U.S. Supreme Court Schneckloth v. Bustamonte, 412
U.S. 218 (1973) Schneckloth v.
Bustamonte No. 71-732 Argued October 10,
1972 Decided May 29, 1973 412
U.S. 218 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH
CIRCUIT 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. 412 U. S.
223 -249.

															448 F.2d 699, reversed.

															STEWART, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ.,
joined. BLACKMUN, J., filed a concurring opinion, post, p. 412 U. S. 249 .
POWELL, J., filed a concurring opinion, in which BURGER, C.J., and
REHNQUIST, JJ., joined, post, p. 412 U. S. 250 .
DOUGLAS, J., post, p. 412 U. S. 275 ,
BRENNAN, J., post, p. 412 U. S. 276 ,
and MARSHALL, J., post, p. 412 U. S. 277 ,
filed dissenting opinions. Page 412 U. S. 219 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 , 389 U. S. 357 ; Coolidge v. New Hampshire, 403 U.
S. 443 , 403 U. S. 454 455; Chambers v. Maroney, 399 U. S.
42 , 399 U. S. 1 . 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 , 328 U. S.
593 -594; Zap v. Unite,d States, 328 U.
S. 624 , 328 U. S. 630 .
The constitutional question in the present case concerns the
definition of "consent" in this Fourth and Fourteenth Amendment
context. I The respondent was brought to trial in a California court upon a
charge of possessing a check with intent to defraud. [ Footnote 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 Page 412 U. S. 220 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. Page 412 U. S. 221 270 Cal. App.
2d 648 , 76 Cal. Rptr. 17. In agreeing that the search and
seizure were constitutionally valid, the appellate court applied
the standard earlier formulated by the Supreme Court of California
in an opinion by then Justice Traynor:

															"Whether, in a particular case, an apparent consent was, in
fact, voluntarily given, or was in submission to an express or
implied assertion of authority, is a question of fact to be
determined in the light of all the circumstances." People v. Michael, 45 Cal. 2d
751 , 753, 290 P.2d 852, 854. The appellate court found
that,

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

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

															Thereafter, the respondent sought a writ of habeas corpus in a
federal district court. It was denied. [ Footnote 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 Schoep v. United States, 391
F.2d 390, set aside the District Court's order. 448 F.2d 699. The
appellate court reasoned that a consent was a waiver of a person's
Fourth and Fourteenth Amendment rights, and that the State was
under an obligation to demonstrate, Page 412 U. S. 222 not only that the consent had been uncoerced, but that it had
been given with an understanding that it could be freely and
effectively withheld. Consent could not be found, the court held,
solely from the absence of coercion and a verbal expression of
assent. Since the District Court had not determined that Alcala had
known that his consent could have been withheld and that he could
have refused to have his vehicle searched, the Court of Appeals
vacated the order denying the writ and remanded the case for
further proceedings. We granted certiorari to determine whether the
Fourth and Fourteenth Amendments require the showing thought
necessary by the Court of Appeals. 405 U.S. 953. II It is important to make it clear at the outset what is not
involved in this case. The respondent concedes that a search
conducted pursuant to a valid consent is constitutionally
permissible. In Katz v. United States, 389 U.S. at 389 U. S. 358 ,
and more recently in Vale v. Louisiana, 399 U. S.
30 , 399 U. S. 35 , we
recognized that a search authorized by consent is wholly valid. See also Davis v. United States, 328 U.S. at 328 U. S.
593 -594; Zap v. United States, 328 U.S. at 328 U. S. 630 .
[ Footnote 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, freely and voluntarily given." Bumper v. North Carolina, 391 U.
S. 543 , 391 U. S. 548 . See also Johnson v. United States, 333 U. S.
10 ; Amos v. United States, 255 U.
S. 313 . Page 412 U. S. 223 The precise question in this case, then, is what must the
prosecution prove to demonstrate that a consent was "voluntarily"
given. And, upon that question, there is a square conflict of views
between the state and federal courts that have reviewed the search
involved in the case before us. The Court of Appeals for the Ninth
Circuity concluded that it is an essential part of the State's
initial burden to prove that a person knows he has a right to
refuse consent. The California courts have followed the rule that
voluntariness is a question of fact to be determined from the
totality of all the circumstances, and that the state of a
defendant's knowledge is only one factor to be taken into account
in assessing the voluntariness of a consent. See, e.g., People
v. Treymayne, 20 Cal. App. 3d
1006 , 98 Cal. Rptr. 193; People v.
Roberts, 246 Cal. App.
2d 715 , 55 Cal. Rptr. 62. A The most extensive judicial exposition of the meaning of
"voluntariness" have been developed in those cases in which the
Court has had to determine the "voluntariness" of a defendant's
confession for purposes of the Fourteenth Amendment. Almost 40
years ago, in Brown v. Mississippi, 297 U.
S. 278 , the Court held that a criminal conviction based
upon a confession obtained by brutality and violence was
constitutionally invalid under the Due Process Clause of the
Fourteenth Amendment. In some 30 different cases decided during the
era that intervened between Brown and Escobedo v.
Illinois, 378 U. S. 478 , the
Court was faced with the necessity of determining whether in fact
the confessions in issue had been "voluntarily" given. [ Footnote 5 ] It is to that body Page 412 U. S. 224 of case law to which we turn for initial guidance on the meaning
of "voluntariness" in the present context. [ Footnote 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 , 367 U. S. 604 605. It cannot be taken literally to mean a "knowing"
choice. "Except where a person is unconscious or drugged or otherwise
lacks capacity for conscious choice, all incriminating statements
-- even those made under brutal treatment -- are 'voluntary' in the
sense of representing a choice of alternatives. On the other hand,
if 'voluntariness' incorporates notions of 'but-for' cause, the
question should be whether the statement would have been made even
absent inquiry or other official action. Under such a test,
virtually no statement would be voluntary, because very few people
give incriminating statements in the absence of official action of
some kind. [ Footnote 7 ]"

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

															Rather, "voluntariness" has reflected an accommodation of the
complex of values implicated in police questioning Page 412 U. S. 225 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 367 U. S.
578 -580. Without such investigation, those who were
innocent might be falsely accused, those who were guilty might
wholly escape prosecution, and many crimes would go unsolved. In
short, the security of all would be diminished. Haynes v.
Washington, 373 U. S. 503 , 373 U. S. 515 .
At the other end of the spectrum is the set of values reflecting
society's deeply felt belief that the criminal law cannot be used
as an instrument of unfairness, and that the possibility of unfair
and even brutal police tactics poses a real and serious threat to
civilized notions of justice.

															"[I]n cases involving involuntary confessions, this Court
enforces the strongly felt attitude of our society that important
human values are sacrificed where an agency of the government, in
the course of securing a conviction, wrings a confession out of an
accused against his will." Blackburn v. Alabama, 361 U. S. 199 , 361 U. S.
206 -207. See also Culombe v. Connecticut,
supra, at 367 U. S.
581 -584; Chambers v. Florida, 309 U.
S. 227 , 309 U. S.
235 -238.

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

															"The ultimate test remains that which has been the only clearly
established test in Anglo-American courts for two hundred years:
the test of voluntariness. Is the confession the product of an
essentially free and unconstrained choice by its maker? If it is,
if he has willed to confess, it may be used against him. If it is
not, if his will has been overborne and his capacity for
self-determination critically impaired, the use of his Page 412 U. S. 226 confession offends due process." Culombe v. Connecticut, supra, at 367 U. S.
602 .

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

															The significant fact about all of these decisions is that none
of them turned on the presence or absence of a single controlling
criterion; each reflected a careful scrutiny of all the surrounding
circumstances. See Miranda v. Arizona, 384 U.
S. 436 , 384 U. S. 508 (Harlan, J., dissenting); id. at 384 U. S.
534 -535 (WHITE, J., dissenting). In none of them did the
Court rule that the Due Process Clause required the prosecution to
prove as part of its Page 412 U. S. 227 initial burden that the defendant knew he had a right to refuse
to answer the questions that were put. While the state of the
accused's mind, and the failure of the police to advise the accused
of his rights, were certainly factors to be evaluated in assessing
the "voluntariness" of an accused's responses, they were not, in
and of themselves, determinative. See, e.g., Davis v. North
Carolina, supra; Haynes v. Washington, supra, at 373 U. S.
510 -511; Culombe v. Connecticut, supra, at 367 U. S. 610 ; Turner v. Pennsylvania, 338 U. S. 62 , 338 U. S.
64 . B Similar considerations lead us to agree with the courts of
California that the question whether a consent to a search was in
fact, "voluntary" or was the product of duress or coercion, express
or implied, is a question of fact to be determined from the
totality of all the circumstances. While knowledge of the right to
refuse consent is one factor to be taken into account, the
government need not establish such knowledge as the sine qua
non of an effective consent. As with police questioning, two
competing concerns must be accommodated in determining the meaning
of a "voluntary" consent -- the legitimate need for such searches
and the equally important requirement of assuring the absence of
coercion.

															In situations where the police have some evidence of illicit
activity, but lack probable cause to arrest or search, a search
authorized by a valid consent may be the only means of obtaining
important and reliable evidence. [ Footnote 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 Page 412 U. S. 228 of any of the occupants. [ Footnote 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.

															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 , 116 U. S.
635 :

															"It may be that it is the obnoxious thing in its mildest and
least repulsive form; but illegitimate and unconstitutional
practices get their first footing in that way, namely, by silent
approaches and slight deviations from legal modes of procedure.
This can only be obviated by adhering to the rule that
constitutional provisions for the security of person and property
should be liberally construed. A close Page 412 U. S. 229 and literal construction deprives them of half their efficacy,
and leads to gradual depreciation of the right, as if it consisted
more in sound than in substance. It is the duty of courts to be
watchful for the constitutional rights of the citizen and against
any stealthy encroachments thereon."

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

															The approach of the Court of Appeals for the Ninth Circuit finds
no support in any of our decisions that have attempted to define
the meaning of "voluntariness." Its ruling, that the State must
affirmatively prove that the subject of the search knew that he had
a right to refuse consent, would, in practice, create serious doubt
whether consent searches could continue to be conducted. There
might be rare cases where it could be proved from the record that a
person in fact, affirmatively knew of his Page 412 U. S. 230 right to refuse -- such as a case where he announced to the
police that, if he didn't sign the consent form, "you [police] are
going to get a search warrant;" [ Footnote 11 ] or a case where, by prior experience and
training, a person had clearly and convincingly demonstrated such
knowledge. [ Footnote 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.

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

															"[I]t is not unreasonable for officers to seek interviews with
suspects or witnesses or to call upon them at their homes for such
purposes. Such inquiries, although courteously made and not
accompanied with any assertion of a right to enter or search or
secure answers, would permit the criminal to defeat his prosecution
by voluntarily revealing all of the evidence against him and then
contending that he acted only in response to an implied assertion
of Page 412 U. S. 231 unlawful authority." People v. Michael, 45 Cal. 2d at 754, 290 P.2d at
854.

															One alternative that would go far toward proving that the
subject of a search did know he had a right to refuse consent would
be to advise him of that right before eliciting his consent. That,
however, is a suggestion that has been almost universally
repudiated by both federal [ Footnote 13 ] and state courts [ Footnote 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 Page 412 U. S. 232 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 , 395 U. S. 243 .
and, while surely a closer question, these situations are still
immeasurably far removed from "custodial interrogation" where, in Miranda v. Arizona, supra, we found that the Constitution
required certain now familiar warnings as a prerequisite to police
interrogation. Indeed, in language applicable to the typical
consent search, we refused to extend the need for warnings:

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

															384 U.S. at 384 U. S.
477 -478.

															Consequently, we cannot accept the position of the Court of
Appeals in this case that proof of knowledge of the right to refuse
consent is a necessary prerequisite Page 412 U. S. 233 to demonstrating a "voluntary" consent. Rather, it is only by
analyzing all the circumstances of an individual consent that it
can be ascertained whether, in fact, it was voluntary or coerced.
It is this careful sifting of the unique facts and circumstances of
each case that is evidenced in our prior decisions involving
consent searches.

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

															"The public character of the property, the fact that the demand
was made during business hours at the place of business where the
coupons were required to be kept, the existence of the right to
inspect, the nature of the request, the fact that the initial
refusal to turn the coupons over was soon followed by acquiescence
in the demand -- these circumstances all support the conclusion of
the District Court." Id. at 328 U. S.
593 -594. See also Zap v. United States, 328 U. S. 624 .

															Conversely, if, under all the circumstances, it has appeared
that the consent was not given voluntarily -- that it was coerced
by threats or force, or granted only in submission to a claim of
lawful authority -- then we have found the consent invalid and the
search unreasonable. See, e.g., Bumper v. North Carolina, 391 U.S. at 391 U. S.
548 -549; Johnson v. United States, 333 U. S.
10 ; Amos v. Page 412 U. S. 234 United States, 255 U. S. 313 . In Bumper, a 66-year-old Negro widow, who lived in a house
located in a rural area at the end of an isolated mile-long dirt
road, allowed four white law enforcement officials to search her
home after they asserted they had a warrant to search the house. We
held the alleged consent to be invalid, noting that,

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

															391 U.S. at 391 U. S.
550 .

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

															In short, neither this Court's prior cases nor the traditional
definition of "voluntariness" requires proof of knowledge of a
right to refuse as the sine qua non of an effective
consent to a search. [ Footnote
15 ] Page 412 U. S. 235 C It is said, however, that a "consent" is a "waiver" of a
person's rights under the Fourth and Fourteenth Amendments. The
argument is that, by allowing the police to conduct a search, a
person "waives" whatever right he had to prevent the police from
searching. It is argued that, under the doctrine of Johnson v.
Zerbst, 304 U. S. 458 , 304 U. S. 464 ,
to establish such a "waiver," the State must demonstrate "an
intentional relinquishment or abandonment of a known right or
privilege."

															But these standards were enunciated in Johnson in the
context of the safeguards of a fair criminal trial. Our cases do
not reflect an uncritical demand for a knowing and intelligent
waiver in every situation where a person has failed to invoke a
constitutional protection. As Mr. Justice Black once observed for
the Court: " Waiver' is a vague term used for a great variety of
purposes, good and bad, in the law." Green v. United
States, 355 U. S. 184 , 355 U. S. 191 .
With respect to procedural due process, for example, the Court has
acknowledged that waiver is possible, while explicitly leaving open
the question whether a "knowing and intelligent" waiver need be
shown. [ Footnote 16 ] See D. N. Overmyer Co. v. Frick
Co. , Page 412 U. S. 236 405 U. S. 174 , 405 U. S.
185 -186; Fuentes v. Shevin, 407 U. S.
67 , 407 U. S. 94 -96.
[ Footnote 17 ]

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

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

															304 U.S. at 304 U. S.
462 -463 (footnote omitted). To preserve the fairness of
the trial process, the Court established an appropriately heavy
burden on the Government before waiver could be found -- "an
intentional Page 412 U. S. 237 relinquishment or abandonment of a known right or privilege." Id. at 304 U. S.
464 .

															Almost without exception, the requirement of a knowing and
intelligent waiver has been applied only to those rights which the
Constitution guarantees to a criminal defendant in order to
preserve a fair trial. [ Footnote
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, [ Footnote 19 ] or upon a guilty plea. [ Footnote 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, [ Footnote 21 ] to a jury trial,
[ Footnote 22 ] and to a
speedy trial, [ Footnote 23 ]
and the right to be free from Page 412 U. S. 238 twice being placed in jeopardy. [ Footnote 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. [ Footnote 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 agency [ Footnote 26 ] or a congressional committee,
[ Footnote 27 ] or the waiver
of counsel in a juvenile proceeding. [ Footnote 28 ] 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" Page 412 U. S. 239 stage of the criminal process are similarly designed to protect
the fairness of the trial itself.

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

															"that a post-indictment pretrial lineup at which the accused is
exhibited to identifying witnesses is a critical stage of the
criminal prosecution; that police conduct of such a lineup without
notice to and in the absence of his counsel denies the accused his
Sixth [and Fourteenth] Amendment right to counsel. . . ." Id. at 388 U. S. 272 .
Accordingly, the Court indicated that the standard of a knowing and
intelligent waiver must be applied to test the waiver of counsel at
such a lineup. See United States v. Wade, supra, at 388 U. S. 237 .
The Court stressed the necessary interrelationship between the
presence of counsel at a postindictment lineup before trial and the
protection of the trial process itself:

															"Insofar as the accused's conviction may rest on a courtroom
identification in fact, the fruit of a suspect pretrial
identification which the accused is helpless to subject to
effective scrutiny at trial, the accused is deprived of that right
of cross-examination which is an essential safeguard to his right
to confront the witnesses against him. Pointer v. Texas, 380 U. S.
400 . And even though cross-examination is a precious
safeguard to a fair trial, it cannot be viewed as an absolute
assurance of accuracy and reliability. Thus, in the present
context, where so many variables and pitfalls exist, the first line
of defense must be the prevention of unfairness and the lessening
of the hazards of eyewitness identification at the lineup itself.
The trial which might determine the accused's fate may well not be
that in the courtroom but that, at the pretrial confrontation, with
the State aligned against the accused, the Page 412 U. S. 240 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 388 U. S.
235 -236.

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

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

															"all the careful safeguards erected around the giving of
testimony, whether by an accused or any other witness, would become
empty formalities in a procedure where the most compelling possible
evidence of guilt, a confession, would have already been obtained
at the unsupervised pleasure of the police." Id. at 384 U. S.
466 .

															The standards of Johnson were, therefore, found to be a
necessary prerequisite to a finding of a valid waiver. See 384 U.S. at 384 U. S.
475 -479. Cf. Escobedo v. Illinois, 378 U.S. at 378 U. S. 490 n. 14. [ Footnote 29 ] Page 412 U. S. 241 There is a vast difference between those rights that protect a
fair criminal trial and the rights guaranteed under the Fourth
Amendment. Nothing, either in the purposes behind requiring a
"knowing" and "intelligent" waiver of trial rights, or in the
practical application of such a requirement suggests that it ought
to be extended to the constitutional guarantee against unreasonable
searches and seizures.

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

															"The sound reason why [the right to counsel] is so freely
extended for a criminal trial is the severe injustice risked by
confronting an untrained defendant with a range of technical points
of law, evidence, and tactics familiar to the prosecutor but, not
to Page 412 U. S. 242 himself." Miranda v. Arizona, supra, at 384 U. S. 514 (dissenting opinion). The Constitution requires that every effort
be made to see to it that a defendant in a criminal case has not
unknowingly relinquished the basic protections that the Framers
thought indispensable to a fair trial. [ Footnote 30 ]

															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 , 338 U. S. 27 ,
the Fourth Amendment protects the "security of one's privacy
against arbitrary intrusion by the police. . . ." In declining to
apply the exclusionary rule of Mapp v. Ohio, 367 U.
S. 643 , to convictions that had become final before
rendition of that decision, the Court emphasized that "there is no
likelihood of unreliability or coercion present in a search and
seizure case," Linkletter v. Walker, 381 U.
S. 618 , 381 U. S. 638 .
In Linkletter, the Court indicated that those cases that
had been given retroactive effect went to "the fairness of the
trial -- the very integrity of the factfinding process. Here . . .
the fairness of the trial is not under attack." Id. at 381 U. S. 639 .
The Fourth Amendment "is not an adjunct to the ascertainment of
truth." The guarantees of the Fourth Amendment stand

															"as a protection of quite different constitutional values --
values reflecting the concern of our society for the right of each
individual to be let alone. To recognize this is no more than to
accord those values undiluted respect." Tehan v. United States ex rel. Shott, 382 U.
S. 406 , 382 U. S.
416 .

															Nor can it even be said that a search, as opposed to an eventual
trial, is somehow "unfair" if a person consents to a search. While
the Fourth and Fourteenth Page 412 U. S. 243 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 403 U. S. 488 .
Rather, the community has a real interest in encouraging consent,
for the resulting search may yield necessary evidence for the
solution and prosecution of crime, evidence that may insure that a
wholly innocent person is not wrongly charged with a criminal
offense.

															Those cases that have dealt with the application of the Johnson v. Zerbst rule make clear that it would be next to
impossible to apply to a consent search the standard of "an
intentional relinquishment or abandonment of a known right or
privilege." [ Footnote 31 ] To
be true to Johnson Page 412 U. S. 244 and its progeny, there must be examination into the knowing and
understanding nature of the waiver, an examination that was
designed for a trial judge in the structured atmosphere of a
courtroom. As the Court expressed it in Johnson: "The constitutional right of an accused to be represented by
counsel invokes, of itself, the protection of a trial court, in
which the accused -- whose life or liberty is at stake is without
counsel. This protecting duty imposes the serious and weighty
responsibility upon the trial judge of determining whether there is
an intelligent and competent waiver by the accused. While an
accused may waive the right to counsel, whether there is a proper
waiver should be clearly determined by the trial court, and it
would be fitting and appropriate for that determination to appear
upon the record."

															304 U.S. at 304 U. S. 465 .
[ Footnote 32 ] Page 412 U. S. 245 It would be unrealistic to expect that in the informal,
unstructured context of a consent search, a policeman, upon pain of
tainting the evidence obtained, could make the detailed type of
examination demanded by Johnson. And, if for this reason a diluted
form of "waiver" were found acceptable, that would itself be ample
recognition of the fact that there is no universal standard that
must be applied in every situation where a person forgoes a
constitutional right. [ Footnote
33 ]

															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 403 U. S.
487 -490, where a wife surrendered to the police guns and
clothing belonging to her husband, we found nothing
constitutionally impermissible in the admission of that evidence at
trial, since the wife had not been coerced. Frazier v.
Cupp, 394 U. S. 731 , 394 U. S. 740 ,
held that evidence seized from the defendant's duffel bag in a
search authorized by his cousin's consent was admissible at trial.
We found that the defendant had assumed the risk that his cousin,
with whom he shared the bag, would allow the police to search it. See also Abel v. United States, 362 U.
S. 217 . And Page 412 U. S. 246 in Hill v. California, 401 U.
S. 797 , 401 U. S.
802 -805, we held that the police had validly seized
evidence from the petitioner's apartment incident to the arrest of
a third party, since the police had probable cause to arrest the
petitioner and reasonably, though mistakenly, believed the man they
had arrested was he. Yet it is inconceivable that the Constitution
could countenance the waiver of a defendant's right to counsel by a
third party, or that a waiver could be found because a trial judge
reasonably, though mistakenly, believed a defendant had waived his
right to plead not guilty. [ Footnote 34 ]

															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. [ Footnote 35 ]" D Much of what has already been said disposes of the argument that
the Court's decision in the Miranda case requires the
conclusion that knowledge of a right to refuse is an indispensable
element of a valid consent. The considerations that informed the
Court's holding in Miranda are simply inapplicable in the
present case. Page 412 U. S. 247 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 384 U. S. 458 .
And, at another point, the Court noted that,

															"without proper safeguards, the process of in-custody
interrogation of persons suspected or accused of crime contains
inherently compelling pressures which work to undermine the
individual's will to resist and to compel him to speak where he
would not otherwise do so freely." Id. at 384 U. S.
467 .

															In this case, there is no evidence of any inherently coercive
tactics -- either from the nature of the police questioning or the
environment in which it took place. Indeed, since consent searches
will normally occur on a person's own familiar territory, the
specter of incommunicado police interrogation in some remote
station house is simply inapposite. [ Footnote 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 412 U. S.
232 .

															It is also argued that the failure to require the Government to
establish knowledge as a prerequisite to a valid Page 412 U. S. 248 consent, will relegate the Fourth Amendment to the special
province of "the sophisticated, the knowledgeable and the
privileged." We cannot agree. The traditional definition of
voluntariness we accept today has always taken into account
evidence of minimal schooling, low intelligence, and the lack of
any effective warnings to a person of his rights; and the
voluntariness of any statement taken under those conditions has
been carefully scrutinized to determine whether it was in fact,
voluntarily given. [ Footnote
37 ] E Our decision today is a narrow one. We hold only that, when the
subject of a search is not in custody and the State attempts to
justify a search on the basis of his consent, the Fourth and
Fourteenth Amendments require that it demonstrate that the consent
was in fact, voluntarily given, and not the result of duress or
coercion, express or implied. Voluntariness is a question of
fact Page 412 U. S. 249 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.
[ Footnote 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. It so ordered. [ Footnote 1 ]

															Cal.Penal Code § 475a.

															[ Footnote 2 ]

															The order of the California Supreme Court is unreported.

															[ Footnote 3 ]

															The decision of the District Court is unreported.

															[ Footnote 4 ]

															"One would expect a hard-headed system like the common law to
recognize exceptions even to the most comprehensive principle for
safeguarding liberty. This is true of the prohibition of all
searches and seizures as unreasonable unless authorized by a
judicial warrant appropriately supported." Davis v. United States, 328 U.
S. 582 , 328 U. S. 609 (Frankfurter, J., dissenting).

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

															[ Footnote 6 ]

															Similarly, when we recently considered the meaning of a
"voluntary" guilty plea, we returned to the standards of
"voluntariness" developed in the coerced confession cases. See
Brady v. United States, 397 U. S. 742 , 397 U. S. 749 . See also n 25, infra. [ Footnote 7 ]

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

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

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

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

															[ Footnote 10 ]

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

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

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

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

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

															[ Footnote 15 ]

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

															"Among these are the simple but often powerful convention of
openness and honesty, the fear that secretive behavior will
intensify suspicion, and uncertainty as to what course is most
likely to be helpful to the absent spouse." Id. at 403 U. S.
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 403 U. S.
487 .

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

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

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

															[ Footnote 18 ]

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

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

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

															[ Footnote 21 ] See, e.g., Brookhart v. Janis, 384 U. S.
1 ; Barber v. Page, 390 U.
S. 719 .

															[ Footnote 22 ] See, e.g., Adams v. United States ex rel. McCann,
supra. [ Footnote 23 ] See, e.g., Barker v. Wingo, 407 U.
S. 514 .

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

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

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

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

															(Footnote omitted.)

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

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

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

															[ Footnote 29 ]

															As we have already noted, supra at 412 U. S. 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 384 U. S.
477 .

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

															[ Footnote 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.

															[ Footnote 31 ]

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

															"Entry to defendant's living quarters, which was the beginning
of the search, was demanded under color of office. I t was granted
in submission to authority rather than as an understanding and
intentional waiver of a constitutional right." Id. at 333 U. S. 13 .
While the Court spoke in terms of "waiver," it arrived at the
conclusion that there had been no "waiver" from an analysis of the
totality of the objective circumstances -- not from the absence of
any express indication of Johnson's knowledge of a right to refuse
or the lack of explicit warnings. See also Amos v. United
States, 255 U. S. 313 .

															[ Footnote 32 ]

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

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

															[ Footnote 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 | 13 and S. 218fn14|>14, supra. As the Court
stated in Miranda with respect to the privilege against
compulsory self-incrimination:

															"[W]e will not pause to inquire in individual cases whether the
defendant was aware of his rights without a warning being given.
Assessments of the knowledge the defendant possessed, based on
information as to his age, education, intelligence, or prior
contact with authorities, can never be more than speculation; a
warning is a clear-cut fact." Miranda v. Arizona, 384 U.S. at 384 U. S.
468 -469 (footnote omitted). See United States v.
Moderacki, 280 F.
Supp. 633 ; United States v. Blalock, 255 F.
Supp. 268 .

															[ Footnote 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.

															[ Footnote 35 ]

															Friendly, supra, n 30, at 950.

															[ Footnote 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.

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

															MR. JUSTICE WHITE once answered a similar argument:

															"The Court may be concerned with a narrower matter: the
unknowing defendant who responds to police questioning because he
mistakenly believes that he must and that his admissions will not
be used against him. . . . The failure to inform an accused that he
need not answer and that his answers may be used against him is
very relevant indeed to whether the disclosures are compelled.
Cases in this Court, to say the least, have never placed a premium
on ignorance of constitutional rights. If an accused is told he
must answer and does not know better, it would be very doubtful
that the resulting admissions could be used against him. When the
accused has not been informed of his rights at all, the Court
characteristically and properly looks very closely at the
surrounding circumstances." Escobedo v. Illinois, 378 U. S. 478 , 378 U. S. 499 (WHITE, J., dissenting).

															[ Footnote 38 ]

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

															MR. JUSTICE BLACKMUN, concurring.

															I join the Court's opinion and its judgment.

															At the time Kaufman v. United States, 394 U.
S. 217 (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 394 U. S. 242 .
My attitude has not changed in the four years that have passed
since Kaufman was decided.

															Although I agree with nearly all that MR. JUSTICE POWELL has to
say in his detailed and persuasive concurring opinion, post, p. 412 U. S. 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. Page 412 U. S. 250 MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE
REHNQUIST join, concurring.

															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 innocence -- should 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. I 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 (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 394 U. S. 220 .
The rationale of this view was fairly summarized by the
Court: "The denial of Fourth Amendment protection against unreasonable
searches and seizures, the Government's Page 412 U. S. 251 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 factfinding process or
challenge evidence as inherently unreliable; rather, the exclusion
of illegally seized evidence is simply a prophylactic device
intended generally to deter Fourth Amendment violations by law
enforcement officers." Id. at 394 U. S.
224 .

															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," [ Footnote
2/1 ] and concluded that there was no basis for restricting

															"access by federal prisoners with illegal search and seizure
claims to federal collateral remedies, while placing no similar
restriction on access by state prisoners." Id. at 394 U. S.
225 -226. 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. Page 412 U. S. 252 II 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. [ Footnote 2/2 ] In Fay v. Noia, 372 U.
S. 391 , 372 U. S. 426 (1963), the Court interpreted the writ's historic position as
follows:

															"At the time the privilege 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 Page 412 U. S. 253 jurisdiction is conferred by the allegation of an
unconstitutional restraint, and is not defeated by anything that
may occur in the state court proceedings."

															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.

															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. [ Footnote 2/3 ] 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, 8 U. S. 93 -94
(1807); Ex parte
Watkins , 3 Pet.193, 201-202 (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 intended --
except to the extent the legislation provided otherwise -- to
incorporate the common law uses and functions of this remedy.
[ Footnote 2/4 ]"

															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.
[ Footnote 2/5 ] Their efforts Page 412 U. S. 254 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 372 U. S.
405 .

															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 of 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. [ Footnote 2/6 ]"

															Certainly that was what Mr. Chief Justice Marshall understood
when he stated:

															"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 inquiry concerning the fact by deciding it." Ex parte Watkins, 3 Pet. at 28 U. S.
202 -203. Page 412 U. S. 255 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. [ Footnote 2/7 ]"

															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. [ Footnote 2/8 ]"

															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.
[ Footnote 2/9 ]"

															Much, of course, has transpired since that first Habeas Corpus
Act. See Fay v. Noia, 372 U.S. at 372 U. S.
449 -463 (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, Ardrews v. Swartz, 156 U. S. 272 (1895); In re Page 412 U. S. 256 Moran, 203 U. S. 96 (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. 309 (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 (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 Recent decisions, however, have tended to depreciate the
importance of the finality of prior judgments in criminal cases. Kaufman, 394 U.S. at 394 U. S. 228 ; Sanders v. United States, 373 U. S.
1 , 373 U. S. 8 (1963); Fay, supra, at 372 U. S. 424 .
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.

															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 Page 412 U. S. 257 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 372 U. S.
401 -402, 372 U. S. 441 .
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),
[ Footnote 2/10 ]"

															and another extolling the use of the writ in Leyra v.
Denno, 347 U. S. 556 (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." [ Footnote 2/11 ]

															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, Page 412 U. S. 258 through an extraordinary writ, of redressing an unjust
incarceration.

															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. [ Footnote 2/12 ] 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:

															"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 394 U. S. 237 (1969) (dissenting opinion).

															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. Page 412 U. S. 259 IV 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 412 U. S. But
first let us look at the costs of this anomaly -- costs in terms of
serious intrusions on other societal values. It is these other
values that have been subordinated -- not 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.

															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
should not be done twice" is sound, and one calculated to utilize
best "the intellectual, moral, and political resources involved in
the legal system." [ Footnote
2/13 ] Page 412 U. S. 260 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. [ Footnote 2/14 ] To the extent the federal
courts are required to reexamine claims on collateral Page 412 U. S. 261 attack, [ Footnote 2/15 ] 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.

															The present scope of federal habeas corpus also has 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:

															"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 post-conviction claim itself, and (ii) respecting
the issue of guilt if the collateral attack succeeds in a form
which allows retrial. . . ."

															He concluded that:

															"[I]n combination, these finality considerations amount to a
more or less persuasive argument against the cognizability of any
particular collateral Page 412 U. S. 262 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. [ Footnote
2/16 ]"

															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.
[ Footnote 2/17 ]

															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."
[ Footnote 2/18 ] But, in fact, a
strong finality interest militates against allowing Page 412 U. S. 263 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. [ Footnote 2/19 ]

															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. [ Footnote 2/20 ] 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 Page 412 U. S. 264 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." [ Footnote 2/21 ] In
so speaking Justice Reardon echoed the words of Professor
Bator:

															"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 Page 412 U. S. 265 acceptance of the notion that all the shots will always be
called by someone else. [ Footnote
2/22 ]"

															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. 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: "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 394 U. S. 242 (dissenting opinion). 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":

															"[W]ith a few important exceptions, convictions should be
subject to collateral attack only when Page 412 U. S. 266 the prisoner supplements his constitutional plea with a
colorable claim of innocence. [ Footnote 2/23 ]"

															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 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:

															"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 Page 412 U. S. 267 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 394 U. S. 229 .
(Emphasis added.)

															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. [ Footnote 2/24 ] 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 , 364 U. S. 217 (1960); Mapp v. Ohio, 367 U. S. 643 , 367 U. S. 656 (1961); Linkletter v. Walker, 381 U.
S. 618 , 381 U. S. 636 (1965); Terry v. Ohio, 392 U. S. 1 , 392 U. S. 29 (1968). [ Footnote 2/25 ] Page 412 U. S. 268 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 appeal [ Footnote 2/26 ] -- a question not in issue
here -- the case for Page 412 U. S. 269 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.
[ Footnote 2/27 ]

															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," [ Footnote 2/28 ]
and another has observed that this Court was " bifurcating
elements too infinitesimal to be split.'" [ Footnote 2/29 ] 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 Page 412 U. S.
270 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.
[ Footnote 2/30 ] 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 381 U. S. 629 ,
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

															"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 381 U. S.
629 .

															Such a pragmatic approach compelled the Court to conclude that
the rule's deterrent function would not be advanced by its
retrospective application:

															"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 381 U. S. 637 . See also Desist v. United States, 394 U.
S. 244 (1969). The same practical, particularized
analysis of the exclusionary rule's necessity also was evident in Walder v. United States, 347 U. S. 62 (1954), when the Court permitted Page 412 U. S. 271 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 347 U. S. 65 .
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.

															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 The final inquiry is whether the above position conforms to 28
U.S.C. § 2254(a) which provides:

															"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."

															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." [ Footnote
2/31 ] Federal habeas Page 412 U. S. 272 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. [ Footnote
2/32 ]

															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 394 U. S. 232 (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 1966 [ Footnote 2/33 ] 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 394 U. S. 220 ,
quoting Warren v. United States, 311 F.2d 673, 675 (CA8
1963). [ Footnote 2/34 ] 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.

															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:

															"Although only a small number of these [habeas] applications
have been found meritorious, the applications Page 412 U. S. 273 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). [ Footnote 2/35 ]

															The House Report states similarly that:

															"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).

															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, [ Footnote 2/36 ] compels
a holding that rulings of state courts on claims of unlawful search
and Page 412 U. S. 274 seizure must be reviewed and redetermined in collateral
proceedings. VII 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 412 U.
S. [ Footnote 2/37 ] 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 open-ended 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." [ Footnote
2/38 ]

															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 Page 412 U. S. 275 too rarely whether the prisoner was innocent of the crime for
which he was convicted, [ Footnote
2/39 ] 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.

															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 appeal 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.

															[ Footnote 2/1 ]

															Cases cited as examples included Mancusi v. DeForte, 392 U. S. 364 (1968); Carafas v. LaVallee, 391 U.
S. 234 (1968); Warden v. Hayden, 387 U.
S. 294 (1967).

															[ Footnote 2/2 ]

															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."

															[ Footnote 2/3 ]

															Bator, Finality in Criminal Law and Federal Habeas Corpus for
State Prisoners, 76 Harv.L.Rev. 441, 466 (1963); Oaks, Legal
History in the High Court -- Habeas Corpus, 64 Mich.L.Rev. 451,
451-456 (1966).

															[ Footnote 2/4 ]

															Oaks, supra, 412
U.S. 218 fn2/3|>n. 3, at 452.

															[ Footnote 2/5 ]

															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 412
U.S. 218 fn2/3|>n. 3, supra. [ Footnote 2/6 ]

															Oaks, supra, 412
U.S. 218 fn2/3|>n. 3, at 468.

															[ Footnote 2/7 ]

															Bator, supra, 412
U.S. 218 fn2/3|>n. 3, at 475-476.

															[ Footnote 2/8 ] Id. at 475.

															[ Footnote 2/9 ]

															H.R.Rep. No. 730, 48th Cong., 1st Sess., 5 (1884), quoted in
Bator, supra, 412
U.S. 218 fn2/3|>n. 3, at 477.

															[ Footnote 2/10 ]

															Pollak, Proposals to Curtail Federal Habeas Corpus for State
Prisoners: Collateral Attack on the Great Writ, 66 Yale L.J. 50, 65
(1956).

															[ Footnote 2/11 ]

															Reitz, Federal Habeas Corpus: Post-conviction Remedy for State
Prisoners, 108 U.Pa.L.Rev. 461, 497 (1960).

															[ Footnote 2/12 ]

															Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal
Judgments, 38 U.Chi.L.Rev. 142, 160 (1970).

															[ Footnote 2/13 ]

															Bator, supra, 412
U.S. 218 fn2/3|>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 , 394 U. S.
225 -226, 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 it
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.

															[ Footnote 2/14 ]

															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 (1973). See 1972 Annual Report of the Director of the
Administrative Office of the United States Courts II-5, II-22,
II-232.

															[ Footnote 2/15 ]

															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, 412
U.S. 218 fn2/12|>n. 12, at 145.

															[ Footnote 2/16 ]

															Amsterdam, Search, Seizure, and Section 2255: A Comment, 112
U.Pa.L.Rev. 378, 383-384 (1964). The article addresses the problem
of collateral relief for federal prisoners, but its rationale
applies forcefully to federal habeas for state prisoners as
well.

															[ Footnote 2/17 ]

															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 , 373 U. S. 24 -25
(1963) (dissenting opinion).

															[ Footnote 2/18 ] Supra, 412
U.S. 218 fn2/16|>n. 16, at 388.

															[ Footnote 2/19 ]

															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 (1965)).

															[ Footnote 2/20 ]

															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
all-powerful 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 continues
to grow."

															Thoughts at a Dedication: Keeping the Judicial Function in
Balance, 49 A.B.A.J. 943, 943-944 (1963).

															The Justice recognized that problems of habeas corpus
jurisdiction were "of constitutional dimensions going to the heart
of the division of judicial powers in a federal system." Fay v.
Noia, 372 U. S. 391 , 372 U. S. 464 (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 States --
independence 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 , 304 U. S. 78 -79
(1938), quoting Mr. Justice Field in Baltimore & O. R. Co.
v. Baugh, 149 U. S. 368 , 149 U. S. 401 (1893).

															[ Footnote 2/21 ]

															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.

															[ Footnote 2/22 ]

															Bator, supra, 412
U.S. 218 fn2/3|>n. 3, at 451.

															[ Footnote 2/23 ]

															Friendly, supra, 412
U.S. 218 fn2/12|>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 151-157. In this case, we
need not consider anything other than the Fourth Amendment
claims.

															[ Footnote 2/24 ] See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 , 403 U. S. 411 (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 J. Wigmore, Evidence § 2184, pp.51-52 (J. McNaughton
ed.1961), and H. Friendly, Benchmarks 260-261 (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, 188-190 (1962), and Kamisar, On the Tactics of
Police-Prosecution Oriented Critics of the Courts, 49 Cornell L.Q.
436 (1964).

															[ Footnote 2/25 ]

															These expressions antedated the only scholarly empirical
research, MR. JUSTICE STEWART having noted in Elkins v. United
States, 364 U. S. 206 , 361 U. S. 218 (1960), that "[e]mpirical statistics are not available" as to the
efficacy of the rule -- a 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 rule not 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.

															[ Footnote 2/26 ]

															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, 412
U.S. 218 fn2/25|>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 defend: ant 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. at 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 756-757.

															[ Footnote 2/27 ]

															"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, 412
U.S. 218 fn2/16|>n. 16, at 389.

															[ Footnote 2/28 ] Ker v. California, 374 U. S. 23 , 374 U. S. 45 (1963) (Harlan, J., concurring in result).

															[ Footnote 2/29 ] Coolidge v. New Hampshire, 403 U.
S. 443 , 403 U. S. 493 (1971) (opinion of BURGER, C.J.). THE CHIEF JUSTICE was quoting Mr.
Justice Stone of the Minnesota Supreme Court.

															[ Footnote 2/30 ]

															Friendly, supra, 412
U.S. 218 fn2/12|>n. 12, at 162-163.

															[ Footnote 2/31 ]

															Friendly, supra, 412
U.S. 218 fn2/12|>n. 12, at 156.

															[ Footnote 2/32 ] See Part II , supra.

															[ Footnote 2/33 ]

															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).

															[ Footnote 2/34 ] See Kaufman, supra, at 394 U. S.
220 -221, nn. 3 and 4, for a listing of the respective
positions of the courts of appeals.

															[ Footnote 2/35 ]

															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).

															[ Footnote 2/36 ] See 412 U. S. supra. [ Footnote 2/37 ]

															Mr. Justice Jackson, concurring in the result 20 years ago in Brown v. Allen, 344 U. S. 443 , 344 U. S. 532 (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 344 U. S. 536 .
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.

															[ Footnote 2/38 ] Brown v. Allen, supra, at 344 U. S.
537 .

															[ Footnote 2/39 ]

															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, 412
U.S. 218 fn2/12|>n. 12, at 145 n. 12.

															MR. JUSTICE DOUGLAS, dissenting.

															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. A s that court stated:

															"[U]nder many circumstances, a reasonable person might read an
officer's 'May I' as the courteous expression Page 412 U. S. 276 of a demand backed by force of law." Id. at 701.

															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 finding -- and, if necessary, a hearing on that
issue.

															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.

															MR. JUSTICE BRENNAN, dissenting.

															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 Page 412 U. S. 277 at 412 U. S.
227 -228. As a result, the search of the vehicle can be
justified solely on the ground that the owner's brother gave his
consent -- that 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.

															MR. JUSTICE MARSHALL, dissenting.

															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 , 390 U. S. 649 (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 right -- the
right to be free of unreasonable searches -- without knowing that
he has the alternative of refusing to accede to a police request to
search. [ Footnote 3/1 ] I cannot
agree, and therefore dissent. Page 412 U. S. 278 I 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, [ Footnote 3/2 ] should be sufficient to
permit the police to search and thus act as a relinquishment of
Alcala's constitutional right to exclude the police. [ Footnote 3/3 ] 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 (1972); D. N. Overmyer Co. v. Frick Co., 405 U.
S. 174 (1972); Boykin v. Alabama, 395 U.
S. 238 (1969); Carnley v. Cochran, 369 U.
S. 506 (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 Page 412 U. S. 279 of consent as a waiver. [ Footnote
3/4 ] See, e.g., Amos v. United States, 255 U.
S. 313 , 255 U. S. 317 (1921); Zap v. United States, 328 U.
S. 624 , 328 U. S. 628 (1946); Johnson v. United States, 333 U. S.
10 , 333 U. S. 13 (1948). [ Footnote 3/5 ] Perhaps one
skilled in linguistics Page 412 U. S. 280 or epistemology can disregard those comments, but I find them
hard to ignore.

															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 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. [ Footnote
3/6 ]

															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 Page 412 U. S. 281 of the police amounted to compulsion of the defendant. [ Footnote 3/7 ] 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. Miranda v. Arizona, 384 U. S. 436 (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 384 U. S.
475 -476. 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 Page 412 U. S. 282 a statement was never taken to be a relinquishment of the right
to be free of coercion. [ Footnote
3/8 ] B 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. [ Footnote
3/9 ] But none of the exceptions Page 412 U. S. 283 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.

															For example, in Bumper v. North Carolina, 391 U.
S. 543 (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 391 U. S.
548 -549. 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 391 U. S. 547 n. 8. 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 Page 412 U. S. 284 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. [ Footnote 3/10 ]

															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 My approach to the case is straightforward, 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 412 U. S. 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. 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 Page 412 U. S. 285 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 412 U. S. 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.

															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?

															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 412 U. S. 245 .
If the Court candidly faced the real Page 412 U. S. 286 question of allocating the burden of proof, neither of these
maneuvers would be available to it.

															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 75-76 (1956).

															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.

															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. [ Footnote 3/11 ] Page 412 U. S. 287 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.

															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 Page 412 U. S. 288 a right to refuse consent and that his refusal would be
respected. [ Footnote 3/12 ]

															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.

															I find nothing in the opinion of the Court to dispel my belief
that, in such a case, as the Court of Appeals for Page 412 U. S. 289 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 (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 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 412 U. S. 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.
[ Footnote 3/13 ] 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 Page 412 U. S. 290 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.

															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.

															[ Footnote 3/1 ]

															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 at 412 U. S. 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.

															[ Footnote 3/2 ]

															The Court concedes that the police lacked probable cause to
search. Ante at 412 U. S.
227 -228. 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 the
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.

															[ Footnote 3/3 ]

															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 (1960). Cf. People v. Ibarra, 60 Cal. 2d
460 , 386 P.2d 487 (1963); People v.
Perez, 62 Cal. 2d
769 , 401 P.2d 934 (1965).

															[ Footnote 3/4 ]

															The Court reads Davis v. United States, 328 U.
S. 582 (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 328 U. S.
587 -593. 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 328 U. S. 593 .
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 v. Hayden, 387 U.
S. 294 (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 , 328 U. S. 628 (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 (1972).

															[ Footnote 3/5 ]

															Aside from Zap and Davis, supra, 412
U.S. 218 fn3/4|>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, then, that "[t]he approach of
the Court of Appeals for the Ninth Circuit finds no support in any
of our decisions," ante at 412 U. S. 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 412 U. S. 243 n. 31. See infra at 412 U. S.
283 -284.

															[ Footnote 3/6 ]

															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.

															[ Footnote 3/7 ]

															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 , 332 U. S. 599 (1948); Stein v. New York, 346 U.
S. 156 , 346 U. S. 185 (1953); Fikes v. Alabama, 352 U.
S. 191 (1957).

															[ Footnote 3/8 ]

															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 412 U. S. 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 (1921), Johnson v. United States, 333 U. S.
10 (1948), and Bumper v. North Carolina, 391 U. S. 543 (1968). That an alternative rationale might have been used in those
cases seems to me irrelevant.

															[ Footnote 3/9 ] See, e.g., Coolidge v. New Hampshire, 403 U.
S. 443 (1971); Chimel v. California, 395 U. S. 752 (1969); Warden v. Hayden, 387 U.
S. 294 (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 395 U. S.
762 -763. 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 403 U. S.
459 -462. 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.

															[ Footnote 3/10 ]

															The Court's interpretation of Johnson v. United States, 333 U. S. 10 (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 412 U. S. 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.

															[ Footnote 3/11 ]

															The proposition rejected in the cases cited by the Court in nn. 13 and | 13 and S. 218fn14|>14, was that, as in Miranda v. Arizona, 384 U. S. 436 (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.

															[ Footnote 3/12 ]

															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 412 U. S. 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 (1972); Shapiro v. Thompson, 394 U.
S. 618 (1969); Sherbert v. Verner, 374 U.
S. 398 (1963); Speiser v. Randall, 357 U.
S. 513 (1958). The discussion of United States v.
Wade, 388 U. S. 218 (1967), ante at 412 U. S.
239 -240, also seems inconsistent with the opinion of MR.
JUSTICE STEWART in Kirby v. Illinois, 406 U.
S. 682 (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.

															[ Footnote 3/13 ]

															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.