The above case was remanded to this Court for reconsideration of its decision which had reversed the judgment of the United States District Court for the District of Utah.
The action in the trial court was pursuant to 28 U.S.C. § 2254. Petitioner, who had been convicted of forcible rape in state court, had collaterally attacked his conviction on the ground that there had been an unreasonablе search of his *1338 automobile which had yielded incriminating underclothing of the victim. The trial court ordered the petitioner-apрel-lee discharged, basing its ruling on the proposition that any consent to the search by the accused had been given following what the court considered to have been an inadequate and insufficient Miranda warning.
This court reversed the judgment of the trial court holding thаt there was probable cause for the search. The Supreme Court,
We have in accordance with the Supreme Court’s mandate considered the Court’s decision in Coolidge v. New Hampshire and have reconsidered our prior holding that the warrantless search was valid. We acknowledge that the search in question being warrantless and nоt incident to the arrest was invalid and void under the standard set forth in Coolidge v. New Hampshire.
There remains the matter which was mentionеd but not decided in our former opinion and that is whether the defendant consented to the search of his car. On this we hold that there was not an effective consent.
Evidence was offered at the habeas corpus hearing as to the circumstancеs which led to the obtaining of the “consent” in the search of the car. The trial court did not specifically find on this subject. Howevеr, the tenor of the judge’s remarks discounted the consent predicated on the coercive circumstances. The judge held, for example, that the Miranda warning was not adequate in that it did not clearly advise the defendant that his right to counsel was absolute. Hоwever, the sufficiency of the Miranda warning is not the controlling factor in our decision since we are not here concerned with а confession or admission, but rather with the validity of a search.
The facts are important. The officers, four or five in number, went to the home of the defendant at 1:45 in the morning. Two of the officers entered the house and routed the defendant and his wife out of bed. They then directed the wife to leave the room and questioned the defendant about an alleged rape. The testimony as tо consent was that the defendant was asked on the way out to the car whether he would consent to their searching the cаr and he agreed.
It is plain that the search was not incident to an arrest, and there was not the necessity for immediate seаrch without a warrant for the purpose of obtaining a secreted weapon. Nor does the case fall within Cooper v. California,
The record in the presеnt case does not justify a holding that there was consent. The evidence at the hearing and the trial court’s reaction to it rеquire a holding that the authorities here did not sustain their burden of proof. First, the evidence was disputed as to whether a consent was given. Apart from this, however, the background circumstances, such as the middle of the night invasion of the defendant’s home and the coercion necessarily flowing from the presence of a number of sheriff’s officers, show clearly that there was not presеnt the clear and unequivocal consent that would *1339 be necessary in order to uphold the position of the Utah authorities.
In Villano v. United States,
Each of these rules seems particularly applicable to the case at bar. The incident began with a violent interruption of appеllant’s privacy at his home at an unnatural hour and without semblance of lawful authority, continued through an unlawful search at those premises to an entry of the store made under the shadow of the badge and threat of force, and was modified only by evidencе that appellant had been in trouble before, his ambiguous gesture of opening two of the desk drawers and the self-compеtitive testimony of the officer as to appellant’s statements made at the critical moment preceding probablе discovery. We think the uncontradicted evidence, considered with that most favorable to the government where conflict exists, shows a mal-conceived plan of authority carried to a prohibited conclusion. And certain it is that an unlawful search, conceived in evil, is not baptized in maturity by success of search. Gallegos v. United States, 10 Cir.,237 F.2d 694 . We hold that the government did not meet its burden оf showing a free and specific consent to the search and that the trial court’s finding in this regard is clearly erroneous.310 F.2d at 684 .
We conclude that there was not a legally effective consent and, therefore, that the judgment of the district court should be and the same is hereby affirmed.
We note from the record that the defendant is presently free on bond. This was fixed following the remand from the Suрreme Court. We wish to make clear that the defendant is subject to retrial by the State of Utah if the authorities elect to prоceed further in the case, and the defendant is subject to the processes of Utah for this purpose. In any subsequent proceedings, of course, the evidence obtained as a result of the unlawful search of the defendant’s car must be suppressed.
The judgment of the District Court granting the writ is affirmed.