Petitioner was tried for rape in North Carolina, an offense
punishable by death unless the jury recommends life imprisonment.
The prosecution was permitted to challenge for cause all
prospective jurors who stated that they were opposed to capital
punishment or had conscientious scruples against imposing the death
penalty. A rifle which was introduced at the trial was obtained by
a search of petitioner's grandmother's house, where he resided.
Four officers appeared at the home, announced that they had a
warrant to search it, and were told by the owner to "[g]o ahead."
At the hearing on a motion to suppress, which was denied, the
prosecutor stated that he did not rely on a warrant to justify the
search, but on consent. The jury found petitioner guilty, but
recommended life imprisonment, and the State Supreme Court
affirmed.
Held:
1. Petitioner has adduced no evidence to support his claim that
a jury from which those who are opposed to capital punishment or
have conscientious scruples against imposing the death penalty are
excluded for cause is necessarily "prosecution prone," warranting
reversal of his conviction for denial of his Sixth and Fourteenth
Amendment rights to an impartial jury.
Witherspoon v. Illinois,
ante, p.
391 U. S. 510. P.
391 U. S.
545.
2. A search cannot be justified as lawful on the basis of
consent when that "consent" has been given only after the official
conducting the search has asserted that he possesses a warrant;
there is no consent under such circumstances. Pp.
391 U. S.
546-550.
3. Because the rifle, which was erroneously admitted into
evidence, was plainly damaging against petitioner, its admission
was not harmless error.
Chapman v. California,
386 U. S. 18. P.
391 U. S.
550.
270 N.C. 521,
155 S.E.2d
173, reversed and remanded.
Page 391 U. S. 544
MR. JUSTICE STEWART delivered the opinion of the Court.
The petitioner was brought to trial in a North Carolina court
upon a charge of rape, an offense punishable in that State by death
unless the jury recommends life imprisonment. [
Footnote 1] Among the items of evidence introduced
by the prosecution at the trial was a .22-caliber rifle allegedly
used in the commission of the crime. The jury found the petitioner
guilty, but recommended a sentence of life imprisonment. [
Footnote 2] The trial court-imposed
that sentence, and the Supreme Court of North Carolina affirmed the
judgment. [
Footnote 3] We
granted certiorari [
Footnote 4]
to consider two separate constitutional claims pressed
unsuccessfully by the petitioner throughout the litigation in the
North Carolina courts. First, the petitioner argues that his
constitutional right to an impartial jury was violated in this
capital case when the prosecution was permitted to challenge for
cause all prospective jurors who stated that they were opposed to
capital punishment or had conscientious
Page 391 U. S. 545
scruples against imposing the death penalty. Secondly, the
petitioner contends that the .22-caliber rifle introduced in
evidence against him was obtained by the State in a search and
seizure violative of the Fourth and Fourteenth Amendments.
I
In
Witherspoon v. Illinois, ante, p.
391 U. S. 510, we
have held that a death sentence cannot constitutionally be executed
if imposed by a jury from which have been excluded for cause those
who, without more, are opposed to capital punishment or have
conscientious scruples against imposing the death penalty. Our
decision in
Witherspoon does not govern the present case,
because here, the jury recommended a sentence of life imprisonment.
The petitioner argues, however, that a jury qualified under such
standards must necessarily be biased as well with respect to a
defendant's guilt, and that his conviction must accordingly be
reversed because of the denial of his right under the Sixth and
Fourteenth Amendments to trial by an impartial jury.
Duncan v.
Louisiana, ante, p.
391 U. S. 145;
Turner v. Louisiana, 379 U. S. 466,
379 U. S.
471-473;
Irvin v. Dowd, 366 U.
S. 717,
366 U. S.
722-723. We cannot accept that contention in the present
case. The petitioner adduced no evidence to support the claim that
a jury selected as this one was is necessarily "prosecution prone,"
[
Footnote 5] and the materials
referred to in his brief are no more substantial than those brought
to our attention in
Witherspoon. [
Footnote 6] Accordingly, we decline to reverse the
judgment of conviction upon this basis.
Page 391 U. S. 546
II
The petitioner lived with his grandmother, Mrs. Hattie Leath, a
66-year-old Negro widow, in a house located in a rural area at the
end of an isolated mile-long dirt road. Two days after the alleged
offense, but prior to the petitioner's arrest, four white law
enforcement officers -- the county sheriff, two of his deputies,
and a state investigator -- went to this house and found Mrs. Leath
there with some young children. She met the officers at the front
door. One of them announced, "I have a search warrant to search
your house." Mrs. Leath responded, "Go ahead," and opened the door.
In the kitchen the officers found the rifle that was later
introduced in evidence at the petitioner's trial after a motion to
suppress had been denied.
At the hearing on this motion, the prosecutor informed the court
that he did not rely upon a warrant to justify the search, but upon
the consent of Mrs. Leath. [
Footnote 7] She testified at the hearing, stating, among
other things:
"Four of them came. I was busy about my work, and they walked
into the house and one of them walked up and said, 'I have a search
warrant to search your house,' and I walked out and told them to
come on in. . . . He just come on in and said he had a warrant to
search the house, and he didn't
Page 391 U. S. 547
read it to me or nothing. So, I just told him to come on in and
go ahead and search, and I went on about my work. I wasn't
concerned what he was about. I was just satisfied. He just told me
he had a search warrant, but he didn't read it to me. He did tell
me he had a search warrant."
"
* * * *"
". . . He said he was the law and had a search warrant to search
the house, why I thought he could go ahead. I believed he had a
search warrant. I took him at his word. . . . I just seen them out
there in the yard. They got through the door when I opened it. At
that time, I did not know my grandson had been charged with crime.
Nobody told me anything. They didn't tell me anything, just picked
it up like that. They didn't tell me nothing about my grandson.
[
Footnote 8]"
Upon the basis of Mrs. Leath's testimony, the trial court found
that she had given her consent to the search, and
Page 391 U. S. 548
denied the motion to suppress. [
Footnote 9] The Supreme Court of North Carolina approved
the admission of the evidence on the same basis. [
Footnote 10]
The issue thus presented is whether a search can be justified as
lawful on the basis of consent when that "consent" has been given
only after the official conducting the search has asserted that he
possesses a warrant. [
Footnote
11] We hold that there can be no consent under such
circumstances.
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. [
Footnote 12] This burden cannot be
discharged by
Page 391 U. S. 549
showing no more than acquiescence to a claim of lawful
authority. [
Footnote 13] A
search conducted in reliance upon a warrant cannot later be
justified on the basis of consent if it turns out that the warrant
was invalid. [
Footnote 14]
The result can be no different when it turns out that the State
does not even attempt to rely upon the validity of the warrant,
Page 391 U. S. 550
or fails to show that there was, in fact, any warrant at all.
[
Footnote 15]
When a law enforcement officer claims authority to search a home
under a warrant, he announces in effect that the occupant has no
right to resist the search. The situation is instinct with coercion
-- albeit colorably lawful coercion. Where there is coercion, there
cannot be consent.
We hold that Mrs. Leath did not consent to the search, and that
it was constitutional error to admit the rifle in evidence against
the petitioner.
Mapp v. Ohio, 367 U.
S. 643. Because the rifle was plainly damaging evidence
against the petitioner with respect to all three of the charges
against him, its admission at the trial was not harmless error.
Chapman v. California, 386 U. S. 18.
[
Footnote 16]
Page 391 U. S. 551
The judgment of the Supreme Court of North Carolina is,
accordingly, reversed, and the case is remanded for further
proceedings not inconsistent with this opinion.
It is so ordered.
MR. JUSTICE DOUGLAS joins Part II of the opinion of the Court.
Since, however, the record shows that 16 of 53 prospective jurors
were excused for cause because of their opposition to capital
punishment, he would also reverse on the ground that petitioner was
denied the right to trial on the issue of guilt by a jury
representing a fair cross-section of the community.
Witherspoon
v. Illinois, ante at
391 U. S. 523
(separate opinion). Under North Carolina law, rape is punishable by
death unless the jury recommends life imprisonment. N.C.Gen.Stat. §
14-21 (1953). But an indictment for rape includes the lesser
offense of an assault with intent to commit rape, and the court has
the duty to submit to the jury the lesser degrees of the offense of
rape which are supported by the evidence.
State v. Green,
246 N.C. 717,
100 S.E.2d
52 (1957).
See N.C.Gen.Stat. §§ 15-169, 15-170 (1953).
These include assault with intent to commit rape, for which the
range of punishment is one to 15 years' imprisonment (N.C.Gen.Stat.
§ 14-22), and assault (N.C.Gen.Stat. § 14-33). In the instant case,
the trial judge did, in fact, charge the jury with respect to these
lesser offenses.
[
Footnote 1]
"Every person who is convicted of ravishing and carnally knowing
any female of the age of twelve years or more by force and against
her will, or who is convicted of unlawfully and carnally knowing
and abusing any female child under the age of twelve years, shall
suffer death: Provided, if the jury shall so recommend at the time
of rendering its verdict in open court, the punishment shall be
imprisonment for life in the State's prison, and the court shall so
instruct the jury."
N.C.Gen.Stat. § 14-21 (1953).
[
Footnote 2]
The petitioner was also convicted upon two charges of felonious
assault and sentenced to consecutive 10-year prison terms.
[
Footnote 3]
270 N.C. 521,
155 S.E.2d
173.
[
Footnote 4]
389 U.S. 1034.
[
Footnote 5]
He did submit affidavits to the North Carolina Supreme Court
referring to studies by W. C. Wilson and F. J. Goldberg,
see
Witherspoon v. Illinois, ante at
391 U. S. 517,
n. 10. The court made no findings with respect to those studies,
and did not mention them in its opinion.
[
Footnote 6]
In addition to the materials mentioned in
Witherspoon,
ante at
391 U. S. 517,
n. 10, the petitioner's brief in this Court cites in unpublished
dissertation by R. Crosson, An Investigation Into Certain
Personality Variables Among Capital Trial Jurors (Western Reserve
University, January 1966), involving a sample of 72 jurors in
Ohio.
[
Footnote 7]
"THE COURT: There is a motion here that says the property [was]
seized against the will of Mrs. Hattie Leath and without a search
warrant. Now, the question is, are we going into the search
warrant?"
"MR. COOPER: The State is not relying on the search
warrant."
"THE COURT: Are you stating so for the record?"
"MR. COOPER: Yes, sir."
[
Footnote 8]
She also testified at another point:
"I had no objection to them making a search of my house. I was
willing to let them look in any room or drawer in my house they
wanted to. Nobody threatened me with anything. Nobody told me they
were going to hurt me if I didn't let them search my house. Nobody
told me they would give me any money if I would let them search. I
let them search, and it was all my own free will. Nobody forced me
at all."
"
* * * *"
"I just give them a free will to look because I felt like the
boy wasn't guilty."
The transcript of the suppression hearing comes to us from North
Carolina in the form of a narrative;
i.e., the actual
questions and answers have been rewritten in the form of continuous
first person testimony. The effect is to put into the mouth of the
witness some of the words of the attorneys. In the case of an
obviously compliant witness like Mrs. Leath, the result is a
narrative that has the tone of decisiveness but is shot through
with contradictions.
[
Footnote 9]
"The Court finds that from the evidence of Mrs. Hattie Leath
that it is of a clear and convincing nature that she, the said Mrs.
Hattie Leath, voluntarily consented to the search of her premises,
as is more particularly set forth in her evidence, and that that
consent was specifically given, and is not the result of coercion
from the officers."
[
Footnote 10]
That court also stated:
"The fact that [the search] did reveal the presence of the
guilty weapon . . . justifies the search. . . . [The petitioner's]
rights have not been violated. Rather, his wrongs have been
detected."
270 N.C. at 530-531, 155 S.E.2d at 180.
Any idea that a search can be justified by what it turns up was
long ago rejected in our constitutional jurisprudence. "A search
prosecuted in violation of the Constitution is not made lawful by
what it brings to light. . . ."
Byars v. United States,
273 U. S. 28,
273 U. S. 29.
See also United States v. Di Re, 332 U.
S. 581,
332 U. S. 595;
Henry v. United States, 361 U. S. 98,
361 U. S.
103.
[
Footnote 11]
Mrs. Leath owned both the house and the rifle. The petitioner
concedes that her voluntary consent to the search would have been
binding upon him. Conversely, there can be no question of the
petitioner's standing to challenge the lawfulness of the search. He
was the "one against whom the search was directed,"
Jones v.
United States, 362 U. S. 257,
362 U. S. 261,
and the house searched was his home. The rifle was used by all
members of the household, and was found in the common part of the
house.
[
Footnote 12]
Wren v. United States, 352 F.2d 617;
Simmons v.
Bomar, 349 F.2d 365;
Judd v. United States, 89
U.S.App.D.C. 64, 190 F.2d 649;
Kovach v. United States, 53
F.2d 639.
[
Footnote 13]
See, e.g., Amos v. United States, 255 U.
S. 313,
255 U. S. 317;
Johnson v. United States, 333 U. S.
10,
333 U. S. 13;
Higgins v. United States, 93 U.S.App.D.C. 340, 209 F.2d
819;
United States v. Marra, 40 F.2d
271;
MacKenzie v. Robbins, 248 F.
Supp. 496.
[
Footnote 14]
"Orderly submission to law enforcement officers who, in effect,
represented to the defendant that they had the authority to enter
and search the house, against his will if necessary, was not such
consent as constituted an understanding, intentional and voluntary
waiver by the defendant of his fundamental rights under the Fourth
Amendment to the Constitution."
United States v. Elliott, 210 F.
Supp. 357, 360.
"One is not held to have consented to the search of his premises
where it is accomplished pursuant to an apparently valid search
warrant. On the contrary, the legal effect is that consent is on
the basis of such a warrant, and his permission is construed as an
intention to abide by the law, and not resist the search under the
warrant, rather than an invitation to search."
Bull v. Armstrong, 254 Ala. 390, 394,
48 So. 2d
467, 470.
"One who, upon the command of an officer authorized to enter and
search and seize by search warrant, opens the door to the officer
and acquiesces in obedience to such a request, no matter by what
language used in such acquiescence, is but showing a regard for the
supremacy of the law. . . . The presentation of a search warrant to
those in charge at the place to be searched, by one authorized to
serve it, is tinged with coercion, and submission thereto cannot be
considered an invitation that would waive the constitutional right
against unreasonable searches and seizures, but rather is to be
considered a submission to the law."
Melo v. State, 197 Ind. 16, 24, 164 N.E. 93, 96.
See also Salata v. United States, 286 F. 125;
Brown
v. State, 42 Ala.App. 429, 167 So. 2d 281;
Mattingly v.
Commonwealth, 199 Ky. 30, 250 S.W. 105.
Cf. Gibson v.
United States, 80 U.S.App.D.C. 81, 149 F.2d 381;
Naples v.
Maxwell, 271 F.
Supp. 850;
Atwood v. State, 44 Okla.Cr. 206, 280 P.
319;
State v. Watson, 133 Miss. 796, 98 So. 241.
[
Footnote 15]
During the course of the argument in this case, we were advised
that the searching officers did, in fact, have a warrant. But no
warrant was ever returned, and there is no way of knowing the
conditions under which it was issued, or determining whether it was
based upon probable cause.
[
Footnote 16]
It is suggested in dissent that,
"[e]ven assuming . . . that there was no consent to search and
that the rifle . . . should not have been admitted into evidence, .
. . the conviction should stand."
This suggestion seems to rest on the "horrible" facts of the
case, and the assumption that the petitioner was guilty. But it is
not the function of this Court to determine innocence or guilt,
much less to apply our own subjective notions of justice. Our duty
is to uphold the Constitution of the United States.
In view of the discursive factual recital contained in the
dissenting opinion, however, an additional word may be in order.
There can be no doubt that the crimes were grave and shocking.
There can be doubt that the petitioner was their perpetrator. The
crimes were committed at night. When, at first, the victims
separately viewed a lineup that included the petitioner, each of
the victims identified the same man as their assailant. That man
was not the petitioner. Later, the victims together viewed another
lineup, and every man in the lineup was made to speak his name for
"voice identification." This time, the victims identified the
petitioner as their assailant. At the time of the lineups, a local
newspaper had reported that a man named Wayne Bumper was being held
by the sheriff as the "prime suspect" in the case, and at least one
of the victims knew of that fact. Earlier, both victims had been
shown a collection of photographs. One victim identified a picture
of the petitioner; the petitioner's name was written on the back of
the photograph.
MR. JUSTICE HARLAN, concurring.
While I join in the judgment of the Court and in Part II of its
opinion, I am prompted to add a brief note.
Page 391 U. S. 552
I share, as I am sure every member of the majority does, MR.
JUSTICE BLACK's abhorrence of the brutal crime of which petitioner
stands convicted. To avoid any misapprehension, I wish to make it
perfectly clear that reversal of this conviction is not a "penalty"
imposed on the State for infringement of federal constitutional
rights. Reversal by this Court results, as always, only from a
decision that petitioner was not constitutionally proved guilty,
and hence there is no legally valid basis for imposition of a
penalty upon him.
In determining whether a criminal defendant was convicted
"according to law," the test is not, and cannot be, simply whether
this Court finds credible the evidence against him. Crediting or
discrediting evidence is the function of the trier of fact, in this
case a jury. The jury's verdict is a lawful verdict, however, only
if it is based upon evidence constitutionally admissible. When it
is not, as it is not here, reversal rests on the oldest and most
fundamental principle of our criminal jurisprudence -- that a
defendant is entitled to put the prosecution to its lawful
proof.
The evidence against petitioner consisted in part of a gun that
he alleged was unlawfully taken from the home of Mrs. Leath, where
petitioner was living. The State contended that Mrs. Leath had
consented to the search of her home. However, this "consent" was
obtained immediately after a sheriff told Mrs. Leath that he had a
search warrant, that is, that he had a lawful right to enter her
home with or without consent. Nothing Mrs. Leath said in response
to that announcement can be taken to mean that she considered the
officers welcome in her home with or without a warrant. What she
would have done if the sheriff had not said he had a warrant is, on
this record, a hypothetical question about an imaginary situation
that Mrs. Leath never faced.
Page 391 U. S. 553
Of course, if the officers had a valid search warrant, no
consent was required to make the search lawful. There was a search
warrant in this case, and it remains possible that this warrant was
issued under circumstances meeting all the requirements of the
Federal Constitution. Consequently, if this were a situation where
a state court had simply chosen the wrong line of constitutional
analysis of this search, I would vote to remand the case to give
the prosecution an opportunity to justify the search on proper
grounds. However, as noted by the Court, the prosecution here
explicitly and repeatedly renounced any reliance on the warrant.
Like all other parties to lawsuits, a prosecutor has an obligation
to the courts (including this Court) and to other parties to
present its claims at the earliest appropriate time, and to create
an adequate record.
Cf. Ciucci v. Illinois, 356 U.
S. 571,
356 U. S. 573
(separate note of Mr. Justice Frankfurter and MR. JUSTICE
HARLAN).
Finally, if I were persuaded that the admission of the gun was
"harmless error," I would vote to affirm, and if I were persuaded
that it was arguably harmless error, I would vote to remand the
case for state consideration of the point. But the question cannot
be whether, in the view of this Court, the defendant actually
committed the crimes charged, so that the error was "harmless" in
the sense that petitioner got what he deserved. The question is
whether the error was such that it cannot be said that petitioner's
guilt was adjudicated on the basis of constitutionally admissible
evidence, which means, in this case, whether the properly
admissible evidence was such that the improper admission of the gun
could not have affected the result.
I do not think this can be said here. The critical question was
the identity of the perpetrator of these crimes. The State
introduced eyewitness identification of petitioner by his two
victims, and a gun with which there
Page 391 U. S. 554
was evidence these victims were shot, together with testimony
that it had been found in petitioner's place of abode. The jury
could, of course, have found the testimony of the victims credible
beyond a reasonable doubt, and convicted petitioner on this basis
alone. But it might well not have. The addition of a tangible
cross-check linking petitioner with the crime can hardly be said,
from the judicial vantage point, to have been harmless
surplusage.
MR. JUSTICE BLACK, dissenting.
I
This case, like
Witherspoon v. Illinois, ante, p.
391 U. S. 510,
decided today, was brought to this Court primarily to decide the
question whether the constitutional rights of a criminal defendant
are violated when prospective jurors who state they are opposed to
capital punishment or who have conscientious scruples against
imposing the death penalty are excluded for cause. As the Court in
Witherspoon limited its holding to the question of
punishment, and not of guilt, [
Footnote
2/1] the jury issue became moot in this case, since petitioner
had been sentenced to life imprisonment. Ironically, however, this
case now becomes about as good an example as can be found of the
fallacious assumption of the holding in
Witherspoon. For
the
Witherspoon decision rests on the premise that a jury
"[c]ulled of all who harbor doubts about the wisdom of capital
punishment" is somehow prosecution-prone, callous or even lacking
in "charity." [
Footnote 2/2] Yet
the jury in this case, from which had been excluded all persons who
stated they were opposed to the death penalty, unanimously
recommended life imprisonment in a case where, but for their
recommendation, the death sentence would
Page 391 U. S. 555
have been automatic. [
Footnote
2/3] And this is a case where the evidence conclusively showed
that the accused twice raped a young woman at gunpoint, shot both
the woman and her companion while they were tied helplessly to
trees with the announced intention of killing them, and left them
for dead. Even with these horrible facts before it, this so-called
"prosecution-prone," "callous," and "uncharitable" jury refused to
allow imposition of the death penalty and recommended life
imprisonment instead. In these circumstances, where the real reason
for granting certiorari in the case has disappeared, it seems to me
that the Court should dismiss the petition as improvidently
granted. This is especially true here, where, as I point out at the
end of this opinion, there is an open-and-shut case of guilt, and
the petitioner received the lightest sentence available under state
law.
II
Passing over the jury issue, the Court still reverses the
conviction in this case and sends it back for a new trial on the
ground that the rifle, which the record shows was used to shoot the
victims, and which is held by the majority to have been obtained
through an unconstitutional search and seizure, was admitted into
evidence at petitioner's trial. One of the reasons that I cannot
agree with the Court's reversal is because I believe the searching
officers had valid permission to conduct their search. The facts
surrounding the search are these: Petitioner had been raised by his
grandmother, Mrs. Hattie Leath, with whom he was living at the time
the rape and assaults were committed. Shortly after the victims
were able to recount to the police what had happened to them, the
county sheriff, with two of his deputies and a state police
officer, went to Mrs. Leath's
Page 391 U. S. 556
house. One of the deputies went up on the porch of the house and
stated to Mrs. Leath, who was standing inside the screen door, that
he had a warrant to search her house. He did not appear to have any
paper in his hand, and he did not read anything to her. Mrs.
Leath's
immediate response, without mentioning anything
about a warrant or asking to see it or read it or have it read to
her, was to tell the deputy "to come on in." At the trial, Mrs.
Leath described her reaction to the visit of the law officers as
follows:
"He did tell me he had a search warrant. I don't know if Sheriff
Stockard was with him. I was not paying much attention. I told Mr.
Stockard [after he had come up on the porch] to go ahead and look
all over the house. I had no objection to them making a search of
my house. I was willing to let them look in any room or drawer in
my house they wanted to. Nobody threatened me with anything. Nobody
told me they were going to hurt me if I didn't let them search my
house. Nobody told me they would give me any money if I would let
them search. I let them search, and
it was all my own free
will. Nobody forced me at all."
(Emphasis added.)
My study of the record in this case convinces me that Mrs. Leath
voluntarily consented to this search, [
Footnote 2/4] and in fact that she actually wanted the
officers to search her house -- to prove to them that she had
nothing to hide. Mrs. Leath's readiness to permit the search was
the action of a person so conscious of her innocence, so proud of
her own home, [
Footnote 2/5] that
she was not going to require
Page 391 U. S. 557
a search warrant, thus indicating a doubt about the rectitude of
her household. There are such people in this world of ours,
[
Footnote 2/6] and the evidence in
this case causes me to believe Mrs. Leath is one of them. As she
herself testified, "I just give them a free will to look, because I
felt like the boy wasn't guilty."
Despite the statements of Mrs. Leath cited above, and despite
the clear finding of consent by the trial judge, who personally saw
and heard Mrs. Leath testify, [
Footnote
2/7] this Court, refusing to accept Mrs. Leath's sworn
testimony that she did freely consent and, overruling the trial
judge's findings, concludes on its own that she did not consent. I
do not believe the Court should substitute what it believes Mrs.
Leath should have said for what she actually said -- "it was all my
own free will." I cannot accept what I believe to be an unwarranted
conclusion by the Court.
III
Even assuming for the purposes of argument that there was no
consent to search and that the rifle which was
Page 391 U. S. 558
seized from Mrs. Leath's house should not have been admitted
into evidence, I still believe the conviction should stand. For the
overwhelming evidence in this case, even when the rifle and related
testimony are excluded, amply demonstrates petitioner's guilt.
Unfortunately, to show this, it is necessary to go into the sordid
facts of the case. The victims were a young man and his girlfriend.
At trial, both testified in detail to the following: they were
parked shortly after dusk on a country road not far from where the
petitioner Bumper lived. Bumper approached the car, stuck a rifle
barrel up to the window and ordered the girl to get out of the car,
indicating that, if she refused he would shoot her. Both got out of
the car and Bumper ordered the girl to undress, stating that "I
want a white girl's p____." When the girl adamantly refused, Bumper
pointed the rifle at the young man, and the girl, understanding
that she must submit or her boy friend would be killed, followed
Bumper's orders. Bumper then forced the young man into the rear
seat of the car, requiring him to stay down on the floor, while
Bumper raped the girl on the back of the car. A short time after
this, Bumper forced the couple to drive to another spot. Here he
made them get out of the car and walk down a dirt road into some
bushes. At this time Bumper told the couple he was going to kill
them, and when they pleaded with him to let them go, he replied, "I
can't do it; you will go to the cops." The couple then suggested
that, if Bumper would tie them up and blindfold them that he could
get away with no problem. This Bumper did, tying each to a separate
tree. But he did not leave. Instead he raped the girl again while
she was tied to the tree. After this, Bumper went over to the young
man and felt his chest, asking him where his heart was and if he
was scared. He then cooly proceeded to shoot the young man where he
thought his heart was. The girl, tied to the tree and
Page 391 U. S. 559
blindfolded, heard the shot, and a moment later herself was shot
through the left breast close to her heart. Bumper then took the
car and drove away, obviously believing he had killed the young
couple. They were able to free themselves, however, and with much
difficulty made their way to a nearby house where the owner got
them to a hospital. [
Footnote 2/8]
The time during which the couple was held captive was approximately
an hour and a half. During that time, they clearly got to know who
their assailant was. Both got a plain view of Bumper right at the
beginning of their ordeal when they opened the car doors and saw
his face in the light coming from the inside of the car. Moreover,
the undisputed evidence in the record shows that the night of the
attack was a bright moonlit night. Both testified positively at
trial that it was Bumper. [
Footnote
2/9] Also there was substantial corroborating evidence outside
of that relating to the rifle. Here we have the clear and
convincing testimony of the two victims, whose characters were in
no way impeached or challenged. The only witnesses at the trial
were state
Page 391 U. S. 560
witnesses (the two victims plus medical and police testimony),
and none of their testimony was refuted or denied in any way. Thus,
this is a case where every word of evidence introduced at trial
pointed to guilt, and there was no challenge to the truthfulness of
the State's evidence, nor to the character of any of its witnesses.
Yet even with all this, the Court persists in reversing the case,
thus requiring the State to hold a new trial if it wishes to punish
Bumper for his crimes.
When it is clear beyond all shadow of a doubt, as here, that a
defendant committed the crimes charged, I do not believe that this
Court should enforce on the States a "
per se" rule
automatically requiring a new trial in every case where this Court
concludes that some part of the evidence was obtained by an
unreasonable search and seizure. The primary reason the
"exclusionary rule" was adopted by this Court was to deter
unreasonable searches and seizures in violation of the Fourth
Amendment.
Mapp v. Ohio, 367 U. S. 643.
But see my concurring opinion at
367 U. S.
661-666. I believe that the deterrence desired by some
can be served adequately without blind adherence to a mechanical
formula that requires automatic reversal in every case where the
exclusionary rule is violated. While little is known about the
effect the exclusionary rule really has on actual police practices,
I think it is a fair assumption that refusal to reverse a
conviction of a defendant, because of the admission of illegally
seized evidence, where other evidence conclusively demonstrates his
guilt, is not going to lessen police sensitivity to the
exclusionary rule, thereby reducing its deterrent effect.
Obviously, at the time a search is carried out, the police are not
going to know whether the evidence they hope to obtain is going to
be necessary for the prosecution's case, and, of course, if they
know it will not be necessary, no search is needed. Thus, the only
effect of not automatically reversing all cases in which there
Page 391 U. S. 561
has been a violation of the exclusionary rule will be to allow
state convictions of obviously guilty defendants to stand. And they
should stand.
IV
In this case, as I have shown, the evidence of the two victims
points positively to guilt without any doubt. When there is added
to this the fact that the rifle, from which came the bullets which
went into the bodies of the two victims, was found where Bumper
lived, which was not far from the scene of the assault, this makes,
as the North Carolina Supreme Court pointed out, assurance doubly
sure. Whether one views the evidence of guilt with or without the
rifle, the conclusion is inescapable that this defendant committed
the crimes for which the jury convicted him. In these
circumstances, no State should be forced to give a new trial;
justice does not require it. [
Footnote 2/10]
[
Footnote 2/1]
See ante at
391 U. S. 522,
n. 21.
[
Footnote 2/2]
See ante at
391 U. S. 520,
n. 17.
[
Footnote 2/3]
See N.C.Gen.Stat. § 121. The Court imposed additional
sentences of 10 years' imprisonment, to run consecutively, on the
two felonious assault charges.
[
Footnote 2/4]
Mrs. Leath's voluntary consent was sufficient to validate the
search, since she owned the house which was searched and the rifle
that was taken. It should also be noted that the rifle was not
found in petitioner's private room, nor in any part of the house
assigned to him, but in the kitchen behind the door.
[
Footnote 2/5]
Mrs. Leath owned the house in which she was living, and,
throughout her questioning, repeatedly referred to "my house."
[
Footnote 2/6]
See Commonwealth v. Tucker, 189 Mass. 457, 469, 76 N.E.
127, 131. In this case, a mother consented for officers who were
looking for broken pieces of a knife used in a murder to search her
home. The Court found that officers went
"to the door of the house where Tucker resided, and stated to
his mother, at the outside door of the house that they had this
search warrant to search for the article named therein . . . , that
she . . . invited the officers to make all the search they desired,
saying that she knew her son to be innocent, and thereupon the
officers made search, not upon the warrant, but in consequence of
her invitation. . . ."
The knife blade was admitted against the contention that it was
barred by the Fourth and Fourteenth Amendments.
[
Footnote 2/7]
The finding of the court was as follows:
"The Court finds that from the evidence of Mrs. Hattie Leath
that it is of a clear and convincing nature that she, the said Mrs.
Hattie Leath, voluntarily consented to the search of her premises,
as is more particularly set forth in her evidence, and that that
consent was specifically given, and is not the result of coercion
from the officers."
[
Footnote 2/8]
It was on these facts and this testimony, it must be remembered,
that this jury, selected in the way
Witherspoon holds is
designed to produce a "hanging" jury, recommended a life sentence
for petitioner.
[
Footnote 2/9]
The Court's opinion attempts to convey the impression that the
victims were not sure of their assailant's identification because
of an alleged mistake during a police lineup.
See majority
opinion,
n 16. This
completely overlooks the fact, however, that, before Bumper was
arrested, and before the victims had any idea of their attacker's
name or where he was from, the girl, while still in the hospital,
identified Bumper's picture from a number of others. The young man
also had identified Bumper's picture days before the lineup was
held. After the girl went through the lineup the first time she
confessed that she was too scared to look at the men and that she
had made no real attempt at identification. And it should not be
forgotten that she testified positively under oath at trial that
"In my own mind, I am certain [that Bumper was my assailant], and
nothing could really dissuade me from it. I haven't made up my
mind; I know."
[
Footnote 2/10]
28 U.S.C. § 2106 provides:
"The Supreme Court or any other court of appellate jurisdiction
may affirm, modify, vacate, set aside or reverse any judgment,
decree, or order of a court lawfully brought before it for review,
and may remand the cause and direct the entry of such appropriate
judgment, decree, or order, or require such further proceedings to
be had
as may be just under the circumstances."
(Emphasis added.)
MR. JUSTICE WHITE, dissenting.
When "consent" to a search is given after the occupant has been
told by police officers that they have a warrant for the search, it
seems reasonable to me for Fourth Amendment purposes to view the
consent as conditioned on there being a valid warrant, absent clear
proof that the consent was actually unconditional. The evidence in
this record does not show unconditional consent with sufficient
clarity, and perhaps this would be the result in most cases. But
this does not mean that
Page 391 U. S. 562
every search following conditional consent is invalid. If upon a
motion to suppress or upon an objection to evidence offered at the
trial, the State produces a valid warrant for the search, there is
no good reason to exclude the evidence simply because police at the
time of the search relied on the consent and neither served nor
returned the warrant. In the case before us the State represented
in this Court that there was a warrant for the challenged search.
Unlike the Court and MR. JUSTICE HARLAN, I would not brush this
matter aside. Since the existence and validity of the warrant have
not been determined in the state courts, the case is not ripe for
reversal or affirmance. I would therefore not reverse, but vacate,
this conviction, returning the case to the state courts for a
determination of the validity of the warrant. If because of the
absence of probable cause or for some other reason, the warrant
would not have been a proper predicate for the search,
Mapp v.
Ohio, 367 U. S. 643
(1961), would require reversal of the conviction unless it is saved
under the harmless error rule of
Chapman v. California,
386 U. S. 18
(1967).
*
* Of course, if it was determined that the grandmother's consent
was not good against petitioner, who had standing to raise the
validity of the search, it would be unnecessary to deal with the
issues which have been argued and determined in this case.