Consent Searches

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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.

Fourth Amendment rights, like other constitutional rights, may be waived, and one may consent to a search of his person or premises by officers who have not complied with the Amendment.1 The Court, however, has insisted that the burden is on the prosecution to prove the voluntariness of the consent2 and awareness of the right of choice.3 Reviewing courts must determine on the basis of the totality of the circumstances whether consent has been freely given or has been coerced. Actual knowledge of the right to refuse consent is not essential for a search to be found voluntary, and police therefore are not required to inform a person of his rights, as through a Fourth Amendment version of Miranda warnings.4 But consent will not be regarded as voluntary when the officer asserts his official status and claim of right and the occupant yields because of these factors.5 When consent is obtained through the deception of an undercover officer or an informer’s gaining admission without advising a suspect who he is, the Court has held that the suspect has simply assumed the risk that an invitee would betray him, and evidence obtained through the deception is admissible.6 Moreover, while the Court has appeared to endorse implied consent laws that view individuals who engage in certain regulated activities as having implicitly agreed to certain searches related to that activity and the enforcement of such laws through civil penalties,7 the implied consent doctrine does not extend so far as to deem individuals to have impliedly consented to a search on “pain of committing a criminal offense.” 8

Additional issues arise in determining the validity of consent to search when consent is given not by the suspect, but by a third party. In the earlier cases, third-party consent was deemed sufficient if that party “possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” 9 Now, however, actual common authority over the premises is not required; it is sufficient if the searching officer had a reasonable but mistaken belief that the third party had common authority and could consent to the search.10 If, however, one occupant consents to a search of shared premises, but a physically present co-occupant expressly objects to the search, the search is unreasonable.11 Common social expectations inform the analysis. A person at the threshold of a residence could not confidently conclude he was welcome to enter over the express objection of a present co-tenant. Expectations may change, however, if the objecting co-tenant leaves, or is removed from, the premises with no prospect of imminent return.12

1: Amos v. United States, 255 U.S. 313 (1921); Zap v. United States, 328 U.S. 624 (1946); Schneckloth v. Bustamonte, 412 U.S. 218 (1973).
2: Bumper v. North Carolina, 391 U.S. 543 (1968).
3: Johnson v. United States, 333 U.S. 10, 13 (1948).
4: Schneckloth v. Bustamonte, 412 U.S. 218, 231–33 (1973). See also Ohio v. Robinette, 519 U.S. 33 (1996) (officer need not always inform a detained motorist that he is free to go before consent to search auto may be deemed voluntary); United States v. Drayton, 536 U.S. 194, 207 (2002) (totality of circumstances indicated that bus passenger consented to search even though officer did not explicitly state that passenger was free to refuse permission).
5: Amos v. United States, 255 U.S. 313 (1921); Johnson v. United States, 333 U.S. 10 (1948); Bumper v. North Carolina, 391 U.S. 543 (1968).
6: On Lee v. United States, 343 U.S. 747 (1952); Lopez v. United States, 373 U.S. 427 (1963); Hoffa v. United States, 385 U.S. 293 (1966); Lewis v. United States, 385 U.S. 206 (1966); United States v. White, 401 U.S. 745 (1971). Cf. Osborn v. United States, 385 U.S. 323 (1966) (prior judicial approval obtained before wired informer sent into defendant’s presence). Problems may be encountered by police, however, in special circumstances. See Massiah v. United States, 377 U.S. 201 (1964); United States v. Henry, 447 U.S. 264 (1980); United States v. Karo, 468 U.S. 705 (1984) (installation of beeper with consent of informer who sold container with beeper to suspect is permissible with prior judicial approval, but use of beeper to monitor private residence is not).
7: See, e.g., Missouri v. McNeely, 569 U.S. 141, 161 (2013) (plurality opinion) (discussing implied consent laws that “require motorists, as a condition of operating a motor vehicle, . . . to consent to [blood alcohol concentration] testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense” or risk losing their license); South Dakota v. Neville, 459 U.S. 553, 554, 563–64 (1983); see also Mitchell v Wisconsin, No. 18-6210 (U.S. June 27, 2019) (upholding Wisconsin’s implied consent law that allows for taking a blood sample from an unconscious drunk driver).
8: See Birchfield v. North Dakota, 136 S. Ct. 2160, 2185–86 (2016).
9: United States v. Matlock, 415 U.S. 164, 171 (1974) (valid consent by woman with whom defendant was living and sharing the bedroom searched). See also Chapman v. United States, 365 U.S. 610 (1961) (landlord’s consent insufficient); Stoner v. California, 376 U.S. 483 (1964) (hotel desk clerk lacked authority to consent to search of guest’s room); Frazier v. Culp, 394 U.S. 731 (1969) (joint user of duffel bag had authority to consent to search).
10: Illinois v. Rodriguez, 497 U.S. 177 (1990). See also Florida v. Jimeno, 500 U.S. 248, 251 (1991) (it was “objectively reasonable” for officer to believe that suspect’s consent to search his car for narcotics included consent to search containers found within the car).
11: Georgia v. Randolph, 547 U.S. 103 (2006) (warrantless search of a defendant’s residence based on his estranged wife’s consent was unreasonable and invalid as applied to a physically present defendant who expressly refused to permit entry). The Court in Randolph admitted that it was “drawing a fine line,” id. at 121, between situations where the defendant is present and expressly refuses consent, and that of United States v. Matlock, 415 U.S. 164, 171 (1974), and Illinois v. Rodriguez, 497 U.S. 177 (1990), where the defendants were nearby but were not asked for their permission. In a dissenting opinion, Chief Justice John Roberts observed that the majority’s ruling “provides protection on a random and happenstance basis, protecting, for example, a co-occupant who happens to be at the front door when the other occupant consents to a search, but not one napping or watching television in the next room.” 547 U.S. at 127.
12: Fernandez v. California, 571 U.S. 292 (2014) (consent by co-occupant sufficient to overcome objection of a second co-occupant who was arrested and removed from the premises, so long as the arrest and removal were objectively reasonable).