Schneckloth v. Bustamonte, 412
STEWART delivered the opinion of the Court.
STEWART delivered the opinion of the Court.
It is well
settled under the Fourth and Fourteenth Amendments that a search conducted
without a warrant issued upon probable cause is 'per se unreasonable . . .
subject only to a few specifically established and well‑ delineated
exceptions.' Katz v.
The respondent was brought to trial in a
While on routine patrol in
The trial judge denied the motion to suppress, and the checks in question were admitted in evidence at Bustamonte's trial. On the basis of this and other evidence he was convicted, and the California Court of Appeal for the First Appellate District affirmed the conviction. 270 Cal.App.2d 648, 76 Cal.Rptr. 17. In agreeing that the search and seizure were constitutionally valid, the appellate court applied the standard earlier formulated by the Supreme Court of California in an opinion by then Justice Traynor: 'Whether in a particular case an apparent consent was in fact voluntarily given or was in submission to an express or implied assertion of authority, is a question of fact to be determined in the light of all the circumstances.' People v. Michael, 45 Cal.2d 751, 753, 290 P.2d 852, 854. The appellate court found that '(i)n the instant case the prosecution met the necessary burden of showing consent . . . since there were clearly circumstances from which the trial court could ascertain that consent had been freely given without coercion or submission to authority. Not only officer Rand, but Gonzales, the driver of the automobile, testified that Alcala's assent to the search of his brother's automobile was freely, even casually given. At the time of the request to search the automobile the atmosphere, according to
Thereafter, the respondent sought a writ of
habeas corpus in a federal district court. It was denied. On appeal, the Court of Appeals for the Ninth
Circuit, relying on its prior decisions in Cipres v. United States, 343 F.2d
95, and Schoepflin v. United States, 391 F.2d 390, set aside the District
Court's order. 448 F.2d 699. The appellate court reasoned that a consent was a
waiver of a person's Fourth and Fourteenth Amendment rights, and that the State
was under an obligation to demonstrate, not only that the consent had been
uncoerced, but that it had been given with an understanding that it could be
freely and effectively withhold. Consent
could not be found, the court held, solely from the absence of coercion and a
verbal expression of assent. Since the
District Court had not determined that Alcala had known that his consent could
have been withheld and that he could have refused to have his vehicle searched,
the Court of Appeals vacated the order denying the writ and remanded the case
for further proceedings. We granted
certiorari to determine whether the Fourth and Fourteenth Amendments require
the showing thought necessary by the Court of Appeals. 405
It is important to make it clear at the outset
what is not involved in this case. The
respondent concedes that a search conducted pursuant to a valid consent is
constitutionally permissible. In Katz v.
The precise question in this case, then, is what must the
prosecution prove to demonstrate that a consent was 'voluntarily' given. And upon that question there is a square
conflict of views between the state and federal courts that have reviewed the
search involved in the case before us.
The Court of Appeals for the Ninth Circuit concluded that it is an
essential part of the State's initial burden to prove that a person knows he
has a right to refuse consent. The
cases yield no talismanic definition of 'voluntariness,' mechanically
applicable to the host of situations where the question has arisen. 'The notion of 'voluntariness," Mr.
Justice Frankfurter once wrote, 'is itself an amphibian.' Culombe v.
Rather, 'voluntariness' has reflected an
accommodation of the complex of values implicated in police questioning of
a suspect. At one end of the spectrum is
the acknowledged need for police questioning as a tool for the effective enforcement
of criminal laws. See Culombe v.
This Court's decisions reflect a frank recognition that the Constitution requires the sacrifice of neither security nor liberty. The Due Process Clause does not mandate that the police forgo all questioning, or that they be given carte blanche to extract what they can from a suspect. 'The ultimate test remains that which has been the only clearly established test in Anglo‑American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self‑ determination critically impaired, the use of his confession offends due process.' Culombe v.
In determining whether a defendant's will was
overborne in a particular case, the Court has assessed the totality of all the
surrounding circumstances‑‑both the characteristics of the accused and the
details of the interrogation. Some of
the factors taken into account have included the youth of the accused, e.g.,
The significant fact about all of these
decisions is that none of them turned on the presence or absence of a single
controlling criterion; each reflected a careful scrutiny of all the surrounding
circumstances. See Miranda v.
Similar considerations lead us to agree with the courts of California that the question whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent. As with police questioning, two competing concerns must be accommodated in determining the meaning of a 'voluntary' consent‑‑the legitimate need for such searches and the equally important requirement of assuring the absence of coercion.
situations where the police have some evidence of illicit activity, but lack
probable cause to arrest or search, a search authorized by a valid consent may
be the only means of obtaining important and reliable evidence. In the
present case for example, while the police had reason to stop the car for
traffic violations, the State does not contend that there was probable cause to
search the vehicle or that the search was incident to a valid arrest of
any of the occupants. Yet, the
search yielded tangible evidence that served as a basis for a prosecution, and
provided some assurance that others, wholly innocent of the crime, were not
mistakenly brought to trial. And in
those cases where there is probable cause to arrest or search, but where the
police lack a warrant, a consent search may still be valuable. If the search is conducted and proves
fruitless, that in itself may convince the police that an arrest with its
possible stigma and embarrassment is unnecessary, or that a far more extensive
search pursuant to a warrant is not justified.
In short, a search pursuant to consent may result in considerably less
inconvenience for the subject of the search, and, properly conducted, is a
constitutionally permissible and wholly legitimate aspect of effective police
Fourth and Fourteenth Amendments require that a consent not be coerced, by
explicit or implicit means, by implied threat or covert force. For, no matter
how subtly the coercion was applied, the resulting 'consent' would be no more
than a pretext for the unjustified police intrusion against which the Fourth
Amendment is directed. In the words of
the classic admonition in Boyd v.
'It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.'
The problem of reconciling the recognized legitimacy of consent searches with the requirement that they be free from any aspect of official coercion cannot be resolved by any infallible touchstone. To approve such searches without the most careful scrutiny would sanction the possibility of official coercion; to place artificial restrictions upon such searches would jeopardize their basic validity. Just as was true with confessions, the requirement of a 'voluntary' consent reflects a fair accommodation of the constitutional requirements involved. In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents. Those searches that are the product of police coercion can thus be filtered out without undermining the continuing validity of consent searches. In sum, there is no reason for us to depart in the area of consent searches, from the traditional definition of 'voluntariness.'
The approach of the Court of Appeals for the Ninth Circuit finds no support in any of our decisions that have attempted to define the meaning of 'voluntariness.' Its ruling, that the State must affirmatively prove that the subject of the search knew that he had a right to refuse consent, would, in practice, create serious doubt whether consent searches could continue to be conducted. There might be rare cases where it could be proved from the record that a person in fact affirmatively knew of his right to refuse‑‑such as a case where he announced to the police that if he didn't sign the consent form, 'you (police) are going to get a search warrant;' or a case where by prior experience and training a person had clearly and convincingly demonstrated such knowledge. But more commonly where there was no evidence of any coercion, explicit or implicit, the prosecution would nevertheless be unable to demonstrate that the subject of the search in fact had known of his right to refuse consent.
The very object of the inquiry‑‑the nature of a person's subjective understanding‑‑underlines the difficulty of the prosecution's burden under the rule applied by the Court of Appeals in this case. Any defendant who was the subject of a search authorized solely by his consent could effectively frustrate the introduction into evidence of the fruits of that search by simply failing to testify that he in fact knew he could refuse to consent. And the near impossibility of meeting this prosecutorial burden suggests why this Court has never accepted any such litmus‑paper test of voluntariness. It is instructive to recall the fears of then Justice Traynor of the California Supreme Court:
'(I)t is not unreasonable for officers to seek interviews with suspects or witnesses or to call upon them at their homes for such purposes. Such inquiries, although courteously made and not accompanied with any assertion of a right to enter or search or secure answers, would permit the criminal to defeat his prosecution by voluntarily revealing all of the evidence against him and then contending that he acted only in response to an implied assertion of unlawful authority.' People v. Michael, 45 Cal.2d, at 754, 290 P.2d, at 854.
One alternative that would go far toward proving that the subject of a search did know he had a right to refuse consent would be to advise him of that right before eliciting his consent. That, however, is a suggestion that has been almost universally repudiated by both federal and state courts, and, we think, rightly so. For it would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning. Consent searches are part of the standard investigatory techniques of law enforcement agencies. They normally occur on the highway, or in a person's home or office, and under informal and unstructured conditions. The circumstances that prompt the initial request to search may develop quickly or be a logical extension of investigative police questioning. The police may seek to investigate further suspicious circumstances or to follow up leads developed in questioning persons at the scene of a crime. These situations are a far cry from the structured atmosphere of a trial where, assisted by counsel if he chooses, a defendant is informed of his trial rights. Cf. Boykin v.
Conversely, if under all the circumstances it
has appeared that the consent was not given voluntarily‑‑that it was coerced by
threats or force, or granted only in submission to a claim of lawful authority‑‑then
we have found the consent invalid and the search unreasonable. See, e.g., Bumper v.
Just as it was necessary in Coolidge to analyze the totality of the surrounding circumstances to assess the validity of Mrs. Coolidge's offer of evidence, it is equally necessary to assess all the circumstances surrounding a search where consent is obtained in response to an initial police question.
It is said, however, that a 'consent' is a 'waiver' of a person's rights under the Fourth and Fourteenth Amendments. The argument is that by allowing the police to conduct a search, a person 'waives' whatever right he had to prevent the police from searching. It is argued that under the doctrine of Johnson v. Zerbst, 304
The requirement of a 'knowing' and
'intelligent' waiver was articulated in a case involving the validity of a
defendant's decision to forego a right constitutionally guaranteed to protect a
fair trial and the reliability of the truth‑determining process. Johnson v.
Zerbst, supra, dealt with the denial of counsel in a federal criminal trial.
There the Court held that under the Sixth Amendment a criminal defendant is
entitled to the assistance of counsel, and that if he lacks sufficient funds to
retain counsel, it is the Government's obligation to furnish him with a
lawyer. As Mr. Justice Black wrote for
the Court: 'The Sixth Amendment stands as a constant admonition that if the
constitutional safeguards it provides be lost, justice will not 'still be
done.' It embodies a realistic
recognition of the obvious truth that the average defendant does not have the
professional legal skill to protect himself when brought before a tribunal with
power to take his life or liberty, wherein the prosecution is presented by
experienced and learned counsel. That
which is simple, orderly, and necessary to the lawyer‑‑to the untrained layman
may appear intricate, complex and mysterious.' 304
Our cases concerning the validity of
guilty pleas underscore the fact that the question whether a person has acted
'voluntarily' is quite distinct from the question whether he has 'waived' a
trial right. The former question, as we
made clear in Brady v. United States, 397 U.S., at 749, 90 S.Ct., at 1469, can
be answered only by examining all the relevant circumstances to determine if he
has been coerced. The latter question
turns on the extent of his knowledge. We drew the same distinction in McMann v.
'A conviction after a plea of guilty normally rests on the defendant's own admission in open court that he committed the acts with which he is charged. . . . That admission may not be compelled, and since the plea is also a waiver of trial‑‑and unless the applicable law otherwise provides, a waiver of the right to contest the admissibility of any evidence the State might have offered against the defendant‑‑it must be an intelligent act 'done with sufficient awareness of the relevant circumstances and likely consequences.'' (Footnote omitted.)
The guarantees afforded a criminal defendant at trial also protect him at certain stages before the actual trial, and any alleged waiver must meet the strict standard of an intentional relinquishment of a 'known' right. But the 'trial' guarantees that have been applied to the 'pretrial' stage of the criminal process are similarly designed to protect the fairness of the trial itself.
Hence, in United States v. Wade, 388 U.S. 218,
87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87
S.Ct. 1951, 18 L.Ed.2d 1178, the Court held 'that a post‑indictment pretrial
lineup at which the accused is exhibited to identifying witnesses is a critical
stage of the criminal prosecution; that police conduct of such a lineup without
notice to and in the absence of his counsel denies the accused his Sixth (and
Fourteenth) Amendment right to counsel . . ..'
'Insofar as the accused's conviction
may rest on a courtroom identification in fact the fruit of a suspect pretrial
identification which the accused is helpless the subject to effective scrutiny
at trial, the accused is deprived of that right of cross‑examination which is
an essential safeguard to his right to confront the witnesses against him. Pointer v.
And in Miranda v.
'That counsel is present when
statements are taken from an individual during interrogation obviously enhances
the integrity of the fact‑finding processes in court. The presence of an attorney, and the warnings
delivered to the individual, enable the defendant under otherwise compelling
circumstances to tell his story without fear, effectively, and in a way that
eliminates the evils in the interrogation process. Without the protections flowing from adequate
warnings and the rights of counsel, 'all the careful safeguards erected around
the giving of testimony, whether by an accused or any other witness, would become
empty formalities in a procedure where the most compelling possible evidence of
guilt, a confession, would have already been obtained at the unsupervised
pleasure of the police.''
The standards of Johnson were, therefore, found to be a necessary prerequisite to a finding of a valid waiver. See 384
There is a vast difference between those rights that protect a fair criminal trial and the rights guaranteed under the Fourth Amendment. Nothing, either in the purposes behind requiring a 'knowing' and 'intelligent' waiver of trial rights, or in the practical application of such a requirement suggests that it ought to be extended to the constitutional guarantee against unreasonable searches and seizures.
A strict standard of waiver has been applied to those rights guaranteed to a criminal defendant to insure that he will be accorded the greatest possible opportunity to utilize every facet of the constitutional model of a fair criminal trial. Any trial conducted in derogation of that model leaves open the possibility that the trial reached an unfair result precisely because all the protections specified in the Constitution were not provided. A prime example is the right to counsel. For without that right, a wholly innocent accused faces the real and substantial danger that simply because of his lack of legal expertise he may be convicted. As Mr. Justice Harlan once wrote: 'The sound reason why (the right to counsel) is so freely extended for a criminal trial is the severe injustice risked by confronting an untrained defendant with a range of technical points of law, evidence, and tactics familiar to the prosecutor but not to himself.' Miranda v.
The protections of the Fourth Amendment are of
a wholly different order, and have nothing whatever to do with promoting the
fair ascertainment of truth at a criminal trial. Rather, as Mr. Justice Frankfurter's opinion
for the Court put it in Wolf v.
Nor can it even be said that a search, as
opposed to an eventual trial, is somehow 'unfair' if a person consents to a
search. While the Fourth and Fourteenth Amendments limit the
circumstances under which the police can conduct a search, there is nothing
constitutionally suspect in a person's voluntarily allowing a search. The actual conduct of the search may be
precisely the same as if the police had obtained a warrant. And, unlike those constitutional guarantees
that protect a defendant at trial, it cannot be said every reasonable
presumption ought to be indulged against voluntary relinquishment. We have only recently stated: '(I)t is no
part of the policy underlying the Fourth and Fourteenth Amendments to
discourage citizens from aiding to the utmost of their ability in the
apprehension of criminals.' Coolidge v.
'The constitutional right of an
accused to be represented by counsel invokes, of itself, the protection of a
trial court, in which the accused‑‑whose life or liberty is at stake‑‑is
without counsel. This protecting duty
imposes the serious and weighty responsibility upon the trial judge of determining
whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to
counsel, whether there is a proper waiver should be clearly determined by the
trial court, and it would be fitting and appropriate for that determination to
appear upon the record.' 304
The Court was even more explicit
in Von Moltke v. Gillies, 332
'To discharge this duty (of assuring the intelligent nature of the waiver) properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge's responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.'
It would be unrealistic to expect that in the informal, unstructured context of a consent search, a policeman, upon pain of tainting the evidence obtained, could make the detailed type of examination demanded by Johnson. And, if for this reason a diluted form of 'waiver' were found acceptable, that would itself be ample recognition of the fact that there is no universal standard that must be applied in every situation where a person foregoes a constitutional right.
Much of what has already been said disposes of
the argument that the Court's decision in the Miranda case requires the
conclusion that knowledge of a right to refuse is an indispensable element of a
valid consent. The considerations that
informed the Court's holding in Miranda are simply inapplicable in the present
case. In Miranda the Court found that the techniques of police
questioning and the nature of custodial surroundings produce an inherently
coercive situation. The Court concluded
that '(u)nless adequate protective devices are employed to dispel the
compulsion inherent in custodial surroundings, no statement obtained from the
defendant can truly be the product of his free choice.' 384
As noted above, supra, n. 29, the present case does not require a determination of what effect custodial conditions might have on a search authorized solely by an alleged consent.
Mr. Justice White once answered a
'The Court may be concerned with a
narrower matter: the unknowing defendant who responds to police questioning
because he mistakenly believes that he must and that his admissions will not be
used against him. . . . The failure to
inform an accused that he need not answer and that his answers may be used
against him is very relevant indeed to whether the disclosures are compelled.
Cases in this Court, to say the least, have never placed a premium on ignorance
of constitutional rights. If an accused
is told he must answer and does not know better, it would be very doubtful that
the resulting admissions could be used against him. When the accused has not been informed of his
rights at all the Court characteristically and properly looks very closely at
the surrounding circumstances.' Escobedo
It is so ordered.
Judgment of Court of Appeals reversed.
Mr. Justice BLACKMUN, concurring.
I join the Court's opinion and its judgment.
At the time Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969), was decided, I, as a member of the Court of Appeals (but not of its panel) whose order was there reversed, found myself in agreement with the views expressed by Mr. Justice Harlan, writing for himself and my Brother Stewart in dissent.
Mr. Justice POWELL, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, concurring.
While I join the opinion of the Court, it does not address what seems to me the overriding issue briefed and argued in this case: the extent to which federal habeas corpus should be available to a state prisoner seeking to exclude evidence from an allegedly unlawful search and seizure. I would hold that federal collateral review of a state prisoner's Fourth Amendment claims‑‑ claims which rarely bear on innocence‑‑should be confined solely to the question of whether the petitioner was provided a fair opportunity to raise and have adjudicated the question in state courts. In view of the importance of this issue to our system of criminal justice, I think it appropriate to express my views.
'The denial of Fourth Amendment
protection against unreasonable searches and seizures, the Government's argument
runs, is of a different nature from denials of other constitutional rights
which we have held subject to collateral attack by federal prisoners. For unlike a claim of denial of effective
counsel or of violation of the privilege against self‑incrimination, as
examples, a claim of illegal search and seizure does not impugn the integrity
of the fact‑ finding process or challenge evidence as inherently unreliable;
rather, the exclusion of illegally seized evidence is simply a prophylatic
device intended generally to deter Fourth Amendment violations by law
In rejecting this rationale, the Court noted that under prior decisions 'the federal habeas remedy extends to state prisoners alleging that unconstitutionally obtained evidence was admitted against them at trial.'and concluded that there was no basis for restricting 'access by federal prisoners with illegal search‑and‑seizure claims to federal collateral remedies, while placing no similar restriction on access by state prisoners.'
The federal review involved in this Fourth
Amendment case goes well beyond the traditional purpose of the writ of habeas
corpus. Much of the present perception of habeas corpus stems from a
revisionist view of the historic function that writ was meant to perform. The critical historical argument has focused
on the nature of the writ at the time of its incorporation in our Constitution
and at the time of the Habeas Corpus Act of 1867, the direct ancestor of
contemporary habeas corpus statutes. In Fay v. Noia, 372
'At the time the privilege of the writ was written into the Federal Constitution it was settled that the writ lay to test any restraint contrary to fundamental law, which in England stemmed ultimately from Magna Charta but in this country was embodied in the written Constitution. Congress in 1867 sought to provide a federal forum for state prisoners having constitutional defenses by extending the habeas corpus powers of the federal courts to their constitutional maximum. Obedient to this purpose, we have consistently held that federal court jurisdiction is conferred by the allegation of an unconstitutional restraint and is not defeated by anything that may occur in the state court proceedings.'
If this were a correct interpretation of the relevant history, the present wide scope accorded the writ would have arguable support, despite the impressive reasons to the contrary. But recent scholarship has cast grave doubt on Fay's version of the writ's historic function.
It has been established that both the Framers of the Constitution and the authors of the 1867 Act expected that the scope of habeas corpus would be determined with reference to the writ's historic, common‑law development. Mr. Chief Justice Marshall early referred to the common‑law conception of the writ in determining its constitutional and statutory scope, Ex parte Bollman, 4 Cranch 75, 93‑‑94, 2 L.Ed. 554 (1807); Ex parte Watkins, 3 Pet. 193, 201‑‑202, 7 L.Ed. 650 (1830), and Professor Oaks has noted that 'when the 1867 Congress provided that persons restrained of their liberty in violation of the Constitution could obtain a writ of habeas corpus from a federal court, it undoubtedly intended‑‑except to the extent the legislation provided otherwise‑‑to incorporate the common‑law uses and functions of this remedy.'
It thus becomes important to understand exactly what was the common‑law scope of the writ both when embraced by our Constitution and incorporated into the Habeas Corpus Act of 1867. Two respected scholars have recently explored precisely these questions.Their efforts have been both meticulous and revealing. Their conclusions differ significantly from those of the Court in Fay v. Noia, that habeas corpus traditionally has been available 'to remedy any kind of governmental restraint contrary to fundamental law.' 372
The considerable evidence marshaled by these scholars need not be restated here. Professor Oaks makes a convincing case that under the common law of habeas corpus at the time of the adoption of the Constitution, 'once a person had been convicted by a superior court or general jurisdiction, a court disposing of a habeas corpus petition could not go behind the conviction for any purpose other than to verify the formal jurisdiction of the committing court.' Certainly that was what Mr. Chief Justice Marshall understood when he stated:
Much, of course, has transpired since that
first Habeas Corpus Act. See Fay v. Noia, 372
Recent decisions, however, have tended to
depreciate the importance of the finality of prior judgments in criminal cases.
Habeas corpus indeed should provide the added
assurance for a free society that no innocent man suffers an unconstitutional
loss of liberty. The Court in Fay
described habeas corpus as a remedy for 'whatever society deems to be
intolerable restraints,' and recognized that those to whom the writ should be
granted 'are persons whom society has grievously wronged and for whom belated
liberation is little enough compensation.'
I am aware that history reveals no exact tie of the writ of habeas corpus to a constitutional claim relating to innocence or guilt. Traditionally, the writ was unavailable even for many constitutional pleas grounded on a claimant's innocence, while many contemporary proponents of expanded employment of the writ would permit its issuance for one whose deserved confinement was never in doubt. We are now faced, however, with the task of accommodating the historic respect for the finality of the judgment of a committing court with recent Court expansions of the role of the writ. This accommodation can best be achieved, with due regard to all of the values implicated, by recourse to the central reason for habeas corpus: the affording of means, through an extraordinary writ, of redressing an unjust incarceration.
Federal habeas review of search and seizure claims is rarely relevant to this reason. Prisoners raising Fourth Amendment claims collaterally usually are quite justly detained. The evidence obtained from searches and seizures is often 'the clearest proof of guilt' with a very high content of reliability. Rarely is there any contention that the search rendered the evidence unreliable or that its means cast doubt upon the prisoner's guilt.The words of Mr. Justice Black drive home the point:
'A claim of illegal search and seizure
under the Fourth Amendment is crucially different from many other
constitutional rights; ordinarily the evidence seized can in no way have been
rendered untrustworthy by the means of its seizure and indeed often this
evidence alone establishes beyond virtually any shadow of a doubt that the
defendant is guilty.' Kaufman v.
This unprecedented extension of habeas corpus far beyond its historic bounds and in disregard of the writ's central purpose is an anomaly in our system sought to be justified only by extrinsic reasons which will be addressed in Part V of this opinion. But first let us look at the costs of this anomaly‑‑ costs in terms of serious intrusions on other societal values. It is these other values that have been subordinated‑‑not to further justice on behalf of arguably innocent persons but all too often to serve mechanistic rules quite unrelated to justice in a particular case. Nor are these neglected values unimportant to justice in the broadest sense or to our system of Government. They include (i) the most effective utilization of limited judicial resources, (ii) the necessity of finality in criminal trials, (iii) the minimization of friction between our federal and state systems of justice, and (iv) the maintenance of the constitutional balance upon which the doctrine of federalism is founded.
When raised on federal habeas, a claim
generally has been considered by two or more tiers of state courts. It is the solemn duty of these courts, no
less than federal ones, to safeguard personal liberties and consider federal
claims in accord with federal law. The
task which federal courts are asked to perform on habeas is thus most often one
that has or should have been done before.
The presumption that 'if a job can be well done once, it sould not be
done twice' is sound and one calculated to utilize best 'the intellectual,
moral, and political resources involved in the legal system.'
The conventional justifications for extending federal habeas corpus to afford collateral review of state court judgments were summarized in Kaufman v. United States, 394 U.S. 217, 225‑‑226, 89 S.Ct. 1068, 1073‑‑ 1074, 22 L.Ed.2d 227, as follows:
'(T)he necessity that federal courts have the 'last say' with respect to questions of federal law, the inadequacy of state procedures to raise and preserve federal claims, the concern that state judges may be unsympathetic to federally created rights, the institutional constraints on the exercise of this Court's certiorari jurisdiction to review state convictions . . ..' Each of these justifications has merit in certain situations, although the asserted inadequacy of state procedures and unsympathetic attitude of state judges are far less realistic grounds of concern than in years past. The issue, fundamentally, is one of perspective and a rational balancing. The appropriateness of federal collateral review is evident in many instances. But is hardly follows that, in order to promote the ends of individual justice which are the foremost concerns of the writ, it is necessary to extend the scope of habeas review indiscriminately. This is especially true with respect to federal review of Fourth Amendment claims with the consequent denigration of other important societal values and interests.
The present scope of federal habeas corpus also have worked to defeat the interest of society in a rational point of termination for criminal litigation. Professor Amsterdam has identified some of the finality interests at stake in collateral proceedings:
'They involve (a) duplication of judicial effort; (b) delay in setting the criminal proceeding at rest; (c) inconvenience and possibly danger in transporting a prisoner to the sentencing court for hearing; (d) postponed litigation of fact, hence litigation which will often be less reliable in reproducing the facts (i) respecting the postconviction claim itself, and (ii) respecting the issue of a guilt if the collateral attack succeeds in a form which allows retrial. . . .'
He concluded that:
'(I)n combination, these finality considerations amount to a more or less persuasive argument against the cognizability of any particular collateral claim, the strength of the argument depending upon the nature of the claim, the manner of its treatment (if any) in the conviction proceedings, and the circumstances under which collateral litigation must be had.'
Noeffective judicial system can afford to concede the continuing theoretical possibility that there is error in every trial and that every incarceration is unfounded. At some point the law must convey to those in custody that a wrong has been committed, that consequent punishment has been imposed, that one should no longer look back with the view to resurrecting every imaginable basis for further litigation but rather should look forward to rehabilitation and to becoming a constructive citizen.
Nowhere should the
merit of this view be more self‑evident than in collateral attack on an
allegedly unlawful search and seizure, where the petitioner often asks society
to redetermine a claim with no relationship at all to the justness of his
confinement. Professor Amsterdam has
noted that 'for reasons which are common to all search and seizure claims,' he
'would hold even a slight finality interest sufficient to deny the collateral
remedy.' [FN18] But, in fact, a strong finality interest militates against
allowing collateral review of search‑and‑seizure claims. Apart from the duplication of resources
inherent in most habeas corpus proceedings, the validity of a search‑and‑seizure
claim frequently hinges on a complex matrix of events which may be difficult
indeed for the habeas court to disinter especially where, as often happens, the
trial occurred years before the collateral attack and the state record is
Finally, the present scope of habeas corpus
tends to undermine the values inherent in our federal system of
government. To the extent that every
state criminal judgment is to be subject indefinitely to broad and repetitive
federal oversight, we render the actions of state courts a serious disrespect
in derogation of the constitutional balance between the two systems. The
present expansive scope of federal habeas review has prompted no small friction
between state and federal judiciaries.
Justice Paul C. Reardon of the
I could imagine nothing more
subversive of a judge's sense of responsibility, of the inner subjective
conscientiousness which is so essential a part of the difficult and subtle art
of judging well, than an indiscriminate acceptance of the notion that
all the shots will always be called by someone else.'
In my view, this Court has few more pressing responsibilities than to restore the mutual respect and the balanced sharing of responsibility between the state and federal courts which our tradition and the Constitution itself so wisely contemplate. This can be accomplished without retreat from our inherited insistence that the writ of habeas corpus retain its full vitality as a means of redressing injustice.
This case involves only a relatively narrow aspect of the appropriate reach of habeas corpus. The specific issue before us, and the only one that need be decided at this time, is the extent to which a state prisoner may obtain federal habeas corpus review of a Fourth Amendment claim. Whatever may be formulated as a more comprehensive answer to the important broader issues (whether by clarifying legislation or in subsequent decisions), Mr. Justice Black has suggested what seems to me to be the appropriate threshold requirement in a case of this kind:
I would always require that the
convicted defendant raise the kind of constitutional claim that casts some
shadow of a doubt on his guilt.' Kaufman v.
In a perceptive analysis, Judge Henry J. Friendly expressed a similar view. He would draw the line against habeas corpus review in the absence of a 'colorable claim of innocence':
'(W)ith a few important exceptions, convictions should be subject to collateral attack only when the prisoner supplements his constitutional plea with a colorable claim of innocence.'
Where there is no constitutional claim bearing on innocence, the inquiry of the federal court on habeas review of a state prisoner's Fourth Amendment claim should be confined solely to the question whether the defendant was provided a fair opportunity in the state courts to raise and have adjudicated the Fourth Amendment claim. Limiting the scope of habeas review in this manner would reduce the role of the federal courts in determining the merits of constitutional claims with no relation to a petitioner's innocence and contribute to the restoration of recently neglected values to their proper place in our criminal justice system.
The importance of the values referred to above is not questioned. What, then, is the reason which has prompted this Court in recent decisions to extend habeas corpus to Fourth Amendment claims largely in disregard of its history as well as these values? In addressing Mr. Justice Black's dissenting view that constitutional claims raised collaterally should be relevant to the petitioner's innocence, the majority in Kaufman noted:
'It (Mr. Justice Black's view) brings into question
the propriety of the exclusionary rule itself. The application of that rule is
not made to turn on the existence
of a possibility of innocence; rather, exclusion of illegally obtained evidence
is deemed necessary to protect the right of all citizens, not merely the
citizen on trial, to be secure against unreasonable searches and seizures.' 394
The exclusionary rule has occasioned much criticism, largely on grounds that its application permits guilty defendants to go free and law‑breaking officers to go unpunished. The oft‑asserted reason for the rule is to deter illegal searches and seizures by the police, Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960); Mapp v. Ohio, 367 U.S. 643, 656, 81 S.Ct. 1684, 1692, 6 L.Ed.2d 1081 (1961); Linkletter v. Walker, 381 U.S. 618, 636, 85 S.Ct. 1731, 1741, 14 L.Ed.2d 601 (1965); Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968). The efficacy of this deterrent function, however, has been brought into serious question by recent empirical research. Whatever the rule's merits on an initial trial and appeal ‑‑a question not in issue here‑‑the case for collateral application of the rule is an anemic one. On collateral attack, the exclusionary rule retains its major liabilities while the asserted benefit of the rule dissolves. For whatever deterrent function the rule may serve when applied on trial and appeal becomes greatly attenuated when, months or years afterward, the claim surfaces for collateral review. The impermissible conduct has long since occurred, and the belated wrist slap of state police by federal courts harms no one but society on whom the convicted criminal is newly released.
Searches and seizures are an opaque area of the law: flagrant Fourth Amendment abuses will rarely escape detection but there is a vast twilight zone with respect to which one Justice has stated that our own 'decisions . . . are hardly notable for their predictability,' and another had observed that this Court was "bifurcating elements too infinitesimal to be split." Serious Fourth Amendment infractions can be dealt with by state judges or by this Court on direct review. But the nonfrivolous Fourth Amendment claims that survive for collateral attack are most likely to be in this grey, twilight area, where the law is difficult for courts to apply, let alone for the policeman on the beat to understand. This is precisely the type of case where the deterrent function of the exclusionary rule is least efficacious, and where there is the least justification for freeing a duly convicted defendant.
Our decisions have not encouraged the thought
that what may be an appropriate constitutional policy in one context
automatically becomes such for all times and all seasons. In Linkletter v. Walker, 381
'weigh the merits and demerits in each
case by looking to the prior history of the rule in question, its purpose and
effect, and whether retrospective operation will further or retard its
operation. We believe that this approach
is particularly correct with reference to the Fourth Amendment's prohibitions
as to unreasonable searches and seizures.'
Such a pragmatic approach compelled the Court to conclude that the rule's deterrent function would not be advanced by its retrospective application:
'The misconduct of the police prior to
Mapp has already occurred and will not be corrected by releasing the prisoners
involved. . . . Finally, the ruptured
privacy of the victims' homes and effects cannot be restored. Reparation comes too late.'
The final inquiry is whether the above position conforms to 28 U.S.C. s 2254(a) which provides:
'The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.'
The trend in recent years has witnessed a proliferation of constitutional rights, 'a vast expansion of the claims of error in criminal cases for which a resourceful defense lawyer can find a constitutional basis.' Federal habeas jurisdiction has been extended far beyond anyone's expectation or intendment when the concept of 'custody in violation of the Constitution,' now in s 2254(a), first appeared in federal law over a century ago.
Mr. Justice Black was clearly correct in
noting that 'not every conviction based in part on a denial of a constitutional
right is subject to attack by habeas corpus or s 2255 proceedings after a
conviction has become final.' Kaufman, 394
There is no indication that Congress intended to wipe out this distinction. Indeed, the broad purpose of the 1966 amendments pointed in the opposite direction. The report of the Senate Judiciary Committee notes that:
'Although only a small number of these
(habeas) applications have been found meritorious, the applications in
their totality have imposed a heavy burden on the Federal courts. . . . The bill seeks to alleviate the unnecessary
burden by introducing a greater degree of finality of judgments in habeas
corpus proceedings.' S.Rep.No. 1797,
89th Cong., 2d Sess., 2 (1966)
'While in only a small number of these applications have the petitioners been successful, they nevertheless have not only imposed an unnecessary burden on the work of the Federal courts but have also greatly interfered with the procedures and processes of the State courts by delaying, in many cases, the proper enforcement of their judgments.' H.R.Rep.No. 1892, 89th Cong., 2d Sess., 5 (1966).
This most recent congressional expression on the scope of federal habeas corpus reflected the sentiment, shared alike by judges and legislators, that the writ has overrun its historical banks to inundate the dockets of federal courts and denigrate the role of state courts. Though Congress did not address the precise question at hand, nothing in s 2254(a), the state of the law at the time of its adoption, or the historical uses of the language 'custody in violation of the Constitution' from which s 2254(a) is derived, compels a holding that rulings of state courts on claims of unlawful search and seizure must be reviewed and redetermined in collateral proceedings.
Perhaps no single development of the criminal law has had consequences so profound as the escalating use, over the past two decades, of federal habeas corpus to reopen and readjudicate state criminal judgments. I have commented in Part IV above on the far‑reaching consequences: the burden on the system, in terms of demands on the courts, prosecutors, defense attorneys, and other personnel and facilities; the absence of efficiency and finality in the criminal process, frustrating both the deterrent function of the law and the effectiveness of rehabilitation; the undue subordination of state courts, with the resulting exacerbation of state‑federal relations; and the subtle erosion of the doctrine of federalism itself. Perhaps the single most disquieting consequence of open‑ended habeas review is reflected in the prescience of Mr. Justice Jackson's warning that '(i)t must prejudice the occasional meritorious application to be buried in a flood of worthless ones.'
If these consequences flowed from the safeguarding of constitutional claims of innocence they should, of course, be accepted as a tolerable price to pay for cherished standards of justice at the same time that efforts are pursued to find more rational procedures. Yet, as illustrated by the case before us today, the question on habeas corpus is too rerely whether the prisoner was innocent of the crime for which he was convicted and too frequently whether some evidence of undoubted probative value has been admitted in violation of an exclusionary rule ritualistically applied without due regard to whether it has the slightest likelihood of achieving its avowed prophylactic purpose.
It is this paradox of a system, which so often seems to subordinate substance to form, that increasingly provokes criticism and lack of confidence. Indeed, it is difficult to explain why a system of criminal justice deserves respect which allows repetitive reviews of convictions long since held to have been final at the end of the normal process of trial and appeared where the basis for re‑examination is not even that the convicted defendant was innocent. There has been a halo about the 'Great Writ' that no one would wish to dim. Yet one must wonder whether the stretching of its use far beyond any justifiable purpose will not in the end weaken rather than strengthen the writ's vitality.
Mr. Justice DOUGLAS, dissenting.
I agree with the Court of Appeals that 'verbal assent' to a search is not enough, that the fact that consent was given to the search does not imply that the suspect knew that the alternative of a refusal existed. 448 F.2d 699, 700. As that court stated:
'(U)nder many circumstances a
reasonable person might read an officer's 'May I' as the courteous expression
of a demand backed by force of law.'
Mr. Justice BRENNAN, dissenting.
The Fourth Amendment specifically guarantees '(t)he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures . . ..' We have consistently held that governmental searches conducted pursuant to a validly obtained warrant or reasonably incident to a valid arrest do not violate this guarantee. Here, however, as the Court itself recognizes, no search warrant was obtained and the State does not even suggest 'that there was probable cause to search the vehicle or that the search was incident to a valid arrest of any of the occupants.' Ante, at 2048. As a result, the search of the vehicle can be justified solely on the ground that the owner's brother gave his consent‑‑that is, that he waived his Fourth Amendment right 'to be secure' against an otherwise 'unreasonable' search. The Court holds today that an individual can effectively waive this right even though he is totally ignorant of the fact that, in the absence of his consent, such invasions of his privacy would be constitutionally prohibited. It wholly escapes me how our citizens can meaningfully be said to have waived something as precious as a constitutional guarantee without ever being aware of its existence. In my view, the Court's conclusion is supported neither by 'linguistics,' nor by 'epistemology,' nor, indeed, by 'common sense.' I respectfully dissent.
Mr. Justice MARSHALL, dissenting.
Several years ago, Mr. Justice Stewart
reminded us that '(t)he Constitution guarantees . . . a society of free
choice. Such a society presupposes the
capacity of its members to choose.' Ginsberg v.
I believe that the Court misstates the true issue in this case. That issue is not, as the Court suggests whether the police overbore Alcala's will in eliciting his consent, but rather, whether a simple statement of assent to search, without more, should be sufficient to permit the police to search and thus act as a relinquishment of Alcala's constitutional right to exclude the police. This Court has always scrutinized with great care claims that a person has forgone the opportunity to assert constitutional rights. See, e.g., Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); D. H. Overmyer Co., Inc. v. Frick Co., 405 U.S. 174, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). I see no reason to give the claim that a person consented to a search any less rigorous scrutiny. Every case in this Court involving this kind of search has heretofore spoken of consent as a waiver. See, e.g., Amos v.
To begin, it is important to understand that the opinion of the Court is misleading in its treatment of the issue here in three ways. First, it derives its criterion for determining when a verbal statement of assent to search operates as a relinquishment of a person's right to preclude entry from a justification of consent searches that is inconsistent with our treatment in earlier cases of exceptions to the requirements of the Fourth Amendment, and that is not responsive to the unique nature of the consent‑ search exception. Second, it applies a standard of voluntariness that was developed in a very different context, where the standard was based on policies different from those involved in this case. Third, it mischaracterizes our prior cases involving consent searches.
The Court assumes that the issue in this case is: what are the standards by which courts are to determine that consent is voluntarily given? It then imports into the law of search and seizure standards developed to decide entirely different questions about coerced confessions.
The Fifth Amendment, in terms, provides that no person 'shall be compelled in any criminal case to be a witness against himself.' Nor is the interest protected by the Due Process Clause of the Fourteenth Amendment any different. The inquiry in a case where a confession is challenged as having been elicited in an unconstitutional manner is, therefore, whether the behavior of the police amounted to compulsion of the defendant. Because of the nature of the right to be free of compulsion, it would be pointless to ask whether a defendant knew of it before he made a statement; no sane person would knowingly relinquish a right to be free of compulsion. Thus, the questions of compulsion and of violation of the right itself are inextricably intertwined. The cases involving coerced confessions, therefore, pass over the question of knowledge of that right as irrelevant, and turn directly to the question of compulsion.
In contrast, this case deals not with 'coercion,' but with 'consent,' a subtly different concept to which different standards have been applied in the past. Freedom from coercion is a substantive right, guaranteed by the Fifth and Fourteenth Amendments. Consent, however, is a mechanism by which substantive requirements, otherwise applicable, are avoided. In the context of the Fourth Amendment, the relevant substantive requirements are that searches be conducted only after evidence justifying them has been submitted to an impartial magistrate for a determination of probable cause. There are, of course, exceptions to these requirements based on a variety of exigent circumstances that make it impractical to invalidate a search simply because the police failed to get a warrant. But none of the exceptions relating to the overriding needs of law enforcement are applicable when a search is justified solely by consent. On the contrary, the needs of law enforcement are significantly more attenuated, for probable cause to search may be lacking but a search permitted if the subject's consent has been obtained. Thus, consent searches are permitted, not because such an exception to the requirements of probable cause and warrant is essential to proper law enforcement, but because we permit our citizens to choose whether or not they wish to exercise their constitutional rights. Our prior decisions simply do not support the view that a meaningful choice has been made solely because no coercion was brought to bear on the subject.
In Chimel, we explained that searches incident to arrest were justified by the need to protect officers from attacks by the persons they have arrested, and by the need to assure that easily destructible evidence in the reach of the suspect will not be destroyed. 395
For example, in Bumper v.
That case makes it clear that police officers may not courteously order the subject of a search simply to stand aside while the officers carry out a search they have settled on. Yet there would be no coercion or brutality in giving that order. No interests that the Court today recognizes would be damaged in such a search. Thus, all the police must do is conduct what will inevitably be a charade of asking for consent. If they display any firmness at all, a verbal expression of assent will undoubtedly be forthcoming. I cannot believe that the protections of the Constitution mean so little.
My approach to the case is straight‑forward and, to me, obviously required by the notion of consent as a relinquishment of Fourth Amendment rights. I am at a loss to understand why consent 'cannot be taken literally to mean a 'knowing' choice.' Ante, at 2046. In fact, I have difficulty in comprehending how a decision made without knowledge of available alternatives can be treated as a choice at all.
If consent to search means that a person has
chosen to forgo his right to exclude the police from the place they seek to
search, it follows that his consent cannot be considered a meaningful
choice unless he knew that he could in fact exclude the police. The Court appears, however, to reject even
the modest proposition that, if the subject of a search convinces the trier of
fact that he did not know of his right to refuse assent to a police request for
permission to search, the search must be held unconstitutional. For it says only that 'knowledge of the right
to refuse consent is one factor to be taken into account.' Ante, at 2048. I find this incomprehensible. I can think of no other situation in which we
would say that a person agreed to some course of action if he convinced us that
he did not know that there was some other course he might have pursued. I would therefore hold, at a minimum, that
the prosecution may not rely on a purported consent to search if the subject of
the search did not know that he could refuse to give consent. That, I think, is the import of Bumper v.
If one accepts this view, the question then is a simple one: must the Government show that the subject knew of his rights, or must the subject show that he lacked such knowledge?
I think that any fair allocation of the burden would require that it be placed on the prosecution. On this question, the Court indulges in what might be called the 'straw man' method of adjudication. The Court responds to this suggestion by overinflating the burden. And, when it is suggested that the prosecution's burden of proof could be easily satisfied if the police informed the subject of his rights, the Court responds by refusing to require the police to make a 'detailed' inquiry. Ante, at 2057. If the Court candidly faced the real question of allocating the burden of proof, neither of these maneuvers would be available to it.
If the burden is placed on the defendant, all the subject can do is to testify that he did not know of his rights. And I doubt that many trial judges will find for the defendant simply on the basis of that testimony. Precisely because the evidence is very hard to come by, courts have traditionally been reluctant to require a party to prove negatives such as the lack of knowledge. See, e.g., 9 J. Wigmore, Evidence 274 (3d ed. 1940); F. James, Civil Procedure s 7.8 (1965); E. Morgan, Some Problems of Proof Under the Anglo‑American System of Litigation 75‑‑76 (1956).
In contrast, there are several ways by which the subject's knowledge of his rights may be shown. The subject may affirmatively demonstrate such knowledge by his responses at the time the search took place, as in United States v. Curiale, 414 F.2d 744 (CA2 1969). Where, as in this case, the person giving consent is someone other than the defendant, the prosecution may require him to testify under oath. Denials of knowledge may be disproved by establishing that the subject had, in the recent past, demonstrated his knowledge of his rights, for example, by refusing entry when it was requested by the police. The prior experience or training of the subject might in some cases support an inference that he knew of his right to exclude the police.
The burden on the prosecutor would disappear, of course, if the police, at the time they requested consent to search, also told the subject that he had a right to refuse consent and that his decision to refuse would be respected. The Court's assertions to the contrary notwithstanding, there is nothing impractical about this method of satisfying the prosecution's burden of proof. It must be emphasized that the decision about informing the subject of his rights would lie with the officers seeking consent. If they believed that providing such information would impede their investigation, they might simply ask for consent, taking the risk that at some later date the prosecutor would be unable to prove that the subject knew of his rights or that some other basis for the search existed.
The Court contends that if an officer paused
to inform the subject of his rights, the informality of the exchange would be
destroyed. I doubt that a simple statement by an officer of an individual's
right to refuse consent would do much to alter the informality of the exchange,
except to alert the subject to a fact that he surely is entitled to know. It is not without significance that for many
years the agents of the Federal Bureau of Investigation have routinely informed
subjects of their right to refuse consent, when they request consent to
search. Note, Consent Searches: A
Reappraisal After Miranda v.
I must conclude with some reluctance that when the Court speaks of practicality, what it really is talking of is the continued ability of the police to capitalize on the ignorance of citizens so as to accomplish by subterfuge what they could not achieve by relying only on the knowing relinquishment of constitutional rights. Of course it would be 'practical' for the police to ignore the commands of the Fourth Amendment, if by practicality we mean that more criminals will be apprehended, even though the constitutional rights of innocent people also go by the board. But such a practical advantage is achieved only at the cost of permitting the police to disregard the limitations that the Constitution places on their behavior, a cost that a constitutional democracy cannot long absorb.
I find nothing in the opinion of the Court to dispel my belief that, in such a case, as the Court of Appeals for the Ninth Circuit said, '(u)nder many circumstances a reasonable person might read an officer's 'May I' as the courteous expression of a demand backed by force of law.' 448 F.2d, at 701. Most cases, in my view, are akin to Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968): consent is ordinarily given as acquiescence in an implicit claim of authority to search. Permitting searches in such circumstances, without any assurance at all that the subject of the search knew that, by his consent, he was relinquishing his constitutional rights, is something that I cannot believe is sanctioned by the Constitution.
The proper resolution of this case turns, I believe, on a realistic assessment of the nature of the interchange between citizens and the police, and of the practical import of allocating the burden of proof in one way rather than another. The Court seeks to escape such assessments by escalating its rhetoric to unwarranted heights, but no matter how forceful the adjectives the Court uses, it cannot avoid being judged by how well its image of these interchanges accords with reality. Although the Court says without real elaboration that it 'cannot agree,' ante, at 2058, the holding today confines the protection of the Fourth Amendment against searches conducted without probable cause to the sophisticated, the knowledgeable, and, I might add, the few. In the final analysis, the Court now sanctions a game of blindman's buff, in which the police always have the upper hand, for the sake of nothing more than the convenience of the police. But the guarantees of the Fourth Amendment were never intended to shrink before such an ephemeral and changeable interest. The Framers of the Fourth Amendment struck the balance against this sort of convenience and in favor of certain basic civil rights. It is not for this Court to restrike that balance because of its own views of the needs of law enforcement officers. I fear that that is the effect of the Court's decision today.
It is regrettable that the obsession with validating searches like that conducted in this case, so evident in the Court's hyperbole, has obscured the Court's vision of how the Fourth Amendment was designed to govern the relationship between police and citizen in our society. I believe that experience and careful reflection show how narrow and inaccurate that vision is, and I respectfully dissent.