§ 16.02 CONSENT SEARCHES: GENERAL PRINCIPLES

• Jurisdiction: North Carolina

§ 16.02. Consent Searches: General Principles¹⁰

[A] General Rule

As explained in the remainder of this chapter, validly obtained consent justifies an officer in conducting a warrantless search, with or without probable cause. To be valid, consent must be: (1) granted voluntarily;¹¹ and (2) obtained from someone with real¹² or apparent¹³ authority to give consent. Also, to be valid, (3) the scope of the search conducted must not exceed the consent granted.¹⁴ Finally, even if these conditions are satisfied, permission to conduct a search of a residence does not give the police authority to do so if another person, with common authority over the property, is physically present and expressly refuses consent.¹⁵

If the officer discovers evidence during a valid consent search, he may seize it without a warrant, pursuant to the plain view doctrine.

[B] Rationale for the Rule

The Supreme Court has struggled to explain the "consent search" warrant exception.

[1] Waiver?

In comparatively early opinions, the Court justified consent searches on waiver principles, that is, on the ground that, by consenting, a person waives his right to be free from unreasonable searches and seizures.¹⁶

The Supreme Court no longer justifies consent searches on waiver principles. Indeed, if waiver were the basis for consent searches, a number of important rulings of the Court would need to be reconsidered. First, the Supreme Court has frequently stated that a waiver of a constitutional right is "an intentional relinquishment or abandonment of a known right or privilege."¹⁷ The Supreme Court has held, however, that a warrantless search may be upheld even if the consenting party does not know that he may refuse.¹⁸

Second, waiver principles conflict with the Court's so-called "third party" consent jurisprudence. For example, suppose that A and B jointly own and use certain premises, and A consents to a police search while B is absent. The Court has ruled that such consent is valid against "third party" B.¹⁹ Yet, absent some agency relationship, A cannot waive B's Fourth Amendment rights. For the same reason, waiver principles fail to explain the "apparent authority" doctrine, which provides that the police may conduct a search on the basis of consent granted by X, a stranger to the property, if the police reasonably believe that X has authority to give consent.²⁰ Quite obviously, Stranger X cannot waive the constitutional rights of a true owner, so the waiver principle also fails to explain this aspect of current consent law.

[2] Consent = No Search?

A second potential rationale of warrantless consent searches is that one who voluntarily consents to a search no longer has a reasonable expectation of privacy in the property in question. Under this view, a consent search is not really a "search" at all.

There is some support for this thesis in third-party consent cases. The Supreme Court has stated—in reasoning reminiscent of the "false friend" surveillance-of-conversation cases...