Major, Senior Circuit Judge, Kiley and Fairchild, Circuit Judges. Fairchild, Circuit Judge (concurring). Kiley, Circuit Judge (dissenting).
MAJOR, Senior Circuit Judge.
Petitioner is incarcerated in a State prison located in the Northern District of Indiana, pursuant to a commitment of the Henry Circuit Court of that State. He was charged with and found guilty of murdering his wife by the administration of arsenic poison. He was arrested March 15, 1961, and the trial in the State court commenced June 15, 1961, resulting in a verdict on June 19, 1961, the same date that the Supreme Court of the United States announced its decision in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081. The judgment of conviction was affirmed by the Indiana Supreme Court, Byrd v. State, 243 Ind. 452, 185 N.E.2d 422 (1962).
The case before us was initiated by a twenty-page petition for a writ of habeas corpus, complaining that he was detained by the State of Indiana in violation of his rights under the Constitution of the United States. A supplemental petition was filed alleging the exhaustion of all State court remedies. We see no point in relating or discussing the proceedings in the State court by which such remedies were alleged to have been exhausted for the reason that respondents take no issue in this respect; in fact, they tacitly concede that such remedies were exhausted. Neither do we need to discuss Mapp v. Ohio because concededly it is applicable insofar as pertinent to the instant situation.
The petition is unique in that it was predicated solely upon the premise that the two attorneys who represented petitioner in his State court trial were incompetent and that the "restraint and detention of petitioner is in violation of his constitutional rights as guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States and specifically his constitutional rights to counsel, due process of law and equal protection of the laws, all by reason of the following facts: * * *." Then follow some fifteen pages of allegations, all directed to such premise.
Following a lengthy hearing devoted in the main to petitioner's contention that his Sixth Amendment rights had been violated, Judge Robert Grant rendered a memorandum opinion in which he noted that the competency of one of the attorneys was conceded by petitioner and found on the proof that the other attorney was also competent.
Among numberous allegations contained in the petition was that in paragraph (j):
"That at the trial of the cause herein the State of Indiana introduced in evidence without objection State's Exhibit #1 which was a bottle labeled poison. That State's witness Eugene Short testified that he found said bottle behind the furnace of the Byrd home during a search he made of the Byrd home on March 16, 1961. That at the same time and place he found ten or twelve similar bottles that were dirty; that Exhibit #1 was not covered with dust or soot."
The petition alleged that this evidence was obtained as a result of an illegal search of petitioner's home, admitted without objection on the part of petitioner's counsel, and was in violation of his constitutional rights under the Fourth, Fifth and Fourteenth Amendments to the Constitution of the United States. In response to this allegation, the court in its memorandum opinion stated:
"Finally, petitioner argues that evidence discovered upon the search of his home by police and admitted or referred to during the trial was not admissible because obtained as a result of an illegal search. (Petition at 8) At the hearing held in this Court May 12, 1967, Respondent's Exhibit A was admitted, being petitioner's consent to have his house and residence searched" by Warren Davis, Henry County Sheriff, and other officers.
"All testified that Byrd signed it in their presence and that it was done voluntarily. All that Byrd could testify to was that he did not remember signing such a form. In light of all the testimony given at that hearing, the Court can only conclude that the evidence obtained as a result of the search was properly admissible."
By its order entered August 10, 1967, the court denied the petition for writ of habeas corpus, from which order petitioner appeals.
The sole issue before this court is whether the search of petitioner's home, resulting in the seizure of a bottle of poison, violated his constitutional rights. The resolution of this issue is dependent upon whether petitioner voluntarily consented to such search or whether it was made pursuant to a lawful arrest.
It has been often held that whether a consent to search is voluntary is a question for the trier of facts and its finding, if substantially supported, will not be disturbed on review. Drummond v. United States, 8 Cir., 350 F.2d 983, 988; United States v. Thompson, 2 Cir., 356 F.2d 216, 220, cert. den. 384 U.S. 964, 86 S. Ct. 1591, 16 L. Ed. 2d 675, and Ruud v. United States, 9 Cir., 347 F.2d 321, 322.
We deem it unnecessary to recite in detail the testimony of Sheriff Davis and the three other officers (not five or six, as suggested by petitioner) as to the circumstances concerning petitioner's arrest and his consent to the search of his home. Davis testified that he and the other officers went to petitioner's home at about 4:30 p.m. March 15, 1961, and found him sitting in a car with another man. Petitioner and Davis went into petitioner's house where his son, daughter, brother and sister-in-law were present. Either petitioner or Davis suggested that they step into the barber shop which was in the front room of the house. When there, Davis advised petitioner that he had a warrant charging him with the murder of his wife, which he gave to petitioner. Davis asked petitioner if they could have permission to search his house, which petitioner freely gave, stating, "I have nothing to hide. Sure you can search. I have nothing to hide."
At the same time, Davis informed petitioner that if he did not sign the written consent which Davis produced authorizing such search, he would be forced to obtain a search warrant, and petitioner signed it. Davis testified, corroborated by the testimony of the other officers, that no promise or threat was made and no form of coercion or intimidation was employed to obtain such consent. Petitioner testifying on his own behalf stated that no one asked his permission to search his premises, that they (referring to the officers) "just charged on in the house," and that nothing was presented to him for his signature. After being shown the written consent, he testified that he did not remember being presented with the paper at that time, although he admitted the signature appeared to be his.
We agree with the District Court that petitioner's consent to search his home was given freely and voluntarily, without duress, promise or coercion; in fact, we think the testimony unmistakably discloses ...