NCJ Number
48103
Journal
FBI Law Enforcement Bulletin Volume: 46 Issue: 12 Dated: (DECEMBER 1977) Pages: 10-15
Date Published
1977
Length
6 pages
Annotation
JUDICIAL DECISIONS PERTAINING TO SEARCH BY CONSENT ARE REVIEWED, A SYSTEMATIC APPROACH TO CONSENT SEARCHES IS OUTLINED, AND THE SCOPE OF PROTECTION IS DELINEATED.
Abstract
SEARCH BY CONSENT IS AN INVESTIGATIVE TECHNIQUE FREQUENTLY USED BY LAW OFFICERS WHERE PROPERTIES ARE PROTECTED AGAINST UNREASONABLE SEARCH BY THE FOURTH AMENDMENT. ALTHOUGH THE LAW CONSISTENTLY APPROVES THIS METHOD OF SEARCH, IT GENERALLY PREFERS WARRANTED SEARCHES. PRIOR TO 1973 AND THE DECISION IN SCHNECKLOTH V. BUSTAMONTE, CONSENT TO SEARCH USUALLY WAS DESCRIBED AS A WAIVER OF THE CONSTITUTIONAL RIGHT AGAINST UNREASONABLE SEARCH AND SEIZURE. IN CHIMEL V. CALIFORNIA (1969), THE SUPREME COURT RESTRICTED THE PERMISSIBLE SCOPE OF A SEARCH MADE INCIDENTAL TO ARREST TO THE ARRESTEE AND THE IMMEDIATE AREA UNDER HIS CONTROL: ONE FROM WHICH A WEAPON COULD BE SEIZED OR WHERE EVIDENCE MIGHT BE DESTROYED. CONSEQUENTLY, SEARCHES OF THE PREMISES MUST BE MADE EITHER WITH A WARRANT OR WITH CONSENT OF THE PARTY EMPOWERED TO GIVE SUCH CONSENT. AN OFFICER PREPARING TO SEARCH BY CONSENT IS ADVISED TO TAKE THE FOUR FOLLOWING STEPS: (1) DETERMINE IF THE PREMISES ARE PROTECTED UNDER THE FOURTH AMENDMENT; (2) IF THE PROPERTY IS PROTECTED, IDENTIFY THE PERSON LAWFULLY ENTITLED TO POSSESSION; (3) OBTAIN FROM THE PERSON IN POSSESSION A VOLUNTARY RELINQUISHMENT OF THE FOURTH AMENDMENT RIGHT; AND (4) CONDUCT THE SEARCH WITHIN THE EXPRESSED OR IMPLIED LIMITATIONS OF THE CONSENT. THE SCOPE OF THE FOURTH AMENDMENT RIGHTS, AS DEFINED IN KATZ V. UNITED STATES (1967), IS BASED ON THE INDIVIDUAL'S REASONABLE EXPECTATION OF PRIVACY. THUS, AN OFFICER WITHOUT A WARRANT WILL REQUIRE CONSENT IF THE PLACE TO BE SEARCHED IS ONE WHERE THE POSSESSOR HAS A REASONABLE EXPECTATION OF PRIVACY. COURT DECISIONS ARE LISTED WHICH PERTAIN TO PRIVACY INTERESTS IN PRIVATE DWELLINGS AND SURROUNDING BUILDINGS AND GROUNDS (CURTILAGE); APARTMENTS; HOTEL/MOTEL ROOMS; BOARDINGHOUSE ROOMS; GUEST ROOMS; OFFICES; BUSINESS BUILDINGS; AND PLACES SUCH AS LOCKED SCHOOL LOCKERS, BURNING HOMES, PUBLIC RESTROOM TOILET STALLS, HOUSETRAILERS. THE DISTINCTION BETWEEN PROTECTED CURTILAGE AND OPEN FIELDS, WHERE NO WARRANT IS REQUIRED, IS BRIEFLY DISCUSSED. ABANDONMENT OF PREMISES, IF IT IS VOLUNTARY AND INTENTIONAL, IMPLIES RELINQUISHMENT OF FOURTH AMENDMENT PROTECTION OF THE VACATED REAL ESTATE. FOR PARTS 2-7, SEE NCJ 48104-48109. (JAP)