On petition for writ of certiorari to the United States Court of
Appeals for the Fifth Circuit.
The petition for a writ of certiorari is denied.
Mr. Justice DOUGLAS, with whom Mr. Justice MARSHALL concurs,
dissenting.
Petitioner was questioned by Texas police officers in connection
with the burglary of a store. After receiving Miranda warnings,
petitioner admitted participation in the robbery and disclosed that
certain stolen articles could be found in his apartment. The police
decided to search the apartment for the stolen goods. Instead of
obtaining a warrant, however, the police officers presented
petitioner with a 'consent form,' which he signed. By signing the
form he authorized the police 'to take from may premises and
property any letters, papers, material, or any other property or
things which they desire as evidence for criminal prosecution in
the case or cases now under investigation.'
The police then went to petitioner's apartment in search of four
boxes of gum and a small radio, goods known to have been taken in
the store burglary. In the course of searching for these items, one
of the searching officers found a check lying on a bureau. The
check was partly obscured by an article of clothing, but the
officer testified that a protruding stub allowed him to determine
that the payee was a person other than petitioner. The officers
Page 419 U.S.
979 , 980
seized the check, and subsequent investigation revealed that it
had been stolen. The officer's discovery formed the basis for
petitioner's prosecution in the District Court for mail theft, 18
U.S.C. 1708. Prior to trial, petitioner unsuccessfully moved to
suppress the stolen check as evidence, asserting that the seizure
of it violated the Fourth Amendment. Petitioner's conviction
followed and the denial of the motion to suppress was held proper
on the ground that petitioner had consented to the search of his
apartment.
Since there is no contention that the police could otherwise
have searched petitioner's apartment without first obtaining a
warrant, the lawfulness of their search turns on whether
petitioner's signing of the consent form relieved the police of
this obligation. If this consent form has any validity, seizure of
the stolen check from petitioner's residence is outside its scope.
The form signified consent to seizure of property 'as evidence . .
. in the case or cases now under investigation' (emphasis added).
At the time petitioner signed the form he had been questioned and
charged with the burglary of a particular store. Thus his
reasonable expectations, which must govern construction of the
document, were that he was authorizing the police to search his
residence for evidence in connection with the only crime for which
he was then a suspect. [
Footnote
1]
Page 419 U.S.
979 , 981
Wholly apart from the question of the scope of consent, I would
grant certiorari to consider whether the record adequately
demonstrates that petitioner gave an informed consent to search.
Although petitioner had receivedMiranda warnings, the record is
silent as to whether petitioner knew, prior to signing the consent
form, that he had a right to refuse and require the police to
obtain a warrant. Since in my view waiver of Fourth Amendment
protections requires an 'intentional relinquishment of a known
right or privilege,' Johnson v. Zerbst,
304 U.S.
458, 464, I would require an affirmative showing in the record
that petitioner knew he had a right to refuse. While I need not
here decide whether a warning would be required in every case, I
note that the surest method of demonstrating that the accused had
waived a known right is a showing that the officers advised him of
it by a statement patterned on the warning mandated by Miranda v.
Arizona,
384 U.S.
436 (1966).
In Schneckloth v. Bustamonte, the Court held that the absence of
a warning did not vitiate consent to a search in a noncustodial
setting, specifically reserving the question of the significance of
custodial conditions.
412 U.S. 218, 247 n. 36.
The Court believed that warning the subject of his right to refuse
would be 'impractical' under the 'informal and unstructured
conditions' of a roadside search. Id. at 231-232. Yet the
circumstances under which an arrestee in police custody meets with
his captors are hardly 'unstructured.' When a suspect is in custody
the situation is in control of the police. The pace of events will
not somehow deny them an opportunity to give a warning, as the
Court apparently feared would happen in noncustodial settings.
Moreover, the custodial setting will permit easy docu-
Page 419 U.S.
979 , 982
mentation of both the giving of a warning and the arrestee's
response.
The giving of a warning does not, of course, rule out the
possibility that coercive tactics may be used to secure consent.
But an affirmative communication that a right to refuse consent
will be respected may serve to fortify the accused against the
coercion inherent in the custodial setting. See Miranda v. Arizona,
supra, 384 U.S. at 468. These considerations are especially
compelling where, as here, the police procurement of consent is an
outgrowth of custodial interrogation. Before signing the consent
form the petitioner had been in custody seven hours and subjected
to interrogation that eventually resulted in a confession.
By proceeding on the basis of a 'consent' form the police
circumvent three important protections of the warrant procedure.
First, they avoid submitting to a magistrate's independent
assessment of probable cause. Second, they are spared the necessity
of making a record, in the form of an affidavit sworn to prior to
the search, that guards against the possibility that an ex post
justification will be based upon what the search turns up. Finally,
to the extent the police use, as they did here, a boiler-plate
consent form, they are relieved of the particularity requirement of
the warrant. [
Footnote 2]
Efforts by the police to proceed outside the warrant procedure
by procuring consent from persons in police custody should be
viewed carefully and critically. I would grant certiorari.
Footnotes
Footnote 1 The Government
argues that the seizure can nevertheless be justified under the
plain view doctrine. But under our decisions, the plain view
doctrine permits a seizure only where officers already searching
under lawful authority make an unanticipated discovery of an object
whose incriminating character is immediately apparent. See Coolidge
v. New Hampshire,
403
U.S. 443, 464-471 ( 1971). These requirements are not met in
this case. When the police entered petitioner's house they had no
reason to believe that a piece of paper on his bureau, only
partially in view, was the fruit of another crime. There was
nothing incriminating about a slip of paper protruding from a piece
of clothing on petitioner's bureau. The carefully confined 'plain
view' exception discussed in Coolidge, if extended to cover this
case, would likewise validate the seizure of a book, not covered by
the warrant, but later determined to be obscene.
Footnote 2 The Fourth
Amendment provides in part that 'no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to
be seized.' In contrast to the requirement of particularity is the
wording of the 'consent' form in this case, authorizing seizure of
'any letters, papers, material or any other property or things
which [the police] desire as evidence for criminal prosecution in
the case or cases now under investigation.'
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