Anthony Ellsworth Dearinger v. B. J. Rhay, Superintendent, Washington State Penitentiary, Walla Walla, Washington

The opinion filed herein on December 9, 1969, is withdrawn and, in lieu thereof, the opinion attached hereto is filed.

The petition for rehearing is denied.

This is an appeal from a district court order, entered without a hearing, denying an application for a writ of habeas corpus. The applicant, Anthony Ells-worth Dearinger, is serving a prison sentence at Washington State Penitentiary, following his conviction on May 3, 1967, on a state charge of illegal possession of narcotic drugs. The Supreme Court of Washington affirmed his conviction in State v. Dearinger, 73 Wash.2d 563 , 439 P.2d 971 (1968).

Dearinger’s conviction was based upon a jury finding that he was the possessor of narcotics contained in a sock thrown from Dearinger’s home into the yard of a neighbor at the time police were seek ing entrance to Dearinger’s home pursuant to a search warrant. In his ha-beas application Dearinger alleged that the search and seizure were unreasonable under the Fourth Amendment because the search warrant was based upon information obtained from Dearinger’s companion, Ross Miller, shortly after the latter’s unlawful arrest.

Dearinger presented the facts pertaining to Miller’s…