James David Mcclain, Appellant, v. Lawrence E. Wilson, Warden, Appellee, 370 F.2d 369 (9th Cir. 1966)

On this appeal from denial of habeas corpus the error assigned is that evidence, secured by search of appellant's residence and automobile, was improperly received in evidence in appellant's trial in the state court, since the search was without warrant and the arrest of appellant which preceded it was without warrant or probable cause.

The District Court ruled that since, under Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965), Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), was not to be applied retroactively, appellant's contentions were without merit in reference to his conviction which became final December 15, 1960. We agree.

Appellant contends that Linkletter should not control and that retroactive application of Mapp is proper here, since California, prior to Mapp, had a state rule excluding evidence obtained in an unreasonable search.

We disagree. California's voluntary acceptance of federal standards did not thereby open the door to federal review of state action upon what still remained a question of state law. Linkletter establishes that the right of an accused to Fourth Amendment federal review of state rulings on admissibility dates from Mapp.

Affirmed.