delivered the opinion of the court.
The state of Montana brings this appeal from an order of the district court, Powder River County, suppressing evidence as illegally seizеd. The defendant, Millard Wade LaFlamme, was charged with criminal mischief, in violation of section 94-6-102(l)(a), R.C.M.1947, causing damages of more than $150, а felony.
On January 24, 1975, a .44 magnum pistol was used to damage a weigh station near Broadus. It was known that the defendant owned a .44 magnum and on January 27, 1975, the Powder River County sheriff, accompanied by the Custer County sheriff approached the defendant on the grounds of Miles Community Cоllege and asked if a ballistics examination could be made of defendant’s weapon. Defendant agreed and went to the rоom where he stayed, followed by the two peace officers who waited in the room while defendant looked for the weapon. Defendant was unable to find the weapon there. At this point, the Powder River County sheriff suggested that before defendant report the weapon missing, defendant should examine the light utility pickup truck that he owned to see if the pistol was there. Defendant stated in rеsponse to this suggestion:
“* * * ‘Well, I guess it’s not there or not’, and I said, ‘I’d go take a look.’
After a brief examination of the small pickup truck, the defendant made a comment to the effect:
“* * * ‘Well, I guess it’s not here’ * *
The Powder River County sheriff recalled what happened next:
“* * * when he quit looking, I said, ‘How about behind the seat’ and — ‘Well, I don’t think so’, he said, and I just tipped the seat ahead while I was standing there, and there it laid.”
*204 The sheriff confiscated the .44 magnum that he found on the floor of the pickup truck.
The defendant contends that the search made by the Powder River County sheriff of his pickup truck violates the Fourth Amendment’s guarantee of freedom from unreasonable searches and the similar guarantee in the Montana Constitution in Article II, Section 11. He further alleges that it violated the section of the Code ofCriminal Procedure which codifies these guarantees, section 95-701, R.C.M.1947. This section authorizes searches to be made:
“(a) As an incident to a lawful arrest.
“(b) With the consent of the accused * * *
“(c) By the authority of a valid search warrant.
“(d) Under authority and within the scoрe of a right of lawful inspection granted by law.”
At the time of the search there was no lawful arrest and no search warrant, so subseсtions (a) and (c) are not applicable. The search was not a routine inspection type search contemplаted by subsection (d). Therefore the only basis remaining and the only one claimed as the basis for the search is that of subsection (b), that thе search was one conducted with the consent of the accused.
The question before this Court is whether defendant gave his consent to have his pickup truck searched. There is a heavy burden of proof required to show that there was a consent. The Unitеd States Supreme Court in
Bumper v. North
Carolina,
“When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. * * *”
The Ninth Circuit Court of Appeals gave a more elaborate statement of this requirement in
Channel v. United States,
*205 “A search and seizure may be made without a search warrant if the individual freely and intelligently gives his unequivocal and sрecific consent to search, uncontaminated by any duress or coercion, actual or implied. The Government has the burdеn of proving by clear positive evidence that such consent was given.”
This Court has expressed a similar view in
State v. Peters,
The question to be answered in this case is whether the words and aсtions of the defendant were such that a freely given, unequivocal, and specific consent is shown by clear positive evidenсe.
The first evidence is this: At the suppression hearing the Powder River County sheriff upon questioning by the court admitted that he had never asked the defendant if he could search the defendant’s room or truck. The crucial question “Can I search your pickup truck?” was never аsked.
Nearly all the cases that deal with the problem of whether there was a clear and unequivocal consent follow а similar factual pattern. In those cases, the defendant gives a clear verbal consent but does something which indicates a сontrary intent. For example in
Cipres v. United States,
“Q. You just took it from the circumstances, that he was giving his consent?
A. Well, he unlocked the door and went in and looked in and said that it wasn’t here, and I told him that he should look everywhere that it might be before he reported it missing.”
This statement is not the sort of clear evidence required to show the valid unequivocal consent that is required for the waiver of a constitutional right.
A comparison of the facts of this case and Peters shows the substantial difference between the two cases. In Peters defendant gave his verbal assent to the search and actively assisted the authorities in the search. Here, defendant never gave his verbal assent to the search and did all the searching himself. If Peters had told the authorities that he would lоok for the calves himself and then reported that he had found nothing unusual, the authorities would not have been justified in entering the premises themselves and making their own search. For the same reasons the sheriff here could not search the trunk after defendant had loоked for the weapon and reported that it was not in the truck.
For a case where no search was made by officers but a rifle was voluntarily turned over to the sheriff who voluntarily received it, see
State v.
Williams,
For these reasons the order of the district court is affirmed.