Walter Francis Tremayne v. L. S. Nelson, Warden of San Quentin Prison

Walter Francis Tremayne appeals from the district court’s denial of his petition for a writ of habeas corpus. 28 U.S.C. § 2254 . He is serving a state sentence for murder. Our jurisdiction is based on 28 U.S.C. § 2253 .

Tremayne argues two points that require comment: (1) that the government did not show, and the district court did not find, that his consent to a search was voluntary; and (2) that when officers asked permission to search his house for a second time, they should have advised him of his “Miranda” rights.

Tremayne was convicted largely on the basis of the physical evidence found in his house. During the month prior to the challenged searches, police had been investigating the mysterious disappearance of. Tremayne’s wife. Shortly after police found her body in an abandoned car, they made an appointment to interview Tremayne. At the interview, police gave Tremayne the usual Miranda warnings and asked his permission to search the house. The officers did not advise Tremayne that he had the right to refuse permission. He consented to the search.

In United States v. Heimforth, 493 F.2d 970 (9th Cir.), cert. denied, 416 U.S. 908 , 94 S.Ct. 1615 , 40 L.Ed.2d 113 (1974),…