BRENNAN, J., Dissenting Opinion

SUPREME COURT OF THE UNITED STATES

415 U.S. 164

United States v. Matlock

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, dissenting.

I would not limit the remand to the determination whether Mrs. Graff was, in fact, a joint occupant of the bedroom with sufficient authority to consent to the search. In my view, the determination is also required that Mrs. Graff consented knowing that she was not required to consent.

It wholly escapes me how our citizens can meaningfully be said to have waived something as precious as a constitutional guarantee without ever being aware of its existence.

Schneckloth v. Bustamonte, 412 U.S. 218, 277 (1973) (BRENNAN, J., dissenting). I would hold that an individual cannot effectively waive this right if he is totally ignorant of the fact that, in the absence of his consent, such invasions of privacy would be constitutionally prohibited.