Waterman and Hays, Circuit Judges, and Bartels, District Judge.*fn*
George Combs appeals from an order of the United States District Court for the Southern District of New York denying his application for a writ of habeas corpus. We affirm.
The only question on this appeal is the legality, under the fourth and fourteenth amendments, of the seizure of certain evidence.
Appellant was convicted of robbery in the second degree upon a plea of guilty in Supreme Court, New York County. Before pleading guilty, appellant moved to suppress the introduction of the seized evidence. A suppression hearing was held at which the following facts were developed.
Appellant was on parole from Elmira Reformatory. His parole officer was one Robert H. Campbell. In the discharge of his duties Campbell visited Combs once a month at the apartment where he lived with his mother. Campbell was informed by the New York City police of Combs' arrest on the robbery charge. He went to Combs' apartment, accompanied by three New York City detectives and by another parole officer. No attempt was made to obtain a search warrant.
The five men arrived at Combs' apartment at 1:45 p.m. In the apartment at that time were Combs' mother, Mrs. Canton, and two ladies from her church. Mrs. Canton answered the door, and invited the men to come in. Campbell and the others went into the living room and Campbell introduced the others. They all sat down and Campbell told Mrs. Canton that appellant and his brother had been arrested. He asked to see her sons' room and Mrs. Canton said, "Well, I just made the beds, go in and take a look."
(Mrs. Canton testified that one of the officers said, "We have to search your house," that she replied, "All right; but where is your search warrant," and that he said, "We don't need it." Campbell testified that nothing was said about a search warrant.)
Campbell and two of the detectives searched appellant's room. Mrs. Canton aided in the search. After the search of appellant's room was completed, Mrs. Canton took one of the officers, a Detective Brady, into her room where they could "talk privately" so that she would not be embarrassed by having her church friends overhear their conversation. Brady noticed a television set in the room and Mrs. Canton told him that her sons had given her the set.
Brady checked the serial number of the television set and told Mrs. Canton that the set had been stolen and that they would have to take it. She said, "Take it out of here because I don't want anything in my house that is stolen." The officers left the apartment with the set about an hour and a half after their arrival.
Appellant's mother testified that she permitted the search because "I didn't want them to get the impression I didn't want them to look because it would look like I was hiding something, and I had nothing to hide."
Combs' motion to suppress the seized evidence, i.e., the television set, was denied. The court found the search to have been "legal and valid" and stated, "I do not believe that there was any request for a search warrant." The prosecution requested that the record reflect that the court had "made a factual determination here that there was no coercion used, that the search was consented to." The court said, "That was implied" in its finding.
After the denial of his motion to suppress, appellant pleaded guilty. He then appealed his conviction, as permitted by Section 813-c of the New York Code of Criminal Procedure (McKinney Supp. 1968), challenging the denial of his motion to suppress. The conviction was affirmed by the Appellate Division without opinion, People v. Combs, 25 A.D.2d 497, 267 N.Y.S.2d 885 (1966). The New York Court of Appeals denied leave to appeal and the United States Supreme Court denied certiorari, 385 U.S. 878, 87 S. Ct. 157, 17 L. Ed. 2d 105 (1966). The New York Court of Appeals subsequently denied appellant's application for reconsideration of his motion for leave to appeal.
Appellant then filed an application for a writ of habeas corpus in the United States District Court for the Southern District of New York claiming that the denial of his motion to suppress was constitutionally erroneous. The writ was ...