holding "in a non-custodial situation," police need not advise the person of his right to refuse to consent to the search, but "if the State seeks to rely on consent as the basis for a search, it has the burden of demonstrating knowledge on the part of A-4582-18 10 the person involved that he had a choice in the matter"
How later courts described this case
- holding "in a non-custodial situation," police need not advise the person of his right to refuse to consent to the search, but "if the State seeks to rely on consent as the basis for a search, it has the burden of demonstrating knowledge on the part of A-4582-18 10 the person involved that he had a choice in the matter"
- holding that under Art. 1, par. 7 of New Jersey Constitution the validity of all consents to search “must be measured in terms of waiver[,]” requiring the State to bear “burden of showing that the consent was voluntary, an essential element of which is knowledge of the right to refuse”
- holding that in non-custodial situations, “if the State seeks to rely on consent as the basis for a search, it has the burden of demonstrating knowledge on the part of the person involved that he had a choice in the matter”
- holding that if "the State seeks to justify a search on the basis of consent it has the burden of showing that the consent was voluntary, an essential element of which is knowledge of the right to refuse consent"
Written by the judges who cited it.
The opinion
Schreiber, J.
(concurring). Obviously, as both the majority and dissenting opinions observe, because of the *355 United States Supreme Court opinion in Schneckloth v. Bustamonte, 412 U. S. 218 , 93 S. Ct. 2041 , 36 L. Ed. 2d 854 (1973), knowledge of a right to refuse consent to a search is not a prerequisite of an effective consent to validate a search under the Fourth and Fourteenth Amendments of the United States Constitution. The remaining issue is whether there has been a violation of Article I, ¶7 of the New Jersey Constitution which provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated; ***.” In other words, was the search unreasonable under all the circumstances? Cf. State v. Davis, 50 N. J. 16, 22 (1967); United States v. Rabinowitz, 339 U. S. 56 , 70 S. Ct. 430 , 94 L. Ed. 653 (1950); and Cady v. Dombrowski, 413 U. S. 433, 439 , 93 S. Ct. 2523 , 37 L. Ed. 2d 706 (1973) where the Court noted: “The ultimate standard set forth in the Fourth Amendment is reasonableness.”
A search conducted after a voluntary consent is clearly reasonable. State v. King, 44 N. J. 346 (1965). Consent contemplates the exercise of a choice, and choice entails the opportunity to evaluate the available options. The right of self-decision is effectively safeguarded if the occupant of the premises knows that the search may be refused. This knowledge may be imputed from information furnished by the police. In the absence of that knowledge a search is unreasonable.
I would not, as the majority does, rationalize the problem in terms of waiver. Justice Black in Green v. United States, 355 U. S. 184, 191 , 78 S. Ct. 221 , 2 L. Ed. 2d 199 (1957) wrote: “‘Waiver’ is a vague term used for a great variety of purposes, good and bad, in the law.” The dissent, for example, utilizes one definition of the term, an intentional relinquishment or abandonment of a known right or privilege. See dissenting opinion, p. 361. In this context, one could logically contend that warnings should include the consequences of permitting the search as well as the right to have present an attorney. Wilberding, “Miranda-Type *356 Warnings for Consent Searches,” 47 North Dak. L. Rev. 281, 284 (1971).
It is significant to note that none of the dissenting Justices in Schneckloth v. Bustamonte, supra, urged that Miranda-type warnings be required. The reasonableness of this position becomes apparent when recognition is given to the fact that-the warnings in Miranda v. Arizona, 384 U. S. 436, 477 , 86 S. Ct. 1602 , 16 L. Ed. 2d 694 (1966) apply only to custodial interrogations. It would be anomalous indeed to require Miranda-type warnings with respect to consent searches and not for Fifth Amendment non-custodial questioning. Such an approach would tend to- cripple effective law enforcement and ignore the balancing concept inherent in determining what is "unreasonable.”
I concur in the remand for the purposes enunciated by the majority.