Bumper v. North Carolina



391 U.S. 543

Bumper v. North Carolina

No. 1016 Argued: April 24-25, 1968 --- Decided: June 3, 1968
Petitioner was tried for rape in North Carolina, an offense punishable by death unless the jury recommends life imprisonment. The prosecution was permitted to challenge for cause all prospective jurors who stated that they were opposed to capital punishment or had conscientious scruples against imposing the death penalty. A rifle which was introduced at the trial was obtained by a search of petitioner's grandmother's house, where he resided. Four officers appeared at the home, announced that they had a warrant to search it, and were told by the owner to "[g]o ahead." At the hearing on a motion to suppress, which was denied, the prosecutor stated that he did not rely on a warrant to justify the search, but on consent. The jury found petitioner guilty, but recommended life imprisonment, and the State Supreme Court affirmed.


1. Petitioner has adduced no evidence to support his claim that a jury from which those who are opposed to capital punishment or have conscientious scruples against imposing the death penalty are excluded for cause is necessarily "prosecution prone," warranting reversal of his conviction for denial of his Sixth and Fourteenth Amendment rights to an impartial jury. Witherspoon v. Illinois, ante, p. 510. P. 545.

2. A search cannot be justified as lawful on the basis of consent when that "consent" has been given only after the official conducting the search has asserted that he possesses a warrant; there is no consent under such circumstances. Pp. 546-550.

3. Because the rifle, which was erroneously admitted into evidence, was plainly damaging against petitioner, its admission was not harmless error. Chapman v. California, 386 U.S. 18. P. 550.

270 N.C. 521, 155 S.E.2d 173, reversed and remanded. [p544]

No. 1016 Argued: April 24-25, 1968 --- Decided: June 3, 1968
MR. JUSTICE STEWART delivered the opinion of the Court.

The petitioner was brought to trial in a North Carolina court upon a charge of rape, an offense punishable in that State by death unless the jury recommends life imprisonment. [n1] Among the items of evidence introduced by the prosecution at the trial was a .22-caliber rifle allegedly used in the commission of the crime. The jury found the petitioner guilty, but recommended a sentence of life imprisonment. [n2] The trial court-imposed that sentence, and the Supreme Court of North Carolina affirmed the judgment. [n3] We granted certiorari [n4] to consider two separate constitutional claims pressed unsuccessfully by the petitioner throughout the litigation in the North Carolina courts. First, the petitioner argues that his constitutional right to an impartial jury was violated in this capital case when the prosecution was permitted to challenge for cause all prospective jurors who stated that they were opposed to capital punishment or had conscientious [p545] scruples against imposing the death penalty. Secondly, the petitioner contends that the .22-caliber rifle introduced in evidence against him was obtained by the State in a search and seizure violative of the Fourth and Fourteenth Amendments.


In Witherspoon v. Illinois, ante, p. 510, we have held that a death sentence cannot constitutionally be executed if imposed by a jury from which have been excluded for cause those who, without more, are opposed to capital punishment or have conscientious scruples against imposing the death penalty. Our decision in Witherspoon does not govern the present case, because here, the jury recommended a sentence of life imprisonment. The petitioner argues, however, that a jury qualified under such standards must necessarily be biased as well with respect to a defendant's guilt, and that his conviction must accordingly be reversed because of the denial of his right under the Sixth and Fourteenth Amendments to trial by an impartial jury. Duncan v. Louisiana, ante, p. 145; Turner v. Louisiana, 379 U.S. 466, 471-473; Irvin v. Dowd, 366 U.S. 717, 722-723. We cannot accept that contention in the present case. The petitioner adduced no evidence to support the claim that a jury selected as this one was is necessarily "prosecution prone," [n5] and the materials referred to in his brief are no more substantial than those brought to our attention in Witherspoon. [n6] Accordingly, we decline to reverse the judgment of conviction upon this basis. [p546]


The petitioner lived with his grandmother, Mrs. Hattie Leath, a 66-year-old Negro widow, in a house located in a rural area at the end of an isolated mile-long dirt road. Two days after the alleged offense, but prior to the petitioner's arrest, four white law enforcement officers -- the county sheriff, two of his deputies, and a state investigator -- went to this house and found Mrs. Leath there with some young children. She met the officers at the front door. One of them announced, "I have a search warrant to search your house." Mrs. Leath responded, "Go ahead," and opened the door. In the kitchen the officers found the rifle that was later introduced in evidence at the petitioner's trial after a motion to suppress had been denied.

At the hearing on this motion, the prosecutor informed the court that he did not rely upon a warrant to justify the search, but upon the consent of Mrs. Leath. [n7] She testified at the hearing, stating, among other things:

Four of them came. I was busy about my work, and they walked into the house and one of them walked up and said, "I have a search warrant to search your house," and I walked out and told them to come on in. . . . He just come on in and said he had a warrant to search the house, and he didn't [p547] read it to me or nothing. So, I just told him to come on in and go ahead and search, and I went on about my work. I wasn't concerned what he was about. I was just satisfied. He just told me he had a search warrant, but he didn't read it to me. He did tell me he had a search warrant.

* * * *

. . . He said he was the law and had a search warrant to search the house, why I thought he could go ahead. I believed he had a search warrant. I took him at his word. . . . I just seen them out there in the yard. They got through the door when I opened it. At that time, I did not know my grandson had been charged with crime. Nobody told me anything. They didn't tell me anything, just picked it up like that. They didn't tell me nothing about my grandson. [n8]

Upon the basis of Mrs. Leath's testimony, the trial court found that she had given her consent to the search, and [p548] denied the motion to suppress. [n9] The Supreme Court of North Carolina approved the admission of the evidence on the same basis. [n10]

The issue thus presented is whether a search can be justified as lawful on the basis of consent when that "consent" has been given only after the official conducting the search has asserted that he possesses a warrant. [n11] We hold that there can be no consent under such circumstances.

When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. [n12] This burden cannot be discharged by [p549] showing no more than acquiescence to a claim of lawful authority. [n13] A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. [n14] The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, [p550] or fails to show that there was, in fact, any warrant at all. [n15]

When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion -- albeit colorably lawful coercion. Where there is coercion, there cannot be consent.

We hold that Mrs. Leath did not consent to the search, and that it was constitutional error to admit the rifle in evidence against the petitioner. Mapp v. Ohio, 367 U.S. 643. Because the rifle was plainly damaging evidence against the petitioner with respect to all three of the charges against him, its admission at the trial was not harmless error. Chapman v. California, 386 U.S. 18. [n16] [p551]

The judgment of the Supreme Court of North Carolina is, accordingly, reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

MR. JUSTICE DOUGLAS joins Part II of the opinion of the Court. Since, however, the record shows that 16 of 53 prospective jurors were excused for cause because of their opposition to capital punishment, he would also reverse on the ground that petitioner was denied the right to trial on the issue of guilt by a jury representing a fair cross-section of the community. Witherspoon v. Illinois, ante at 523 (separate opinion). Under North Carolina law, rape is punishable by death unless the jury recommends life imprisonment. N.C.Gen.Stat. § 14-21 (1953). But an indictment for rape includes the lesser offense of an assault with intent to commit rape, and the court has the duty to submit to the jury the lesser degrees of the offense of rape which are supported by the evidence. State v. Green, 246 N.C. 717, 100 S.E.2d 52 (1957). See N.C.Gen.Stat. §§ 15-169, 15-170 (1953). These include assault with intent to commit rape, for which the range of punishment is one to 15 years' imprisonment (N.C.Gen.Stat. § 14-22), and assault (N.C.Gen.Stat. § 14-33). In the instant case, the trial judge did, in fact, charge the jury with respect to these lesser offenses.


Every person who is convicted of ravishing and carnally knowing any female of the age of twelve years or more by force and against her will, or who is convicted of unlawfully and carnally knowing and abusing any female child under the age of twelve years, shall suffer death: Provided, if the jury shall so recommend at the time of rendering its verdict in open court, the punishment shall be imprisonment for life in the State's prison, and the court shall so instruct the jury.
N.C.Gen.Stat. § 14-21 (1953).

2. The petitioner was also convicted upon two charges of felonious assault and sentenced to consecutive 10-year prison terms.

3. 270 N.C. 521, 155 S.E.2d 173.

4. 389 U.S. 1034.

5. He did submit affidavits to the North Carolina Supreme Court referring to studies by W. C. Wilson and F. J. Goldberg, see Witherspoon v. Illinois, ante at 517, n. 10. The court made no findings with respect to those studies, and did not mention them in its opinion.

6. In addition to the materials mentioned in Witherspoon, ante at 517, n. 10, the petitioner's brief in this Court cites in unpublished dissertation by R. Crosson, An Investigation Into Certain Personality Variables Among Capital Trial Jurors (Western Reserve University, January 1966), involving a sample of 72 jurors in Ohio.


THE COURT: There is a motion here that says the property [was] seized against the will of Mrs. Hattie Leath and without a search warrant. Now, the question is, are we going into the search warrant?MR. COOPER: The State is not relying on the search warrant.THE COURT: Are you stating so for the record?MR. COOPER: Yes, sir.
8. She also testified at another point:

I had no objection to them making a search of my house. I was willing to let them look in any room or drawer in my house they wanted to. Nobody threatened me with anything. Nobody told me they were going to hurt me if I didn't let them search my house. Nobody told me they would give me any money if I would let them search. I let them search, and it was all my own free will. Nobody forced me at all.
* * * *

I just give them a free will to look because I felt like the boy wasn't guilty.
The transcript of the suppression hearing comes to us from North Carolina in the form of a narrative; i.e., the actual questions and answers have been rewritten in the form of continuous first person testimony. The effect is to put into the mouth of the witness some of the words of the attorneys. In the case of an obviously compliant witness like Mrs. Leath, the result is a narrative that has the tone of decisiveness but is shot through with contradictions.


The Court finds that from the evidence of Mrs. Hattie Leath that it is of a clear and convincing nature that she, the said Mrs. Hattie Leath, voluntarily consented to the search of her premises, as is more particularly set forth in her evidence, and that that consent was specifically given, and is not the result of coercion from the officers.
10. That court also stated:

The fact that [the search] did reveal the presence of the guilty weapon . . . justifies the search. . . . [The petitioner's] rights have not been violated. Rather, his wrongs have been detected.
270 N.C. at 530-531, 155 S.E.2d at 180.

Any idea that a search can be justified by what it turns up was long ago rejected in our constitutional jurisprudence. "A search prosecuted in violation of the Constitution is not made lawful by what it brings to light. . . ." Byars v. United States, 273 U.S. 28, 29. See also United States v. Di Re, 332 U.S. 581, 595; Henry v. United States, 361 U.S. 98, 103.

11. Mrs. Leath owned both the house and the rifle. The petitioner concedes that her voluntary consent to the search would have been binding upon him. Conversely, there can be no question of the petitioner's standing to challenge the lawfulness of the search. He was the "one against whom the search was directed," Jones v. United States, 362 U.S. 257, 261, and the house searched was his home. The rifle was used by all members of the household, and was found in the common part of the house.

12. Wren v. United States, 352 F.2d 617; Simmons v. Bomar, 349 F.2d 365; Judd v. United States, 89 U.S.App.D.C. 64, 190 F.2d 649; Kovach v. United States, 53 F.2d 639.

13. See, e.g., Amos v. United States, 255 U.S. 313, 317; Johnson v. United States, 333 U.S. 10, 13; Higgins v. United States, 93 U.S.App.D.C. 340, 209 F.2d 819; United States v. Marra, 40 F.2d 271; MacKenzie v. Robbins, 248 F.Supp. 496.


Orderly submission to law enforcement officers who, in effect, represented to the defendant that they had the authority to enter and search the house, against his will if necessary, was not such consent as constituted an understanding, intentional and voluntary waiver by the defendant of his fundamental rights under the Fourth Amendment to the Constitution.
United States v. Elliott, 210 F.Supp. 357, 360.

One is not held to have consented to the search of his premises where it is accomplished pursuant to an apparently valid search warrant. On the contrary, the legal effect is that consent is on the basis of such a warrant, and his permission is construed as an intention to abide by the law, and not resist the search under the warrant, rather than an invitation to search.
Bull v. Armstrong, 254 Ala. 390, 394, 48 So.2d 467, 470.

One who, upon the command of an officer authorized to enter and search and seize by search warrant, opens the door to the officer and acquiesces in obedience to such a request, no matter by what language used in such acquiescence, is but showing a regard for the supremacy of the law. . . . The presentation of a search warrant to those in charge at the place to be searched, by one authorized to serve it, is tinged with coercion, and submission thereto cannot be considered an invitation that would waive the constitutional right against unreasonable searches and seizures, but rather is to be considered a submission to the law.
Melo v. State, 197 Ind. 16, 24, 164 N.E. 93, 96.

See also Salata v. United States, 286 F. 125; Brown v. State, 42 Ala.App. 429, 167 So.2d 281; Mattingly v. Commonwealth, 199 Ky. 30, 250 S.W. 105. Cf. Gibson v. United States, 80 U.S.App.D.C. 81, 149 F.2d 381; Naples v. Maxwell, 271 F.Supp. 850; Atwood v. State, 44 Okla.Cr. 206, 280 P. 319; State v. Watson, 133 Miss. 796, 98 So. 241.

15. During the course of the argument in this case, we were advised that the searching officers did, in fact, have a warrant. But no warrant was ever returned, and there is no way of knowing the conditions under which it was issued, or determining whether it was based upon probable cause.

16. It is suggested in dissent that,

[e]ven assuming . . . that there was no consent to search and that the rifle . . . should not have been admitted into evidence, . . . the conviction should stand.
This suggestion seems to rest on the "horrible" facts of the case, and the assumption that the petitioner was guilty. But it is not the function of this Court to determine innocence or guilt, much less to apply our own subjective notions of justice. Our duty is to uphold the Constitution of the United States.

In view of the discursive factual recital contained in the dissenting opinion, however, an additional word may be in order. There can be no doubt that the crimes were grave and shocking. There can be doubt that the petitioner was their perpetrator. The crimes were committed at night. When, at first, the victims separately viewed a lineup that included the petitioner, each of the victims identified the same man as their assailant. That man was not the petitioner. Later, the victims together viewed another lineup, and every man in the lineup was made to speak his name for "voice identification." This time, the victims identified the petitioner as their assailant. At the time of the lineups, a local newspaper had reported that a man named Wayne Bumper was being held by the sheriff as the "prime suspect" in the case, and at least one of the victims knew of that fact. Earlier, both victims had been shown a collection of photographs. One victim identified a picture of the petitioner; the petitioner's name was written on the back of the photograph.