The Unreasonableness of Seeming Consent

The Unreasonableness of Seeming Consent

Suparna Malempati

Introduction

As a working parent over the years, I have tried various forms of childcare assistance: full-time nanny, part-time babysitter, and live-in au pair. All of these helpers had a key to my home, access to my car, the password to our home computer, and free run of the house. None of these individuals ever had the authority to consent to a search of my home by police. Unfortunately if two uniformed police officers came to my home and asked the 18-year-old German au pair who lived there if they could come inside and search, she would probably have allowed them inside. The officers could have walked through the home, opened closets, rifled through papers on the desk in the family room, and pulled out drawers in the kitchen. If the police then found contraband or other evidence of perceived criminal activity and charged me with a crime, I would unfortunately be unsuccessful in contesting the search.[1] The Fourth Amendment, as interpreted and applied by the U.S. Supreme Court, would not likely protect my individual interest in maintaining the security of my home against unlawful intrusion by police in such a situation. The courts would give little consideration to facts such as that the young woman had no ownership in the residence, that she was a temporary house guest, that she might have felt intimidated by the presence of armed officers, or that she did not know that she could refuse.[2] The courts would not balance my privacy interests against any governmental interest in investigating crime in suburban neighborhoods because there would be no need to inquire about the reasons for the officers’ arrival at my doorstep.[3] The motivations of the officers would not be relevant to the decision of the constitutionality of police entry into the home in this situation. Likewise, how the au pair felt or what was in her mind at the time she granted consent would be immaterial. The court would look primarily at the officers’ conduct and the observations they made.[4] If the officers did not make threats, use force, or otherwise overtly coerce the au pair, the court would likely find that the consent was voluntarily given and therefore, constitutionally valid.[5] As long as the police believed that the au pair lived in the home and had the authority to consent to the search, the court would probably conclude that the Fourth Amendment was not violated because the police conduct would be deemed reasonable.

The development of Fourth Amendment jurisprudence has been tortuous in large part because of the singular focus on this term “reasonable” and the judicial equivocation when balancing the right of individuals to be free from unreasonable searches and the needs of law enforcement to conduct investigations of crimes without undue restraint. One of the most common and successful investigative tools is the consent search. A vast majority of police searches in the U.S. are conducted based upon consent given by an individual to search the property in question.[6] In other words, most people allow the police to search property simply because the police ask. In these situations, the courts have failed to adequately consider the surrounding circumstances that might cause an individual to grant permission for a search when confronted with police officers' request. This failure has been the basis for much criticism of the consent doctrine as a means of validating police conduct.[7] Another awkward issue that has developed in consent search cases is whether the individual providing consent actually has the authority to consent. It would seem that an individual has authority to consent when he owns or exercises control over the property to be searched. But under the consent doctrine, the police make the determination whether an individual has proper authority to consent through consideration of the surrounding circumstances.[8]

It would also seem that only a person who actually has authority over the property can validly consent to its search. But in 1990, the U.S. Supreme Court significantly expanded the application of the Fourth Amendment to searches conducted with consent and decided that even when police are mistaken about a person’s authority to consent, there is no Fourth Amendment violation. In Illinois v. Rodriguez, the Court found that a third person who had no authority over a home or property could nevertheless allow the police to enter the home and/or conduct a search of the property, as long as that third person seemingly had authority to consent.[9] In other words, as long as the police reasonably believe that Bob has authority, the subsequent search based on Bob’s consent is constitutionally valid, whether or not the Bob actually had authority over the place or property searched. This principle that a third party who appears to have, but does not actually have, authority to consent to a search is acceptable and sufficient to satisfy the requirements of the Fourth Amendment is based upon faulty logic that has governed consent jurisprudence.[10] It also certainly gives law enforcement great power. The decision in Illinois v Rodriguez excuses officers' mistakes and in essence, allows officers to assume authority to consent.[11] Any person who answers the door when the police knock could be reasonably believed, or assumed, to have the authority to consent to a search of the home. Often, the lack of authority to consent may be clear from the circumstances, such as when a houseguest answers the door and clearly states that he is a visitor. But in many cases, the surrounding circumstances make it unclear whether the individual actually has authority to consent. This ambiguity surrounds not only the initial entry, but also the scope of the search such as the authority to consent to searches of a containers, suitcases, or computers. In these ambiguous situations, a gap has developed in the analysis of whether "seeming" authority justifies the subsequent search.

Since the Rodriguez decision, the U.S. Circuit Courts of Appeal have approached in different manners the issue of ambiguous authority of a third party to consent. Some courts focus on the objective factors known to officers to determine whether the circumstances clearly indicated that the property did not belong to the third person.[12] Other courts place the burden on police to make further inquiry when the circumstances indicate ambiguity as to the ownership and control of the property to be searched.[13] The approaches mirror the differing approaches in Fourth Amendment law in general. How the court balances the needs of law enforcement with the rights of individuals determines the outcome of any given case. The differing approaches of the Circuit Courts in the area of ambiguous authority for consent are not, in my opinion, amenable to resolution because the established consent paradigm and the Rodriguez decision have created a doctrinal discord incapable of repair. The Supreme Court's jurisprudence in this area of consent and third party consent has been built upon faulty and inconsistent theories, all under the guise of reasonableness. This article examines the aftermath of the Rodriguez decision and the application of the seeming consent rule, and adds to the critique of the consent doctrine particularly in the area of third party consent. A new paradigm is needed, although I am not optimistic that the law will ever reach one. I therefore attempt to provide guidance to criminal defense lawyers, who routinely argue Fourth Amendment issues to trial judges, on navigating the conflicting approaches to ambiguous apparent authority for third party consent. I aim to assist defense attorneys with creating narratives regarding the validity of third party apparent authority to consent that will effectively advocate Fourth Amendment protections.

Part I explains the development of the consent doctrine by examining the various and inconsistent explanations that the Supreme Court has used to justify searches based upon consent under the Fourth Amendment. Part II discusses the expansion to third party consent including a discussion of the theoretical underpinnings of the common authority doctrine and the confusion created by Supreme Court rulings in the area of cohabitants. Part III begins with an explanation of how the Supreme Court extended the third party consent doctrine to include apparent authority in Illinois v. Rodriguez. This section further discusses the scholarly critique of that decision and the division that has developed among Circuit Courts in the analysis of apparent authority. Part IV examines some of the arguments that have persuaded courts to invalidate third party consent and how attorneys can pursue such effective narratives.

I. The Fourth Amendment Consent Rationale

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures by the government.[14] Typically, searches and seizures require a warrant supported by probable cause. However, warrantless searches can be justified when based upon an individual's valid consent.[15] The Supreme Court has found that a Fourth Amendment violation does not occur once police have been given permission to do conduct a search.[16] While this concept seems logical at the outset, the issue that has confused the courts is how to determine that the consent was voluntarily given. In practice, courts have tended to find voluntary consent in the majority of cases due to a focus on objective factors surrounding police behavior rather than subjective factors of the individual giving permission to search.[17] Courts look at the conduct of the officers to determine whether the individual freely and voluntarily granted consent.

The doctrine of consent in Fourth Amendment jurisprudence has, thus, undergone significant scholarly critique and has been described as a fiction, inconsistent, disconnected, and schizophrenic.[18] This is due primarily to the Supreme Court's struggle to provide a clear rationale for justifying consent searches.[19] The initial, traditional reasoning was that a person who consents to a search of his property waives his right to be free from unreasonable search and seizure.[20] The Court viewed consent to a police intrusion as a relinquishment of the privacy interest protected under the Fourth Amendment.[21] Waiver under the Fourth Amendment was problematic for the Supreme Court because of the Court's unwillingness to impose the requirements of "knowing and intelligent" to validate a voluntary relinquishment of constitutional rights. The waiver rationale, therefore, was abandoned when the Court failed to impose a knowledge requirement on the consenting party. In Schneckloth v. Bustamante, a warrantless search was upheld even though the person consenting to the search did not know that he had a right to refuse.[22] The Supreme Court made clear that consent under the Fourth Amendment is not analyzed under the traditional waiver principle that the government must prove an intentional relinquishment of a known right or privilege.[23] Rather, the Court found that voluntariness of consent is a factual determination to be made from the totality of the circumstances and knowledge of the right is merely one factor to be considered.[24]

Another rationale for consent developed around the concept that the consent search is not a search within the meaning of the Fourth Amendment and thus, falls outside the reach of constitutional protections. Warrantless searches based upon consent can be supported by the idea that when a person consents to a search, he foregoes his expectation of privacy to the property in question.[25] By removing the expectation of privacy, consent makes the Fourth Amendment inapplicable to the intrusion.[26] In this way, consent makes the police intrusion constitutional, not because it is excused, but because the Fourth Amendment does not prohibit the intrusion. Like waiver, the concept that consent searches are non-searches and therefore constitutional allowed the focus of inquiry to be whether the individual whose privacy was at stake actually gave permission for the intrusion.[27]

Both the traditional waiver view and the non-search view, which placed emphasis on the person granting consent, have been replaced with a reasonableness rationale. Although the validity of consent turns on the issue of voluntariness, whether the consent was granted freely and willingly is determined by looking at the totality of the circumstances.[28] The focus, however, is not on whether the individual suspect exercised free will in granting consent. In the Fourth Amendment context, voluntariness is judged by the actions of the police officers, not by the state of the mind of the consenter. The Supreme Court views consent through the prism of reasonableness and asks whether the conduct of the police was objectively reasonable in obtaining consent from the individual. Police conduct is often found to be reasonable when police merely ask a suspect for permission to search his property.[29] On other hand, police conduct may be unreasonable if police use unacceptable tactics that cause duress or coerce the suspect into granting consent.[30]

When analyzing the voluntariness and constitutional validity of consent, this focus on the conduct of police rather than the mental state, knowledge or intelligence of the suspect, is inconsistent with the norm of reasonableness determinations, which is the heart of most SCOTUS decisions on the Fourth Amendment. Generally, the Court recognizes exceptions to the Fourth Amendment that are grounded in the concept of reasonableness that requires the balancing of the governmental and individual interest served by the intrusion against the individual interests in liberty and privacy. [31] The emphasis on police conduct unduly tips the scale in favor of governmental interests over individual interests. Because the Fourth Amendment prohibits unreasonable searches and seizures, the Supreme Court has recognized exceptions to the warrant requirement by weighing the governmental interest in effective law enforcement against the individual privacy and liberty interests at stake. When the Court allows decisions about an individual's free will to be made solely through examination of the government's actions, the substantive constitutional guarantees are at a disadvantage. The nuances of police citizen encounters will be ignored and the results inevitably skewed in favor of the government.