State v. Shoemaker

Utter, J.

(dissenting) — I cannot agree that this search can be upheld or its fruits properly admitted. The facts outlined in the majority opinion indicate that everything about the search was improper. The majority claims only that it can be sustained because defendant McDirmid “voluntarily” agreed to it.¹ do not believe the demands of the Fourth Amendment can be so lightly cast aside.

Since Schneckloth v. Bustamonte, 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973), the rules regarding consent searches have been fairly clear, at least relative to those in other areas of the Fourth Amendment.² Consent to search is not subject to the limitations and restrictions applicable to “waiver” of other constitutional guaranties. Knowledge of the existence of the right to withhold consent is not prerequisite to the validity of its grant, at least where the person giving it is not in police custody. Schneckloth at pages 235-46, 249. Consent is binding if “voluntary,” and voluntariness is “to be determined from all the circumstances.” Schneckloth at pages 248-49.

The burden is always on the prosecution to show that consent was given voluntarily. Schneckloth v. Bustamonte, supra at 222; Bumper v. North Carolina, 391 U.S. 543, 548, 20 L. Ed. 2d 797, 88 S. Ct. 1788 (1968). This burden is particularly heavy where the consent is given by a person under arrest. United States v. Hearn, 496 F.2d 236, 244 (6th Cir. 1974); United States v. DeMarco, 488 F.2d 828, 831 n.7 (2d Cir. 1973); Villano v. United States, 310 F.2d 680 (10th Cir. 1962). “[A]rrest carries its own aura of coercion,” (Gorman v. United States, 380 F.2d 158, 163 (1st Cir. 1967) ), and because it does, the State must show that the consent was voluntary, was not the product of such coercion, “by clear and convincing evidence.” United States v. Mapp, 476 F.2d 67, 77 (2d Cir. 1973).³

The prosecution in this case did not and could not make this required showing. Virtually every aspect of the circumstances surrounding this search adds to, rather than overcomes, the presumption of coercion. First, it is significant, even if not conclusive, that Mr. McDirmid was not warned of his right to refuse. Schneckloth v. Bustamonte, supra at 226; United States v. Hearn, supra at 244; United States v. Heimforth, supra at 972. In addition, the number of policemen involved in the arrest and search (United States v. Hearn, supra at 244) and the fact that the location was not defendants’ home or other familiar surroundings (United States v. Ruiz-Estrella, 481 F.2d 723, 727 (2d Cir. 1973)) militate against a holding of voluntariness. So, too, does the fact that the original suggestion that the search be made came from the police rather than the suspects (United States v. Hearn, supra at 244), in terms amounting to a “claim of right” (Bumper v. North Carolina, supra; Holloway v. Wolff, 482 F.2d 110, 114 (8th Cir. 1973)), which was unfounded and constituted a misrepresentation by the searching officers. United States v. Rothman, 492 F.2d 1260, 1265 (9th Cir. 1973).

The two factors discussed by the majority, the defendants’ educational level and the giving of Miranda warnings, fall far short of overbalancing these considerations. Miranda warnings say nothing about the right to refuse to consent to a search, and any implication they may give that silence is permissible was more than overcome in this case by Trooper Small’s subsequent threat to dismantle the car if the search were not allowed. The advantages of a college education do not necessarily include the knowledge that a policeman cannot do whatever he threatens to do to a person or vehicle in his custody.

Hard cases make bad law, and I recognize that it is increasingly hard for judges to vacate the sentences of obviously guilty criminal defendants on the ground that the evidence establishing their guilt was unlawfully seized. The exclusionary rule exacts a heavy toll on the substantive law it is intended to enforce, as courts are loathe to find one violation of law where the consequence of so doing is the inability to punish another. The Fourth Amendment must mean something, however, and until an alternative enforcement device is developed which may excuse the constitutional requirement of exclusion,⁴ the bounds of its meaning must be defined through application of that rule. If it is wrong that “[t]he criminal is to go free because the constable has blundered,” (People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585 (1926)), it is equally wrong that the constable’s blunder is to go unrecognized in order that the criminal not go free.

The exclusionary rule, created to protect the Fourth Amendment, seems to be destroying it. I have no doubt that were this a problem in constitutional law presented in the abstract, without the specter of a second miscarriage of justice attached to a condemnation of the first, this court would denounce this search. If the Fourth Amendment is to survive, and protect innocent citizens as well as criminal wrongdoers, courts must be willing to enforce it. I would do so here, and I therefore dissent.

Rosellini, J., concurs with Utter, J.

Petition for rehearing denied April 30, 1975.

1 As noted in the majority opinion, the defendants have contended primarily that the search was illegal because of the absence of probable cause to stop and search their vehicle. They have not responded to the State’s arguments on consent. It would appear that the “consent” here was a product of the stop and initial search, and that it is therefore tainted with the illegality of those actions and invalid apart from any question of voluntariness. See United States v. Horton, 488 F.2d 374, 380 n.5 (5th Cir. 1973), cert. denied, 416 U.S. 993 (1974); United States v. Ward, 488 F.2d 162 (9th Cir. 1973); cf. Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963); United States v. Basurto, 497 F.2d 781 (9th Cir. 1974). But this issue has not been raised on appeal, and the majority’s interposition of the barrier of “consent” between the initial Illegalities and the ultimate search is thus made possible.

2 See LaFave, Search and Seizure: “The Course of True Law . . . Has Not . . . Run Smooth”, U. Ill. L.F. 225 (1966). As is so often the case when substantive rules are pronounced, however, the clarification in Schneckloth v. Bustamonte, 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973) came at the cost of obscuring the theoretical foundations of the consent doctrine. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 358 (1974).

3 In Schneckloth the court hinted strongly that the presumption of coercion in in-custody consent cases is so strong that it cannot be overcome unless it is shown that the defendant was informed or otherwise aware of his right to refuse permission to search. Schneckloth v. Bustamonte, supra at 241 n.29. The circuits have rejected such a per se rule, however, and held that arrest is only one factor to be considered in weighing the totality of the circumstances. United States v. Heimforth, 493 F.2d 970 (9th Cir. 1974), cert. denied, 416 U.S. 908 (1974); United States v. Mapp, 476 F.2d 67 (2d Cir. 1973).

4 See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 411, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971) (Burger, C.J., dissenting); State v. Rousseau, 40 Wn.2d 92, 100, 241 P.2d 447 (1952) (Finley, J., concurring).