Allan L. ROBBINS, Warden, Maine State Prison, Respondent, Appellant, v. Kenneth MacKENZIE, Petitioner, Appellee, 364 F.2d 45

OPINION OF THE COURT. ALDRICH, Chief Judge. This is an appeal by respondent warden of the Maine State Prison from an order of the United States District Court for the District of Maine, granting appellee’s petition for habeas corpus, and requiring, in effect, that he be given a new trial without reference to, or the use of, certain personal property seized by the Maine police. The order was based upon a determination that the police had acquired the property by an unlawful search. Petitioner has exhausted his state remedies. State v. MacKenzie, 1965, 161 Me. 123, 210 A.2d 24.

On a record which, pursuant to stipulation, consisted of transcripts of hearings in the state court along with the state court orders and opinions, the district court found the following facts. On the night of March 3, 1963 a store in Millinocket, Maine was entered, and a number of wristwatehes, some gold coins and some beer stolen therefrom.

At 8 o’clock on the morning of March 4 two police officers, having had a report that one Albert and another had been seen intoxicated on the street the night before, and knowing that Albert had been convicted of a similar break at the same store on an earlier occasion, sought Albert and learned that he had a room in a rooming house close to the store. They inquired of the landlady, and upon being shown which room was Albert’s one stationed himself at the back door of the room, and the other, Officer Rideout, knocked on the front door.

On obtaining a response that he recognized to be Albert’s voice, Rideout identified himself and said that he wished to talk with him. Albert replied, “Just a minute,” unlocked and opened the door, and walked back into the room. Rideout entered, and summoned the second officer. Albert was in his undershirt. Rideout asked him to come to the station for interrogation, a request which the district court found was not an arrest, and Albert started dressing. Rideout then saw a new wristwatch on his arm, the make of which was the same as one of those reported stolen.

Another man, the present petitioner, was lying, apparently asleep, on another bed. Petitioner, on being spoken to, sat on the bed to put on a pair of trousers. When he started to put on a second pair he was asked whether this was his custom. Petitioner threw the trousers on the floor, and a gold coin fell out. Ride-out then arrested both Albert and petitioner, searched the room, and made the seizure in question. It is conceded that the officers had sought no warrant for arrest or for a search, and had no probable cause.

Basic to the state’s case is the question whether Rideout’s entry into the room was freely consented to by Albert. If it was, petitioner’s case falls. He concedes, as he must, that if Rideout was rightfully in the room as to Albert, he was rightfully there with respect to himself. The action of the police thereafter in noticing the watch, and the first of the coins, was not a search. It is “not a search to see what is patent and obvious either in daylight or even in artificial light.” Fagundes v. United States, 1 Cir., 1965, 340 F.2d 673, 676; Davis v. United States, 9 Cir., 1964, 327 F.2d 301.

What reasonably appeared to be stolen property having been displayed for their attention, the officers, if lawfully in the room, were then authorized to make an arrest, cf. Chapman v. United States, 9 Cir., 1965, 346 F.2d 383, cert. den. 382 U.S. 909, 86 S.Ct. 249, 15 L.Ed.2d 161 and, in turn, a search of the exhibited clothing. Ker v. State of California, 1963, 374 U.S. 23, 34-43, 83 S.Ct. 1623, 10 L.Ed.2d 726, cf. United States v. Rabinowitz, 1950, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653. This, too, petitioner properly does not contest. The Maine Superior and Supreme Judicial Courts found the requisite consent.

The district court, in its opinion, recited that petitioner not only had presented the same record, but had agreed that the Maine courts’ findings should be accepted, so far as supported. Even had they not so agreed, it is apparent, from the tenor of its opinion, that this was the approach the district court wished to take. It was not inappropriate procedure, where the issues had been fully tried, so long as the state court had not “misconceived a federal constitutional right.” Fay v. Noia, 1963, 372 U.S. 391, 422, 83 S.Ct. 822, 9 L.Ed.2d 837.

By the same token, we will base our own decision on a determination whether the state court findings were reliably and fairly made. Two possible questions are presented. Did the evidence warrant a finding that Albert had expressed consent to enter the room ? Was a finding warranted that the consent had not been coerced? The district court did not indicate doubt as to the first of these questions. When a householder, knowing the identity and purpose of his caller, opens his door and turns back inside, he expresses by his actions as adequate a consent to entry as he would by a verbal invitation.

To be distinguished are cases where the householder opens a door not knowing who is there and finds himself faced with armed authority. In such cases the act of opening the door may merely be to see who is there, and turning back may only be retreating. But a policeman who identifies himself and his purpose from the other side of a closed door has every reason to assume that the act of unlocking and opening the door, without more, is a consent to talk, and that the walking back into the room is an implied invitation to conduct the talking inside.

The district court’s disagreement with the state court was on the other aspect of its decision. It said, “This court recognizes that it should not lightly upset a state court conviction. However, it is persuaded that the Maine court’s holdings * * * [cannot] be reconciled with Johnson v.

United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948) * * *” 248 F.Supp. at 499, 500. “Johnson and the above [lower court] cases compel the conclusion that Albert’s permission to the officers’ entry into his apartment was ‘granted in submission to authority rather than as an understanding and intentional waiver of a constitutional right’ * * Id. at 501. In our opinion the district court read into Johnson, and the cases which followed it, more than is required.

In Johnson, police officers, confidentially informed that opium was being used at a hotel, traced the smell of burning opium to a particular room, knocked on the door, and announced their identity. When defendant opened the door, one of the officers stated, “I want to talk with you a little bit.” Defendant stepped back, and allowed the officers to enter. The officers arrested the defendant and searched the room, discovering opium and smoking apparatus.

In holding the search invalid, the Court pointed out that since the smell of opium coming from the room would, in all probability, have supported an application for a search warrant, and since there was no evidence that any change in the premises was imminent, this was a classic case in which the police should have proceeded by warrant. The government’s contention that this was a search incident to a lawful arrest failed because the final link in the chain of probable cause was not forged until the officers entered and found the defendant the sole occupant of the room.

The Court characterized the entry as having been gained under color of authority, and not through an intentional waiver of a constitutional right. Here the police were not seeking to bypass the commissioner. They did not, as in Johnson, misstate their purpose in seeking entry. Rideout’s object was to talk with Albert. This was a legitimate objective, which he had reason to seek. He announced it to Albert, who understood, unlocked and opened the door. Rideout told the truth; he exercised no ruse; he threatened no force. After entry he made no attempt to engage in a search.

We do not think that after a householder, who has been fully and honestly informed of the objectives of the police, makes a responsive gesture of invitation, the courts must engage in a psychological or physiological inquiry into whether the invitation was really meant. An ordinary person who knocks on a door and receives assent may properly consider himself an invited guest, and would be so considered by the courts; the householder would not be permitted to base a claim of trespass upon the assertion that in his heart he did not wish to admit his caller.

Similarly, the fourth amendment, while it requires that a policeman seeking admittance to a private residence must fully regard the rights of the householder, does not require him to be clairvoyant. Officer Rideout’s conduct in this case was entirely respectful of Albert’s rights. We would agree with the holding in Johnson that where the officer’s real objective is search and seizure the householder’s consent should not only be clearly voluntary, but also specifically directed toward search and not merely toward entry. Cf. Reed v.

Rhay, 9 Cir., 1963, 323 F.2d 498, 500-501, cert. den. 377 U.S. 917, 84 S.Ct. 1184, 12 L.Ed.2d 187. We agree also with cases holding that courts should be skeptical of a purported consent to a search made after the officer had been admitted. Catalanotte v. United States, 6 Cir., 1953, 208 F.2d 264; United States v. Smith, 2 Cir., 1962, 308 F.2d 657, 663-664, cert. den. 372 U.S. 906, 83 S.Ct. 717, 9 L.Ed.2d 716. Acquiescence in such a case may well be mere “bravado,” Pekar v. United States, 5 Cir., 1963, 315 F.2d 319, 324-325, or may be granted in the belief that by now there is no choice.

But even as to searches we have never understood the law to be that there cannot be consent, or that, if the consent is the result of a police request, there has been as a matter of law a voiding duress. See, e. g., Burke v. United States, 1 Cir., 1964, 328 F.2d 399, cert. den. 379 U.S. 849, 85 S. Ct. 91, 13 L.Ed.2d 52; Rees v. Peyton, 4 Cir., 1965, 341 F.2d 859;. Simmons v. Bomar, 6 Cir., 1965, 349 F.2d 365; Burnside v. State of Nebraska, 8 Cir., 1965, 346 F.2d 88. At least pre-Miranda v.

Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (6/13/66), we will not hold that as a matter of law a policeman must introduce a noncustody request to talk by an explanation that one need not respond if one wishes not to. Finally, we believe that the district court misconstrued the Superior Court’s findings, or inferences, as to Albert’s motivation in opening the door.

The Superior Court found that “Albert’s will was [not] overcome by fear of authority * * It added that it believed that Albert “realized that there was nothing to be gained by denying the officers entrance and that he might as well let them in to find the stolen goods, the discovery of which now appeared inevitable anyway.” The district court interpreted this latter finding as contradicting the court’s initial conclusion, because, in the district court’s opinion, it meant that “Albert was acceding to an entry which he believed he was powerless to prevent, rather than freely and intelligently waiving a known constitutional right.” We believe the Superior Court was not contradicting itself in two contiguous sentences.

Our

interpretation of its second sentence is much simpler. It is that the court believed that Albert had concluded that events had caught up with him, and that if he refused entry he would merely be postponing the inevitable. Cf. Gatterdam v. United States, 6 Cir., 1925, 5 F.2d 673, 674 (“You might as well consent, because, if you do not, we will go and get a search warrant,” held not coercion.) Bowing to events, even if one is not happy about them, is not the same thing as being coerced. If it were, every plea of guilty would be involuntary.

Judgment will be entered reversing the judgment of the District Court and ordering the writ discharged. . The district court correctly pointed out that intimations in the opinion of the Supreme Judicial Oourt that petitioner lacked standing to complain of any lack of consent by Albert were erroneous. If the police were unlawfully in the room as to Albert, they were equally so as to petitioner. Jones v. United States, 1960, 362 U.S. 257, 265-267, 80 S.Ct. 725, 4 L.Ed.2d 697. However, this statement was advanced by the Maine court simply as an alternative ground of decision; consent was found in any event.

See 161 Me. at 135-136, 210 A.2d 24. . The Court of Appeals opinion, 9 Cir., 1947, 162 F.2d 562, discussed only probable cause and the need for a warrant; it did not pass on the voluntariness of the entry. The authority of Johnson has been questioned, United States v. Rabinowitz, supra, 339 U.S., at 85, 70 S.Ct. 430 (Frankfurter, J., dissenting), but it now seems to be established precedent for the strong preference accorded police action under warrant. United States v. Ventresca, 1965, 380 U.S. 102, 106-107, 85 S.Ct. 741, 13 L.Ed.2d 684; Chapman v.

United States, 1961, 365 U.S. 610, 614-616, 81 S.Ct. 776, 5 L.Ed.2d 828.