Schneckloth v. Bustamonte

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 71-732 Argued: October 10, 1972 --- Decided: May 29, 1973
MR JUSTICE STEWART delivered the opinion of the Court.

It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is "per se unreasonable . . . subject only to a few specifically established and well delineated exceptions." Katz v. United States, 389 U.S. 347, 357; Coolidge v. New Hampshire, 403 U.S. 443, 454 455; Chambers v. Maroney, 399 U.S. 42. It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. Davis v. United States, 328 U.S. 582, 593-594; Zap v. Unite,d States, 328 U.S. 624, 630. The constitutional question in the present case concerns the definition of "consent" in this Fourth and Fourteenth Amendment context.

I

The respondent was brought to trial in a California court upon a charge of possessing a check with intent to defraud. [n1] He moved to suppress the introduction of certain material as evidence against him on the ground that the material had been acquired through an unconstitutional search and seizure. In response to the motion, the trial judge conducted an evidentiary hearing [p220] where it was established that the material in question had been acquired by the State under the following circumstances:

While on routine patrol in Sunnyvale, California, at approximately 2:40 in the morning, Police Officer James Rand stopped an automobile when he observed that one headlight and its license plate light were burned out. Six men were in the vehicle. Joe Alcala and the respondent, Robert Bustamonte, were in the front seat with Joe Gonzales, the driver. Three older men were seated in the rear. When, in response to the policeman's question, Gonzales could not produce a driver's license, Officer Rand asked if any of the other five had any evidence of identification. Only Alcala produced a license, and he explained that the car was his brother's. After the six occupants had stepped out of the car at the officer's request, and after two additional policemen had arrived, Officer Rand asked Alcala if he could search the car. Alcala replied, "Sure, go ahead." Prior to the search, no one was threatened with arrest, and, according to Officer Rand's uncontradicted testimony, it "was all very congenial at this time." Gonzales testified that Alcala actually helped in the search of the car by opening the trunk and glove compartment. In Gonzales' words:

[T]he police officer asked Joe [Alcala], he goes, "Does the trunk open?" And Joe said, "Yes." He went to the car and got the keys and opened up the trunk.

Wadded up under the left rear seat, the police officers found three checks that had previously been stolen from a car wash.

The trial judge denied the motion to suppress, and the checks in question were admitted in evidence at Bustamonte's trial. On the basis of this and other evidence, he was convicted, and the California Court of Appeal for the First Appellate District affirmed the conviction. [p221] 270 Cal.App.2d 648, 76 Cal.Rptr. 17. In agreeing that the search and seizure were constitutionally valid, the appellate court applied the standard earlier formulated by the Supreme Court of California in an opinion by then Justice Traynor:

Whether, in a particular case, an apparent consent was, in fact, voluntarily given, or was in submission to an express or implied assertion of authority, is a question of fact to be determined in the light of all the circumstances.

People v. Michael, 45 Cal.2d 751, 753, 290 P.2d 852, 854. The appellate court found that,

[i]n the instant case, the prosecution met the necessary burden of showing consent . . . , since there were clearly circumstances from which the trial court could ascertain that consent had been freely given without coercion or submission to authority. Not only officer Rand, but Gonzales, the driver of the automobile, testified that Alcala's assent to the search of his brother's automobile was freely, even casually given. At the time of the request to search the automobile, the atmosphere, according to Rand, was "congenial," and there had been no discussion of any crime. As noted, Gonzales said Alcala even attempted to aid in the search.

270 Cal.App.2d at 652, 76 Cal.Rptr. at 20. The California Supreme Court denied review. [n2]

Thereafter, the respondent sought a writ of habeas corpus in a federal district court. It was denied. [n3] On appeal, the Court of Appeals for the Ninth Circuit, relying on its prior decisions in Cipres v. United States, 343 F.2d 95, and Schoep v. United States, 391 F.2d 390, set aside the District Court's order. 448 F.2d 699. The appellate court reasoned that a consent was a waiver of a person's Fourth and Fourteenth Amendment rights, and that the State was under an obligation to demonstrate, [p222] not only that the consent had been uncoerced, but that it had been given with an understanding that it could be freely and effectively withheld. Consent could not be found, the court held, solely from the absence of coercion and a verbal expression of assent. Since the District Court had not determined that Alcala had known that his consent could have been withheld and that he could have refused to have his vehicle searched, the Court of Appeals vacated the order denying the writ and remanded the case for further proceedings. We granted certiorari to determine whether the Fourth and Fourteenth Amendments require the showing thought necessary by the Court of Appeals. 405 U.S. 953.

II

It is important to make it clear at the outset what is not involved in this case. The respondent concedes that a search conducted pursuant to a valid consent is constitutionally permissible. In Katz v. United States, 389 U.S. at 358, and more recently in Vale v. Louisiana, 399 U.S. 30, 35, we recognized that a search authorized by consent is wholly valid. See also Davis v. United States, 328 U.S. at 593-594; Zap v. United States, 328 U.S. at 630. [n4] And similarly, the State concedes that,

[w]hen 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.

Bumper v. North Carolina, 391 U.S. 543, 548. See also Johnson v. United States, 333 U.S. 10; Amos v. United States, 255 U.S. 313. [p223]

The precise question in this case, then, is what must the prosecution prove to demonstrate that a consent was "voluntarily" given. And, upon that question, there is a square conflict of views between the state and federal courts that have reviewed the search involved in the case before us. The Court of Appeals for the Ninth Circuity concluded that it is an essential part of the State's initial burden to prove that a person knows he has a right to refuse consent. The California courts have followed the rule that voluntariness is a question of fact to be determined from the totality of all the circumstances, and that the state of a defendant's knowledge is only one factor to be taken into account in assessing the voluntariness of a consent. See, e.g., People v. Treymayne, 20 Cal.App.3d 1006, 98 Cal.Rptr. 193; People v. Roberts, 246 Cal.App.2d 715, 55 Cal.Rptr. 62.

A

The most extensive judicial exposition of the meaning of "voluntariness" have been developed in those cases in which the Court has had to determine the "voluntariness" of a defendant's confession for purposes of the Fourteenth Amendment. Almost 40 years ago, in Brown v. Mississippi, 297 U.S. 278, the Court held that a criminal conviction based upon a confession obtained by brutality and violence was constitutionally invalid under the Due Process Clause of the Fourteenth Amendment. In some 30 different cases decided during the era that intervened between Brown and Escobedo v. Illinois, 378 U.S. 478, the Court was faced with the necessity of determining whether in fact the confessions in issue had been "voluntarily" given. [n5] It is to that body [p224] of case law to which we turn for initial guidance on the meaning of "voluntariness" in the present context. [n6]

Those cases yield no talismanic definition of "voluntariness" mechanically applicable to the host of situations where the question has arisen. "The notion of ‘voluntariness,'" Mr. Justice Frankfurter once wrote, "is itself an amphibian." Culombe v. Connecticut, 367 U.S. 568, 604 605. It cannot be taken literally to mean a "knowing" choice.

Except where a person is unconscious or drugged or otherwise lacks capacity for conscious choice, all incriminating statements -- even those made under brutal treatment -- are "voluntary" in the sense of representing a choice of alternatives. On the other hand, if "voluntariness" incorporates notions of "but-for" cause, the question should be whether the statement would have been made even absent inquiry or other official action. Under such a test, virtually no statement would be voluntary, because very few people give incriminating statements in the absence of official action of some kind. [n7]

It is thus evident that neither linguistics nor epistemology will provide a ready definition of the meaning of "voluntariness."

Rather, "voluntariness" has reflected an accommodation of the complex of values implicated in police questioning [p225] of a suspect. At one end of the spectrum is the acknowledged need for police questioning as a tool for the effective enforcement of criminal laws. See Culombe v. Connecticut, supra, at 578-580. Without such investigation, those who were innocent might be falsely accused, those who were guilty might wholly escape prosecution, and many crimes would go unsolved. In short, the security of all would be diminished. Haynes v. Washington, 373 U.S. 503, 515. At the other end of the spectrum is the set of values reflecting society's deeply felt belief that the criminal law cannot be used as an instrument of unfairness, and that the possibility of unfair and even brutal police tactics poses a real and serious threat to civilized notions of justice.

[I]n cases involving involuntary confessions, this Court enforces the strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will.

Blackburn v. Alabama, 361 U.S. 199, 206-207. See also Culombe v. Connecticut, supra, at 581-584; Chambers v. Florida, 309 U.S. 227, 235-238.

This Court's decisions reflect a frank recognition that the Constitution requires the sacrifice of neither security nor liberty. The Due Process Clause does not mandate that the police forgo all questioning, or that they be given carte blanche to extract what they can from a suspect.

The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his [p226] confession offends due process.

Culombe v. Connecticut, supra, at 602.

In determining whether a defendant's will was overborne in a particular case, the Court has assessed the totality of all the surrounding circumstances -- both the characteristics of the accused and the details of the interrogation. Some of the factors taken into account have included the youth of the accused, e.g., Haley v. Ohio, 332 U.S. 596; his lack of education, e.g., Payne v. Arkansas, 356 U.S. 560; or his low intelligence, e.g., Fikes v. Alabama, 352 U.S. 191; the lack of any advice to the accused of his constitutional rights, e.g., Davis v. North Carolina, 384 U.S. 737; the length of detention, e.g., Chambers v. Florida, supra; the repeated and prolonged nature of the questioning, e.g., Ashcraft v. Tennessee, 322 U.S. 143; and the use of physical punishment such as the deprivation of food or sleep, e.g., Reck v. Pate, 367 U.S. 433. [n8] In all of these cases, the Court determined the factual circumstances surrounding the confession, assessed the psychological impact on the accused, and evaluated the legal significance of how the accused reacted. Culombe v. Connecticut, supra, at 603.

The significant fact about all of these decisions is that none of them turned on the presence or absence of a single controlling criterion; each reflected a careful scrutiny of all the surrounding circumstances. See Miranda v. Arizona, 384 U.S. 436, 508 (Harlan, J., dissenting); id. at 534-535 (WHITE, J., dissenting). In none of them did the Court rule that the Due Process Clause required the prosecution to prove as part of its [p227] initial burden that the defendant knew he had a right to refuse to answer the questions that were put. While the state of the accused's mind, and the failure of the police to advise the accused of his rights, were certainly factors to be evaluated in assessing the "voluntariness" of an accused's responses, they were not, in and of themselves, determinative. See, e.g., Davis v. North Carolina, supra; Haynes v. Washington, supra, at 510-511; Culombe v. Connecticut, supra, at 610; Turner v. Pennsylvania, 338 U.S. 62, 64.

B

Similar considerations lead us to agree with the courts of California that the question whether a consent to a search was in fact, "voluntary" or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent. As with police questioning, two competing concerns must be accommodated in determining the meaning of a "voluntary" consent -- the legitimate need for such searches and the equally important requirement of assuring the absence of coercion.

In situations where the police have some evidence of illicit activity, but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important and reliable evidence. [n9] In the present case, for example, while the police had reason to stop the car for traffic violations, the State does not contend that there was probable cause to search the vehicle or that the search was incident to a valid arrest [p228] of any of the occupants. [n10] Yet the search yielded tangible evidence that served as a basis for a prosecution, and provided some assurance that others, wholly innocent of the crime, were not mistakenly brought to trial. And in those cases where there is probable cause to arrest or search, but where the police lack a warrant, a consent search may still be valuable. If the search is conducted and proves fruitless, that, in itself, may convince the police that an arrest with its possible stigma and embarrassment is unnecessary, or that a far more extensive search pursuant to a warrant is not justified. In short, a search pursuant to consent may result in considerably less inconvenience for the subject of the search, and, properly conducted, is a constitutionally permissible and wholly legitimate aspect of effective police activity.

But the Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. For no matter how subtly the coercion was applied, the resulting "consent" would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed. In the words of the classic admonition in Boyd v. United States, 116 U.S. 616, 635:

It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close [p229] and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen and against any stealthy encroachments thereon.

The problem of reconciling the recognized legitimacy of consent searches with the requirement that they be free from any aspect of official coercion cannot be resolved by any infallible touchstone. To approve such searches without the most careful scrutiny would sanction the possibility of official coercion; to place artificial restrictions upon such searches would jeopardize their basic validity. Just as was true with confessions, the requirement of a "voluntary" consent reflects a fair accommodation of the constitutional requirements involved. In examining all the surrounding circumstances to determine if in fact, the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents. Those searches that are the product of police coercion can thus be filtered out without undermining the continuing validity of consent searches. In sum, there is no reason for us to depart in the area of consent searches, from the traditional definition of "voluntariness."

The approach of the Court of Appeals for the Ninth Circuit finds no support in any of our decisions that have attempted to define the meaning of "voluntariness." Its ruling, that the State must affirmatively prove that the subject of the search knew that he had a right to refuse consent, would, in practice, create serious doubt whether consent searches could continue to be conducted. There might be rare cases where it could be proved from the record that a person in fact, affirmatively knew of his [p230] right to refuse -- such as a case where he announced to the police that, if he didn't sign the consent form, "you [police] are going to get a search warrant;" [n11] or a case where, by prior experience and training, a person had clearly and convincingly demonstrated such knowledge. [n12] But, more commonly, where there was no evidence of any coercion, explicit or implicit, the prosecution would nevertheless be unable to demonstrate that the subject of the search in fact, had known of his right to refuse consent.

The very object of the inquiry -- the nature of a person's subjective understanding -- underlines the difficulty of the prosecution's burden under the rule applied by the Court of Appeals in this case. Any defendant who was the subject of a search authorized solely by his consent could effectively frustrate the introduction into evidence of the fruits of that search by simply failing to testify that he in fact, knew he could refuse to consent. And the near impossibility of meeting this prosecutorial burden suggests why this Court has never accepted any such litmus paper test of voluntariness. It is instructive to recall the fears of then Justice Traynor of the California Supreme Court:

[I]t is not unreasonable for officers to seek interviews with suspects or witnesses or to call upon them at their homes for such purposes. Such inquiries, although courteously made and not accompanied with any assertion of a right to enter or search or secure answers, would permit the criminal to defeat his prosecution by voluntarily revealing all of the evidence against him and then contending that he acted only in response to an implied assertion of [p231] unlawful authority.

People v. Michael, 45 Cal.2d at 754, 290 P.2d at 854.

One alternative that would go far toward proving that the subject of a search did know he had a right to refuse consent would be to advise him of that right before eliciting his consent. That, however, is a suggestion that has been almost universally repudiated by both federal [n13] and state courts [n14] and, we think, rightly so. For it would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning. Consent searches are part of the standard investigatory techniques of law enforcement [p232] agencies. They normally occur on the highway, or in a person's home or office, and under informal and unstructured conditions. The circumstances that prompt the initial request to search may develop quickly or be a logical extension of investigative police questioning. The police may seek to investigate further suspicious circumstances or to follow up leads developed in questioning persons at the scene of a crime. These situations are a far cry from the structured atmosphere of a trial where, assisted by counsel if he chooses, a defendant is informed of his trial rights. Cf. Boykin v. Alabama, 395 U.S. 238, 243. and, while surely a closer question, these situations are still immeasurably far removed from "custodial interrogation" where, in Miranda v. Arizona, supra, we found that the Constitution required certain now familiar warnings as a prerequisite to police interrogation. Indeed, in language applicable to the typical consent search, we refused to extend the need for warnings:

Our decision is not intended to hamper the traditional function of police officers in investigating crime. . . . When an individual is in custody on probable cause, the police may, of course, seek out evidence in the field to be used at trial against him. Such investigation may include inquiry of persons not under restraint. General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the factfinding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement.

384 U.S. at 477-478.

Consequently, we cannot accept the position of the Court of Appeals in this case that proof of knowledge of the right to refuse consent is a necessary prerequisite [p233] to demonstrating a "voluntary" consent. Rather, it is only by analyzing all the circumstances of an individual consent that it can be ascertained whether, in fact, it was voluntary or coerced. It is this careful sifting of the unique facts and circumstances of each case that is evidenced in our prior decisions involving consent searches.

For example, in Davis v. United States, 328 U.S. 582, federal agents enforcing wartime gasoline rationing regulations arrested a filling station operator and asked to see his rationing coupons. He eventually unlocked a room where the agents discovered the coupons that formed the basis for his conviction. The District Court found that the petitioner had consented to the search -- that, although he had at first refused to turn the coupons over, he had soon been persuaded to do so, and that force or threat of force had not been employed to persuade him. Concluding that it could not be said that this finding was erroneous, this Court, in an opinion by MR. JUSTICE DOUGLAS that looked to all the circumstances surrounding the consent, affirmed the judgment of conviction:

The public character of the property, the fact that the demand was made during business hours at the place of business where the coupons were required to be kept, the existence of the right to inspect, the nature of the request, the fact that the initial refusal to turn the coupons over was soon followed by acquiescence in the demand -- these circumstances all support the conclusion of the District Court.

Id. at 593-594. See also Zap v. United States, 328 U.S. 624.

Conversely, if, under all the circumstances, it has appeared that the consent was not given voluntarily -- that it was coerced by threats or force, or granted only in submission to a claim of lawful authority -- then we have found the consent invalid and the search unreasonable. See, e.g., Bumper v. North Carolina, 391 U.S. at 548-549; Johnson v. United States, 333 U.S. 10; Amos v. [p234] United States, 255 U.S. 313. In Bumper, a 66-year-old Negro widow, who lived in a house located in a rural area at the end of an isolated mile-long dirt road, allowed four white law enforcement officials to search her home after they asserted they had a warrant to search the house. We held the alleged consent to be invalid, noting that,

[w]hen 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.

391 U.S. at 550.

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

In short, neither this Court's prior cases nor the traditional definition of "voluntariness" requires proof of knowledge of a right to refuse as the sine qua non of an effective consent to a search. [n15] [p235]

C

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

But these standards were enunciated in Johnson in the context of the safeguards of a fair criminal trial. Our cases do not reflect an uncritical demand for a knowing and intelligent waiver in every situation where a person has failed to invoke a constitutional protection. As Mr. Justice Black once observed for the Court: "‘Waiver' is a vague term used for a great variety of purposes, good and bad, in the law." Green v. United States, 355 U.S. 184, 191. With respect to procedural due process, for example, the Court has acknowledged that waiver is possible, while explicitly leaving open the question whether a "knowing and intelligent" waiver need be shown. [n16] See D. N. Overmyer Co. v. Frick Co., [p236] 405 U.S. 174, 185-186; Fuentes v. Shevin, 407 U.S. 67, 94-96. [n17]

The requirement of a "knowing" and "intelligent" waiver was articulated in a case involving the validity of a defendant's decision to forgo a right constitutionally guaranteed to protect a fair trial and the reliability of the truth-determining process. Johnson v. Zerbst, supra, dealt with the denial of counsel in a federal criminal trial. There, the Court held that, under the Sixth Amendment, a criminal defendant is entitled to the assistance of counsel, and that, if he lacks sufficient funds to retain counsel, it is the Government's obligation to furnish him with a lawyer. As Mr. Justice Black wrote for the Court:

The Sixth Amendment stands as a constant admonition that, if the constitutional safeguards it provides be lost, justice will not "still be done." It embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel. That which is simple, orderly and necessary to the lawyer, to the untrained layman may appear intricate, complex and mysterious.

304 U.S. at 462-463 (footnote omitted). To preserve the fairness of the trial process, the Court established an appropriately heavy burden on the Government before waiver could be found -- "an intentional [p237] relinquishment or abandonment of a known right or privilege." Id. at 464.

Almost without exception, the requirement of a knowing and intelligent waiver has been applied only to those rights which the Constitution guarantees to a criminal defendant in order to preserve a fair trial. [n18] Hence, and hardly surprisingly in view of the facts of Johnson itself, the standard of a knowing and intelligent waiver has most often been applied to test the validity of a waiver of counsel, either at trial, [n19] or upon a guilty plea. [n20] And the Court has also applied the Johnson criteria to assess the effectiveness of a waiver of other trial rights such as the right to confrontation, [n21] to a jury trial, [n22] and to a speedy trial, [n23] and the right to be free from [p238] twice being placed in jeopardy. [n24] Guilty pleas have been carefully scrutinized to determine whether the accused knew and understood all the rights to which he would be entitled at trial, and that he had intentionally chosen to forgo them. [n25] And the Court has evaluated the knowing and intelligent nature of the waiver of trial rights in trial-type situations, such as the waiver of the privilege against compulsory self-incrimination before an administrative agency [n26] or a congressional committee, [n27] or the waiver of counsel in a juvenile proceeding. [n28] The guarantees afforded a criminal defendant at trial also protect him at certain stages before the actual trial, and any alleged waiver must meet the strict standard of an intentional relinquishment of a "known" right. But the "trial" guarantees that have been applied to the "pretrial" [p239] stage of the criminal process are similarly designed to protect the fairness of the trial itself.

Hence, in United States v. Wade, 388 U.S. 218, and Gilbert v. California, 388 U.S. 263, the Court held

that a post-indictment pretrial lineup at which the accused is exhibited to identifying witnesses is a critical stage of the criminal prosecution; that police conduct of such a lineup without notice to and in the absence of his counsel denies the accused his Sixth [and Fourteenth] Amendment right to counsel. . . .

Id. at 272. Accordingly, the Court indicated that the standard of a knowing and intelligent waiver must be applied to test the waiver of counsel at such a lineup. See United States v. Wade, supra, at 237. The Court stressed the necessary interrelationship between the presence of counsel at a postindictment lineup before trial and the protection of the trial process itself:

Insofar as the accused's conviction may rest on a courtroom identification in fact, the fruit of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of cross-examination which is an essential safeguard to his right to confront the witnesses against him. Pointer v. Texas, 380 U.S. 400. And even though cross-examination is a precious safeguard to a fair trial, it cannot be viewed as an absolute assurance of accuracy and reliability. Thus, in the present context, where so many variables and pitfalls exist, the first line of defense must be the prevention of unfairness and the lessening of the hazards of eyewitness identification at the lineup itself. The trial which might determine the accused's fate may well not be that in the courtroom but that, at the pretrial confrontation, with the State aligned against the accused, the [p240] witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness -- "that's the man."

Id. at 235-236.

And in Miranda v. Arizona, 384 U.S. 436, the Court found that custodial interrogation by the police was inherently coercive, and consequently held that detailed warnings were required to protect the privilege against compulsory self-incrimination. The Court made it clear that the basis for decision was the need to protect the fairness of the trial itself:

That counsel is present when statements are taken from an individual during interrogation obviously enhances the integrity of the factfinding processes in court. The presence of an attorney, and the warnings delivered to the individual, enable the defendant under otherwise compelling circumstances to tell his story without fear, effectively, and in a way that eliminates the evils in the interrogation process. Without the protections flowing from adequate warnings and the rights of counsel,

all the careful safeguards erected around the giving of testimony, whether by an accused or any other witness, would become empty formalities in a procedure where the most compelling possible evidence of guilt, a confession, would have already been obtained at the unsupervised pleasure of the police.

Id. at 466.

The standards of Johnson were, therefore, found to be a necessary prerequisite to a finding of a valid waiver. See 384 U.S. at 475-479. Cf. Escobedo v. Illinois, 378 U.S. at 490 n. 14. [n29] [p241]

There is a vast difference between those rights that protect a fair criminal trial and the rights guaranteed under the Fourth Amendment. Nothing, either in the purposes behind requiring a "knowing" and "intelligent" waiver of trial rights, or in the practical application of such a requirement suggests that it ought to be extended to the constitutional guarantee against unreasonable searches and seizures.

A strict standard of waiver has been applied to those rights guaranteed to a criminal defendant to insure that he will be accorded the greatest possible opportunity to utilize every facet of the constitutional model of a fair criminal trial. Any trial conducted in derogation of that model leaves open the possibility that the trial reached an unfair result precisely because all the protections specified in the Constitution were not provided. A prime example is the right to counsel. For without that right, a wholly innocent accused faces the real and substantial danger that simply because of his lack of legal expertise he may be convicted. As Mr. Justice Harlan once wrote:

The sound reason why [the right to counsel] is so freely extended for a criminal trial is the severe injustice risked by confronting an untrained defendant with a range of technical points of law, evidence, and tactics familiar to the prosecutor but, not to [p242] himself.

Miranda v. Arizona, supra, at 514 (dissenting opinion). The Constitution requires that every effort be made to see to it that a defendant in a criminal case has not unknowingly relinquished the basic protections that the Framers thought indispensable to a fair trial. [n30]

The protections of the Fourth Amendment are of a wholly different order, and have nothing whatever to do with promoting the fair ascertainment of truth at a criminal trial. Rather, as Mr. Justice Frankfurter's opinion for the Court put it in Wolf v. Colorado, 338 U.S. 25, 27, the Fourth Amendment protects the "security of one's privacy against arbitrary intrusion by the police. . . ." In declining to apply the exclusionary rule of Mapp v. Ohio, 367 U.S. 643, to convictions that had become final before rendition of that decision, the Court emphasized that "there is no likelihood of unreliability or coercion present in a search and seizure case," Linkletter v. Walker, 381 U.S. 618, 638. In Linkletter, the Court indicated that those cases that had been given retroactive effect went to "the fairness of the trial -- the very integrity of the factfinding process. Here . . . the fairness of the trial is not under attack." Id. at 639. The Fourth Amendment "is not an adjunct to the ascertainment of truth." The guarantees of the Fourth Amendment stand

as a protection of quite different constitutional values -- values reflecting the concern of our society for the right of each individual to be let alone. To recognize this is no more than to accord those values undiluted respect.

Tehan v. United States ex rel. Shott, 382 U.S. 406, 416.

Nor can it even be said that a search, as opposed to an eventual trial, is somehow "unfair" if a person consents to a search. While the Fourth and Fourteenth [p243] Amendments limit the circumstances under which the police can conduct a search, there is nothing constitutionally suspect in a person's voluntarily allowing a search. The actual conduct of the search may be precisely the same as if the police had obtained a warrant. And, unlike those constitutional guarantees that protect a defendant at trial, it cannot be said every reasonable presumption ought to be indulged against voluntary relinquishment. We have only recently stated:

[I]t is no part of the policy underlying the Fourth and Fourteenth Amendments to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals.

Coolidge v. New Hampshire, 403 U.S. at 488. Rather, the community has a real interest in encouraging consent, for the resulting search may yield necessary evidence for the solution and prosecution of crime, evidence that may insure that a wholly innocent person is not wrongly charged with a criminal offense.

Those cases that have dealt with the application of the Johnson v. Zerbst rule make clear that it would be next to impossible to apply to a consent search the standard of "an intentional relinquishment or abandonment of a known right or privilege." [n31] To be true to Johnson [p244] and its progeny, there must be examination into the knowing and understanding nature of the waiver, an examination that was designed for a trial judge in the structured atmosphere of a courtroom. As the Court expressed it in Johnson:

The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused -- whose life or liberty is at stake is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.

304 U.S. at 465. [n32] [p245] It would be unrealistic to expect that in the informal, unstructured context of a consent search, a policeman, upon pain of tainting the evidence obtained, could make the detailed type of examination demanded by Johnson. And, if for this reason a diluted form of "waiver" were found acceptable, that would itself be ample recognition of the fact that there is no universal standard that must be applied in every situation where a person forgoes a constitutional right. [n33]

Similarly, a "waiver" approach to consent searches would be thoroughly inconsistent with our decisions that have approved "third party consents." In Coolidge v. New Hampshire, 403 U.S. at 487-490, where a wife surrendered to the police guns and clothing belonging to her husband, we found nothing constitutionally impermissible in the admission of that evidence at trial, since the wife had not been coerced. Frazier v. Cupp, 394 U.S. 731, 740, held that evidence seized from the defendant's duffel bag in a search authorized by his cousin's consent was admissible at trial. We found that the defendant had assumed the risk that his cousin, with whom he shared the bag, would allow the police to search it. See also Abel v. United States, 362 U.S. 217. And [p246] in Hill v. California, 401 U.S. 797, 802-805, we held that the police had validly seized evidence from the petitioner's apartment incident to the arrest of a third party, since the police had probable cause to arrest the petitioner and reasonably, though mistakenly, believed the man they had arrested was he. Yet it is inconceivable that the Constitution could countenance the waiver of a defendant's right to counsel by a third party, or that a waiver could be found because a trial judge reasonably, though mistakenly, believed a defendant had waived his right to plead not guilty. [n34]

In short, there is nothing in the purposes or application of the waiver requirements of Johnson v. Zerbst that justifies, much less compels, the easy equation of a knowing waiver with a consent search. To make such an equation is to generalize from the broad rhetoric of some of our decisions, and to ignore the substance of the differing constitutional guarantees. We decline to follow what one judicial scholar has termed

the domino method of constitutional adjudication . . . wherein every explanatory statement in a previous opinion is made the basis for extension to a wholly different situation. [n35]

D

Much of what has already been said disposes of the argument that the Court's decision in the Miranda case requires the conclusion that knowledge of a right to refuse is an indispensable element of a valid consent. The considerations that informed the Court's holding in Miranda are simply inapplicable in the present case. [p247] In Miranda, the Court found that the techniques of police questioning and the nature of custodial surroundings produce an inherently coercive situation. The Court concluded that,

[u]nless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.

384 U.S. at 458. And, at another point, the Court noted that,

without proper safeguards, the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely.

Id. at 467.

In this case, there is no evidence of any inherently coercive tactics -- either from the nature of the police questioning or the environment in which it took place. Indeed, since consent searches will normally occur on a person's own familiar territory, the specter of incommunicado police interrogation in some remote station house is simply inapposite. [n36] There is no reason to believe, under circumstances such as are present here, that the response to a policeman's question is presumptively coerced; and there is, therefore, no reason to reject the traditional test for determining the voluntariness of a person's response. Miranda, of course, did not reach investigative questioning of a person not in custody, which is most directly analogous to the situation of a consent search, and it assuredly did not indicate that such questioning ought to be deemed inherently coercive. See supra at 232.

It is also argued that the failure to require the Government to establish knowledge as a prerequisite to a valid [p248] consent, will relegate the Fourth Amendment to the special province of "the sophisticated, the knowledgeable and the privileged." We cannot agree. The traditional definition of voluntariness we accept today has always taken into account evidence of minimal schooling, low intelligence, and the lack of any effective warnings to a person of his rights; and the voluntariness of any statement taken under those conditions has been carefully scrutinized to determine whether it was in fact, voluntarily given. [n37]

E

Our decision today is a narrow one. We hold only that, when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact, voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact [p249] to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent. [n38] Because the California court followed these principles in affirming the respondent's conviction, and because the Court of Appeals for the Ninth Circuit, in remanding for an evidentiary hearing, required more, its judgment must be reversed.

It so ordered.

1. Cal.Penal Code § 475a.

2. The order of the California Supreme Court is unreported.

3. The decision of the District Court is unreported.

4.

One would expect a hard-headed system like the common law to recognize exceptions even to the most comprehensive principle for safeguarding liberty. This is true of the prohibition of all searches and seizures as unreasonable unless authorized by a judicial warrant appropriately supported.

Davis v. United States, 328 U.S. 582, 609 (Frankfurter, J., dissenting).

5. See Miranda v. Arizona, 384 U.S. 436, 507, and n. 3 (Harlan, J., dissenting); Spano v. New York, 360 U.S. 315, 321 n. 2 (citing 28 cases).

6. Similarly, when we recently considered the meaning of a "voluntary" guilty plea, we returned to the standards of "voluntariness" developed in the coerced confession cases. See Brady v. United States, 397 U.S. 742, 749. See also n. 25, infra.

7. Bator & Vorenberg, Arrest, Detention, Interrogation and the Right to Counsel: Basic Problems and Possible Legislative Solutions, 66 Col.L.Rev. 62, 72-73. See also 3 J. Wigmore, Evidence § 826 (J. Chadbourn rev.1970):

When, for example, threats are used, the situation is one of choice between alternatives, either one disagreeable, to be sure, but still subject to a choice. As between the rack and a confession, the latter would usually be considered the less disagreeable; but it is nonetheless a voluntary choice.

8. See generally Miranda v. Arizona, 384 U.S. at 508 (Harlan, J., dissenting); 3 J. Wigmore, Evidence § 826 (J. Chadbourn rev.1970); Note, Developments in the Law: Confessions, 79 Harv.L.Rev. 938, 95984.

9. See Note, Consent Searches: A Reappraisal After Miranda v. Arizona, 67 Col.L.Rev. 130, 130-131.

10. If there had been probable cause for the search of the automobile, a search warrant would not have been necessary in this case. See Brinegar v. United States, 338 U.S. 160; Carroll v. United States, 267 U.S. 132.

11. United States v. Curiale, 414 F.2d 744, 747.

12. Cf. Rosenthall v. Henderson, 389 F.2d 514, 516.

13. See, e.g., Gorman v. United States, 380 F.2d 158, 164 (CA1); United States ex rel. Cole v. Mancusi, 429 F.2d 61, 66 (CA2); United States ex rel. Harris v. Hendricks, 423 F.2d 1096, 1101 (CA3); United States v. Vickers, 387 F.2d 703, 707 (CA4); United States v. Goosbey, 419 F.2d 818 (CA6); United States v. Noa, 443 F.2d 144, 147 (CA9); Leeper v. United States, 446 F.2d 281, 284 (CA10). But see United States v. Nikrasch, 367 F.2d 740, 744 (CA7); United States v. Moderacki, 280 F.Supp. 633 (Del.); United States v. Blalock, 255 F.Supp. 268 (ED Pa.). While there is dictum in Nikrasch to the effect that warnings are necessary for an effective Fourth Amendment consent, the Court of Appeals for the Seventh Circuit subsequently recanted that position and termed it "of dubious propriety." Byrd v. Lane, 398 F.2d 750, 755. The Court of Appeals limited Nikrasch to its facts -- a case where a suspect arrested on a disorderly conduct charge and incarcerated for eight hours "consented" from his jail cell to a search of his car.

14. See, e.g., People v. Roberts, 246 Cal.App.2d 715, 55 Cal.Rptr. 62; People v. Dahlke, 257 Cal.App.2d 82, 64 Cal.Rptr. 599; State v. Custer, 251 So.2d 287 (Fla.App.); State v. Oldham, 92 Idaho 124, 438 P.2d 275; State v. McCarty, 199 Kan. 116, 427 P.2d 616, vacated in part on other grounds, 392 U.S. 308; Hohnke v. Commonwealth, 451 S.W.2d 162 (Ky.); State v. Andrus, 250 La. 765, 199 So.2d 867; Morgan v. State, 2 Md.App. 440, 234 A.2d 762; State v. Witherspoon, 460 S.W.2d 281 (Mo.); State v. Forney, 181 Neb. 757, 150 N.W.2d 915; State v. Douglas, 260 Ore. 60, 488 P.2d 1366.

15. This view is bolstered by Coolidge v. New Hampshire, 403 U.S. 443. There, the Court determined that a suspect's wife was not operating as an agent of the State when she handed over her husband's guns and clothing to the police. We found nothing constitutionally suspect in the subjective forces that impelled the spouse to cooperate with the police.

Among these are the simple but often powerful convention of openness and honesty, the fear that secretive behavior will intensify suspicion, and uncertainty as to what course is most likely to be helpful to the absent spouse.

Id. at 488.

The test . . . is whether Mrs. Coolidge, in light of all the circumstances of the case, must be regarded as having acted as an "instrument" or agent of the state when she produced her husband's belongings.

Id. at 487.

Just as it was necessary in Coolidge to analyze the totality of the surrounding circumstances to assess the validity of Mrs. Coolidge's offer of evidence, it is equally necessary to assess all the circumstances surrounding a search where consent is obtained in response to an initial police question.

16. Johnson v. Zerbst, 304 U.S. 458, itself relied on three civil cases, but none of those cases established the proposition that a waiver, to be effective, must be knowing and intelligent. Hodges v. Easton, 106 U.S. 408, which concerned the waiver of a civil jury trial by the submission of a special verdict to the jury, indicates only that "every reasonable presumption should be indulged against . . . waiver." Id. at 412. Aetna Ins. Co. v. Kennedy, 301 U.S. 389, is to the same effect. Ohio Bell Tel. Co. v. Public Utilities Comm'n, 301 U.S. 292, which involved the possible waiver of procedural due process rights, stands only for the proposition that: "We do not presume acquiescence in the loss of fundamental rights." Id. at 307.

17. Cf. Parden v. Terminal R. Co., 377 U.S. 184 (operation of common carrier railroad found to be waiver of State's sovereign immunity despite objection that there was no "waiver" under Johnson); National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311 (valid waiver of procedural due process found over objection of no compliance with Johnson). See also Employees v. Missouri Public Health Dept., 411 U.S. 279, 296 (MARSHALL, J., concurring in result).

18. One apparent exception was Marchetti v. United States, 390 U.S. 39, 51-52, where we found no meaningful waiver of the privilege against compulsory self-incrimination when a gambler was forced to pay a wagering tax. We reasoned that there could be no choice when the gambler was faced with the alternative of giving up gambling or providing incriminatory information. Analytically, therefore, although the Court cited Johnson, Marchetti turned on the lack of a "voluntary" waiver, rather than the lack of any "knowing" and "intelligent" waiver.

19. See, e.g., Glasser v. United States, 315 U.S. 60; Adams v. United States ex rel. McCann, 317 U.S. 269; Carnley v. Cochran, 369 U.S. 506; cf. Chessman v. Teets, 354 U.S. 156 (no waiver of counsel shown at settlement of state court record).

20. See, e.g., Von Moltke v. Gillies, 332 U.S. 708; Uveges v. Pennsylvania, 335 U.S. 437; Moore v. Michigan, 355 U.S. 155; Boyd v. Dutton, 405 U.S. 1.

21. See, e.g., Brookhart v. Janis, 384 U.S. l; Barber v. Page, 390 U.S. 719.

22. See, e.g., Adams v. United States ex rel. McCann, supra.

23. See, e.g., Barker v. Wingo, 407 U.S. 514.

24. See, e.g., Green v. United States, 355 U.S. 184.

25. See, e.g., McCarthy v. United States, 394 U.S. 459; Boykin v. Alabama, 395 U.S. 238.

Our cases concerning the validity of guilty pleas underscore the fact that the question whether a person has acted "voluntarily" is quite distinct from the question whether he has "waived" a trial right. The former question, as we made clear in Brady v. United States, 397 U.S. at 749, can be answered only by examining all the relevant circumstances to determine if he has been coerced. The latter question turns on the extent of his knowledge. We drew the same distinction in McMann v. Richardson, 397 U.S. 759, 766:

A conviction after a plea of guilty normally rests on the defendant's own admission in open court that he committed the acts with which he is charged. . . . That admission may not be compelled, and, since the plea is also a waiver of trial -- and unless the applicable law otherwise provides, a waiver of the right to contest the admissibility of any evidence the State might have offered against the defendant -- it must be an intelligent act "done with sufficient awareness of the relevant circumstances and likely consequences."

(Footnote omitted.)

26. See, e.g., Smith v. United States, 337 U.S. 137.

27. See, e.g., Emspak v. United States, 349 U.S. 190.

28. See In re Gault, 387 U.S. 1, 42.

29. As we have already noted, supra at 232, Miranda itself involved interrogation of a suspect detained in custody, and did not concern the investigatory procedures of the police in general on-the-scene questioning. 384 U.S. at 477.

By the same token, the present case does not require a determination of the proper standard to be applied in assessing the validity of a search authorized solely by an alleged consent that is obtained from a person after he has been placed in custody. We do note, however, that other courts have been particularly sensitive to the heightened possibilities for coercion when the "consent" to a search was given by a person in custody. See, e.g., Judd v. United States, 89 U.S.App.D.C. 64, 66, 190 F.2d 649, 651; Channel v. United States, 285 F.2d 217; Villano v. United States, 310 F.2d 680, 684; United States v. Marrese, 336 F.2d 501.

30.

[In] the uniformly structured situation of the defendant whose case is formally called for plea or trial, where, with everything to be gained by the presence of counsel and no interest deserving consideration to be lost, an inflexible rule serves well.

Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif.L.Rev. 929, 950.

31. While we have occasionally referred to a consent search as a "waiver," we have never used that term to mean "an intentional relinquishment or abandonment of a known right or privilege." Hence, for example, in Johnson v. United States, 333 U.S. 10, this Court found the consent to be ineffective:

Entry to defendant's living quarters, which was the beginning of the search, was demanded under color of office. I t was granted in submission to authority rather than as an understanding and intentional waiver of a constitutional right.

Id. at 13. While the Court spoke in terms of "waiver," it arrived at the conclusion that there had been no "waiver" from an analysis of the totality of the objective circumstances -- not from the absence of any express indication of Johnson's knowledge of a right to refuse or the lack of explicit warnings. See also Amos v. United States, 255 U.S. 313.

32. The Court was even more explicit in Von Moltke v. Gillies, 332 U.S. at 723-724:

To discharge this duty [of assuring the intelligent nature of the waiver] properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge's responsibility. To be valid, such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.

33. It seems clear that even a limited view of the demands of "an intentional relinquishment or abandonment of a known right or privilege" standard would inevitably lead to a requirement of detailed warnings before any consent search -- a requirement all but universally rejected to date. See nn. 13 and 14, supra. As the Court stated in Miranda with respect to the privilege against compulsory self-incrimination:

[W]e will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given. Assessments of the knowledge the defendant possessed, based on information as to his age, education, intelligence, or prior contact with authorities, can never be more than speculation; a warning is a clear-cut fact.

Miranda v. Arizona, 384 U.S. at 468-469 (footnote omitted). See United States v. Moderacki, 280 F.Supp. 633; United States v. Blalock, 255 F.Supp. 268.

34. Our decision today is, of course, concerned with what constitutes a valid consent, not who can consent. But, the constitutional validity of third-party consents demonstrates the fundamentally different nature of a consent search from the waiver of a trial right.

35. Friendly, supra, n. 30, at 950.

36. As noted above, supra, n. 29, the present case does not require a determination of what effect custodial conditions might have on a search authorized solely by an alleged consent.

37. See, e.g., Clewis v. Texas, 386 U.S. 707; Culombe v. Connecticut, 367 U.S. 568; Reck v. Pate, 367 U.S. 433; Payne v. Arkansas, 356 U.S. 560; Fikes v. Alabama, 352 U.S. 191; Harris v. South Carolina, 338 U.S. 68; Haley v. Ohio, 332 U.S. 596.

MR. JUSTICE WHITE once answered a similar argument:

The Court may be concerned with a narrower matter: the unknowing defendant who responds to police questioning because he mistakenly believes that he must and that his admissions will not be used against him. . . . The failure to inform an accused that he need not answer and that his answers may be used against him is very relevant indeed to whether the disclosures are compelled. Cases in this Court, to say the least, have never placed a premium on ignorance of constitutional rights. If an accused is told he must answer and does not know better, it would be very doubtful that the resulting admissions could be used against him. When the accused has not been informed of his rights at all, the Court characteristically and properly looks very closely at the surrounding circumstances.

Escobedo v. Illinois, 378 U.S. 478, 499 (WHITE, J., dissenting).

38. The State also urges us to hold that a violation of the exclusionary rule may not be raised by a state or federal prisoner in a collateral attack on his conviction, and thus asks us to overturn our contrary holdings in Kaufman v. United States, 394 U.S. 217; Whiteley v. Warden, 401 U.S. 560; Harris v. Nelson, 394 U.S. 286; and Mancusi v. DeForte, 392 U.S. 364. Since we have found no valid Fourth and Fourteenth Amendment claim in this case, we do not consider that question.
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