United States v. Matlock

Justice Douglas dissented because he believed that "the absence of a search warrant in this case, where the authorities had opportunity to obtain one, is fatal." He noted that at no time did the officers attempt to get a search warrant. Also, the search of the house was not incidental to the arrest of Matlock.

Douglas explained that a search warrant provided judicial intervention as a restraint of police conduct before a search. A neutral and detached magistrate, not law enforcement agents, should decide if a home must be searched. Douglas quoted from McDonald v. United States (1948), "The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing; and history shows that the police acting on their own cannot be trusted."

Douglas noted that Mrs. Graff's permission to the police to invade the house provided a sorry and wholly inadequate substitute for a search warrant. The police commanded all the authority that they had during colonial times when general warrants were used, the hatred of which led to the passage of the Fourth Amendment. This amendment prohibits warrantless searches and seizures. Douglas summed up by stating, "Government agents are now free to rummage about the house, unconstrained by anything except their own desires . . . Since the Framers of the Amendment did not abolish the hated general warrants only to impose another oppressive regime on the people, I dissent."

Justices Brennan and Marshall also dissented. Brennan wrote that it was necessary to determine if Mrs. Graff consented to the search knowing that she was not required to do so. An individual cannot waive this right if he or she is totally ignorant of the fact that, without consent, the invasion of privacy would be unconstitutional. Brennan quoted his own dissent in Schneckloth v. Bustamonte (1973), "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."