Last week, the United States Supreme Court decided Fernandez v. California, upholding the search of a co-occupied apartment upon the consent of just one of the residents. The case offers a refinement on an earlier decision that had invalidated a search to which one occupant consented while the second occupant simultaneously objected. The Court there concluded that “no” trumps “yes” when co-occupants disagree about consent.
In Fernandez, the police came to an apartment where at least one of the occupants objected to their proposed entry. The police, however, subsequently arrested the non-consenting occupant for domestic violence. When police later returned, after learning that the arrested man was also linked to a robbery, they obtained the consent of the remaining occupant, a consent that the Court held legitimated the search that ensued, because no non-consenting occupant was on the premises to object.
In this column, I will discuss the place of consent searches in Fourth Amendment law, and propose how the decision in Fernandez might be understood in the context of consent searches more generally.
Consent Searches as “Reasonable Searches”
Existing Fourth Amendment doctrine ordinarily requires that police obtain a search warrant prior to searching a person’s home for evidence of crime. This means that if police have probable cause to believe that you have stored illicit drugs (such as heroin) inside your house, they must go to a magistrate with their suspicions and acquire the magistrate’s permission to search for those drugs in your house, permission that takes the form of a search warrant. If police instead simply go to your house, break down the door (or otherwise forcibly enter the premises) and search, they thereby violate the Fourth Amendment and render any evidence they find (such as the hypothesized heroin) the inadmissible fruit of their unconstitutional conduct.
There are, of course, numerous exceptions to the warrant requirement—occasions on which police who have probable cause may embark on a search without first seeking a warrant from a magistrate. For our purposes, the most relevant exception is for “exigent circumstances,” understood to cover emergencies in which seeking a warrant would risk the destruction of evidence, the flight of a fugitive, or another in a short list of harmful consequences. Say, for example, the occupant sees the officer standing at the door (and the officer seeks the occupant seeing the officer at the door), and the occupant then runs toward the back of the house. The officer who has probable cause can now enter immediately, without first seeking a warrant.
Consent searches are different from warrantless searches that occur in the presence of exigent circumstances. The latter represent an “exception” to the warrant requirement, cases in which a “reasonable search” is understood presumptively to be a search that occurs on the basis of probable cause, as certified by a warrant. But the exigent circumstances rebut the presumption that a warrant is required, in the particular case.
Consent searches, by contrast, need not be accompanied by any of the usual indices of a reasonable search—probable cause, a warrant, even a diminished individualized suspicion standard or some reason to think that after balancing the interests served by the search in question with its intrusiveness and its efficacy in advancing the interests at stake, the search is cost-justified by the resulting benefits. A “consent search” need not be cost-justified along any dimension. Under the Court’s doctrine, a consent search is permissible because the individual whose Fourth Amendment rights are at issue has decided to permit it.
Police officers may accordingly approach a person against whom they harbor no suspicion at all, on an occasion on which they have no state interest in mind that they hope to advance in any way, and they may nonetheless conduct a lawful search of a person who responds “yes” to the question, “Is it okay if we search your [house, car, suitcase, etc.]?” The Court has classified consent searches as “reasonable searches,” but unlike other reasonable searches—those that serve special governmental interests, or intrude only minimally on an individual’s privacy—a consent search may be premised on nothing and serve no interest whatsoever. A police officer could, for instance, become curious about the contents of your knapsack (though he has no suspicion that you are concealing evidence of crime), and his subsequent search of that knapsack is “reasonable,” so long as you consent to it, even if the search is truly a pointless waste of the officer’s time.
Why has the Supreme Court allowed such searches? The main reason it has articulated amounts to a kind of necessity argument that also encompasses an efficiency argument. The Court has explained that consent may provide the only lawful way for the police to perform a search that ultimately results in finding a treasure trove of evidence against an unknown suspect. Police, for example, may pull over a driver for a minor traffic violation and then obtain consent to search the trunk of the car, where they find a dead body or a cache of illegal weapons. Had police just warned the driver in that situation or issued a citation, a serial killer might have continued his killing spree.
In defending consent searches, the Court has suggested as well that once a person consents, this act of responsible citizenship saves the police the time and effort of obtaining a warrant and thus frees up police resources for use in tracking down criminals and freeing the wrongly accused.
The Cost of Consent Searches
The Court’s analysis of the issue would be unassailable if consent searches were truly an expression of desire on the part of a private person to have the police perform a particular search and if the searches at issue were truly sensible searches, from an objective perspective. The problem is that these two conditions might not be satisfied in any given case. Let us consider why.
First, people who are asked by police to give consent to a search are frequently under the impression that they have no other choice. Indeed, in Schneckloth v. Bustamonte, the Supreme Court expressly held that there is no requirement, in demonstrating that a search was “consensual,” that police prove the person who gave consent was aware of the fact that she or he had the option of refusing consent. Justice Marshall observed at the time, in his dissent, that “I can think of no other situation in which we would say that a person agreed to some course of action if he convinced us that he did not know that there was some other course he might have pursued,” adding at another point in his opinion that “today the Court reaches the curious result that one can choose to relinquish a constitutional right—the right to be free of unreasonable searches—without knowing that he has the alternative of refusing to accede to a police request to search.“
People may often be understandably confused about when and whether they are really allowed to say no to a police request and when they are instead being “asked” as a mere formality that will precede a search, regardless of how they reply. In addition, even among those who know that they technically have the right to say no, many feel intimidated by the police and unable to refuse a request, despite a strong wish to do so. For them, a request might as well be a command. This can go some way in explaining why people in the cases we read are routinely saying “Okay, sure,” when police ask to search places in which the consenting parties turn out to have concealed enormous quantities of drugs.
If consent is illusory, then the consent search is no longer a cost-free proposition, from the perspective of the person whose privacy is at issue. Furthermore, if police lack a good reason for performing a search (with or without a warrant), then it seems overly optimistic to assume that permitting the search to proceed nonetheless, on the basis of “consent,” will ultimately result in efficiencies. After all, the “consent search” loophole could mean that instead of carefully considering which searches to perform and which to skip, on the basis of which ones will strike a magistrate as legitimate and will also likely yield results, police may simply operate on hunches that prove fruitless or, worse, may pursue their curiosity unbounded by the ordinary rules requiring a substantial degree of objective suspicion.
To say this differently, the Court’s enthusiasm about “consent” searches assumes that police will already be performing the “right” searches, and that the Court’s approval will simply permit such correct searches to happen expeditiously. This assumption is not obviously well-grounded, and the fact that a serial killer might (or might not) on occasion have been caught through this device does not distinguish “consent” searches from other baseless and nonconsensual searches that, once in a while, could coincidentally turn up a criminal or evidence that would otherwise go undiscovered.
The Facts of Fernandez
It is into this consent thicket that the Court entered in deciding Fernandez. It assumed that consent really means consent (as opposed to confusion about one’s rights, or fear of the police). And the Court also assumed that the police had good reason to enter the apartment in question and should not have been forced to waste their time seeking a warrant (or developing probable cause).
To determine the correct outcome in Fernandez, the Court needed to contend with Georgia v. Randolph, a case in which it had held that if two occupants on the premises at the same time disagree about whether to consent to a search, the non-consenting occupant prevails. The logic was that guests customarily would not enter a house into which one occupant welcomes them while another orders them to stay away.
In Fernandez, the non-consenting occupant also happened to be subject to an apparently lawful arrest for battering and injuring the other occupant, a woman who was holding a baby when the police arrived at the apartment the first time. As a result, the only remaining occupant when police returned a second time to request consent to search the home was the woman, who then gave her consent for the police to search.
Notably, in this case, the police apparently had probable cause to search the house upon their arrival the second time. If they had probable cause to believe the male occupant had committed a robbery, which they apparently had, then it would ordinarily have followed that they would also have had probable cause to believe that his residence contained stolen items. Additionally, one might imagine that if—as appeared to be the case—the female occupant was suffering domestic violence at the hands of her now-arrested boyfriend, she might be glad to invite the police to search the apartment in an effort to obtain evidence against her assailant. Fernandez might be a case, then, in which a consent search truly was a cost-justified proposition. Why seek a warrant when probable cause is obvious and someone on the premises truly wants the search to take place?
Consent Search as No Search At All
In my view, a more accurate description of what happens during an authentic “consent search” is that rather than a reasonable search, we have no search at all. Under the Court’s prior cases, a “search” occurs only when the police invade an individual’s reasonable expectation of privacy. When a person “knowingly exposes” that which is ordinarily private, however, then there is no invasion of anyone’s expectation of privacy and there is therefore no Fourth Amendment “search.”
Classifying consent searches as non-searches would have two advantages. First, it would acknowledge that searches that occur with true permission are less like “reasonable searches” (where police have good reasons for invading someone’s privacy) than they are like non-searches, where police see things that have been knowingly and willingly shown to them by the person whose privacy interest is at stake. And second, it might help motivate us to make sure that the “consenting” party truly understood his or her options and sincerely meant to (and also felt free not to) invite the police in.
In Fernandez, Justice Ginsburg claims in a footnote in her dissent that the apparently battered woman who supposedly gave consent appeared to have been feeling pressured into consenting rather than having freely allowed the police to look around in her home. Though the dissent is primarily aimed at protecting any refusing co-occupant’s right to keep police out of his home, even when he is no longer on the premises, this point about the woman’s illusory consent is an important one on which I would have placed a greater emphasis.
I would reiterate my conception that if an individual with authority over the premises invites police to come in and look around, then police are not really searching at all. Likewise, if an individual with authority over her premises invites a close friend to her house, despite her co-habiting boyfriend’s hostility toward that friend, the invitation would transform what might otherwise have been a trespass into a legitimate entry.
If the boyfriend were right there saying “No, do not come in,” it would be a different matter. But if he is away (because he has been arrested for beating his girlfriend, for example), then she ought to be able to invite whomever she pleases into her home, police included.
I would, however, want to be certain about the reality of the consent given by the female occupant who allowed the police to search the home that she jointly occupied with her boyfriend. If it turned out that she, like so many people who give police consent to search, felt that she had no other options but to consent, then she would have had the experience of being victimized first by her violent boyfriend, and then by the police. Intimidated and vulnerable, as a mother of a young child would be, such a parade of violations would make a mockery of the ideas of consent and of knowing exposure.
I would therefore suggest that rather than focusing on what happens when co-occupants disagree over whether to admit the police, a scenario that describes a narrow set of cases at best, the Supreme Court would do well to turn to the more general question of why we have a consent doctrine in the first place. If the reason has to do with the relatively cost-free nature of searches to which the subject of the search has no objection, then the Court could do a lot more to ensure that the subject—whether a sole occupant or a co-occupant—knows that she can say no and feels empowered to do so. Only then does it become appropriate to consider the time saved and the efficiency achieved by being able to skip the ordinary requirements of probable cause and a warrant that are there to protect unwilling search subjects from what are in fact unreasonable searches.