United States v. Myers, 15169.

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: KALODNER, HASTIE and SEITZ, Circuit
• Citation: 378 F.2d 398
• Parties: UNITED STATES of America ex rel. Edwin W. GOCKLEY, Appellant, v. David N. MYERS, Superintendent, State Correctional Institution, Graterford, Pennsylvania.
• Docket Number: No. 15169.,15169.
• Decision Date: 15 May 1967

378 F.2d 398 (1967)

UNITED STATES of America ex rel. Edwin W. GOCKLEY, Appellant,
v.
David N. MYERS, Superintendent, State Correctional Institution, Graterford, Pennsylvania.

No. 15169.

United States Court of Appeals Third Circuit.

Argued December 19, 1966.

Decided May 15, 1967.

378 F.2d 399

H. Robert Fiebach, Philadelphia, Pa., for appellant.

Ralph J. Alhouse, Asst. Dist. Atty., Reading, Pa., for appellee.

Before KALODNER, HASTIE and SEITZ, Circuit Judges.

OPINION OF THE COURT

HASTIE, Circuit Judge.

This appeal by a state prisoner from a denial, without plenary hearing, of his petition for habeas corpus presents two principal contentions; that the government's case included evidence obtained by unreasonable search and seizure and that coerced incriminating statements were introduced as evidence against him. The charge was murder and the petitioner was convicted of murder in the second degree and sentenced to imprisonment for not less than ten and not more than twenty years.

At appellant's trial the prosecution introduced certain items discovered and seized during a search of appellant's residence accomplished without any authorizing warrant. It appears, and the district court found, that after appellant's arrest and during his detention, detectives told him that they believed his premises contained certain evidence and that they were going to get a search warrant in order to look for it. The appellant responded: "That will not be necessary. You can search for anything you want to as long as you put everything back in place where it was". He then handed a detective the keys to his house. The productive search followed.

The appellant correctly asserts that a waiver of constitutional right must be "an intentional relinquishment or abandonment of a known right or privilege", Johnson v. Zerbst, 1938, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, and that consent to an otherwise unprivileged search must be intelligent and voluntary. United States v. Blalock, E.D.Pa.1966, 255 F.Supp. 268. He then argues that his consent was not voluntary because he was in custody and anticipated a taking of his keys which he was in no position to resist. However, there is nothing in the record to indicate that the officers intended to do anything except what they proposed, namely, to seek and obtain a search warrant in regular course. At most, the question of

378 F.2d 400

the voluntariness of consent in these circumstances was a question of fact to be decided by the trier of fact. Maxwell v. Stephens, 8th Cir., 1965, 348 F.2d 325, cert. denied, 382 U.S. 944, 86 S.Ct. 387. The trial judge found voluntary and effective consent to the search and that finding is adequately supported by the evidence. We conclude that the search and seizure point is without merit

The issue concerning incriminating admissions is more substantial. In his petition for habeas corpus, prepared without the assistance of counsel, the appellant characterizes his statements made to the police during detention as "involuntary and unsigned" and asserts that their introduction "denied due process of law". He states further that he asked for counsel and was denied such assistance until he should make the statements demanded by the police; that he was "pressed" and thus "gave a false statement".

In addition, the proceedings in the state courts indicate that the accused was arrested on November 17 and detained by the police and subjected to intermittent interrogation through December 9. Two statements,...