the legality of the arrest to justify an incidental search and seizure of the evidence in question. When a search and seizure of property are allegedly justified as incidental to the seizure of an individual, the seizure of the individual should require antecedent probable cause. There is no contention in the case sub judice that the detention of Anderson justified any incidental search. Thus we believe the case to be distinguishable from the Henry opinion.
Therefore we conclude that even if Anderson submitted to investigatory detention involuntarily, he was nevertheless not arrested prior to the search of his automobile. Although the detention may technically be considered a fourth amendment seizure, it need not be founded on antecedent probable cause. Because it was founded on a reasonable suspicion that Anderson might have committed a crime, and was reasonably brief, and was necessary under the circumstances, the detention was a reasonable seizure within the protective boundaries of the fourth amendment.
2. CONSENT TO SEARCH AND SEIZURE
The relator further contends that even if he was not illegally arrested, the search of his automobile and the seizure of the narcotics package were unreasonable under the fourth amendment; that the relator did not intelligently and voluntarily consent to the search or seizure; and that therefore the package should have been excluded at the state trial.
The officers searching Anderson's car had no search warrant, nor was the search incident to an arrest. Therefore, the search and seizure were prima facie unconstitutional. Judd v. United States, 89 U.S.App.D.C. 64, 190 F.2d 649 (1951). However, to overcome the presumption of unconstitutionality thus raised by the facts, the Commonwealth presented evidence at trial that Anderson had voluntarily consented to the search of his car, and had thereby waived his right to contest the constitutionality of the search and seizure. The state courts found that Anderson had freely and intelligently consented to the search. Commonwealth v. Anderson, 208 Pa.Super. 323, 328-329, 222 A.2d 495, 499 (1966).
The relator's habeas corpus petition is a collateral attack on the state courts' findings of free and intelligent waiver. A court judgment collaterally attacked carries a presumption of regularity; the burden of proof rests on the relator to establish that he did not competently and intelligently waive his constitutional right to be free from an unreasonable search. Johnson v. Zerbst, 304 U.S. 458, 468-469, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); Vanater v. Boles, 377 F.2d 898, 900 (4th Cir. 1967); Bates v. Meadows, 358 F.2d 674, 675 (6th Cir. 1966) (see cases cited therein).
As noted above, the relator has never presented any evidence in this case, either at trial or in this proceeding. The only evidence in the record consists of the police officers' testimony. The Third Circuit has recently held that under the circumstances here presented, the question of the voluntariness of consent is a question of fact to be decided by the trier of fact; and where the trial court's finding of voluntary and effective consent to a search is adequately supported by the evidence in the record, that finding should not be disturbed. United States ex rel. Gockley v. Myers, 378 F.2d 398 (3d Cir. 1967).
We hold the trial court's finding of intelligent and voluntary consent to be supported adequately by the officers' testimony, the only evidence in the record. The officers' uncontradicted testimony reveals that Anderson had been at the station house but five to ten minutes when his consent to the search was requested and obtained; the brief period of detention substantiates the trial court's conclusion that Anderson was not coerced in any way. The fact that Anderson gave the officers his keys to unlock his car also implies consent. See United States ex rel. Gockley v. Myers, supra; Burge v. United States, 332 F.2d 171 (8th Cir. 1964). Anderson participated in the search by assisting the officers in removing the car hubcaps; such affirmative assistance also implies consent. United States v. Smith, 308 F.2d 657, 664 (2d Cir.), cert. denied, 372 U.S. 906, 83 S. Ct. 717, 9 L. Ed. 2d 716 (1962). Anderson was present during the entire search and never once objected. And finally, Anderson previously had been arrested and convicted three times for narcotics violations; he was not a novice with respect to the police station or police procedures.
The relator does raise one issue which has yet to receive detailed consideration by the courts: can an individual in police custody waive his right to be free from unreasonable search and seizure "intelligently" or "voluntarily" when he has not been informed by the police that he has that fourth amendment right?
The Supreme Court has held that an individual in police custody cannot be found to have voluntarily waived his fifth amendment right to remain silent unless the police have previously and specifically advised him of that right. Miranda v. State of Arizona, 384 U.S. 436, 468, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Of course, we have already concluded that Anderson went to the station house voluntarily; thus technically, he may not have been in police custody, and therefore perhaps not entitled to any warnings about his constitutional rights. However, for purposes of this decision, we will assume that voluntary submission to interrogation does not necessarily strip the suspect of the rights which would otherwise attach when custodial interrogation and the adversary system begin to operate.
Thus we assume Anderson was in custody. The record reveals that at no time did the officers inform him of his right to remain silent, right to counsel, or right to be free from unreasonable search and seizure; nor did they advise him that anything found in his car might be used against him at trial. The question is whether the fourth amendment warning is an absolute prerequisite to a finding of an intelligent and voluntary waiver of the fourth amendment right.
The Miranda case does not speak to the problem of fourth amendment waiver; and even if Miranda should be read as general redefinition of the "intelligent" waiver requirements with respect to any constitutional waiver made in custody, Miranda's date of prospective application renders the decision inapplicable to the relator's case. The Miranda guidelines are available only to persons whose trials had not begun as of June 13, 1966. Johnson v. State of New Jersey, 384 U.S. 719, 734, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966). Relator Anderson's trial began in December, 1964. Nor does the Supreme Court's decision in Escobedo v. State of Illinois, supra, support the relator's contentions. Escobedo speaks neither to waiver requirements nor to the fourth amendment.
It has recently been held by our Brother, Judge Joseph S. Lord, III, that to sustain the burden of showing an intelligent waiver of a fourth amendment right, the prosecuting government must produce evidence showing either that the fourth amendment warning was given, or that the suspect was in fact already aware of his fourth amendment rights. United States v. Blalock, 255 F. Supp. 268, 270 (E.D.Pa.1966). See United States v. Nikrasch, 367 F.2d 740 (7th Cir. 1966). First, it should be noted that Blalock does not require the fourth amendment warning as an absolute prerequisite; evidence that the suspect was already aware of his fourth amendment rights would support a finding of intelligent waiver.
Second, the Blalock court determined the question of waiver at the trial level, and thus made its own original findings of fact and conclusions of law. In this habeas corpus proceeding, we are reviewing a finding of fact made by another trial court. The fact of intelligent consent has already been found; we are merely to determine whether that finding is adequately supported by the evidence in the record. See Johnson v. Zerbst, 304 U.S. 458, 468-469, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938).
The Third Circuit has recently dealt with the issue before us under similar factual circumstances and on a review of a habeas corpus petition. In United States ex rel. Gockley v. Myers, supra, the suspect had been arrested and was in the custody of the police. When the officers informed the suspect that they intended to obtain a search warrant to search his house, he told them that a warrant would not be necessary. He gave them his house keys and consented to the search. From the trial court record, it is apparent that the officers did not advise the suspect that he had a right to be free from a warrantless search, that a search warrant could only be issued on probable cause, or that any evidence found in the house could be used against the suspect. The suspect testified at trial that he had felt compelled to agree to the search. Yet the trial court found the consent to be an intelligent and voluntary waiver. The Third Circuit held that the consent was an effective waiver, observing that
"At most, the question of the voluntariness of consent in these circumstances was a question of fact to be decided by the trier of fact. * * * The trial judge found voluntary and effective consent to the search and that finding is adequately supported by the evidence." United States ex rel. Gockley v. Myers, 378 F.2d 398, 399-400 (3d Cir. 1967).