Immigration Lawyers New York



Searches and Seizures: Consent

A person can consent to a search - that will usually make a warrantless search constitutional. Of course, the nature of a consent, the surrounding circumstances, whether or not the person was authorized to give consent (and other considerations) may invalidate it. This section deals with these issues.

Court Opinions on the Topic:

Illinois v. Rodriguez (1990)
Georgia v. Randolph (2006)


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What respondent is assured by the Fourth Amendment is not that no government search of his house will occur unless he consents; but that no such search will occur that is "unreasonable." As with the many other factual determinations that must regularly be made by government agents in the Fourth Amendment context, the "reasonableness" of a police determination of consent to enter must be judged not by whether the police were correct in their assessment, but by the objective standard of whether the facts available at the moment would warrant a person of reasonable caution in the belief that the consenting party had authority over the premises. If not, then warrantless entry without further inquiry is unlawful unless authority actually exists. But if so, the search is valid.

On remand, the appellate court must determine whether the police reasonably believed that Fischer had authority to consent to the entry into respondent's apartment.

[...]

...[W]hat we hold today does not suggest that law enforcement officers may always accept a person's invitation to enter premises. Even when the invitation is accompanied by an explicit assertion that the person lives there, the surrounding circumstances could conceivably be such that a reasonable person would doubt its truth and not act upon it without further inquiry.

[...]

Illinois v. Rodriguez (1990)
The Honorable Justice MARSHALL, with whom JUSTICE BRENNAN and JUSTICE STEVENS join, dissenting:
The majority's [opinion]... rests on a misconception of the basis for third-party consent searches. That such searches do not give rise to claims of constitutional violations rests not on the premise that they are "reasonable" under the Fourth Amendment, but on the premise that a person may voluntarily limit his expectation of privacy by allowing others to exercise authority over his possessions. [...] If an individual has not so limited his expectation of privacy, the police may not dispense with the safeguards established by the Fourth Amendment. [...] That a person who allows another joint access to his property thereby limits his expectation of privacy does not justify trampling the rights of a person who has not similarly relinquished any of his privacy expectation.

[...]

Almost 20 years ago [written in 1991], this Court held that an individual could validly "consent" to a search -- or, in other words, waive his right to be free from an otherwise unlawful search -- without being told that he had the right to withhold his consent. See Schneckloth v. Bustamonte, 412 U.S. 218 (1973). In Schneckloth, as in this case, the Court cited the practical interests in efficacious law enforcement as the basis for not requiring the police to take meaningful steps to establish the basis of an individual's consent. I dissented in Schneckloth, and what I wrote in that case applies with equal force here.

"I must conclude, with some reluctance, that when the Court speaks of practicality, what it really is talking of is the continued ability of the police to capitalize on the ignorance of citizens so as to accomplish by subterfuge what they could not achieve by relying only on the knowing relinquishment of constitutional rights."

[...]

While state hospital employees, like other citizens, may have a duty to provide the police with evidence of criminal conduct that they inadvertently acquire in the course of routine treatment, when they undertake to obtain such evidence from their patients for the specific purpose of incriminating those patients, they have a special obligation to make sure that the patients are fully informed about their constitutional rights, as standards of knowing waiver require.

[...]

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