NCJ Number
48105
Journal
FBI Law Enforcement Bulletin Volume: 47 Issue: 2 Dated: (FEBRUARY 1978) Pages: 8-15
Date Published
1978
Length
8 pages
Annotation
LEGAL ISSUES INVOLVING POSSESSORY RIGHTS AND AUTHORITY OF MEMBERS IN A RELATIONSHIP (FAMILY, HOST/GUEST, SCHOOL OFFICIAL/STUDENT, EMPLOYER/EMPLOYEE, OR PRINCIPAL/AGENT) TO CONSENT TO SEARCH OF PROPERTY ARE EXAMINED.
Abstract
IN CASES WHERE A MOTHER OR FATHER CONSENTS TO A POLICE SEARCH OF A COMMON DWELLING, THE COURTS HAVE BEEN ALMOST UNIFORM IN HOLDING THAT SUCH CONSENT IS VALID AND EVIDENCE THUS FOUND IS ADMISSIBLE SO LONG AS THERE IS COMMON ACCESS TO THE PROPERTY OR PLACE SEARCHED. ON THE OTHER HAND, IT HAS GENERALLY BEEN HELD THAT THE CHILD IN THE FAMILY DWELLING DOES NOT HAVE THE AUTHORITY TO GIVE VALID CONSENT TO A SEARCH. USUALLY, CONSENT GIVEN BY ANOTHER RELATIVE IS VALID IF THAT RELATIVE HAS POSSESSION OF THE PREMISES AND THERE IS COMMON ACCESS. IN CASES INVOLVING BROTHERS AND SISTERS, THE ACCEPTED APPROACH HAS BEEN TO PERMIT THE SEARCH BY CONSENT OF ONE PARTY IN THE JOINTLY OCCUPIED PREMISES. IN EMPLOYEE/EMPLOYER RELATIONSHIPS, COURT DECISIONS HAVE DEPENDED LARGELY ON THE FACTS OF THE CASE IN DETERMINING WHETHER CONSENT GIVEN BY ONE EMPLOYEE OR AN EMPLOYER WAS BINDING ON THE OTHER. FOR INSTANCE, IF THE EMPLOYER HAS CONFERRED AUTHORITY TO SUPERVISE OR OTHERWISE EXERCISE DOMINION OVER BUSINESS PREMISES, THE COURT HAS RULED THAT HE CAN HAVE NO EXPECTATIONS OF PRIVACY IN THE PREMISES (EXCEPTING PERSONAL BELONGINGS). SIMILARLY, THE EMPLOYER MAY CONSENT TO SEARCH OF BUSINESS PREMISES, BUT MAY NOT GIVE VALID CONSENT TO SEARCH PROPERTIES RESERVED FOR THE EMPLOYEE'S EXCLUSIVE USE. COMPARABLE CONSIDERATIONS APPLY TO PRINCIPAL/AGENT CONSENT RELATIONSHIPS, BUT IN GENERAL THE AUTHORITY OF AN AGENT IS BROADER THAN THAT OF AN EMPLOYEE. IN MOST CASES INVOLVING CONSENT TO SEARCH PREMISES GIVEN BY A HOST, SUCH CONSENT HAS BEEN HELD TO BE VALID OVER THE DESIRES OF THE GUEST. HOWEVER, COURTS HAVE IN SOME CASES RECOGNIZED THAT SUCH AUTHORITY DOES NOT EXTEND TO AREAS RESERVED FOR THE GUEST'S EXCLUSIVE USE OR TO HIS PERSONAL BELONGINGS. BOTH FEDERAL AND STATE COURTS HAVE HELD THAT A STUDENT IS ENTITLED TO FOURTH AMENDMENT PROTECTION OF HIS PERSON, EFFECTS, AND SCHOOL LOCKER; LIKEWISE, THE STUDENT HAS THE AUTHORITY TO CONSENT TO SUCH A SEARCH, AND EVIDENCE SO OBTAINED IS ADMISSIBLE IF IT CAN BE PROVEN THAT CONSENT WAS VOLUNTARY AND INTENTIONAL. IN PEOPLE V. OVERTON, THE NEW YORK COURT OF APPEALS HELD THAT A VICE PRINCIPAL'S CONSENT TO SEARCH A STUDENT'S LOCKER WAS VALID BECAUSE A POLICY HAD BEEN PREVIOUSLY ADOPTED, PROMULGATED, AND PRACTICED WHICH WITHHELD EXCLUSIVE AND TOTAL RIGHT TO POSSESSION OF THE LOCKER FROM THE STUDENT. OVERTON IS CONSISTENT WITH PREVIOUS DECISIONS INVOLVING THE ASSUMPTION OF RISK STANDARDS IN CASES OF JOINT POSSESSION. FOR PARTS 1-2 AND 4-7, SEE NCJ 48103-4 AND 48106-48109. (JAP)