McCreary v. Sigler, No. 18907.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: MATTHES, GIBSON and LAY, Circuit
• Citation: 406 F.2d 1264
• Parties: George McCREARY, Appellant, v. Maurice SIGLER, Appellee.
• Decision Date: 07 March 1969
• Docket Number: No. 18907.

406 F.2d 1264 (1969)

George McCREARY, Appellant,
v.
Maurice SIGLER, Appellee.

No. 18907.

United States Court of Appeals Eighth Circuit.

February 18, 1969.

Rehearing Denied March 7, 1969.

406 F.2d 1265

COPYRIGHT MATERIAL OMITTED

406 F.2d 1266

William G. Line, of Kerrigan, Line & Martin, Fremont, Neb., for appellant

Bernard L. Packett, Asst. Atty. Gen. of Nebraska, Lincoln, Neb., for appellee, Clarence A. H. Meyer, Atty. Gen. of Nebraska, Lincoln, Neb., on the brief.

Before MATTHES, GIBSON and LAY, Circuit Judges.

Rehearing En Banc Denied March 7, 1969.

LAY, Circuit Judge.

This case arises from a post conviction petition for a federal writ of habeas corpus challenging the validity of the conviction of a Nebraska state prisoner on grounds that the evidence used against him was obtained by an illegal search in contravention of the Fourteenth Amendment. The federal district court held an evidentiary hearing on the issues presented and denied the writ. The district court found it unnecessary to pass upon the validity of the actual search warrant issue, since it found that the search was made with the voluntary consent of the owner. Upon a motion for rehearing, we vacated our original affirmance in view of Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).

A coin box was removed from a telephone in a public phone booth at a filling station in Fremont, Nebraska, on December 10, 1964. The filling station attendant reported the theft to the police and identified the petitioner and two girls who had accompanied him in and near the booth. The police immediately placed surveillance upon McCreary and the girls. One of the girls was Sharon Bradbury Stanek who lived with her father Russell Bradbury on the premises searched. It developed that the petitioner was staying in the same apartment. Shortly thereafter the deputy sheriff, D. W. Parker, obtained a search warrant from a justice of the peace and went to apartment 3 of the Claasen Apartments where Sharon was known to live. When

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Parker arrived at the apartment, he advised Mr. Bradbury of the fact that the officers had a search warrant and then showed him the warrant. Bradbury first got up to get a drink and then said, "You don't need it. Go ahead and search. I pay the rent here."

The Supreme Court of Nebraska had previously affirmed the conviction of petitioner holding (1) that petitioner had no standing to object to the search since the owner of the apartment had given his consent to the search, and (2) that the search was lawful, nevertheless, since the search warrant was validly issued. State v. McCreary, 179 Neb. 589, 139 N.W.2d 362 (1966), cert. den. 384 U.S. 979, 86 S.Ct. 1877, 16 L.Ed.2d 689.

We cannot endorse the view of older cases that petitioner has no standing to object to the search. This view was rejected in Jones v. United States, 362 U.S. 257, 267, 80 S.Ct. 725, 734, 4 L.Ed.2d 697 (1959), where the Supreme Court said:

"No just interest of the Government in the effective and rigorous enforcement of the criminal law will be hampered by recognizing that anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him."

Upon reconsideration of Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), decided subsequent to the district court's findings of "consent" below, we hold that any consent given by Bradbury must be viewed as "impliedly coerced." The Supreme Court has expressly held that "`consent' * * * given only after the official conducting the search has asserted he possesses a warrant" is not a valid consent when the only showing is "no more than acquiescence to a claim of lawful authority." Id. at 548-549, 88 S.Ct. at 1792.

The facts supporting "voluntary consent" are much stronger in Bumper than here. See 391 U.S. at 547 n. 8, 88 S.Ct. 1788 n. 8. The Supreme Court, however, has made clear:

"When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion — albeit colorably lawful coercion. Where there is coercion there cannot be consent." Id. at 550, 88 S.Ct. at 1792.

See also Overton v. New York, 393 U.S. 85, 89 S.Ct. 252, 21 L.Ed.2d 218 (1968) (per curiam).

An officer must have a legal basis for obtaining access to private living quarters under the badge of his office and the authority of the law. The clear logic of this rule is that a search conducted by reason of consent given upon representation of a warrant validly issued will not be lawful unless the warrant itself was validly issued.¹

The legal sufficiency of the affidavit for the search warrant, although not passed upon by the district court is a question of law and merits our review without remand.

The affidavit of the deputy sheriff reads as follows:

"* * * That he (Parker) has just and reasonable grounds to believe, and does believe, upon information, that there is concealed or kept as hereinafter described, the following property, to-wit: Tools and picks and equipment for burglarizing telephone booths and a coin receptacle from the telephone booth in the Mark Schmidt Frontier Filling Station,

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