William H. Kendrick v. Louis S. Nelson, Warden

448 F.2d 25 William H. KENDRICK, Appellant, v. Louis S. NELSON, Warden, Appellee. No. 25689. United States Court of Appeals, Ninth Circuit. Aug. 31, 1971. William H. Kendrick, in pro. per. Evelle J. Younger, Cal. Atty. Gen., Derald E. Granberg, Louise H. Renne, Deputy Attys. Gen., San Francisco, Cal. for appellee. Before MERRILL and KILKENNY, Circuit Judges, and BELLONI, District Judge. * KILKENNY, Circuit Judge: 1 This is an appeal from an order denying appellant's petition for a writ of habeas corpus, in which he challenges the validity of his commitment under a judgment of the superior court of the state of California. He was there sentenced to from six months to ten years imprisonment for violation of California Penal Code Sec. 496, receiving stolen property. On the same date he was remanded into custody for violation of a probation then being served for violation of California Health & Safety Code, Sec. 11557. Even though appellant did not appeal from the original state judgment, he has now satisfactorily exhausted all available state remedies and has been denied certiorari by the Supreme Court of the United States. BACKGROUND 2 The state court record, the only evidence…

This is an appeal from an order denying appellant’s petition for a writ of ha-beas corpus, in which he challenges the validity of his commitment under a judgment of the superior court of the state of California. He was there sentenced to from six months to ten years imprisonment for violation of California Penal Code § 496, receiving stolen property. On the same date he was remanded into custody for violation of a probation then being served for violation of California Health & Safety Code, § 11557. Even though appellant did not appeal from the original state judgment, he has now satisfactorily exhausted all available state remedies and has been denied certiorari by the Supreme Court of the United States.

BACKGROUND

The state court record, the only evidence before the district court, discloses that the two arresting officers, in the early morning hours of November 22, 1966, stopped appellant for a minor traffic violation [lack of adequate license plate illumination]. 1 After stopping the vehicle, the officers noticed an open container of beer in the front seat. The officers were aware of numerous recent burglaries of residential and commercial establishments and thefts of motor…

(concurring) :

I concur. I agree that the search and seizure were lawful under all the circumstances of this case, and I think it worthwhile to clarify the majority’s rationale on this point. The search of the glove compartment without a warrant was lawful because the officer had probable cause to believe that the glove compartment contained further evidence of violations of the California Vehicle Code, and it was not practical to secure a warrant because the opportunity to search was fleeting. See Chambers v. Maroney, 399 U.S. 42 , 90 S.Ct. 1975 , 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925). See also Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971). As I read the majority opinion, it relies on the above rationale and not on the theory that the present record establishes an intelligent consent to search, which must satisfy the standards of Schoepflin v. United States, 391 F.2d 390 (9th Cir. 1968), and Cipres v. United States, 343 F.2d 95, 97 (9th Cir. 1965).