Third-Party Consent under the United States and Utah Constitutions: Should Utah Adopt the Federal Standard?

By Cook, S. Matthew | Brigham Young University Law Review, January 1, 1999 | Go to article overview
Save to active project

Third-Party Consent under the United States and Utah Constitutions: Should Utah Adopt the Federal Standard?

Cook, S. Matthew, Brigham Young University Law Review


A search conducted without a warrant is generally "per se unreasonable" under the Fourth Amendment' to the United States Constitution.2 The United States Supreme Court, however, has recognized several exceptions that justify a warrantless search.3 Consent by the person to be searched is one such exception.4 "It is . . . well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent."5 The issue, then, is who is authorized to give valid consent to search the defendant's property-is the criminal defendant alone authorized or may third parties also give valid consent?

A line of Supreme Court decisions6 answers this question by recognizing that, in addition to the criminal defendant, a third party who shares common authority over the property with the defendant may also give effective consent to a search of the defendant's property.7 In Illinois v. Rodriguez,8 the Supreme Court expanded the third-party consent doctrine by holding that a third party can give effective consent even though the third party has no actual authority to give consent.9 As long as the police officer reasonably believes that the consenting party has authority to give consent to the search, regardless of whether he in fact had such authority, the consent is valid.10 Many have criticized this "apparent authority" doctrine, viewing it as an unacceptable erosion of Fourth Amendment protections.ll As a result, several state courts have interpreted their state constitutions to give broader protection to criminal defendants in the area of third-party consent than those afforded by the United States Constitution.l2

The Utah Supreme Court has never expressly decided whether to incorporate federal third-party consent law into the state constitution13 or to interpret the Utah Constitution14 in a way that offers more protection to criminal defendants.15 The Utah Court has, however, recognized that given the similarity between the Fourth Amendment and Article I, Section 14 of the Utah Constitution,16 courts should refrain from drawing distinctions "between the protections afforded by the respective constitutional provisions" and should consider "the protections afforded to be one and the same."17 Nevertheless, the Utah Court has also acknowledged that this is merely a general policy and there will likely be appropriate times when local interests will compel an interpretation of the Utah Constitution that differs from the construction given to the United States Constitution.18 In an effort to determine whether the Fourth Amendment and Utah Constitution are conterminous, Utah appellate courts have invited attorneys to brief and argue whether any difference exists between the state and federal constitutional provisions.19

This Comment addresses the doctrine of third-party consent and analyzes whether the Utah Supreme Court should part company with the federal standard. Part II outlines the history and current state of the law with respect to third-party consent according to the United States Supreme Court. It also addresses some of the relationships in which a third party has given valid consent to search the property of a criminal defendant. Part III looks at how Utah courts have applied federal third-party consent law and addresses the willingness of Utah courts to determine whether the Utah and United States Constitutions are conterminous with respect to third-party consent. Part IV analyzes the criteria that should be used to determine whether to formally adopt the federal standard, then applies the criteria to critique the federal law. This Comment concludes that Utah should adopt the federal standard with respect to third-party consent generally, but should not completely incorporate the federal apparent authority standard. Instead, Utah should adopt a modified version of the apparent authority doctrine.


The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

Third-Party Consent under the United States and Utah Constitutions: Should Utah Adopt the Federal Standard?


Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?