Petitioners Brief — Schneckloth v. Bustamonte
Supreme Court brief1973
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In the Suprene Court
OF THE
Unite D State bs | Sepom- ¢ cert, U.S.
ee a Sa
OctosER TERM, 1971
MICHAEL RCDAK, JR..CLERK
el
ae
~
No. 732
’ han
MERLE R. SCHNECKLOTH, Superintendent,
California Conservation Center, Petitioner,
VS.
Roserr CiypeE BustaMonte, Respondent.
On Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
——-
BRIEF FOR THE PETITIONER
a
EVELLE JJ. YOUNGER,
Attorney General of the State of California,
IieRBERT L. ASHBY,
Chief Assistant Attorney General—
Criminal Division,
Doris H. MAIER,
Assistant Attorney General—Writs Section,
Epwarp P. O'BRIEN,
Deputy Attorney General,
Rosert R. GRANUCCI,
Deputy Attorney General,
6000 State Building,
San Francisco, California 94102,
Telephone: (415) 557-1959,
Attorneys for Petitioner.
%
y
ARISEN pe
v7
RENN ERPS RIOT tS
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eta
i Re a
Subject Index
Page
Opinion below ......-..-.- +. eee ee ete eee tect eens 1
Jurisdiction 2.0.0... .ccccsc ccc cecnc cece cesses eeeoescoccs 2
Questions presented ......-. 0... see e eee eee eee ee ene 2
Statement of the case ...- 0.2. cee cece te ete c eee ee sere gees 2
A. Proceedings in the state court .........-..-..+-005: 2
B. Proceedings in the federal courts .............-..+55 3
C. Statement of the facts ............- 000 c eee ee eee 3
Summary of argument .........-..-. 00. eee seen ete eens
ATQUMENt ..... 6 eee eect ert eee ete cnet e ete ete ntes 8
I
The Ford in which Bustamonte was riding was searched
pursuant to a valid consent and the Court of Appeals
erred in holding otherwise ...........-..--0+-ee 005: 8
A. California’s consent rule is constitutional ....... 12
B. Third party consent searches .......0.....+..--- 14
C. Requirement of an admonition ...............--- 17
D. Bustamonte’s consent was truly voluntary ....... ad
II
This court should hold that claims based on the exclu-
sionary rule should not be available to state prisoners
seeking to set aside their convictions on federal habeas
CORPUS £.k< pda ene aves eevee see en sean rsesietveneas 25
CARON oo oo Se oo ok a a OG hs eS 31
:
_
a
Table of Authorities Cited
Cases Pages
Anders v. California, 386 U.S. 738 (1967) .....-.------- 28, 29
Blair v. Pitchess, 5 Cal.3d 258, fn. 8 .....-.----+- eee eee 18
Boykin v. Alabama, 395 U.S. 238 (1969) .......-+-----+-: 17
Bumper v. North Carolina, 391 U.S. 543 (1968) ....... 12, 13, 14
Burd v. Lane, 398 F.2d 750 (7th Cir. 1968) .....-..--.-- 18
3 California v. Green, 399 U.S. 149 (1970) .....-.----+---: 11
’ Carafas v. LaVallee, 391 U.S. 234 (1968) ........-.--+--. 25
4 Carnley v. Cochran, 369 U.S. 506 (1962) ......-.-+-+-+-: 17
; Castenada v. Superior Court, 59 Cal.2d 439, 30 Cal.Rptr. 1
j 6S) 9
: Channel v. United States, 285 F.2d 217 (9th Cir. 1960)... 19
a° Chimel v. California, 395 U.S. 752 (1969) ........-+.-+--- 14
; Cipres v. United States, 343 F.2d 95 (9th Cir. 1965) ...... 10, 15
Commonwealth v. Anderson, 208 Pa. Super. 323, 222 A.2d
495 (1966) 0.0... cece cee cece ete ete erence nee eeeenes 19
Coolidge v. New Hampshire, 403 US, 468 35 c35 sues: 16, 23, 30
Crooker v. California, 357 U.S. 433 (1958) .....-....--+--5 20
Cunningham v. Heinze, 352 F.2d 1 (9th Cir. 1965) ........ 11
Davis v. United States, 328 U.S. 582 (1946) .........-.-.- 12
Douglas v. California, 372 U.S. 353 (1968). coca es cena: 28
Draper v. Washington, 372 U.S. 487 (1963). ¢ cesaneacieess 28
Frazier v. Cupp, 394 U.S. 731 (1969) ........-..-- esse: 16
Gideon v. Wainwright, 372 U.S. 335 (1963) ...........--. 28
Gorman v. United States, 380 F.2d 158 (1st Cir. 1967) ... 18, 20
4 Government of Virgin Islands v. Berne, 412 F.2d 1055 (3d
i Cir, 1970) 10.0... cece cece eee e teen n eee en etaees 18
Griffin v. Illinois, 351 US. 12 (1956) ........6..0eeeeeees 28
Harris v. Nelson, 394 U.S. 286 (1969) .....-..----- eee es 25
Harris v. New York, 401 U.S. 222 (1971) .....-..----545: 25 -
Higgins v. United States, 209 F.2d 819 (D.C. Cir. 1954) .. 28
Hill v. California, 401 U.S. 797 (1971) .....---------+- 17
Hohnke v. Commonwealth, 451 S.W.2d 162 (Ky. Ct. App.
—
TABLE OF AUTHORITIES CITED li
Pages
In re Lopez, 62 Cal.2d 368, 42 Cal.Rptr. 188 (1965) ...... 19
In re Sterling, 63 Cal.2d 486, 47 Cal.Rptr. 205, 407 P.2d 5
(1965)... nsececanscnsenues seceded nce ne vertaus sees 26, 27
Jackson v. Denno, 378 U.S. 368 (1964) ........-.....+-.- 28
Johnson v. Zerbst, 304 U.S. 458 (1938) ...........-..+..- 11
Kaufman v. United States, 394 U.S. 217 (1969) . .25, 27, 28, 29, 30
Ker v. California, 374 U.S. 23 (1963) ............ 7, 8,11, 12, 24
Leeper v. United States, 446 F.2d 281 (10th Cir. 1971) .... 18
Mancusi v. DeForte, 392 U.S. 364 (1968) ...............- 25
McCarthy v. United States, 394 U.S. 459 (1969) .......... 17
McMann v. Richardson, 397 U.S. 759 (1970) ,........-..- 29
Miranda v. Arizona, 384 U.S. 436 (1966) ....14, 17, 19, 20, 21, 25
Morgan v. State, 2 Md.App. 440, 234 A.2d 762 (1967) .... 19
Oliver v. Amiotte, 382 F.2d 987 (9th Cir. 1967) ....... eee 5
Oliver v. Bowens, 386 F.2d 688 (9th Cir. 1967) .......... 11
Pennsylvania v. Ware, No. 71-964, cert. granted March 14,
1972, 40 U.S.L. Week 3449 ........-..-- cee eee eee eee 14
People v. Bustamonte, 270 Cal.App.2d 648, 76 Cal.Rptr. 17
(1969) ice cdues inet p en scetavere ete n ese eeeereereneas 3, 24
People v. Cahan, 44 Cal.2d 434, 282 P.2d 905 (1955) ..... 8
People v. Campuzano, 254 Cal.App.2d 52, 61 Cal.Rptr. 695
CIGGT) cccseviecsecpietae tes cece ese eens eens eens 18
People v. Chaddock, 249 Cal.App.2d 483, 57 Cal.Rptr. 582
(M067) xy cuaceciincecsesred cteanceeaae yee eteseeae 19
People v. Cirilli, 265 Cal.App. 2d 607, 71 Cal.Rptr. 604
CECB ay ona a ee a es ee ee ees 11
People v. Fioritto, 68 Cal.2d 714, 68 Cal.Rptr. 817 (1968) 20
People v. Gurley, 23 Cal.App.3d 536, 100 Cal.Rptr. 407
6) i a eee ee ee ee rere 10, 12, 18
People v. Johnson, 68 Cal.2d 629, 68 Cal.Rptr. 441 (1968) 9
People v. Kennedy, 256 Cal.App.2d 755, 64 Cal.Rptr. 345
PYOGTY oe con ee ee hs oe ces eee ee ene see 23
People v. Linke, 265 Cal.App.2d 297, 71 Cal.Rptr. 371
0) ne: ees ne Or ere eer ae 9, 18, 23
People v. Michael, 45 Cal.2d 751, 290 P.2d 852 (1955) ....8,9, 12
People v. Roberts, 246 Cal.App.2d 715, 55 Cal-Rptr. 62
| 6) i ree Teer ee err ee cre 18
Sia yciot vebed ies aes
Re ea ye Wee Ts Y
iv TABLE OF AUTHORITIES CITED
Pages
People v. Shelton, 60 Cal.2d 740, 36 Cal.Rptr. 433 (1964). .12, 19
People v. Smith, 63 Cal.2d 779, 48 Cal.Rptr. 382 (1966) ... 9
People v. Stark, 275 Cal.App.2d 712, 80 Cal.Rptr. 307
(1968): oo. scctasreere es ceseedensassebonceseuseeesnns 18
People v. Superior Court, 71 Cal.2d 265, fn. 7 (1969) .... 18
People v. Wilson, 145 Cal.App.2d 1, 301 P.2d 974 (1956) 9
Phillips v. People, 170 Colo. 520, 462 P.2d 594 (1969) .... 18
Pointer v. Texas, 380 U.S. 400 (1965) ........-..00.00.0. 28
Procunier v. Atchley, 400 U.S. 446 (1971) ........eeeeees 13
Robbins v. MacKenzie, 364 F.2d 45 (1st Cir. 1966) ........ 11
Schoepflin v. United States, 391 F.2d 390 (9th Cir. 1968)
rere Tre ones eedeseearesde eveveweteveiaewnescedes AU, L4, 19
Sims v. Georgia, 385 U.S. 538 (1967) .......... eee ee eee 28
State v. Andrus, 250 La. 765, 199 So.2d 867 (1967) ...... 18, 19
State v. Custer, 251 So.2d 287 (Fla. App. 1971) ......... 18
State v. Douglas, 488 P.2d 1366 (Ore. 1971) ............. 19
State v. Forney, 181 Nebr. 767, 150 N.W.2d 915 (1967) .... 19
State v. Johnson, 71 Wash. 239, 427 P.2d 705 (1967) ..... 19
State v. Leavitt, 103 R.I. 273, 237 A.2d 309 (1968) ....... 19
State v. McCarty, 199 Kans. 116, 427 P.2d 616 (1967) .... 18
State of Montana v. Tomich, 332 F.2d 987 (9th Cir. 1964) 11
State v. Oldham, 92 Id. 124, 438 P.2d 275 (1968) ........ 18
Stoner v. California, 376 U.S. 483 (1964) ................ 16
United States ex rel. Cole v. Mancusi, 429 F.2d 61 (2d Cir.
TO a_i 18
United States v. Goosbey, 419 F.2d 818 (6th Cir. 1970) 18
United States ex rel. Harris v. Hendricks, 423 F.2d 1096
(30 Cie 1900). sxe sca s cou cose cugacncgs seers eeers 18
United States v. Martinez, 450 F.2d 864 (8th Cir. 1971) ... 14
United States v. Mitchell, 322 U.S. 65 (1944) ............ 12
United States v. Noa, 443 F.2d 114 (9th Cir. 1971) ....17, 18, 24
United States v. Novick, 450 F.2d 1111 (9th Cir. 1971) ...16, 24
United States v. Vickers, 387 F.2d 703 (4th Cir. 1967) .... 18
United States v. Wilson, 447 F.2d 1 (9th Cir. 1971) ...... 15, 24
Warden v. Hayden, 387 U.S. 294 (1967) ..............4.. 25
Weeks v. State, 417 S.W.2d 716 (Tex. Crim. App. 1967) 19
White v. United States, 444 F.2d 724 (10th Cir. 1971) .... 18
Whitely v. Warden, 401 U.S. 560 (1971) ................ 25
Wren v. United States, 352 F.2d 617 (10th Cir. 1965) .... 28
LR AIRES ALM EON POETS Bf
caren! gs
TABLE OF AUTHORITIES CITED Vv
Constitutions Pages
United States Constitution, Fourth Amendment
Speco eee es eu eeee es seeesseecegesuewd 8, 9, 14, 17, 18, 21, 26, 30
Codes
California Penal Code:
Mert SIO O) hg oes eee es 6h eh db bd eed chases 2
Statutes
28 United States Code:
eas ee 252 |G bp a a caer a ee 2
Sections 2258). conc cvc view deb epeevkervacenieuss 12, 13, 24
Texts
Amsterdam, Search, Seizure and Section 2255, 112 U. Pa.
L. Rev. (1964) pp. 378, 389-390 .............. ee eee eee. 27
76 Harv. L. Rev., P. Bator, Finality in Criminal Law and
‘ Federal Habeas Corpus for State Prisoners (1963) p. 441 29
10 Santa Clara Lawyer, Comment (1969) pp. 205, 211..... 9
37 U. Chi. L. Rev., D. Oakes, Studying the Exclusionary
Rule in Search and Seizure (1970) p. 665 .............. 27
3 John Marshall Journal of Practice and Procedure, D.
Owens, Consent to Warrantless Search (1970) pp. 403,
MOB: hiv cbs cee ciadaswacah os i vienecsevescsstexees 10,17
6 Cal. Western L. Rev., Note (1970) p. 216 .............. 12
67 Colum. L. Rev., Note, Consent Searches, A Reappraisal
After Miranda v. Arizona (1967) pp. 130, 149-150 ...15, 17, 21
5 Gonzaga L. Rev., Note, Consent Searches—Relinquishment
of Fourth Amendment Rights—The Need for a Warning
CUOTO). Bi SUS ec cuespeccwenscdus seuss eecieussasenss 17
12 St. Louis U.L.J., Note, Consent Search: Waiver of
Fourth Amendment Rights (1968) .............-.0.065 17
33 U.Chi.L.Rev., Note, Third Party Consent to Search and
etme (1068) TOE oa exept coos sey cre tes esess: 15
_
Iu the Supreme Court
OF THE
United States
OcroBER TERM, 1971
No. 732
MERLE R, SCHNECKLOTH, Superintendent,
California Conservation Center, Petitioner,
vs.
Rosert CLypE BustaMonte, Respondent.
On Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
BRIEF FOR THE PETITIONER
OPINION BELOW
The opinion of the United States Court of Appeals
for the Ninth Circuit is printed in the appendix at
pages 6 through 10 and reported at 448 F.2d 699; the
memorandum opinion and order of the United States
District Court for the N ogthern District of California
is unreported and is printed in the appendix at pages
11 and 12.
2 |
JURISDICTION
The judgment of the court of appeals was entered
September 13, 1971. The petition for writ of certiorari
was docketed in this Court on December 3, 1971 and
granted February 28, 1972. The jurisdiction of this
Court is conferred by Title 28, United States Code
section 1254(1).
3 QUESTIONS PRESENTED
1. Whether the court of appeals erred in holding
invalid the search of an automobile based upon a
verbal expression of consent to search in an atmos-
phere free from coercion, on the sole ground that the
state failed to demonstrate that the consent was given
with knowledge that it could be withheld.
2. Whether claims relating to search and seizure ,
should be available to a state prisoner seeking to set
aside his final conviction on federal habeas corpus.
‘
L STATEMENT OF THE CASE
A. Proceedings in the state court.
Robert Clyde Bustamonte, respondent herein, was
convicted by a jury of possession of a completed
check with intent to defraud in violation of California
Penal Code section 475(a). A state prison sentence
of from one to fourteen years was imposed. On appeal
to the California Court of Appeal for the First Ap-
pellate District, Bustamonte’s conviction was affirmed
in an opinion set fourth in the appendix at pages 18
i
:
3
through 25, and reported at 270 Cal.App.2d 648, 76
Cal.Rptr. 17 (1969). Bustamonte’s petition to the
California Supreme Court for a hearing was denied
May 8, 1969.
B. Proceedings in the federal courts.
On May 23, 1969, Bustamonte petitioned the United
States District Court for the Northern District of
California for a writ of habeas corpus. The petition
was filed on February 10, 1970; on that date the
district court also filed an order granting Busta-
monte’s motion to file in forma pauperis and denying
the petition. This order is printed in the appendix at
pages 11 and 12. j
Bustamonte-filed a notice of appeal to the United
| States Court of Appeals for the Ninth Circuit on
| March 9, 1970; on that date the district court granted
a certificate of probable cause and permitted Busta-
monte to proceed without prepayment of cost.
On September 13, 1971, the court of appeals filed
its opinion vacating the order of the district court
denying the writ and remanded the matter to the
district court for further proceedings. Appendix pp.
6 through 10.
C. Statement of the facts.
é The facts of this case are stated in the opinion of
the California Court of Appeal in People v. Busta-
monte, supra, as follows:
“On the morning of January 19, 1967, Charles
Kehoe, owner of the Speedway Car Wash in
Mountain View, discovered that the business office
a
4
had been burglarized some time since he~had
closed on the previous day. A check-writing ma-
chine, known as a check protector, and a number
of blank checks had been removed from the office.
“On January 21, 1967, Joe Gonzales and Joe
Aleala went with defendant to the Food Fair
Market in Mountain View. According to the testi-
mony of Gonzales, defendant filled out a check
while they were in the parking lot. This check
was a Speedway Car Wash check ‘protectorized’
in the amount of $63.75 and defendant made it
out to a ‘Joe Garcia’ and signed it with Kehoe’s
name. Gonzales took the check into the market
where he cashed it in the process of buying a car-
ton of cigarettes. Kehoe identified the check pay-
able to Garcia and stated the signature was not
his. After cashing the check on January 21, de-
fendant, Gonzales and Alcala went to defendant’s
home. Gonzales saw defendant and Aleala lean,
over the open trunk of defendant’s parked Olds-
mobile automobile and then the two returned to
the truck where Gonzales was waiting, bringing
with them two additional Speedway Car Wash
blank checks. The amounts of money were filled
in on the checks but no names or signatures were
entered. The men next unsuccessfully attempted
to cash another check at the Blue Bonnett Bar
: in Sunnyvale.
4 ‘“‘Gonzales testified that at some time before
the incidents of January 21 defendant had shown
him the check protector and some blank checks
which were contained in the trunk of a Camero
automobile which had been rented by defendant.
‘On January 31, 1967, defendant Alcala and
Gonzales went to San Jose to find persons willing
AT IE EOE ERS ECA G ANI I AOL PEP EE
5
to use false identification for the purpose of
eashing checks. At about 11 p.m. they picked up
three other men. Attempts to cash checks at gro-
cery stores and a bar were futile. During the
evening they stopped at the Moonlite Shopping
Center where Gonzales saw defendant take some
checks from defendant’s Renault automobile
which was in the parking lot.
“Police Officer James Rand of the Sunnyvale
Department of Public Safety was in a_ police
vehicle alone on routine patrol at approximately
2:40 a.m. on January 31, 1967. He observed an
oncoming vehicle which had only one functioning
headlight. Rand made a U-turn and also observed
that the automobile in question did not have an
automobile license plate light. He stopped the
automobile which was a black 1958 Ford 4door
: sedan. Six men were in the automobile at the
time it was stopped, and Rand testified that de-
fendant was in the front seat along with Alcala,
and that Gonzales was driving. After Gonzales
failed to produce a driver’s license, Officer Rand
asked if any of the occupants of the Ford had
identification. Only Aleala produced a driver's
license and he indicated that the automobile be-
longed to his brother. Officer Rand asked the oc-
Y cupants to step out of the automobile. After the
men were out of the car and after Officer Rand
was joined by Officer Bissell and Captain Crab-
tree, he asked Alcala if he could search the ear.
According to Officer Rand’s testimony, Alcala
, replied ‘Sure, go ahead.’ Gonzales also testified
that Alcala had given permission for the search
and had actually aided the officer. Officer Rand
and Captain Crabtree searched the Ford. Wadded
up under the left rear seat they found three
6
checks. Each of the checks was ‘protectorized’ in
the amount of $67.34, each was signed with the
name of Kehoe as maker, and each/was a Speed-
way Car Wash check. One was payable to Robert
Gomez and two were payable to Jino Anthony.
‘Later, pursuant to a search warrant, the Ren-
ault at the Moonlite Shopping Center and de-
fendant’s Oldsmobile in Sunnyvale were searched.
Two checks were found in the Renault and the
check protector and several blank checks were
found in the Oldsmobile, along with a number of
traffic citations naming defendant. A criminolo-
gist testified that in his opinion the writing on
the Speedway Car Wash checks was the writing
of defendant.
Search of the Ford
‘‘At the time that Officer Rand and Captain
Crabtree searched the Ford automobile and dis-
covered the three completed checks, there was a
total of three police officers and three police
vehicles on the highway near the stopped auto-
mobile. The occupants were asked to step out of
the car and at one point Gonzales was told to
stand by the car; at another time Alcala was told
to back away from the area of the search. Gon-
zales was also given a citation for the missing
lights and for his failure to produce a driver’s
license. According to Gonzales’ testimony, the
police cars did not have the passengers hemmed
in. No one was under arrest at the time of the
search and none of the individuals had been ad-
vised as to any constitutional rights. After testi-
mony was taken in chambers on the constitution-
ality of the search, the court ruled that there had
been consent to the search and the motion of
eee ere
1 ORM BE PE ht ERIE WR
7
defense counsel to suppress the evidence was
denied.” Appendix pp. 1417.
SUMMARY OF ARGUMENT
The California trial and appellate courts found that
Bustamonte’s consent to search was voluntarily given.
California evaluates consent searches under an ob-
jective standard; the Ninth Circuit has held this
standard unconstitutional and substituted the require-
ment of a knowing waiver of Fourth Amendment
rights. However, the California standard is constitu-
tional, finding its counterpart in decisions of this
Court. Since California’s consent rule is a constitu-
tionally acceptable standard, the federal courts are
required to apply it in habeas corpus cases involving
state prisoners. Ker v. Caltfornia, 374 U.S. 23 (1963).
If on the other hand, a waiver standard is constitu-
tionally required, third party consent searches will
become virtually impossible, and an admonition re-
specting Fourth Amendment rights may be made a
prerequisite to the validity of a consent search. In the
present case, judged by California’s consent rule,
there is no doubt that the consent given by Aleala
was voluntary.
Alternatively, we urge that because the advantages
of the exclusionary rule as a deterrent to unlawful
police conduct are doubtful, as weighed against the
real disadvantages to the states involved in subjecting
final criminak judgments to collateral attack based on
the exclusionary rule, this Court should hold that
such claims can no longer be asserted on federal
habeas corpus. Recent decisions of this Court which
guarantee procedural fairness, 1.e., the right to coun-
sel, confrontation and the like, are sufficient to insure
the integrity of state court procedure. On the other
hand undermining the finality of state criminal judg-
ments, by allowing the litigation and relitigation of
complex and difficult Fourth Amendment claims hav-
ing no relationship to guilt or innocence, serves no
% © useful purpose and imposes an unnecessary burden
: upon the administration of justice.
ARGUMENT
I
THE FORD IN WHICH BUSTAMONTE WAS RIDING WAS
SEARCHED PURSUANT TO A VALID CONSENT AND THE
; COURT OF APPEALS ERRED IN HOLDING OTHERWISE.
; This case involves nothing less than the constitu-
tionality of California’s standard for determining the
; validity of consent searches. We ask this Court to
; reaffirm that “‘Mapp sounded no death knell for our
federalism. .. .” Ker v. California, 374 U.S. 23, 31
(1963) (opinion of Mr. Justice Clark).
Ever since this state adopted the exclusionary rule
in 1955 (see People v. Cahan, 44 Cal.2d 434, 282 P.2d
905 [1955]), California courts have evaluated con-
sensual searches under the standard articulated by
former Chief Justice Traynor in People v. Michael,
45 Cal.2d 751, 753, 290 P.2d 852, 854 (1955) :
PSE SARA DE LEGO PL EEL POET EES
9
‘‘Whether in a particular case an apparent con-
sent was in fact voluntarily given or was in sub-
mission to an expressed or implied assertion of
authority, is a question of fact to be determined
in the light of all the circumstances.” Accord,
Castenada v. Superior Court, 59 Cal.2d 439, 30
Cal. Rptr. 1 (1963); People v. Smith, 63 Cal.2d
779, 48 Cal.Rptr. 382 (1966); People v. Johnson,
68 Cal.2d 629, 68 Cal.Rptr. 441 (1968).
California courts focus their inquiry on whether
the consent was truly voluntary. The consenting
party’s knowledge and understanding of his Fourth
Amendment rights are relevant to the extent that they
evidence coercion or non-coercion, but his subjective
knowledge and understanding of those rights is not
determinative. See People v. Wilson, 145 Cal.App.2d
1, 301: P.2d 974 (1956), limited in People v. Linke,
265 Cal.App.2d 297, 71 Cal.Rptr. 371 (1968); Com-
ment, 10 Santa CLaRa LAWYER 205, 211 (1969).
The theory underlying the California rule is this:
The Fourth Amendment proscribes only unreasenable
searches and seizures; when consent is uncoerced, law
enforcement officers have acted reasonably within the
meaning of the Fourth Amendment and the search is
valid. People v. Michael, supra, 45 Cal.2d at 753, 290
P.2d at 854.
Thus, California courts, concentrating upon the
conduct of the officer rather than on the subjective
state of mind of the consenting party, hold that ‘‘an
objective standard should be used in determining
whether there has been a valid consent to search. . . .”
10
_
People v. Gurley, 23 Cal.App.3d 536, 555, 100 Cal.
Rptr. 407, 420 (1972). This theory was articulated by
one writer as follows:
‘Tt is elementary that the fourth amendment does
not address itself to evidentiary questions but
rather the right to be free from unreasonable in-
trusions.
\# * *
‘“The very word ‘unreasonable’ could be the key
word to this amendment as it suggests a test
which is not only largely subjective but discre-
tionary as well. As the amendment affords free-
dom from ‘unreasonable’ searches and seizures
only, the only real question before a trial judge
is the reasonableness of the search. Is it really
unreasonable to search property where the owner
does not object? It would appear that a search
which does not degrade or in any other way
affect the dignity of the person whose property
is being searched would not be unreasonable. . ..
Of course, if there is any evidence of coercion or
misrepresentation by the police, the consent would
not be valid.”
D. Owens, Consent to Warrantless Search, 3
JOHN MARSHALL JOURNAL OF PRACTICE AND
PROCEDURE, 403, 419-420 (1970).
4 The Ninth Circuit has adopted an essentially .dif-
ferent approach in evaluating the validity of a con-
sent. That court focuses inquiry on the consenting
party’s subjective state of mind: Has he intentionally |
relinquished a -known right or privilege? Cipres v.
United States, 343 F.2d 95, 97-98 (9th Cir. 1965);
Schoepflin v. United States, 391 F.2d 390 (9th Cir.
EEA EBT, ANSP LEA EL EBACE SL RYE NIL TE YT SE GARGS SEAR SONG BIIELG, SA
11
1968). This is the standard for waiver first announced
in Johnson v. Zerbst, 304 U.S. 458, 464 (1938). Its
effect is to require of police officers either clairvoy-
ance or an unrealistic degree of psychological insight.
See Robbins v. MacKenzie, 364 F.2d 45, 49 (1st Cir.
1966). The Ninth Circuit rule was criticized in People
v. Crrillt, 265 Cal.App.2d 607; 71 Cal.Rptr. 604 (1968).
‘“‘The reasonableness of a belief that consent has freely
been given is the very matter at issue, but it is an
objective reasonableness as viewed by the court, not
the subjective opinion of the officer that it was reason-
able to believe consent had been given.” Jd. at 611, 71
Cal.Rptr. at 607.
However, what is at issue here is not so much the
intrinsic merits of the Ninth Circuit rule but rather,
the power of that court to impose it upon the states
as the sole valid ground for determining the validity
of a consent search. ‘‘Federal authority was never
intended to be a ‘ramrod’ to compel conformity to
nonconstitutional standards.” California v. Green, 399
US. 149, 172 (1970), coneurring opinion of Chief Jus-
tice Burger. However, the Ninth Circuit has been
“‘ramrodding” its rule upon the states by applying its
subjective waiver test in habeas corpus cases involving
state prisoners. See e.g., Cunningham v. Heinze, 352 F.
2d 1, 3 (9th Cir. 1965) ; Oliver v. Amiotte, 382 F.2d 987
(9th Cir. 1967) ; Oliver v. Bowens, 386 F.2d 688 (9th
Cir. 1967) ; cf., State of Montana v. Tomich, 332 F.2d
987, 990 (9th Cir. 1964).
This approach is irreconcilable with the declaration
of this Court in Ker v. California, supra, 374 U.S. 23,
a
12
24 (1963) that ‘‘the states are not precluded from
developing workable rules governing arrests, searches
and seizures.”
A. California’s consent rule is constitutional.
The California rule reflecting the voluntariness ap-
proach to consent searches was impliedly approved by
this Court in Bumper v. North Carolina, 391 U.S. 543,
548-549 (1968) :
‘‘When 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. This burden cannot
be discharged by showing no more than acquies-
cence to a claim of lawful authority.” See also
Note, 6 Cal. Western L. Rev. 216 (1970).
California courts uniformly hold that whether an
apparent consent to search was in fact voluntarily
given or was in submission to asserted authority is a
‘ question of fact. People v. Michael, supra; People v.
| Shelton, 60 Cal.2d 740, 36 Cal.Rptr. 433 (1964) ; Peo-
j ple v. Gurley, supra, 23 Cal.App.3d 536, 550, 100
5 Cal.Rptr. 407, 416-417 (1972). Consent is also viewed
as a factual question by this Court. United States v.
; Mitchell, 322 U.S. 65 (1944); Davis v. United States,
4 328 U.S. 582 (1946).
Title 28, United States Code section 2254(d) de-
elares that unless the State court hearing was unfair
or defective in specified respects,
‘In any proceeding instituted in a Federal court:
by an application for a writ of habeas corpus by
a person in custody pursuant to the judgment
13
of a State court, a determination after a hearing
on the merits of a factual issue, made by a State
court of competent jurisdiction in a proceeding to
which the applicant for the writ and the State
. were parties, evidenced by a written finding,
written opinion, or other reliable and adequate
written indicia, shall be presumed to be correct.
- (Emphasis supplied. )
After an in chambers hearing on Bustamonte’s mo-
tion to suppress the state trial court made a factual
finding that Alcala’s consent was voluntary. Appen-
dix p. 57. That determination was affirmed on appeal.
Thus, Bustamonte received a full and fair hearing at
the state trial and appellate levels in which the courts
applied a constitutionally acceptable standard of law.
Accordingly, the state court finding was entitled to the
presumption of correctness afforded by Title 28,
United States Code section 2254(d). Since, under
Bumper, voluntariness is a constitutionally acceptable
test and since Bustamonte’s petition did not allege
that the state court hearings were in any respect in-
adequate, apart from his claim that the state applied
an erroneous legal standard, the claim of invalid con-
sent should have been summarily rejected by the
court of appeals as it was by the district court. Procu-
nier v. Atchley, 400 U.S. 446, 454 (1971).
If, on the other hand, California’s voluntariness
standard is unconstitutional—and this is no less than
what the Ninth Circuit held—and in its place a waiver
standard is imposed, then serious consequences ensue
which the Court will eventually have to face. It should
face these consequences now instead of being con-
eee
iy
14
fronted in later cases with the dilemma of choosing
to vindicate the waiver standard at the expense of
settled principles heretofore felt to be wholly con-
sistent with the Fourth Amendment. Cf. Chimel v.
California, 395 U.S. 752, 769, (1969) (concurring
opinion of Mr. Justice Harlan). For if the waiver
standard is imposed, then this Court in addition to
overruling or limiting Bumper v. North Carolina, su-
pra, will have to overrule those cases which have ap-
proved third party consent searches, the apparent
authority doctrine, and searches based on a reasonable
mistake of fact. It will probably also have to impose a
warning requirement akin to the Miranda rule.’
B. Third party consent searches.
A waiver approach would make valid third party
consent searches virtually impossible. An excellent de-
scription of the current law on third party consent
searches appears in United States v. Martinez, 450
F.2d 864 (8th Cir. 1971), wherein the court of appeals
: stated as follows:
‘Originally couched in terms of a distinct per-
4 sonal right of the subject of the search which
, - could be waived only directly or through an agent,
[footnote omitted] the consent exception as ap-
plied to third party consents has recently been
focused on the third party. His legal and posses-
sory rights to the premises or items searched, his
relationship to the subject of the search and the
1Miranda v. Arizona, 384 U.S. 436 (1966). Ironically, it appears
that Miranda itself is under reexamination. Pennsylvania v. Ware,
No. 71-964, cert. granted March 14, 1972, 40 U.S.L. Week 3449.
CANOES TIRE LAL EVR I ARINC HAE NAR ng ROR rac eee a meyE ME LI EE
_—
circumstances as they objectively appear to the
police at the time of the search are all to be con-
sidered in determining whether the third party
possessed an independent right to consent to a
warrantless search by the police which will op-
erate to foreclose subsequent attempts at suppres-
sion by the subject of the search.” Id. at 865.
15
However, advocates of a strict waiver standard ad-
mit that it would curtail if: not eliminate third party
consent searches. Under a waiver standard searches
pursuant to consent by a third party would be upheld
only in those rare cases where the third party is
actually an agent of the nonconsenting party and is
empowered to authorize a search on the latter’s be-
half, or when the consenting party’s interest in au-
thorizing a particular search clearly dominate the
nonconsenter’s interest in privacy. Note, Third Party
Consent to Search and Seizure, 33 U.Cu1.L.Rev. 797
(1966) ; Note, Consent Searches, A Reappraisal After
Miranda v. Arizona, 67 Corum. L. Rev. 130, 149-150
(1967).
Ironically, at approximately the same time the
Ninth Circuit was imposing upon California the
waiver standard articulated in the Cipres and Schoep-
fin cases, supra, that court declined to apply it in
federal prosecutions which used evidence obtained in
third party consent searches. Thus, in United States
v. Wilson, 447 F.2d 1 (9th Cir. 1971), the court char-
acterized Cipres and Schoepflin as coercion cases and
went on to hold that a person living in a common law
relationship with the defendant had validly consented
to a search of the apartment in which they were liv-
i
16
ing. The court decided the issue of voluntariness on
all the circumstances of the case and did not require
a showing of knowing waiver. 447 F.2d 4-6. Similarly,
in United States v. Novick 450 F.2d 1111 (9th Cir.
1971), the court used the same objective standard
approach.
A waiver approach to third party consent searches
would be wholly inconsistent with the decisions of this
Court. In Coolidge v. New Hampshire, 403 U.S. 443,
where a wife handed over to investigating officers
items of physical evidence which incriminated her
husband, this Court applied an objective test, i.c.,
were her actions voluntary, the product of her own
free will, as opposed to 4 response to an assertion
of official authority. Coolidge v. New Hampshire,
supra,’ 403 U.S. 443, 445, 489 (1971). In Frazier v.
Cupp, 394 U.S. 731 (1969), the Court applied the
third party consent doctrine to hold that a defendant
had assumed the risk that his companion would per-
mit the police to search a shared duffle bag (394 U.S.
at 740).
By way of contrast, in Stoner v. California, 376
U.S. 483 (1964), the Court found ‘‘[No] substance
to the claim that the search was reasonable because
the police, relying upon the night clerk’s expressions
of consent, had a reasonable basis for beltef that the
clerk had authority to consent to the search.” 7d. at
448. (Emphasis added.) Implicit in the Stoner opinion
is the assumption that if the police reasonably believed
that the consenting party had authority to consent,
the search based upon consent would have been valid.
17
This would accord with Hill v. California, 401 U.S.
797 (1971), where the Court upheld the validity of
an arrest based upon a reasonable mistake of fact
on the part of the arresting officers.
C. Requirement of an admonition.
Implicit in the decision below imposing a waiver
requirement is the necessity of a warning analogous
to that decreed by this court in Miranda v. Arizona,
384 U.S. 436 (1966), although the Ninth Circuit did
not go so far as to state that a spetific admonition
was required, and has specifically rejected that re-
quirement in federal prosecutions. United States v.
Noa, 443 F.2d 114, 147 (9th Cir. 1971). However,
wherever a waiver standard has been imposed by the
Court, the requirement of an admonition or indepen-
dent evidence of a knowing waiver almost neces-
sarily follows. See e.g., Carnley v. Cochran, 369 U.S.
506, 513 (1962) ; Miranda v. Arizona, supra, 384 U.S.
436, 469-473. (1966) ; McCarthy v. United States, 394
U.S. 459 (1969); Boykin v. Alabama, 395 U.S. 238,
243 (1969). Some writers, taking their cue from these
cases and assuming that a consent search must be
based on a waiver of Fourth Amendment rights, have
urged that a warning is necessary before any effec-
tive consent. Note, Consent Searches, A Reappraisal
After Miranda v. Arizona, supra, 67 Cotum. L. Rev.
130 (1967) supra; Note, Consent Searches—Relin-
quishment of Fourth Amendment Rights—The Need
for a Warning, 5 Gonzaca L. Rev. 315 (1970): Note.
Consent Search: Waiver of Fourth Amendment
Rights, 12 St. Lovis U.L.J. (1968) ; cf. Owens, supra.
senenneennntiiindliniiinan
" a
The overwhelming weight of the case law is to the
contrary. California courts, the federal courts and |
courts of other jurisdictions have rejected any re
quirement that one whose consent is sought for a
search must first be advised of his Fourth Amend-
ment rights. Blair v. Pitchess, 5 Cal.3d 258, 275, fn.
8; People v. Superior Court, 71 Cal.2d 265, 270, fn. 7
(1969); People v. Gurley, 23 Cal.App.3d 536, 554-
555, 100 Cal.Rptr. 407 (1972); People v. Stark, 275
Cal. App.2d 712, 714-715 (1969), 80 Cal.Rptr. 307,
308-309; People v. Linke, 265 Cal.App.2d 297, 314,
71 Cal.Rptr. 371 (1968); People v. Campuzano, 254
Cal. App.2d 52, 61 Cal.Rptr. 695 (1967); People v.
Roberts, 246 Cal.App.2d 715, 55 Cal.Rptr. 62 (1966) ;
Gorman v. United States, 380 F.2d 158, 164 (1st Cir.
1967); United States ex rel. Cole v. Mancusi, 429
F.2d 61, 66 (2d Cir. 1970); United States ex rel.
Harris v. Hendricks, 423 F.2d 1096 (3d Cir. 1970);
Government of Virgin Islands v. Berne, 412 F.2d
1055 (3d Cir. 1970); United States v. Vickers, 387
F.2d 703, 707 (4th Cir. 1967) ; United States v. Goos-
bey, 419 F.2d 818 (6th Cir. 1970); Byrd v. Lane, 398
F.2d 750, 754-755 (7th Cir. 1968); United States v.
Noa, supra 443 F.2d 144 (9th Cir. 1971); Leeper v.
United States, 446 F.2d 281 (10th Cir. 1971); White
v. United States, 444 F.2d 724, 726 (10th Cir. 1971);
Phillips v. People, 170 Colo. 520, 462 P.2d 594 (1969) ;
State v. Custer, 251 So.2d 287 (Fla. App. 1971) ; State
v. Oldham, 92 Id. 124, 4388 P.2d 275 (1968) ; State v.
McCarty, 199 Kans. 116, 427 P.2d 616 (1967) : Hohnke
v. Commonwealth, 451 S.W.2d 162 (Ky. Ct. App.
1970) ; State v. Andrus, 250 La. 765, 199 So.2d 867
19
(1967); Morgan v. State, 2 Md.App. 440, 234 A.2d
762 (1967); State v. Forney, 181 Nebr. 767, 150
N.W.2d 915 (1967); State v. Douglas, 488 P.2d 1366
(Ore. 1971); Commonwealth v. Anderson, 208 Pa.
Super. 323, 222 A.2d 495 (1966) ; State v. Leavitt, 103
R.I. 273, 237 A.2d 309 (1968); Weeks v. State, 417
S.W.2d 716 (Tex. Crim. App. 1967); State v. John-
son, 71 Wash. 239, 427 P.2d 705 (1967).
Reason no less than the weight of authority compels
rejection of a Miranda approach in the area of con-
sensual searches. The original justification of the
Miranda admonition was that in the context of custo-
dial interrogation, the questions of the police were
assumed themselves to impart a right to an answer.
However, ‘‘the mere asking of permission to...
make a search carries with it the implication that the
person can withhold permission. . . .” People v. Chad-
dock, 249 Cal.App.2d 483, 485-86, 57 Cal.Rptr. 582
(1967).
Warnings required before custodial interrogation
are intended to eliminate conditions conducive to co-
ercion, ‘‘to sterilize the police antechamber.” Jn rc
Lopez, 62 Cal.2d 368, 374, 42 Cal.Rptr. 188, 192
(1965), cf. Miranda v. Arizona, supra, at 478 n. 46.
Consents to search generally are given at the suspect’s
residence, automobile, or some other public place.
Where consent is obtained at police headquarters, the
prosecution must satisfy a correspondingly heavier
burden of proof. See, ¢.g., Channel v. United States,
285 F.2d 217 (9th Cir. 1960); People v. Shelton, 60
Cal.2d 740, 36 Cal.Rptr. 433 (1964). The state and
Re... CBEST I Ds
2 ee
federal tests for consent are sufficiently sensitive to
exclude evidence secured by coercive police conduct.
Coercion during police interrogation raises a danger
of producing unreliable self-incriminating evidence.
‘‘[T]he rules governing searches are not concerned
with the exclusion of unreliable evidence. . . .” Gor-
man v. United States, supra, at 164.
Proponents of the Miranda rule emphasize that it
will improve police-citizen relationships because the
admonition demonstrates to the citizen that the police
stand ready to respect his constitutional rights. Police
convey the same impression when they request consent
to search. On the other hand, if a suspect withholds
consent after police advice, officers will arrest and con-
duct an incidental search in cases where they believe
probable cause exists. This is not calculated to im-
prove police-citizen relationships.
‘
:
‘‘A principal objective of . . . [Miranda] was to
establish safeguards that would liberate courts inso-
far as possible from the difficult and troublesome
necessity of adjudicating in each case whether coer-
cive influences, psychological or physical, had been
employed to secure admissions and confession.” Peo-
ple v. Fioritto, 68 Cal.2d 714, 717, 68 Cal.Rptr. 817,
818 (1968). The difficulty of resolving swearing con-
tests between police and defendants prompted the
search for a self-executing rule. See Crooker v. Cali-
fornia, 357 U.S. 433, 443-44 (1958) (dissenting opin-
ion of Mr. Justice Douglas) .?
2The Miranda admonition also facilitates the determination of
whether there has been an effective waiver; we urge that the waiver
test is inapplicable to consent to search.
21
Proof that the suspect was admonished together
with his subsequent statement, the existence of which
independently evidences cooperation, renders it un-
necessary for courts to prefer the testimony of the
police to that of the defendant. The same is not true
in the context of consensual searches. Conflicts in
testimony now center on the precise words of the de-
fendant relied upon by the police. Were a Fourth
Amendment warning required the conflict would be
about whether the admonition was given, the scope
of the consent, and revocation of consent. The tangi-
ble evidence disclosed by the search, unlike an admis-
sion or confession, would be silent on these questions.
There is no escape from the judicial dilemma posed
by consensual searches or from the overwhelming
body of authority rejecting any warning requirement.
Moreover, considerations of practicality compel re-
jection of a Miranda approach. Following the Miranda
decision, one of the commentators who urged extension
of that rule to consent searches (Sec, Consent Search-
es: A Reappraisal After Miranda v. Arizona, supra,
67 Corum. L. Rev. 130 [1967]), after considerable
exploration of what an effective Fourth Amendment
warning should convey at 150-158, set out a suggested
warning.
“You have a right to refuse to allow me to search
your home, and if vou decide to refuse, I will
respect your refusal. If vou do decide to let me
search, you won’t be able to change vour mind
later on, and during the seareh I'll be able to
look in places and take things which I couldn’t
even if I could get a search warrant. You have
Re...
os
a right to a lawyer before you decide, and if you
can’t afford a lawyer we will get you one and
you won’t have to pay for him. There are many
different laws which are designed to protect you
from my searching, but they are too complicated
for me to explain or for you to understand, so
if you think you would like to take advantage
of this very important information, you will need
a lawyer to help you before you tell me I can
search.” Id. at 158.
We submit that the very complexity of such a warn-
ing proves its unworkability, and the basic unsound-_,
ness of any theory that would require it.
D. Bustamonte’s consent was truly voluntary.
In its opinion, the Ninth Circuit appears to concede
that the atmosphere in which consent was given was
noncoercive and that permission to search was re
quested and given. This view of the facts is correct.
When the police stopped the 1958 Ford, Gonzales
- was driving; appellant was seated in the front with
Alcala; three men occupied the rear seat. Officer Rand
requested the six occupants to step out of the auto-
mobile after Gonzales failed to produce a driver's
license and only Alcala could furnish identification. —
Officer Rand asked Aleala if he could search the car. |
Alcala replied, ‘“‘Sure, go ahead,” according to Rand.
Gonzales testified that Alcala consented freely, even
casually, and actually aided the officers. The officers’ |
search uncovered three checks under the left rear
seat.
bp ALI ne ek
23
This is not a case where a party consented to a
search knowing that it was likely to disclose evidence
which would incriminate him. Alcala, not Bustamonte,
consented to the search. As Alcala was in the front
seat he could hardly know that his companions were
hiding checks under the rear seat. There is no basis
here for a presumption of coercion on the theory that
“no sane man who denies his guilt would actually be
willing that policemen search . . . for contraband
which is certain to be discovered.” Higgins v. United
States, 209 F.2d 819, 820 (D.C. Cir. 1954) ;* cf. Coolidge
v. New Hampshire, supra.
The early hour cannot be considered a coercive
factor. Cf. People v. Kennedy, 256 Cal.App.2d 755,
64 Cal.Rptr. 345 (1967) (2:00 a.m.). The road where
the stop was effected was peopled with twice as many
suspects as officers. Since Bustamonte and his friends
outnumbered the police six to three, the number of
officers could hardly be coercive. The occupants of —
the Ford were not ‘‘questioned” regarding any crime,
but merely asked to furnish a driver’s license or iden-
tification. The traffic citation was issued to Gonzales,
not Alcala.
Here there was no “‘dramatie excitement of drawn
guns,” or arrest preceding consent. Wren v. United
States, 352 F.2d 617, 619 (10th Cir. 1965). ‘‘The cir-
cumstances of the investigation by the police presents
8This line of reasoning seems to have led federal courts to dis-
trust and disfavor consensual searches. However. “one may ques-
tion a logic which fails to consider that aspect of human nature
which leads one person to believe he may bluff or beguile another.”
tise, v. Tanke, 265 Cal.App.2d 297, 306, 71 Cal.Rptr. 371, 376
).
—
24
[sic] a calm, routine performance of duty by the of-
ficers. There is no evidence of any threats on the
part of the officers or the use of any other means
from which duress or coercion could be inferred.”
Id. at 620.
Alcala’s expression of consent was specific, unequiv-
ocal, and affirmative. It was more than assent, it was
an invitation. The atmosphere was not coercive but
‘‘eongenial.” People v. Bustamonte, 270 Cal.App.2d
648, at 652, 76 Cal.Rptr. at 20 (1969). Alcala’s sub-
sequent assistance during the search confirms the vol-
untary nature of his consent.‘
Granting the validity of California’s consent rule,
there can be no question but that the state trial and
appellate courts can correctly conclude that Alcala
was not overawed by the badge and that his consent
was free and voluntary. The Ninth Circuit appears to
concede as much. The Ninth Circuit was obliged un-
der Title 28, United States Code section 2254(d) and
Ker v. California, supra, to respect that finding.
Finally, the decision below must be overturned be-
cause of the palpable injustice of imposing on Cali-
fornia a waiver standard inconsistent with the more
liberal approach the Ninth Circuit has taken in re
viewing federal convictions. See United States .
Novick, supra; United States v. Wilson, supra; United
States v. Noa, supra.
4Gonzales testified that Alcala opened the trunk. Appendix p. 52.
a VE te Be ome,
SQ <a
OPO OE - ey a are
—_—_
25
II
THIS COURT SHOULD HOLD THAT CLAIMS BASED ON THE
EXCLUSIONARY RULE SHOULD NOT BE AVAILABLE TO
STATE PRISONERS SEEKING TO SET ASIDE THEIR CON-
VICTIONS ON FEDERAL HABEAS CORPUS.
In our petition for certiorari in this case, we re-
quested the Court to reexamine Kaufman v. United
States, 394 U.S. 217 (1969), as well as those decisions
in which the Court has applied the exclusionary rule
in state habeas corpus cases. Whitely v. Warden, 401
U.S. 560 (1971); Harris v. Nelson, 394 U.S. 286
(1969) ; Mancusi v. DeForte, 392 U.S. 364 (1968) ;
' Carafas v. LaVallee, 391 U.S. 234 (1968); Warden v.
Hayden, 387 U.S. 294 (1967). This Court has accepted
that invitation. We now request that these cases be
overruled. .
The essence of our position is that the advantages
of applying the exclusionary rule on collateral attack
of state convictions are upon analysis illusory, and the
disadvantages in persisting in that practice are in fact
overwhelming. We ask the Court to adopt here a
balancing test comparable to that used in Harris v.
New York, 401 U.S. 222 (1971). In that case, which
involved the admissibility for purposes of impeach-
ment of a statement taken in violation of the Miranda
tule, the Court weighed the deterrent effect of total
exclusion of the impeaching evidence, against the com-
pelling policy in favor of admission of such evidence
as an aid to the truth-determining process, the very
purpose of a criminal trial:
“The impeachment process here undoubtedly
provided valuable aid to the jury in assessing
|
26
petitioner’s credibility and the benefits of this
process should not be lost, in our view, because
of the speculative possibility that impermissible
police conduct will be encouraged thereby.
Assuming that the exclusionary rule has a deter-
rent effect on prescribed police conduct, suff-
cient deterrence flows when the evidence in
question is made unavailable to the prosecution in
its case in chief.” Id. at 225.
. 2 fs
The same approach should be applied to the ques-
tion of whether Fourth Amendment claims should be
considered on federal habeas corpus. Taking first the
deterrent side of the balance, one must ask whether
the availability of federal collateral attack to review
the merits of state search and seizure questions adds
substantially to the deterrent effect of the exclusionary
rule. Prestigious authorities have said it does not.
Former California Chief Justice Roger Traynor put
the matter thusly: |
‘“‘The purpose of the exclusionary rule is not to
prevent the conviction of the innocent, but to
deter unconstitutional methods of law enforce-
ment. [Citations.|_That purpose is adequately
served when a state provides an orderly procedure |
for raising the question of illegally obtained evi- |
dence at or before trial and on appeal. The risk |
that the deterrent effect of the rule will be com-
promised by an occasional erroneous decision re-
fusing to apply it is far outweighed by the dis-
ruption of the orderly administration of justice
that would ensue if the issue could be relitigated
over and over again on collateral attack.” Jn re
Sterling, 63 Cal.2d 486, 487-488, 47 Cal. Rptr. 206,
w—,
207, 407 P.2d 5, 7 (1965), quoting In re Harris,
56 Cal.2d 879, 883-884, 16 Cal.Rptr. 889, 892, 366
P.2d 305, 308 (1961). See also, Amsterdam,
Search, Seizure and Section 2255, 112 U. Pa. L.
REv. 378, 389-390 (1964).
27
Moreover, since the decision in Kaufman, consider-
able research has been conducted into the actual deter-
rent effect of the exclusionary rule. D. Oakes, Study-
ing the Exclusitonary Rule in Search and Seizure, 37
U. Cur. L. Rev. 665 (1970). At the conclusion of his
article, Professor Oakes states in part as follows:
‘“As a device for directly deterring illegal
searches and seizures by the police, the exclusion-
ary rule is a failure. There is no reason to expect
the rule to have any direct effect on the over-
whelming majority of police conduct that is not
meant to result in prosecutioris, and there is
hardly any evidence that the rule exerts any de-
terrent effect on the small fraction of law enforce-
ment activity that is aimed atprosecution. What
is known about the deterrent effect of sanctions
suggests that the exclusionary rule operates under
conditions that are extremely unfavorable for de-
terring 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 seiz-
ures by law enforcement officers, and it is a fail-
ure in that vital task.” Id. at 755.
If, as Professor Oakes concludes, the deterrent effect
of the exclusionary rule as applied by state trial courts
is at best speculative, what then can be said about its
as i,
application by the federal courts to review state deci-
sions long since final? About the only justification
that can be advanced for such a practice was that
stated by the five-man majority in Kaufman v. United
States, supra, as follows: ‘“‘The availability of post-
conviction relief serves significantly to secure the in-
tegrity of proceedings at or before trial and on appeal.
. . . Collateral relief, unlike retroactive relief, con-
tributes to the present vitality of all constitutional
rights whether or not they bear on the integrity of
the fact-finding process.” Id. at 229.
However, we respectfully submit that this argument
misses the point; the integrity of the judicial process
is preserved by those decisions of this Court which
have guaranteed every state criminal defendant ade- —
quate process for both the litigation at trial and re-
view on appeal of federal questions in the state courts.
State criminal defendants are now entitled to coun-
sel at trial, Gideon v. Wainwright, 372 U.S. 335
(1963) ; confrontation of witnesses, Pointer v. Texas,
380 U.S. 400 (1965) ; definitive rulings by trial judges
on objections to the admissibility of confessions, Jack-
son v. Denno, 378 U.S. 368 (1964); Sims v. Georgia,
385 U.S. 538 (1967); and, where the state provides,
appellate review in criminal cases, the right to a free
transcript of the trial proceedings or its equivalent
for review on appeal, Griffin v. Illinois, 351 U.S. 12
(1956); Draper v. Washington, 372 U.S. 487 (1963);
and the right to counsel on appeal, Douglas v. Cali-
fornia, 372 U.S. 353 (1963), serving in the capacity
of an advocate, Anders v. California, 386 U.S. 738
29
(1967). The requirements that have been imposed by
this Court guarantee procedures in the state éourts
which are calculated to reach a just resolution of any
any material issue a defendant may seek to raise. The
integrity of state court procedures is best served by
guaranteeing procedural fairness, rather than the con-
stant litigation and relitigation of the merits of factual
issues years after the events in question.
The only way~in which the Kaufman rule can be
justified is if the interest of the states in maintaining
the finality of criminal judgments is totally disre-
garded. However, the public interest in the finality of
criminal convictions is substantial. McMann v. Rich-
ardson, 397 U.S. 759, 774 (1970): Never has the im-
perative of finality in the administration of criminal
- justice been better explained that it was by Professor
- Paul M. Bator in his definitive article, Finality in
| Criminal Law and Federal Habeas Corpus for State
Prisoners, 76 Hary. L. Rev. 441 (1963). Professor
Bator there pointed out the many undesirable results
of undermining the finality of criminal judgments by
allowing the relitigation of contested factual issues.
Such relitigation undermines public confidence in the
administration of criminal justice, tends to demoralize
state trial and appellate judges, and saps the criminal
law of its deterrent effect by clouding the certainty
of punishment even after a judgment has been af-
firmed on appeal. Moreover it is totally at odds with
any idea of rehabilitating criminal offenders. In Pro-
fessor Bator’s words, ‘‘the idea of just condemnation
lies at the heart of the criminal law, and we should
Fa
~
30
not lightly create processes which implicitly belie its
possibility.” Id. at 452.
Moreover, the disadvantages of relitigating the |
merits of Fourth Amendment claims on federal habeas —
corpus are compounded by reason of the fact that
questions pertaining to search and seizure are among
the most difficult and complex to be encountered in
the criminal law. See Coolidge v. New Hampshire, 408
U.S. 443 (1971). Because of this complexity and un-
_certainty decisions on these issues are unpredictable.
This unpredictability increases the possibility that a
persistant litigant, such as Bustamonte, will eventually
find a judge who agrees with his view of the exclu-
sionary rule. Bustamonte had failed to persuade one
state trial judge, ten state appellate judges, and one
United States District Court judge before a three-
judge panel of the Ninth Circuit agreed with his
positidn. Clearly, in these days of crowded court
dockets adherence to Kaufman retains ‘‘a burden on
the judiciary and on society at large, which results i in.
no legitimate benefit to the [habeas] petitioner and
does nothing to serve the interest of justice.” Kauf-
man v. United States, supra, 394 U.S. at 243 (dissent-
ing opinion of Mr. Justice Harlan).
atte
CN ate te oon a
BONNER SSS
ae
31
CONCLUSION
Petitioner respectfully requests this Court to re-
mand the case to the Ninth Circuit Court of Appeals
with directions to vacate its opinion and to affirm the
order of the District Court denying Bustamonte’s
petition for the writ of habeas corpus.
Dated, April 17, 1972.
EVELLE J. YOUNGER,
Attorney General of the State of California,
’ HERBERT L. ASHBY,
Chief Assistant Attorney General—
Criminal Division,
Doris H. Mater,
Assistant Attorney General—Writs Section,
Epwarp P. O’BRIEN,
Deputy Attorney General,
Rosert R. GRANUCCI,
Deputy Attorney General,
Attorneys for Petitioner.
7
>
BREE ar Ge ae ates OLE OTR IR Uh Bee mare 3 os set en eee
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