Criminal Procedure, Pages 247–252

Schneckloth v. Bustamonte

Supreme Court of the United States, 1973


Police stopped a car respondent was riding in for a headlight and license plate light being out. The officer asked the six occupants to step out of the car and to allow police to search the car. One of the passengers whose brother owned the car said, "Sure, go ahead," so the police did so with his help. Under the left rear seat, the officers found three stolen checks, for which respondent was arrested and charged.

Procedural History:

  • The trial court denied respondent's motion to suppress the evidence, and he was convicted.

  • The California Court of Appeal affirmed.

  • The Supreme Court of California denied review.

  • The district court denied respondent a writ of habeas corpus.

  • LexisNexis IconWestLaw LogoGoogle Scholar LogoPage 221–222 (not in casebook)

    On appeal, the Court of Appeals for the Ninth Circuit . . . set aside the District Court's order. The appellate court reasoned that a consent was a waiver of a person's Fourth and Fourteenth Amendment rights, and that the State was under an obligation to demonstrate, not only that the consent had been uncoerced, but that it had been given with an understanding that it could be freely and effectively withheld. Consent could not be found, the court held, solely from the absence of coercion and a verbal expression of assent.


What must the prosecution prove to demonstrate that consent was voluntary?


  • Requiring a subjective knowledge of the right to refuse consent would make showing voluntary consent almost impossible. A defendant could just not testify that he knew he could refuse to consent, and the prosecution would usually have no way to prove otherwise.

  • Requiring advising suspects of their right to refuse consent beforehand has been almost universally repudiated by courts. It would be impractical to impose such a requirement on something so informal and unstructured as searches. The Court has refused to extend the need for warnings such as in Miranda to consent searches.

  • The Constitution requires the waiver of a right to be knowing and intelligent within the context of a criminal trial, but this does not apply to consenting to a search before trial. This case concerns a different kind of right than those potentially waived at trial.


Whether consent was voluntary or coerced can only be determined by analyzing all the circumstances of such consent.


LexisNexis IconWestLaw LogoGoogle Scholar LogoPage 251

[W]hen the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.

Dissenting Opinions:

  • Brennan: One cannot meaningfully waive a constitutional right without being aware of its existence. Common sense does not support the Court's conclusion.

  • Marshall: One must know that a decision exists to have the capacity to choose an option. One cannot waive his constitutional right without knowing that he has the right. There's no reason consenting to a search should warrant less scrutiny than waiving any other right. The majority mischaracterizes and misapplies prior cases. Consent should obviously require a knowing choice.

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