Consent Searches and the Fourth Amendment: What's Wrong With "Apparent" Consent?

By SHERRY F. COLB
Wednesday, Jan. 24, 2007

On January 11, the U.S. Court of Appeals for the Fourth Circuit affirmed a lower court's refusal to suppress a criminal defendant's password-protected computer files. The police had located the files in question during a warrantless search of the defendant's computer, authorized by his wife.

The court found that the wife, on the facts, lacked actual authority to consent to the search in question, but, it determined, because the police reasonably believed that she had had the requisite authority, the search did not violate the Fourth Amendment.

The case provides a useful illustration of why the "apparent authority to consent" doctrine does not keep faith with the protection of privacy guaranteed in the Fourth Amendment.

A Guilty Plea and a Fruitless Appeal

Several years ago, Frank Gary Buckner pleaded guilty to numerous counts of federal wire fraud and mail fraud. He conditioned his plea on the right to appeal the trial court's decision to refuse to suppress (that is, exclude from evidence) highly incriminating private computer files. Two weeks ago, however, the U.S. Court of Appeals for the Fourth Circuit affirmed the trial court's decision.

The government's evidence against Buckner had consisted largely of material found on his computer - in password-protected files - during a warrantless search. The defendant argued that the search of his files violated the Fourth Amendment because it was undertaken in the absence of a warrant or any exception to the warrant requirement. The Government responded that Buckner's wife, Michelle, had told the police to "take whatever [they] needed" and that "she want[ed] to be as cooperative as she could be." She had thereby, according to the government, validated the search through her consent.

Buckner replied that because only he had password-access to the files in question, the police should not have examined those files without either a warrant or his consent, regardless of what Michelle had said. Though the United States did not concede Michelle's lack of authority to give consent, it argued that even assuming, for purposes of argument, that she did not have actual authority to consent, she nonetheless had apparent authority to do so - an appearance that validated the officers' conduct under the Fourth Amendment.In a unanimous opinion, the Fourth Circuit agreed.

Under existing Supreme Court precedents (and Fourth Circuit case law), the decision is quite defensible and, indeed, not very surprising. One could argue, on the facts, about whether it really was reasonable for the police to believe that a woman who had said she only used the computer to play games truly had common authority over the files that police inspected. On the other hand, the court took great pains to emphasize both that Michelle had never told the police that the computer held password-protected files and that the officers' search program did not reveal that the exposed files had been password-protected.

Because the court was careful properly to apply the law to the facts of this case, its ruling illustrates well the inherently flawed nature of a doctrine that allows police to rely on the appearance - even in the absence of the reality - of consent.


Consent Searches

Fourth Amendment case law tells us that, as a rule, police may search an individual's private spaces only if they first obtain a warrant, supported by probable cause to believe that such spaces contain evidence of crime. Absent a warrant and probable cause, the search violates the individual's Fourth Amendment rights.

To deter such searches, moreover, the Supreme Court has held that the evidence they turn up should be excluded from the search-victim's criminal trial. For example, if the police search John Doe's house without a warrant and find a bloody knife, the judge at Doe's murder trial should suppress the bloody knife and thus prevent the police from profiting from their failure to adhere to the dictates of the Fourth Amendment.

There are some exceptions to the rule requiring a warrant and probable cause. The Court has rationalized such exceptions by observing that the Fourth Amendment does not explicitly prohibit searches in the absence of a warrant or probable cause. The language of the Amendment itself bans only those searches that are unreasonable.

In interpreting the Fourth Amendment's somewhat open-ended "reasonableness" language, the Court has said that, as a rule, searches unaccompanied by a warrant or probable cause are unreasonable searches. When circumstances arise, however, that make a search reasonable despite the absence of a warrant or probable cause, then the search can still satisfy the demands of the Fourth Amendment. One circumstance that qualifies a warrantless search (with or without probable cause) for such treatment involves the consent of an authorized party.


If police officers had asked John Doe, for example, if they might search his home, and he had responded, "Sure. Go ahead. No problem," then police could forego the trip to the magistrate to demonstrate probable cause (and, indeed, could forego the accumulation of probable cause itself), as long as John Doe's consent was given voluntarily.

The Supreme Court has extolled the virtues of consent searches, noting in Schneckloth v. Bustamonte that such searches can sometimes prove crucial in uncovering crimes that would otherwise fall beneath the radar of the criminal justice system. It added that innocent suspects themselves have much to gain by consenting to a search that can dispel unfounded suspicion and motivate the police to move on to other suspects.

Assuming that consent is truly voluntary, this logic makes some sense. After all, people voluntarily decide to expose private parts of their lives - including their homes - all the time - to friends, to family, and to professionals who can help fix things that break down. If we can choose to part with our privacy for these various individuals and reasons, it seems only appropriate to allow us to part with our privacy for the police as well. Whatever reasons we might have, it is our privacy to maintain or relinquish, as we choose.

One could quarrel, of course, with the analogy between voluntarily exposing our lives to friends, family and the plumber, on the one hand, and exposing them to the police, on the other. For one thing, we are likely to have initiated the former contacts and spontaneously invited exposure, in a way that differs markedly from the latter, police-initiated "Do you mind if I look around?" consent searches.

Furthermore, many people do not know that they have a constitutional right to say no in response to a request from the police (and the Supreme Court, in Schneckloth v. Bustamonte, refused to require that police inform everyone of this option). As a result, a "consent" search by the police is much more likely to be the product of subtle coercion and ignorance than it might be in other contexts.

Let us assume, however, that when people agree to allow a police officer to search, they do so freely. Which searches do they have the authority to allow?

Authority to Consent: Real and Apparent

For police to avoid having to obtain a warrant based upon probable cause to search John Doe's house, they obviously cannot just ask a random person on the street, "Do you mind if I look around John Doe's home?" They must ask John Doe or someone who shares his house. The consenter, in other words, must ordinarily be someone authorized to expose what would otherwise remain private in Doe's place of abode.

Police might, however, make a mistake in judging the consenter's qualifications. They might ring Doe's doorbell and find that a woman answers the door. She says that she is Doe's wife. The police request permission to come in and look around, and the woman says, "Go right ahead." They do so and find drugs in the living room - only to learn much later that the woman who agreed to the search was actually a burglar with no legitimate interest in Doe's house. What happens to the evidence they found?

In Illinois v. Rodriguez, the U.S. Supreme Court held that as long as police officers reasonably believed that the consenting individual had common control over shared premises (and hence the authority to give consent), their search on the basis of that consent did not violate the Fourth Amendment. The Court invoked the rule that police can perform a valid house search based on a warrant and probable cause, even if it turns out later that the suspect actually has no evidence of crime in his house. That is, police can lawfully act on the basis of a reasonable - albeit mistaken - belief that they will find evidence of crime. It follows, the Court concluded, that the police can perform a valid house search based on a reasonable - albeit mistaken - belief that they have received consent from someone authorized to give it.

At first glance, this reasoning might seem compelling. In the Fourth Circuit case of Frank Gary Buckner, for example, the Court of Appeals concluded that the police had good reason to believe that the defendant's wife shared possession and control over the files on the computer. The computer was in her name, and it was on when the police visited her home, even though the defendant was not on the premises.

If the police understandably believed that an authorized party consented, then how different was the search from one conducted on the basis of probable cause (but not the reality) of crime?

The Argument Against Apparent Authority to Consent

It turns out that there is an important distinction. When the police reasonably believe that a person is engaged in criminal activity, then it follows that a search is fairly likely to yield evidence of crime. The search is therefore justified by the ex ante probability - which we call "probable cause" - that it will be productive. When the police believe, by contrast, that an authorized third-party has given them permission to search, this belief - no matter how reasonable - says nothing at all about the odds that the search will be productive.

A consent search is very likely to prove a complete waste of the officers' time and the target's privacy, in other words, in the absence of well-founded suspicion. A consent for a search, then, does not itself justify a search, in the sense of demonstrating that it is a worthwhile search. Consent functions instead as an exemption from the obligation to justify a search, an obligation that otherwise arises out of the Fourth Amendment. A person's consent to invade his privacy accordingly means that the police do not need a good reason for the invasion. It does not mean that the police have a good reason for it.

If we understand consent in this way, as a lifting of the requirement that police justify a search, then it no longer seems especially cumbersome to demand that the consent - an end-run around the usual need to justify one's behavior - be given by a person who is actually authorized to give it.

When several people share authority over an item, they effectively agree to trust each other's judgment in deciding whether and when to expose their shared privacy to people outside the relationship. In that sense, each one "assumes the risk" that the other will over-expose a privately shared item. Police may then legitimately exploit this arrangement and use the permission of one to avoid having to justify the search of their shared space, even in the absence of suspicion.

It follows, however, that when the two people do not in fact share the space, then the search target has not assumed any such risk. In our hypothetical example of apparent consent, John Doe did not assume the risk that the woman who broke into his house would authorize the police to search it.

When an unauthorized third-party consents to a search, there is therefore no basis for calling the search that follows a "reasonable" one. The search is not justified, in the sense of being supported by a reasonable likelihood that it will turn up evidence. And it also has not been legitimately exempt from the requirement that it be so justified.

To invoke a familiar concept, we might say that when the police choose to forego the usual step of justifying a search that they perform, they assume the risk that the person granting them an apparent exemption was not, in fact, authorized to do so. An unauthorized exemption, on this approach, is no exemption at all.

Under a regime in which only those people actually authorized to consent may give valid permission for a search, the police would have to exercise extra vigilance about searches resting on consent and not on a bona fide justification for performing them. Such vigilance is appropriate, because the price of apparently (but not actually) authorized consent searches is high: It is the loss of privacy for individuals who have done nothing either to forfeit or voluntarily part with their privacy, and the payoff - where there is no probable cause or warrant - is, in the run of cases, necessarily small.


Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her book, When Sex Counts: Making Babies and Making Law, will be published by Rowman & Littlefield in March 2007.

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