What is the state of the law on the consent of a defendant in a search without a warrant?

The unpersuasiveness of the majority's assessment of the facts supports an inference that the majority is actually deciding on the basis of a new principle of law.⁵ That principle appears to be: No person can voluntarily consent to a search while in custody if the authorities have a reasonable opportunity to obtain a search warrant. Perhaps the majority would allow that in some instances consent to a warrantless search could be legally voluntary, but its ruling in this case, with its undramatic facts, indicates that instances of voluntariness would be rare exceptions, thus creating the anomalous situation in which a defendant in custody could confess to the commission of a crime but not consent to the search of his belongings.⁶ By making this question one of law, the majority opinion would, of course, conflict with Schneckloth v. Bustamonte, 412 U. S. 218, 224, 227, 93 S.Ct. 2041, 36 L.Ed. 2d 854 (1973), which admonishes against the use of mechanical rules in determining voluntariness.

[492 F.2d 1269]