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.