Irrevocable implied consent: the 'roach motel' in consent search jurisprudence!

AuthorPeterson, Christopher M.


One May morning, a security officer stopped Greg Morgan at the gates of Edwards Air Force Base. (1) Morgan, who worked as a civilian air traffic controller on the base, showed the officer his identification badge as required, but instead of permitting Morgan to continue on his way to work, the officer ordered Morgan to pull his Jeep Cherokee over to the side of the road. (2) There, the officer, reading from a script, requested that Morgan consent to a vehicle search. (3)

Morgan refused, explaining that he believed the search would make him late for work. (4) Two other security officers joined the first to confer at Morgan's vehicle. (5) One of the officers requested Morgan's license, registration, and proof of insurance, but then returned to conferring with his fellow officers. (6) Realizing that he would be late for work, Morgan exited his Jeep to find a phone to contact his employer. (7) When Morgan was ordered to stop, which he did, Morgan asked if he was under arrest/ The officer replied, "No," only to then shout, "Cover me," to his fellow officers and handcuff Morgan. (9)

Base security conducted a search of Morgan's person and vehicle and uncovered a semi-automatic pistol. (10) Morgan was detained and charged." A municipal court later found that no probable cause existed to conduct a search or bring charges against Morgan; all state charges were then dropped. (12)

Morgan filed a complaint in federal court, stating that, among other claims, the security officers at the gate had violated his rights under the Fourth Amendment when they conducted a search of his person and vehicle without probable cause. (13) The district court dismissed all claims with prejudice, and Morgan appealed the dismissal to the Ninth Circuit. (14)

The Court agreed that the security guards lacked probable cause to conduct the search but found that probable cause was not necessary. (15) The Court held that a person may impliedly consent to a search by presenting himself at a military gate, and then remanded the case to the district court, to determine whether Morgan had impliedly consented to the search. (16) By his act of driving up to the secured entrance of Edwards Air Force Base, Morgan might have given his implicit consent to a search. This implicit consent would have made the search reasonable whether or not Morgan actually knew a search was imminent. The Ninth Circuit decision in Morgan v. United States ignored Morgan's explicit refusal of consent, suggesting that it was reasonable that once Morgan was within the grasp of base personnel, he could not reasonably expect to leave without their permission.

Morgan and similar cases expose the consent search doctrine's drift from a foundation based on actual consent by the searched party to focusing on the needs of law enforcement. This drift has made "consent search" a misnomer--law enforcement officials can conduct a search under the auspices of the consent search when clearly no consent has been granted. The consent search doctrine is applied in situations where the suspect has not provided consent, does not have the opportunity to correct erroneously given "consent," and it is apparent that consent has never been given. When the doctrine is applied in this fashion, it inadvertently empowers law enforcement agents to engage in potentially invasive and discriminatory practices.

This Note discusses the implications of an irrevocable implied consent search doctrine. Part I discusses the constitutional underpinnings of the consent search doctrine, how it compares to other exceptions to the Fourth Amendment, and why it is a popular doctrine among law enforcement agents. Part II discusses instances where implied consent can serve as permissible grounds for a search. Part III discusses the importance of withdrawal to the consent search doctrine. Part IV discusses the implications of an irrevocable, implied consent search doctrine. Part V discusses viable alternatives to irrevocable, implied consent.


    Consent searches are a category of searches that the Supreme Court deemed to be reasonable under the Fourth Amendment. (17) The Court has considered two ways of interpreting consent under the consent search doctrine: (1) consent given after an actual "knowing waiver" of a right to be free from an unreasonable search and (2) a "voluntariness" test that considers whether a reasonable officer would have construed the suspect's actions as consent. (18) While the Court settled on the later interpretation of the doctrine in Schneckloth v. Bustamonte, (19) both remain viable options in state law consent search jurisprudence. (20) Regardless of which interpretation is used, the consent search doctrine is unusual compared to other exceptions to the Fourth Amendment, because the suspect's, rather than the government's, expressed intent serves as basis for a search. (21) Perhaps due to its unusual nature, the consent search is a powerful and popular tool for law enforcement officials, as a suspect's consent is sufficient to justify a search of the suspect's person and property.

    1. Constitutional Underpinnings

      The Fourth Amendment prohibits unreasonable searches. (22) According to contemporary Supreme Court jurisprudence, this prohibition assumes that a search is unreasonable unless it is either backed by a search warrant based on probable cause (23) or falls into a reasonable exception. (24) Numerous exceptions have developed over time, including searches based on reasonable suspicion when there is a possibility of danger, (25) searches due to recognized special needs, (26) searches of "closely regulated" businesses, (27) searches based on exigent circumstances, (28) and consent searches, (29) among others. (30)

    2. The Consent Search Doctrine

      Considering our nation's interest in individual freedom, it is not surprising that a search is reasonable if it is conducted with the permission of the person searched. (31) Such a search, if based on actual consent, could benefit private individuals and law enforcement officials by efficiently establishing innocence and saving the time it would take to secure a search warrant. (32) The Court, however, did not officially recognize a consent search exception to the Fourth Amendment until the 1920s. (33)

      When it created the consent search exception, the Court relied on actual consent: a suspect would need to give a knowing and voluntary waiver of his or her Fourth Amendment rights before a search would be considered consensual. (34) The Court changed its attitude towards the consent search doctrine in Bustamonte, which established modern consent search jurisprudence, by shifting from actual consent to a voluntariness test. (35) Writing the majority opinion for the 6-3 decision, Justice Stewart decided that the suspect did not need to knowingly waive his rights for the search to be valid, (36) stating that such a waiver analysis only applied to rights that served as safeguards in a trial and that such a requirement would unduly inhibit law enforcement. (37) Rather, Stewart stated that the reasonableness of a consent search should be based on a test of voluntariness, assessing the "totality of the circumstances" to decide whether the suspect had consented to the search. (38) He suggested that courts, when considering voluntariness, look to both subjective factors, focusing on the characteristics of the suspect stopped, and objective factors, assessing the level of coercion used by law enforcement to attain consent. (39) The Court did not discuss whether the suspect had to explicitly consent to the search, but the functional nature of the test suggests that the Court did not believe this was required.

      Bustamonte unmoored consent search jurisprudence from the original reasoning that made consent searches reasonable. Instead of focusing on the individual's right to consent as the basis for the doctrine, Stewart emphasized the balance between law enforcement officials' interest in conducting searches and the private citizen's fear of coercion. (40) This new focus on law enforcement interests moved the doctrine away from a subjective standard, focusing on a particular person's consent, to an objective standard, assessing whether the law enforcement officer's actions coerced the suspect into consenting to the search. (41) Though Bustamonte suggested that subjective factors could play a role in its "totality of the circumstances" test, studies show courts have largely ignored these factors. (42)

      Since Bustamonte, the Court has pushed the doctrine farther towards a government-oriented standard, stating that such a drift "reinforces the rule of law." (43) Courts now assess consent according to what a reasonable officer would assume to be consent, rather than according to whether the suspect actually consented. (44) The suspect granting consent technically maintains control, in most circumstances, over the scope and duration of the search after consent has been granted, but potential limits placed by the suspect on the scope of the search or withdrawal of consent are also assessed from the searching officer's perspective. (45) However, to academics and at least one court, the "knowing waiver" doctrine remains a viable option. (46)

    3. The Odd Exception

      Unlike most searches, which are based on the government's interests, the consent search reflects the expressed intentions of the suspect. In theory, the suspect conceeds to law enforcement's request for a search, making an otherwise unreasonable search reasonable. (47) The basis for the consent search seems constitutionally sound, even though it is different from other exceptions: if the Fourth Amendment is meant to protect against unwanted intrusion, consent to a search appears to avoid that concern. (48)

      The other exceptions to the Fourth Amendment's prohibition on searches focus on express representations made by the government...

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