The Consent to Search Doctrine: 'Apparent Refinements.'

Article excerpt

Since the Supreme Court decided United States v. Matlock (1) in 1974, consent as an exception to the fourth amendment warrant requirement has been a fairly well-settled doctrine. Following Matlock, only a few questions pertaining to consent searches remained unresolved. Recently, the Supreme Court took steps to answer those few remaining questions.

Specifically, the Court decided the cases of Illinois v. Rodriguez (2) and Florida v. Jimeno, (3) which resulted in "apparent" refinements in the consent to search doctrine. Illinois v. Rodriguez recognized the concept of apparent authority in consent to search cases; Florida v. Jimeno defined the scope of consent searches as what is apparently reasonable. This article focuses on these recent cases, looks at how lower courts are interpreting them, and offers recommendations on a consent issue that remains unresolved.


In Illinois v. Rodriguez, (4) police officers were called to the home of Dorothy Jackson, where Jackson's daughter, Gail Fischer, met them. Fischer, who showed obvious signs of a recent beating, advised the officers that her boyfriend, Edward Rodriguez, assaulted her earlier that day. Fischer further advised that Rodriguez was currently asleep in their apartment.

When asked, Fischer agreed to go with the officers to the apartment in order to unlock the door. Once on the scene, Fischer unlocked the door with a key she took from her purse and gave the officers permission to enter. Inside the apartment, the officers not only found Rodriguez asleep in the bedroom but they also observed a substantial quantity of cocaine and drug paraphernalia in plain view. Rodriguez was arrested, and the drugs were seized.

Rodriguez was charged with possession of a controlled substance with intent to deliver. However, he moved to suppress all the evidence on the grounds that Fischer had no authority to consent to a search of his apartment.

At a subsequent suppression hearing, it was discovered that at the time of the search, Fischer no longer lived in the apartment. Rather, Fischer and her two children moved out of the apartment almost 1 month prior to the search and took most of their belongings with them.

Furthermore, testimony at the hearing revealed that Fischer'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 held that Fischer had no authority to consent to a search of the apartment and granted Rodriguez' motion to sup press. After State court appeals were exhausted, (5) the U.S. Supreme Court granted review. (6)

On review, the Supreme Court reiterated its earlier decision in Matlock and held that authority to consent to a search depends "on mutual use of the property by persons generally having joint access or control for most purposes...." (7) Applying the facts in Rodriguez, it became clear that Fischer did not have mutual use, joint access, or control over the apartment, and therefore, did not have authority to consent to the search. However, the Court continued its analysis and considered a question left unresolved in Matlock, that is, "Is a consent valid if, at the time of the search, police wrongly but reasonably believe that the consenting party possesses common authority over the premises?" Answering this question in the affirmative, the Supreme Court recognized as valid the concept of "apparent authority."


In accepting the concept of "apparent authority," the Supreme Court simply stayed in keeping with its earlier fourth amendment interpretations. Recognizing that the fourth amendment prohibits only unreasonable searches and seizures, (8) the Court has repeatedly held that law enforcement officers do not have to be correct or certain in order to comply with the amendment, they merely have to be reasonable. …