For modification and remandment -- Chief Justice Hughes, Justices Mountain, Sullivan, Clifford, and Schreiber and Judge Conford. Dissenting -- Justice Pashman. The opinion of the Court was delivered by Sullivan, J. Schreiber, J. (concurring). Pashman, J. (dissenting). Schreiber, J., concurring in result.
[68 NJ Page 351] This is a search and seizure case wherein defendant, who has been indicted for possession of narcotics and possession with intent to distribute, moved to suppress evidence found by the police during the search of an apartment where defendant kept some personal belongings. The State sought to justify the search on the basis of consent.*fn1 The trial judge granted the motion. The Appellate Division reversed and remanded the matter for redetermination on the record already made on the ground that the trial judge had applied improper standards in passing upon the consent issue. By leave granted defendant appeals. R. 2:2-2(b). We modify the Appellate Division ruling to the extent hereinafter indicated.
At the hearing on the motion to suppress, the State and defendant presented conflicting factual versions as to the circumstances leading up to the search and whether or not consent had been given. Defense counsel argued that the State had not proved "a voluntary type of waiver of one's Fourth Amendment right." The trial judge in ruling on the motion made no specific finding as to which version he found to be credible. He said he had weighed the testimony of all of the witnesses and was unable to conclude that the State had proved by clear and positive evidence that the consent was knowingly, intelligently, voluntarily and unequivocally given to search the apartment. He added that the knowledge aspect "goes to the knowledge of whether or not she had a right to refuse to have the apartment searched at all or knowledge of whether or not they are waiving their constitutional right against invasion of privacy."
In Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973) the United States Supreme Court held that where the subject of a search is not in custody and the state attempts to justify the search on the basis of 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, and that while knowledge of a right to refuse consent is one factor to be taken into account, it is not an indispensable element of an effective consent. 412 U.S. 248-249, 93 S. Ct. 2041.
Schneckloth rejected the contention that the validity of a consent to a search in a non-custodial situation should be measured in terms of waiver, and that the state should be required to show that there had been an intentional relinquishment of a known constitutional right. Instead, the court held that the test to be applied was one of voluntariness to be determined from the totality of the circumstances. Id. at 235-247, 93 S. Ct. 2041.
Based on Schneckloth the Appellate Division held that the yardstick used by the trial judge no longer represented
the measure to be applied in determining whether there had been a violation of Fourth Amendment rights and remanded the matter to the trial judge for redetermination of the motion to suppress on the record already made, using the standards set forth in Schneckloth.
Schneckloth is controlling on state courts insofar as construction and application of the Fourth Amendment is concerned and is dispositive of defendant's federal constitutional argument. However, each state has the power to impose higher standards on searches and seizures under state law than is required by the Federal Constitution. Cooper v. California, 386 U.S. 58, 62, 87 S. Ct. 788, 17 L. Ed. 2 d 730 (1967).
The New Jersey Constitution of 1947, Art. I, par. 7, provides that "[T]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated * * *." While counsel for defendant did not contend, either on argument of the motion or on appeal, that our State constitutional provision against unreasonable searches should be interpreted to give the individual greater protection than is provided by the Fourth Amendment, this Court, sua sponte, posed the issue and afforded counsel the opportunity to submit supplemental memoranda on the question. The Court has the benefit of the additional arguments presented.*fn2
We conclude that under Art. I, par. 7 of our State Constitution the validity of a consent to a search, even in a non-custodial situation, must be measured in terms of waiver; i.e., where the State seeks to justify a search on the
basis of consent it has the burden of showing that the consent was voluntary, an essential element of which is knowledge of the right to refuse consent.
Many persons, perhaps most, would view the request of a police officer to make a search as having the force of law. Unless it is shown by the State that the person involved knew that he had the right to refuse to accede to such a request, his assenting to the search is not meaningful. One cannot be held to have waived a right if he was unaware of its existence.
However, in a non-custodial situation, such as is here presented, the police would not necessarily be required to advise the person of his right to refuse to consent to the search. Our decision is only that in such a situation if the State seeks to rely on consent as the basis for a search, it has the burden of demonstrating knowledge on the part of the person involved that he had a choice in the matter.*fn3
We agree that the motion should be remanded to the trial judge for redetermination on the record already made and such additional proofs as the parties may offer, but applying the standards heretofore set forth insofar as defendant's right under our State constitution to be secure against unreasonable searches is involved. On the remand, the trial judge should make specific findings as to the facts disputed at the hearing and as to knowledge by the occupant of her right to refuse consent so that a reviewing court may know precisely the basis of the ruling.
Except for the instant case, this decision is to have prospective effect, applying only to searches based on consent which take place after the date of this opinion.
SCHREIBER, J. (concurring). Obviously, as both the majority and dissenting opinions observe, because of the
United States Supreme Court opinion in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973), knowledge of a right to refuse consent to a search is not a prerequisite of an effective consent to validate a search under the Fourth and Fourteenth Amendments of the United States Constitution. The remaining issue is whether there has been a violation of Article I, para. 7 of the New Jersey Constitution which provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated; * * *." In other words, was the search unreasonable under all the circumstances? Cf. State v. Davis, 50 N.J. 16, 22 (1967); United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94 L. Ed. 653 (1950); and Cady v. Dombrowski, 413 U.S. 433, 439, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973) where the Court noted: "The ultimate standard set forth in the Fourth Amendment is reasonableness."
A search conducted after a voluntary consent is clearly reasonable. State v. King, 44 N.J. 346 (1965). Consent contemplates the exercise of a choice, and choice entails the opportunity to evaluate the available options. The right of self-decision is effectively safeguarded if the occupant of the premises knows that the search may be refused. This knowledge may be imputed from information furnished by the police. In the absence of that knowledge a search is unreasonable.
I would not, as the majority does, rationalize the problem in terms of waiver. Justice Black in Green v. United States, 355 U.S. 184, 191, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957) wrote: "'Waiver' is a vague term used for a great variety of purposes, good and bad, in the law." The dissent, for example, utilizes one definition of the term, an intentional relinquishment or abandonment of a known right or privilege. See dissenting opinion, p. 361. In this context, one could logically contend that warnings should ...