*1 SCHNECKLOTH, CONSERVATION CENTER v. BUSTAMONTE

SUPERINTENDENT 29, May Argued 1972 Decided No. 71-732. October Burger, J., opinion Court, which delivered the Stewart, joined. JJ., RehNquist, J., and White, BlackmuN, Powell, C. and J., post, J., concurring p. 249. Powell, opinion, filed a Blacicmun, J.,C. RehNquist, Burger, concurring opinion, filed in which J., J., post, p. 275, BrenNAN, post, J., joined, p. 250. Douglas, dissenting opinions. J., post, p. post, p. 276, filed Marshall, Attorney Deputy Granucci, General Robert R. argued petitioner. him cause for With California, Younger, Attorney General, J. Evelle the briefs were Attorney Ashby, General, L. Herbert Chief Assistant Attorney Maier, General, Doris H. Assistant and Ed- Deputy Attorney O’Brien, ward P. General by appointment Tobisman, the Court, Stuart P. a brief for 1062, argued the cause filed * respondent pro hac vice *2 opinion delivered Justice Stewart Mr. Court. Fourteenth is well settled under the Fourth and

It conducted without a warrant Amendments that search se “per . . . probable upon issued cause unreasonable well- subject only to a few established and specifically States, Katz United exceptions.” delineated v. U. S. Coolidge New Hampshire, 357; 443, v. 403 U. S. 347, Chambers It Maroney, 454-455; 51. U. S. is equally well settled estab- specifically that one exceptions requirements lished to the of both a war- and probable rant cause is a search that is conducted States, to consent. Davis v. United pursuant U. 582, 593-594; Zap v. United The constitutional in question present case concerns the definition in of “consent” this Fourth and Fourteenth Amendment context.

I respondent brought trial in a California upon court a charge intent possessing check with to defraud.1 He moved suppress introduction certain material as evidence him against on the ground had acquired material been through an uncon- stitutional and In response search seizure. mo- tion, trial judge evidentiary conducted an hearing Scott, Attorney General, *William Zagel J. and B. James Jayne Attorneys General, Assistant Carr, A. filed a brief for the State of urging Illinois et al. as amici curiae reversal. Wulf, Melvin Rosen, L. J. Gora, Wirin, Joel M. A. L. Sanford Okrand, Sperber

Fred R. filed brief for the American Lawrence Civil Liberties Union et al. urging as amici curiae affirmance. 1Cal. Penal Code 475a. § question the material it was established where following under by the State acquired had been circumstances: California, patrol Sunnyvale, on routine

While James Police Officer morning, 2:40 in the approximately that one when he observed automobile stopped Rand out. Six burned plate light were headlight its license respondent, and the Alcala in the vehicle. Joe men were with Joe front seat in the were Bustamonte, Robert were seated men Three older the driver. Gonzales, question, policeman's response to the When, the rear. license, Officer a driver’s not produce could Gonzales any evidence any five had if of thé other Rand asked *3 and he license, Only produced Alcala identification. After the six his brother’s. the car was explained that at the officer’s car stepped out the occupants had arrived, had policemen additional and after two request car. Alcala he could search the Officer Rand asked if Prior to the search go ahead.” replied, “Sure, Alcala and, according to no arrest one was threatened with very it all Rand’s uncontradicted “was Officer testimony, that Alcala at this time.” testified congenial Gonzales in actually helped open- car, the search the compartment. the trunk and In Gonzales’ ing glove police [Alcala], officer words: asked Joe he “[T]he goes, open?’ 'Does the trunk And Joe 'Yes.’ He said, to got keys opened up went the car and trunk.” up seat, Wadded under the left rear previously officers found three checks that had been stolen from car wash. judge

The trial denied the motion to suppress, in question the checks were admitted evidence ar Bustamonte’s trial. On basis this and other evi- convicted, dence was he and the Ap- California Court of peal Appellate for the First District affirmed the convic- In App. Rptr. agreeing 2d Cal.

tion. 270 Cal. constitutionally were valid, that the search and seizure applied court earlier formulated appellate standard opinion by Supreme Court of California in Traynor: a particular then Justice “Whether in case an apparent voluntarily consent or given fact was express implied to an of author- submission assertion is a ity, question light fact be determined Michael, People all the circumstances.” Cal. 2d 751, 753, 290 P. 2d 852, appellate 854. The court-found prosecution the instant case the met the neces- “[i]n sary burden of consent . showing . . since there were clearly circumstances from which the trial court could freely ascertain that consent had been given without coercion or to authority. submission officer only Not Rand, but the driver of Gonzales, automobile, testi- fied that Alcala’s assent the search of his brother’s automobile was even freely, casually given. At the time request to search the automobile the atmosphere, according Rand, was ‘congenial’ and there had been no discussion of any crime. As noted, Gonzales said attempted Alcala even to aid in the search.” 270 Cal. App. 2d, 652, 76 Cal. Rptr., at 20. The California Supreme Court denied review.2

Thereafter, respondent the sought a writ of habeas corpus in a federal district court. It was denied.3 On the appeal, Appeals Court of for the rely- Ninth Circuit, ing on its prior Ciprés decisions in v. States, United 343 F. 95, 2d and Schoepflin States, v. United 391 F. 2d 390, set aside the District Court’s order. 448 F. 2d 699. appellate The court reasoned that a consent was a waiver a person’s Fourth and Fourteenth Amendment rights, and that the State was under an obligation to demon- 2The order the Supreme California unreported. Court is

3The decision of the District Court unreported. is 222 uncoerced, but had been that the consent only not

strate, that it understanding given been it had that could Consent effectively withheld. freely could be solely from the absence held, the court found, not be Since assent. expression a verbal coercion had Alcala not determined had District Court and that have been withheld known that his consent could searched, vehicle to have his refused he could have the writ denying the order Appeals vacated Court We proceedings. further the case for remanded Fourth and to determine whether granted certiorari showing thought require Amendments Fourteenth 953. necessary by Appeals. Court of II what the outset important It is it clear at to make concedes respondent in this is involved case. that a to a valid consent pursuant search conducted States, In Katz v. United constitutionally permissible. Louisiana, Vale v. S., 358, recently 389 and more U. at 399 a authorized 30, 35, U. S. we search recognized See also Davis v. United wholly consent valid. States, States, 593-594; Zap S., 328 United U. at v. S., similarly U. 630.4 And concedes that State prosecutor rely upon justify seeks to consent to “[w]hen the lawfulness of he search, proving has burden of was, the consent in fact, freely and voluntarily Carolina, given1.” Bumper North v. 391 U. States, also Johnson v. United Amos

See 10; U. S. States, United 255 U. S. 313. expect system "One would a hard-headed like common law recognize exceptions even comprehensive most principle safeguarding liberty. prohibition This is true of the of all

searches and seizures unreasonable ju unless authorized appropriately supported.” dicial warrant Davis v. United J., (Frankfurter, U. S. dissenting).

223 is what precise question case, then, The must this prosecution prove to demonstrate that a consent was “voluntarily” given. question And there is upon that square conflict of state and federal views between the courts that have reviewed the search involved in the case before us. Appeals The Court of for the Ninth Circuit part concluded it essential of the State’s initial burden prove person that a knows he has a right to refuse consent. The California courts have followed question the rule is a voluntariness of fact totality be determined from the of all the circumstances, and that the state of defendant’s knowl- only edge is one factor to be taken into account assessing See, g., voluntariness of a consent. e. People v. Tremayne, App. 20 1006, Cal. 3d Rptr. Cal. 193; People Roberts, v. App. Cal. 2d 715, 55 Cal. Rptr. 62.

A judicial most exposition extensive meaning of the developed “voluntariness” has been in those cases in which the Court had has to determine the “voluntari- ness” of a defendant’s for purposes confession Fourteenth years Amendment. Almost 40 ago, Brown v. Mississippi, 297 278, U. Court held that a criminal conviction upon based confession obtained by brutality and violence was constitutionally invalid under the Due Process Clause the Fourteenth Amend- ment. In some 30 different cases decided during the era that intervened between Brown and Escobedo Illi- v. nois, 378 U. S. 478, the Court was faced with the neces- sity of determining whether in fact confessions in issue had been “voluntarily” given.5 It is to body Arizona, See Miranda v. 436, U. S. (Harlan, and n. 3 Spano J., dissenting); York, New 2 (citing 321 n. cases). *6 224 on the guidance initial turn for we to which case law

of context.6 present in the “voluntariness” of meaning of “volun- definition yield no talismanic cases Those of situa- host the mechanically applicable tariness,” of notion “The arisen. has question the tions where ” wrote, Frankfurter once Mr. Justice ‘voluntariness,’ Connecticut, 367 Culombe v. amphibian.” itself an “is mean literally to be taken It cannot 604-605. 568, U. S. un- person a is where “Except “knowing” a choice. for capacity otherwise lacks or or drugged conscious statements —even incriminating all choice, conscious ‘voluntary’ treatment —are made under brutal those On alternatives. a of representing of choice sense incorporates notions if hand, the other ‘voluntariness’ be whether cause, question ‘but-for’ should of inquiry have made even absent would been statement virtually no test, a other action. Under such official very people few voluntary would be because statement in the absence of official give incriminating statements 7 kind.” action of some It thus evident that neither ready nor linguistics epistemology provide will defini- meaning tion of “voluntariness.” reflected an accommoda- “voluntariness” has Rather, complex implicated tion in police ques- values recently Similarly, meaning when we considered a ‘Vol untary” guilty we plea, returned the standards “voluntariness” Brady developed in the coerced-confession cases. See v. United 25, 749. See also n. infra. Vorenberg, Arrest, Detention, Interrogation Bator & Right Basic Legislative to Counsel: Problems Possible Solu tions, L. Wigmore, Col. Rev. 72-73. also See 3 J. Evidence (,T. 1970): “When, example Chadbourn rev. for threats § used, are alternatives, situation one of choice between either disagreeable, sure, one subject to be but still to a choice. be As confession, tween rack usually and a the latter would be con disagreeable; sidered the voluntary less but it is nonetheless choice.” is the spectrum suspect. At one end of the tioning of a tool police questioning need for acknowledged Culombe See the effective enforcement criminal laws. investi- Connecticut, supra, Without at 578-580. such falsely accused, gation, who innocent might those were wholly escape prosecution, were guilty might those who *7 many short, and In the se- go crimes would unsolved. curity Washing- all Haynes of would be v. diminished. ton, 373 spectrum U. S. 515. At the other end of the of society’s deeply the felt belief reflecting set values that the criminal law be cannot used an instrument of possibility and unfairness, the of unfair and police poses even brutal a real serious threat tactics to civilized of justice. notions cases involving “[I]n involuntary this Court enforces confessions, strongly the felt society attitude of our important human values are sacrificed where an of the the agency government, course of securing a conviction, wrings a confession out of an accused against Alabama, his will.” Blackburn v. 361 U. S. 206-207. See also Culombe Connecti- v. cut, supra, at 581-584; Chambers v. Florida, 309 U. S. 227, 235-238.

This Court’s decisions reflect frank recognition that the Constitution requires the sacrifice of security neither liberty. nor The Due Clause Process does not mandate the forgo all questioning, they or that be given carte blanche to they extract what can from a suspect. “The ultimate test remains that which has been only the clearly established test Anglo-American courts for two hundred years: the test of voluntariness. Is the confession product the of an essentially free and unconstrained choice its maker? If it if is, he has willed to confess, may it against used him. it If if not, will his has been overborne and capacity his self-determination critically impaired, the use of his Connecti- v. Culombe process.” due offends confession cut, supra, at over- will a defendant’s whether determining

In assessed Court has particular case, in a borne circumstances —both surrounding all of totality details accused of the characteristics into account taken factors interrogation. Some v. g., Haley e. accused, youth have included v. g., Payne e. education, lack of Ohio, his 596; 332 U. S. g., e. intelligence, 560; or his low Arkansas, 356 U. S. any advice the lack Alabama, 191; U. S. Fikes v. v. e. Davis g., rights, constitutional to the accused of his detention, Carolina, 737; the length North Florida, repeated supra; g., e. Chambers v. g., questioning, e. prolonged nature of the Ashcraft Tennessee, physical punish- use 143; 322 U. and the e. Reck sleep, g., food deprivation ment such as the *8 Pate, In the Court cases, of v. 367 U. S. 433.8 all these the surrounding determined the factual circumstances ac- impact on psychological assessed the the confession, of how the significance and evaluated the cused, legal Connecticut, at supra, reacted. Culombe v. accused 603. fact all of significant about these decisions presence of them of none turned the or absence

a single each controlling criterion; reflected a careful scrutiny of all the surrounding circumstances. See Arizona, Miranda v. 384 U. dis- 436, (Harlan, J., S. id., senting) ; at In 534-535 J., dissenting). (White, none of them did the Court rule that the Due Process Clause required prosecution prove part the its generally Arizona, S., (Harlan, See Miranda v. at U. J., dissenting); Wigmore, (J. 3 J. Evidence 826 Chadbourn rev. § 1970); Note, Developments Confessions, in the Law: 79 Harv. L. Rev. 95^984. right knew he had a

initial burden that the defendant were While questions put. to refuse to answer failure mind, the state of the accused's certainly of his police rights, to advise accused were in assessing factors to be evaluated the “voluntariness” they them- responses, of an were not in accused's Carolina, g., e. Davis v. North See, selves determinative. Haynes Washington, 510-511; v. at supra; supra, Connecticut, Turner Penn- supra, Culombe v. 610; sylvania, 338 U.

B Similar lead us to with the courts agree considerations of California question whether a consent to a “voluntary” product search was fact or was coercion, or or express implied, question duress is a totality fact to be determined of all the cir- from knowledge cumstances. While to refuse con- sent is one factor to taken into account, govern- ment need qua not establish such sine knowledge as the non of an effective consent. with police As questioning, two competing concerns must be in deter- accommodated mining the meaning “voluntary” consent —the legiti- mate need for such and the equally important searches requirement of assuring the absence of coercion.

In situations where have some evidence of illicit probable but lack activity, search, cause to arrest search authorized a valid may consent be the only obtaining means of important and reliable In evidence.9 *9 present case example, police for while the had reason to stop car for traffic violations, the State does not contend that there probable cause to search the vehicle or that the search was incident to a valid arrest Note, See Consent Reappraisal Searches: A After Miranda v. Arizona, 67 Col. L. Rev. 130-131. yielded tangi- search occupants.10 Yet, any and prosecution, a basis for a ble evidence that served as innocent of wholly others, that provided some assurance trial. And mistakenly brought were not crime, or cause to arrest probable where there is those cases a consent police warrant, lack a but where the search, If the search is conducted may search still valuable. may convince the proves fruitless, that itself possible its and embarrass- stigma that an arrest with a far unnecessary, ment is or that more extensive search In pursuant justified. short, to a warrant is not a search pursuant may considerably in- to consent result less subject properly convenience for the the search, and, constitutionally permissible wholly conducted, aspect police activity. of effective legitimate But the Fourth and require Fourteenth Amendments by explicit a consent be coerced, implicit by implied means, For, threat.or force. no matter covert subtly how the coercion was applied, resulting “consent” would be no more pretext than a un- justified police intrusion against which the Fourth Amendment is directed. In the words of the classic admonition in Boyd States, v. United 116 U. 635:

“It may be that it is the obnoxious in its thing mildest and repulsive least but form; illegitimate practices unconstitutional get their first footing way, namely, approaches silent and slight deviations legal from modes procedure. This can only be obviated by adhering to the rule provisions constitutional for the security of person and property should be liberally construed. A close probable If there had been cause for the search of the auto mobile, a search warrant would not necessary have been in this case. Brinegar See v. United 160; Carroll v. United States, 267 U. S. 132. *10 of deprives

and literal them half their construction depreciation of the efficacy, gradual leads to if in sound than in sub- as it consisted more right, duty for It is the of to be watchful stance. courts citizen, against of the rights the constitutional stealthy any thereon.” encroachments The problem reconciling recognized legitimacy of of be requirement they consent searches with free re- any aspect from of official coercion cannot be solved any approve infallible touchstone. To such scrutiny searches without careful would sanc- the most possibility tion the coercion; place official artificial upon restrictions jeopardize such would their searches validity. basic confessions, Just was true with requirement “voluntary” consent fair reflects accommodation of the in- requirements constitutional In volved. examining all the surrounding circumstances if in fact the coerced, determine to search consent subtly account must be taken of police ques- coercive tions, as well as the possibly subjective vulnerable state person who Those consents. searches that are the product coercion can thus be filtered out validity without undermining continuing of consent searches. In there is no sum, depart reason us to area consent from the searches, traditional defini- tion of “voluntariness.” approach of the Court of Appeals for the Ninth no support any

Circuit finds of our decisions that have attempted to define the meaning “voluntariness.” Its ruling, that the State affirmatively must prove that subject of the search knew that he had to refuse would, in consent, create practice, serious doubt whether consent searches could continue to be conducted. There might be rare where cases it could proved from the record person that a in fact affirmatively knew his *11 to announced he a where case refuse —such right to “you form, the consent sign if he didn't police that warrant;” or a case to a search get are [police] going had person a training experience by prior where knowledge.12 such demonstrated clearly convincingly any of evidence was no commonly there where But more would implicit, prosecution or explicit coercion, subject demonstrate to nevertheless be unable refuse to right of his had known of fact the search consent. per- nature of a very object inquiry of the —the difficulty subjective understanding

son's —underlines by the applied rule burden under the prosecution's of the Any who was defendant Appeals Court this case. of solely his consent subject a authorized of search effectively introduction into evidence could frustrate the testify by simply failing of fruits of to that search And that he fact knew he could refuse to consent. impossibility prosecutorial the near bur- meeting this why any den accepted this Court has never suggests litmus-paper such test voluntariness. It is instruc- tive to Traynor recall the fears then Justice California Supreme Court: is not inter- unreasonable for officers seek to

“[I]t views suspects upon with or witnesses or to call them at their purposes. homes for such inquiries, Such although courteously accompanied made and not any right assertion enter or search answers, permit secure would the criminal to defeat prosecution by voluntarily his all of the revealing evidence against him then contending that he acted only response to an implied assertion 11United, Curiale, 744, States v. 414 F. 2d 747. Henderson, Bosenthall v. Cf. 389 F. 2d Michael, 2d, 45 Cal. People authority.”

unlawful 290 P. at 854. 2d, proving toward go that would far One alternative had right he subject did know search of that be to advise him refuse consent would sug is a eliciting however, his consent. That, before repudiated gestion universally that has been almost courts,14 and, rightly both federal13 and we think, state thoroughly impractical impose so. For would be it on the normal consent search the requirements detailed *12 of an effective are warning. part Consent searches the standard investigatory techniques lawof enforcement

13See, g., States, e. Gorman United 158, (CA1); v. 380 F. 2d 164 Mancusi, United ex rel. Cole States 61, (CA2); 66 v. 429 F. 2d Hendricks, United States ex rel. Harris 1096, v. 423 1101 F. 2d Vickers, United (CA3); States v. United 703, (CA4); F. 387 2d 707 Goosbey, Noa, States v. States (CA6); 419 F. 2d 818 United v. Leeper 144, v. United (CA9); 443 F. 147 281, 2d 446 F. 2d (CA10). see, Nikrasch, States v. 284 United But 740, 367 F. 2d Moderacki, United States v. (CA7); 744 Supp. (Del.); 280 F. 633 Blalock, United States v. Supp. (ED Pa.). F. 255 268 While there is dictum in Nikrasch warnings to necessary the effect that are for consent, effective Fourth Amendment Appeals Court of subsequently the Seventh Circuit position recanted that and termed Byrd propriety.” it Lane, “of dubious 750, v. 398 F. 2d The 755. Court limited Nikrasch to its facts —a case where a sus Appeals pect arrested on a disorderly’ charge conduct and incarcerated for eight hours “consented” from jail his cell to a search of his car. 14 People See, e. g., Roberts, v. 246 App. 715, Cal. 2d Rptr. 55 Cal. 62; People Dahlke, v. 257 App. 82, 599; Cal. 2d 64 State Rptr. Cal. Custer, v. (Fla. 251 So. 2d Oldham, State v. App.); 287 92 Idaho 124, 275; McCarty, State 438 2d P. 116, v. 199 Kan. 427 P. 2d 616, vacated in part on grounds, other Hohnke v. 308; Commonwealth, 451 2d (Ky.); S. W. 162 Andrus, State v. 250 765, 867; Morgan La. 199 So. 2d State, v. 2 App. 440, Md. 234 State v. Witherspoon, 460 S. 762; A. 2d 2d State (Mo.); W. 281 Forney, v. 757, 181 Neb. 915; N. 2dW. Douglas, State v. Ore. 2dP. 1366. inor normally highway, on the They occur agencies. un under informal office, home or person’s prompt The circumstances conditions. structured may develop quickly to request search initial questioning. police investigative logical extension suspicious further may investigate police seek in ques developed up leads or to follow circumstances situa These a crime. persons at scene tioning atmosphere cry far from structured tions are a a defend if chooses, he counsel where, a trial assisted v. Ala Boykin Cf. rights. his trial ant is informed of a closer And, surely while bama, U. S. immeasurably far re are these situations still question, in Miranda where, interrogation” moved from “custodial re Arizona, supra, the Constitution we found prerequisite quired warnings certain now familiar applicable police Indeed, language interrogation. typical search, refused to consent we extend need for warnings: hamper the tra- not intended to

“Our decision is investigating ditional officers in function *13 custody crime. . . . in When an individual is probable cause, course, of seek out may, the him. evidence the field to used at trial against may persons investigation inquiry Such include of not question- under restraint. General on-the-scene ing general to facts a crime or other surrounding questioning process of citizens the fact-finding is by an respon- affected our is act holding. It of citizenship sible give individuals to whatever they information may have to aid in law enforce- ment.” S.,U. at 477-478. accept we

Consequently, position cannot of the Court of Appeals in proof this that case knowledge right to refuse a necessary consent prerequisite Rather, it “voluntary” consent. demonstrating to individual only by all the analyzing circumstances was whether in fact it consent that it can be ascertained voluntary sifting or coerced. It is this careful each that is evi- unique and circumstances of case facts prior involving denced in our consent searches. decisions States, in Davis v. United example, For regu- agents enforcing gasoline-rationing federal wartime lations, to filling operator arrested a station and asked see rationing coupons. eventually his He unlocked a room where the agents coupons discovered the that formed the basis for his found conviction. The District Court petitioner that had consented to the search —that although he coupons had at first turn refused to over, persuaded he had soon been to do so that force or threat of force employed had not been persuade him. Concluding that it could not be said that this finding erroneous, Court, an opinion this Douglas by Mr. Justice to all looked the circum- stances surrounding the affirmed the consent, judgment public conviction: “The character of property, the fact demand was during made business hours place coupons business where the were re- quired to be kept, the existence of inspect, the nature of the request, the fact the initial refusal to turn the coupons over was soon followed acquies- cence in the demand —these all support circumstances Id., conclusion the District Court.” at 593-594. See Zap also v. United 328 U. if

Conversely, under all the ap- circumstances it has peared that the consent was not given voluntarily —that it was coerced threats or only force, granted submission a claim of lawful authority *14 we have —then found the consent invalid and the search unreasonable. g., e. Bumper v. See, Carolina, North S.,U. at 548- Johnson v. United 549; 10; Amos 333 U. v. 66-year-old Bumper, In a States, United ain rural area located in a house lived widow, who Negro four allowed road, mile-long dirt an isolated the end of after home her to search officials law enforcement white the house. search a warrant had they they asserted noting that invalid, to be consent alleged held the We authority claims officer law enforcement a “[w]hen effect announces warrant, he search a home under a search. the right to resist occupant that has no colorably law- with coercion—albeit situation is instinct there cannot coercion ful Where there is coercion. S., consent.” 391 at 550. U. that recognition in all is the

Implicit these cases prerequisite is not a knowledge of to refuse required voluntary If were prosecution consent. Zap Davis could and knowledge, demonstrate such knowl- not have without evidence that found consent knowl- edge. similarly prove And if failure to such edge consent, were sufficient to an ineffective show Amos, Johnson, surely have Bumper opinions and would person upon subjective focused mental state of the they who consented. Yet did not.

In prior cases, tra- short, neither this Court’s nor the proof ditional definition of requires “voluntariness” knowledge qua of a as non right to sine an refuse effective consent to a search.15 Coolidge Hampshire, This view bolstered New S.U. suspect’s 443. There the Court determined wife operating agent of the State when she handed her over hus guns clothing nothing police. band’s to the We found con stitutionally suspect subjective impelled in the spouse forces to cooperate police. “Among with the simple these are but powerful openness honesty, often convention of fear intensify suspicion, uncertainty secretive behavior will toas likely helpful Id., what course is most to be to the spouse.” absent at 488. “The test Coolidge, light ... is whether Mrs. all

235 c a a “waiver” said, It “consent” is is however, and Fourteenth a Fourth person’s rights under the by allowing is that argument Amendments. a whatever police person to conduct a “waives” search, It prevent police searching. he from had to Zerbst, argued that under doctrine of Johnson v. 458, 464, 304 U. S. to establish such a “waiver” State or relinquishment must “an intentional demonstrate abandonment of a known right privilege.”

But these standards were Johnson enunciated the context of the criminal trial. safeguards of a fair Our do a cases not reflect uncritical demand for knowing intelligent waiver in situation every where person protection. has invoke failed to a constitutional As Mr. Justice Black once for Court: observed “ variety 'Waiver’ vague term used for a great purposes, good and in the law.” Green v. United bad, U. 184, procedural S. respect With due process, example, acknowledged Court has is possible, explicitly waiver while open the leaving question whether a “knowing intelligent” waiver need Co., be shown.16 D. H. Overmyer See Co. Frick v. case, regarded the circumstances must be having acted as agent an ‘instrument’ or of the produced state when she her hus- Id., belongings.” band’s at 487. necessary Coolidge

Just as analyze it was totality surrounding validity to assess the Coolidge’s circumstances of Mrs. evidence, equally offer of it is necessary to assess all the circum- surrounding stances response search where consent is obtained in question. to an initial Zerbst, 458, Johnson v. cases, U. itself relied three civil but none of those proposition cases established the waiver, that a effective, be knowing must and intelligent. Hodges Easton, v. 408, U. S. which concerned the waiver of a jury civil trial the sub mission of a special verdict to jury, only “every indicates 407 TJ. S. Shevin, Fuentes 185-186; 9A-96.17 *16 “intelligent” and “knowing” of a requirement validity involving the in a case articulated

waiver was constitutionally a right forgo to decision a defendant’s reliability of and the trial to a fair protect guaranteed Zerbst, v. Johnson process. truth-determining the crimi- in federal a of counsel with the denial supra, dealt the Sixth under the Court held trial. There nal as- entitled to the a defendant is criminal Amendment funds he lacks sufficient and that if counsel, sistance to obligation it is the Government’s to retain counsel, wrote Black lawyer. him a As Mr. Justice furnish a con- Amendment stands as “The for the Court: Sixth it safeguards if the constitutional stant admonition that em- It be done.’ provides justice will ‘still lost, be of the obvious truth a recognition bodies realistic professional does not have average the defendant the a tri- protect brought before skill to himself when legal the power liberty, to his life or wherein bunal with take coun- prosecution presented by experienced and learned orderly and to simple, necessary sel. That which is the layman may intricate, the lawyer, appear to untrained mysterious.” complex S., (footnote 304 TJ. at 462-463 and omitted). process To the trial preserve fairness heavy established an appropriately Court burden on the Government before waiver could found —“an in- presumption against reasonable indulged should be . . . waiver.” Id., Kennedy, Ins. v. 412. Aetna Co. to U. S. Ohio Comm’n, effect. Bell Tel. Co. v. Public same Utilities possible procedural U. involved proc- which waiver of due rights, only ess proposition presume stands that: do not "We acquiescence rights.” Id., the loss fundamental at Co., Cf. R. Farden Terminal (operation U. S. 184 common carrier railroad to be sovereign found waiver of State’s im munity objection despite that there was no Johnson); "waiver” under relinquishment tentional or of a known abandonment Id., or right privilege.” at 464.

Almost requirement without of a know- exception, only has those ing intelligent applied waiver been to rights which the criminal Constitution to a guarantees preserve defendant in order to Hence, a fair trial.18 hardly surprisingly itself, in view of the facts of Johnson of a standard knowing intelligent waiver has most often applied validity been to test the of waiver of counsel, upon either at trial,19 guilty plea.20 And the has applied Court also criteria Johnson assess the effectiveness of a waiver other trial rights such as confrontation,21 jury trial,22 speedy and to a trial,23 and the right to be free from *17 Equipment Rental, National Szukhent, (valid Ltd. v. 375 U. 311 S. procedural process objection waiver due found over of no com pliance Johnson). Employees See also v. Missouri Public Dept., 279, Health result). 411 U. J., concurring S. 296 (Marshall, 18 apparent exception One States, Marchetti v. United 390 51-52, 39, U. S. meaningful where we no privi found waiver of the lege against compulsory gambler self-incrimination awhen was forced pay wagering a tax. We reasoned that there be no could choice gambler when the was faced with the giving up alternative of gambling providing or incriminatory Analytically, information. therefore, although the Johnson, Court cited Marchetti turned on “voluntary” the lack of a any waiver rather than the lack of “know ing” “intelligent” and waiver. 19 g., See, e. States, Glasser v. United 60; U. 315 v. S. Adams McCann, United States ex rel. 269; Carnley 317 Cochran, S.U. v. 506; 369 U. S. Teets, cf. Chessman (no v. 354 U. S. 156 waiver of counsel shown at settlement record). of state court 20 g., See, e. Von Gillies, Moltke v. Uveges 708; 332 U. S. v. Pennsylvania, 437; 335 U. S. Moore v. Michigan, 155; 355 U. S. Boyd Dutton, v. U. S. 1. 21See, g., e. Janis, Brookhart v. 1; 384 U. Page, S. Barber v. U. S. 719. 22See, g., e. v. United Adams States ex rel. McCann, supra. 23See, g., e. Wingo, Barker v. 407 U. been have Guilty pleas placed being twice jeopardy.24 the accused whether carefully to determine scrutinized he would to which rights all knew and understood intentionally chosen he had at trial, be entitled has evaluated And Court forgo them.25 trial nature of the waiver knowing intelligent such as the waiver situations, trial-type rights before self-incrimination compulsory privilege against commit- congressional or a an administrative agency26 juvenile of counsel the waiver proceeding.28 tee,27 trial defendant at afforded a criminal guarantees The trial, before the actual stages him at certain protect also any meet the standard alleged waiver must strict But right. “known” relinquishment an intentional “pre- applied have been to the guarantees the “trial” States, g., e. Green v. United See, ¡ 355 U. S. 184. Boykin g., McCarthy States, 459; United v. 394 U. S. See, e. Alabama, v. 395 U. S. 238. validity pleas concerning guilty underscore

Our cases question person “voluntarily” is has acted fact whether quite question distinct from the he has “waived” a trial whether Brady v. United question, right. former we made clear in The S., only by examining all 397 U. can be answered the relevant circumstances to determine if he has been coerced. question extent knowledge. latter turns on the of his drew the We Richardson, in McMann same distinction 766: *18 normally plea guilty “A a of conviction after rests on the de- open fendant’s own admission court that he committed the acts charged. may which he is . That . . admission com- be pelled, plea and is since the also a waiver of trial —and unless applicable provides, right otherwise a waiver of the law to contest admissibility any might evidence the State against have offered intelligent the defendant —it must an act 'done with sufficient ” consequences.’ likely awareness of relevant circumstances and omitted.) (Footnote 26 See, g., States, Smith v. United e. 337 U. S. 137. Emspak g., e. See, United v. 349 U. S. 190. 1, Gault, re See 387 U. S. In. designed similarly the criminal are stage process trial” of the trial itself. protect the fairness Wade, States v. in United U. Hence, California, Gilbert v. the Court held “that is post-indictment pretrial lineup a at which the accused a critical identifying stage exhibited to witnesses is a prosecution; the criminal conduct of such lineup without notice to and absence of his counsel denies the his Sixth Amend- accused [and Fourteenth] Id., right ment to counsel . . 272. Accordingly, . the Court knowing indicated that standard of intelligent applied waiver must be to test the waiver of Wade, See United States v. counsel at such lineup. supra, at 237. The necessary Court stressed the inter- relationship between presence post- of counsel at a lineup indictment before trial protection and the trial process itself:

“Insofar as the may accused's conviction rest a courtroom identification in fact the fruit of sus- pect pretrial help- identification which the accused is subject scrutiny less to at trial, effective the ac- deprived cused right cross-examination which is an safeguard essential to his to con- Texas, front him. Pointer against witnesses 380 U. S. 400. And even though cross-examination a precious safeguard a fair trial, it cannot be viewed as absolute assurance accuracy reliability. present Thus in the where so context, many pitfalls variables and exist, the first line of defense prevention must be the of unfairness and the lessening of the of eyewitness hazards identifica- tion at the lineup itself. The trial which might determine the may fate accused’s well not be in the courtroom pretrial but that at the confronta- tion, with the State aligned against the accused, the *19 unprotected and the accused jury, sole the witness or uninten- intentional overreaching, the against from appeal no effective or little and with tional, the witness —‘that's by rendered there judgment the ” Id., 235-236. man.’ at the Court 436, the Arizona, U. S. v. in Miranda And in- the interrogation custodial found detailed held that consequently coercive, and herently against privilege protect required to warnings were made it clear The Court self-incrimination. compulsory protect the need to for decision was the basis trial itself: fairness of the are when statements present counsel

“That ob- interrogation during taken an individual from fact-finding integrity viously enhances attorney, and presence court. The of an processes in enable the individual, delivered warnings circum- compelling defendant under otherwise effectively, story fear, to tell his without stances way interroga- in a evils in the that eliminates the protections flowing from process. tion Without ‘all counsel, adequate warnings rights safeguards the careful erected around the giving any testimony, whether accused other wit- ness, empty would a procedure become formalities in possible compelling where the most evidence of guilt, already a confession, would have at been obtained ” unsupervised pleasure police.’ Id., at The standards Johnson therefore, found to be were, necessary to a prerequisite finding of a valid waiver. Illinois, S., See 384 U. at 475-479. Cf. Escobedo at n. S., U. 14.29 already noted, supra, As we Miranda itself in have interrogation suspect custody

volved of a detained in did not *20 rights There a difference between those that is vast protect guaranteed a fair criminal trial the rights the under the Fourth Amendment. either in Nothing, a purposes “knowing” “intelligent” behind requiring practical application waiver of trial or in the rights, a requirement such it ought that be ex- suggests tended to the constitutional unreason- guarantee against able searches seizures.

A applied strict standard of waiver has been to those rights guaranteed to a criminal defendant to insure that he will be accorded the greatest possible opportunity to every utilize facet of of a fair the constitutional model Any criminal trial. trial derogation conducted in open that model leaves the possibility that the trial reached precisely an unfair pro- result because all the specified tections in provided. the Constitution were not A prime example is the right For with- counsel. out wholly right, innocent accused the faces real and simply substantial danger that because of his lack legal expertise may he be convicted. As Mr. Jus- tice Harlan once wrote: “The sound why reason [the right to freely so extended for criminal counsel] trial is the severe injustice risked confronting an untrained defendant with a range points of technical of law, evi- dence, and tactics familiar to prosecutor but not to concern investigatory procedures general in on-the- questioning. scene S., 384 U. at 477.

By token, present same require case does not a de- termination proper standard to applied assessing validity of a solely by search alleged authorized consent that person obtained from a placed after custody. he has been We do note, however, particularly that other courts have been sensitive to heightened possibilities when coercion the “consent” to a given by person custody. See, g., search was e. Judd v. United States, App. 64, 66, C. 651; U. D. 190 F. 2d Channel v. States, 217; United 285 F. 2d Villano v. United 310 F. 2d 680, 684; Marrese, United States v. 336 F. 2d 501. (dissenting Arizona, supra, at 514 Miranda himself.” effort every requires The Constitution opinion). case a criminal a defendant to it that to see be made protections basic relinquished unknowingly has trial.30 a fair indispensable thought the Framers aof are Amendment Fourth protections *21 do to whatever nothing and have order, wholly different aat truth of fair ascertainment promoting the Frankfurter’s Mr. Justice Rather, as criminal trial. Colorado,, 338 put it opinion for the Court Wolf the “se- protects Amendment the Fourth 25, U. 27, S. the arbitrary intrusion privacy against curity of one’s exclusionary apply In the police declining . . to . .” Ohio, to convictions Mapp v. U. S. rule of decision, the of that final rendition had become before un- likelihood of emphasized is no Court that “there in a reliability present search-and-seizure or coercion Walker, Link- 638. In case,” Linkletter v. U. S. 618, letter, been that had the Court indicated that those cases given went of the retroactive effect to “the fairness very process. trial —the of the integrity fact-finding . Here . . is under attack.” the fairness of the trial Id., adjunct at 639. The Amendment “is not an Fourth to the The guarantees ascertainment of truth.” Fourth protection of quite Amendment stand “as a dif- ferent constitutional con- reflecting values —values cern of society our for individual to each be let alone. To is no more than recognize this to accord those respect.” values undiluted Tehan v. United States Shott, ex rel. 382 U. 416.

Nor can it even be said that a search, opposed trial, eventual is somehow “unfair” if person a con- sents to a search. While the Fourth and Fourteenth uniformly “[In] structured situation of the defendant whose formally case plea trial, called where, for with everything to gained presence be and no deserving counsel interest con- under which the the circumstances Amendments limit nothing search, a there is constitution- police can conduct a voluntarily allowing search. ally suspect person’s may precisely actual conduct the search And, if had same as obtained warrant. protect unlike guarantees those constitutional every it reasonable defendant at cannot be said trial, voluntary presumption to be ought indulged against only recently relinquishment. We have stated: “[I]t part policy is no Fourth and Four- underlying the from discourage aiding teenth Amendments citizens in the apprehension the utmost of their ability Coolidge U. Hampshire, S., criminals.” v. New Rather, in en- community has a real interest couraging consent, resulting may search nec- yield evidence essary prosecution crime, for the solution and person evidence that insure may wholly that a innocent not wrongly with a charged criminal offense.

Those cases that dealt application have with the of the Johnson v. Zerbst rule make clear that it would be impossible next apply to to to a consent the stand- search ard of “an intentional relinquishment or of abandonment a known right privilege.” or To be true to Johnson lost, to Friendly, sideration be an inflexible rule serves well.” The Rights Bill Procedure, of as a of Code Criminal 53 Calif. L. Rev. 929, 950. occasionally While we have referred to a consent search as a “waiver,” we have never used term to mean “an intentional relinquishment or abandonment a right privilege.” of known or Hence, example, States, in Johnson v. United this “Entry Court the found consent to be ineffective: to defendant's liv ing quarters, beginning which search, was the of the demanded was granted under It authority color of office. was in submission to rather understanding than as an and waiver of intentional a con Id., right.” stitutional at spoke 13. While the Court of terms “waiver” it arrived the at conclusion that there had been no “waiver” analysis totality from objective an of the of the circumstances —not any from the express absence of knowledge indication of Johnson's into examination must be there progeny, and its an waiver, of the nature understanding knowing in the judge for a trial designed examination that Court As the courtroom. atmosphere structured expressed in Johnson: it repre- to be an accused right of

"The constitutional itself, protection invokes, of by sented counsel life in which the accused —whose a trial court, pro- This counsel. liberty without is at stake —is re- weighty duty imposes the serious and tecting determining sponsibility judge trial upon the competent waiver intelligent there is an whether may an waive accused the accused. While waiver proper whether there right counsel, court, and clearly be determined the trial should deter- fitting appropriate it be for that would upon S., the record.” 304 U. appear mination at 465.32 explicit right warnings. See also Amos

of a to refuse or lack of v. United U. S. 313. Gillies, explicit in Von Moltke Court was even more S., 332 U. 723-724: duty assuring discharge intelligent

“To this nature [of properly light strong presumption against waiver waiver] right counsel, investigate of the judge must constitutional as long thoroughly and as case him the circumstances before may demand. The fact that an accused tell him that he is in- right formed of to counsel and to waive this does his desires automatically judge’s responsibility. end be such To valid apprehension waiver must made of the nature *23 charges, statutory range them, offenses included within charges punishments thereunder, possible allowable defenses to the mitigation thereof, and circumstances in essential and all other facts understanding judge to a broad of the whole matter. A can make certain professed that an accused’s waiver of counsel is understand- ingly wisely only penetrating comprehensive made from a plea examination of all the circumstances under which such a tendered.” informal, to that in the expect

It would be unrealistic a policeman, context a unstructured consent search, make could pain obtained, the evidence upon tainting by John- type of examination demanded the detailed form of “waiver” for this reason diluted And, son. if a ample recog- that were found would itself be acceptable, no nition of there universal standard the fact applied every person that must be a situation where forgoes right.33 a constitutional approach “waiver” to consent searches

Similarly, thoroughly would be inconsistent our decisions party Coolidge have approved “third In consents.” Hampshire, New S., 487-490, 403 U. at where a wife sur- rendered the police guns to clothing belonging her husband, constitutionally imper- we found nothing missible in the admission of that evidence at trial since had wife not been Cupp, coerced. Frazier v. U. S. held that evidence seized from the de- fendant's duffel in a bag search authorized his cousin’s consent was admissible trial. We found that defendant had assumed the risk that his cousin, with bag, whom he shared the would allow the to search it. See also Abel v. United 217. U. S. And 33It seems clear even a view limited of the demands of “an relinquishment intentional or abandonment of known or privilege” inevitably requirement standard would lead to a of de warnings any tailed requirement before consent search —a all but universally rejected 14, supra. to date. See nn. 13 and As the Court respect stated in Miranda with privilege against compulsory self-incrimination: pause inquire will not “[W]e individual cases whether the defendant was rights aware of his without a warn ing being given. knowledge Assessments of the pos defendant sessed, age, based education, to his intelligence, information prior authorities, contact with can never specula be more than tion; warning is a Arizona, S., clearcut fact.” Miranda v. 384 U. (footnote omitted). at 468-469 Moderada, See United States v. 633; F. Supp. United States v. Supp. Blalock, 255 F. *24 we held 802-805, S. 797, U. California, in Hill v. from the validly seized evidence had police that the a third the arrest incident to apartment petitioner’s the to arrest cause probable had since the party, believed mistakenly, though reasonably, petitioner it inconceiv- Yet is he. they had arrested was the man waiver the could countenance able Constitution or party, a third of a to counsel right defendant’s rea- judge a trial because could be that a waiver found had defendant mistakenly, believed a sonably, though plead guilty.34 not right waived his to applica- nothing purposes In short, there Zerbst requirements tion of Johnson v. waiver easy equation of compels, much less justifies, a make consent search. To such knowing waiver rhetoric of from the broad equation generalize decisions, of our ignore some and to the substance guarantees. constitutional We to follow differing decline judicial domino method what one scholar has termed “the adjudication every of constitutional . . wherein ex- . planatory statement a previous opinion is made the wholly basis extension different situation.”

D already Much of disposes what has been said argument Miranda Court’s decision case requires the knowledge conclusion that of a an indispensable refuse is element consent. valid The considerations that holding informed the Court’s simply Miranda are inapplicable in present case. today is, course, Our decision concerned with what con consent, stitutes a valid can But, who consent. the constitu validity third-party tional consents demonstrates funda mentally different nature of a consent from search the waiver of a right. trial 35Friendly, supra, n. at 950. *25 of techniques

In the found that the Miranda Court surround- and the nature of custodial police questioning inherently produce an coercive situation. ings de- “[ujnless adequate protective Court concluded that in compulsion inherent employed dispel are to vices from the surroundings, no statement obtained custodial choice.” truly product defendant of can free his point U. And the Court noted S., at 458. at another of proper safeguards process in-custody that “without of interrogation persons suspected or of crime accused inherently pressures contains which work to compelling compel undermine the will individual’s to resist and to to speak him he freely.” where would not do so otherwise Id., at 467.

In case, inherently this there any is no evidence of coercive tactics —either from the nature questioning place. environment which it took Indeed, since normally consent searches will occur on a person’s own familiar territory, specter of incom- municado police interrogation some remote station simply inapposite.36 house is There no reason to under believe, present circumstances such as are here, response a policeman’s to question is presump- tively coerced; is, and there no reason therefore, reject to the traditional test for determining the voluntariness person’s of a response. Miranda, of did course, reach not investigative person a questioning custody, not directly which is most analogous the situation of a consent and it search, assuredly did not indicate that ought such questioning to be deemed inherently coercive. su-pra, See at 232.

It also argued that the failure require the Govern- ment to establish a knowledge as prerequisite to a valid above, supra, As noted present n. require does case determination what effect might custodial conditions have on solely search alleged authorized consent. spe- Amendment the Fourth relegate will consent, knowledgeable sophisticated, of “the province cial The traditional agree. We cannot privileged.” and the always today accept has we of voluntariness definition low minimal schooling, evidence into account taken warnings to any lack effective and the intelligence, any state- the voluntariness person his,rights; carefully been under conditions has ment taken those volun- it was fact determine whether scrutinized to tarily given.37

E *26 only a We hold today narrow one. decision is Our custody in and subject of a is not that when the search basis of a search on the attempts justify to State Fourteenth Amendments consent, his the Fourth and in fact the consent was require that it demonstrate voluntarily coercion, and not the result duress or given, a of fact express implied. question Voluntariness is 37 Texas, See, g., 707; e. Clewis v. 386 U. S. Culombe v. Con Pate, Payne necticut, 568; 433; Reck v. 367 U. S. v. U. S. Arkansas, Alabama, 191; 560; Fikes v. U. S. Harris 356 U. S. Carolina, 68; Haley Ohio, v. South 338 U. S. 332 U. S. 596. argument:

Mr. Justice once a White answered similar may “The be a Court concerned with narrower matter: the un- knowing responds police questioning defendant who to he because mistakenly believes that he must and that his will admissions not against be used him. . . . failure to inform accused that may he need not answer and that his against answers be used him very is relevant indeed compelled. to whether disclosures are Court, say least, placed Cases have premium this never ignorance rights. of constitutional If an accused is he told must very answer better, and does not know it would be doubtful resulting against admissions could used him. When ac- rights cused has not been informed of his at all the Court character- istically properly very closely surrounding looks at cir- Illinois, cumstances.” Escobedo v. 378 U. (White, J., dissenting). circumstances, while all the determined from to be a factor of a refuse subject’s knowledge required not account, prosecution to be taken into es- prerequisite knowledge to demonstrate such voluntary consent.38 Because the California tablishing respond- principles affirming followed these court Appeals for the conviction, and because the Court ent’s evidentiary hearing for an remanding Ninth Circuit judgment its must be reversed. required more,

It ordered. is so concurring. Mr. Justice Blackmun, opinion I join judgment. the Court’s and its At the time v. United Kaufman (1969), decided, I, as a the Court member of Appeals (but there panel) not whose order was its reversed, found ex- myself agreement with the views pressed by Mr. Harlan, writing Justice himself my Id., Brother Stewart in dissent. 242. My attitude has changed years in the four have passed since was decided. Kaufman I

Although agree with all Justice nearly that Mr. *27 Powell say has to in persuasive his detailed and con- curring I post, p. refrain opinion, from joining it because, at this time Mr. Justice opinion Stewart’s reveals, it necessary not to reconsider in Kaufman present order to decide the case.

38The urges State also us to hold that a violation of the exclusion ary may by rule not raised prisoner state federal in a conviction, collateral attack on his and thus asks us to overturn contrary holdings States, our United v. 217; 394 U. S. Kaufman Whiteley Warden, Harris Nelson, v. 560; 401 U. 286; S. v. DeForte, and Mancusi 392 U. S. 364. Since we have found no valid Fourth and Fourteenth claim case, Amendment in this we question. do not consider that with whom The Chief Justice Mr. Justice Powell, Rehnquist concurring. join, Mr. and Justice ad- it Court, does opinion I join the While overriding issue briefed to me the dress what seems habeas which federal extent this argued case: seeking prisoner to a state available corpus should be unlawful search allegedly from an exclude evidence aof collateral review I that federal would hold seizure. which claims—claims Amendment prisoner’s state Fourth solely to be confined on innocence —should rarely bear provided was of,whether petitioner question adjudicated ques- raise and have opportunity fair importance In of this tion in view of state courts. I appro- think it system justice, issue to our of criminal express my priate to views.

I assert a Although petitions corpus for federal habeas variety con- questions, wide of constitutional we are only cerned case a Fourth Amendment this claim that an unlawful occurred and that search the state court erred in evi- failing to exclude the dence obtained therefrom. A divided court Kauf- man v. United (1969), U. held collateral ap- review search-and-seizure was claims propriate prisoners motions filed federal under 28 Kaufman, U. § S. C. 2255. majority Until a substantial appeals of the federal courts of had that claims considered “ of unlawful search seizure 'are not proper matters presented by to be a motion to vacate sentence under Id., § 2255 ....’” The rationale this view fairly summarized the Court: “The denial of Fourth Amendment protection against unreasonable searches and seizures, the Gov-

251 from different nature argument runs, ernment’s we which have rights of other constitutional denials by prisoners. federal subject held to collateral attack effective or of unlike of denial of counsel For a claim incrimination, self privilege against violation does examples, illegal as a claim of search seizure or impugn integrity fact-finding process inherently rather, challenge unreliable; evidence simply a illegally the exclusion of seized evidence is prophylactic deter generally device intended by Fourth law Amendment violations enforcement Id., officers.” 224. at

In rejecting noted under rationale, this Court that prior remedy decisions “the federal habeas extends to state prisoners unconstitutionally alleging obtained evidence was against trial,”1 admitted them con- by cluded there no for restricting “access basis prisoners illegal federal search-and-seizure claims to federal remedies, collateral while placing no similar restriction on prisoners.” Id., access state at 225- In short, petition for habeas corpus col- lateral review filed in federal district court, whether prisoners state under 28 U. prison- S. C. 2254 or § federal present § ers under 2255, the Fourth Amend- rule may ment claims exclusionary be asserted rule applied must be precisely the same manner as on direct review. history Neither the or purpose of habeas corpus, prophylactic desired utility of the exclusionary rule as applied to Fourth Amendment nor claims, any sound reason relevant to the administration of justice criminal system our justifies federal power. such a cited as examples Cases included Mancusi DeForte, v. 392 U. S. (1968); (1968); LaVallee. U. S. Warden v. Carafas Hayden, 387 U. S. (1967).

II Amend- this Fourth involved review The federal purpose traditional beyond well case goes ment percep- present of the Much corpus. of habeas the writ view a revisionist from corpus stems habeas tion of perform. was meant that writ function of the historic nature on the has focused argument historical The critical in our Con- incorporation time of writ at the its of the Act of Corpus of the Habeas at the time stitution corpus contemporary habeas direct ancestor 1867, (1963), the Nota, Fay In statutes.2 follows: position as writ’s historic interpreted the Court writ was written of the privilege "At the time it was settled the Federal Constitution into funda- contrary to any restraint lay to test the writ ultimately stemmed England law, mental which country was em- but in this Charta Magna from Congress in the written Constitution. bodied forum state provide a federal sought by extend- constitutional defenses prisoners having courts powers of the federal corpus ing habeas maximum. Obedient to this to their constitutional consistently federal court we have held that purpose, 1867, 28, 385, provided that 1, 14 The Act of Feb. c. Stat. § respective “the several courts of United States . . . within their by law, authority already jurisdictions, conferred in addition to the power grant corpus in cases where shall have of habeas all writs may liberty in any person her violation be restrained of his or constitution, any treaty or law the United . . . .” or of States custody is now authorized Federal habeas review for those state (a): by 28 U. S. C. 2254 § thereof, judge, Supreme Court, a district “The a Justice a circuit application corpus in for a writ of habeas court shall entertain judgment custody pursuant person in to the of a State behalf of a custody only ground he is in in violation of the on the court treaties of the United States.” or laws or Constitution an un- by the allegation jurisdiction is conferred by any- and is not defeated restraint constitutional proceedings.” may in the state court occur thing relevant interpretation If were a correct this would writ scope accorded the present history, wide *30 impressive reasons despite arguable support, have doubt contrary. scholarship grave But recent has cast version of historic function. Fay’s the writ’s Framers of been that both the It established has expected of the 1867 Act Constitution the authors scope that would be determined corpus habeas develop- historic, reference to the writ’s common-law early to the ment.3 Mr. Chief Justice Marshall referred conception determining the writ in its common-law Bollman, statutory scope, parte constitutional and Ex Watkins, Ex 75, parte 4 Cranch 93-94 3 Pet. (1807); 193, 201-202 (1830), and Professor noted Oaks has “when Congress provided the 1867 restrained persons of their liberty violation of the could ob- Constitution tain a writ of it un- corpus court, habeas from a federal doubtedly except legislation to the extent the intended — provided incorporate otherwise —to the common-law uses 4 remedy.” functions of this

It important thus becomes exactly understand what was the scope common-law of the writ both when em- by braced our incorporated Constitution and into the Corpus Habeas Act of respected 1867. Two scholars have recently explored precisely questions.5 these Their efforts 3Bator, Finality in Corpus Criminal Law and Federal Habeas for Prisoners, 441, State Oaks, Legal Harv. L. (1963); Rev. History High in the Corpus, Court —Habeas 64 Mich. L. Rev. (1966). 451-456 supra, Oaks, 3, n. at Paul Professor M. Bator of Harvard Law School and Professor formerly University Chicago

Dallin Oaks H. of the School supra. Law. Citations to the articles relevant are n. con- Their revealing. meticulous and have been both Court of the from those differ significantly clusions has been Noia, traditionally corpus habeas Fay restraint remedy any governmental kind available “to at 405. S., fundamental law.” 372 U. contrary to these scholars The considerable evidence marshaled makes a con- need not be restated Professor Oaks here. corpus under common law of habeas vincing case that “once a adoption Constitution, the time of the of the person superior general had been convicted court of jurisdiction, a court disposing corpus petition a habeas could go behind the any purpose other conviction than to verify jurisdiction committing formal 6 Certainly court.” that was Mr. what Chief Justice Marshall understood when he stated:

“This writ corpus] is, said, as has been {habeas *31 the nature of a writ of error which brings up the body of prisoner with the cause of commitment. The can court undoubtedly inquire into the suffi- ciency of that cause; but if it be the of a judgment court of competent jurisdiction, especially a judg- ment withdrawn by law from the revision of this court, is not that judgment in itself sufficient cause? Can the upon court, this look writ, beyond judg- ment, and re-examine the charges on which it was rendered. A judgment, its nature, concludes the subject on which it is rendered, pronounces the law of the case. The a judgment of court of record jurisdiction whose is final, is as conclusive on all the world as the judgment of this court would be. It is as conclusive on this court as it is on other courts. puts It an end to inquiry concerning the fact, by deciding it.” parte Ex Watkins, 3 Pet., at 202-203.

6 Oaks, supra, n. at 468. finality common for respect

The shown under law of judgment of the court at the time committing 19th did early century not, the Constitution and explicitly contemplate operation habeas course, corpus in the relations. Federal context federal-state for available until prisoners habeas review was not state Yet there the Habeas of 1867. passage Corpus Act jettison no that Act to Congress evidence intended respect court reviewing theretofore shown prior judgments by proper jurisdiction. The court of only perfunctory Act “received most attention Congress; consideration in the were indeed, there com- plaints that its effects could not be understood at all.” fact, In as Professor Bator it notes, require would over- whelming simply which evidence, present, not con- clude that the 1867 Congress intended “to tear habeas corpus entirely out of the context of historical mean- its ing scope and convert it into an ordinary writ of error respect to all questions federal in all criminal cases.” Rather, Judiciary House Committee when it reviewed the Act in 1884 understood it “contemplated its framers or . . . . . properly . con- strued to authorize the overthrow of the final judgments general State courts of jurisdiction, by the inferior Federal judges. ...”9

Much, has transpired course, since that first Habeas Corpus Noia, Act. Fay See S.,U. (Har- 449-463 lan, J., dissenting). scope of federal corpus habeas *32 for prisoners state has evolved from a quite in- limited quiry into whether the committing state court juris- had diction, Andrews v. Swartz, 156 U. 272 S. In re (1895);

7 Bator, supra, 3, n. at 475-476. 8 Id., at 475. Rep. 9 H. 730, Cong., R. No. 48th Sess., (1884), quoted 1st 5 in Bator, supra, 3, n. at 477. 256 applicant (1906), whether

Moran, 203 U. S. court in state adequate opportunity an given had been Mangum, v. claims, Frank his constitutional to raise redetermination finally to actual (1915); U. S. variety on a wide court rulings of in federal court state Allen, 344 U. Brown v. contentions, of constitutional this suggest one would now (1953). No corpus every particular of habeas imprisoned by Court be But rec- in 18th centuries. the late and 19th as it existed from his- does not us all reality liberate ognition demonstrates restraint. The historical evidence torical purposes adoption writ, that the of the at the time by a Constitution, tempered regard of the were due finality judgment court. committing substantially This when regard maintained intact Congress, Corpus the Habeas Act of first extended federal habeas review to delicate interrelations of our systems. dual court

Ill Recent decisions, depreciate have tended to however, importance finality prior judgments criminal cases. Kaufman, 394 U. at Sanders S., 228; United Fay, (1963); supra, U. S. This trend may justifiable be a evolution of the use corpus habeas where the one custody state raises a constitutional claim bearing his innocence. But the justification for disregarding the scope historic and func- tion of the writ is measurably less apparent typical Fourth Amendment claim asserted on collateral attack. In this latter case, convicted defendant is most often asking society to redetermine a matter with no bearing at all on the justice basic of his incarceration. corpus

Habeas indeed provide should the added assur- ance for free society that no innocent man suffers un- constitutional liberty. loss of The Court in Fay described

257 to society deems corpus remedy as a for “whatever habeas to recognized those restraints,” be intolerable persons “are so- granted whom whom writ should liber- whom belated ciety wronged has and for grievously Id., 401-402, compensation.” is little enough ation central rea- acknowledged Court there the in- injustice lay remedying son for the writ recognized dividual. Recent commentators have the same person-al liberty is noting core that “where concept, one . involved, society democratic . . insists that it less jus- to reach do important an unshakable decision than to (emphasis added),”10 tice and another the use extolling Denno, Leyra (1954), the writ 347 U. 556 with the assertion that for corpus, federal habeas these “[b]ut men gone two would have to their deaths for crimes they which were not guilty.” found history I am aware that reveals no exact tie corpus writ of habeas to a relating constitutional claim innocence guilt. Traditionally, the writ un- was many available even for pleas constitutional grounded many claimant’s while contemporary pro- innocence, ponents expanded employment of per- the writ would mit its issuance one for whose deserved confinement never doubt. We are faced, now however, with the task accommodating the respect historic finality of a judgment court with committing recent Court expansions of the role of the writ. This accommodation can best be achieved, regard due all values implicated, by recourse to the central reason for corpus: habeas the affording of means,

10Pollak, Proposals Corpus to Curtail Federal Habeas for State Writ, Prisoners: Collateral Attack on the Great 66 Yale L. J. (1956). 11Reitz, Corpus: Federal Remedy Habeas Postconviction for State Prisoners, (1960). Rev. U. Pa. L. *34 unjust an redressing writ, extraordinary an through incarceration. is claims and seizure review of search habeas

Federal Fourth raising Prisoners relevant to this reason. rarely justly usually quite are collaterally Amendment claims from searches obtained detained. The evidence very guilt” proof clearest often “the seizures is conten- any there reliability.12 Rarely is content high unreliable rendered evidence tion that the search upon guilt. prisoner’s means cast doubt its point: Mr. Justice Black drive home the words of under the “A claim of search and seizure illegal many crucially different from Fourth Amendment rights; ordinarily other constitutional the evidence way in no seized can have been rendered untrust- worthy the means its seizure and indeed often beyond any virtually this evidence alone establishes shadow of a doubt the defendant guilty.” v. United S., (1969) 394 U. at 237 Kaufman (dissenting opinion). corpus

Habeas review of search and seizure claims thus brings deficiency of system justice our of criminal into sharp focus: convicted defendant asserting no consti- tutional claim bearing on solely innocence and relying on an alleged unlawful search, is now entitled to federal habeas review of state conviction and the likelihood if release the reviewing court concludes search was unlawful. That federal courts would actually re- determine constitutional bearing claims no relation to the prisoner’s innocence with the possibility of releasing him from custody if the search is held unlawful not only our defeats societal interest in a system rational legal but serves no compensating ends of personal justice.

12Friendly, Is Innocence Irrelevant? Collateral Attack on Crim inal Judgments, 38 Chi. (1970). U. L. Rev.

IV far be- corpus habeas extension unprecedented This writ’s disregard bounds yond its historic to be anomaly system sought in our purpose is central ad- which will be reasons only by extrinsic justified let us look opinion. But first this Y of dressed Part serious anomaly in terms of of this at the costs —costs It is these other other values. intrusions on societal jus- to further been subordinated —not that have values *35 too but all persons innocent arguably on behalf of tice jus- to unrelated quite to mechanistic rules often serve neglected values particular in a case. Nor these are tice our sense or to unimportant justice in the broadest to (i) the effec- They include most system of Government. judicial resources, (ii) limited the ne- tive utilization of trials, (iii) of in criminal minimization cessity finality systems jus- our federal and state of friction between tice, (iv) and the maintenance of the bal- constitutional upon the doctrine of federalism founded. ance which generally on federal a claim has habeas, When raised been considered two more tiers of state It courts. these duty courts, is the solemn no less than federal to personal and consider federal ones, safeguard liberties in claims accord with federal law. The task which fed- perform eral courts asked to on habeas is are thus most often one has or should been done The have before. presumption job that “if a can be well it once, done should not be done twice” and is sound one calculated utilize moral, political to “the and re- intellectual, best system.” sources involved in the legal 13Bator, supra, 3,n. justifications extending corpus

The federal conventional habeas judgments review state to afford collateral court were summarized 225-226, v. United XI.S. follows: Kaufman necessity say’ that federal have the 'last re- courts with “[T]he con- on them but demand are limited resources Those on federal insistent call is an increases. There stantly complex, many novel actions, in civil courts both numbers the lives intimately great affect which which appeals criminal trials and original people extent the To careful attention.14 our most deserve claims on collat- to re-examine required courts are federal law, inadequacy procedures questions of state of federal spect to judges claims, preserve the concern that state raise and federal federally unsympathetic rights, created the institutional may jurisdiction to on the exercise of this Court's certiorari constraints . .” review state convictions . . justifications situations, although merit in certain

Each of these has inadequacy procedures unsympathetic of state asserted judges grounds attitude of state are far less realistic of concern years issue, past. fundamentally, perspective than in The is one of balancing. appropriateness and a rational of federal collateral many that, hardly is evident instances. But it review follows justice promote order to the ends of individual which are the fore- writ, necessary scope most concerns of the it extend the respect indiscriminately. especially habeas review This is true consequent to federal review of Fourth Amendment claims with the *36 denigration important of other societal values and interests. 14 filings Briefly, increased civil in United States district courts 96,173 58,293 appeals in 1961 in 1972. Total commenced from 4,204 appeals in in the United States courts of advanced from 14,535 corpus filed in 1972. Petitions for habeas 1961 to federal 1,020 Though prisoners jumped 7,949 in 1961 to state from in 1972. 9,063 in petitions prisoners filed did from habeas state decline 7,949 1,000 increase at the start 1970 to the overall from rights Furthermore, prisoner of the last decade is formidable. civil 3,348 petitions 1,072 under 42 U. C. 1983 increased from § years. challenged past and duration five of these the fact Some prison sought and from must now confinement release Rodriguez, Preiser brought corpus, for U. S. as actions habeas (1973). Report of the Admin Annual Director See 5, 11-22, Courts 11-28-32. Office of States istrative the United II— of their deprive primary litigants they attack,15 eral all, After reflection. availability and mature prompt overextension system are finite: their of our resources fair quality essential care jeopardizes adjudication. also has corpus of federal habeas present scope

The point society in a rational to defeat interest worked Am- Professor litigation. for criminal termination finality interests at identified some of the sterdam has in collateral proceedings: stake effort; “They (a) duplication judicial involve delay proceeding rest; the criminal (b) setting (c) possibly transport- inconvenience and danger court for prisoner sentencing hearing; to the ing postponed fact, hence (d) litigation litigation often be reliable in reproducing which will less (i) respecting postconviction itself, facts claim if the (ii) respecting guilt the issue of collateral in a form which allows . . .” attack succeeds retrial. He concluded that: combination, finality these considerations

“[I]n persuasive amount to a more or argument less any particular collateral against cognizability Burger Mr. Chief Justice has the absurd extent to illustrated relitigation which is sometimes allowed: multiple appeal “In collateral some of these trial and cases [on society eight, the accused continued his warfare with attack] nine, fifty years appellate In . than ten and more. one case . . more judges appeals.” reviewed the case on Address before the Associa- City J., 19, 1970, York, tion of the Bar of the of New N. Y. L. Feb. p. 1. courts, English “long admired for fair treatment of [their] *37 persons,” corpus. Friendly, never accused have so extended habeas 145, 12,

supra, n. at upon depending argument of the strength claim, the its treat- manner' of claim, the the nature proceedings, in conviction any) (if ment litigation under which collateral the circumstances had.” must concede system can afford to judicial No effective there is error possibility theoretical continuing At is unfounded. every and that incarceration every trial custody convey to point some the law must those committed, consequent punishment has been wrong look back imposed, longer that one no has been should every basis for imaginable the view to resurrecting with re- look forward to litigation further but rather should becoming and to constructive citizen.17 habilitation should merit of view be more Nowhere this self- evident than in attack on unlawful allegedly collateral an society and seizure, petitioner search where the often asks to redetermine all relationship claim with no to the justness of confinement. his Professor Amsterdam has noted that “for reasons which are common to all search claims,” and seizure he finality “would hold even a slight interest sufficient to deny the collateral remedy.” But, fact, a strong finality interest against militates allow- 16Amsterdam, Search, Seizure, Comment, A Section 2255: (1964). U. Pa. L. Rev. 383-384 The article addresses problem of collateral prisoners, relief for federal but its rationale applies forcefully to federal prisoners habeas for state as well. put Justice very Mr. Harlan it well: “Both the individual society criminal defendant and have an interest insuring point certainty that there will at some be the that comes litigation, end to ultimately and that attention will be focused not on whether a conviction was free from error but rather on prisoner whether the can be place restored ato useful in the com- munity.” Sanders v. United (1963) 24r-25 (dissenting opinion). 18Supra, 16, at n. *38 Apart claims. of search-and-seizure collateral review ing in inherent most habeas duplication of resources from validity of corpus proceedings, the a search-and-seizure matrix of complex claim events frequently hinges on may for the habeas court which be difficult indeed oc- especially often the trial where, happens, disinter years and the curred before the collateral attack state thinly record is sketched.19

Finally, present scope corpus habeas tends system undermine the values inherent our federal government. every To extent state criminal subject judgment indefinitely repeti- to be to broad and tive federal oversight, render the we actions state courts disrespect a serious derogation constitu- tional balance systems.20 between two present The expansive scope federal habeas prompted review has no small friction between state and judiciaries. federal Justice Paul C. Reardon of the Supreme Massachusetts

19The reasons, namely, latter occurs for various failure of trial, accused to raise claim a determination the state hearing, courts that the did claim not merit a or a recent decision extending rights of this Court (although, of the accused on Fourth claims, Amendment such applied decisions have seldom been retro actively, see, g., Walker, (1965)). e. Linkletter v. 381 U. S. 618 dispersion power between and Federal State Governments constitutionally premised, as Mr. Justice Harlan observed: surely would be shallow recognize not to “[I]t the structure political system of our society accounts less no for free we have. Indeed, upon government it was the structure of that the founders primarily writing focused in experi- Constitution. Out of bitter they suspicious every ence all-powerful were form of au- central thority they sought government to assure that such a would country by structuring never exist this the federal establishment power executive, legislative, judicial so as to diffuse between the power authority branches. The diffusion of between federal and state significance serves same ends takes on added as the size of bureaucracy grow.” Thoughts the federal continues to at a Dedica- Center then President of the National Judicial Court and between the two problems Courts, identifying State systems, bluntly question, without first, noted “[t]he is the corpus proceedings effect of Federal habeas State *39 courts.” from spoke He the “humiliation review the full bench of the court highest appellate State single judge.” United District Court Such broad States federal powers encourage habeas in his view the “growing denigration of the State courts and their functions in the 21 public mind.” In so speaking Reardon Justice echoed the words of Professor Bator:

“I could imagine more nothing subversive of a judge’s sense of responsibility, subjective of the inner con- scientiousness is so part which essential a difficult and subtle art of well, in- judging than an Keeping Balance, tion: 943, the Judicial Function 49 A. B. A. J. (1963). 943-944 recognized

The problems corpus jurisdic- Justice habeas tion were going “of constitutional dimensions to the heart of the judicial powers system.” Fay division of Noia, in a federal 372 391, (1963) U. (dissenting opinion). per- Nor have such ceptions product single ever been the of but a Justice. As the Court noted in a conflicting historic decision realms of state and judicial power: federal Constitution of the recognizes United . pre- “[T]he . and States . autonomy independence serves the independence and of the States — legislative independence judicial their departments. in their Supervision legislative judicial over either the or the action of the permissible States is in except no case matters as to the Consti- specifically tution delegated Any authorized or United to the States. either, except interference permitted, as thus is an invasion of authority and, extent, of the State to that a denial of its inde- R, pendence.” Tompkins, Co. v. 64, Erie (1938), 78-79 quoting Mr. Baugh, Justice Field R. Baltimore efeO. Co. v. 368, (1893). U. S. 21Address at the annual dinner of the Section of Judicial Ad ministration, Bar Association, Francisco, American California, San Aug. 5, 9, pp. and 10. of the notion that all the acceptance

discriminate always will be called someone else.” shots my In re- view, this Court has few more pressing sponsibilities respect than restore mutual responsibility .sharing balanced between the state and which our federal tradition and the Constitution courts contemplate. wisely accomplished itself so This can be without retreat from our inherited insistence writ of corpus vitality habeas retain its full as a means injustice. of redressing only relatively case aspect

This involves narrow the appropriate corpus. specific reach of habeas us, issue before one only that need decided may this time, prisoner extent to which a state *40 corpus obtain federal habeas review a Fourth Amend- ment claim. Whatever as more may be formulated a comprehensive important answer to the broader issues (whether by clarifying in legislation subsequent de- cisions), Mr. Justice Black has suggested what seems to appropriate me to be the requirement threshold in a case kind: this “I always would require the convicted de- fendant raise kind claim of constitutional casts some shadow of guilt.” a doubt on his Kauf- man United S., (dissenting 394 U. at 242 opinion).

In perceptive a analysis, Judge Henry ex- Friendly J. pressed a similar view. He would draw line against corpus habeas in review the absence of a “colorable claim

of innocence”: important few

“[W]ith exceptions, convictions should be subject to collateral attack only when 22Bator, supra, n. plea his constitutional supplements prisoner innocence.” claim of a colorable inno- bearing claim nois constitutional

Where there habeas review court on federal inquiry cence, the be con- should claim Amendment Fourth prisoner’s a state defendant whether the solely question fined raise in courts to the state opportunity provided fair claim. Amendment the Fourth adjudicated and have would manner review in this scope of habeas Limiting determining role of the federal courts reduce the peti- with no relation to claims of constitutional merits restoration and contribute to the tioner’s innocence place their our recently proper values to neglected system. justice criminal

Y The is not importance the values referred above questioned. then, which has What, the reason prompted habeas this Court in recent to extend decisions corpus to Fourth largely disregard Amendment claims of its In history as well addressing as these values? Mr. dissenting Justice Black’s view that constitutional collaterally claims peti- raised should be relevant to the innocence, majority tioner’s noted: Kaufman “It Justice Black’s brings into question [Mr. view] propriety the exclusionary rule itself. application of that rule is not made to turn on the *41 23 supra, Friendly, 12, n. Friendly’s at 142. Judge thesis, as he develops it, encompass broadly would collateral attack both within system respect the federal and pris to federal habeas for state Subject exceptions carefully oners. article, delineated in his Judge Friendly apply would showing the criterion of a “colorable any conviction, innocence” to including collateral attack of claims under and Id., the Fifth Sixth as well as the Fourth Amendments. anything 151-157. In this we need not case consider other than the Fourth Amendment claims.

267 exclu- rather, innocence; of a possibility existence neces- deemed evidence is obtained illegally sion of merely of all not citizens, sary protect unreasonable secure against on be trial, citizen (Em- S., 394 at 229. and seizures.” U. searches phasis added.) criticism, much exclusionary

The rule has occasioned de- permits largely grounds application guilty that its go un- go law-breaking fendants to free officers to rule punished.24 The oft-asserted reason for the is to by deter searches and seizures v. illegal Elkins police, States, United Ohio, 364 U. 217 v. (1960); Mapp S. 206, 643, (1961) ; Walker, 367 TJ. 656 S. Linkletter v. Ohio, 636

618, (1965); Terry v. 392 S. 1, (1968).25 29 U. 24 Agents, See Bivens Six Unknown Fed. Narcotics 403 TJ. S. 388, J., Paulsen, Exclusionary 411 dissenting); C. (Burger, Rule Police, 255, Misconduct 52 J. Crim. L. C. & P. S. 256 (1961); Wilson, see also J. (1968); Varieties of Police Behavior 8 Wigmore, (J. §2184, pp. J. Evidence McNaughton 1961), 51-52 ed. Friendly, and H. (1967), Benchmarks 260-261 suggesting even exclusionary at trial the rule should limited to exclusion of “the activity intentionally fruit of flagrantly illegal.” Kamisar, But see Safety Public v. Individual “Theories,” Liberties: Some “Facts” and 171, 53 J. L. Crim. C. & (1962), Kamisar, P. S. 188-190 On the Tactics of Police-Prosecution Courts, Oriented Critics of the 49 Q. Cornell (1964). L. expressions These only scholarly empirical research, antedated the having noted Elkins v. United Mr. Justice Stewart (1960), TJ. “[e]mpirical statistics are not available” efficacy as to the of the rule —a situation which continued until Pro study. Indeed, referring fessor Oaks’ to the basis the exclu sionary rule, Professor Oaks that it supported, noted has been not by facts, but polemic, rhetoric, “recourse to and intuition.” Studying Exclusionary Seizure, Rule in Search and 37 TJ. Chi. (1970). L. Burger, Rev. See also Who Will Watch Watchman?, (1964). 14 Am. L.TJ. Rev. 1 controversy I exclusionary mention the sug- over the rule —not to gest (certainly here total its abandonment the absence of *42 however, this has been efficacy function, deterrent empirical re- question by into recent brought serious an trial search. Whatever the merits on initial rule’s appeal26 question and not issue here —the case for —a police conduct) some other deterrent deviant but to em- to rather phasize basis, precarious especially its and when undemonstrated applied review to a Fourth Amendment claim on federal habeas a decision. state court 26 efficacy searching empirical study

The most of the exclu the sionary by Oaks, that rule made Professor who concluded directly illegal deterring a for and seizures device searches “[a]s by exclusionary Swpra, police, the n. at the rule is a failure.” Oaks, though may recognizing 755. data Professor that conclusive yet available, study his as follows: summarized the results of any expect “There is effect on no reason the rule to have direct overwhelming majority police is the conduct that not meant hardly prosecutions, any result in the rule and there is evidence that any exerts deterrent effect on the small fraction of law enforcement activity prosecution. the aimed is known about at What suggests exclusionary op rule deterrent effect of sanctions the extremely deterring under are for erates conditions that unfavorable police. the is ineffective. The harshest criticism of rule is it enforcing guarantees freedom It sole means of essential is the enforce law from and searches seizures unreasonable arrests officers, it is a failure in that vital task. ment exclusionary imposes costs on the “The use rule excessive justice system. provides recompense for innocent It no criminal guilty. and incentive for frees It the occasion it creates the focus largescale lying law enforcement officers. It diverts guilt defend- prosecution or innocence of the of the criminal from the Only system patience police. with limitless ant to trial of irrationality where there has been fact that could tolerate the punished, wrong, defendant’s, where there he will be but one go officer’s, wrongs, both will defendant’s and the been have two remedy an cost for effective This not be an excessive would free. price pay prohibitive against misconduct, it but illusory Id., one.” exclusionary “failure,” Profes- rule is a Despite a conviction that something altogether there is it until not abolish sor Oaks would against remedy “an tort place. He recommends effective its to take *43 one. On of the rule an anemic application collateral major exclusionary retains its attack, collateral the rule liabilities benefit of the rule dissolves. while asserted may For when whatever deterrent function rule serve applied appeal on trial and attenuated greatly becomes years for when, afterward, or the claim surfaces months impermissible long collateral review. The conduct has slap since belated occurred, wrist state society federal courts no one harms on whom the but convicted newly criminal is released.27

Searches and an opaque seizures are area of the law: flagrant Fourth Amendment escape will rarely abuses detection but there is a twilight zone respect vast which one Justice has stated that our own “decisions . . . 28 hardly are notable for their predictability,” and another “ has observed that this Court 'bifurcating was elements ” 29 too infinitesimal to be split.’ Serious Fourth Amend- ment infractions can be dealt with state judges by this Court on direct review. But the nonfrivolous Fourth Amendment claims that survive for collateral at- tack are likely most to be in this grey, twilight area, where the law is difficult for courts to apply, let alone policeman on the beat to understand. This is. offending officer employer.” or his He notes that such a “tort remedy give would courts an occasion to rule content of con- rights (the stitutional example how), Canadian shows and it would provide consequence give the real credibility guar- needed to to the Id., antee.” at 766-757. exclusionary applied “As the time, rule is time after it seems efficacy that its stage deterrent point at some reaches a of diminish ing returns, beyond point application its continued is a public Amsterdam, supra, 16, nuisance.” n. at 389: California, Ker v. 23, (1963) J., (Harlan, concurring result). 29Coolidge Hampshire, v. New (1971) 403 U. (opinion J.). C. Burger, The Chief quoting Justice Mr. Justice Stone of the Supreme Minnesota Court. function the deterrent of case where type

precisely and where is least efficacious, rule exclusionary duly convicted for freeing justification least there defendant.30 thought encouraged the have

Our decisions one policy constitutional may appropriate what all times and for all automatically becomes such context Walker, atS., 381 U. In Linkletter seasons. considerations compelling practical recognized the Court *44 rule. exclusionary application against retroactive eternal consti- having viewing rule Rather than decided to verity, tutional the Court by in each case and demerits the merits “weigh in question, the rule history of looking prior to the retrospective op- whether purpose effect, and and its We operation. will or retard its eration further approach particularly that this correct with believe prohibitions reference to the Fourth Amendment’s Id., as to unreasonable searches and seizures.” at a pragmatic approach compelled Such the Court to conclude the rule’s deterrent function would not be retrospective application: advanced its Mapp police prior “The misconduct of to has already occurred and will not be corrected releas- prisoners . . ing Finally, involved. rup- . tured privacy of the victims’ homes effects be cannot restored. Reparation too comes late.” Id., at 637.

See also Desist States, v. United (1969). U.

The same particularized practical, analysis of the ex- clusionary necessity rule’s also was evident Walder in United 347 U. S. 62 when (1954), per- Court 30Friendly, supra, n. at 162-163. evi- seized unlawfully utilize Government to

mitted the had who of defendant credibility impeach the dence to The Court broadly in own defense. his first testified the exclu- protected by effect, policies held, by the need were this case sionary outweighed rule proceedings integrity prevent and assure perjury the exclu- apply The Court concluded trial. perversion sionary circumstances “would be rule such Id., judg- Amendment.” at 65. of the Fourth policies pointedly ment in revealed that the Walder most exclusionary are nor all- behind the rule neither absolute encompassing, but rather must and balanced weighed namely against competing policy, more compelling the need for effective determination of truth at trial.

In exclusionary sum: the case for the rule varies setting which it is imposed. It little sense makes exclusionary Mapp extend the rule ato federal habeas where proceeding its asserted deterrent effect must be efficacious, least consequences its obvious harmful persist in full force.

VI *45 inquiry The final is whether the position above con- (a) forms to 28 U. § S. C. 2254 which provides: Supreme “The a Court, thereof, Justice a circuit or a judge, district court appli- shall entertain an cation for a writ corpus of habeas of a behalf person in custody pursuant to the judgment a only State court ground on the in custody that he is in violation of the Constitution or or treaties laws of the United States.”

The trend in years recent has witnessed proliferation a of constitutional rights, “a expansion vast of the claims of error in criminal cases for which a resourceful defense 31 lawyer can find a constitutional basis.” Federal ha- 31Friendly, supra, 12, n. at 156.__ 272 anyone’s beyond far extended has been jurisdiction

beas “custody concept of when the intendment expectation first (a), in 2254 Constitution,” § now in violation ago.32 century a law over in federal appeared “not noting correct clearly Mr. Black was Justice a constitu- denial part based in every conviction 2255 corpus or § subject to attack habeas tional final.” conviction become after a has proceedings Kauf- No evi- man, opinion). (dissenting 232 at 394 U. S., allegation of every Congress intended dence exists basis for appropriate violation to afford an constitutional the Fed- the latest revisions of indeed, collateral review: Corpus statute in 1966 and the enactment eral Habeas (a) majority came the time a of the courts of § 2254 at appeals held that claims of unlawful search and seizure “ proper presented by ‘are not to be motion to matters only properly vacate sentence under can § but ” Id., presented by appeal from the conviction.’ Warren v. United quoting (CA8 311 F. 2d 1963).34 Though precise discussion in con- Kaufman cerned the prisoners claims of federal under 2255, the § then-existing principle of a distinction between review of search-and-seizure claims in proceed- direct collateral ings clearly existed.

There is no indication that Congress intended wipe out this distinction. the broad Indeed, purpose of the pointed amendments in the opposite direction. The report of the Judiciary Senate Committee notes that:

“Although only a small number of these [habeas] applications have been found ap- meritorious, II, supra. See Part 33The 1966 revision of the Habeas Corpus Federal statute en *46 among acted things, other present the (a), 28 U. S. C. §§2254 (d), (e), (f). 34 Kaufman, supra, See 220-221, 4, nn. 3 and listing for a of respective positions the of the courts appeals. of

273 plications totality imposed heavy their have . on Federal . bill seeks burden the courts. . The by unnecessary introducing alleviate the burden a greater finality of in habeas degree judgments corpus 1797, No. 89th proceedings.” Rep. Cong., S. 2d 2 Sess., (1966).35 similarly Report House that: states applica- only

“While small number these they petitioners tions successful, have the been only unnecessary nevertheless have imposed not burden work of the but have Federal courts proc- also procedures greatly interfered esses of the many State delaying, cases, courts H. proper of their R. judgments.” enforcement Rep. No. 89th Cong., Sess., (1966). 2d This expression most recent congressional scope on the of federal corpus habeas reflected the shared sentiment, by judges alike the writ has legislators, overrun its historical banks inundate the dockets federal courts and role denigrate the of state courts. Though Congress did precise ques- address hand, tion at nothing in (a), §2254 the state law at the time of its adoption, the historical uses “custody in language violation of the Constitution” from which (a) is derived,36compels § holding rulings of state courts on claims of unlawful search and

35The Judge letter from Phillips, Circuit Orie L. Chairman of the Corpus Committee on Habeas of the Judicial Conference of the sponsored United which legislation, to the Chairman Improvements Machinery Senate Subcommittee on in Judicial strongly emphasized necessity expediting also “the determina repetitious tion in Federal applications courts of nonmeritorious and writ prisoners.” Rep. State court No. 89th Sess., (1966). 2d Cong., II, supra. See Part *47 274 in collateral redetermined and be reviewed must

seizure proceedings.

YII has criminal law the of development no Perhaps single use, over escalating as the profound so consequences had reopen corpus to federal habeas of past decades, two com- I have judgments. criminal readjudicate state and conse- far-reaching on the in Part IV above mented de- of in terms system,37 the burden on quences: attorneys, defense courts, prosecutors, on the mands efficiency of the absence facilities; personnel other deter- both the frustrating finality process, criminal in the of rehabili- the effectiveness of the law and rent function courts, undue subordination state tation the ; and the relations; state-federal exacerbation of resulting Per- itself. of the doctrine federalism subtle erosion open- consequence haps single disquieting most prescience is reflected in the ended habeas review prejudice warning Mr. Justice must Jackson’s “[i]t be buried application occasional meritorious flood of worthless ones.” If consequences safeguarding flowed from the these they should, course, constitutional claims of innocence accepted price pay a tolerable for cherished stand justice pursued ards of at same time that efforts are procedures. Yet, to find more rational as illustrated before today, question corpus case us on habeas Jackson, years Mr. concurring ago Justice the result 20 Allen, Brown (1953), lamented the “floods of stale, repetitious petitions frivolous and corpus federal habeas [for prisoners state inundate the docket of the lower courts and which] Id,., our own.” swell 536. The inundation which concerned petitions. Mr. Justice Jackson consisted of 541 such In year figures available, prisoners latest which are state alone filed 7,949 petitions courts, for habeas federal district over 14 times the number filed when Mr. Justice misgivings. Jackson voiced his Allen, supra, Brown v. at 537. of the crime was innocent prisoner rarely too whether the whether frequently too he convicted39 and for which was *48 been has probative value of undoubted some evidence ritualistically exclusionary rule in violation of an admitted slightest it has the regard due to whether applied without purpose. prophylactic achieving its avowed likelihood of often seems to system, of a which so paradox It is this pro- increasingly to form, subordinate substance that it Indeed, lack of confidence. vokes criticism and de- why system justice of criminal explain difficult to reviews of convic- respect repetitive serves which allows final at the end of tions since held to have been long where the basis process appeal the normal of trial and defend- for re-examination is not even that the convicted ant There about was innocent. has been halo dim. Yet one Writ” that no one would wish to “Great beyond must whether the of its use far stretching wonder any justifiable purpose will not in the end weaken rather vitality. than strengthen writ’s Me. Justice Douglas, dissenting.

I as- Appeals that “verbal agree the Court of sent” to a search is the fact that consent enough, that suspect given imply was to the search does not knew that the 448 F. 2d alternative of a refusal existed. 699, 700. As that court stated: person many circumstances a reasonable

“[U]nder might read I’ ex- ‘May an officer's as the courteous 39Commenting justice system, on this distortion of our criminal Supreme Justice Walter Schaefer of the Illinois Court has said: genuine bothers issue “What me is that almost never do have a we guilt today. changed system or innocence what The has so doing trying we are the courtroom is the conduct prosecutor that of the Center along all Address before line.” Study Institutions, for the cited of Democratic June Friendly, supra, 12, at 145 n. 12. n.. backed, Id., force of law.” demand of a

pression on this rides guarantee A constitutional considerable no was there time the search At the narrow issue. contra- contained the car believe that cause to probable stopped car was unlawful articles. or other band were plate light license and the only headlight because from brother, belonged Alcala’s car out. The burned license. had a driver’s borrowed, it and Alcala whom was The car issued. appropriately were Traffic citations con- Alcala showing record searched, present had the he Alcala knew sented. But whether did Appeals Court we do not know. All the refuse, *49 find- Court for a District was remand the case if on that issue. ing necessary, hearing —and The go I would on that basis. let the case forward Court well long, time-consuming might contest this that, wash out. At least we could if it came be assured back, advisory we not be an rendering opinion. would Had I I grant voted to would we petition, suggest this improvidently dismiss being it as granted. But, I minority, am bound Rule Four.

Mr. Brennan, Justice dissenting. guarantees Fourth Amendment specifically “[t]he right of the be people to secure in persons, houses, their papers, and effects, against unreasonable searches and . . seizures . .” We have held consistently govern- that mental pursuant searches conducted to a validly obtained warrant or reasonably incident to a valid arrest do not violate guarantee. this Here, however, as the Court itself recognizes, no search warrant was obtained and the does State not even suggest “that there probable cause to search the vehicle or that the search was inci- dent to a valid arrest of any of occupants.” Ante, vehicle can result, the search 227-228. As justified solely

be that the owner’s brother ground gave Fourth his consent —that that he waived his is, be an otherwise right against Amendment “to secure” today “unreasonable” search. The Court holds effectively though individual can this even waive he ignorant of his totally that, of the fact in the absence his consent, such invasions of be privacy would constitu- tionally prohibited. wholly It escapes me how our cit- izens can meaningfully something said to have waived precious as.a constitutional guarantee without ever being aware of its existence. In my the Court’s view, conclusion supported by “linguistics,” neither nor “epistemology,” nor, indeed, I by “common re- sense.” spectfully dissent.

Mr. Justice Marshall, dissenting. years ago,

Several Mr. Justice Stewart reminded us Constitution guarantees society ... “[t]he free choice. society Such a presupposes capacity its York, members Ginsberg to choose.” New U. S. (1968) (concurring result). I would have thought capacity necessarily to choose depends upon knowledge that there is a to be choice today made. But the Court reaches the result curious *50 that one relinquish can choose to right— constitutional the right to be free of unreasonable searches —without knowing that he has the alternative of refusing to accede police to a to request I search.1 cannot agree, therefore dissent.

1The Court holds shown, that Alcala’s in consent to search was proceedings, state constitutionally court to be valid as relin quishment rights. of his proceedings, Fourth Amendment In those no was knowledge right evidence adduced as to Alcala’s of his to Circuit, refuse Appeals assent. The Court of for the Ninth whose judgment today reversed, required petitioner would have pro- to 278

I the true issue 1 the Court believe misstates suggests, as the Court not, issue is this case. That eliciting will in police overbore Alcala’s whether simple statement of whether a consent, rather, his but sufficient to should be search, more,2 assent to without relinquish- as a permit police and thus act search to exclude the right ment Alcala’s constitutional police.3 always great scrutinized with This Court has person forgone opportunity care has claims g., Fuentes v. rights. assert constitutional e. See, Shevin, Frick (1972); Overmyer 407 U. S. 67 D. H. Co. v. Co., Alabama, Boykin 405 174 v. (1972); U. S. 395 U. S. Cochran, 238 (1969); Carnley (1962). v. 369 U. S. 506 I see no give person reason to the claim that a consented any scrutiny. to a search rigorous Every less case in this involving spoken Court this kind of heretofore search has infra, duce 286, such evidence. As discussed at the Court of Appeals police did subject not hold that the must inform a of inves- tigation predicate his to refuse assent as an essential to their effort to secure consent to search. 2 police probable Court concedes that lacked cause to Ante, search. conducted, 227-228. At the time the search was police there were three App. vehicles near the car. 270 Cal. 648, 651, Rptr. 17, (1969). 2d 76 Perhaps Cal. 19 reason, fact record, had some not disclosed this to believe that a up search incriminating would turn possible evidence. But it is also that the late hour and the suggested number of men in the car to the first officer on the prudent scene that it would be to wait until other officers had investigating any arrived before further. charged Because Bustamonte possessing stolen checks found in present, the search standing at which he was he has object though to the search possessory even he claims no proprietary interest the car. Jones v. United (1960). People Ibarra, Cf. v. 60 Cal. 2d 386 P. 2d 487 (1963); People Perez, (1965). Cal. 2d 2dP.

279 of consent as a waiver.4 g., e. Amos v. United See, States, 255 TJ. 317 (1921); Zap 313, S. States, v. United 328 U. 628 (1946); Johnson 624, States, v. United 333 U. S. 10, (1948).5 Perhaps one skilled in lin-

4The Court reads Davis States, v. United (1946), U. S. 582 upholding as a search like the one in this case on the basis of consent. But it reasoning was central to the of the Court in that case that the items seized property were the tempo the Government rarily in custody. id., Davis’ See agents at 587-593. The of the Government simply were thus demanding property which to they had a lawful claim be returned this, to them. Because of “permissible Court held that persuasion limits of are not so narrow 'private as papers sought.” where Id., are opinion at 593. The the Court explicitly therefore stating general disclaimed rule for ordinary searches for distinction, evidence. purposes That the of Fourth analysis, Amendment between mere evidence and contra band or abolished, instrumentalities has now been Warden v. Hayden, (1967), 387 U. S. 294 disregard is no reason to the fact that when decided, Davis was played important that distinction shaping analysis. role in Zap

In v. United (1946), 328 U. S. the Court petitioner, held that “when in order to obtain the Government’s business, specifically agreed permit inspection of his accounts records, voluntarily he privacy waived such claim to which might he respects otherwise have had as business documents (Emphasis added.) related to those Zap contracts.” Because had signed specifically providing a contract that his records would be open Government, all at time to the he had indeed waived his keep private. Biswell, those records Cf. United States v. (1972). Zap Davis, supra, Aside from I n. have found no cases explicitly upholding decided this Court a search based hardly surprising, then, consent of defendant. It is that “[t]he approach Appeals of the Court of for the Ninth Circuit finds no support any decisions,” ante, nearly every of our at 229. But in discussing problem length, case the Court referred to consent as a And waiver. it mischaracterizes those cases describe them analyzing totality ante, circumstances, at 243 n. 31. infra, See at 283-284. *52 comments, those disregard can epistemology

guistics ignore. I hard to them but find opin- important to understand To it is begin, in its treatment misleading is ion of the Court criterion it its derives ways. First, in three here issue to of assent statement when verbal determining a person’s right of a relinquishment aas operates search consent searches from of entry justification a preclude to cases in earlier our treatment is inconsistent with Amend- Fourth exceptions to the requirements unique nature responsive is not ment, and that applies it Second, exception. of the consent-search very in a developed that was of voluntariness standard poli- based on the standard was context, different where Third, case. cies different from those involved this prior involving our consent it mischaracterizes cases searches.

A is: the issue in this case what Court assumes that are the courts which are to determine that standards voluntarily consent It imports is then into the given? law of developed search and seizure standards to decide entirely questions different about coerced confessions.6

The Fifth Amendment, terms, provides that no person any be compelled “shall criminal case to be Nor against protected himself.” is the witness interest by the Due Process Clause the Fourteenth Amend- any ment different. The inquiry a case where a con- fession challenged is been having in an un- elicited constitutional manner therefore, is, whether the behavior application That adjudication this of the ''domino” method of misguided shown, believe, by I phrase “voluntary the fact that the consent” way redundant phrase seems in a “voluntary con fession” does not. of the defendant.7 compulsion amounted to of com- be free right

Because of the nature a defendant pointless whether pulsion, it would be ask person no sane statement; knew he made a of it before free of com- knowingly relinquish right would to be pulsion. and of vio- Thus, questions compulsion inextricably lation of the itself are intertwined. therefore, pass The cases coerced involving confessions, *53 irrelevant, of question over of that knowledge right directly question compulsion. turn to the of Arizona, Miranda v. 384 S. 436 confirms (1966), U. analysis. this There the Court held that certain warn- ings given suspects prior must to to their interro- gation inherently so that the coercive of in-custody nature would be questioning suspect’s diminished knowl- edge he remain But, although could silent. those warnings, of course, convey information about various rights accused, only information is intended to protect the suspect against acceding to the other coercive aspects police interrogation. While we would ordinarily think suspect that a could waive his right to be free of for coercion, example, permit we do suspects they waive the rights are of by police informed warn- on ings, the belief that such information itself suffi- ciently decreases the chance that a statement would be by compulsion. Id., elicited Thus, nothing 475-476. defendant did the cases involving coerced con- fessions was taken to operate as a relinquishment of his rights; certainly the fact that the defendant made

7The Court “voluntary” used the terms “involuntary” in such cases as shorthand labels for an police assessment of the behavior in light particular characteristics of the individual defendant be might cause behavior that not be might coercive of some individuals compel give nonetheless incriminating others to See, statements. g., Haley Ohio, e. v. 332 York, Stein v. New (1948); U. S. Alabama, (1953); Fikes U. S. (1957). 352 U. relinquishment a to be never taken a statement free of coercion.8 to be B but “coercion,” not with this case deals contrast, In dif- concept to which subtly different “consent,” a Freedom past. in the applied been have standards ferent guaranteed right, is a substantive from coercion however, Consent, Amendments. Fifth and Fourteenth other- requirements, by which substantive is a mechanism In the context of the avoided. applicable, are wise require- relevant substantive Amendment, Fourth only be conducted after evidence ments are that searches impartial them has been submitted to justifying probable cause. There determination magistrate a exceptions requirements based are, course, these variety circumstances that make it im- exigent practical simply search because the to invalidate But none of the get exceptions failed warrant.9 *54 8 I, course, agree analysis with the Court’s extent that it to the expression a treats verbal of assent as true consent when it is no Ante, my through compulsion. Since, view, it elicited is just coercing as unconstitutional to search after is to consent as it Amos consent, agree search after uninformed I with the rationale of States, v. United Johnson v. (1921), United S. 25S U. 313 Bumper Carolina, (1948), North 333 TJ. 10 v. 391 543 S. U. S. (1968). might an That alternative rationale have been used those cases seems to me irrelevant. 9 See, g., Coolidge Hampshire, e. v. New (1971); 403 443 U. S. California, Hayden, Chimel v. Warden (1969); 395 U. 387 (1967). U. S. Chimel, explained were

In we searches incident to arrest by justified by persons protect from attacks the the need to officers easily they arrested, by have need to assure that destructible the suspect destroyed. will not be evidence in the reach of the Coolidge, S., auto- And in we said that searches of U. at 762-763. highway justified are because an alerted criminal on mobiles the sought. away might easily while warrant was drive the evidence needs of law enforcement are overriding to the relating by solely justified is consent. applicable when search the of law enforcement contrary, the needs are On attenuated, probable cause to more significantly may permitted but a search if the lacking search be Thus, consent has been obtained. consent subject’s permitted, exception searches are not because such requirements probable to cause warrant proper law but because we enforcement, essential permit they our citizens to choose whether or wish not prior to exercise their constitutional Our deci- rights. sions simply support meaningful do not the view that a solely made no choice has been because coercion was brought subject. to bear on the example, Bumper Carolina,

For v. North (1968), four law enforcement officers went to the They home of Bumper’s grandmother. announced that they warrant, permitted had and she search them to enter. Subsequently, prosecutor rely not chose on warrant, attempted justify but the search consent. woman’s We held that consent could not “by showing established no more acquiescence than id., to a claim of authority,” lawful at 548-549. We did not inquire there all the into circumstances, but fo- cused a single fact, on claim authority, though even grandmother testified that no threats were made. Id., at 547 n. 8. It may be that, the facts of that case, her consent was under all the in- circumstances voluntary, plain it but that we did apply test adopted today. Court And, whatever *55 posture of the case when it Court, reached this it could S., 403 U. at 459-462. In police neither situation is convenience alone a establishing sufficient reason for exception to the warrant requirement. today say Yet Court seems to that convenience justifies alone consent searches. Bumper in a threaten- acted police not be said the warrant they did have manner, coercive ing rely on it was not to they had; the decision they said into case came search, when after the long made court.10 may not officers police clear that it case makes

That stand simply to subject of a search courteously order they have carry out a search officers while the aside brutality no coercion or would be Yet there settled on. today that the Court No interests order. giving Thus, in such a search. damaged be would recognizes inevitably what will must do is conduct police all the any they display If for consent. asking a charade of be un- expression of assent will all, a verbal firmness at I believe that doubtedly forthcoming. cannot so little. of the Constitution mean protections II My and, the case approach straightforward obviously required by the notion of consent as a me, I am relinquishment rights. of Fourth Amendment why to understand consent “cannot be taken loss Ante, In literally to mean a choice.” at 224. 'knowing’ difficulty I fact, have how a decision comprehending made without of available knowledge alternatives can be treated as a choice at all.

If person consent to search that a has chosen means forgo his to exclude police place from the they to search, seek it follows that his consent cannot Johnson interpretation v. United The Court’s (1948), case, baffling. U. S. 10 a similar The Court Johnson analyze totality circumstances, did not in fact as the argues, ante, 31; single Court now at 243 n. fact authority they claimed to search when in truth lacked such authority conclusively established that no valid consent had been given. *56 he knew that choice unless meaningful

be considered police. appears, in fact exclude the Court could he proposition that, if reject to even the modest however, of a trier of subject search convinces the fact that the police to right he did not know of his refuse assent to a permission the to search must be request search, only it says held unconstitutional. For “knowledge that to is one be taken the refuse consent factor to Ante, I find incomprehensi- into account.” this I ble. can of no other situation in which would think we say that a if person agreed some course action he convinced us he that did not know that there was pursued. some other course he I might have would hold, prosecution may therefore at a the minimum, that rely on a if purported subject consent search did give search not know that he could refuse to I That, consent. think, import Bumper Carolina, North supra. police Where the claim author- ity yet to search in fact subject lack such authority, may does not know he permissibly that them refuse entry, it is lack this that knowledge invalidates the consent.

If one accepts this the question view, simple then is a one: must the show subject Government that knew of his rights, or must subject show that he lacked such knowledge?

I think fair any allocation of the burden would require it be placed prosecution. On- this question, the Court indulges might what be called the “straw man” method of adjudication. The Court responds to this suggestion by overinflating the burden. when And, it is suggested prosecution’s burden of proof easily could informed satisfied if the police subject rights, his the Court responds by refus- ing require to make “detailed” inquiry. Ante, at 245. If the Court candidly faced the real *57 of neither proof, of burden allocating the question to it. available be would maneuvers these the defendant, all on placed the burden is If the not know he did testify to that do is subject can judges will many trial I that And doubt rights. his find on of that testi- simply the basis defendant for the very to hard the because evidence mony. Precisely re- traditionally been reluctant to courts by, come have such as the lack prove negatives to quire party g., (3d e. Evidence 274 Wigmore, 9 See, J. knowledge. E. (1965); § Procedure 7.8 James, Civil 1940); ed. F. Anglo- of Proof Under the Problems Morgan, Some (1956). System of 75-76 Litigation American ways by the sub- contrast, In there are which several may be The sub- ject’s knowledge rights of his shown. by affirmatively such ject may knowledge demonstrate place, time the search took as responses his at the Curíale, United States v. (CA2 1969). F. 2d 744 person the consent Where, case, giving this prosecution may someone other than the the defendant, testify to require knowledge him under oath. Denials of may by disproved subject had, that establishing in the past, knowledge recent demonstrated his of his entry rights, refusing for when it re- example, was quested by prior the police. experience training The or subject of the support an might some cases inference that knew of his right he to exclude the police.

The burden the prosecutor would disappear, course, police, they if the time requested consent also search, subject told that he had a refuse consent and that his decision to refuse would be respected. The Court’s assertions the contrary there notwithstanding, impractical is nothing about this satisfying prosecution’s method of burden of proof.11 rejected proposition The in the cases cited in nn. Court 13 and Arizona, as Miranda that, (1966), U. S. emphasized It that the decision about informing must be subject would lie with the officers seek- rights his they If in- ing providing consent. believed that such their impede investigation, they might formation would some simply consent, ask for the risk that at later taking prosecutor prove date the would be unable to subject rights knew of his some other basis the search existed. paused Court that if an to inform contends officer subject informality rights, exchange his I destroyed.

would be simple doubt statement *58 by officer of an right to refuse consent individual’s do informality would much to alter the of the exchange, except subject to alert surely to a fact that he is entitled to know. It not significance is without for that many years the agents the Federal Bureau of Investi- gation have routinely subjects informed of their right to refuse consent, they when request to consent search. Note, Consent A Searches: Reappraisal After Miranda v. Arizona, 67 Col. L. 143 n. (1967) Rev. (citing letter from J. Edgar Hoover). reported cases which police subjects have informed of their right to refuse also, consent show, that the information can given be without disrupting the g., casual flow of See, events. e. United Miller, States 395 F. (CA7 2d 116 1968). What evidence there is, then, rather strongly suggests that nothing disastrous would happen if the police, before requesting consent, informed the subject that he had subject a statement rights to the of his given must be as an indis- pensable prerequisite request to a for consent to search. This case require does not us to proposition, address that for all that is in- volved here is the prosecution contention satisfy that the could establishing burden of knowledge right of the to refuse consent by showing police subject that advised the search, aof sought justified by consent, right. to be of that would be refusal that his consent and to refuse respected.12 when the reluctance,

I conclude, some must really talking it practicality, what speaks of Court capitalize on police ability of is the continued accomplish as to so subter- citizens ignorance only on the by relying they could achieve fuge what Of rights. of constitutional knowing relinquishment ignore police for the “practical” it be course would prac- if Amendment, Fourth the commands apprehended, will be ticality we more criminals mean that people of innocent rights even the constitutional though practical advantage But go by also the board. such a only permitting is achieved at the cost of places the limitations that the Constitution disregard democracy their behavior, cost that a constitutional cannot absorb. long

I opinion dispel my find in the Court to nothing belief that, Appeals such a as the Court of case, suggestion The Court’s to re it would “unrealistic” quire type in the officers to make “the examination” detailed when waived a volved a court considers whether a defendant has *59 question right, ante, trial The at little comment. deserves inquiry prose before us relates in when the to the to made court given. do cution seeks that I therefore to establish consent was argument may address the Court’s strained that one waive constitu making rights knowing tional without choice so a intentional long rights a criminal as the do not to the fairness of trial. relate fundamentally suggest, however, argument I in would that that is See, g., law conditions. e. consistent of unconstitutional Perry Thompson, Sindermann, (1972); Shapiro v. 408 593 v. U. S. Verner, (1963); (1969); Sherbert v. 374 S. 394 U. S. 618 398 Speiser (1958). Randall, The v. 357 U. S. 513 discussion of United (1967), ante, Wade, 239-240, 218 at States also seems v. U. S. opinion Kirby v. with the of in Mr. inconsistent Justice Stewart any event, (1972). In Illinois, 406 I do U. S. not understand existence, knowing relinquish without its how can of one only that issue in this case. is many

the Ninth Circuit circumstances said, “[u]nder ‘May I’ person might read an as the reasonable officer’s by of a demand force expression courteous backed my F. in are 2d, cases, view, law.” 448 at 701. Most Carolina, Bumper (1968) akin to North 391 U. : ordinarily consent given acquiescence implicit authority claim to search. Permitting searches such any without circumstances, assurance at all that the sub- ject by of the search knew that, consent, his he relin- quishing his constitutional I rights, something cannot by believe is sanctioned the Constitution.

I—H W-i 1—1 proper resolution of this I believe, case turns, a realistic assessment of the nature the interchange between im- police, practical citizens and the and of the port of allocating proof way the burden rather one escape than another. The Court seeks to assess- such ments escalating heights, its rhetoric to unwarranted but no matter how adjectives uses, forceful the Court it cannot avoid being judged image how well its these interchanges reality. accords with Although says Court without real elaboration that it “cannot ante, agree,” today holding pro- confines tection of the Fourth con- against Amendment searches probable ducted without cause the sophisticated, I knowledgeable, and, might add, the few.13 In the final

analysis, the Court now a game sanctions of blindman’s in which buff, police always upper have the hand, for the of nothing sake more than the convenience of defense, The Court’s half-hearted knowledge lack of is to account,” rings be “taken hollow, light into rather apparent opinion import subject proves even who his lack of knowledge may “voluntarily,” nonetheless have consented under the *60 peculiar Court’s definition of voluntariness. Amend- of the Fourth guarantees But police. such to shrink before intended never

ment were interest. Framers ephemeral changeable this sort against balance Amendment struck Fourth rights. civil basic of certain and in favor convenience balance because to restrike that for this Court It is not officers. enforcement of law own of the needs views its today. decision I the effect of the Court's fear that that is validating It the obsession is regrettable case, evident so searches like conducted in this Court’s vision hyperbole, the Court’s has obscured designed govern how the Fourth Amendment society. between and citizen in our relationship I careful reflection show how experience believe that is, respectfully and I narrow inaccurate vision dissent.