Consent can be an effective weapon in an investigator's arsenal. When asked for permission to search, individuals with plenty to hide often defy common sense and waive their constitutional right to privacy. Evidence confiscated during a consent search is admissible in a subsequent trial, as long as the officer conducting the search follows the fundamental requirements of the consent to search doctrine and is able to prove the same.
When the Supreme Court decided Schneckloth v. Bustamonte(1) in 1973, and United States v. Matlock(2) in 1974, consent as an exception to the fourth amendment warrant requirement became a fairly well-settled principal of law. Of the few questions pertaining to consent searches that remained unresolved following Schneckloth and Matlock, most were answered by the Supreme Court in the cases of Illinois v. Rodriguez(3) and Florida v. Jimeno.(4) However, one question relating to consent searches that remains unanswered by the Supreme Court is whether law enforcement officers can rely on an individual's consent that is given in the wake of another individual's refusal to consent.
This article examines the parameters of the consent to search doctrine established by the Supreme Court in Schneckloth. Matlock, Rodriguez, and Jimeno. It then discusses legal and policy considerations for investigators when seeking consent from one person following another person's refusal to consent.
FOUNDATIONS OF THE CONSENT TO SEARCH DOCTRINE
In Schneckloth and Matlock, the Supreme Court established the two prerequisites for a valid consent to search. Specifically, the Court held that a lawful consent must be given voluntarily and by a person with authority. Moreover, because consent is an exception to the general requirement that searches be conducted pursuant to a warrant, the government bears the burden of proving both of these prerequisites.
When determining the voluntariness of a consent to search, courts use a "totality of the circumstances"(5) test, where all the factors surrounding the consent are examined to determine whether it was a product of the consenter's free will. Using this test, courts have concluded that the following factors do not necessarily render a consent involuntary:
1) The failure to advise an individual of the right to refuse consent(6)
2) The fact that officers had their weapons drawn and had handcuffed an individual prior to asking for consent,(7) and
3) The obtaining of consent from a person under the influence of drugs.(8)
Officers should recognize, however, that although these factors do not automatically necessitate a finding of involuntariness, they are factors that courts carefully weigh in the totality of circumstances test to determine the voluntariness of a consent.
The determination of who has lawful authority to consent to a search will depend initially on the object of the intended search. If law enforcement officers want permission to search a person, then only the person to be searched has the authority to consent. If, on the other hand, officers desire to search premises, vehicles, or items of personal property that can be shared by two or more people, the determination of who may consent to the search will require an analysis of who has a fourth amendment right of privacy in the area.(9)
Because consent is a waiver of the fourth amendment right of privacy, only an individual with that right of privacy may consent to a search. The fourth amendment right of privacy, however, is not a function of ownership. Thus, the fact that an individual owns an apartment building does not automatically give this individual a fourth amendment right of privacy in a rented apartment that he can waive by consent.
Rather than ownership, the courts look for lawful access and control when determining authority to consent. If individuals share access and control over an area, there is common authority to consent to search of that area.(10)
REFINEMENTS TO THE CONSENT DOCTRINE
In the two decades that followed the Schneckloth and Matlock decisions, the Court further refined the parameters of the consent doctrine by addressing two questions of importance to investigators. First, can consent be obtained lawfully from a person with "apparent authority"? Second, what is the appropriate test for officers to determine the scope of a person's consent?
Apparent Authority Ruled Sufficient
In Illinois v. Rodriguez,(11) the Court created the concept of apparent authority, which gives law enforcement officers some latitude when attempting to ascertain who has authority to consent to a search. The case arose when police, responding to a domestic complaint, entered an apartment pursuant to the complainant's consent. Once inside, officers arrested Rodriguez and seized a substantial quantity of cocaine and drug paraphernalia that was in plain view.
At a subsequent suppression hearing, the court discovered that although the complainant used a key taken from her purse to unlock the apartment door for the officers, the complainant did not live there at the time of the search. Rather, she and her two children had moved out of the apartment weeks prior to the search and had taken most of their belongings. Moreover, testimony revealed that the complainant's name was not on the lease, she did not contribute to the rent, and Rodriguez did not know that she had a key to the apartment. Based on these facts, the trial court concluded that the complainant had no authority to consent to a search of the apartment and granted Rodriguez's motion to suppress.
On review, the Supreme Court agreed that under the ruling in Matlock, the complainant would not have the requisite access or control over the apartment to consent. However, the Court continued its analysis by concluding that a consent may be valid if, at the time of the search, police wrongly but reasonably believe that the consenting party possesses common authority over the premises. Thus, the Court created the concept of apparent authority.
In creating the concept of apparent authority, the Supreme Court recognized that the fourth amendment prohibits only unreasonable searches and seizures.(12) The Court has held repeatedly that while law enforcement officers do not have to be correct or certain in order to comply with the fourth amendment, they do have to be reasonable.
In Rodriguez, the Court found no justification to depart from this reasonableness standard when determining whether an individual has sufficient access and control over premises to give a valid consent to search. If it is reasonably apparent to officers that the individual giving consent has the authority to do so, then the fourth amendment reasonableness standard is satisfied.
The concept of apparent authority rewards officers who use good judgment and common sense when determining an individual's authority to consent. It is important to note, however, that apparent authority does not relieve officers of their obligation to ask questions and develop information with respect to a consenting individual's access and control. Because the burden of proof remains on the government to establish the reasonableness of the belief that the consenting individual had the authority to do so, it is important for officers to document the efforts they make to gather information regarding an individual's access and control over the property to be searched by consent.(13)
Scope of the Consent
In Florida v. Jimeno,(14) the Court attempted to clarify the scope of a lawful consent search. The case was initiated when an officer, who had previously overheard Jimeno setting up a drug deal, stopped him for a traffic violation. After issuing a traffic citation, the officer advised Jimeno that he had reason to believe that there were drugs in the car and asked for consent to search. Jimeno indicated he had nothing to hide and gave the officer permission to search. On the passenger side of the car, the officer found a folded brown paper bag that contained a kilogram of cocaine.
After being charged with possession with intent to distribute cocaine, Jimeno successfully moved the trial court to suppress the evidence on the grounds that his consent to search the car did not extend to containers inside the car. On review, the Supreme Court found Jimeno's argument to be an illogical repudiation of the fourth amendment reasonableness standard and held that the "standard for measuring the scope of a suspect's consent...is that of 'objective reasonableness' - what would the typical reasonable person have understood by the exchange between the officer and the suspect."(15)
Applying the "objective reasonableness" standard to the facts in Jimeno, the Court concluded that it was reasonable for the officer to believe Jimeno's general consent to search his car included the bag lying on the floor of the car. Therefore, the search was lawful.
The Court's adoption of the objective reasonableness standard for measuring the scope of a consent closed the door on defense attempts to limit searches by arguments that defy logic. Law enforcement officers are not required to consider every conceivable interpretation of a consent prior to carrying out a search. Rather, officers are simply required to give the consent a reasonable interpretation when acting upon it.
If officers identify the specific object of their search when requesting consent to search, the scope of the consent subsequently given is easy to define. A voluntary consent given to search for a specific object allows officers to look anywhere that object reasonably could be concealed. For example, officers who receive consent to search an area for drugs can logically conclude that they may search wherever drugs reasonably could be hidden.(16)
CONFLICTING RESPONSES TO REQUESTS FOR CONSENT
The Supreme Court's decisions in Rodriguez and Jimeno clarified several consent issues, and by applying a standard of reasonableness, brought consent in line with all areas of fourth amendment law. While the Court has not resolved the often-confronted question of whether a consent is valid if it follows another individuals refusal to consent, lower federal courts have addressed that issue.
Lower Federal Court Decision
In United States v. Morning,(17) federal law enforcement officers received information from a confidential source that a woman and a man named "Poncho" had a large quantity of marijuana at their residence. Acting on this information, two officers knocked on the front door and advised Morning, the woman who answered the door, that they were conducting a drug investigation and would like permission to search the premises.
When Morning replied that she would prefer that they get a warrant, the officers asked if anybody else lived in the house. In response, Morning stated that Poncho also lived there and she left to get him. When Poncho came to the door, the officers again stated their purpose in being there and asked Poncho for consent to search. Poncho not only consented to the search but also told the officers where they could find the marijuana.
After the officers searched the residence and found 226 pounds of marijuana, Poncho and Morning were arrested and charged with possession with intent to deliver. In a subsequent motion to suppress. Morning argued that the search of the residence without a warrant could not be justified by Poncho's consent because she had previously denied consent by stating her preference for a warrant. When the trial court rejected Morning's argument, she entered a plea of guilty and preserved her argument for appeal.
On appeal, the U.S. Court of Appeals for the Ninth Circuit first reviewed the facts to determine whether Poncho and Morning had common authority to consent to a search of the premises, using the Matlock formula of lawful access and control. Finding that both individuals lived in and shared the very small house in question, the court concluded that there was joint access and control and either party could lawfully consent to a search of the premises.(18)
Next, the court undertook the real question at issue - whether Poncho's otherwise valid consent to search was nullified by Morning's previous refusal to consent. First, the court reviewed the Supreme Court's decision in Matlock and quoted the following passage:
[W]here people have joint access and control over property 'it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.(19)
Emphasizing the Supreme Court's notion of assumption of the risk, the court concluded that individuals who refuse to consent to a search of an area over which they share access and control do not have a right to expect that those with whom they share will likewise deny their consent. Individuals who refuse to consent may have a fond hope that others will follow suit, but fond hopes are not protected by the Constitution.
Applying this rationale to the facts in Morning, the court found that by sharing premises with Poncho, Morning assumed the risk that he would consent to a search of those premises. This assumption was, in no way, affected by Morning's efforts to exercise her own right of privacy by denying consent to search.(20)
The court's reasoning in Morning is compatible with that of several other courts that have dealt with the same issue.(21) Courts consistently hold that assumption of the risk precludes a defendant from successfully claiming that fourth amendment rights have been violated when another person consents to a search of a shared area, even when the other's consent follows the defendant's refusal to do so.(22)
Equal Access Necessary to Override Refusal to Consent
Law enforcement officers who conduct a search based on an individual's consent that follows another individual's refusal to consent must be careful to determine that the consenting individual has, at least, equal access and control over the area being searched. Only a consent given by a person with equal or superior access and control over an area can supersede another's refusal to consent.
In United States v. Impink,(23) for example, a landlord, who had retained the right to access leased premises for the limited purpose of storing a piece of equipment, noticed some suspicious glasses, flasks, and burners on the property. The landlord subsequently notified the police and gave an implied consent to a search of the premises. This consent was followed by the tenant's specific refusal to consent. When 50 pounds of methamphetamine subsequently were found on the premises, the tenant was arrested and ultimately convicted.
When this case reached the U.S. Court of Appeals for the Ninth Circuit, the court noted that the landlord's right of access was extremely limited and considerably inferior to that of the tenant. Given the landlord's unequal right of access, coupled with the tenant's refusal to consent, the court held that the search of the premises pursuant to the landlord's consent was a denial of the tenant's fourth amendment rights and suppressed the evidence.(24)
Because only a person with an equal or greater right of access can override another's refusal to consent, law enforcement officers must be careful to develop facts that would allow them to reasonably conclude that the person giving consent has such equal or greater right. Once this reasonable conclusion is drawn, officers can act on the consent, despite the protest of the nonconsenting party.
Consent is a viable exception to the fourth amendment warrant requirement when obtaining a warrant is not practicable. The Supreme Court has ruled that the standard for reviewing the lawfulness of a consent search is objective reasonableness, thereby obviating the need for law enforcement officers to be absolutely correct when conducting a search pursuant to a consent. Moreover, the legality of a search following conflicting responses to a request for consent has received approval from the lower courts where the consenting person has, at least, equal access and control over the area being searched.
The overall effect of these recent cases is that consent has become a more valuable investigative tool. Law enforcement officers must always be mindful, however, that the government bears the burden of proving the lawfulness of any consent search. Accordingly, officers who rely on a consent to search must be careful to develop the necessary facts to justify reliance on the consent and to document thoroughly the circumstances surrounding the consent. Where feasible, it also is advisable for officers to consult with a legal advisor prior to conducting a consent search.
1 412 U.S. 218 (1973).
2 415 U.S. 164 (1974).
3 110 S.Ct. 2793 (1990).
4 111 S.Ct. 1801 (1991).
5 412 U.S. at 227.
7 United States v. Wilkinson, 926 F.2d 22 (1st Cir. 1990), cert. denied, 501 U.S. 1211 (1991).
9 415 U.S. at 171.
10 In Matlock, the Court instructed lower courts to evaluate common authority to consent to a search as follows:
Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements,...but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.
11 110 S.Ct. 2793 (1990).
12 U.S. Const. amend. IV reads in pertinent part: "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated...."
13 See, e.g., People v. Kramer, 562 N.E.2d 654 (Ill. App. 4 Dist. 1990), appeal denied, 571 N.E.2d 152 (1991).
14 111 S.Ct. 1801 (1991).
15 Id. at 1803-4.
16 For a discussion of locked containers in the area subject to search, see Crawford, "The Consent to Search Doctrine - Apparent Refinements," FBI Law Enforcement Bulletin, July 1992, pp. 26-32.
17 64 F.3d 531 (9th Cir. 1995), cert denied. 116 S.Ct. 1030 (1996).
18 The district court actually found that Poncho had "superior authority" over the premises because he resided there full time and paid the bills. Id. at 534.
19 Id. at 536 quoting Matlock, 415 U.S. at 171 n. 7.
21 See, e.g., United States v. Sumlin, 567 F.2d 684 (6th Cir. 1977), cert. denied, 435 U.S. 932 (1978); United States v. Hendriz, 595 F.2d 883 (D.C. Cir. 1979); United States v. Morales, 861 F.2d 396 (3d Cir. 1988)(fn. 9); J.L. Foti Construction Co. v. Donavan, 786 F.2d 714 (6th Cir. 1986).
23 728 F.2d 1228 (9th Cir. 1984).
24 See also, United States v. Warner, 843 F.2d 401 (9th Cir. 1988).
Special Agent Crawford is a legal instructor at the FBI Academy.…