Bumper v. State of North Carolina, No. 1016

CourtUnited States Supreme Court
Writing for the CourtSTEWART
Citation20 L.Ed.2d 797,88 S.Ct. 1788,391 U.S. 543
Docket NumberNo. 1016
Decision Date03 June 1968
PartiesWayne Darnell BUMPER, Petitioner, v. STATE OF NORTH CAROLINA

391 U.S. 543
88 S.Ct. 1788
20 L.Ed.2d 797
Wayne Darnell BUMPER, Petitioner,

v.

STATE OF NORTH CAROLINA.

No. 1016.
Argued April 24 and 25, 1968.
Decided June 3, 1968.

Norman B. Smith, Greensboro, N.C., for petitioner, pro hac vice, by special leave of Court.

Harry W. McGalliard, Raleigh, N.C., for respondent.

Page 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.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 certiorari4 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 con-

Page 545

scientious 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. State of Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, 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. State of Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491; Turner v. State of Louisiana, 379 U.S. 466, 471—473, 85 S.Ct. 546, 548—550, 13 L.Ed.2d 424; Irvin v. Dowd, 366 U.S. 717, 722—723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751. 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,'5 and the materials referred to in his brief are no more substantial than those brought to our attention in Witherspoon.6 Accordingly, we decline to reverse the judgment of conviction upon this basis.

Page 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.7 She testified at the hearing, stating, among other things:

Page 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.'8

Upon the basis of Mrs. Leath's testimony, the trial court found that she had given her consent to the search, and

Page 548

denied the motion to suppress.9 The Supreme Court of North Carolina approved the admission of the evidence on the same basis.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.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

Page 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,

Page 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, 81 S.Ct. 1684, 6 L.Ed.2d 1081. 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. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. 16

Page 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.

Judgment reversed and case remanded.

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. State of Illinois, 391 U.S., at 523, 88 S.Ct., at 1778, 20 L.Ed.2d 776 (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.

Page 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...

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2818 practice notes
  • U.S. v. Gray, No. 05-4397.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • July 2, 2007
    ...that the relatives of home owners who regularly reside at the residence are protected by the Fourth Amendment. Bumper v. North Carolina, 391 U.S. 543, 546-48, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). And, more recently, the Supreme Court extended the Fourth Amendment's privacy protections to o......
  • U.S. v. Miley, Nos. 536-540
    • United States
    • U.S. Court of Appeals — Second Circuit
    • March 19, 1975
    ...though the Government must sustain its burden of proving that the consent was obtained freely and voluntarily. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). The Government need only satisfy the district judge by a preponderance of evidence that the defen......
  • State v. Gomez, No. CT2018-0025
    • United States
    • United States Court of Appeals (Ohio)
    • February 11, 2019
    ...of proving that the suspect voluntarily consented to the search rests upon the prosecution. Schneckloth ; Bumper v. North Carolina , 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797(1968) ; State v. Pi Kappa Alpha Fraternity , 23 Ohio St.3d 141, 491 N.E.2d 1129 (1986). {¶45} In Schneckloth, the ......
  • LaDuke v. Nelson, Nos. 83-3608
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 10, 1985
    ...burden to prove consent; the record demonstrates "no more than acquiescence to a claim of lawful authority." Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968); cf. Gomez v. Turner, 672 F.2d 134, 141 (D.C.Cir.1982) (" 'seizure' occurs when a police of......
  • Request a trial to view additional results
2817 cases
  • U.S. v. Gray, No. 05-4397.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • July 2, 2007
    ...that the relatives of home owners who regularly reside at the residence are protected by the Fourth Amendment. Bumper v. North Carolina, 391 U.S. 543, 546-48, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). And, more recently, the Supreme Court extended the Fourth Amendment's privacy protections to o......
  • U.S. v. Miley, Nos. 536-540
    • United States
    • U.S. Court of Appeals — Second Circuit
    • March 19, 1975
    ...though the Government must sustain its burden of proving that the consent was obtained freely and voluntarily. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). The Government need only satisfy the district judge by a preponderance of evidence that the defen......
  • State v. Gomez, No. CT2018-0025
    • United States
    • United States Court of Appeals (Ohio)
    • February 11, 2019
    ...of proving that the suspect voluntarily consented to the search rests upon the prosecution. Schneckloth ; Bumper v. North Carolina , 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797(1968) ; State v. Pi Kappa Alpha Fraternity , 23 Ohio St.3d 141, 491 N.E.2d 1129 (1986). {¶45} In Schneckloth, the ......
  • LaDuke v. Nelson, Nos. 83-3608
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 10, 1985
    ...to prove consent; the record demonstrates "no more than acquiescence to a claim of lawful authority." Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968); cf. Gomez v. Turner, 672 F.2d 134, 141 (D.C.Cir.1982) (" 'seizure' occurs when a p......
  • Request a trial to view additional results
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