412 U.S.

218
93 S.Ct. 2041
36 L.Ed.2d 854

Merle R. SCHNECKLOTH, Superintendent, California

Conservation Center, Petitioner,
v.
Robert Clyde BUSTAMONTE.
No. 71732.
Argued Oct. 10, 1972.
Decided May 29, 1973.

Syllabus
During the course of a consent search of a car that had been stopped by
officers for traffic violations, evidence was discovered that was used to
convict respondent of unlawfully possessing a check. In a habeas corpus
proceeding, the Court of Appeals, reversing the District Court, held that
the prosecution had failed to prove that consent to the search had been
made with the understanding that it could freely be withheld. Held: When
the subject of a search is not in custody and the State would justify a
search on the basis of his consent, the Fourth and Fourteenth Amendments
require that it demonstrate that the consent was in fact voluntary;
voluntariness is to be determined from the totality of the surrounding
circumstances. While knowledge of a right to refuse consent is a factor to
be taken into account, the State need not prove that the one giving
permission to search knew that he had a right to withhold his consent. Pp.
20452059.
448 F.2d 699, reversed.
Robert R. Granucci, San Francisco, Cal., for petitioner.
Stuart P. Tobisman, Los Angeles, Cal., for the respondent, pro hac vice,
by special leave of Court.
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, 88 S.Ct. 507, 514, 19
L.Ed.2d 576; Coolidge v. New Hampshire, 403 U.S. 443, 454455, 91 S.Ct.
2022, 20312032, 29 L.Ed.2d 564; Chambers v. Maroney, 399 U.S. 42, 51, 90
S.Ct. 1975, 1981, 26 L.Ed.2d 419. 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, 593594, 66 S.Ct. 1256, 12611262, 90 L.Ed.
1453; Zap v. United States, 328 U.S. 624, 630, 66 S.Ct. 1277, 1280, 90 L.Ed.
1477. The constitutional question in the present case concerns the definition of
'consent' in this Fourth and Fourteenth Amendment context.

* The respondent was brought to trial in a California court upon a charge of

possessing a check with intent to defraud.1 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 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. 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 'congenital' and there has 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. 2

Thereafter, the respondent sought a writ of habeas corpus in a federal district

court. It was denied.3 On appeal, the Court of Appeals for the Ninth Circuit,
relying on its prior decisions in Cipres v. United States, 343 F.2d 95, and
Schoepflin v. United States, 391 F.2d 390, set aside the District Court's order.
448 F.2d 699. The appellate court reasoned that a consent was a waiver of a
person's Fourth and Fourteenth Amendment rights, and that the State was under
an obligation to demonstrate, not only that the consent had been uncoerced, but
that it had been given with an understanding that it could be freely and
effectively withhold. Consent could not be found, the court held, solely from
the absence of coercion and a verbal expression of assent. Since the District
Court had not determined that Alcala had known that his consent could have
been withheld and that he could have refused to have his vehicle searched, the
Court of Appeals vacated the order denying the writ and remanded the case for
further proceedings. We granted certiorari to determine whether the Fourth and
Fourteenth Amendments require the showing thought necessary by the Court of
Appeals. 405 U.S. 953, 92 S.Ct. 1168, 31 L.Ed.2d 230.

II
6

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, 88
S.Ct., at 515, and more recently in Vale v. Louisiana, 399 U.S. 30, 35, 90 S.Ct.
1969, 1972, 26 L.Ed.2d 409, we recognized that a search authorized by consent
is wholly valid. See also Davis v. United States, 328 U.S., at 593594, 66
S.Ct., at 12611262; Zap v. United States, 328 U.S., at 630, 66 S.Ct., at
1280.4 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, freedly and voluntarily given.' Bumper v. North
Corolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797. See also
Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; Amos v.
United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654.
7

The precise question in this case, then, is what must the prosecution prove to
demonstrate that a consent was 'voluntarily' given. And upon that question
there is a square conflict of views between the state and federal courts that have
reviewed the search involved in the case before us. The Court of Appeals for
the Ninth Circuit concluded that it is an essential part of the State's initial
burden to prove that a person knows he has a right to refuse consent. The
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. Tremayne, 20 Cal.App.3d
1006, 98 Cal.Rptr. 193; People v. Roberts, 246 Cal.App.2d 715, 55 Cal.Rptr.
62.

A.
8

The most extensive judicial exposition of the meaning of 'voluntariness' has

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, 56
S.Ct. 461, 80 L.Ed. 682, 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, 84 S.Ct. 1758, 12 L.Ed.2d 977, the Court was faced with
the necessity of determining whether in fact the confessions in issue had been
'voluntarily' given.5 It is to that body of case law to which we turn for initial
guidance on the meaning of 'voluntariness' in the present context.6

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, 604605, 81 S.Ct. 1860, 18801881,
6 L.Ed.2d 1037. 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 statementseven those made under brutal
treatmentare 'voluntary' in the sense of representing a choice of alternatives.
On the other hand, if 'voluntariness' incorporates notions of 'butfor' 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.'7 It is thus evident that neither
linguistics nor epistemology will provide a ready definition of the meaning of
'voluntariness.'
10

Rather, 'voluntariness' has reflected an accommodation of the complex of

values implicated in police questioning of a suspect. At one end of the spectrum
is the acknowledged need for police questioning as a tool for the effective
enforcement of criminal laws. See Culombe v. Connecticut, supra, at 578
580, 81 S.Ct., at 18651866. 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, 83 S.Ct. 1336,
1344, 10 L.Ed.2d 513. 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, 80 S.Ct. 274, 280, 4 L.Ed.2d 242. See also Culombe v.
Connecticut, supra, 367 U.S., at 581584, 81 S.Ct., at 18671869; Chambers
v. Florida, 309 U.S. 227, 235238, 60 S.Ct. 472, 476478, 84 L.Ed. 716.

11

This Court's decisions reflect a frank recognition that the Constitution requires
the sacrifice of neither security nor liberty. The Due Process Clause does not
mandate that the police forgo all questioning, or that they be given carte
blanche to extract what they can from a suspect. 'The ultimate test remains that
which has been the only clearly established test in Anglo-American courts for
two hundred years: the test of voluntariness. Is the confession the product of an
essentially free and unconstrained choice by its maker? If it is, if he has willed

to confess, it may be used against him. If it is not, if his will has been overborne
and his capacity for self-determination critically impaired, the use of his
confession offends due process.' Culombe v. Connecticut, supra, 367 U.S., at
602, 81 S.Ct., at 1879.
12

In determining whether a defendant's will was overborne in a particular case,

the Court has assessed the totality of all the surrounding circumstancesboth
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, 68 S.Ct. 302, 92 L.Ed. 224; his lack of education,
e.g., Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975; or his low
intelligence, e.g., Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246;
the lack of any advice to the accused of his constitutional rights, e.g., Davis v.
North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895; 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, 64 S.Ct. 921, 88
L.Ed. 1192; and the use of physical punishment such as the deprivation of food
or sleep, e.g., Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948.8 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, 367 U.S., at 603, 81 S.Ct., at 1879.

13

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, 86 S.Ct. 1602, 1645, 16 L.Ed.2d 694 (Harlan, J., dissenting); id.,
at 534535, 86 S.Ct., at 16591660 (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 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, 373 U.S., at 510 511, 83
S.Ct., at 13411342; Culombe v. Connecticut, supra, 367 U.S., at 610, 81
S.Ct., at 1883; Turner v. Pennsylvania, 338 U.S. 62, 64, 69 S.Ct. 1352, 93
L.Ed. 1810.

B
14

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' consentthe legitimate need for such
searches and the equally important requirement of assuring the absence of
coercion.
15

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.9 In the present
case for example, while the police had reason to stop the car for traffic
violations, the State does not contend that there was probable cause to search
the vehicle or that the search was incident to a valid arrest of any of the
occupants.10 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.

16

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, 6 S.Ct. 524, 535, 29 L.Ed. 746:

17

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

substance. It is the duty of courts to be watchful for the constitutional rights of

the citizen, and against any stealthy encroachments thereon.'
18

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.'

19

The approach of the Court of Appeals for the Ninth Circuit finds no support in
any of our decisions that have attempted to define the meaning of
'voluntariness.' Its ruling, that the State must affirmatively prove that the subject
of the search knew that he had a right to refuse consent, would, in practice,
create serious doubt whether consent searches could continue to be conducted.
There might be rare cases where it could be proved from the record that a
person in fact affirmatively knew of his right to refusesuch 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;'11 or a case where by prior experience and
training a person had clearly and convincingly demonstrated such knowledge.12
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.

20

The very object of the inquirythe nature of a person's subjective

understandingunderlines 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:

21

'(I)t is not unreasonable for officers to seek interviews with suspects or

witnesses or to call upon them at their homes for such purposes. Such inquiries,
although courteously made and not accompanied with any assertion of a right to
enter or search or secure answers, would permit the criminal to defeat his
prosecution by voluntarily revealing all of the evidence against him and then
contending that he acted only in response to an implied assertion of unlawful
authority.' People v. Michael, 45 Cal.2d, at 754, 290 P.2d, at 854.

22

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 federal13 and state courts,14 and, we think,
rightly so. For it would be thoroughly impractical to impose on the normal
consent search the detailed requirements of an effective warning. Consent
searches are part of the standard investigatory techniques of law enforcement
agencies. They normally occur on the highway, or in a person's home or office,
and under informal and unstructured conditions. The circumstances that prompt
the initial request to search may develop quickly or be a logical extension of
investigative police questioning. The police may seek to investigate further
suspicious circumstances or to follow up leads developed in questioning
persons at the scene of a crime. These situations are a far cry from the
structured atmosphere of a trial where, assisted by counsel if he chooses, a
defendant is informed of his trial rights. Cf. Boykin v. Alabama, 395 U.S. 238,
243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274. 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:

23

'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 fact-finding 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 477478, 86 S.Ct., at 16291630.

24

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 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.
25

For example in Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed.
1453, 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 searchthat 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 demandthese circumstances all support the
conclusion of the District Court.' Id., 328 U.S., at 593594, 66 S.Ct., at 1261
1262, 90 L.Ed. 1453. See also Zap v. United States, 328 U.S. 624, 66 S.Ct.
1277, 90 L.Ed. 1477.

26

Conversely, if under all the circumstances it has appeared that the consent was
not given voluntarilythat it was coerced by threats or force, or granted only in
submission to a claim of lawful authoritythen we have found the consent
invalid and the search unreasonable. See, e.g., Bumper v. North Carolina, 391
U.S., at 548549, 88 S.Ct., at 17911792; Johnson v. United States, 333 U.S.
10, 68 S.Ct. 367, 92 L.Ed. 436; Amos v. United States, 255 U.S. 313, 41 S.Ct.
266, 65 L.Ed. 654. 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 coercionalbeit
colorably lawful coercion. Where there is coercion there cannot be consent.'
391 U.S., at 550, 88 S.Ct., at 1792.

27

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.

28

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. 15

C
29

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, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, to establish
such a 'waiver' the State must demonstrate 'an intentional relinquishment or
abandonment of a known right or privilege.'

30

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, 78 S.Ct. 221, 226, 2
L.Ed.2d 199. 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.16 See D. H.
Overmyer Co., Inc. v. Frick Co., 405 U.S. 174, 185186, 92 S.Ct. 775, 782,
31 L.Ed.2d 124; Fuentes v. Shevin, 407 U.S. 67, 9496, 92 S.Ct. 1983, 2001
2002, 32 L.Ed.2d 556. 17

31

The requirement of a 'knowing' and 'intelligent' waiver was articulated in a case

involving the validity of a defendant's decision to forego a right constitutionally
guaranteed to protect a fair trial and the reliability of the truth-determining
process. Johnson v. Zerbst, supra, dealt with the denial of counsel in a federal
criminal trial. There the Court held that under the Sixth Amendment a criminal
defendant is entitled to the assistance of counsel, and that if he lacks sufficient

funds to retain counsel, it is the Government's obligation to furnish him with a

lawyer. As Mr. Justice Black wrote for the Court: 'The Sixth Amendment
stands as a constant admonition that if the constitutional safeguards it provides
be lost, justice will not 'still be done.' It embodies a realistic recognition of the
obvious truth that the average defendant does not have the professional legal
skill to protect himself when brought before a tribunal with power to take his
life or liberty, wherein the prosecution is presented by experienced and learned
counsel. That which is simple, orderly, and necessary to the lawyerto the
untrained layman may appear intricate, complex and mysterious.' 304 U.S., at
462463, 58 S.Ct., at 1022 (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 relinquishment or
abandonment of a known right or privilege.' Id., at 464, 58 S.Ct., at 1023.
32

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.18 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, 19 or upon a guilty plea.20 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,21 to a jury trial,22 and to a speedy trial,23 and
the right to be free from twice being placed in jeopardy.24 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.25 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 agency26 or a congressional committee,27 or the waiver of
counsel in a juvenile proceeding.28

33

The guarantees afforded a criminal defendant at trial also protect him at certain
stages before the actual trial, and any alleged waiver must meet the strict
standard of an intentional relinquishment of a 'known' right. But the 'trial'
guarantees that have been applied to the 'pretrial' stage of the criminal process
are similarly designed to protect the fairness of the trial itself.

34

Hence, in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d
1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178,
the Court held 'that a post-indictment pretrial lineup at which the accused is
exhibited to identifying witnesses is a critical stage of the criminal prosecution;
that police conduct of such a lineup without notice to and in the absence of his

counsel denies the accused his Sixth (and Fourteenth) Amendment right to
counsel . . ..' Id., at 272, 87 S.Ct., at 1956. 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, 388 U.S.,
at 237, 87 S.Ct., at 1937. The Court stressed the necessary interrelationship
between the presence of counsel at a post-indictment lineup before trial and the
protection of the trial process itself:
35

'Insofar as the accused's conviction may rest on a courtroom identification in

fact the fruit of a suspect pretrial identification which the accused is helpless
the subject to effective scrutiny at trial, the accused is deprived of that right of
cross-examination which is an essential safeguard to his right to confront the
witnesses against him. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13
L.Ed.2d 923. 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 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, 87 S.Ct., at 19361937.

36

And in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 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:

37

'That counsel is present when statements are taken from an individual during
interrogation obviously enhances the integrity of the fact-finding processes in
court. The presence of an attorney, and the warnings delivered to the individual,
enable the defendant under otherwise compelling circumstances to tell his story
without fear, effectively, and in a way that eliminates the evils in the
interrogation process. Without the protections flowing from adequate warnings
and the rights of counsel, 'all the careful safeguards erected around the giving of
testimony, whether by an accused or any other witness, would become empty
formalities in a procedure where the most compelling possible evidence of
guilt, a confession, would have already been obtained at the unsupervised
pleasure of the police." Id., at 466, 86 S.Ct., at 1623.

38

The standards of Johnson were, therefore, found to be a necessary prerequisite

to a finding of a valid waiver. See 384 U.S., at 475479, 86 S.Ct., at 1628
1631. Cf. Escobedo v. Illinois, 378 U.S., at 490 n. 14, 84 S.Ct., at 1765.29

39

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.

40

A strict standard of waiver has been applied to those rights guaranteed to a

criminal defendant to insure that he will be accorded the greatest possible
opportunity to utilize every facet of the constitutional model of a fair criminal
trial. Any trial conducted in derogation of that model leaves open the
possibility that the trial reached an unfair result precisely because all the
protections specified in the Constitution were not provided. A prime example is
the right to counsel. For without that right, a wholly innocent accused faces the
real and substantial danger that simply because of his lack of legal expertise he
may be convicted. As Mr. Justice Harlan once wrote: 'The sound reason why
(the right to counsel) is so freely extended for a criminal trial is the severe
injustice risked by confronting an untrained defendant with a range of technical
points of law, evidence, and tactics familiar to the prosecutor but not to
himself.' Miranda v. Arizona, supra, 384 U.S., at 514, 86 S.Ct., at 1649
(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.30

41

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, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782, 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, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 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, 85 S.Ct. 1731, 1742, 14 L.Ed.2d
601. In Linkletter, the Court indicated that those cases that had been given
retroactive effect went to 'the fairness of the trialthe very integrity of the factfinding process. Here . . . the fairness of the trial is not under attack.' Id., at 639,
85 S.Ct., at 1743. 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 valuesvalues 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, 86 S.Ct. 459, 465, 15 L.Ed.2d
453.
42

Nor can it even be said that a search, as opposed to an eventual trial, is

somehow 'unfair' if a person consents to a search. While the Fourth and
Fourteenth Amendments limit the circumstances under which the police can
conduct a search, there is nothing constitutionally suspect in a person's
voluntarily allowing a search. The actual conduct of the search may be
precisely the same as if the police had obtained a warrant. And, unlike those
constitutional guarantees that protect a defendant at trial, it cannot be said every
reasonable presumption ought to be indulged against voluntary relinquishment.
We have only recently stated: '(I)t is no part of the policy underlying the Fourth
and Fourteenth Amendments to discourage citizens from aiding to the utmost of
their ability in the apprehension of criminals.' Coolidge v. New Hampshire, 403
U.S., at 488, 91 S.Ct., at 2049. 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.

43

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.'31 To be true to Johnson 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:

44

'The constitutional right of an accused to be represented by counsel invokes, of

itself, the protection of a trial court, in which the accusedwhose life or liberty
is at stakeis 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, 58 S.Ct., at 1023, 82
L.Ed. 1461. 32

45

It would be unrealistic to expect that in the informal, unstructured context of a

consent search, a policeman, upon pain of tainting the evidence obtained, could
make the detailed type of examination demanded by Johnson. And, if for this
reason a diluted form of 'waiver' were found acceptable, that would itself be
ample recognition of the fact that there is no universal standard that must be
applied in every situation where a person foregoes a constitutional right.33
46

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 487490, 91 S.Ct., at 20482050,
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, 89 S.Ct. 1420, 1425, 22 L.Ed.2d 684, 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, 80 S.Ct. 683, 4 L.Ed.2d 668. And
in Hill v. California, 401 U.S. 797, 802805, 91 S.Ct. 1106, 1110 1111, 28
L.Ed.2d 484, 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.34

47

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.'35

D
48

Much of what has already been said disposes of the argument that the Court's
decision in the Miranda case requires the conclusion that knowledge of a right
to refuse is an indispensable element of a valid consent. The considerations that
informed the Court's holding in Miranda are simply inapplicable in the present

case. In Miranda the Court found that the techniques of police questioning and
the nature of custodial surroundings produce an inherently coercive situation.
The Court concluded that '(u)nless adequate protective devices are employed to
dispel the compulsion inherent in custodial surroundings, no statement obtained
from the defendant can truly be the product of his free choice.' 384 U.S., at 458,
86 S.Ct., at 1619. 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, 86 S.Ct., at 1624.
49

In this case, there is no evidence of any inherently coercive tacticseither 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.36 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.

50

It is also argued that the failure to require the Government to establish

knowledge as a prerequisite to a valid consent, will relegate the Fourth
Amendment to the special province of 'the sophisticated, v. 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.37

E
51

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 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.38 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.
52

It is so ordered.

53

Judgment of Court of Appeals reversed.

54

Mr. Justice BLACKMUN, concurring.

55

I join the Court's opinion and its judgment.

56

At the time Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d
227 (1969), was decided, I, as a member of the Court of Appeals (but not of its
panel) whose order was there reversed, found myself in agreement with the
views expressed by Mr. Justice Harlan, writing for himself and my Brother
Stewart in dissent. Id., at 242, 89 S.Ct., at 1082. My attitude has not changed in
the four years that have passed since Kaufman was decided.

57

Although I agree with nearly all that Mr. Justice POWELL has to say in his
detailed and persuasive concurring opinion, post, p. 250, I refrain from joining
it at this time because, as Mr. Justice STEWART'S opinion reveals, it is not
necessary to reconsider Kaufman in order to decide the present case.

58

Mr. Justice POWELL, with whom THE CHIEF JUSTICE and Mr. Justice
REHNQUIST join, concurring.

59

While I join the opinion of the Court, it does not address what seems to me the
overriding issue briefed and argued in this case: the extent to which federal
habeas corpus should be available to a state prisoner seeking to exclude
evidence from an allegedly unlawful search and seizure. I would hold that
federal collateral review of a state prisoner's Fourth Amendment claims claims
which rarely bear on innocenceshould be confined solely to the question of
whether the petitioner was provided a fair opportunity to raise and have
adjudicated the question in state courts. In view of the importance of this issue
to our system of criminal justice, I think it appropriate to express my views.

60

* Although petitions for federal habeas corpus assert a wide variety of

constitutional questions, we are concerned in this case only with a Fourth

Amendment claim that an unlawful search occurred and that the state court
erred in failing to exclude the evidence obtained therefrom. A divided court in
Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227
(1969), held that collateral review of search-and-seizure claims was appropriate
on motions filed by federal prisoners under 28 U.S.C. 2255. Until Kaufman, a
substantial majority of the federal courts of appeals had considered that claims
of unlawful search and seizure "are not proper matters to be presented by a
motion to vacate sentence under 2255 . . .." Id., at 220, 89 S.Ct., at 1070. The
rationale of this view was fairly summarized by the Court:
61

'The denial of Fourth Amendment protection against unreasonable searches and

seizures, the Government's argument runs, is of a different nature from denials
of other constitutional rights which we have held subject to collateral attack by
federal prisoners. For unlike a claim of denial of effective counsel or of
violation of the privilege against self-incrimination, as examples, a claim of
illegal search and seizure does not impugn the integrity of the fact-finding
process or challenge evidence as inherently unreliable; rather, the exclusion of
illegally seized evidence is simply a prophylatic device intended generally to
deter Fourth Amendment violations by law enforcement officers.' Id., at 224,
89 S.Ct., at 1073.

62

In rejecting this rationale, the Court noted that under prior decisions 'the federal
habeas remedy extends to state prisoners alleging that unconstitutionally
obtained evidence was admitted against them at trial.'1 and concluded that there
was no basis for restricting 'access by federal prisoners with illegal search-andseizure claims to federal collateral remedies, while placing no similar restriction
on access by state prisoners.' Id., at 225226, 89 S.Ct., at 10731074. In
short, on petition for habeas corpus or collateral review filed in a federal district
court, whether by state prisoners under 28 U.S.C. 2254 or federal prisoners
under 2255, the present rule is that Fourth Amendment claims may be
asserted and the exclusionary rule must be applied in precisely the same
manner as on direct review. Neither the history or purpose of habeas corpus,
the desired prophylactic utility of the exclusionary rule as applied to Fourth
Amendment claims, nor any sound reason relevant to the administration of
criminal justice in our federal system justifies such a power.

II
63

The federal review involved in this Fourth Amendment case goes well beyond
the traditional purpose of the writ of habeas corpus. Much of the present
perception of habeas corpus stems from a revisionist view of the historic

function that writ was meant to perform. The critical historical argument has
focused on the nature of the writ at the time of its incorporation in our
Constitution and at the time of the Habeas Corpus Act of 1867, the direct
ancestor of contemporary habeas corpus statutes.2 In Fay v. Noia, 372 U.S. 391,
426, 83 S.Ct. 822, 842, 9 L.Ed.2d 837 (1963), the Court interpreted the writ's
historic position as follows:
64

'At the time the provilege of the writ was written into the Federal Constitution
it was settled that the writ lay to test any restraint contrary to fundamental law,
which in England stemmed ultimately from Magna Charta but in this country
was embodied in the written Constitution. Congress in 1867 sought to provide a
federal forum for state prisoners having constitutional defenses by extending
the habeas corpus powers of the federal courts to their constitutional maximum.
Obedient to this purpose, we have consistently held that federal court
jurisdiction is conferred by the allegation of an unconstitutional restraint and is
not defeated by anything that may occur in the state court proceedings.'

65

If this were a correct interpretation of the relevant history, the present wide
scope accorded the writ would have arguable support, despite the impressive
reasons to the contrary. But recent scholarship has cast grave doubt on Fay's
version of the writ's historic function.

66

It has been established that both the Framers of the Constitution and the authors
of the 1867 Act expected that the scope of habeas corpus would be determined
with reference to the writ's historic, common-law development.3 Mr. Chief
Justice Marshall early referred to the common-law conception of the writ in
determining its constitutional and statutory scope, Ex parte Bollman, 4 Cranch
75, 9394, 2 L.Ed. 554 (1807); Ex parte Watkins, 3 Pet. 193, 201202, 7
L.Ed. 650 (1830), and Professor Oaks has noted that 'when the 1867 Congress
provided that persons restrained of their liberty in violation of the Constitution
could obtain a writ of habeas corpus from a federal court, it undoubtedly
intendedexcept to the extent the legislation provided otherwiseto
incorporate the common-law uses and functions of this remedy.'4

67

It thus becomes important to understand exactly what was the common-law

scope of the writ both when embraced by our Constitution and incorporated
into the Habeas Corpus Act of 1867. Two respected scholars have recently
explored precisely these questions.5 Their efforts have been both meticulous
and revealing. Their conclusions differ significantly from those of the Court in
Fay v. Noia, that habeas corpus traditionally has been available 'to remedy any
kind of governmental restraint contrary to fundamental law.' 372 U.S., at 405,
83 S.Ct., at 831.

68

The considerable evidence marshaled by these scholars need not be restated

here. Professor Oaks makes a convincing case that under the common law of
habeas corpus at the time of the adoption of the Constitution, 'once a person
had been convicted by a superior court or general jurisdiction, a court disposing
of a habeas corpus petition could not go behind the conviction for any purpose
other than to verify the formal jurisdiction of the committing court.'6 Certainly
that was what Mr. Chief Justice Marshall understood when he stated:

69

'This writ (habeas corpus) is, as has been said, in the nature of a writ of error
which brings up the body of the prisoner with the cause of commitment. The
court can undoubtedly inquire into the sufficiency of that cause; but if it be the
judgment of a court of competent jurisdiction, especially a judgment withdrawn
by law from the revision of this court, is not that judgment in itself sufficient
cause? Can the court, upon this writ, look beyond the judgment, and reexamine the charges on which it was rendered. A judgment, in its nature,
concludes the subject on which it is rendered, and pronounces the law of the
case. The judgment of a court of record whose jurisdiction 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. It puts an end to inequiry
concerning the fact, by deciding it.' Ex parte Watkins, 3 Pet., at 202203.

70

The respect shown under common law for the finality of the judgment of a
committing court at the time of the Constitution and in the early 19th century
did not, of course, explicitly contemplate the operation of habeas corpus in the
context of federal-state relations. Federal habeas review for state prisoners was
not available until passage of the Habeas Corpus Act of 1867. Yet there is no
evidence that Congress intended that Act to jettison the respect theretofore
shown by a reviewing court for prior judgments by a court of proper
jurisdiction. The Act 'received only the most perfunctory attention and
consideration in the Congress; indeed, there were complaints that its effects
could not be understood at all.' 7 In fact, as Professor Bator notes, it would
require overwhelming evidence, which simply is not present, to conclude that
the 1867 Congress intended 'to tear habeas corpus entirely out of the context of
its historical meaning and scope and convert it into an ordinary writ of error
with respect to all federal questions in all criminal cases.'8 Rather, the House
Judiciary Committee when it reviewed the Act in 1884 understood that it was
not 'contemplated by its framers or . . . properly . . . construed to authorize the
overthrow of the final judgments of the State courts of general jurisdiction, by
the inferior Federal judges. . . .'9

71

Much, of course, has transpired since that first Habeas Corpus Act. See Fay v.
Noia, 372 U.S., at 449463, 83 S.Ct., at 854862 (Harlan, J., dissenting).

The scope of federal habeas corpus for state prisoners has evolved from a quite
limited inquiry into whether the committing state court had jurisdiction,
Andrews v. Swartz, 156 U.S. 272, 15 S.Ct. 389, 39 L.Ed. 422 (1895); In re
Moran, 203 U.S. 96, 27 S.Ct. 25, 51 L.Ed. 105 (1906), to whether the applicant
had been given an adequate opportunity in state court to raise his constitutional
claims, Frank v. Mangum, 237 U.S. 307, 35 S.Ct. 582, 59 L.Ed. 969 (1915);
and finally to actual redetermination in federal court of state court rulings on a
wide variety of constitutional contentions, Brown v. Allen, 344 U.S. 443, 73
S.Ct. 397, 97 L.Ed. 469 (1953). No one would now suggest that this Court be
imprisoned by every particular of habeas corpus as it existed in the late 18th
and 19th centuries. But recognition of that reality does not liberate us from all
historical restraint. The historical evidence demonstrates that the purposes of
the writ, at the time of the adoption of the Constitution, were tempered by a due
regard for the finality of the judgment of the committing court. This regard was
maintained substantially intact when Congress, in the Habeas Corpus Act of
1867, first extended federal habeas review to the delicate interrelations of our
dual court systems.
III
72

Recent decisions, however, have tended to depreciate the importance of the

finality of prior judgments in criminal cases. Kaufman, 394 U.S., at 228, 89
S.Ct., at 1075, 22 L.Ed.2d 227; Sanders v. United States, 373 U.S. 1, 8, 83
S.Ct. 1068, 1073, 10 L.Ed.2d 148 (1963); Fay, supra, 372 U.S., at 424, 83
S.Ct., at 841. This trend may be a justifiable evolution of the use of habeas
corpus where the one in state custody raises a constitutional claim bearing on
his innocence. But the justification for disregarding the historic scope and
function of the writ is measurably less apparent in the typical Fourth
Amendment claim asserted on collateral attack. In this latter case, a convicted
defendant is most often asking society to redetermine a matter with no bearing
at all on the basic justice of his incarceration.

73

Habeas corpus indeed should provide the added assurance for a free society
that no innocent man suffers an unconstitutional loss of liberty. The Court in
Fay described habeas corpus as a remedy for 'whatever society deems to be
intolerable restraints,' and recognized that those to whom the writ should be
granted 'are persons whom society has grievously wronged and for whom
belated liberation is little enough compensation.' Id., at 401402, 441, 83
S.Ct., at 829, 850. The Court there acknowledged that the central reason for the
writ lay in remedying injustice to the individual. Recent commentators have
recognized the same core concept, one noting that 'where personal liberty is
involved, a democratic society . . . insists that it is less important to reach an

unshakable decision than to do justice (emphasis added),'10 and another

extolling the use of the writ in Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98
L.Ed. 948 (1954), with the assertion that '(b)ut for federal habeas corpus, these
two men would have gone to their deaths for crimes of which they were found
not guilty.'11
74

I am aware that history reveals no exact tie of the writ of habeas corpus to a
constitutional claim relating to innocence or guilt. Traditionally, the writ was
unavailable even for many constitutional pleas grounded on a claimant's
innocence, while many contemporary proponents of expanded employment of
the writ would permit its issuance for one whose deserved confinement was
never in doubt. We are now faced, however, with the task of accommodating
the historic respect for the finality of the judgment of a committing court with
recent Court expansions of the role of the writ. This accommodation can best be
achieved, with due regard to all of the values implicated, by recourse to the
central reason for habeas corpus: the affording of means, through an
extraordinary writ, of redressing an unjust incarceration.

75

Federal habeas review of search and seizure claims is rarely relevant to this
reason. Prisoners raising Fourth Amendment claims collaterally usually are
quite justly detained. The evidence obtained from searches and seizures is often
'the clearest proof of guilt' with a very high content of reliability.12 Rarely is
there any contention that the search rendered the evidence unreliable or that its
means cast doubt upon the prisoner's guilt. The words of Mr. Justice Black
drive home the point:

76

'A claim of illegal search and seizure under the Fourth Amendment is crucially
different from many other constitutional rights; ordinarily the evidence seized
can in no way have been rendered untrustworthy by the means of its seizure and
indeed often this evidence alone establishes beyond virtually any shadow of a
doubt that the defendant is guilty.' Kaufman v. United States, 394 U.S., at 237,
89 S.Ct., at 1079 (1969) (dissenting opinion).

77

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

personal justice.
IV
78

This unprecedented extension of habeas corpus far beyond its historic bounds
and in disregard of the writ's central purpose is an anomaly in our system
sought to be justified only by extrinsic reasons which will be addressed in Part
V of this opinion. But first let us look at the costs of this anomalycosts in
terms of serious intrusions on other societal values. It is these other values that
have been subordinatednot to further justice on behalf of arguably innocent
persons but all too often to serve mechanistic rules quite unrelated to justice in a
particular case. Nor are these neglected values unimportant to justice in the
broadest sense or to our system of Government. They include (i) the most
effective utilization of limited judicial resources, (ii) the necessity of finality in
criminal trials, (iii) the minimization of friction between our federal and state
systems of justice, and (iv) the maintenance of the constitutional balance upon
which the doctrine of federalism is founded.

79

When raised on federal habeas, a claim generally has been considered by two or
more tiers of state courts. It is the solemn duty of these courts, no less than
federal ones, to safeguard personal liberties and consider federal claims in
accord with federal law. The task which federal courts are asked to perform on
habeas is thus most often one that has or should have been done before. The
presumption that 'if a job can be well done once, it sould not be done twice' is
sound and one calculated to utilize best 'the intellectual, moral, and political
resources involved in the legal system.'13

80

Those resources are limited but demand on them constantly increases. There is
an insistent call on federal courts both in civil actions, many novel and
complex, which affect intimately the lives of great numbers of people and in
original criminal trials and appeals which deserve our most careful attention.14
To the extent the federal courts are required to re-examine claims on collateral
attack,15 they deprive primary litigants of their prompt availability and mature
reflection. After all, the resources of our system are finite: their overextension
jeopardizes the care and quality essential to fair adjudication.

81

The present scope of federal habeas corpus also have worked to defeat the
interest of society in a rational point of termination for criminal litigation.
Professor Amsterdam has identified some of the finality interests at stake in
collateral proceedings:

82

'They involve (a) duplication of judicial effort; (b) delay in setting the criminal

82

'They involve (a) duplication of judicial effort; (b) delay in setting the criminal
proceeding at rest; (c) inconvenience and possibly danger in transporting a
prisoner to the sentencing court for hearing; (d) postponed litigation of fact,
hence litigation which will often be less reliable in reproducing the facts (i)
respecting the postconviction claim itself, and (ii) respecting the issue of a guilt
if the collateral attack succeeds in a form which allows retrial. . . .'
He concluded that:

83

'(I)n combination, these finality considerations amount to a more or less

persuasive argument against the cognizability of any particular collateral claim,
the strength of the argument depending upon the nature of the claim, the
manner of its treatment (if any) in the conviction proceedings, and the
circumstances under which collateral litigation must be had.'16

84

No effective judicial system can afford to concede the continuing theoretical

possibility that there is error in every trial and that every incarceration is
unfounded. At some point the law must convey to those in custody that a wrong
has been committed, that consequent punishment has been imposed, that one
should no longer look back with the view to resurrecting every imaginable basis
for further litigation but rather should look forward to rehabilitation and to
becoming a constructive citizen.17

85

Nowhere should the merit of this view be more self-evident than in collateral
attack on an allegedly unlawful search and seizure, where the petitioner often
asks society to redetermine a claim with no relationship at all to the justness of
his confinement. Professor Amsterdam has noted that 'for reasons which are
common to all search and seizure claims,' he 'would hold even a slight finality
interest sufficient to deny the collateral remedy.'18 But, in fact, a strong finality
interest militates against allowing collateral review of search-and-seizure
claims. Apart from the duplication of resources inherent in most habeas corpus
proceedings, the validity of a search-and-seizure claim frequently hinges on a
complex matrix of events which may be difficult indeed for the habeas court to
disinter especially where, as often happens, the trial occurred years before the
collateral attack and the state record is thinly sketched.19

86

Finally, the present scope of habeas corpus tends to undermine the values
inherent in our federal system of government. To the extent that every state
criminal judgment is to be subject indefinitely to broad and repetitive federal
oversight, we render the actions of state courts a serious disrespect in
derogation of the constitutional balance between the two systems. 20 The present
expansive scope of federal habeas review has prompted no small friction

between state and federal judiciaries. Justice Paul C. Reardon of the

Massachusetts Supreme Judicial Court and then President of the National
Center for State Courts, in identifying problems between the two systems,
noted bluntly that '(t)he first, without question, is the effect of Federal habeas
corpus proceedings on State courts.' He spoke of the 'humiliation of review
from the full bench of the highest State appellate court to a single United States
District Court judge.' Such broad federal habeas powers encourage in his view
the 'growing denigration of the State courts and their functions in the public
mind.'21 In so speaking Justice Reardon echoed the words of Professor Bator:
87

'I could imagine nothing more subversive of a judge's sense of responsibility, of

the inner subjective conscientiousness which is so essential a part of the
difficult and subtle art of judging well, than an indiscriminate acceptance of the
notion that all the shots will always be called by someone else.'22

88

In my view, this Court has few more pressing responsibilities than to restore the
mutual respect and the balanced sharing of responsibility between the state and
federal courts which our tradition and the Constitution itself so wisely
contemplate. This can be accomplished without retreat from our inherited
insistence that the writ of habeas corpus retain its full vitality as a means of
redressing injustice.

89

This case involves only a relatively narrow aspect of the appropriate reach of
habeas corpus. The specific issue before us, and the only one that need be
decided at this time, is the extent to which a state prisoner may obtain federal
habeas corpus review of a Fourth Amendment claim. Whatever may be
formulated as a more comprehensive answer to the important broader issues
(whether by clarifying legislation or in subsequent decisions), Mr. Justice Black
has suggested what seems to me to be the appropriate threshold requirement in
a case of this kind:

90

'I would always require that the convicted defendant raise the kind of
constitutional claim that casts some shadow of a doubt on his guilt.' Kaufman v.
United States, 394 U.S., at 242, 89 S.Ct., at 1082 (dissenting opinion).

91

In a perceptive analysis, Judge Henry J. Friendly expressed a similar view. He

would draw the line against habeas corpus review in the absence of a 'colorable
claim of innocence':

92

'(W)ith a few important exceptions, convictions should be subject to collateral

attack only when the prisoner supplements his constitutional plea with a

colorable claim of innocence.'23

93

Where there is no constitutional claim bearing on innocence, the inquiry of the

federal court on habeas review of a state prisoner's Fourth Amendment claim
should be confined solely to the question whether the defendant was provided a
fair opportunity in the state courts to raise and have adjudicated the Fourth
Amendment claim. Limiting the scope of habeas review in this manner would
reduce the role of the federal courts in determining the merits of constitutional
claims with no relation to a petitioner's innocence and contribute to the
restoration of recently neglected values to their proper place in our criminal
justice system.

V
94

The importance of the values referred to above is not questioned. What, then, is
the reason which has prompted this Court in recent decisions to extend habeas
corpus to Fourth Amendment claims largely in disregard of its history as well
as these values? In addressing Mr. Justice Black's dissenting view that
constitutional claims raised collaterally should be relevant to the petitioner's
innocence, the majority in Kaufman noted:

95

'It (Mr. Justice Black's view) brings into question the propriety of the
exclusionary rule itself. The application of that rule is not made to turn on the
existence of a possibility of innocence; rather, exclusion of illegally obtained
evidence is deemed necessary to protect the right of all citizens, not merely the
citizen on trial, to be secure against unreasonable searches and seizures.' 394
U.S., at 229, 89 S.Ct., at 1075. (Emphasis added.)

96

The exclusionary rule has occasioned much criticism, largely on grounds that
its application permits guilty defendants to go free and law-breaking officers to
go unpunished.24 The oft-asserted reason for the rule is to deter illegal searches
and seizures by the police, Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct.
1437, 1444, 4 L.Ed.2d 1669 (1960); Mapp v. Ohio, 367 U.S. 643, 656, 81 S.Ct.
1684, 1692, 6 L.Ed.2d 1081 (1961); Linkletter v. Walker, 381 U.S. 618, 636,
85 S.Ct. 1731, 1741, 14 L.Ed.2d 601 (1965); Terry v. Ohio, 392 U.S. 1, 29, 88
S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968).25 The efficacy of this deterrent
function, however, has been brought into serious question by recent empirical
research. Whatever the rule's merits on an initial trial and appeal26a question
not in issue herethe case for collateral application of the rule is an anemic
one. On collateral attack, the exclusionary rule retains its major liabilities while
the asserted benefit of the rule dissolves. For whatever deterrent function the
rule may serve when applied on trial and appeal becomes greatly attenuated

when, months or years afterward, the claim surfaces for collateral review. The
impermissible conduct has long since occurred, and the belated wrist slap of
state police by federal courts harms no one but society on whom the convicted
criminal is newly released.27
97

Searches and seizures are an opaque area of the law: flagrant Fourth
Amendment abuses will rarely escape detection but there is a vast twilight zone
with respect to which one Justice has stated that our own 'decisions . . . are
hardly notable for their predictability,'28 and another had observed that this
Court was "bifurcating elements too infinitesimal to be split."29 Serious Fourth
Amendment infractions can be dealt with by state judges or by this Court on
direct review. But the nonfrivolous Fourth Amendment claims that survive for
collateral attack are most likely to be in this grey, twilight area, where the law is
difficult for courts to apply, let alone for the policeman on the beat to
understand. This is precisely the type of case where the deterrent function of
the exclusionary rule is least efficacious, and where there is the least
justification for freeing a duly convicted defendant.30

98

Our decisions have not encouraged the thought that what may be an appropriate
constitutional policy in one context automatically becomes such for all times
and all seasons. In Linkletter v. Walker, 381 U.S., at 629, 85 S.Ct., at 1738, the
Court recognized the compelling practical considerations against retroactive
application of the exclusionary rule. Rather than viewing the rule as having
eternal constitutional verity, the Court decided to

99

'weigh the merits and demerits in each case by looking to the prior history of
the rule in question, its purpose and effect, and whether retrospective operation
will further or retard its operation. We believe that this approach is particularly
correct with reference to the Fourth Amendment's prohibitions as to
unreasonable searches and seizures.' Id., at 629, 85 S.Ct., at 1738.

100 Such a pragmatic approach compelled the Court to conclude that the rule's
deterrent function would not be advanced by its retrospective application:
101 'The misconduct of the police prior to Mapp has already occurred and will not
be corrected by releasing the prisoners involved. . . . Finally, the ruptured
privacy of the victims' homes and effects cannot be restored. Reparation comes
too late.' Id., at 637, 85 S.Ct., at 1742.
102 See also Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248
(1969).

103 The same practical, particularized analysis of the exclusionary rule's necessity
also was evident in Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98
L.Ed. 503 (1954), when the Court permitted the Government to utilize
unlawfully seized evidence to impeach the credibility of a defendant who had
first testified broadly in his own defense. The Court held, in effect, that the
policies protected by the exclusionary rule were outweighed in this case by the
need to prevent perjury and assure the integrity of proceedings at trial. The
Court concluded that to apply the exclusionary rule in such circumstances
'would be a perversion of the Fourth Amendment.' Id., at 65, 74 S.Ct., at 356.
The judgment in Walder revealed most pointedly that the policies behind the
exclusionary rule are neither absolute nor all-encompassing, but rather must be
weighed and balanced against a competing and more compelling policy,
namely the need for effective determination of truth at trial.
104 In sum: the case for the exclusionary rule varies with the setting in which it is
imposed. It makes little sense to extend the Mapp exclusionary rule to a federal
habeas proceeding where its asserted deterrent effect must be least efficacious,
and its obvious harmful consequences persist in full force.
VI
105 The final inquiry is whether the above position conforms to 28 U.S.C.
2254(a) which provides:
106 'The Supreme Court, a Justice thereof, a circuit judge, or a district court shall
entertain an application for a writ of habeas corpus in behalf of a person in
custody pursuant to the judgment of a State court only on the ground that he is
in custody in violation of the Constitution or laws or treaties of the United
States.'
107 The trend in recent years has witnessed a proliferation of constitutional rights, 'a
vast expansion of the claims of error in criminal cases for which a resourceful
defense lawyer can find a constitutional basis.'31 Federal habeas jurisdiction has
been extended far beyond anyone's expectation or intendment when the concept
of 'custody in violation of the Constitution,' now in 2254(a), first appeared in
federal law over a century ago.32
108 Mr. Justice Black was clearly correct in noting that 'not every conviction based
in part on a denial of a constitutional right is subject to attack by habeas corpus
or 2255 proceedings after a conviction has become final.' Kaufman, 394 U.S.,
at 232, 89 S.Ct., at 1077, 22 L.Ed.2d 227 (dissenting opinion). No evidence

exists that Congress intended every allegation of a constitutional violation to

afford an appropriate basis for collateral review: indeed, the latest revisions of
the Federal Habeas Corpus statute in 196633 and the enactment of 2254(a)
came at the time a majority of the courts of appeals held that claims of unlawful
search and seizure "are not proper matters to be presented by a motion to vacate
sentence under 2255 but can only be properly presented by appeal from the
conviction." Id., at 220, 89 S.Ct., at 1070, quoting Warren v. United States, 311
F.2d 673, 675 (CA8 1963).34 Though the precise discussion in Kaufman
concerned the claims of federal prisoners under 2255, the then-existing
principle of a distinction between review of search-and-seizure claims in direct
and collateral proceedings clearly existed.
109 There is no indication that Congress intended to wipe out this distinction.
Indeed, the broad purpose of the 1966 amendments pointed in the opposite
direction. The report of the Senate Judiciary Committee notes that:
110 'Although only a small number of these (habeas) applications have been found
meritorious, the applications in their totality have imposed a heavy burden on
the Federal courts. . . . The bill seeks to alleviate the unnecessary burden by
introducing a greater degree of finality of judgments in habeas corpus
proceedings.' S.Rep.No. 1797, 89th Cong., 2d Sess., 2 (1966) U.S. Code Cong.
& Admin. News 1966, p. 3664.35
The House Report states similarly that:
111 'While in only a small number of these applications have the petitioners been
successful, they nevertheless have not only imposed an unnecessary burden on
the work of the Federal courts but have also greatly interfered with the
procedures and processes of the State courts by delaying, in many cases, the
proper enforcement of their judgments.' H.R.Rep.No. 1892, 89th Cong., 2d
Sess., 5 (1966).
112 This most recent congressional expression on the scope of federal habeas
corpus reflected the sentiment, shared alike by judges and legislators, that the
writ has overrun its historical banks to inundate the dockets of federal courts
and denigrate the role of state courts. Though Congress did not address the
precise question at hand, nothing in 2254(a), the state of the law at the time of
its adoption, or the historical uses of the language 'custody in violation of the
Constitution' from which 2254(a) is derived,36 compels a holding that rulings
of state courts on claims of unlawful search and seizure must be reviewed and
redetermined in collateral proceedings.

VII
113 Perhaps no single development of the criminal law has had consequences so
profound as the escalating use, over the past two decades, of federal habeas
corpus to reopen and readjudicate state criminal judgments. I have commented
in Part IV above on the far-reaching consequences: the burden on the system,37
in terms of demands on the courts, prosecutors, defense attorneys, and other
personnel and facilities; the absence of efficiency and finality in the criminal
process, frustrating both the deterrent function of the law and the effectiveness
of rehabilitation; the undue subordination of state courts, with the resulting
exacerbation of state-federal relations; and the subtle erosion of the doctrine of
federalism itself. Perhaps the single most disquieting consequence of openended habeas review is reflected in the prescience of Mr. Justice Jackson's
warning that '(i)t must prejudice the occasional meritorious application to be
buried in a flood of worthless ones.'38
114 If these consequences flowed from the safeguarding of constitutional claims of
innocence they should, of course, be accepted as a tolerable price to pay for
cherished standards of justice at the same time that efforts are pursued to find
more rational procedures. Yet, as illustrated by the case before us today, the
question on habeas corpus is too rerely whether the prisoner was innocent of
the crime for which he was convicted39 and too frequently whether some
evidence of undoubted probative value has been admitted in violation of an
exclusionary rule ritualistically applied without due regard to whether it has the
slightest likelihood of achieving its avowed prophylactic purpose.
115 It is this paradox of a system, which so often seems to subordinate substance to
form, that increasingly provokes criticism and lack of confidence. Indeed, it is
difficult to explain why a system of criminal justice deserves respect which
allows repetitive reviews of convictions long since held to have been final at
the end of the normal process of trial and appeared where the basis for reexamination is not even that the convicted defendant was innocent. There has
been a halo about the 'Great Writ' that no one would wish to dim. Yet one must
wonder whether the stretching of its use far beyond any justifiable purpose will
not in the end weaken rather than strengthen the writ's vitality.
116 Mr. Justice DOUGLAS, dissenting.
117 I agree with the Court of Appeals that 'verbal assent' to a search is not enough,
that the fact that consent was given to the search does not imply that the suspect
knew that the alternative of a refusal existed. 448 F.2d 699, 700. As that court

stated:
118 '(U)nder many circumstances a reasonable person might read an officer's 'May
I' as the courteous expression of a demand backed by force of law.' Id., at 701.
119 A considerable constitutional guarantee rides on this narrow issue. At the time
of the search there was no probable cause to believe that the car contained
contraband or other unlawful articles. The car was stopped only because a
headlight and the license plate light were burned out. The car belonged to
Alcala's brother, from whom it was borrowed, and Alcala had a driver's license.
Traffic citations were appropriately issued. The car was searched, the present
record showing that Alcala consented. But whether Alcala knew he had the
right to refuse, we do not know. All the Court of Appeals did was to remand the
case to the District Court for a findingand if necessary, a hearing on that
issue.
120 I would let the case go forward on that basis. The long, time-consuming contest
in this Court might well wash out. At least we could be assured that, if it came
back, we would not be rendering an advisory opinion. Had I voted to grant this
petition, I would suggest we dismiss it as improvidently granted. But, being in
the minority, I am bound by the Rule of Four.
121 Mr. Justice BRENNAN, dissenting.
122 The Fourth Amendment specifically guarantees '(t)he right of the people to be
secure in their persons, houses, papers and effects, against unreasonable
searches and seizures . . ..' We have consistently held that governmental
searches conducted pursuant to a validly obtained warrant or reasonably
incident to a valid arrest do not violate this guarantee. Here, however, as the
Court itself recognizes, no search warrant was obtained and the State does not
even suggest 'that there was probable cause to search the vehicle or that the
search was incident to a valid arrest of any of the occupants.' Ante, at 227
228. As a result, the search of the vehicle can be justified solely on the ground
that the owner's brother gave his consentthat is, that he waived his Fourth
Amendment right 'to be secure' against an otherwise 'unreasonable' search. The
Court holds today that an individual can effectively waive this right even
though he is totally ignorant of the fact that, in the absence of his consent, such
invasions of his privacy would be constitutionally prohibited. It wholly escapes
me how our citizens can meaningfully be said to have waived something as
precious as a constitutional guarantee without ever being aware of its existence.
In my view, the Court's conclusion is supported neither by 'linguistics,' nor by

'epistemology,' nor, indeed, by 'common sense.' I respectfully dissent.

123 Mr. Justice MARSHALL, dissenting.
124 Several years ago, Mr. Justice Stewart reminded us that '(t)he Constitution
guarantees . . . a society of free choice. Such a society presupposes the capacity
of its members to choose.' Ginsberg v. New York, 390 U.S. 629, 649, 88 S.Ct.
1274, 1285, 20 L.Ed.2d 195 (1968) (concurring in result). I would have thought
that the capacity to choose necessarily depends upon knowledge that there is a
choice to be made. But today the Court reaches the curious result that one can
choose to relinquish a constitutional rightthe right to be free of unreasonable
searcheswithout knowing that he has the alternative of refusing to accede to a
police request to search. 1 I cannot agree, and therefore dissent.
125 * I believe that the Court misstates the true issue in this case. That issue is not,
as the Court suggests whether the police overbore Alcala's will in eliciting his
consent, but rather, whether a simple statement of assent to search, without
more,2 should be sufficient to permit the police to search and thus act as a
relinquishment of Alcala's constitutional right to exclude the police.3 This Court
has always scrutinized with great care claims that a person has forgone the
opportunity to assert constitutional rights. See, e.g., Fuentes v. Shevin, 407 U.S.
67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); D. H. Overmyer Co., Inc. v. Frick
Co., 405 U.S. 174, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972); Boykin v. Alabama,
395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Carnley v. Cochran, 369
U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). I see no reason to give the claim
that a person consented to a search any less rigorous scrutiny. Every case in this
Court involving this kind of search has heretofore spoken of consent as a
waiver. 4 See, e.g., Amos v. United States, 255 U.S. 313, 317, 41 S.Ct. 266, 267,
65 L.Ed. 654 (1921); Zap v. United States, 328 U.S. 624, 628, 66 S.Ct. 1277,
1279, 90 L.Ed. 1477 (1946); Johnson v. United States, 333 U.S. 10, 13, 68
S.Ct. 367, 368, 92 L.Ed. 436 (1948).5 Perhaps one skilled in linguistics or
opistemology can disregard those comments, but I find them hard to ignore.
126 To begin, it is important to understand that the opinion of the Court is
misleading in its treatment of the issue here in three ways. First, it derives its
criterion for determining when a verbal statement of assent to search operates as
a relinquishment of a person's right to preclude entry from a justification of
consent searches that is inconsistent with our treatment in earlier cases of
exceptions to the requirements of the Fourth Amendment, and that is not
responsive to the unique nature of the consent-search exception. Second, it
applies a standard of voluntariness that was developed in a very different
context, where the standard was based on policies different from those involved

in this case. Third, it mischaracterizes our prior cases involving consent

searches.
A.
127 The Court assumes that the issue in this case is: what are the standards by
which courts are to determine that consent is voluntarily given? It then imports
into the law of search and seizure standards developed to decide entirely
different questions about coerced confessions.6
128 The Fifth Amendment, in terms, provides that no person 'shall be compelled in
any criminal case to be a witness against himself.' Nor is the interest protected
by the Due Process Clause of the Fourteenth Amendment any different. The
inquiry in a case where a confession is challenged as having been elicited in an
unconstitutional manner is, therefore, whether the behavior of the police
amounted to compulsion of the defendant.7 Because of the nature of the right to
be free of compulsion, it would be pointless to ask whether a defendant knew of
it before he made a statement; no sane person would knowingly relinquish a
right to be free of compulsion. Thus, the questions of compulsion and of
violation of the right itself are inextricably intertwined. The cases involving
coerced confessions, therefore, pass over the question of knowledge of that
right as irrelevant, and turn directly to the question of compulsion.
129 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),
confirms this analysis. There the Court held that certain warnings must be
given to suspects prior to their interrogation so that the inherently coercive
nature of in-custody questioning would be diminished by the suspect's
knowledge that he could remain silent. But, although those warnings, of course,
convey information about various rights of the accused, the information is
intended only to protect the suspect against acceding to the other coercive
aspects of police interrogation. While we would not ordinarily think that a
suspect could waive his right to be free of coercion, for example, we do permit
suspects to waive the rights they are informed of by police warnings, on the
belief that such information in itself sufficiently decreases the chance that a
statement would be elicited by compulsion. Id., at 475476, 86 S.Ct., at 1628
1629. Thus, nothing the defendant did in the cases involving coerced
confessions was taken to operate as a relinquishment of his rights; certainly the
fact that the defendant made a statement was never taken to be a relinquishment
of the right to be free of coercion.8
B

130 In contrast, this case deals not with 'coercion,' but with 'consent,' a subtly
different concept to which different standards have been applied in the past.
Freedom from coercion is a substantive right, guaranteed by the Fifth and
Fourteenth Amendments. Consent, however, is a mechanism by which
substantive requirements, otherwise applicable, are avoided. In the context of
the Fourth Amendment, the relevant substantive requirements are that searches
be conducted only after evidence justifying them has been submitted to an
impartial magistrate for a determination of probable cause. There are, of
course, exceptions to these requirements based on a variety of exigent
circumstances that make it impractical to invalidate a search simply because
the police failed to get a warrant.9 But none of the exceptions relating to the
overriding needs of law enforcement are applicable when a search is justified
solely by consent. On the contrary, the needs of law enforcement are
significantly more attenuated, for probable cause to search may be lacking but a
search permitted if the subject's consent has been obtained. Thus, consent
searches are permitted, not because such an exception to the requirements of
probable cause and warrant is essential to proper law enforcement, but because
we permit our citizens to choose whether or not they wish to exercise their
constitutional rights. Our prior decisions simply do not support the view that a
meaningful choice has been made solely because no coercion was brought to
bear on the subject.
131 For example, in Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20
L.Ed.2d 797 (1968), four law enforcement officers went to the home of
Bumper's grandmother. They announced that they had a search warrant, and
she permitted them to enter. Subsequently, the prosecutor chose not to rely on
the warrant, but attempted to justify the search by the woman's consent. We
held that consent could not be established 'by showing no more than
acquiescence to a claim of lawful authority,' id., at 548549, 88 S.Ct., at 1792.
We did not there inquire into all the circumstances, but focused on a single fact,
the claim of authority, even though the grandmother testified that no threats
were made. Id., at 547 n. 8, 88 S.Ct., at 1791. It may be that, on the facts of that
case, her consent was under all the circumstances involuntary, but it is plain
that we did not apply the test adopted by the Court today. And, whatever the
posture of the case when it reached this Court, it could not be said that the
police in Bumper acted in a threatening or coercive manner, for they did have
the warrant they said they had; the decision not to rely on it was made long
after the search, when the case came into court.10
132 That case makes it clear that police officers may not courteously order the
subject of a search simply to stand aside while the officers carry out a search
they have settled on. Yet there would be no coercion or brutality in giving that

order. No interests that the Court today recognizes would be damaged in such a
search. Thus, all the police must do is conduct what will inevitably be a
charade of asking for consent. If they display any firmness at all, a verbal
expression of assent will undoubtedly be forthcoming. I cannot believe that the
protections of the Constitution mean so little.
II
133 My approach to the case is straight-forward and, to me, obviously required by
the notion of consent as a relinquishment of Fourth Amendment rights. I am at
a loss to understand why consent 'cannot be taken literally to mean a 'knowing'
choice.' Ante, at 224. In fact, I have difficulty in comprehending how a decision
made without knowledge of available alternatives can be treated as a choice at
all.
134 If consent to search means that a person has chosen to forgo his right to exclude
the police from the place they seek to search, it follows that his consent cannot
be considered a meaningful choice unless he knew that he could in fact exclude
the police. The Court appears, however, to reject even the modest proposition
that, if the subject of a search convinces the trier of fact that he did not know of
his right to refuse assent to a police request for permission to search, the search
must be held unconstitutional. For it says only that 'knowledge of the right to
refuse consent is one factor to be taken into account.' Ante, at 227. I find this
incomprehensible. I can think of no other situation in which we would say that
a person agreed to some course of action if he convinced us that he did not
know that there was some other course he might have pursued. I would
therefore hold, at a minimum, that the prosecution may not rely on a purported
consent to search if the subject of the search did not know that he could refuse
to give consent. That, I think, is the import of Bumper v. North Carolina, supra.
Where the police claim authority to search yet in fact lack such authority, the
subject does not know that he may permissibly refuse them entry, and it is this
lack of knowledge that invalidates the consent.
135 If one accepts this view, the question then is a simple one: must the
Government show that the subject knew of his rights, or must the subject show
that he lacked such knowledge?
136 I think that any fair allocation of the burden would require that it be placed on
the prosecution. On this question, the Court indulges in what might be called
the 'straw man' method of adjudication. The Court responds to this suggestion
by overinflating the burden. And, when it is suggested that the prosecution's
burden of proof could be easily satisfied if the police informed the subject of

his rights, the Court responds by refusing to require the police to make a
'detailed' inquiry. Ante, at 245. If the Court candidly faced the real question of
allocating the burden of proof, neither of these maneuvers would be available to
it.
137 If the burden is placed on the defendant, all the subject can do is to testify that
he did not know of his rights. And I doubt that many trial judges will find for
the defendant simply on the basis of that testimony. Precisely because the
evidence is very hard to come by, courts have traditionally been reluctant to
require a party to prove negatives such as the lack of knowledge. See, e.g., 9 J.
Wigmore, Evidence 274 (3d ed. 1940); F. James, Civil Procedure 7.8 (1965);
E. Morgan, Some Problems of Proof Under the Anglo-American System of
Litigation 7576 (1956).
138 In contrast, there are several ways by which the subject's knowledge of his
rights may be shown. The subject may affirmatively demonstrate such
knowledge by his responses at the time the search took place, as in United
States v. Curiale, 414 F.2d 744 (CA2 1969). Where, as in this case, the person
giving consent is someone other than the defendant, the prosecution may
require him to testify under oath. Denials of knowledge may be disproved by
establishing that the subject had, in the recent past, demonstrated his knowledge
of his rights, for example, by refusing entry when it was requested by the
police. The prior experience or training of the subject might in some cases
support an inference that he knew of his right to exclude the police.
139 The burden on the prosecutor would disappear, of course, if the police, at the
time they requested consent to search, also told the subject that he had a right to
refuse consent and that his decision to refuse would be respected. The Court's
assertions to the contrary notwithstanding, there is nothing impractical about
this method of satisfying the prosecution's burden of proof.11 It must be
emphasized that the decision about informing the subject of his rights would lie
with the officers seeking consent. If they believed that providing such
information would impede their investigation, they might simply ask for
consent, taking the risk that at some later date the prosecutor would be unable
to prove that the subject knew of his rights or that some other basis for the
search existed.
140 The Court contends that if an officer paused to inform the subject of his rights,
the informality of the exchange would be destroyed. I doubt that a simple
statement by an officer of an individual's right to refuse consent would do much
to alter the informality of the exchange, except to alert the subject to a fact that
he surely is entitled to know. It is not without significance that for many years

the agents of the Federal Bureau of Investigation have routinely informed

subjects of their right to refuse consent, when they request consent to search.
Note, Consent Searches: A Reappraisal After Miranda v. Arizona, 67
Col.L.Rev. 130, 143 n. 75 (1967) (citing letter from J. Edgar Hoover). The
reported cases in which the police have informed subjects of their right to
refuse consent show, also, that the information can be given without disrupting
the casual flow of events. See, e.g., United States v. Miller, 395 F.2d 116 (CA7
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 a right to refuse consent and that his refusal would be
respected.12
141 I must conclude with some reluctance that when the Court speaks of
practicality, what it really is talking of is the continued ability of the police to
capitalize on the ignorance of citizens so as to accomplish by subterfuge what
they could not achieve by relying only on the knowing relinquishment of
constitutional rights. Of course it would be 'practical' for the police to ignore
the commands of the Fourth Amendment, if by practicality we mean that more
criminals will be apprehended, even though the constitutional rights of innocent
people also go by the board. But such a practical advantage is achieved only at
the cost of permitting the police to disregard the limitations that the
Constitution places on their behavior, a cost that a constitutional democracy
cannot long absorb.
142 I find nothing in the opinion of the Court to dispel my belief that, in such a case,
as the Court of Appeals for the Ninth Circuit said, '(u)nder many circumstances
a reasonable person might read an officer's 'May I' as the courteous expression
of a demand backed by force of law.' 448 F.2d, at 701. Most cases, in my view,
are akin to Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d
797 (1968): consent is ordinarily given as acquiescence in an implicit claim of
authority to search. Permitting searches in such circumstances, without any
assurance at all that the subject of the search knew that, by his consent, he was
relinquishing his constitutional rights, is something that I cannot believe is
sanctioned by the Constitution.
III
143 The proper resolution of this case turns, I believe, on a realistic assessment of
the nature of the interchange between citizens and the police, and of the
practical import of allocating the burden of proof in one way rather than
another. The Court seeks to escape such assessments by escalating its rhetoric
to unwarranted heights, but no matter how forceful the adjectives the Court

uses, it cannot avoid being judged by how well its image of these interchanges
accords with reality. Although the Court says without real elaboration that it
'cannot agree,' ante, at 248, the holding today confines the protection of the
Fourth Amendment against searches conducted without probable cause to the
sophisticated, the knowledgeable, and, I might add, the few.13 In the final
analysis, the Court now sanctions a game of blindman's buff, in which the
police always have the upper hand, for the sake of nothing more than the
convenience of the police. But the guarantees of the Fourth Amendment were
never intended to shrink before such an ephemeral and changeable interest. The
Framers of the Fourth Amendment struck the balance against this sort of
convenience and in favor of certain basic civil rights. It is not for this Court to
restrike that balance because of its own views of the needs of law enforcement
officers. I fear that that is the effect of the Court's decision today.
144 It is regrettable that the obsession with validating searches like that conducted
in this case, so evident in the Court's hyperbole, has obscured the Court's vision
of how the Fourth Amendment was designed to govern the relationship
between police and citizen in our society. I believe that experience and careful
reflection show how narrow and inaccurate that vision is, and I respectfully
dissent.

Cal.Penal Code 475a.

The order of the California Supreme Court is unreported.

The decision of the District Court is unreported.

'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, 66 S.Ct. 1256, 1269, 90 L.Ed. 1453
(Frankfurter, J., dissenting).

See Miranda v. Arizona, 384 U.S. 436, 507, and n. 3, 86 S.Ct. 1602, 1645, 16
L.Ed.2d 694 (Harlan, J., dissenting); Spano v. New York, 360 U.S. 315, 321 n.
2, 79 S.Ct. 1202, 1206, 3 L.Ed.2d 1265 (citing 28 cases).

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, 90 S.Ct. 1463,
1469, 25 L.Ed.2d 747. See also n. 25, infra.

Bator & Vorenberg, Arrest, Detention, Interrogation and the Right to Counsel:
Basic Problems and Possible Legislative Solutions, 66 Col.L.Rev. 62, 7273.
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.'

See generally Miranda v. Arizona, 384 U.S., at 508, 86 S.Ct., at 1645 (Harlan,
J., dissenting); 3 J. Wigmore, Evidence 826 (J. Chadbourn rev. 1970); Note,
Developments in the Law: Confessions, 79 Harv.L.Rev. 938, 954984.

See Note, Consent Searches; A Reappraisal After Miranda v. Arizona, 67

Col.L.Rev. 130, 130131.

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, 69 S.Ct. 1302, 93 L.Ed. 1879; Carroll v. United States,
267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543.

11

United States v. Curiale, 414 F.2d 744, 747 (2 Cir.).

12

Cf. Rosenthall v. Henderson, 389 F.2d 514, 516 (6 Cir.).

13

See, e.g., Gorman v. United States, 380 F.2d 158, 164 (CA1); United States ex
rel. Code 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 (D.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 factsa 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, 88
S.Ct. 2065, 20 L.Ed.2d 1115; 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 Or. 60,
488 P.2d 1366.
15

This view is bolstered by Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct.
2022, 29 L.Ed.2d 564. 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, 91
S.Ct., 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,
91 S.Ct., at 2049.
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, 58 S.Ct. 1019, 82 L.Ed. 1461, 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, 1 S.Ct. 307, 27 L.Ed. 169, 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, 1
S.Ct., at 311. Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 57 S.Ct. 809, 81 L.Ed.
1177, is to the same effect. Ohio Bell Tel. Co. v. Public Utilities Comm'n, 301
U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093, 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, 57 S.Ct., at
731.

17

Cf. Parden v. Terminal R. Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233
(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, 84 S.Ct. 411, 11 L.Ed.2d
354 (valid waiver of procedural due process found over objection of no
compliance with Johnson). See also Employees of Dept. of Public Health and
Welfare, Missouri v. Department of Public Health and Welfare, Missouri, 411

U.S. 279, 296, 93 S.Ct. 1614, 1623, 36 L.Ed.2d 251 (Marshall, J., concurring in
result).
18

One apparent exception was Marchetti v. United States, 390 U.S. 39, 5152,
88 S.Ct. 697, 704, 705, 19 L.Ed.2d 889, 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, 62 S.Ct. 457, 86 L.Ed. 680;
Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed.
268; Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70; cf.
Chessman v. Teets, 354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d 1253 (no waiver of
counsel shown at settlement of state court record).

20

See, e.g., Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309;
Uveges v. Pennsylvania, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127; Moore v.
Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167; Boyd v. Dutton, 405 U.S.
1, 92 S.Ct. 759, 30 L.Ed.2d 755.

21

See, e.g., Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314; Barber
v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255.

22

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

23

See, e.g., Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101.

24

See, e.g., Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199.

25

See, e.g., McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d
418; Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274.
Our cases concerning the validity of guilty pleas underscore the fact that the
question whether a person has acted 'voluntarily' is quite distinct from the
question whether he has 'waived' a trial right. The former question, as we made
clear in Brady v. United States, 397 U.S., at 749, 90 S.Ct., at 1469, can be
answered only by examining all the relevant circumstances to determine if he
has been coerced. The latter question turns on the extent of his knowledge. We
drew the same distinction in McMann v. Richardson, 397 U.S. 759, 766, 90
S.Ct. 1441, 1446, 25 L.Ed.2d 763:

'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
trialand 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 defendantit 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, 69 S.Ct. 1000, 93 L.Ed. 1264.

27

See, e.g., Emspak v. United States, 349 U.S. 190, 75 S.Ct. 687, 99 L.Ed. 997.

28

See In re Gault, 387 U.S. 1, 42, 87 S.Ct. 1428, 1451, 18 L.Ed.2d 527.

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,
86 S.Ct., at 1629.
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 (9 Cir.); Villano v. United States, 310 F.2d 680, 684 (10 Cir.);
United States v. Marrese, 336 F.2d 501 (3 Cir.).

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, 68 S.Ct. 367, 92 L.Ed. 436, 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. It was granted in submission to
authority rather than as an understanding and intentional waiver of a
constitutional right.' Id., 333 U.S., at 13, 68 S.Ct., at 368, 92 L.Ed. 436. 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, 41 S.Ct. 266, 65 L.Ed. 654.
32

The Court was even more explicit in Von Moltke v. Gillies, 332 U.S., at 723
724, 68 S.Ct., at 323:
'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 clearcut fact.' Miranda v. Arizona, 384
U.S., at 468469, 86 S.Ct., at 1625 (footnote omitted). See United States v.
Moderacki, 280 F.Supp. 633 (D.Del.); United States v. Blalock, 255 F.Supp.
268 (E.D.Pa.).

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, 87 S.Ct. 1338, 18 L.Ed.2d 423;
Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037; Reck v.
Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948; Payne v. Arkansas, 356 U.S.
560, 78 S.Ct. 844, 2 L.Ed.2d 975; Fikes v. Alabama, 352 U.S. 191, 77 S.Ct.
281, 1 L.Ed.2d 246; Harris v. South Carolina, 338 U.S. 68, 69 S.Ct. 1354, 93
L.Ed. 1815; Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224.
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, 84 S.Ct. 1758, 1769, 12
L.Ed.2d 977 (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, 89 S.Ct. 1068, 22 L.Ed.2d 227; Whiteley v. Warden, 401 U.S.
560, 91 S.Ct. 1031, 28 L.Ed.2d 306; Harris v. Nelson, 394 U.S. 286, 89 S.Ct.
1082, 22 L.Ed.2d 281; and Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120,
20 L.Ed.2d 1154. Since we have found no valid Fourth and Fourteenth
Amendment claim in this case, we do not consider that question.

Cases cited as examples included Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct.
2120, 20 L.Ed.2d 1154 (1968); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct.
1556, 20 L.Ed.2d 554 (1968); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642,
18 L.Ed.2d 782 (1967).

The Act of Feb. 5, 1867, c. 28, 1, 14 Stat. 385, provided that

'the several courts of the United States . . . within their respective jurisdictions,
in addition to the authority already conferred by law, shall have power to grant
writs of habeas corpus in all cases where any person may be restrained of his or

her liberty in violation of the constitution, or of any treaty or law of the United
States . . ..'
Federal habeas review for those in state custody is now authorized by 28
U.S.C. 2254(a):
'The Supreme Court, a Justice thereof, a circuit judge, or a district court shall
entertain an application for a writ of habeas corpus in behalf of a person in
custody pursuant to the judgment of a State court only on the ground that he is
in custody in violation of the Constitution or laws or treaties of the United
States.'
3

Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners,
76 Harv.L.Rev. 441, 466 (1963); Habeas Corpus, Oaks, Legal History in the
High Court64 Mich.L.Rev. 451, 451456 (1966).

Oaks, supra, n. 3, at 452.

Professor Paul M. Bator of Harvard Law School and Professor Dallin H. Oaks
formerly of the University of Chicago School of Law. Citations to the relevant
articles are in n. 3, supra.

Oaks, supra, n. 3, at 468.

Bator, supra, n. 3, at 475476.

Id., at 475.

H.R.Rep.No.730, 48th Cong., 1st Sess., 5 (1884), quoted in Bator, supra, n. 3,

at 477.

10

Pollak, Proposals to Curtail Federal Habeas Corpus for State Prisoners:

Collateral Attack on the Great Writ, 66 Yale L.J. 50, 65 (1956).

11

Reitz, Federal Habeas Corpus: Post-conviction Remedy for State Prisoners,

108 U.Pa.L.Rev. 461, 497 (1960).

12

Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38

U.Chi.L.Rev. 142, 160 (1970).

13

Bator, supra, n. 3, at 451.

The conventional justifications for extending federal habeas corpus to afford
collateral review of state court judgments were summarized in Kaufman v.
United States, 394 U.S. 217, 225226, 89 S.Ct. 1068, 10731074, 22

L.Ed.2d 227, as follows:

'(T)he necessity that federal courts have the 'last say' with respect to questions
of federal law, the inadequacy of state procedures to raise and preserve federal
claims, the concern that state judges may be unsympathetic to federally created
rights, the institutional constraints on the exercise of this Court's certiorari
jurisdiction to review state convictions . . ..' Each of these justifications has
merit in certain situations, although the asserted inadequacy of state procedures
and unsympathetic attitude of state judges are far less realistic grounds of
concern than in years past. The issue, fundamentally, is one of perspective and
a rational balancing. The appropriateness of federal collateral review is evident
in many instances. But is hardly follows that, in order to promote the ends of
individual justice which are the foremost concerns of the writ, it is necessary to
extend the scope of habeas review indiscriminately. This is especially true with
respect to federal review of Fourth Amendment claims with the consequent
denigration of other important societal values and interests.
14

Briefly, civil filings in United States district courts increased from 58,293 in
1961 to 96,173 in 1972. Total appeals commenced in the United States courts
of appeals advanced from 4,204 in 1961 to 14,535 in 1972. Petitions for federal
habeas corpus filed by state prisoners jumped from 1,020 in 1961 to 7,949 in
1972. Though habeas petitions filed by state prisoners did decline from 9,063 in
1970 to 7,949 in 1972, the overall increase from 1,000 at the start of the last
decade is formidable. Furthermore, civil rights prisoner petitions under 42
U.S.C. 1983 increased from 1,072 to 3,348 in the past five years. Some of
these challenged the fact and duration of confinement and sought release from
prison and must now be brought as actions for habeas corpus, Preiser v.
Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). See 1972
Annual Report of the Director of the Administrative Office of the United States
Courts, II5, II22, II 2832.

15

Mr. Chief Justice Burger has illustrated the absurd extent to which relitigation
is sometimes allowed:
'In some of these multiple trial and appeal cases (on collateral attack) the
accused continued his warfare with society for eight, nine, ten years and more.
In one case . . . more than fifty appellate judges reviewed the case on appeals.'
Address before the Association of the Bar of the City of New York, N.Y.L.J.,
Feb. 19, 1970, p. 1.
The English courts, 'long admired for (their) fair treatment of accused persons,'
have never so extended habeas corpus. Friendly, supra, n. 12, at 145.

16

Amsterdam, Search, Seizure, and Section 2255: A Comment, 112 U.Pa.L.Rev.

378, 383384 (1964). The article addresses the problem of collateral relief for
federal prisoners, but its rationable applies forcefully to federal habeas for state
prisoners as well.
17

Mr. Justice Harlan put it very well:

'Both the individual criminal defendant and society have an interest in insuring
that there will at some point be the certainty that comes with an end to
litigation, and that attention will ultimately be focused not on whether a
conviction was free from error but rather on whether the prisoner can be
restored to a useful place in the community.' Sanders v. United States, 373 U.S.
1, 2425, 83 S.Ct. 1068, 1082, 10 L.Ed.2d 148 (1963) (dissenting opinion).

18

Supra, n. 16, at 388.

19

The latter occurs for various reasons, namely, failure of the accused to raise the
claim at trial, a determination by the state courts that the claim did not merit a
hearing, or a recent decision of this Court extending rights of the accused
(although, on Fourth Amendment claims, such decisions have seldom been
applied retroactively, see, e.g., Linkletter v. Walker, 381 U.S. 618, 85 S.Ct.
1731, constitutional dimensions going to the

20

The dispersion of power between State and Federal Governments is

constitutionally premised, as Mr. Justice Harlan observed:
'(I)t would surely be shallow not to recognize that the structure of our political
system accounts no less for the free society we have. Indeed, it was upon the
structure of government that the founders primarily focused in writing the
Constitution. Out of bitter experience they were suspicious of every form of allpowerful central authority and they sought to assure that such a government
would never exist in this country by structuring the federal establishment so as
to diffuse power between the executive, legislative, and judicial branches. The
diffusion of power between federal and state authority serves the same ends and
takes on added significance as the size of the federal bureaucracy contines to
grow.' Thoughts at a Dedication: Keeping the Judicial Function in Balance, 49
A.B.A.J. 943, 943944 (1963).
The Justice recognized that problems of habeas corpus jurisdiction were 'of
constitutional dimensiong going to the heart of the division of judicial powers
in a federal system.' Fay v. Noia, 372 U.S. 391, 464, 83 S.Ct. 822, 862, 9
L.Ed.2d 837 (1963) (dissenting opinion). Nor have such perceptions ever been
the product of but a single Justice. As the Court noted in a historic decision on
the conflicting realms of state and federal judicial power:

'(T)he constitution of the United States . . . recognizes and preserves the

autonomy and independence of the statesindependence in their legislative
and independence in their judicial departments. Supervision over either the
legislative or the judicial action of the states is in no case permissible except as
to matters by the constitution specifically authorized or delegated to the United
States. Any interference with either, except as thus permitted, is an invasion of
the authority of the state, and, to that extent, a denial of its independence.' Erie
R. Co. v. Tompkins, 304 U.S. 64, 7879, 58 S.Ct. 817, 822823, 82 L.Ed.
1188 (1938), quoting Mr. Justice Field in Baltimore & O.R. Co. v. Baugh, 149
U.S. 368, 401, 13 S.Ct. 914, 927, 37 L.Ed. 772 (1893).
21

Address at the annual dinner of the Section of Judicial Administration,

American Bar Association, San Francisco, California, Aug. 14, 1972, pp. 5, 9,
and 10.

22

Bator, supra, n. 3, at 451.

23

Friendly, supra, n. 12, at 142. Judge Friendly's thesis, as he develops it, would
encompass collateral attack broadly both within the federal system and with
respect to federal habeas for state prisoners. Subject to the exceptions carefully
delineated in his article, Judge Friendly would apply the criterion of a 'colorable
showing of innocence' to any collateral attack of a conviction, including claims
under the Fifth and Sixth as well as the Fourth Amendments. Id., at 151157.
In this case we need not consider anything other than the Fourth Amendment
claims.

24

See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388, 411, 91 S.Ct. 1999, 2012, 29 L.Ed.2d 619 (Burger, C.J., dissenting);
Paulsen, The Exclusionary Rule and Misconduct by the Police, 52 J.Crim.L.C.
& P.S. 255, 256 (1961); see also J. Wilson, Varieties of Police Behavior (1968);
8 Wigmore, Evidence 2184, pp. 5152 (J. McNaughton ed. 1961), and H.
Friendly, Benchmarks 260261 (1967), suggesting that even at trial the
exclusionary rule should be limited to exclusion of 'the fruit of activity
intentionally or flagrantly illegal.' But see Kamisar, Public Safety v. Individual
Liberties: Some 'Facts' and 'Theories,' 53 J.Crim.L.C. & P.S. 171, 188190
(1962), and Kamisar, On the Tactics of Police-Prosecution Oriented Critics of
the Courts, 49 Cornell L.Q. 436 (1964).

25

These expressions antedated the only scholarly empirical research, Mr. Justice
Stewart having noted in Elkins v. United States, 364 U.S. 206, 218, 80 S.Ct.
1437, 1444, 4 L.Ed.2d 669 (1960), that '(e)mpirical statistics are not available'
as to the efficacy of the rulea situation which continued until Professor Oaks'
study. Indeed, in referring to the basis for the exclusionary rule, Professor Oaks

noted that it has been supported, not by facts, but by 'recourse to polemic,
rhetoric, and intuition.' Studying the Exclusionary Rule in Search and Seizure,
37 U.Chi.L.Rev. 665, 755 (1970). See also Burger, Who Will Watch the
Watchman?, 14 Am.U.L.Rev. 1 (1964).
I mention the controversy over the exclusionary rulenot to suggest here its
total abandonment (certainly not in the absence of some other deterrent to
deviant police conduct) but rather to emphasize its precarious and
undemonstrated basis, especially when applied to a Fourth Amendment claim
on federal habeas review of a state court decision.
26

The most searching empirical study of the efficacy of the exclusionary rule was
made by Professor Oaks, who concluded that '(a)s a device for directly
deterring illegal searches and seizures by the police, the exclusionary rule is a
failure.' Supra, n. 25, at 755. Professor Oaks, though recognizing that
conclusive data may not yet be available, summarized the results of his study as
follows:
'There is no reason to expect the rule to have any direct effect on the
overwhelming majority of police conduct that is not meant to result in
prosecutions, and there is hardly any evidence that the rule exerts any deterrent
effect on the small fraction of law enforcement activity that is aimed at
prosecution. What is known about the deterrent effect of sanctions suggests
that the exclusionary rule operates under conditions that are extremely
unfavorable for deterring the police. The harshest criticism of the rule is that it
is ineffective. It is the sole means of enforcing the essential guarantees of
freedom from unreasonable arrests and searches and seizures by law
enforcement officers, and it is a failure in that vital task.
'The use of the exclusionary rule imposes excessive costs on the criminal
justice system. It provides no recompense for the innocent and it frees the
guilty. It creates the occasion and incentive for large scale lying by law
enforcement officers. It diverts the focus of the criminal prosecution from the
guilt or innocence of the defendant to a trial of the police. Only a system with
limitless patience with irrationality could tolerate the fact that where there has
been one wrong, the defendant's, he will be punished, but where there have
been two wrongs, the defendant's and the officer's, both will go free. This
would not be an excessive cost for an effective remedy against police
misconduct, but it is a prohibitive price to pay for an illusory one.' Id., 755.
Despite a conviction that the exclusionary rule is a 'failure,' Professor Oaks
would not abolish it altogether until there is something to take its place. He
recommends 'an effective tort remedy against the offending officer or his

employer.' He notes that such a 'tort remedy would give courts an occasion to
rule on the content of constitutional rights (the Canadian example shows how),
and it would provide the real consequence needed to give credibility to the
guarantee.' Id., at 756757.
27

'As the exclusionary rule is applied time after time, it seems that its deterrent
efficacy at some stage reaches a point of diminishing returns, and beyond that
point its continued application is a public nuisance.' Amsterdam, supra, n. 16,
at 389.

28

Ker v. California, 374 U.S. 23, 45, 83 S.Ct. 1623, 1646, 10 L.Ed.2d 726 (1963)
(Harlan, J., concurring in result).

29

Coolidge v. New Hampshire, 403 U.S. 443, 493, 91 S.Ct. 2022, 2051, 29
L.Ed.2d 564 (1971) (opinion of Burger, C.J.). The Chief Justice was quoting
Mr. Justice Stone of the Minnesota Supreme Court.

30

Friendly, supra, n. 12, at 162163.

31

Friendly, supra, n. 12, at 156.

32

See Part II, supra.

33

The 1966 revision of the Federal Habeas Corpus statute enacted, among other
things, the present 28 U.S.C. 2254(a), (d), (e), and (f).

34

See Kaufman, supra, 394 U.S., at 220221, nn. 3 and 4, 89 S.Ct., at 1070
1071, for a listing of the respective positions of the courts of appeals.

35

The letter from Circuit Judge Orie L. Phillips, Chairman of the Committee on
Habeas Corpus of the Judicial Conference of the United States, which
sponsored the 1966 legislation, to the Chairman of the Senate Subcommittee on
Improvements in Judicial Machinery also strongly emphasized the necessity of
expediting 'the determination in Federal courts of nonmeritorious and
repetitious applications for the writ by State court prisoners.' S.Rep.No.1797,
89th Cong., 2d Sess., 5 (1966); U.S.Code Cong. & Admin.News 1966, p. 3667.

36

See Part II, supra.

37

Mr. Justice Jackson, concurring in the result 20 years ago in Brown v. Allen,
344 U.S. 443, 532, 73 S.Ct. 397, 423, 97 L.Ed. 469 (1953), lamented the
'floods of stale, frivolous and repetitious petitions (for federal habeas corpus by
state prisoners which) inundate the docket of the lower courts and swell our
own.' Id., at 536, 73 S.Ct., at 425. The inundation which concerned Mr. Justice

Jackson consisted of 541 such petitions. In 1971, the latest year for which
figures are available, state prisoners alone filed 7,949 petitions for habeas in
federal district courts, over 14 times the number filed when Mr. Justice Jackson
voiced his misgivings.
38

Brown v. Allen, supra, at 537, 73 S.Ct., at 425.

39

Commenting on this distortion of our criminal justice system, Justice Walter

Schaefer of the Illinois Supreme Court has said:
'What bothers me is that almost never do we have a genuine issue of guilt or
innocence today. The system has so changed that what we are doing in the
courtroom is trying the conduct of the police and that of the prosecutor all
along the line.' Address before Center for the Study of Democratic Institutions,
June 1968, cited by Friendly, supra, n. 12, at 145 n. 12.

The Court holds that Alcala's consent to search was shown, in the state court
proceedings, to be constitutionally valid as a relinquishment of his Fourth
Amendment rights. In those proceedings, no evidence was adduced as to
Alcala's knowledge of his right to refuse assent. The Court of Appeals for the
Ninth Circuit, whose judgment is today reversed, would have required
petitioner to produce such evidence. As discussed infra, p. 286, the Court of
Appeals did not hold that the police must inform a subject of investigation of
his right to refuse assent as an essential predicate to their effort to secure
consent to search.

The Court concedes that the police lacked probable cause to search. Ante, at
227228. At the time the search was conducted, there were three police
vehicles near the car. 270 Cal.App.2d 648, 651, 76 Cal.Rptr. 17, 19 (1969).
Perhaps the police in fact had some reason, not disclosed in this record, to
believe that a search would turn up incriminating evidence. But it is also
possible that the late hour and the number of men in Alcala's car suggested to
the first officer on the scene that it would be prudent to wait until other officers
had arrived before investigating any further.

Because Bustamonte was charged with possessing stolen checks found in the
search at which he was present, he has standing to object to the search even
though he claims no possessory or proprietary interest in the car. Jones v.
United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Cf. People v.
Ibarra, 60 Cal.2d 460, 34 Cal.Rptr. 863, 386 P.2d 487 (1963); People v. Perez,
62 Cal.2d 769, 44 Cal.Rptr. 326, 401 P.2d 934 (1965).

The Court reads Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed.
1453 (1946), as upholding a search like the one in this case on the basis of

consent. But it was central to the reasoning of the Court in that case that the
items seized were the property of the Government temporarily in Davis'
custody. See id., at 587593, 66 S.Ct., at 12581261. The agents of the
Government were thus simply demanding that property to which they had a
lawful claim be returned to them. Because of this, the Court held that
'permissible limits of persuasion are not so narrow as where private papers are
sought.' Id., at 593, 66 S.Ct., at 1261. The opinion of the Court therefore
explicitly disclaimed stating a general rule for ordinary searches for evidence.
That the distinction, for purposes of Fourth Amendment analysis, between
mere evidence and contraband or instrumentalities has now been abolished,
Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18
L.Ed.2d 782 (1967), is no reason to disregard the fact that when Davis was
decided, that distinction played an important role in shaping analysis.
In Zap v. United States, 328 U.S. 624, 628, 66 S.Ct. 1277, 1279, 90 L.Ed. 1477
(1946), the Court held that 'when petitioner, in order to obtain the government's
business, specifically agreed to permit inspection of his accounts and records,
he voluntarily waived such claim to privacy which he otherwise might have had
as respects business documents related to those contracts.' (Emphasis added.)
Because Zap had signed a contract specifically providing that his records would
be open at all time to the Government, he had indeed waived his right to keep
those records private. Cf. United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593,
32 L.Ed.2d 87 (1972).
5

Asside from Zap and Davis, supra, n. 4, I have found no cases decided by this
Court explicitly upholding a search based on the consent of the defendant. It is
hardly surprising, them, that '(t)he approach of the Court of Appeals for the
Ninth Circuit finds no support in any of our decisions,' ante, at 229. But in
nearly every case discussing the problem at length, the Court referred to
consent as a waiver. And it mischaracterizes those cases to describe them as
analyzing the totality of the circumstances, ante, at 234 n. 31. See infra, at 283
284.

That this application of the 'domino' method of adjudication is misguided is

shown, I believe, by the fact that the phrase 'voluntary consent' seems
redundant in a way that the phrase 'voluntary confession' does not.

The Court used the terms 'voluntary' or 'involuntary' in such cases as shorthand
labels for an assessment of the police behavior in light of the particular
characteristics of the individual defendant because behavior that might not be
coercive of some individuals might nonetheless compel others to give
incriminating statements. See, e.g., Haley v. Ohio, 332 U.S. 596, 599, 68 S.Ct.
302, 303, 92 L.Ed. 224 (1948); Stein v. New York, 346 U.S. 156, 185, 73 S.Ct.

1077, 1093, 97 L.Ed. 1522 (1953); Fikes v. Alabama, 352 U.S. 191, 77 S.Ct.
281, 1 L.Ed.2d 246 (1957).
8

I, of course, agree with the Court's analysis to the extent that it treats a verbal
expression of assent as no true consent when it is elicited through compulsion.
Ante, at 229. Since, in my view, it is just as unconstitutional to search after
coercing consent as it is to search after uninformed consent, I agree with the
rationale of Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654
(1921), Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436
(1948), and Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20
L.Ed.2d 797 (1968). That an alternative rationale might have been used in those
cases seems to me irrelevant.

See, e.g., Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29
L.Ed.2d 564 (1971); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23
L.Ed.2d 685 (1969); Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294,
87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).
In Chimel, we explained that searches incident to arrest were justified by the
need to protect officers from attacks by the persons they have arrested, and by
the need to assure that easily destructible evidence in the reach of the suspect
will not be destroyed. 395 U.S., at 762763, 89 S.Ct., at 20392040. And in
Coolidge, we said that searches of automobiles on the highway are justified
because an alerted criminal might easily drive the evidence away while a
warrant was sought. 403 U.S., at 459462, 91 S.Ct., at 20342036. In neither
situation is police convenience alone a sufficient reason for establishing an
exception to the warrant requirement. Yet the Court today seems to say that
convenience alone justifies consent searches.

10

The Court's interpretation of Johnson v. United States, 333 U.S. 10, 68 S.Ct.
367, 92 L.Ed. 436 (1948), a similar case, is baffling. The Court in Johnson did
not in fact analyze the totality of the circumstances, as the Court now argues,
ante, at 243 n. 31; the single fact that the police claimed authority to search
when in truth they lacked such authority conclusively established that no valid
consent had been given.

11

The proposition rejected in the cases cited by the Court in nn. 13 and 14, was
that, as in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966), a statement to the subject of his rights must be given as an
indispensable prerequisite to a request for consent to search. This case does not
require us to address that proposition, for all that is involved here is the
contention that the prosecution could satisfy the burden of establishing the
knowledge of the right to refuse consent by showing that the police advised the

subject of a search, that is sought to be justified by consent, of that right.

12

The Court's suggestion that it would be 'unrealistic' to require the officers to

make 'the detailed type of examination' involved when a court considers
whether a defendant has waived a trial right, ante, at 245, deserves little
comment. The question before us relates to the inquiry to be made in court
when the prosecution seeks to establish that consent was given. I therefore do
not address the Court's strained argument that one may waive constitutional
rights without making a knowing and intentional choice so long as the rights do
not relate to the fairness of a criminal trial. I would suggest, however, that that
argument is fundamentally inconsistent with the law of unconstitutional
conditions. See, e.g., Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33
L.Ed.2d 570 (1972); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22
L.Ed.2d 600 (1969); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10
L.Ed.2d 965 (1963); Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d
1460 (1958). The discussion of United States v. Wade, 388 U.S. 218, 87 S.Ct.
1926, 18 L.Ed.2d 1149 (1967), ante, at 239240, also seems inconsistent with
the opinion of Mr. Justice Stewart in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct.
1877, 32 L.Ed.2d 411 (1972). In any event, I do not understand how one can
relinquish a right without knowing of its existence, and that is the only issue in
this case.

13

The Court's half-hearted defense, that lack of knowledge is to be 'taken into

account,' rings rather hollow, in light of the apparent import of the opinion that
even a subject who proves his lack of knowledge may nonetheless have
consented 'voluntarily,' under the Court's peculiar definition of voluntariness.