Perkins v. Henderson
| Decision Date | 12 November 1969 |
| Docket Number | No. 27593.,27593. |
| Citation | 418 F.2d 441 |
| Parties | Jesse Willard PERKINS, Petitioner-Appellee, v. C. Murray HENDERSON, Warden Louisiana State Penitentiary, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jack E. Yelverton, Asst. Atty. Gen., Jack P. F. Gremillion, Atty. Gen. of Louisiana, Bernard N. Marcantel, Dist. Atty., Baton Rouge, La., Alfred R. Ryder, Asst. Dist. Atty., for respondent-appellant.
Richard D. Chappuis, Jr., Lafayette, La., for petitioner-appellee.
Before GOLDBERG, DYER and CARSWELL, Circuit Judges.
The State of Louisiana appeals from an order entered by the District Court after an evidentiary hearing granting Perkins a writ of habeas corpus. We affirm.
Perkins had been convicted of burglary in the state court. He was subsequently charged under the Louisiana habitual offender statute (La.R.S. 15:529.1), found guilty, and sentenced accordingly. After exhausting state remedies he sought relief by writ of habeas corpus in the District Court, asserting that a pry-bar used in evidence against him in his burglary conviction was the product of an illegal search and seizure of his automobile.
The morning following a burglary of the Elkhorn Lounge, two uniformed deputies, one of whom was Perkins' cousin, came to the home where Perkins was staying to question him in connection with the burglary. The officers were not armed with either an arrest or search warrant and they testified at the hearing in the District Court that while Perkins was a suspect at the time, there was not yet probable cause which would have sustained an arrest or search warrant. Following a half-hour interrogation of petitioner by the two deputies, Perkins was asked permission to search his car. According to the testimony of the officers, petitioner gave his consent to the search.1 However, it is uncontroverted that the officers did not inform Perkins that his consent was necessary for a search of the car or that they would not make a search if he declined permission. Perkins testified that he did not think there was much he could do about the search. Under these circumstances the District Court found that Perkins' acquiescence in the search of his car did not amount to a voluntary and intelligent waiver of the right to be free from unreasonable searches and seizures guaranteed by the fourth amendment to the Constitution.
Consent may constitute a waiver of fourth amendment rights, Zap v. United States, 1946, 328 U.S. 624, 66 S. Ct. 1277, 90 L.Ed. 1477), but, to be valid, a waiver must be an intelligent relinquishment of a known right or privilege, Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. A waiver cannot be...
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Shuler v. Wainwright
...waiver cannot, therefore, be valid unless the person knows that his permission may be freely and effectively withheld. Perkins v. Henderson, 418 F.2d 441 (5th Cir. 1969). The corollary of this rule is that one cannot intelligently surrender that which he does not know he has. When the State......
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...401 F.2d 232 (5th Cir.). A waiver is invalid unless the person consenting knows that permission may be freely withheld. Perkins v. Henderson (5th Cir.), 418 F.2d 441. The consent must be given unequivocally, specifically and intelligently. United States v. Vickers, 387 F.2d 703 (4th Cir.), ......
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