NCJ Number
14086
Journal
NOTRE DAME LAWYER Volume: 49 Issue: 4 Dated: (APRIL 1974) Pages: 891-906
Date Published
1974
Length
16 pages
Annotation
ANALYSIS OF THE 1973 SUPREME COURT RULING IN SCHECKLOTH V. BUSTAMONTE THAT THE VALIDITY OF NON-CUSTODIAL CONSENT SEARCHES SHOULD BE DETERMINED ONLY BY LOOKING AT THE VOLUNTARY NATURE OF THE CONSENT.
Abstract
THE COURT FOUND THAT KNOWLEDGE OF THE RIGHT WAIVED AND APPRECIATION OF THE CONSEQUENCES OF THE WAIVER WERE IMPORTANT ONLY TO THE EXTENT THEY HAD A BEARING ON THE VOLUNTARINESS OF THE CONSENT. THIS ARTICLE BRIEFLY EXAMINES THE USE OF THE DOCTRINE OF WAIVER AS INTERPRETED IN VARIOUS COURT DECISIONS AND FOCUSES ON ITS CONSTITUTIONAL BASIS AND THE REQUIREMENTS OF KNOWLEDGE AND VOLUNTARINESS. THE SCHNECKLOTH CASE IS ANALYZED IN DETAIL ALONG WITH THE POTENTIAL APPLICATION OF THE WAIVER DOCTRINE TO AN IN-CUSTODY CONSENT SEARCH. THE AUTHOR CRITICIZES THE COURT'S USE OF TWO DIFFERENT STANDARDS FOR WAIVER - VOLUNTARY WAIVER AND KNOWING AND INTELLIGENT WAIVER - FOR TRIAL AND NON-TRIAL SITUATIONS.