The Fourth Amendment states: 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.
Perhaps the most significant exception to the requirements of the Fourth Amendment is the consent search, which requires no warrant, exigent circumstances, probable cause, or reasonable suspicion.
Some scholars have suggested that the Supreme Court's voluntariness standard for determining consensual searches misperceives the level of coercion inherent in almost any encounter with the police. Certain state courts have taken measures beyond those mandated by the Supreme Court to try to ensure that the consent given is truly the product of the person's free will and not due to any coercion. Some courts, legislatures, and police departments have limited or banned consent searches following traffic stops, mainly due to concerns over racial profiling.
This Note argues that an element of privacy should be considered in determining the validity of the consent given to a search request. The element of privacy would be based on a person's expectation of privacy in a particular location as determined by Fourth Amendment case law. This change is necessary to bring the law of consent searches into congruence with the hierarchy of privacy protections that are evident in Fourth Amendment jurisprudence.
Part II of this Note describes the primary cases determining whether a search has occurred and how federal courts analyze consent search cases. Part III describes state approaches to the different contexts in which consent search issues arise. Part IV presents and analyzes possible doctrinal bases for consent searches, and considers aspects of the concept of voluntariness through reference to psychological research. Part V argues in favor of considering privacy in determining the validity of consent to search.
David J. Housholder,
Reconciling Consent Searches and Fourth Amendment Jurisprudence: Incorporating Privacy into the Test for Valid Consent Searches,
58 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol58/iss4/4