Bustamonte v. Schneckloth

Decision Date13 September 1971
Docket NumberNo. 25678.,25678.
PartiesRobert BUSTAMONTE, Plaintiff-Appellant, v. Merle R. SCHNECKLOTH, Superintendent, California Conservation Center, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

S. Thomas Pollack (argued), Stuart P. Tobisman, Los Angeles, Cal., for plaintiff-appellant.

Clifford K. Thompson, Deputy Atty. Gen. (argued), Evelle J. Younger, Cal. Atty. Gen., Derald E. Granberg, Deputy Atty. Gen., San Francisco, Cal., for defendant-appellee.

Before HAMLIN, MERRILL and ELY, Circuit Judges.

MERRILL, Circuit Judge:

This appeal is taken from an order of the District Court denying without hearing appellant's petition for a writ of habeas corpus.

On April 21, 1967, appellant was convicted in the California Superior Court for Santa Clara County of a violation of California Penal Code, § 475a: possession of a completed check with intent to defraud. Judgment was affirmed on appeal to the California District Court of Appeal. People v. Bustamonte, 270 Cal. App.2d 648, 76 Cal.Rptr. 17 (1969). Hearing was denied by the State Supreme Court.

In his petition for habeas corpus Bustamonte asserts that his state conviction resulted from a refusal of the state trial court to suppress evidence obtained as the result of an unlawful search and seizure.

In January, 1967, the proprietor of a carwash in Mountain View discovered that his business office had been broken into and that a check protector and a number of blank checks had been stolen. Later that month a Ford car with six occupants, one of whom was appellant, was stopped by a Sunnyvale police officer at approximately 2:40 A.M. The officer had noticed that a headlight and the license-plate light were burned out. He asked the driver for his license. When the driver failed to produce one the officer asked the other occupants for identification. Only Joe Alcala, who stated he had borrowed the car from his brother, produced a driver's license. After further discussion the officer asked the six occupants to step out. A traffic citation was issued for the defective lights, as well as for the driver's failure to produce a license. After being joined by another officer, the first officer then questioned each of the occupants. A third police car arrived. The first officer then asked Alcala if he could search the car, and Alcala consented. Alcala was not advised that he had the right to refuse to consent, nor are we referred to any indication in the record that he had knowledge of such right. Three checks of the carwash were found wadded up under the left rear seat. Each was signed in the name of the owner of the carwash and was filled in by resort to a check protector. On the basis of statements later obtained from the driver of the car, a warrant was obtained for the search of two other cars. These searches resulted in the seizure of the check protector and several blank checks.

The principal contention made on this appeal is that the state trial court erred in refusing to suppress the evidence obtained in the search of the Ford. The state courts proceeded on the theory that the search had been consented to and was therefore lawful. Appellant takes issue with this determination on the ground that the Government has failed to demonstrate that the consent was given with knowledge that it could be withheld.

At the time of the search there was no probable cause to believe that the car contained anything that could properly be seized. The search, thus, was one from which Alcala had a constitutional right to be free.1 Any consent to the search, then, amounted to a waiver of a constitutional right and, to be effective, must meet the established standards for constitutional waiver.

These have been discussed by this court in Cipres v. United States, 343 F.2d 95 (9th Cir. 1965), and Schoepflin v. United States, 391 F.2d 390 (9th Cir. 1968).

"* * * A waiver cannot be conclusively presumed from a verbal expression of assent. The court must determine from all the circumstances whether the verbal assent reflected an understanding, uncoerced, and unequivocal election to grant the officers a license which the person knows may be freely and effectively withheld * * *." Cipres v. United States, 343 F.2d 95, 97 (9th Cir. 1965).2

From the record before us it is not clear that...

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31 cases
  • State v. Hauge
    • United States
    • Iowa Supreme Court
    • April 22, 2022
    ...S.Ct. 2041, 36 L.Ed.2d 854.132 See Gallini, 79 Tenn. L. Rev. at 251–53.133 Id. at 283 n.389.134 Id. at 252–53.135 Bustamonte v. Schneckloth , 448 F.2d 699, 699 (9th Cir. 1971), rev'd , 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).136 Id.137 Id.138 Id. at 699–700.139 Id. at 700.140 Sch......
  • Schneckloth v. Bustamonte 8212 732
    • United States
    • U.S. Supreme Court
    • May 29, 1973
    ...the State need not prove that the one giving permission to search knew that he had a right to withhold his consent. Pp. 2045—2059. 448 F.2d 699, Robert R. Granucci, San Francisco, Cal., for petitioner. Stuart P. Tobisman, Los Angeles, Cal., for the respondent, pro hac vice, by special leave......
  • United States v. Colbert
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • February 14, 1973
    ...cannot be valid unless the person knows that his permission may be freely and effectively withheld." See also, Bustamonte v. Schneckloth, 9 Cir. 1971, 448 F.2d 699, 700; Rosenthall v. Henderson, 6 Cir. 1968, 389 F.2d 514, 516. In Bumper v. North Carolina, supra, the Supreme Court suppressed......
  • Rakas v. Illinois
    • United States
    • U.S. Supreme Court
    • December 5, 1978
    ...there must be probable cause for the search"). 3.E. g., United States v. Edwards, 577 F.2d 883 (CA5 1978) (en banc); Bustamonte v. Schneckloth, 448 F.2d 699 (CA9 1971), rev'd on other grounds, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Peisner, 311 F.2d 94 (CA4 196......
  • Request a trial to view additional results
2 books & journal articles
  • Accountability Solutions in the Consent Search and Seizure Wasteland
    • United States
    • University of Nebraska - Lincoln Nebraska Law Review No. 79, 2021
    • Invalid date
    ...Id. (quoting Oaks, supra note 120). 122. See id. at 275 (Douglas, J., dissenting). 123. Id. at 275-76 (quoting Bustamonte v. Schneckloth, 448 F.2d 699, 701 (9th Cir. 1971)). 124. Id. at 276. 125. Id. at 277 (Brennan, J., dissenting). 126. Id. 127. Id. at 281 (Marshall, J., dissenting). 128.......
  • Effective warnings before consent searches: practical, necessary, and desirable.
    • United States
    • American Criminal Law Review Vol. 45 No. 3, June 2008
    • June 22, 2008
    ...knew of his right to refuse consent, while California courts supported the alternative, Id. at 223. Compare Bustamonte v. Schneckloth, 448 F.2d 699, 701 (9th Cir. 1971) (requiring proof of the subject's knowledge of the right to refuse consent), with California v. Tremayne, 98 Cal. Rptr. 19......

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