Pendleton v. Nelson, 22463.

• Decision Date: 26 December 1968
• Docket Number: No. 22463.,22463.
• Citation: 404 F.2d 1074
• Parties: R. D. PENDLETON, Appellant, v. Louis S. NELSON, Warden, San Quentin Prison, et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

404 F.2d 1074 (1968)

R. D. PENDLETON, Appellant, v. Louis S. NELSON, Warden, San Quentin Prison, et al., Appellees.

No. 22463.

United States Court of Appeals Ninth Circuit.

December 26, 1968.

R. D. Pendleton, pro per., for appellant.

Thomas C. Lynch, Atty. Gen. of Calif., Robert R. Granucci, Ronald H. Kearney, Deputy Attys. Gen., San Francisco, Cal., for appellees.

Before HAMLEY, HAMLIN and KOELSCH, Circuit Judges.

HAMLEY, Circuit Judge:

R. D. Pendleton, a California state prisoner in custody under two judgments of conviction for violation of state criminal statutes, applied to the district court for a writ of habeas corpus. The district court, without hearing, denied the application sua sponte. Pendleton appeals.

One judgment of conviction, entered on June 29, 1964, was for the state offenses of statutory rape and possession of marijuana, committed about January 1, 1964. The conviction for statutory rape was thereafter reversed, and the conviction for possession of narcotics was affirmed. People v. Pendleton, Crim. Nos. 10215, 10473, California District Court of Appeal, unreported.

Pendleton advances two reasons why he should be granted habeas relief with regard to his state conviction for the possession of narcotics. He argues first that confessions and admissions were obtained from him illegally because he was not given the warnings required by People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361.

This state decision, however, has no application in federal habeas corpus proceedings. United States v. Williams, 9 Cir., 401 F.2d 901. The requirements of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, are inapplicable because both of these decisions were announced after Pendleton's trial commenced on June 1, 1964. See Johnson v. New Jersey, 384 U.S. 719, 733, 86 S.Ct. 1772, 16 L.Ed.2d 882.

Secondly, Pendleton contends that articles received in evidence in the June, 1964 trial were obtained as the result of an unlawful search and seizure. The search and seizure, made incident to the arrest of Pendleton at his apartment, occurred at 7:30 a. m. one morning after police officers allegedly kicked in the door and entered. Pendleton argues that the officers did not have reasonable cause to make the arrest to which the search and seizure were incident.

Ordinarily the validity of an arrest by state officers is to be determined according to the law of the state where the arrest takes place. Ker v. California, 374 U.S. 23, 37, 83 S.Ct. 1623, 10 L.Ed.2d 726. California Penal Code § 836 provides, in part, that a peace officer may make an arrest without a warrant whenever he has reasonable cause to believe that the person to be arrested has committed a felony, whether or not a felony has in fact been committed.

The police officers had such reasonable cause in this case because the arrest for statutory rape was made on the basis of information received from a seventeen-year-old girl who told the police that she had had sexual intercourse with Pendleton after he had given her narcotics. Under California law, a citizen who purports to be the victim of a crime is a reliable informant even though his reliability has not theretofore been proven or tested. People v. Gardner, 252 Cal.App.2d 320, 60 Cal.Rptr. 321, 324; People v. Bishop, 235 Cal.App. 2d 658, 45 Cal.Rptr. 533, 535. This search and seizure was therefore lawful.

We therefore hold that the district court did not err in rejecting, without hearing, Pendleton's claim that he had been deprived of his constitutional rights in the state proceedings with regard to the June 29, 1964, conviction.

The other judgment of conviction, entered on May 15, 1964, was for the state offenses of possession of marijuana and possession of marijuana for sale. These convictions were affirmed in the state court decision referred to above. Pendleton argues that he should be granted habeas relief with regard to these convictions because articles received in evidence were obtained as the result of two unlawful searches and seizures.

According to Pendleton's petition, both searches occurred on February 1, 1964, when Pendleton was free on bail following the above-described arrest for statutory rape and possession of narcotics. The first search took place after two police officers observed Pendleton and codefendant Hampton drive up to Pendleton's apartment and park in the driveway. Then Hampton was the driver of that vehicle and Pendleton was a passenger.

According to the petition, as the two stepped out of the car, the officers approached. They required Hampton to identify himself through his driver's license and then asked Pendleton: "* * * do you have any narcotics on you, or in the car?" Defendant alleged that he replied "No! You want to search me?", and that he then placed his hands in the air to submit to a personal search. Pendleton also alleged that, at the state trial, the officer testified that Pendleton made a different response, namely, "No, go ahead and look."

It therefore appears from the face of the habeas application that a factual dispute exists as to whether Pendleton told the officers that they could search the automobile. The district court, in denying the application without hearing, apparently overlooked the existence of this question of fact. Indeed, the court thought Pendleton had admitted that he consented to the search, saying in the order, "petitioner admits that he consented to each of the two separate searches."¹

The described factual dispute was thus not adjudicated by the district court. Moreover, it could not have been determined without an evidentiary hearing unless the state court decided the question and the district court, after examining the state court record, concluded that the factual issue had been fairly considered and determined in the state case. See Townsend v. Sain, 372 U.S. 293,...