Harless v. Turner, 515-70.

• Decision Date: 05 April 1972
• Docket Number: No. 515-70.,515-70.
• Citation: 456 F.2d 1337
• Parties: George Franklin HARLESS, Appellee, v. John W. TURNER, Warden, Utah State Prison, Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

456 F.2d 1337 (1972)

George Franklin HARLESS, Appellee, v.John W. TURNER, Warden, Utah State Prison, Appellant.

No. 515-70.

United States Court of Appeals, Tenth Circuit.

April 5, 1972.

Lauren N. Beasley, Chief Asst. Atty. Gen. (Vernon B. Romney, Atty. Gen., with him on the brief), for appellant.

William F. Reynard, Denver, Colo. (Lon Rodney Kump, of Richards & Watkins, Salt Lake City, Utah, on the brief), for appellee.

Before SETH, McWILLIAMS and DOYLE, Circuit Judges.

PER CURIAM.

The above case was remanded to this Court for reconsideration of its decision which had reversed the judgment of the United States District Court for the District of Utah.

The action in the trial court was pursuant to 28 U.S.C. § 2254.Petitioner, who had been convicted of forcible rape in state court, had collaterally attacked his conviction on the ground that there had been an unreasonable search of his automobile which had yielded incriminating underclothing of the victim.The trial court ordered the petitioner-appellee discharged, basing its ruling on the proposition that any consent to the search by the accused had been given following what the court considered to have been an inadequate and insufficient Miranda warning.

This court reversed the judgment of the trial court holding that there was probable cause for the search.The Supreme Court, 404 U.S. 932, 92 S.Ct. 300, 30 L.Ed.2d 245, vacated this court's judgment and remanded the cause for reconsideration of the decision in light of the Supreme Court's later decision in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564(1971).

We have in accordance with the Supreme Court's mandate considered the Court's decision in Coolidge v. New Hampshire and have reconsidered our prior holding that the warrantless search was valid.We acknowledge that the search in question being warrantless and not incident to the arrest was invalid and void under the standard set forth in Coolidge v. New Hampshire.

There remains the matter which was mentioned but not decided in our former opinion and that is whether the defendant consented to the search of his car.On this we hold that there was not an effective consent.

Evidence was offered at the habeas corpus hearing as to the circumstances which led to the obtaining of the "consent" in the search of the car.The trial court did not specifically find on this subject.However, the tenor of the judge's remarks discounted the consent predicated on the coercive circumstances.The judge held, for example, that the Miranda warning was not adequate in that it did not clearly advise the defendant that his right to counsel was absolute.However, the sufficiency of the Miranda warning is not the controlling factor in our decision since we are not here concerned with a confession or admission, but rather with the validity of a search.

The facts are important.The officers, four or five in number, went to the home of the defendant at 1:45 in the morning.Two of the officers entered the house and routed the defendant and his wife out of bed.They then directed the wife to leave the room and questioned the defendant about an alleged rape.The testimony as to consent was that the defendant was asked on the way out to the car whether he would consent to their searching the car and he agreed.

It is plain that the search was not incident to an arrest, and there was not the necessity for immediate search without a warrant for the purpose of obtaining a secreted weapon.Nor does the case fall within Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730(1967), on the theory that the automobile was an instrumentality of the crime, and there were no exigent circumstances calling for immediate search in order to avoid removal of the vehicle and of the evidence.SeeCarroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543(1925);Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419(1970).Coolidge makes it clear that the warrantless search is the exception rather than the rule and that these exceptions are jealously guarded.Furthermore, it is said in Coolidge that the burden is...