Academic journal article Washington Law Review

Third Party Consent and Container Searches in the Home

Academic journal article Washington Law Review

Third Party Consent and Container Searches in the Home

Article excerpt


Davon Peyton, a young adult, lives in a one-bedroom apartment with his grandmother.1 Both Peyton and his grandmother are on the lease- she lives in the bedroom, and Peyton lives in a corner of the living room.2 The police suspect Peyton has something illegal in the apartment, but they do not have a search warrant or even probable cause to request one.3 One day, when the police know that Peyton is not home, officers knock on the door and ask Peyton's grandmother if they can search the apartment.4 She consents to a search but wams the police that Peyton keeps his private possessions near the bed in the living room.5 The police ignore the warning and proceed to search Peyton's space and personal belongings.6

Like Peyton and his grandmother, millions of American adults share a living space with intermingled possessions, making it critically important that American residents have clear rules governing the searches of shared living spaces and containers therein.7 These searches implicate a judicially created rule known as the "apparent authority doctrine," which permits law enforcement officers to rely on the consent of a person they reasonably believe has authority over the premises.8 However, the circuit courts have developed different approaches to applying the apparent authority doctrine to searches of containers in a home. Thus, the outcome of Peyton's case may differ depending on which court hears the case.

Fortunately for Peyton, his case was heard by the D.C. Circuit in United States v. Peyton9 Applying the ambiguity approach, the court held that the police officers' conduct violated the apparent authority doctrine. The court explained that Peyton's grandmother's warning created sufficient ambiguity to make it unreasonable for the police to assume her consent extended to Peyton's personal belongings.10 In contrast, the Second and Seventh Circuits apply the obviousness approach.11 Under this standard, the search would have been proper because the area searched did not have clear signs of Peyton's ownership, such as a label, that would require the police to conclude that it obviously did not belong to the grandmother.12

The ambiguity approach articulated by the D.C. Circuit is the only approach currently used in the circuit courts that complies with Supreme Court precedent and widely shared social expectations. However, the case-by-case analysis is both administratively cumbersome and difficult to predict.13 This Comment advocates a new approach that goes further in protecting individual privacy.

To properly safeguard individuals' constitutional right to privacy in their home, law enforcement officers should have an affirmative duty to clarify the scope of the consenting party's authority by asking if they have actual authority over each container in a common area.14 Under this approach, if police receive consent to search a living room and then find a backpack, they would have an affirmative duty to ask the consenting party, "Does this backpack belong to you?"15 Anything short of this bright-line clarification would render the search unreasonable and outside the protection of the apparent authority doctrine.

This Comment presents this argument in five main parts. Part I of this Comment examines the history of the third party consent doctrine through an analysis of landmark Supreme Court cases. Part II explores the Supreme Court's tradition of protecting individuals' privacy rights in their homes and examines modern trends in cohabitation. Part III considers the conflicting circuit court decisions that arose in the wake of the Supreme Court's decision in United States v. Matlock16 and its progeny. Part IV demonstrates that the two approaches currently used by circuit courts fail to adequately protect individuals' privacy expectations in the home. Part V argues that the Supreme Court should abandon the standard-based approach and adopt a bright-line rule for third party consent searches of closed containers. …

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