Schneckloth v. Bustamonte, 412
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 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
A
Those
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.,
Haley v.
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.
B
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.
In
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
activity.
But the
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.
C
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.
Richardson, 397
'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.
D
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
similar argument:
'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
v.
E
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.
I
'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
enforcement officers.'
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.'
II
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.'
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
III
Recent decisions, however, have tended to
depreciate the importance of the finality of prior judgments in criminal cases.
Kaufman, 394
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.
IV
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.'
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
thinly sketched.
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.'
VI
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.
VII
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
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.
Miranda v.
B
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.
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.
III
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.