Brief for the United States — United States v. Matlock

No. 72-1855

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OF APPEALS FOR THR SEVENTH OIROUIT

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Opinions below - -- - - --- -----------------------

Sarigtsetiow 45s. DCIS 22 2. 2 eset ce

Questions presented _---- ----------------------

Statement... .... 26 Je Vi. tc. + +2 +--+ eee

Summary of argument-.------------------------

Argument:

I. To establish the legality of the search it

sufficed for the government to show

that it reasonably appeared to the in-

vestigating officers that Mrs. Graff had

authority as a joint occupant to con-

sent to the search and that she did in

fact consent to it.........-.......0s0 11

II. The court of appeals applied an errone-

ous standard of proof in determining

that the United States had not shown

that Mrs. Graff had actual authority

to permit the search---.----.-------- 17

Ill. Even if, the courts below properly re-

quired the government to prove that

Mrs. Graff was in fact as well as ap-

pearance a joint occupant of the east

bedroom, they erred in holding inad-

missible the out-of-court statements

made by her and respondent indicating

joint occupancy - - ------------------ 21

onn- =

518-068—73-——-_1

suppression .

ing before the court sit- sed

22

. ting without a jury-----~

& B. The hearsay involved here

was reliable _ - - ------- 28

Conchasion.;. ...--------<=---5-58--"-9"--9- 30

Cases:

Anderson V United States, 399 F. 2d 753----- 13

Bridges v Wizxon, 326 U.S. 135... ---------- 25, 26

y. North Carolina, 391 U.S. 543- - --- 18

Chambers v. Mississtppt, 410 U.S. 284. -.----- 27, 29

Chimel v. California, 395 U.S: 752. - - ------- 18

Duke of Beaufort v. Crawshay, L.R. 1 C.P.

RE ee Ee mF _ cecyy cigs tia Spa 24

Elkins v. United States, 364 U.S. 206-------- 17

Frazier v. Cupp, 394 U.S. 731 -------------- 12

Gurleski v. United States, 405 F 2d 253, cer-

tiorari denied, 395 U.S. 981 - -.----------- 15

Hill v. California, 401 U.S. 797---------- 14, 15, 16

Knight v. Campbell (1848 nisi prius decision

by Chief Baron referred to in I

Taylor, Evidence, § 517, note 7 (9th ed.

1907))....-~-s~---3---+--------4+------

Lego v. T , 404 U.S. 477- -.----------- 18, 19

Linkletter v. Walker, 381 U.S. 618----------- 17

Mapp v. Ohio, 367 U.S. 643 ee eee 17

Morrissey V. Brewer, 408 U.S. 471----------- 25-26

Opp Cotton Mills v. Administrator, 312 U.S.

cee OA

Cases—Continued |

Roberts v. United States, 332 F. 2d 892, cer- —_

tiorari denied, 380 U.S. 980_--..-.-.------- 13

Schn v. Bustamonte, No. 71-732, de-

cided May 29, 1973.------------ 3, 12, 13, 17, 30

Stein v. United States, 166 F. 2d 851, certiorari

denied, 334 U.S. 844. ---.--------------- 13

Stoner v. California, 376 U.S. 483-..-------- 16

United States v. Airdo, 380 F. 2d 103, certiorari

denied, 389 U.S. 913. .------------------ 13

United States v. Aloway, 397 F. 2d 105------ 12

United States v. Johnson, 413 F. 2d 1396--- -- 12

United States v. Mackiewicz, 401 F. 2d 219,

certiorari denied, 393 U.S. 923-------.---- 12

United States v. Stone, 471 F. 2d 170, certiorari

denied, April 16, 1973 (No. 72-1042)------- 12, 13

United States v. Thompson, 421 F. 2d 373,

vacated on other grounds, 400 U.S. 17----- 12,13

Vale v. Louisiana, 399 U.S. 30_---.---------- 18

Walder v. United States, 347 U.S. 618- - - - --- 17

Constitution and statutes:

United States Constitution, Fourth Amend-

BRED. nnnncnadupnat'hash=—nb= 9, 13, 14, 15, 16

Pub. L. 93-12, 87 Stat. 9 (March 30, 1973)... 28

18 U.S.C. 2113. ..------------------------ 2

Miscellaneous:

Federal Rules of Evidence (Proposed) - - ---- - 11

Rule 104(a)....-...------------------ 28

Maguire and Epstein, Rules of Evidence in Pre-

liminary Controversies as to Admissibility, 36

Yale L. J..1101 (1927)..----------- 23, 24, 26, 27

McCormick, Evidence (1954):

§ 53__.....------------------5---- 23, 24, 25

Note, Applicability of Rules of Evidence Where

the Judge is the Trier of Facts in an Action at

Law, 42 Harv. L. Rev. 258 (1928). -------- 27

Iv

Miscellaneous—Continued

Phipson, Evidence, 28 (10th ed. 1963) .......-

1 Taylor, Evidence, § 517, note 7 (9th ed.

MOF) oe oe SPR GUERRA URI

z

3

1 Wigmore, Evidence, § 4 (3d ed. 1940) - . . .-- ,

5 Wigmore, Evidence, § 1385 (3d ed. 1940) - - -

S Wigmore, Evidence, § 2175 ff. (McNaughton

pues BOGE LU a Pom OR TLS TF ARG o2ek ,

1 Wisconsin Board of Cireuit.Judges, Wiscon-

sin Jury Instructions—Civil 200 (1972)... :

S$ 8 BBR & F

gu the Supreme Gourt of the Hnited States

OcroseR TERM, 1973

No. 72-1355

- Unrrep States oF AMERICA, PETITIONER

v.

Wituram Ear MATriock

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A,

pp. la-8a) is reported at 476 F. 2d 1083. The final

opinion and order of the district court (Pet. App. C,

pp. 10a-20a) are not reported. Two earlier opinions

of the district court which were superseded by its final

opinion (Pet. Apps. D and E, pp. 2la—32a) are not

reported.

| JURISDICTION

The judgment of the court of appeals (Pet. App. B,

p- 9a) was entered on February 5, 1973. On Febru-

ary 26, 1973, Mr. Justice Rehnquist extended the time

for filing a petition for a writ of certiorari to April 6,

(1)

2

1973, and the petition was filed on that date. The

petition was granted on May 29, 1973 (A. 40).' The

jurisdiction of this Court rests on 28 U.S.C. 1254(1).

we SASS Nee b32 @ ; ‘ ‘a

1. Whether, to establish the validity of a warrantless

search consented to by a third party reasonably

appearing to have authority to consent to the search,

the government must prove that the consenting party

also had the actual authority to consent to the search.

2. Whether, in opposing a motion to suppress evi-

dence on the ground that the consent to the search

was not valid, the government must prove the suffi-

ciency of the consent “‘to a reasonable certainty.”

3. Whether the hearsay rule applies to the introduc-

tion of evidence at suppression hearings and, if so,

whether the out-of-court statements by respondent and

a woman that they were married were inadmissible to

show their joint occupancy of the bedroom which the

woman, authorized police officers to search.

STATEMENT .

Respondent was indicted for bank robbery (18 .

U.S.C. 2113) in the United States District Court for

the Western District of Wisconsin. He moved to sup-

press certain items, including $4,995 in cash, that had

been seized in the course of three searches of a house

in which he had rented a bedroom. The motion was

granted as to some of the items, including the $4,995,

and denied as to others (Pet. App. C, pp. 10a—20a).

On appeal by the United States, the court of appeals

affirmed (Pet. App. A, pp. la-8a). ;

*“A.” refers to the printed Appendix filed with the Clerk.

3 -

1. Gn the morning of November 12, 1970, respondent

was arrested by locdf police officers in the yard of a

house rented by Mr. and Mrs. Walter Marshall in

Pardeeville, Wisconsin (Pet. App. C, pp. 10a—Lla).

The residents of the house, at the time, were Mrs.

Marshall, her three children (including her daughter,

Mrs. Gayle Graff), Mrs. Graff’s three-year-old son,

and respondent (Pet. App. C, p. lla).

Immediately after respondent’s arrest, three local

police officers went to the door of the Marshall house

and were admitted by Mrs. Graff (Pet. App. C, p.

12a). The officers told her that they were looking for

money and a gun they believed to be hidden in the

house and they asked if they could make a search

(tbid.). Mrs. Graff consented (ibid.).” Mrs. Graff told

* The officers testified that Mrs. Graff was very cooperative

and that she said she had nothing to hide (A. 9, 12, 16). The offi-

cers did not specifically inform Mrs. Graff that she had the

right to withhold consent. The question whether investigating

officers are required, as a condition of a valid consent search, to

inform the consenting person of the right to withhold consent

was not considered by the courts below because they held the

search to be invalid on other grounds (Pet. App. C, p. 17a; cf.

Pet. App. A, p. 2a, n. 1). We note that this Court has since

held that failure by the officers so to inform the consenting per-

son does not per se invalidate the search, but is merely one

factor to be considered in determining whether, under all the

circumstances, the consent was voluntarily given. Schneckloth v.

Bustamonte, No. 71-732, decided May 29, 1973.

Mrs. Graff herself testified at the suppression hearing that she

never consented to any search of the premises (Transcript of

proceedings, April 5, 1971, pp. 91-92, 93-94). The district court

discredited this testimony (Pet. App. C, p. 12a). Mrs. Graff was

subsequently indicted for, and convicted of, perjury in her testi-

mony at the hearing. Imposition of sentence was suspended and

she was placed on probation for two years.

4

the officers that respondent “was sleeping in an up-

stairs bedroom which is also oceupied by her” (A. 15)

and that “she slept in the same bed” (A. 13, see also

A. 10 and A. 16). She specifically consented to their

searching that room (the “east bedroom”) (Pet. App.

C, p. 12a).*

At the time of the search there was a double bed

in the east bedroom with two pillows on it and the

bed presented the appearance of having been slept

in (Pet. App. C, p. 16a). There was men’s and

women’s clothing in the closet (ibid.). There was a

four-drawer dresser in the room, two drawers of

which contained men’s clothing and the other two of

which contained women’s clothing (tlid.). Mrs. Graff

told the officers, “Bill [respondent] has the two bot-

tom drawers and the two top drawers are mine”

(Pet. App. C, pp. 15a, 16a; A, 22-23).

In searching the bedroom, the officers discovered

and seized $4,995 in cash concealed in the closet (Pet.

App. A, p. 2a; Pet. App. C, p. 12a; A. 13-14). The

_ legality of that seizure is the only issue presented.‘

*None of the officers asked Mrs. Graff whether respondent

occupied the room as a guest or as a paying tenant, whether

she and respondent were married, or whether they had been

living together as husband and wife, and Mrs. Graff said

nothing to the officers on these subjects (Pet. App. C, p. 12a).

‘In addition to the cash, certain other items were discovered

and seized in the course of later searches of the east bedroom

and other parts of the house. The district court ordered some of

those items suppressed in addition to the money. For the rea-

sons explained in the petition (pp. 4-5, n. 2), we have not con-

tested in this Court the suppression of any item other than the

money.

3

2. Additional evidence was introduced: at the sup-

pression hearing tending to show that respondent and

Mrs. Graff were, in fact, joint oceupants of the east bed-

room. Respondent, Mrs. Graff and her child had been

living at the house since the preceding summer, when

they arrived together from Florida ; previously they had

lived together for five months in a one-bedroom apart-

ment in Florida (Pet. App. C, pp. 11a, 15a). Respondent

had agreed to pay the Marshalls $25 per week for room

and board (Pet. App. C, p. lla). He was current in

these payments, or nearly so, at the time of his arrest

(Pet. App. C, pp. 1la-12a).

After, but on the same day as, the search in question

Mrs. Graff told F.B.I. agents that she and respondent

had been sleeping together in the east bedroom regu-

larly, ineluding the early morning hours of that day

(Pet. App. C, p. 15a; A. 23-24, 26-27). She also told the

agents that, while she was not lawfully married to re-

spondent, “I consider myself a common-law wife” (A.

24. see also'A. 27).

Prior to respondent’s arrest, at various times and

places, and to various persons, both respondent and

Mrs. Graff had represented that they were married or

had made statements indicating that they were hus-

band and wife (Pet. App. C, p. 15a). In September,

1970, Mrs. Graff had introduced respondent to her

employer as her husband (A. 33-34) and respondent,

in a conversation with the wife of the employer (for

whom respondent was then also working), had _ re-

ferred to Mrs. Graff as his wife (A. 30-31). In the

same month Mrs. Marshall introduced respondent

518—068—73 2

6

to an acquaintance as “Gayle’s husband.’’ Respondent

did not deny it® (A. 37-38). Finally, Mrs. Graff’s

former husband testified that when he took some

papers to Mrs. Graff at the Marshall house, respondent

told him, ‘‘Leave her alone. She’s not your responsi-

bility, she is mine’”’ (Transcript of proceedings, June

22, 1971, pp. 59-60).

There was also additional testimony from neighbors

that on various occasions they had seen respondent

and Mrs. Graff openly going to, or coming from, the

east bedroom (Pet. App C, pp. 15a-16a).

3. The district court found that the circumstances

as they appeared to the officers just prior to their

search of. the east bedroom, including Mrs. Graff’s

statement to the officers that she and respondent occu-

pied the bedroom, reasonably indicated to the officers

that she was a joint occupant of the room; the court

therefore concluded that “just prior to the search, it

reasonably appeared to the searching officers that facts

existed which would render [Mrs.] Graff’s consent [to

the search of the bedroom] binding on [respondent ]”’

(Pet. App. C, p. 14a).

The court held, however, that where consent given

by a third person is relied upon as the justification

for a search, the government must show, not only that

5 A police officer testified that, the afternoon after the search,

Mrs. Marshall told F.B.I. agents that respondent and Mrs. Graff

were married “to the best of my knowledge. * * * But I don't

feel it was any of my business to really ask or pry * * *” (Trans-

cript of proceedings, April 5, 1971, pp. 120-121). However, at

the hearing, Mrs. Marshall testified that she did not think

respondent and Mrs. Graff were married, and had never told

anyone that they were (Supplemental transcript of proceedings,

April 5, 1971, p. 14). .

7

it reasonably appeared to the officers that the person

had authority to consent, but also that the person had

actual authority to permit the search.

In assessing whether the government had shown

that Mrs. Graff and respondent had in fact been joint

occupants of the bedroom, the court expressly disre-

garded, on the ground that they constituted inadmis-

sible hearsay, (1) Mrs. Graff’s statements to the local

officers at the time of the search acknowledging that

she and respondent jointly occupied the bedroom and

shared its dresser, and that the women’s clothing in

the dresser was hers (supra, pp. 3-4) (Pet. App. C, pp.

15a, 16a), (2) Mrs. Graff’s statement to the federal

agents after the search that she and respondent had

been regularly sleeping in the bedroom (supra, p. 5)

(Pet. App. C, p. 15a), and (3) the statements which

Mrs. Graff and respondent had both made, to persons

in the community prior to the search, indicating that

they were husband and wife (supra, pp. 5-6) (tbrd.).

The only evidence on the subject of joint occupancy

considered by the court was, therefore, the evidence

that Mrs. Graff and respondent had lived together for

five months in a one-bedroom Florida apartment just

prior to their taking up residence in the Marshall

home; their oceasional coming from and going to the

east bedroom; the slept-in appearance of the two-

pillow double bed at the time of the search; and the

presence of both men’s and women’s clothing in the

closet and dresser (Pet. App. C, pp. 15a, 16a).

Excluding what it considered inadmissible hearsay,

the court ruled that the government had failed to es-

tablish—to the requisite degree of certainty (see note

8

6, infra)—that' respondent and Mrs. Graff had in fact

jointly oceupied the east bedroom and concluded that

Mrs. Graff had not had actual authority to consent’ to

the search (Pet: App: C,' pp. 14a-16a). The court

therefore suppressed the evidence seized from the bed-

room (Pet. App. C, p. 19a).

~The court of appeals affirmed, holding that the

validity ' of the'search depended on proof of actual

authority to consent, not merely apparent authority

(Pet. App. A, pp. 4a-6a); that the government had

had. ‘the burden of proving: actual authority ‘‘to a

reasonable certainty, by the great weight of the cred-

ible evidence” (Pet. App. A, pp. 6a—7a);° and that

the extrajudicial statements of Mrs. Graff and re-

spondent had been properly excluded from the sup-

pression hearing as hearsay (Pet. App. ’A, p. 7a).

© The: district court, had. stated in its opinion that the burden

of proof borne by the government was proof “to a reasonable

certainty, by the greater weight of the credible evidence” (Pet.

App. C, pp: 10a, 16a ;'emphasis added). In its brief in the court

of appeals, a copy of which is being lodged herewith, the govern-

ment inadvertently misquoted the standard used by the district

court as requiring proof “to a reasonable certainty, by the great

weight of the credible evidence” (pp. 2, 18; emphasis added) and

the court-of appeals, in affirming the suppression order, approved

the formulation that had been misquoted in the government’s brief.

See note 12, infra.

SUMMARY OF ARGUMENT

The courts below properly recognized that either of

two persons, jointly occupying a room may validly

consent to a search of the area subject to their joint

control. It is undisputed that Mrs. Graff, with whose

consent the search here was conducted, told the investi-

gating officers just prior to the search, that she and

respondent jointly occupied the east bedroom, and that

it reasonably appeared to the officers from the totality

of the circumstances confronting them (including

Mrs. Graff’s statement) that such was the fact. It

reasonably appeared to the officers, in other words, as

the courts below properly conceded, that Mrs. Graff

had the authority to permit them to search the room.

The courts erred in, holding that to justify the

search the government was required to prove, in addi-

tion, that Mrs. Graff in fact had this authority—to

prove, in other words, that she was in fact a joint

occupant of the bedroom. The Fourth Amendment

prohibits only “unreasonable’’ searches and seizures.

The test is whether the police action is reasonable

when undertaken. Hence it was sufficient for Fourth

Amendment purposes that the investigating officers

here responded reasonably to the facts as they ap-

peared—in accepting as true the ev idently credible

statement by Mrs. Graff that she and respondent

shared the bedroom and in proceeding with confidence

that they, were validly authorizéd to search it. And,

as we show later, Mrs. Graft did th fact have the vight

4 oe pan 745) ¢

to ‘permit the search. : —

t#4i") artt** ; ;

10

To suppress evidence found in a search because the

police may have made a reasonable mistake as to the

authority of the consenting party to consent to the

search would frustrate legitimate law enforcement

without advancing the interests served by the exclu-

sionary rule. The purpose of the exclusionary rule is

to eliminate an incentive for lawless invasions of

privacy by the police. Application of the rule when it

is conceded that the officers acted en does not

further that objective.

II

If (notwithstanding our primary argument) the

government is required to prove actual cohabitation, the

court of appeals applied an erroneous standard of

proof, The standard the court applied was proof “to

a reasonable certainty, by the great weight of the

credible evidence.” The correct criterion is whether

there has been proof by a preponderance of the evi-

dence—a manifestly less stringent norm.

Ill

Even if the courts below were correct in requiring

the government to prove that Mrs. Graff was in fact as

well as appearance a joint occupant of the bedroom,

they erred in holding inadmissible the out-of-court

statements made by her and respondent indicating

that they were living together as husband and wife.

Reliable evidence, though technically within the

hearsay rule, may properly be considered by a court

sitting without a jury at a suppression hearing. Be-

cause they are ‘“‘the child of the jury system”

11

(Thayer), the technical common law rules of evidence

have no proper place at a hearing in which no jury

participates. As a consequence of his professional

training and detached judicial temperament, a judge

is expected to be able to make proper inferences from

reliable evidence that under strict hearsay rules might

be kept from a jury.

The validity of this submission is supported by the

fact that the proposed new Federal Rules of Evidence

specifically provide that in ruling on admissibility

questions the judge is not bound by the rules of evi-

dence (except those relating to privileges).

Mrs. Graff’s out-of-court statements were reliable.

They were candid, matter-of-fact, and, if not “against

interest”’ in any legally recognized sense, at all events

in no sense self-serving. In addition to being consistent

with one another, furthermore, they were corroborated

by the related evidence which the courts below con-

ceded was admissible. There is, in short, no conceiv-

able reason for not crediting them.

ARGUMENT

I

TO ESTABLISH THE LEGALITY OF THE SEARCH IT SUFFICED

FOR THE GOVERNMENT TO SHOW THAT IT REASONABLY

APPEARED TO THE INVESTIGATING OFFICERS THAT MRS.

GRAFF HAD AUTHORITY AS A JOINT OCCUPANT TO CON-

SENT TO THE SEARCH AND THAT SHE DID IN FACT

CONSENT TO IT.

The court below did not question the strong evi-

dence that Mrs. Graff, who said she shared a room

with the respondent, voluntarily consented to the

12

search made by the police, see pp.3—4, supra. The court,

moreover, positively, found ‘‘that facts. existed * * *

from which the officers could reasonably believe that

* * * Graff * * * had authority to consent to a search

and that [her consent] * * * would be binding upon

the defendant” ‘ (Pet. App. A, pp. 2a-3a). But the court

ruled that the government must prove that Mrs. Graff

did sn fact have “authority to bind defendant” for the

evidence seized to be admissible (Pet. App. A, pp. Ga-

7a) and that the government had failed in that proof

(ibid.) . This holding is erroneous. The requirement that

the government prove the actual authority of a per-

son whe reasonably appears to have authority to con-

sent to a search, and does consent, places a restriction

on. consent searches not required by the Fourth

Amendment or the reasons for the exclusionary rule—

and excludes probative and often definitive evidence

that should be available to the courts.

It is settled that any of several persons sharing the use of a

room, automobile, or even a duffel bag, may validly consent to

a search of it. See, e.g., Frazier v. Cupp, 394 U.S. 731, 740;

Schneckloth v. Bustamonte, sepra, slip op. at p. 27. See also

United States v. Stone, 471 F.2d 170, 173 (C.A. 7), certiorari

denied, April 16, 1973 (No. 72-1042); United States v. Thomp-

son, 421 F. 2d 373, 375-377 (C.A. 5), vacated on other grounds,

400 U.S. 17; United States v. Johnson, 413 F. 2d 1396, 1400

(C.A. 5); United States v. Mackiewicz, 401 F. 2d 219, 223-224

(C.A. 2), certiorari denied, 393 U.S. 923; United States v.

Alloway, 897 F. 2d 105, 108-110 (C.A. 6).

Both. courts below appear mistakenly to have assumed that

the reason the seized evidence is admissible against the absent

13

1. In Schneckloth v. Bustamonte, No. 71-732, de-

cided May 29, 1973, this Court made clear that nothing

in the policy of the Fourth Amendment is designed

to discourage citizens from consenting to searches to

aid in the apprehension of criminals. “Rather,” the

Court said, ‘‘the community has a real interest in en-

couraging consent, for the resulting search may yield

necessary evidence for the solution and prosecution of

crime, evidence that may insure that a wholly inno-

cent person is not wrongly charged with a criminal

offense.” Slip op. at p. 25. “And, unlike those constitu-

tional guarantees that protect a defendant at trial, it

cannot be said every reasonable presumptién ought to

occupant is that the consenting occupant waives the absent oc-

cupant’s Fourth Amendment rights (Pet. App. A, pp. 5a, 6a;

Pet. App. C, pp, 14a, 16a, 18a; Pet. App. E, pp. 29a-30a). This

notion, though occasionally encountered in the decisions relating

to co-occupant consent searches (e.g., Anderson v. United States,

399 F. 2d 753, 756-757 (C.A. 10)), is unsound. A more accurate

analysis is that the consenter has the right to allow the police

to search the premises he occupies and that whatever evidence

is found in that search is evidence found in a lawful search,

admissible against all persons, including the co-occupant. No

question of delegated authority to waive the absent occupant’s

constitutional rights is involved. As noted in Roberts v. United

States, 332 F. 2d 892, 896-897 (C.A. 8), certiorari denied, 380

U.S. 980:

“It is not a question of agency, for a wife should not be held

to have authority to waive her husband’s constitutional rights.

This is a question of the wife’s own rights to authorize entry

into premises where she lives and of which had control.”

See also, United States v. Stone, supra, 471 F. 2d ‘at 173;

United States v. Thompson, supra, 421 F. 2d at 376; United

States v. Airdo, 380 F. 2d 103, 106-107 (C.A. 7), certiorari

denied, 389 U.S. 913; Stein v. United States, 166 F. 2d 851, 855

(C.A. 9), certiorari denied, 334 U.S. 844.

518-068—73—_8

; 14

be indulged against voluntary relinquishment” (ébid.).

As the Fourth Amendment prohibits only unreasonable

searches, and as the exclusionary rule is designed to

help enforce that mandate, the question should be

whether it was unreasonable for the police to make

the search they made in this case and whether any

Fourth Amendment interest ae be ‘served in’ ex-

eluding the evidence.

In conducting an investigation, police officers must

act on the basis of the facts as they appear at the

time. What the Fourth Amendment requires is that

their action be reasonable at the time it is undertaken.

One aspect of the rule is that an entry made without

probable cause cannot be validated by what the search

later turns up. But the reverse of the proposition is

equally sound: a subsequent discovery that the officers

were misled by deceiving appearances does not change

the fact that their action was reasonable.‘ This Court

expressly so recognized in Hill v. California, 401 U.S.

797. In that case the Court sustained the legality of a

search of the defendant's apartment, without a war-

rant or the defendant’s consent, incident to the arrest

of a man who answered the door and whom the police

reasonably but wrongly believed to be the defendant.

In upholding the admissibility of evidence found in

the apartment the Court noted, ‘‘sufficient probability,

not certainty, is the touchstone of reasonableness

under the Fourth Amendment and on the record be-

fore us the officers’ mistake was understandable and

* Here, however, the officers were not misled. Mrs. Graff

Se

thorized them to search.

15

the arrest a reasonable response to the situation facing

them at the time’’ (401 U.S. at 804), Similarly, in the

only: ‘ease we have been able to find involving, like

this 'one,.a factual dispute over the consenting per-

son’s authority with respect to the searched premises,

the California Supreme Court concluded (People v.

Gorg; 45 Cal. 2d. 776, 783):

{Wyjhen as in this case the officers. have acted

in good faith with the consent and at the re-

quest of a home owner in conducting a

search, evidence so obtained cannot be excluded

merely because the officers may have made a

reasonable mistake as to the extent of the

owner’s authority.

See, also, Gurleski v. United States, 405 F. 2d 253,

261 (C.A. 5), certiorari denied, 395 U.S. 981; People

v. Hopper, 268 Cal App. 2d 774, 779.

The reasoning of these cases applies here. It was

sufficient for Fourth Amendment purposes that the

investigating officers responded reasonably to the facts

as they appeared—in accepting as true the evidently

credible statement by Mrs. Graff that she and re-

‘spondent shared the east bedroom, and in accepting her

consent to search as valid.°

* We are not arguing that the searching officer’s mere “good

faith” is sufficient; his belief must be reasonable. Nor do we sug-

gest that in every circumstance the inquiry ends after probing

the searching officer’s state of mind: his good faith belief that

he has a valid warrant will not cure a defect in the underlying

affidavit. But where, as here, there is no suggestion of prior official

misconduct or unreasonable action, it is, we submit, wholly appro-

priate to test the propriety of the searching officer’s conduct by

viewing the situation as itf appeared to him at the time.

Dae led Selesgemdhe Npteatint denned ahineaine

16

Stoner v. California, 376 U.S. 483, relied on by the

court of appeals (Pet. App. A, p. 5a) and by respond-

ent (Resp. to Pet., p. 10), is not to the contrary.

There, #e Court held that as a matter of law a hotel

desk clerk, unless authorized by the occupant of the —

room, cannot consent to a search of a guest’s room.

Since the officers knew that the consenting person was

the clerk and that he was not authorized by the occu-

pant, no question of consent to a search by one rea-

sonably believed to be an occupant was involved. The

Court’s statement that Fou endment rights ‘‘are

not to be eroded * * * unrealistic doctrines of

‘apparent authority’’’ (376 U.S. at 488) must be

read in light of the entirely distinguishable fact-

situation there presented. The comment has no rele-

vance to this case, where the officers justifiably be-

lieved that the person authorizing the search was an

occupant of the premises, because an occupant clearly

has the authority to permit a search, see note 7, supra.

2. Even if it were held that it is not enough for the

police reasonably to believe that they had consent to

search, when the person giving consent is without

actual authority, it does not mechanically follow that

the exclusionary rule should apply. The application of

who consents to the search of premises and argue that this

possibility requires the exclusion of evidence obtained in a

search if the consenter does not in fact have the authority the

police reasonably believed him to have. (Pet. App. A, p. 4a;

Pet. App. C, p. 16a.) Nothing like the posed hypothetical situa-

tion is involved in this case and the resolution of that question

should properly await a case involving those facts. However,

Hill v. California, 401 U.S. 797, 804, strongly supports the

proposition that the reasonable appearance at the time of the

search, and not the later discovery as to identity, would govern.

17

that rule is based on the practical consideration of

preventing unlawful police searches. Mapp v. Ohio,

367 U.S. 643, 656; Elkins v. United States, 364 U.S.

206, 217. In considering the question of the retro-

activity of the exclusionary rule, where the deterrent

effect of the rule could have little play, the Court held

the rule inapplicable. Linkletter y. Walker, 381 U.S.

618, 629, The Court has also refused to apply the rule

Where illegally obtained evidence was used only for

impeachment of a witness. Walder v. United States,

347 U.S. 62. See discussion in the conculTing opinion

of Justice Powell in Schneckloth, supra, slip op. at pp.

18-22. In the present case, the courts below have spe-

cifically found that the police reasonably believed that

they had received a valid consent to search from a

person who had the authority. to give that consent

(see pp. 6, 11-12, supra). It is difficult to see how, as a

practical matter, an exclusion of the evidence obtained

in. a case such as this would prevent police unlawfulness,

for the police reasonably believed that they were act-

ing lawfully, and presumably would so believe in a

future case,

II

THE COURT OF APPEALS APPLIED AN ERRONEOUS STANDARD

OF PROOF IN DETERMINING THAT THE UNITED STATES

HAD NOT SHOWN THAT MRS. GRAFF HAD ACTUAL AU-

THORITY TO PERMIT THE SEARCH.

1, It is undisputed that the government proved that

Mrs. Graff had reasonably appeared to the officers to

be a ¢o-ocewpant. Hence the question of the appropri-

ate standard of proof need not be reached if the Court

18

accepts our principal contention—that it was the situ-

ation as it reasonably appeared to the officers that

controlled the validity of the search. The district court,

however, required proof at the suppression hearing

that Mrs. Graff was in fact a co-habitant of the room.

The test by which the district court appraised the

sufficiency of the government’s evidence on that point

was by inquiring whether it had been proved ‘‘to a

reasonable certainty, by the greater weight of the

credible evidence” (Pet. App. @,, pp. 10a, 16a ; emphasis

added). The court of appeals, on the mistaken assump-

tion that the standard applied by the district court had

been whether Mrs. Graff’s joint occupancy had been

proved “to a reasonable certainty, by the great weight

of the credible evidence” (emphasis added), approved

the latter standard (Pet. App. A, pp. 6a—-7a)." We sub-

mit that standard was erroneous."

The proper criterion of the sufficiency of the proof

as to an issue of fact in a preliminary hearing on the

admissibility of evidence is whether there has been

proof by a preponderance of the evidence. Lego v.

Twomey, 404 U.S. 477. In Lego, this Court rejected a

contention that the voluntariness of a confession of-

fered by the government must be proved beyond a

reasonable doubt. The Court said (404 U.S. at 488 ; foot-

note omitted) :

1° See note 6, supra, p. 8, for the circumstances that had caused

the court of appeals to assume that the standard applied by the

district court had been the one mentioned.

"We concede that the burden was on the government to prove

the warrantless search valid. See Vale v. Louisiana, 399 U.S. 30,

34; Chimel vy. California, 395 U.S. 752, 761; Bumper v. North

Carolina, 391 U.S. 543, 548.

ANE ttn citi

19

[W Je are unconvinced that merely emphasizing

the importance of the values served by exclu-

sionary rules is itself sufficient demonstration

that the Constitution also requires admissibility

to be proved beyond reasonable doubt. Evidence

obtained in violation of the Fourth Amendment

has been excluded from federal criminal trials

for many years. Weeks v. United States, supra.

The same is true of coerced confessions offered

in either federal or state trials. Bram v. United

States, 168 U. S. 532 (1897) ; Brown v. Missis-

sippt, supra. But, from our experience over this

period of time no substantial evidence has accu-

mulated that federal rights have suffered from

determining admissibility by a preponderance

of the evidence. * * * Without good cause, we

are unwilling to expand currently applicable

exclusionary rules * * *,

Thus the court of appeals clearly erred in applying

the strict standard it did to the government’s effort to

show that the challenged evidence had been lawfully

seized.”

'* The government, in reliance on Lego, had urged in its brief

in the court of appeals that the preponderance standard was

the correct one and had asked the court to remand the case to

the district court with directions to reconsider, in the light of

that standard, its finding that the government had not ade-

quately proved Mrs. Graff's actual authority to authorize search

8), that the standard applied by the court had been

proof “to a reasonable certainty, by the great weight of the

credible evidence” (emphasis added). That was, of

20

2. Notwithstanding that the court of appeals’ error

was based on a mistaken assumption as to the stand-

ard applied by the district court, and assuming (as we

do for present purposes) that the trial court’s state-

ment. of the standard was essentially correct (see note

12, supra), the error was nevertheless prejudicial. If

either court had truly employed the correct. standard

(preponderance) in viewing the government’s evi-

dence that Mrs. Graff was in fact a joint eecupant of

the bedroom, it would have, we submit, concluded that

the government’s evidence met, or more than met, the

test. Certainly, the court of appeals may have con-

curred in the district court’s conclusion that the evi-

dence fell short only because it assumed that more

than a. preponderance of the evidence was required to

prove that Mrs. Graff actually oeeupied the room.

It follows, we suggest, that if the Court reaches the

present, issue, remand of the case to the court of ap-

peals would be appropriate to enable that court to re-

consider, in light of the proper standard of proof, the

question whether the government sufficiently -preved

that Mrs. Graff was a joint oeenpant of the bedroom.

This submission is independent of the related question,

standard actually employed by the district court—which it

phrased proof “to a reasonable certainty, by the greater weight

of the credible evidence” (emphasis added) —differs meaning-

fully from the correct standard (preponderance) is less clear.

Cf. the Jury Instructions Committee's, “Comment” accompany-

ing 1 Wisconsin. Board of Circuit, Judges, Wisconsin Jury In-

—Civil 200,-(1972). (the: source of: the standard ap-

ied by. the district court, See-nete-G;-erpea,p8) : “The com-

mittee feels that greater. weight, is an, exact synonym for fair

preponderance, and much more understandable to, the average

juror” {emphasis in original). sad

21 a

discussed next of whether evidence presented by the

government on that issue was improperly disregarded

as hearsay.

IIT

EVEN IF THE COURTS BELOW PROPERLY REQUIRED THE

GOVERNMENT TO PROVE THAT MRS. GRAFF WAS IN FACT

AS WELL AS APPEARANCE A JOINT OCCUPANT OF THE

EAST BEDROOM, THEY ERRED IN HOLDING INADMISSIBLE

THE OUT-OF-COURT STATEMENTS MADE BY HER AND

RESPONDENT INDICATING JOINT OCCUPANCY.

We assume in this Point, arguexdo, as we did-in

Point II, that the government was required to show

that Mrs. Graff was in fact as well as appearance a

joint occupant of the east bedreom in order to prove

the search valid. If the Court accepts our principal

contention—that it was enough that it had reason-

ably appeared to the officers that Mrs. Graff was a

¢Co-occupant—it will have no occasion to consider the

present issue.

The excluded statements consisted of (1) Mrs.

Graff's statements to the investigating officers at the

time of the search that she and respondent jointly

occupied the bedroom and shared its dresser and that

the women’s clothing in the dresser was hers; (2)

her statement to the federal agents following (but on

the same day as) the search that she and respondent

had been sleeping together in the bedroom regularly,

including the early morning hours of that day ;** and

** For the purpose of determining Mrs. Graff's actual author-

ity to consent to the search, there is of course no objection to

looking to evidence unavailable to the officers when they first

22

(3) the statements by both Mrs. Graff and respondent,

made to persons in the community prior to the search,

that they were husband and wife. Supra, p. 7. These

statements were concededly hearsay, and none is read-

ily classifiable under any of the standard exceptions

to the hearsay rule. Nonetheless, we will argue that,

as reliable hearsay, they are admissible at a suppres-

sion hearing before a district judge sitting without a

jury.

A. Reliable hearsay may properly be considered in a suppres-

sion hearing before the court sitting without a jury.

The pretrial suppression hearing was held before a

district judge sitting without a jury. The purpose of

the hearing was to determine whether the money

found in the closet of the east bedroom was admissi-

ble at respondent’s upcoming trial for bank robbery.

The admissibility of that evidence at the bank robbery

trial depended on whether Mrs. Graff, who authorized

the search of the room, had authority to do so; and

that, in turn, depended on whether Mrs. Graff was a

joint occupant of the room with respondent. Mrs.

Graff made several acknowledgments to the searching

officers, and later to F.B.I. agents, that she was a

joint occupant of the room: both Mrs. Graff and re-

spondent also made statements in the community that

entered. Indeed, both courts below properly considered, on this

issue, the physical appearance of the searched room. It would

be otherwise if (as we primarily contend) the correct test is

whether the officers reasonably believed Mrs. Grafff had

authority to consent to the search; in that event, only what was

known to the officers before they undertook the search would

be relevant.

23

they were husband and wife. The district judge ex-

cluded these statements from consideration at. the

suppression hearing, on the ground that they consti-

tuted inadmissible hearsay. We contend that the

judge erred in so doing—for the reason that the tech-

nical common law rules of evidence do not apply at

such a juryless proceeding, :

1. Wigmore declaresy “In preliminary rulings by a

judge on the admissibility of evidence, the ordinary

rules of evidence do not apply.” 5 Wigmore, Evidence,

§ 1385 (3d ed. 1940); emphasis in original. Wig-

more states this principle without citation of sup-

porting case law. The only supporting allusion is a

reference to an earlier portion of his treatise in which

he argues that the ordinary rules of evidence are not

generally regarded as applicable at ex parte, inter-

locutory, extradition, or disbarment proceedings be-

fore the court because “there is no jury [in such

proceedings], and the rules of Evidence are, as rules,

traditionally associated with a trial by jury.” 1 Wig-

more, Evidence, § 4 (3d ed. 1940).

The pertinent historical case law on the applica-

bility of the rules of evidence to preliminary hearings

on admissibility of evidence is, as McCormick notes,

“seattered and inconclusive.” McCormick, Evidence

§53, pp. 123-124, n. 8 (1954).* MeCormick observes

** Substantially the same conclusion was reached in an earlier

and more exhaustive study, in which the early English and

more recent American authorities were examined in some detail.

Maguire-and Epstein, Rules of Evidence in Preliminary. Con-

troversies as to Admissibility, 36 Yale L.J. 1101. (1927). As

regards the English case authorities, the study concluded that

Phipson, the English commentator on the law of evidence, had

24

that the Amerfean authorities “suggest that the judges

trial and appellate give primacy hére to habit rather

than to practical adaptation to the situation, and tend

to require the observance of jury-trial rules of evi-

dence [at such hearings].” MeCormick, supra, p. 124,

n. 8. .

But if Wigmore’s statement is too categorical from

a historical viewpoint, it is unéxceptionable as a state-

ment of principle. As “the child of the jury system”

(Thayer, A Preliminary Treatise on Evidence at the

Common Law 266 (1898)), the technical common law

rules of evidence have no proper place at a hearing

in which no jury has a role. “[O]ur law of evidence,”

Thayer noted, *‘is a piece of illogical, but by no means

irrational, patchwork; not at all to be admired, nor |

easily to be found intelligible, except as a product of

the jury system, as the outcome of a quantity of

rulings by sagacious lawyers, while settling practical

questions, in presiding over courts where ordinary,

untrained citizens’ are acting as judges of fact.’’

Td. at p. 509.

Since the purpose of rules of evidence is to seek

to prevent “ordinary, untrained citizens’’ from mak-

summed up the situation more accurately than Wigmore when

he noted, more cautiously, that. “the better opinion is” that such

sdinisatbilits hearings are not subject to the strict rules of evi-

dence. Maguire and Epstein, supra, 36 Yale L.J. at 1101, 1111--

1112: Cf: Phipson, Evidence, para. 24, p. 16 (10th ed. 1963).

Phipson cites in this connection Knight v. Campbell (an 1848

nist prius decision by Chief Baron Pollock, the only reference

to which in print occurs in 1 Taylor, Evidence, $517, rote 7

(9th ed. 1897)) and Duke of Beaufort v. Crawshay, LR. 1

C.P. 699 (1866). The decisions referred to are discussed in

Maguire ‘and Epstein, supra, 36 Yrle_LJ. at 1110-2111.

25

ing unwarranted inferences from otherwise probative

material,” it is evident that the reason for the rules

ceases when a judge alone is deciding the issue. As a

consequence of professional training and detached

judicial temperament, a judge is expected to be on the

alert against the kind of unwarranted inference-

making which the evidence rules are designed to

prevent. MeCormick is right, therefore, when he

states:

Should the exclusionary law of evidence, “the

- child of the jury system” in Thayer’s phrase, be

applied to this hearing before the judge? Sound

sense backs the view that it should not, and that

the judge should be empowered to hear any

relevant evidence, such as affidavits or other

reliable hearsay.

Op. cit. supra, pp. 123-124, n. 8.

This Court has noted that, absent an express statu-

tory requirement to the contrary, “‘it has long been

settled that the technical rules for the exclusion of

evidence applicable in jury trials do not apply to pro-

ceedings before federal administrative agencies * * *,”

Opp Cotton Mills y. Administrator, 312 U.S. 126, 155

and cases cited." Cf. Morrissey v. Brewer, 408 US.

* The rules of evidence “operate to exclude relevant evi-

dence.” McCormick, supra, § 53. “And chiefly, it [the law of

evidence] determines, as among probative matters, * * * what

classes of things shall not be received. This excluding function

is the characteristic one in our law of evidence”, (emphasis

added) (Thayer, supra, at p. 264).

** Bridges v. Wizon, 326 U.S, 135, 153-154, cited by the court

of appeals (Pet. App. A, p. 7a), is not. to the contrary. There,

as this Court noted, the hearsay statements the introduction of

which was held to have rendered the deportation proceeding

unfair were admitted in violation of regulations of the Immi-

471, 489 (evidence rules not applicable to parole revo-

cation hearings). No more, it is submitted, should they

apply to juryless eourt proceedings.

2..We do not suggest, of course, that none of the

rules of evidence should apply at such proceedings.

Certain of the rules—those involving privileges of

various kinds are examples—are based on reasons of

policy that have no relation to the objective of guard-

ing untrained laymen against the dangers of errone-

ous factfinding. Cf. 8 Wigmore, Evidence, § 2175 ff.

(MeNaughton rev. 1961).'Manifestly there is no rea-

son to relax the rules of that type merely because no

jury is present." But we do suggest that reliable hear-

gration gration and N aturalization Service (326 U.S. at 150-153). More-

over, the Court in Beidges. treating the deportation proceeding

as in substance a criminal ¢riel, and noting that defendants

cannot be conricted on the basis of hearsay, that it

would be equally inappropriate to permit deportati such

evidence (326 U.S, at 153-154). That aspect of the Bridges

rationale is, of course, inapposite here, since there is no question

here of the admissibility of hearsay at petitioner's trial—but

only of its admissibility at a pretrial hearing concerning the

admissibility at trial of other evidence.

*See Maguire and Epstein, supra, 36 Yale L. J. at 1101-

1102:

“None of the quotations above [quotations from Wigmore and

other commentators favoring the non-applicability of the ordi-

nary rules of evidence to juryless admissibility hearings] should

be taken to mean that every rule of evidence goes by the board

in these preliminary judicial inquiries. The mere shift from

ultimate to introductory questions and from jury to judge fur-

nishes no cause for discarding such doctrines as the marital

privileges and incompetencies, the privilege against self-incrimi-

nation, the privilege protecting state secrets, or the lawyer-client

privilege. All these doctrines are supposed to guard interests

which would suffer as greatly from forced public revelations to

> es

- mnissibility of evidence at the trial proper.

27

Say, even if it falls within no standard exception to

the hearsay rule, should be admissible in non-jury

suppression hearings, to be accorded such weight as,

in the cireumstances, it merits. Cf. Chambers v. Missis-

sippt, 410 U.S. 284." In other words, we contend it

was error for the courts below to hold the out-of-court

statements involved here to be inadmissible simply

because they involved hearsay." That the excluded

statement were reliable is shown infra (pp. 28-29).

3. That the rule we urge is sound is attested, finally,

by the fact that its substance is incorporated in one of

a judge as from like revelations to a jury, But this shift does

furnish good cause for taking unconventional short cuts through

the hearsay rule and other doctrines intended wholly or princi-

pally to guard against erroneous findings of fact in the very

trial.” (Emphasis in original; footnotes omitted.)

“In Chambers this Court held that it was a denial of due

process in the circumstances of that case to exclude reliable

hearsay offered by the defendant at a criminal trial (confessions

by one not on trial, made under circumstances suggesting they

were trustworthy, to the offense charged). If to exclude trust-

worthy hearsay from consideration by the jury can in some in-

stances be not only erroneous but fatally so, it would appear to

follow a fortiori that trustworthy hearsay should be admissible

in the court’s discretion at a hearing in which no jury partici-

pates,

** Whether any relaxation of the evidence rules in general (or

of the hearsay rule in particular) may, or should, be permitted

where the court sits as the trier of the ultimate facts (as at a

jury-waived trial) need not be considered in this case. Cf. Note,

Applicability of Rules of Evidence Where the Judge is the

Trier of Facts in an Action at Law, 42 Warv. L. Rev. 258

(1928). Our contention as to the permissibility of such relaxa-

tion is limited to pretrial and intra-trial hearings as to the ad-

28

the‘ proposed new Federal Rules of Evidence.” Rule

104(a) specifically provides in relevant part:

"Preliminary questions concerning * * * the

admissibility of evidence shall be determined by

the judge * * *. In making his determination

he is not bound by the rules of evidence except

_ those with respect to privileges.

Thus this Court, in proposing these Rules to Congress,

has endorsed the substance of the precise contention

the government here makes.”

B. The hearsay involved here was reliable.

That Mrs. Graff's out-of-court acknowledgements

were reliable is apparent from the circumstances in

which they were made.” The statements were candid,

* The Rules were originally scheduled to have become effec-

tive on July 1, 1973. Under Pub. L, 93-12, 87 Stat. 9, signed by

the President on March 30, 1973, the effectiveness of the rules is

indefinitely suspended until further affirmative action by

\

* That the Court’s endorsement is in the form of a proposed -

statute-type Rule, to take effect in the future, is no obstacle tg

the Court's adoption of the substance of the Rule as the app

priate rule for decision of this case. The legal precedents in

the field are scattered and inconclusive, as noted earlier, and

the proposed new Rule is merely the sanctioning, with proposed

statutory force, of a procedure whose justification is rooted in

* Neither court below suggested that they were unreliable.

Nor has respondent done so at any stage of the proceedings.

All have taken the position that the statements were inadmis-

sible simply because they were technically hearsay.

matter-of-fact, and, if-not:“against interest” in any

‘usual or legally recognized sense, at all events in no

sense self-serving. When in response to the investigat-

ing officers’ inquiries Mrs. Graff stated that she occu-

pied the east bedroom with respondent (a man to

whom she was not married and whom she had just

observed being arrested, see A. 19), there is, it is sub-

mitted, no rational basis for viewing the statement as

other than the truth. The same is true of her acknowl-

edgements a moment later—after she had led the offi-

cers to the bedroom and consented to its search—that

she and respondent shared the room’s dresser and that

the women’s clothing in it was hers. Her statements to

the F.B.I. agents later the same day, acknowledging

that she and respondent had been sleeping together

regularly in the bedroom, were similarly and equally

trugtworthy. The acknowledgements, moreover, being

consistent as well as candid, were corroborative of

one another. Cf. Chambers v. Mississippi, supra, 410

U.S. at 300. In addition, all were corroborated by the

statements which Mrs. Graff and respondent had both

made to persons in the community, prior to the search,

indicating that they were husband and wife (supra,

pp. 5-6)—as well as by the evidence (non-declaratory in

character) which the district court did consider in

finding that the couple had cohabited at least “at

times” in the bedroom (Pet. App. C, pp. 15a-16a; see

supra, pp. 4-6). The excluded statements, in short, .

were made in such circumstances as to provide unusu-

ally strong assurances of reliability.

30 :

For the reasons stated, it is respectfully submitted

that the judgment of the court of appeals should be

reversed.”

Rosert H. Bork, |

. Solicitor General.

Henry E. Perersen,

Assistant Attorney General.

Harry R. Sacuse,

ALAN A. TUTTLE,

Assistants to the Solicitor General.

Pir R. MonaHan,

Attorney.

Aveust 1973.

** If the Court should sustain the government's principal con-

tention (Point I, supra, pp. 11-17), the suppression order should

be ordered vacated insofar as it pertains to the seized $4,995

(the only item whose suppression is here challenged) and the

case remanded to the district court for consideration of the

question—not previously reached by it—whether the search was

valid in the absence of advice to Mrs. Graff by the investigating

officers that she was not obliged to consent to it (see Pet. App.

C, p. 17a; note 2, supra). In making that determination, the

court would of course be bound by this Court’s holding in

Schneckloth v. Bustamonte, No. 71-732, decided May 29, 1973.

If the Court should reverse on the ground that the court below

applied an erroneous standard of proof, remand to that court—

for reconsideration, in light of the proper standard of proof,

of whether the government had sufficiently proved that Mrs.

Graff was a joint occupant of the bedroom—would be appro-

priate, If the reversal were based on the ground of erro-

neous exclusion of the out-of-court statements of Mrs. Graff and

remand to the district court, for reappraisal of the

sufficiency of the proof of joint occupancy in light of that evi-

dence, would be indicated.

U.S. GOVERNMENT PRINTING OFFICE: 1973