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411

MARSHALL, J., dissenting

teenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied." Id., at 248 (emphasis added).

Not once, but twice, the question the Court today treats as settled was expressly reserved:

"[T]he present case does not require a determination of the proper standard to be applied in assessing the validity of a search authorized solely by an alleged consent that is obtained from a person after he has been placed in custody." Id., at 241 n. 29. See also id., at 247 n. 36.

I adhere to the views expressed in my dissent in Schneckloth, id., at 277, and therefore believe that the Government must always show that a person who consented to a search did so knowing he had the right to refuse. But even short of this position, there are valid reasons for application of such a rule to consents procured from suspects held in custody. It was, apparently, the force of those reasons that prompted the Court in Schneckloth to reserve the question. Most significantly, we have previously accorded constitutional recognition to the distinction between custodial and noncustodial police contacts. Miranda v. Arizona, 384 U. S., at 477-478. Indeed, Schneckloth directly relied on Miranda's articulation of that distinction to reach its conclusion. 412 U. S., at 232. Thus, while custodial interrogation is inherently coercive, and any consent thereby obtained necessarily suspect, Miranda (and Schneckloth) expressly reject the notion that there is anything inherently coercive about general noncustodial interrogation. 384 U. S., at 477-478; 412 U. S., at 247. For this reason it is entirely appropriate to place a substantially greater burden on the Government

MARSHALL, J., dissenting

423 U.S.

to validate a consent obtained from a suspect following custodial interrogation, however brief. Indeed, it is difficult, if not impossible, to square a contrary conclusion with Miranda. A substantially greater burden on the Government means, quite obviously, that the fact of custody is not merely another factor to be considered in the "totality of the circumstances." 23 And, in my view, it means that the Government must show that the suspect knew he was not obligated to consent to the search.

Whether after due consideration the Court would accept this view or not, it is a surrender of our judicial task altogether to ignore the question. And, equally disturbing, it is a distortion of our precedent to pretend that what seemed a difficult and complex problem three years ago is no problem at all today. I respectfully dissent.

23 Many Courts of Appeals have recognized that a custodial consent is different in kind from one obtained from a person not in custody, and have placed a stiff burden on the Government to validate the consent. United States v. Rothman, 492 F. 2d 1260, 1265 (CA9 1973); United States v. Nikrasch, 367 F. 2d 740, 744 (CA7 1966); Judd v. United States, 89 U. S. App. D. C. 64, 66, 190 F. 2d 649, 651 (1951).

REPORTER'S NOTE

The next page is purposely numbered 801.

The numbers between 458 and 801 were intentionally omitted, in order to make it possible to publish the orders with permanent page numbers, thus making the official citations available upon publication of the preliminary prints of the United States Reports.

ORDERS FROM END OF OCTOBER TERM, 1974

THROUGH JANUARY 26, 1976

CASES DISMISSED IN VACATION

No. 74-6653.

BRUCE v. U. S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS. Motion for leave to file petition for writ of mandamus dismissed August 26, 1975, under this Court's Rule 60.

No. 74-6489. GUAJARDO ET AL. v. UNITED STATES. C. A. 5th Cir. Certiorari dismissed as to petitioner Juan Chapa, Jr., on September 9, 1975, under this Court's Rule 60. Reported below: 508 F. 2d 1093.

No. 75-163. CALIFORNIA & HAWAIIAN SUGAR Co. ET AL. v. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ET AL. C. A. 9th Cir. Certiorari dismissed September 18, 1975, as to petitioners Union Sugar Division, Consolidated Foods Corp.; Amalgamated Sugar Co.; Great Western Sugar Co.; and Holly Sugar Corp. under this Court's Rule 60.

No. 74-1602. POLITI ET AL. v. UNITED STATES. C. A. 2d Cir. Certiorari dismissed September 25, 1975, under this Court's Rule 60. Reported below: 516 F. 2d 897.

No. 74-1490. S&H PACKING CO., INC. v. DESARACHO ET AL., DBA SARACHO HNOS. C. A. 9th Cir. Certiorari dismissed September 29, 1975, under this Court's Rule 60.

No. 74-1485. ENGLISH V. LAWRENCE, U. S. DISTRICT JUDGE, ET AL. C. A. 5th Cir. Certiorari dismissed October 1, 1975, under this Court's Rule 60.

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