| Schneckloth v. Bustamonte
(No. 71-732)
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| Syllabus
| Opinion
[ Stewart ] | Concurrence
[ Blackmun ] | Concurrence
[ Powell ] | Dissent
[ Douglas ] | Dissent
[ Brennan ] | Dissent
[ Marshall ] |
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Schneckloth v. Bustamonte
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
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 [p276] 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.