Academic journal article
By Gan, Orit
Duke Journal of Gender Law & Policy , Vol. 19, No. 2
How does the law construct consent? This Article explores this question in the context of Supreme Court decisions regarding third-party consent to searches of dwellings. Using textual analysis, a method rarely used in Fourth Amendment law, this Article argues that the Supreme Court employs an a-contextual and gender-blind analysis of consent that is insensitive to power dynamics. Using the feminist scholarship on consent, this Article critiques the notion of consent as developed by the Supreme Court. At the same time it rejects the feminist redefinition of consent as vague and unclear.
This Article proposes that the third-party consent to search doctrine involves a triangular relation between the police officer, the consenting third-party, and the suspect. Accordingly, this Article explores each edge of the triangle. This triangular relation analysis shows that the problematic notion of consent is more acute in third-party consent cases than in other consensual search cases. Thus, this Article proposes the abolition of the third-party consent to search doctrine.
Cases of third-party consent to search of the home are a drama with three participants: the police officer, the consenting third-party, and the suspect or defendant. Consider, for example, the facts of the Supreme Court case, Georgia v. Randolph. (1) Janet Randolph called the police to complain about a domestic dispute she had with her husband. (2) When Sergeant Murray came to the Randolphs' home, Ms. Randolph told him that Mr. Randolph was a drug user. (3) Sergeant Murray also learned that Ms. Randolph had returned to the family's dwelling after taking their son to her parents' home in Canada. (4) After their return, Mr. Randolph took their son to their neighbors' house to prevent Ms. Randolph from taking him away again. (5) Sergeant Murray asked Mr. Randolph's permission to search the Randolphs' house and Mr. Randolph refused. (6) After Mr. Randolph's refusal, Ms. Randolph readily gave her consent to search the house. (7) Evidence of drug abuse was found in the search and was later used against Mr. Randolph in a court of law. (8)
This scenario was full of dramatic tensions: first was the tension between Mr. Randolph and Ms. Randolph. The couple had a domestic dispute so severe that Ms. Randolph felt the need for police intervention. (9) They disagreed about whether to let the police search the house. (10) They also had conflicting interests: Mr. Randolph had an interest in hiding evidence of his drug use from the police while Ms. Randolph had an interest in having the police intervene in the domestic dispute she had with her husband. (11) Second, there was a tension between Ms. Randolph and Sergeant Murray. The police officer was in a position of authority relative to Ms. Randolph, and he requested to intrude into the privacy of Ms. Randolph's home. (12) Even though she called the police, Ms. Randolph's permission was required for a state representative to enter her home. (13) Third, there was a tension between Mr. Randolph and Sergeant Murray. In contrast to other cases where the objecting suspect was absent from the home, Mr. Randolph was physically present and voiced his objection to the search. (14) Sergeant Murray faced a disputed consent where one occupant invited him into the house and the other did not allow the search. (15) At the same time, Mr. Randolph had an interest in overriding his wife's permission to the search. (16)
This Article puts this triangular drama at the center of it's analysis of third-party consent to search doctrine. Following a brief description of this area of Fourth Amendment law in Part II, this Article argues that this doctrine involves a triangular relation between the police officer and the two co-occupants. (17) In order to better understand these situations, this Article analyzes each edge of the triangle and explores the dynamics between the three players. The relational dynamics between the two co-occupants are examined in Part III. …