Consent
to a search must be knowingly and voluntarily 68 N.J. 349 (1975)
State v. Johnson
The
Supreme Court of New Jersey.
Argued
May 13, 1975.
Decided
October 8, 1975.
The
opinion of the Court was delivered by SULLIVAN, J.
This
is a search and seizure case wherein defendant, who has been indicted for
possession of narcotics and possession with intent to distribute, moved to
suppress evidence found by the police during the search of an apartment where
defendant kept some personal belongings. The State sought to justify the search
on the basis of consent.[1] The trial judge granted the motion. The Appellate
Division reversed and remanded the matter for redetermination on the record
already made on the ground that the trial judge had applied improper standards
in passing upon the consent issue. By leave granted defendant appeals. R.
2:2-2(b). We modify the Appellate Division ruling to the extent hereinafter
indicated.
*352
At the hearing on the motion to suppress, the State and defendant presented
conflicting factual versions as to the circumstances leading up to the search
and whether or not consent had been given. Defense counsel argued that the
State had not proved "a voluntary type of waiver of one's Fourth Amendment
right." The trial judge in ruling on the motion made no specific finding
as to which version he found to be credible. He said he had weighed the
testimony of all of the witnesses and was unable to conclude that the State had
proved by clear and positive evidence that the consent was knowingly,
intelligently, voluntarily and unequivocally given to search the apartment. He
added that the knowledge aspect "goes to the knowledge of whether or not
she had a right to refuse to have the apartment searched at all or knowledge of
whether or not they are waiving their constitutional right against invasion of
privacy."
In
Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36
L. Ed. 2d 854 (1973) the United States Supreme Court held that where the
subject of a search is not in custody and the state attempts to justify the
search on the basis of 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, and that while knowledge of a
right to refuse consent is one factor to be taken into account, it is not an
indispensable element of an effective consent. 412 U.S. 248-249, 93 S. Ct.
2041.
Schneckloth
rejected the contention that the validity of a consent to a search in a
non-custodial situation should be measured in terms of waiver, and that the
state should be required to show that there had been an intentional relinquishment
of a known constitutional right. Instead, the court held that the test to be
applied was one of voluntariness to be determined from the totality of the
circumstances. Id. at 235-247, 93 S. Ct. 2041.
Based
on Schneckloth the Appellate Division held that the yardstick used by the trial
judge no longer represented *353 the measure to be applied in determining
whether there had been a violation of Fourth Amendment rights and remanded the
matter to the trial judge for redetermination of the motion to suppress on the
record already made, using the standards set forth in Schneckloth.
Schneckloth
is controlling on state courts insofar as construction and application of the
Fourth Amendment is concerned and is dispositive of defendant's federal
constitutional argument. However, each state has the power to impose higher
standards on searches and seizures under state law than is required by the
Federal Constitution. Cooper v. California, 386 U.S. 58, 62, 87 S. Ct. 788,
17 L. Ed. 2d 730 (1967).
The
New Jersey Constitution of 1947, Art. I, par. 7, provides that "[T]he
right of the people to be secure in their persons, houses, papers and effects,
against unreasonable searches and seizures shall not be violated * * *."
While counsel for defendant did not contend, either on argument of the motion
or on appeal, that our State constitutional provision against unreasonable
searches should be interpreted to give the individual greater protection than
is provided by the Fourth Amendment, this Court, sua sponte, posed the issue
and afforded counsel the opportunity to submit supplemental memoranda on the
question. The Court has the benefit of the additional arguments presented.[2]
We
conclude that under Art. I, par. 7 of our State Constitution the validity of a
consent to a search, even in a non-custodial situation, must be measured in
terms of waiver; i.e., where the State seeks to justify a search on the *354
basis of consent it has the burden of showing that the consent was voluntary,
an essential element of which is knowledge of the right to refuse consent.
Many
persons, perhaps most, would view the request of a police officer to make a
search as having the force of law. Unless it is shown by the State that the
person involved knew that he had the right to refuse to accede to such a
request, his assenting to the search is not meaningful. One cannot be held to
have waived a right if he was unaware of its existence.
However,
in a non-custodial situation, such as is here presented, the police would not
necessarily be required to advise the person of his right to refuse to consent
to the search. Our decision is only that in such a situation if the State seeks
to rely on consent as the basis for a search, it has the burden of
demonstrating knowledge on the part of the person involved that he had a choice
in the matter.[3]
We
agree that the motion should be remanded to the trial judge for redetermination
on the record already made and such additional proofs as the parties may offer,
but applying the standards heretofore set forth insofar as defendant's right
under our State constitution to be secure against unreasonable searches is
involved. On the remand, the trial judge should make specific findings as to
the facts disputed at the hearing and as to knowledge by the occupant of her
right to refuse consent so that a reviewing court may know precisely the basis
of the ruling.
Except
for the instant case, this decision is to have prospective effect, applying
only to searches based on consent which take place after the date of this
opinion.
SCHREIBER,
J. (concurring).
Obviously,
as both the majority and dissenting opinions observe, because of the *355
United States Supreme Court opinion in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36
L. Ed. 2d 854 (1973), knowledge of a right to refuse consent to a search is not
a prerequisite of an effective consent to validate a search under the Fourth
and Fourteenth Amendments of the United States Constitution. The remaining
issue is whether there has been a violation of Article I, ¶ 7 of the New Jersey
Constitution which provides that "[t]he right of the people to be secure
in their persons, houses, papers, and effects against unreasonable searches and
seizures, shall not be violated; * * *." In other words, was the search
unreasonable under all the circumstances? Cf. State v. Davis, 50 N.J. 16, 22
(1967); United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94
L. Ed. 653 (1950); and Cady v. Dombrowski, 413 U.S. 433, 439, 93 S. Ct.
2523, 37 L. Ed. 2d 706 (1973) where the Court noted: "The ultimate
standard set forth in the Fourth Amendment is reasonableness."
A
search conducted after a voluntary consent is clearly reasonable. State v.
King, 44 N.J. 346 (1965). Consent contemplates the exercise of a choice, and
choice entails the opportunity to evaluate the available options. The right of
self-decision is effectively safeguarded if the occupant of the premises knows
that the search may be refused. This knowledge may be imputed from information
furnished by the police. In the absence of that knowledge a search is
unreasonable.
I
would not, as the majority does, rationalize the problem in terms of waiver.
Justice Black in Green v. United States, 355 U.S. 184, 191, 78 S. Ct.
221, 2 L. Ed. 2d 199 (1957) wrote: "`Waiver' is a vague term used for a
great variety of purposes, good and bad, in the law." The dissent, for
example, utilizes one definition of the term, an intentional relinquishment or
abandonment of a known right or privilege. See dissenting opinion, p. 361. In
this context, one could logically contend that warnings should include the
consequences of permitting the search as well as the right to have present an
attorney. Wilberding, "Miranda-Type *356 Warnings for Consent
Searches," 47 North Dak. L. Rev. 281, 284 (1971).
It
is significant to note that none of the dissenting Justices in Schneckloth v.
Bustamonte, supra, urged that Miranda-type warnings be required. The
reasonableness of this position becomes apparent when recognition is given to
the fact that the warnings in Miranda v. Arizona, 384 U.S. 436, 477, 86 S. Ct.
1602, 16 L. Ed. 2d 694 (1966) apply only to custodial interrogations. It would
be anomalous indeed to require Miranda-type warnings with respect to consent
searches and not for Fifth Amendment non-custodial questioning. Such an
approach would tend to cripple effective law enforcement and ignore the
balancing concept inherent in determining what is "unreasonable."
I
concur in the remand for the purposes enunciated by the majority.
PASHMAN,
J. (dissenting).
This
case concerns the validity of a consent search conducted without a warrant by
three members of the Newark Police Department's Narcotics Squad. After hearing
sharply disputed testimony on the question of consent, the trial court granted
defendant's motion to suppress. As the majority properly notes, the trial judge
made no specific finding as to which factual version was credible, stating
instead that he was unable to conclude that "the State has sustained the
necessary burden by proving by clear and positive evidence that the consent was
knowingly, intelligently, voluntarily and unequivocally given" to search
the premises. The Appellate Division reversed and remanded, holding that the
trial court had applied an improper standard in resolving the consent issue,
"[t]he criterion is simply whether `the consent was in fact voluntarily
given and not the result of duress or coercion, express or implied.'"
(quoting from Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S. Ct.
2041, 36 L. Ed. 2d 854 (1973)). Today this Court in remanding the case for
further findings by the trial court concludes that the Schneckloth *357
standard for resolving the consent issue is controlling as to the construction
of the federal constitution but that this case is to be decided on the basis of
a proper construction of the search and seizure provisions of the New Jersey
Constitution. Ante at 352-353. While I agree with the conclusion of the
majority that this case must be remanded for more explicit factual findings, I
cannot subscribe to the reasoning of the Court insofar as it concerns the
standard for determining the issue of consent to conduct a warrantless search
under the New Jersey Constitution. Accordingly, I must dissent.
The
Essex County Grand Jury charged defendant in a two-count indictment with
possession of narcotics in violation of N.J.S.A. 24:21-20 (Supp. 1975-76), and
possession of narcotics with intent to distribute in violation of N.J.S.A.
24-21-19 (a) (1) (Supp. 1975-76). The indictment resulted from a search of the
apartment occupied by defendant's finance on the night of December 6, 1973.
According to her testimony, she was in bed in her Newark apartment when the
detectives knocked on her door seeking access to conduct a search. Although the
witness testified that she did not at any time give the officers permission to
enter her apartment, one of the detectives testified that when the officers
stated the purpose of their visit she invited them in to satisfy their
curiosity. According to the officers, they first explained to the witness that
they suspected that defendant was dealing in narcotics from the apartment and
then administered the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16
L. Ed. 2d 694 (1966). After the witness stated that she understood her rights,
the officers testified that she denied any knowledge of narcotics in her
apartment and then led them into her apartment where an orderly search was
conducted. The officers added that the witness also directed them to a dresser
drawer in which defendant kept his personal items where, among other items, a
plastic bag containing a white powder was discovered. After the *358 officers
repeated the Miranda warnings, the witness identified the items as belonging to
defendant.
In
addition to denying that she had given the officers permission to enter her
apartment, the witness stated that the detectives did not explain the purpose
of their visit prior to gaining entry but merely asked her if there were any
narcotics on the premises. The witness also stated that she was only given the
Miranda warnings once and that was after the officers had entered her apartment
and had begun searching. Finally, the witness stated that no one asked her
where defendant kept his personal belongings and that she did not observe
anything taken from the dresser drawer. Defendant was arrested when he
subsequently returned to the apartment.
Prior
to the United States Supreme Court's resolution of the consent issue in
Schneckloth, supra, this Court in State v. King, 44 N.J. 346 (1965) emphasized
that when an individual consents to a search of his premises he relinquishes
important constitutional safeguards. Defendant in King had been convicted of
armed robbery and had moved unsuccessfully prior to trial to suppress a gun,
cap and coat which had been found in a search of an apartment shared by
defendant and another. The trial court denied defendant's motion to suppress,
finding that defendant and the lessee of the apartment had consented to the
search. 44 N.J. at 351. Although we concluded that sufficient evidence was
before the trial court to warrant that finding, we made it clear that the
implications of such a conclusion require that a heavy burden be placed on the
State in showing consent:
The
primary question on this appeal is whether the defendant voluntarily gave his
consent to the search of the apartment. The general principles of law which
govern this issue are well settled. When an accused consents to a search of his
premises, he relinquishes the Fourth Amendment protection which prohibits
unreasonable searches and seizures. Implicit in the very nature of the term
"consent" is the requirement of voluntariness. To be voluntary the
consent must be "unequivocal and specific" and "freely and
intelligently given." The burden of proof is on the State to establish by
clear and positive testimony that the consent was so given. [44 N.J. at 352
(citations omitted)] *359 See also State v. Rice, 115 N.J. Super. 128, 131
(App. Div. 1971); State v. Guadiosi, 97 N.J. Super. 565, 571-72 (App. Div.
1967); State v. Price, 108 N.J. Super. 272, 282 (Law Div. 1970).
The
Appellate Division has concluded that the standards governing consent searches
set forth in King and the cases which have relied upon it have been substantially
eclipsed by the Supreme Court's decision in Schneckloth v. Bustomonte, supra. I
cannot agree. The majority of this Court while rejecting the Schneckloth view
that knowledge by the person to be searched of his right to refuse is not a
prerequisite for a valid consent search, adopts a standard for determining
validity which in my view falls short of what is necessary to protect the
privacy rights of the consenting individual. Accordingly, I cannot join the
majority opinion and my reasons follow.
Defendant
in Schneckloth was convicted in a California court after stolen checks were
discovered in a car in which he was a passenger. The search was conducted
pursuant to the consent of one of the occupants after the car was stopped for
displaying inoperative lights. Defendant's conviction was affirmed on appeal,
People v. Bustamonte, 270 Cal. App. 2d 648,
76 Cal. Rptr. 17 (Ct. App. 1969). Thereafter defendant sought a writ of habeas
corpus in the federal district court. It was denied, but on appeal the Ninth
Circuit vacated the order denying the writ, reasoning that since consent is a
waiver of constitutional rights, the State must show not only the absence of
coercion, but also that the individual knew that consent could have been
withheld. Bustamonte v. Schneckloth, 448 F.2d 699 (9 Cir.1971). See also
Schoepflin v. United States, 391 F.2d 390 (9 Cir.1968), cert. den. 393 U.S.
865, 89 S. Ct. 146, 21 L. Ed. 2d 133 (1968); Cipres v. United States, 343 F.2d
95 (9 Cir.1965).
On
appeal the United States Supreme Court reversed the Court of Appeals by
adopting a "totality of the circumstances" test to govern the
validity of consent searches authorized by subjects not in custody:
*360
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.[1] [412 U.S. at 248-49, 93 S. Ct. at 2059 (footnote
omitted)]
In
concluding that consent to conduct a search must be determined by a
voluntariness standard which in turn requires an evaluation of all the
attendant circumstances, the Court resorted to the analysis employed in a line
of cases which explored the voluntariness of a defendant's confession gauged
against the requirements of the fourteenth amendment, e.g., Davis v. North
Carolina, 384 U.S. 737, 86 S. Ct. 1761, 16
L. Ed. 2d 895 (1966); Reck v. Pate, 367 U.S. 433, 81 S. Ct. 1541, 6
L. Ed. 2d 948 (1961); Payne v. Arkansas, 356 U.S. 560, 78 S. Ct. 844, 2
L. Ed. 2d 975 (1958); Fikes v. Alabama, 352 U.S. 191, 77 S. Ct. 281, 1
L. Ed. 2d 246 (1957); Haley v. Ohio, 332 U.S. 596, 68 S. Ct. 302, 92
L. Ed. 224 (1948); Ashcraft v. Tennessee, 322 U.S. 143, 64 S. Ct. 921, 88
L. Ed. 1192 (1944); Chambers v. Florida, 309 U.S. 227, 60 S. Ct. 472, 84
L. Ed. 716 (1940). 412 U.S. at 223-26, 93 S. Ct. 2041, 36 L. Ed. 2d 854. After
observing that none of the cases turned on the presence or absence of a single
factor and that in none had the Court construed the fourteenth amendment to
require a showing that defendant knew he had a right to refuse to *361 answer
questions, 412 U.S. at 226-27, 93 S. Ct. 2041, the Court concluded that in the
context of a consent search:
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.[2] [412 U.S. at 227, 93 S. Ct. at 2048]
In
deciding Schneckloth, the majority rejected a waiver analysis of the consent
issue, i.e., that by consenting to a search an individual waives his rights
under the fourth and fourteenth amendments, a waiver which may be established
only by a showing by the state of "an intentional relinquishment or
abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct.
1019, 1023, 82 L. Ed. 1461 (1938). Observing that Johnson involved an alleged
waiver of the right to counsel in a federal criminal trial, the Court
emphasized that "[a]lmost without exception" the Johnson standard has
only been applied to those rights which guarantee a criminal defendant a fair
trial. 412 U.S. at 237, 93 S. Ct. 2041. The Court, however, declined to extend
the knowing and intelligent waiver standard to the search and seizure situation:
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.[3] [412 U.S. at 241, 93 S. Ct. at 2055]
*362
Three members of the Court were not persuaded by the reasoning of the majority,
and in separate dissenting opinions underscored the defects in the analysis and
result reached by the Court. Emphasizing that the search could only be
justified on the basis of consent, Justice Brennan was unable to to comprehend
how a citizen can waive a right which he is unaware exists:
The
Court holds today that an individual can effectively waive his 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. [412 U.S. at 277, 93 S. Ct.
at 2073 (Brennan, J. dissenting)]
Justice
Marshall found the opinion of the Court "misleading" in several
respects: (1) the standard selected by the Court was derived from a
justification of consent searches which is inconsistent with the Court's
treatment of other exceptions to the fourth amendment; (2) the voluntariness
standard was developed in a very different context implicating different
policies; and (3) the majority mischaracterized the Court's prior cases dealing
with consent searches. 412 U.S. at 280, 93 S. Ct. 2041 (Marshall, J.
dissenting). Characterizing his approach to the problem as
"straightforward and * * * obvious," Justice Marshall had difficulty
accepting the proposition that a decision made without knowledge of all the
alternatives could be characterized as a choice at all. 412 U.S. at 284, 93 S.
Ct. 2041 (Marshall, J. *363 dissenting). Consequently, Justice Marshall would
hold that at a minimum the prosecution may not rely on consent to justify a
search unless the subject knew that he could refuse. Proceeding from this
premise, Justice Marshall concluded that a fair allocation of the burden of
proof would place the onus of showing such knowledge on the prosecution.
Observing that there are several ways for the state to discharge that burden,
Justice Marshall pointed out that one way of proving knowledge would be
evidence that prior to conducting the search, the police notified the subject
that he had a right to refuse:
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 this 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.[4] [412 U.S. at
286, 93 S. Ct. at 2078 (Marshall, J. dissenting (footnote omitted)]
In
response to the majority's references to practicality, Justice Marshall
expressed the fear that what in reality *364 motivated the Court was the
continued ability of the authorities to take advantage of an individual's
ignorance of his rights thereby accomplishing by "subterfuge" what
could not be achieved by relying only on the "knowing relinquishment of
constitutional rights." 412 U.S. at 288, 93 S. Ct. 2041 (Marshall, J.
dissenting). In his view, the ultimate effect of the Court's decision was a
realignment of the balance struck by the framers between the interests of the
police and basic rights as a result of the majority's own convictions about the
needs of law enforcement:
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. [412 U.S. at 289-90, 93 S. Ct. at 2079 (Marshall, J. dissenting)]
Despite
the substantial shortcomings of the standard selected by the Schneckloth
majority,[5] insofar as it represents *365 the Supreme Court's construction of
the federal constitution, we are bound by it. As the majority in the present
case correctly notes, Ante at 353 the Supreme Court recently spoke to this
issue in Oregon v. Hass, 420 U.S. 714, 718, 95 S. Ct.
1215, 1219, 43 L. Ed. 2d 570, 576 (1975).
[O]f
course, a State may not impose such greater restrictions as a matter of federal
constitutional law when this Court specifically refrains from imposing them.[6]
[emphasis in original; footnote omitted]
I
have previously recognized this limitation in my separate opinion in State v.
Miller, 67 N.J. 229, 241 (1975) (Pashman, J. dissenting).
Recognition
of this principle, however, does not dictate an uncritical acceptance of the
standards selected by the Supreme Court under the fourth amendment governing
the validity of consent searches. We remain free to apply criteria which afford
the individual greater safeguards against official intrusion as a matter of
state law. Indeed, this concept has been emphasized specifically in the search
and seizure context:
Our
holding, of course, does not affect the State's power to impose higher
standards on searches and seizures than required by the Federal Constitution if
it chooses to do so. [Cooper v. California, 386 U.S. 58, 62, 87 S. Ct. 788,
791, 17 L. Ed. 2d 730 (1967)]
See
also Oregon v. Hass, supra 420 U.S. at 719, 95 S. Ct. at 1219, 43 L. Ed. 2d at
576 n. 4; Sibron v. New York, 392 U.S. 40, 60-61, 88 S. Ct.
1889, 20 L. Ed. 2d 917 (1968); *366 State v. Miller, supra, 67 N.J. at 242
(Pashman, J. dissenting).
Since
our Constitution expressly protects the citizens of this State from
unreasonable searches and seizures,[7] I would construe N.J. Const. (1947),
Art. I, ¶ 7 to require the State to affirmatively demonstrate that the subject
of a consent search knew that he had a right to withhold his consent and that his
decision would be respected by the authorities. This is the plain implication
of our decision in State v. King, supra, when we spoke in terms of consent
freely and intelligently given. An intelligent choice presupposes an awareness
of all the available alternatives.
I
also believe that the arrival of officers at the door of one's residence,
particularly at night, for the purpose of conducting a search has an inherently
coercive effect upon the occupant. Cf. Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S. Ct.
1788, 20 L. Ed. 2d 797 (1968). Accordingly, I would hold that the police must
discharge their burden of proof on the issue of the subject's knowledge by
showing that the one from whom consent was elicited was advised that he had a
right to refuse to consent, that his refusal would be respected, and that
anything uncovered by the search could be used in evidence against him. In this
respect, I agree with the observations of Justice Marshall in his dissent in
Schneckloth, supra, that such a warning would not unduly disrupt police
procedures by destroying the informality of the exchange. See note 4, supra. In
any event, the warning would only advise the subject of facts which he is clearly
entitled to know.
*367
I also appreciate the fact that many of the courts which have considered the
problem have rejected the warning approach. See Schneckloth, supra, 412 U.S. at
231 nn. 13, 14, 93 S. Ct. 2041, 36 L. Ed. 2d 854, see also State v. McKnight,
52 N.J. 35, 53 n. 4 (1968). Prior to Schneckloth, however, this view was by no
means universally accepted. See Perkins v. Henderson, 418 F.2d 441, 442 (5
Cir.1969); United States v. Nikrasch, 367 F.2d 740, 744 (7 Cir.1966); United
States v. Moderacki, 280 F. Supp. 633,
636 (D. Del. 1968); United States v. Blalock, 255 F. Supp. 268,
269-70 (E.D. Pa. 1966). See also United States v. Fisher, 329 F. Supp. 630,
634-35 (D. Minn. 1971); Wefing & Miles, "Consent Searches and the
Fourth Amendment: Voluntariness and Third Party Problems," 5 Seton Hall L.
Rev. 211, 251-52 (1974); Note, 67 Colum. L. Rev. 130, 146-48 (1967). Indeed,
the American Law Institute has recommended the administration of such warnings
in its Model Code of Pre-arraignment Procedures:
(2)
Required Warning to Persons Not in Custody or Under Arrest. Before undertaking
a search under the provisions of this Article an officer present shall inform
the individual whose consent is sought that he is under no obligation to give such
consent and that anything found may be taken and used in evidence.
(3)
Required Warning to Persons in Custody or Under Arrest. If the individual whose
consent is sought under Subsection (1) is in custody or under arrest at the
time such consent is offered or invited, such consent shall not justify a
search and seizure under Section SS 240.1 unless in addition to the warning
required by Subsection (2), such individual has been informed that he has the
right to consult an attorney, either retained or appointed, and to communicate
with relatives or friends, before deciding whether to grant or withhold
consent. [Model Code of Pre-arraignment Procedure, § SS 240.2(2), (3) (Proposed
Official Draft 1975)]
I
find it inconceivable and incomprehensible to suppose that an individual can be
said to have relinquished privileges as fundamental as those embodied in our
constitutional guarantees against unreasonable searches and seizures unless it
clearly and unmistakably appears that the subject of the *368 search knew that
he did not have to submit to the official request. Schneckloth, supra, cannot
withstand close scrutiny when it treats that knowledge as merely one factor to
be considered in determining the validity of a consent search. The majority's
formulation falls short of requiring an express warning to the individual as to
his rights. In my judgment, such approaches merely pay lip service to the
subject's awareness of his rights in an effort to accommodate the convenience
of law enforcement at the expense of important personal freedoms. I am
distressed that the approach of the majority does not adequately protect these
freedoms. I must respectfully dissent.
SCHREIBER,
J., concurring in result.
For
modification and remandment Chief Justice HUGHES, Justices MOUNTAIN, SULLIVAN,
CLIFFORD, and SCHREIBER and Judge CONFORD 6.
Dissenting
Justice PASHMAN 1.
NOTES
[1]
According to the police witnesses, the consent was given by a woman who was
defendant's fiancée and who occupied the apartment. Defendant's standing to challenge
the search seems clear.
[2]
It is recognized that Art. I, par. 7, is taken almost verbatim from the Fourth
Amendment and until now has not been held to impose higher or different
standards than those called for by the Fourth Amendment. However, we have the
right to construe our State constitutional provision in accordance with what we
conceive to be its plain meaning. R. 3:5-7, which establishes a procedure for
the suppression of illegally seized evidence, applies to any search and seizure
found to be unlawful, whether under federal or state law.
[3]
Several ways by which the State could satisfy this burden are detailed by
Justice Marshall in his dissenting opinion in Schneckloth, supra, 412 U.S. at
286, 93 S. Ct. 2041.
[1]
The Court was careful to note that its decision only applied to subjects who
purportedly consented to a search in non-custodial situations. See 412 U.S. at
240 n. 29, 93 S. Ct. at 2055; 412 U.S. at 247 n. 36, 93 S. Ct. at 2058. For a
collection of the pre-Schneckloth cases dealing with consent searches in the
custodial context, see Annotation, "Validity of consent to search given by
one in custody of officers," 9 A.L.R.3d 858 (1966).
[2]
The Court also found nothing in its previous decisions suggesting the
requirement of proof that defendant knew he had a right to refuse to consent to
a search. 412 U.S. at 234, 93 S. Ct. 2041. See Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20
L. Ed. 2d 797 (1968); Johnson v. United States, 333 U.S. 10, 68 S. Ct. 367, 92
L. Ed. 436 (1948); Davis v. United States, 328 U.S. 582, 66 S. Ct. 1256, 90
L. Ed. 1453 (1946); Amos v. United States, 255 U.S. 313, 41 S. Ct. 266, 65
L. Ed. 654 (1921).
[3]
Although the Court's analysis of the consent issue was premised on concepts of
voluntariness, the majority specifically rejected an analogy to Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16
L. Ed. 2d 694 (1966), concluding that "[t]he considerations that informed
the Court's holding in Miranda are simply inapplicable in the present
case." 412 U.S. at 246, 93 S. Ct. at 2058. In the Court's view, consent
searches normally occur on the subject's own territory and consequently
"the specter of incommunicado police interrogation in some remote station
house is simply inapposite." [412 U.S. at 247, 93 S. Ct. at 2058]
[4]
Justice Marshall added:
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
(C.A. 7 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. [412 U.S. at 287-88, 93 S. Ct. at 2078 (Marshall, J.
dissenting) (footnote omitted)]
[5]
See Wefing & Miles, "Consent Searches and the Fourth Amendment:
Voluntariness and Third Party Problems," 5 Seton Hall L. Rev. 211, 212 (1974),
where the authors summarize Schneckloth as follows:
Bustamonte
is a strained, self-contradictory opinion which not only represents a drastic
departure from the Court's own previous cases, but also undermines a
substantial body of prior federal case law which reflected a sustained and
sometimes creative effort to develop a coherent consent-search doctrine. In
effect, this case eliminated the "waiver" requirement, a concept
which has emerged as a critical factor in Supreme Court decisions and which has
been heavily relied upon by the lower federal courts. Rather, it adopted the
"totality of the circumstances" test which was employed primarily by
the California state courts and which consisted of a more relaxed voluntariness
standard than that employed by the federal courts. Further, the Bustamonte
Court equated the "voluntariness" of consent obtained for a search in
a non-custodial setting with the "voluntariness" of a confession
elicited as the result of police interrogation. In so doing, it applied to the
fourth amendment consent issue a line of confession cases involving the problem
of voluntariness which had been rendered obsolete by Miranda v. Arizona, and
arrived at the conclusion that a person could voluntarily waive fourth
amendment rights even without knowledge that they existed. [Footnotes omitted]
[6]
See also the Court's commentary on the observations of the Oregon Supreme Court
in State v. Florance, Or., 527 P.2d 1202 (1974).
420 U.S. at 719, n. 4, 95 S. Ct. at 1219, 43 L. Ed. 2d at 576.
[7]
N.J. Const. (1947), Art. I, ¶ 7 provides as follows:
7.
Freedom from unreasonable searches and seizures; warrant
7. The right of the people
to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated; and no warrant shall
issue except upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched and the papers and things to
be seized.
