Fourth Amendment Consent Searches and the Duty of Further Inquiry

• Publication year: 2022

54 Creighton L. Rev. 227. FOURTH AMENDMENT CONSENT SEARCHES AND THE DUTY OF FURTHER INQUIRY

FOURTH AMENDMENT CONSENT SEARCHES AND THE DUTY OF FURTHER INQUIRY

NORMAN HOBBIE JR. ^[D1]

ABSTRACT

Consent searches, presently justified on arguably weak grounds, account for nearly ninety percent of all warrantless searches. Though scholars debate whether the Fourth Amendment bars consent searches, the Supreme Court of the United States has continued to reaffirm the constitutionality of such searches. Under current doctrine, third parties, often without actual authority, are able to consent to a search of another's premises. Yet, if doubt endures over whether an individual possesses adequate authority to offer consent, officers may have to engage in further inquiry to resolve whether sufficient authority exists.

With little guidance offered as to what this further inquiry entails, there is currently a split among the circuits as to the dimensions of this directive. On one end of the split, some circuits require that if ambiguity exists over authority, a duty of further inquiry is triggered. The other circuits, by contrast, have either expressly rejected the application of the duty, or have yet to take a position on the issue. This Article's first contribution is to adopt the United States Court of Appeals for the Seventh Circuit's view of the duty of further inquiry. Thus, when officers are faced with other equally plausible possibilities for a consenting party's authority, officers have a duty of further inquiry. This Article's second contribution is to clarify and augment the Seventh Circuit's approach. This Article modifies and defines the ambiguity threshold triggering the duty of further inquiry and delineates the substance of that inquiry.

INTRODUCTION .......................................... 228

I. THE CONSENT EXCEPTION TO THE WARRANT REQUIREMENT ........................ 232

A. CONSENT SEARCH JURISPRUDENCE ................ 233

B. CAREFULLY CRAFTING WARRANT EXCEPTIONS-TRADITIONAL FOURTH AMENDMENT REASONABLENESS ................................ 237

II. THE SPLIT AMONG THE CIRCUITS ............... 240

A. THE EIGHTH CIRCUIT-NO DUTY TO INQUIRE ...... 241

B. THE SEVENTH CIRCUIT-A DUTY OF FURTHER INQUIRY ......................................... 244

III. A PROPOSED MODIFIED TERRY APPROACH ..... 247

A. THE AMBIGUITY THRESHOLD: "OTHER PLAUSIBLE POSSIBILITIES" ................................... 248

B. THE DUTY OF FURTHER INQUIRY .................. 251

C. JUSTIFICATIONS FOR THE PROPOSAL ............... 255

D. APPLICATION OF THE MODIFIED APPROACH ........ 260

i. United States v. Terry ....................... 260

ii. United States v. Green ...................... 262

E. RESPONSE TO THE PROPOSAL'S POTENTIAL OBJECTIONS ..................................... 263

i. Ambiguity Threshold ........................ 263

ii. Loss of Evidence ............................. 264

iii. Increased Litigation ......................... 265

iv. Policy Judgment ............................. 265

IV. CONCLUSION ..................................... 268

INTRODUCTION

One day, a friend stays overnight at your apartment. You wake up early and head off to work. Your friend decides to sleep in and let himself out when he awakes. Instead, he is awoken by a knock. He puts on a bathrobe and heads to the door. When he opens the door, he is met by two police officers. Seeing him in a bathrobe with ruffled hair, the officers request entry into your dwelling. Without hesitation, your temporary guest says yes. Although he does not live with you, your friend may have essentially waived your Fourth Amendment protections.

The officers had neither probable cause nor a warrant to search your home. When the police asked whether they could enter, they did not know who this person was, your association with this person, or this person's connection to the dwelling. Once inside your home, officers found incriminating evidence which may be used against you at trial. Courts may find this to be a valid consent search. This is almost exactly what happened in United States v. Terry, ^[1] a decision issued by the United States Court of Appeals for the Seventh Circuit in 2019. ^[2]

Consent searches are heavily used by law enforcement. ^[3] They may account for more than ninety percent of all warrantless searches by police. ^[4] The convenience and ease for officers inevitably leads to countless home searches without any level of suspicion. ^[5] A person may consent to a search of one's own home. One's roommate can also give valid consent. As mentioned above, even a third party without any authority over the premises can consent to a search if officers reasonably believe the person has authority.

The Supreme Court of the United States recognizes the validity of these third-party, apparent authority consent searches. In Illinois v. Rodriguez, ^[6] the Court held that if a reasonable officer believes a third party has authority over the premises, even without actual authority, that third party is able to consent to a search of the premises. ^[7] The Court also noted that further inquiry may be necessary when the facts known to the officer call into the question the authority of the consenter. ^[8]

In dissent, Justice Marshall interpreted the Fourth Amendment reasonableness requirement as the Supreme Court had consistently done in the past. ^[9] Traditionally, Fourth Amendment reasonableness first required a balancing of government interests against individual interests. ^[10] Yet, the majority skipped that step and opted for a standard that centered on the reasonableness of the officer's actions. By skipping the traditional Fourth Amendment reasonableness inquiry, the majority failed to adequately account for individual privacy interests.

The Court's vague standard for when officers should inquire further before conducting a consent search has created conflicts amongst the states and circuits. ^[11] The conflict focuses on the weight that should be assigned to the Rodriguez Court's directive that officers faced with ambiguous circumstances may have a duty to inquire further before assuming a third party possesses the authority to consent to a search. On one end of the spectrum, the United States Court of Appeals for the Seventh Circuit has held officers have a duty of further inquiry. ^[12] Several sister-circuits agree with the Seventh Circuit's approach. ^[13] On the other end of the spectrum, the United States Court of Appeals for the Eighth Circuit has expressly declined to follow other circuits by recognizing such a duty. ^[14] The remaining circuits fall in between, often opting for a totality-of-the-circumstances approach. ^[15]

Despite this split of authority, little scholarly attention has yet been paid to an officer's duty of further inquiry. The Seventh Circuit's recent opinion in United States v. Terry, which held officers had a "duty to inquire further," provides some insight. ^[16] Yet that opinion also raises several important, unaddressed questions. For example, when do officers have this duty, and what does it entail? This uncertainty affects courts, law enforcement officers, and individuals alike. For the sake of constitutional compliance, officers need to know when the duty applies and how they can meet it. Lower courts evaluating officer reasonableness after the fact need to have measures by which to do so. Citizens need to know precisely when they are "secure in their . . . houses," as the Fourth Amendment promises. ^[17]

Adopting components of the Seventh Circuit's holding in Terry, this Article proposes a modified Terry approach: Officers, when confronted with ambiguity at the entrance of a home, have a duty of further inquiry; the ambiguity threshold triggering the duty is the existence of other plausible possibilities for the consenter's alleged authority. Once that threshold is met, officers should inquire into three categories of information: ownership interest, extent of access, and duration of stay.

This modified Terry approach will bring consent jurisprudence in line with the traditional Fourth Amendment reasonableness as described by Justice Marshall when he dissented in Illinois v. Rodriguez. ^[18] The duty of further inquiry does not impose on the plainly legitimate governmental interest in allowing officers to make good-faith mistakes while investigating crimes. At the same time, it sufficiently protects the individual's heightened privacy interest in their home. After all, the Fourth Amendment's principal purpose is to prevent arbitrary government searches of the home. ^[19] The modified Terry approach incentivizes consensual interactions with officers and individuals, encourages certainty, and ensures that evidence discovered by apparent authority consent searches will truly be reasonable. Courts, officers, and individuals will benefit from a more clarified approach.

This Article is divided into three parts. Part I explores the Supreme Court's Fourth Amendment jurisprudence regarding consent searches and traditional reasonableness balancing. Part II examines the split of authority among the circuits, with particular focus on the Seventh and Eighth Circuits. Part III proposes the modified Terry approach. Justifications for the proposal are put forth. Finally, this Article applies the proposed rule to recent cases to highlight the competing interests at stake and potential objections to the proposal are addressed.

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