Irrevocable Implied Consent: The "Roach Motel" in Consent Search Jurisprudence!
Peterson, Christopher M., American Criminal Law Review
One May morning, a security officer stopped Greg Morgan at the gates of Edwards Air Force Base. (1) Morgan, who worked as a civilian air traffic controller on the base, showed the officer his identification badge as required, but instead of permitting Morgan to continue on his way to work, the officer ordered Morgan to pull his Jeep Cherokee over to the side of the road. (2) There, the officer, reading from a script, requested that Morgan consent to a vehicle search. (3)
Morgan refused, explaining that he believed the search would make him late for work. (4) Two other security officers joined the first to confer at Morgan's vehicle. (5) One of the officers requested Morgan's license, registration, and proof of insurance, but then returned to conferring with his fellow officers. (6) Realizing that he would be late for work, Morgan exited his Jeep to find a phone to contact his employer. (7) When Morgan was ordered to stop, which he did, Morgan asked if he was under arrest/ The officer replied, "No," only to then shout, "Cover me," to his fellow officers and handcuff Morgan. (9)
Base security conducted a search of Morgan's person and vehicle and uncovered a semi-automatic pistol. (10) Morgan was detained and charged." A municipal court later found that no probable cause existed to conduct a search or bring charges against Morgan; all state charges were then dropped. (12)
Morgan filed a complaint in federal court, stating that, among other claims, the security officers at the gate had violated his rights under the Fourth Amendment when they conducted a search of his person and vehicle without probable cause. (13) The district court dismissed all claims with prejudice, and Morgan appealed the dismissal to the Ninth Circuit. (14)
The Court agreed that the security guards lacked probable cause to conduct the search but found that probable cause was not necessary. (15) The Court held that a person may impliedly consent to a search by presenting himself at a military gate, and then remanded the case to the district court, to determine whether Morgan had impliedly consented to the search. (16) By his act of driving up to the secured entrance of Edwards Air Force Base, Morgan might have given his implicit consent to a search. This implicit consent would have made the search reasonable whether or not Morgan actually knew a search was imminent. The Ninth Circuit decision in Morgan v. United States ignored Morgan's explicit refusal of consent, suggesting that it was reasonable that once Morgan was within the grasp of base personnel, he could not reasonably expect to leave without their permission.
Morgan and similar cases expose the consent search doctrine's drift from a foundation based on actual consent by the searched party to focusing on the needs of law enforcement. This drift has made "consent search" a misnomer--law enforcement officials can conduct a search under the auspices of the consent search when clearly no consent has been granted. The consent search doctrine is applied in situations where the suspect has not provided consent, does not have the opportunity to correct erroneously given "consent," and it is apparent that consent has never been given. When the doctrine is applied in this fashion, it inadvertently empowers law enforcement agents to engage in potentially invasive and discriminatory practices.
This Note discusses the implications of an irrevocable implied consent search doctrine. Part I discusses the constitutional underpinnings of the consent search doctrine, how it compares to other exceptions to the Fourth Amendment, and why it is a popular doctrine among law enforcement agents. Part II discusses instances where implied consent can serve as permissible grounds for a search. Part III discusses the importance of withdrawal to the consent search doctrine. Part IV discusses the implications of an irrevocable, implied consent search doctrine. …