding, although this is not entirely clear. 188 Cal. App.2d at 610, 10 Cal.Rptr. 604. In any event, we are concerned with the fact-finding process of the trial judge, not with the reasoning of the appellate tribunal.

2 . The dissent suggests appellant may have waived the issue of Mrs. Schmidt’s lack of authority. The state has not made this contention heretofore. If on remand the state now chooses to do so, it must bear the burden of proving that appellant intentionally abandoned a known right. No narrower formulation of the controlling standard is permissible. Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).

3 . The bathroom searched in Burge v. United States, 342 F.2d 408 (9th Cir. 1965), was shared. Cf. Nelson v. People of State of California, 346 F.2d 73, 77 (9th Cir. 1965).