Reconciling Consent Searches and Fourth Amendment Jurisprudence: Incorporating Privacy into the Test for Valid Consent Searches
Housholder, David John, Vanderbilt Law Review
The Fourth Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.1
Perhaps the most significant exception to the requirements of the Fourth Amendment is the consent search,2 which requires no warrant, exigent circumstances, probable cause, or reasonable suspicion.3
Some scholars have suggested that the Supreme Court's voluntariness standard4 for determining consensual searches misperceives the level of coercion inherent in almost any encounter with the police.5 Certain state courts have taken measures beyond those mandated by the Supreme Court to try to ensure that the consent given is truly the product of the person's free will and not due to any coercion.6 Some courts, legislatures, and police departments have limited or banned consent searches following traffic stops, mainly due to concerns over racial profiling.7
This Note argues that an element of privacy should be considered in determining the validity of the consent given to a search request. The element of privacy would be based on a person's expectation of privacy in a particular location as determined by Fourth Amendment case law. This change is necessary to bring the law of consent searches into congruence with the hierarchy of privacy protections that are evident in Fourth Amendment jurisprudence.8
Part II of this Note describes the primary cases determining whether a search has occurred and how federal courts analyze consent search cases. Part III describes state approaches to the different contexts in which consent search issues arise. Part IV presents and analyzes possible doctrinal bases for consent searches, and considers aspects of the concept of voluntariness through reference to psychological research. Part V argues in favor of considering privacy in determining the validity of consent to search.
II. SEARCH AND SEIZURE AND CONSENT SEARCHES
This Part provides background information on the fundamentals of the law of consent and searches. The first section briefly traces the history of the law of searches. The second section analyzes the landmark case of Katz v. United States.9 The third section describes how the Court used the Katz framework to decide cases presenting a variety of factual settings. The fourth section analyzes a recent case, Kyllo v. United States,10 which may alter the Katz framework. The final two sections analyze, respectively, the basis of consent searches, including the landmark Supreme Court case Schneckloth v. Bustamonte,11 and the factors that courts use to determine voluntariness.
A. Common Law Trespass Test
The Supreme Court used a physical invasion test,12 also referred to as the trespass test, to decide early search cases.13 In the 1928 case Olmstead v. United States, the Court held that wiretapping did not amount to a search or seizure.14 To reach this result, the Court focused on the absence of physical entry onto the defendant's property. The Court stated, "The evidence was secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendants."15 The Court stated that no cases it cited or that had been brought to its attention held the Fourth Amendment to be violated unless there was "an official search and seizure of his person or such a seizure of his papers or his tangible material effects or an actual physical invasion of his house 'or curtilage.' "16
B. Katz: The Demise of the Trespass Test?
Katz v. United States, decided in 1967, rejected the trespass test and articulated a different analysis for search cases.17 Katz was convicted for transmitting wagering information by telephone in violation of a federal statute. …