August 1996




     Consent Searches: Guidelines for Officers


           By Kimberly A. Crawford, J.D.


_________________


Special Agent Crawford is a legal instructor at the FBI Academy.
_________________


Law enforcement officers are not required to consider every
conceivable interpretation of a consent prior to carrying out a
search.


Consent can be an effective weapon in an investigator's arsenal.
When asked for permission to search, individuals with plenty to
hide often defy common sense and waive their constitutional right
to privacy. Evidence confiscated during a consent search is
admissible in a subsequent trial, as long as the officer
conducting the search follows the fundamental requirements of the
consent to search doctrine and is able to prove the same.


When the Supreme Court decided Schneckloth v. Bustamonte1  in
1973, and United States v. Matlock2 in 1974, consent as an
exception to the fourth amendment warrant requirement became a
fairly well-settled principal of law. Of the few questions
pertaining to consent searches that remained unresolved following
Schneckloth and Matlock, most were answered by the Supreme Court
in the cases of Illinois v. Rodriguez3 and Florida v. Jimeno.4
However, one question relating to consent searches that    
remains unanswered by the Supreme Court is whether law
enforcement officers can rely on an individual's consent that is
given in the wake of another individual's refusal to consent.


This article examines the parameters of the consent to search
doctrine established by the Supreme Court in Schneckloth,
Matlock, Rodriguez, and Jimeno. It then discusses legal and
policy considerations for investigators when seeking consent from
one person following another person's refusal to consent.


FOUNDATIONS OF THE CONSENT TO SEARCH DOCTRINE 


In Schneckloth and Matlock, the Supreme Court established the two
prerequisites for a valid consent to search. Specifically, the
Court held that a lawful consent must be given voluntarily and by
a person with authority. Moreover, because consent is an
exception to the general requirement that searches be conducted
pursuant to a warrant, the government bears the burden of proving
both of these prerequisites.


When determining the voluntariness of a consent to search, courts
use a "totality of the circumstances"5 test, where all the
factors surrounding the consent are examined to determine whether
it was a product of the consenter's free will. Using this test,
courts have concluded that the following factors do not
necessarily render a consent involuntary:


 1) The failure to advise an individual of the right to refuse
 consent6
 2) The fact that officers had their weapons drawn and had
 handcuffed an individual prior to asking for consent,7 and
 3) The obtaining of consent from a person under the influence of
 drugs.8


Officers should recognize, however, that although these factors
do not automatically necessitate a finding of involuntariness,
they are factors that courts carefully weigh in the totality of
circumstances test to determine the voluntariness of a consent.


The determination of who has lawful authority to consent to a
search will depend initially on the object of the intended
search. If law enforcement officers want permission to search a
person, then only the person to be searched has the authority to
consent. If, on the other hand, officers desire to search
premises, vehicles, or items of personal property that can be
shared by two or more people, the determination of who may
consent to the search will require an analysis of who has a
fourth amendment right of privacy in the area.9


Because consent is a waiver of the fourth amendment right of
privacy, only an individual with that right of privacy may
consent to a search. The fourth amendment right of privacy,
however, is not a function of ownership. Thus, the fact that an
individual owns an apartment building does not automatically give
this individual a fourth amendment right of privacy in a rented
apartment that he can waive by consent.


Rather than ownership, the courts look for lawful access and
control when determining authority to consent. If individuals
share access and control over an area, there is common authority
to consent to search of that area.10


REFINEMENTS TO THE CONSENT DOCTRINE


In the two decades that followed the Schneckloth and Matlock
decisions, the Court further refined the parameters of the
consent doctrine by addressing two questions of importance to
investigators. First, can consent be obtained lawfully from a
person with "apparent authority"? Second, what is the appropriate
test for officers to determine the scope of a person's consent?


Apparent Authority Ruled Sufficient


In Illinois v. Rodriguez,11 the Court created the concept of      
apparent authority, which gives law enforcement officers some
latitude when attempting to ascertain who has authority to
consent to a search. The case arose when police, responding to a
domestic complaint, entered an apartment pursuant to the
complainant's consent. Once inside, officers arrested Rodriguez
and seized a substantial quantity of cocaine and drug
paraphernalia that was in plain view.


At a subsequent suppression hearing, the court discovered that
although the complainant used a key taken from her purse to
unlock the apartment door for the officers, the complainant did
not live there at the time of the search. Rather, she and her two
children had moved out of the apartment weeks prior to the search
and had taken most of their belongings. Moreover, testimony
revealed that the complainant'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 concluded that the complainant had no authority to consent
to a search of the apartment and granted Rodriguez's motion to
suppress.


On review, the Supreme Court agreed that under the ruling in
Matlock, the complainant would   not have the requisite access or
control over the apartment to consent. However, the Court
continued its analysis by concluding that a consent may be valid
if, at the time of the search, police wrongly but reasonably
believe that the consenting party possesses common authority over
the premises. Thus, the Court created the concept of apparent   
authority.


In creating the concept of apparent authority, the Supreme  Court
recognized that the fourth amendment prohibits only unreasonable
searches and seizures.12 The Court has held repeatedly that   
while law enforcement officers do not have to be correct or
certain in order to comply with the fourth amendment, they do
have to be reasonable.


In Rodriguez, the Court found no justification to depart from
this reasonableness standard when determining whether an
individual has sufficient access and control over premises to
give a valid consent to search. If it is reasonably apparent to
officers that the individual giving consent has the authority to
do so, then the fourth amendment reasonableness standard is
satisfied.


The concept of apparent authority rewards officers who use good
judgment and common sense when determining an individual's
authority to consent. It is important to note, however, that
apparent authority does not relieve officers of their   
obligation to ask questions and develop information with respect
to a consenting individual's access and control. Because the
burden of  proof remains on the government to establish the
reasonableness of the belief that the consenting individual had
the authority to do so, it is important for officers to document
the efforts they make to gather information regarding an
individual's access and control over the property to be searched
by consent.13


Scope of the Consent


In Florida v. Jimeno,14 the Court attempted to clarify the scope
of a lawful consent search. The case was initiated when an
officer, who had previously overheard Jimeno setting up a drug
deal, stopped him for a traffic violation. After issuing a
traffic citation, the officer advised Jimeno that he had reason
to believe that there were drugs in the car and asked for consent
to search.  Jimeno indicated he had nothing to hide and gave the
officer permission to search. On the passenger side of the car,
the officer found a folded brown paper bag that contained a
kilogram of cocaine.


After being charged with possession with intent to distribute
cocaine, Jimeno successfully moved the trial court to suppress
the evidence on the grounds that his consent to search the car
did not extend to containers inside the car. On review, the
Supreme Court found Jimeno's argument to be an illogical
repudiation of the fourth amendment reasonableness standard and
held that the "standard for measuring the scope of a suspect's
consent...is that of 'objective reasonableness'--what would the
typical reasonable person have understood by the exchange between
the officer and the suspect."15


Applying the "objective reasonableness" standard to the facts in
Jimeno, the Court concluded that it was reasonable for the
officer to  believe Jimeno's general consent to search his car
included the bag lying on the floor of the car. Therefore, the
search was lawful.


The Court's adoption of the objective reasonableness standard for
measuring the scope of a consent closed the door on defense
attempts to limit searches by arguments that defy logic. Law
enforcement offi-cers are not required to consider every
conceivable interpretation of a consent prior to carrying out a
search. Rather, officers are simply required to give the consent
a reasonable interpretation when acting upon it.


If officers identify the specific object of their search when
requesting consent to search, the scope of the consent
subsequently given is easy to define. A voluntary consent given
to search for a specific object allows officers to look anywhere
that object reasonably could be concealed. For example, officers
who receive consent to search an area for drugs can logically
conclude that they may search wherever drugs reasonably could be
hidden.16


CONFLICTING RESPONSES TO REQUESTS FOR CONSENT


The Supreme Court's decisions in Rodriguez and Jimeno clarified
several consent issues, and by applying a standard of
reasonableness, brought consent in line with all areas of fourth
amendment law. While the Court has not resolved the
often-confronted question of whether a consent is valid if it
follows another individuals refusal to consent, lower federal
courts have addressed that issue.


Lower Federal Court Decision


In United States v. Morning,17 federal law enforcement officers
received information from a confidential source that a woman and
a man named "Poncho" had a large quantity of marijuana at their
residence. Acting on this information, two officers knocked on
the front door and advised Morning, the woman who answered the
door, that they were conducting a drug investigation and would
like permission to search the premises.


When Morning replied that she would prefer that they get a
warrant, the officers asked if anybody else lived in the house. 
In response, Morning stated that Poncho also lived there and she
left to get him. When Poncho came to the door, the officers again
stated their purpose in being there and asked Poncho for consent
to search. Poncho not only consented to the search but also told
the officers where they could find the marijuana.


After the officers searched the residence and found 226 pounds of
marijuana, Poncho and Morning were arrested and charged with  
possession with intent to deliver. In a subsequent motion to
suppress, Morning argued that the search of the residence without
a warrant could not be justified by Poncho's consent because she
had previously denied consent by stating her preference for a
warrant. When the trial court rejected Morning's argument, she
entered a plea of guilty and preserved her argument for appeal.
On appeal, the U.S. Court of Appeals for the Ninth Circuit first
reviewed the facts to determine whether Poncho and Morning had
common authority to consent to a search of the premises, using
the Matlock formula of lawful access and control. Finding that
both individuals lived in and shared the very small house in
question, the court concluded that there was joint access and
control and either party could lawfully consent to a search of
the premises.18


Next, the court undertook the real question at issue_whether
Poncho's otherwise valid consent to search was nullified by
Morning's previous refusal to consent. First, the court reviewed
the Supreme Court's decision in Matlock and quoted the following
passage:
	[W]here people have joint access and control over property 
	'it is reasonable to recognize that any of the co-
	inhabitants has the right to permit the inspection in his 
	own right and that the others have assumed the risk that 
	one of their number might permit the common area to be 
	searched.19  


Emphasizing the Supreme Court's notion of assumption of the risk, 
the court concluded that individuals who refuse to consent to a
search of an area over which they share access and control do not
have a right to expect that those with whom they share will
likewise deny their consent. Individuals who refuse to consent
may have a fond hope that others will follow suit, but fond hopes
are not protected by the Constitution.


Applying this rationale to the facts in Morning, the court found
that by sharing premises with Poncho, Morning assumed the risk
that he would consent to a search of those premises. This
assumption was, in no way, affected by Morning's efforts to
exercise her own right of privacy by denying consent to search.20


The court's reasoning in Morning is compatible with that of
several other courts that have dealt with the same issue.21
Courts consistently hold that assumption of the risk precludes a
defendant from successfully claiming that fourth amendment rights
have been violated when another person consents to a search of a
shared area, even when the other's consent follows the
defendant's refusal to do so.22


Equal Access Necessary to Override Refusal to Consent


Law enforcement officers who conduct a search based on an
individual's consent that follows another individual's refusal to
consent must be careful to determine that the consenting
individual has, at least, equal access and control over the area
being searched. Only a consent given by a person with equal or
superior access and control over an area can supersede another's
refusal to consent.


In United States v. Impink,23 for example, a landlord, who had
retained the right to access leased premises for the limited
purpose of storing a piece of equipment, noticed some suspicious
glasses, flasks, and burners on the property. The landlord
subsequently notified the police and gave an implied consent to a
search of the premises. This consent was followed by the tenant's
specific refusal to consent. When 50 pounds of methamphetamine
subsequently were found on the premises, the tenant was arrested
and ultimately convicted.


When this case reached the U.S. Court of Appeals for the Ninth
Circuit, the court noted that the landlord's right of access was
extremely limited and considerably   inferior to that of the
tenant. Given the landlord's unequal right of access, coupled
with the tenant's refusal to consent, the court held that the
search of the premises pursuant to the landlord's consent was a
denial of the tenant's fourth amendment rights and suppressed the
evidence.24


Because only a person with an equal or greater right of access
can override another's refusal to consent, law enforcement
officers must be careful to develop facts that would allow them
to reasonably conclude that the person giving consent has such
equal or greater right. Once this reasonable conclusion is drawn,
officers can act on the consent, despite the protest of the
nonconsenting party.


CONCLUSION


Consent is a viable exception to the fourth amendment warrant
requirement when obtaining a warrant is not practicable. The
Supreme Court has ruled that the standard for reviewing the
lawfulness of a consent search is objective reasonableness,
thereby obviating the need for law enforcement officers to be
absolutely correct when conducting a search pursuant to a
consent. Moreover, the legality of a search following conflicting
responses to a request for consent has received approval from the
lower courts where the consenting person has, at least, equal
access and control over the area being searched.


The overall effect of these recent cases is that consent has
become a more valuable investigative tool. Law enforcement
officers must always be mindful, however, that the government
bears the burden of proving the lawfulness of any consent search.
Accordingly, officers who rely on a consent to search must be
careful to develop the necessary facts to justify reliance on the
consent and to document thoroughly the circumstances surrounding
the consent. Where feasible, it also is advisable for officers to
consult with a legal advisor prior to conducting a consent
search.


Endnotes


1 412 U.S. 218 (1973).
2 415 U.S. 164 (1974).
3 110 S.Ct. 2793 (1990).
4 111 S.Ct. 1801 (1991).
5 412 U.S. at 227.
6 Id. 
7 United States v.Wilkinson, 926 F.2d 22 (1st Cir. 1990), cert.
denied, 501 U.S. 1211 (1991).
8 Id.
9 415 U.S. at 171.
10 In Matlock, the Court instructed lower courts to evaluate
common authority to consent to a search as follows:
Common authority is, of course, not to be implied from the mere
property interest a third party has in the property. The
authority which justifies the third-party consent does not rest
upon the law of property, with its attendant historical and legal
refinements,...but rests rather on mutual use of the property by
persons generally having joint access or control for most
purposes, so that it is reasonable to recognize that any of the
co-inhabitants has the right to permit the inspection in his own
right and that the others have assumed the risk that one of their
number might permit the common area to be searched.
11 110 S.Ct. 2793 (1990).
12 U.S. Const. amend. IV reads in pertinent part: "The right of
the people to be secure in their persons, houses, papers and
effects, against unreasonable searches and seizures, shall not be
violated...."
13 See, e.g., People v. Kramer, 562 N.E.2d 654 (Ill. App. 4 Dist.
1990), appeal denied, 571 N.E.2d 152 (1991).
14 111 S.Ct. 1801 (1991).
15 Id. at 1803-4.
16 For a discussion of locked containers in the area subject to
search, see Crawford, "The Consent to Search Doctrine_Apparent
Refinements," FBI Law Enforcement Bulletin, July 1992, pp. 26-32.
17 64 F.3d 531 (9th Cir. 1995), cert denied, 116 S.Ct. 1030
(1996).
18 The district court actually found that Poncho had "superior
authority" over the premises because he resided there full time
and paid the bills. Id. at 534.
19 Id. at 536 quoting Matlock, 415 U.S. at 171 n. 7.
20 Id.
21 See, e.g., United States v. Sumlin, 567 F.2d 684 (6th Cir.
1977), cert. denied, 435 U.S. 932 (1978); United States v.
Hendriz, 595 F.2d 883 (D.C. Cir. 1979); United States v. Morales,
861 F.2d 396 (3d Cir. 1988)(fn. 9); J.L. Foti Construction Co. v.
Donavan, 786 F.2d 714 (6th Cir. 1986).
22 Id.
23 728 F.2d 1228 (9th Cir. 1984).
24 See also, United States v. Warner, 843 F.2d 401 (9th Cir.
1988).