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BUMPER v. NORTH CAROLINA.
CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA.
Argued April 24-25, 1968.
Decided June 3, 1968.
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:
Norman B. Smith argued the cause and filed briefs for petitioner, pro hac vice.
Harry W. McGalliard, Deputy Attorney General of North Carolina, argued the cause for respondent. With him on the brief was T. W. Bruton, Attorney General. [391 U.S. 543, 544]
Briefs of amici curiae were filed by Jack Greenberg, James M. Nabrit III, Michael Meltsner, Leroy D. Clark, Norman C. Amaker, and Charles S. Ralston for the NAACP Legal Defense and Educational Fund, Inc., et al., and by F. Lee Bailey, pro se.
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. 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. 2 The trial court imposed that sentence, and the Supreme Court of North Carolina affirmed the judgment. 3 We granted certiorari 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 [391 U.S. 543, 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.
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. 7 She testified at the hearing, stating, among other things:
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. 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. 12 This burden cannot be discharged by [391 U.S. 543, 549] showing no more than acquiescence to a claim of lawful authority. 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. 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, [391 U.S. 543, 550] or fails to show that there was, in fact, any warrant at all. 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 . 16 [391 U.S. 543, 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.
[ 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 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 517, n. 10, the petitioner's brief in this Court cites an unpublished [391 U.S. 543, 546] 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?
[ Footnote 8 ] She also testified, at another point:
[ 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, 29 . See also United States v. Di Re, 332 U.S. 581, 595 ; Henry v. United States, 361 U.S. 98, 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, 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, 317 ; Johnson v. United States, 333 U.S. 10, 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.
[ 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 [391 U.S. 543, 551] 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 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 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.
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. [391 U.S. 543, 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. [391 U.S. 543, 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, 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 [391 U.S. 543, 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.
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, 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.
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 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 [391 U.S. 543, 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.
[ Footnote 1 ] See ante, at 522, n. 21.
[ Footnote 2 ] See ante, at 520, n. 17.
[ Footnote 3 ] See N.C. Gen. Stat. 14-21. The Court imposed additional sentences of 10 years' imprisonment, to run consecutively, on the two felonious assault charges.
[ Footnote 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 5 ] Mrs. Leath owned the house in which she was living and throughout her questioning repeatedly referred to "my house."
[ Footnote 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 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 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 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 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 [391 U.S. 543, 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). *
[ Footnote * ] 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. [391 U.S. 543, 563]