The theory and practice of Illinois v. Rodriguez: why an officer's reasonable belief about a third party's authority to consent does not protect a criminal suspect's rights.

• Author: Wieber, Michael C.

1. INTRODUCTION

   A receptionist buzzes DEA agents into the offices at a small business, and the agents rummage through her bosses' offices.(1) A woman calls the police and lets them into her sleeping boyfriend's locked closet with keys which she removed from his pants.(2) Courts found these searches constitutional under the Fourth Amendment.

   The courts in each of these cases determined that the police reasonably believed that the consenting party had authority to consent to the search, and thus, under Illinois v. Rodriguez,(3) the searches were valid. In Rodriguez, the United States Supreme Court held that if police reasonably believe that the person who consents to a search has common authority over the property, the search will be valid against a third party charged on the basis of the evidence seized.(4) Despite the long history of the reasonableness standard, in Rodriguez, the Court ignored the underlying reasons for the Fourth Amendment warrant requirement. Moreover, because of its doctrinal flaws, the reasonableness standard enunciated in Rodriguez has failed in application.

   Both Justice Marshall and a student author have offered criticisms of the test,(5) but their alternative suggestions are incomplete and unworkable, respectively. Because of the problems surrounding both the reasonableness test and the alternative proposals, this Comment suggests that the Court adopt a "common authority in fact" test. This test would require that a person who consents to the search actually have common authority over the place or item searched. Such a test would protect the rights of defendants from arbitrary and unexpected searches while simultaneously preventing defendants from shifting the burdens of their criminal activities onto innocent third parties. Additionally, such a test would not significantly impede law enforcement efforts.

   This Comment will first trace the history of the Fourth Amendment including an analysis of the case law leading up to the Rodriguez decision. The Rodriguez decision will then be examined in detail. Next, this Comment will explore criticisms of the reasonableness standard and survey recent cases which demonstrate each of its shortcomings. Then, other possible tests will be explored. Finally, this Comment proposes a new "common authority in fact" test and applies it to some of the criticized cases.

2. BACKGROUND

   This section explores the history of the Fourth Amendment, which provides the basis for all search and seizure case law. The amendment states:

   The right of the people to be secure in their persons, houses, papers,

   and effects, against unreasonable searches and seizures, shall not be

   violated and no Warrants shall issue, but upon probable cause, supported

   by Oath or affirmation, and particularly describing the place to

   be searched, and the persons or things to be seized.(6) By its plain language, the amendment seems to be designed to guard the security of persons and their houses from searches not reasonably grounded in factual beliefs.(7) Over time, the Court has interpreted the language in a way that has continually placed more emphasis on reasonableness--especially in the case of warrantless searches.

   In Brinegar v. United States,(8) an early case in which the reasonableness test was utilized, the Court held that while the police need not always be factually correct in conducting a warrantless search, such a search must always be reasonable. In Brinegar, the defendant had a reputation for illegally transporting liquor across state lines in violation of 27 U.S.C. [sections] 223.(9) One day when the defendant's car passed an officer, who was parked on the edge of a highway, the officer recognized the defendant and noted that the defendant's vehicle looked "heavily loaded."(10) Upon stopping the vehicle, the officer could see one case of alcohol in the front seat of the car, but the defendant later denied that any liquor was visible.(11) The defendant was arrested for the 27 U.S.C. [sections] 223 violation, and the officer seized the alcohol in the car as well as the alcohol he found in the trunk after the arrest. The defendant challenged the constitutionality of his arrest on the grounds that the officer did not have probable cause, and thus the seizure of the alcohol was not pursuant to a valid Stop.(12)

   The Supreme Court, in finding the arrest to be constitutional, stated that the officer had probable cause to stop the defendant's car.(13) The Court emphasized that "probable cause" was the standard for conducting the arrest, not "guilt beyond a reasonable doubt" as is required for criminal convictions.(14) The Court stressed that if the "beyond a reasonable doubt" standard were used in ordinary arrests, officers rarely could take "effective" action in protecting the public good because the standard would be too high to meet.(15) The Court noted that to require more than probable cause would harm law enforcement, while to allow less than probable cause would "leave law-abiding citizens at the mercy of the officers' whim or caprice."(16) Nonetheless, the Court cautioned, probable cause still requires "a reasonable ground for belief of guilt."(17) Thus, the Court announced that it would consider the reasonableness of an officer's belief when it evaluates a warrantless search.

   The boundaries of the reasonableness test for warrantless searches were made clearer a decade and a half after Brinegar in Stoner v. California.(18) In Stoner, the Court emphasized that the Fourth Amendment should not be infringed upon by "unrealistic doctrines of apparent authority," thus shifting the inquiry more toward defendants' rights.(19) The police trailed the defendants, who were suspects in a robbery, to a hotel in which they were staying.(20) The officers discovered that defendant Stoner was out of his room because his keys had been left at the hotel desk in accordance with hotel policy.(21) The officers explained their desire to search Stoner's room to the hotel clerk.(22) The clerk then led the officers to Stoner's room and let them in. The officers, upon entering the room, discovered evidence of the robbery which was later used to convict Stoner.(23)

   In rejecting the government's arguments that the search was constitutional, the Supreme Court in Stoner dismissed the notion that the consent of the hotel clerk validated the search, stating that [o]ur decisions make clear that the rights protected by the Fourth Amendment are not to be eroded by strained applications of the law of agency or by unrealistic doctrines of 'apparent authority.'"(24) The Court stressed that protection from search and seizure was the defendant's procedural right, not the clerk's or the hotel's.(25) Thus, only the defendant's word or deed could be used to waive the right, either personally or through an agent.(26) The Court acknowledged that, by staying in a hotel, a person gives implied or express consent to allow repairmen and maids to enter the room to conduct their ordinary duties. However, a guest at a hotel, like a boarder or tenant of a house, is entitled to protection against unreasonable searches and seizures, and that protection would be lost if "it were left to depend on the unfettered discretion" of a hotel employee.(27) Thus, even though the clerk had the ability to enter the room as part of the ordinary procedures of hotel management, the police were not allowed to rely on this as sufficient control to authorize a search. In short, the Court in Stoner effectively placed a limit on the reasonableness test, stating that apparent authority would not ordinarily be sufficient to validate a search.

   In Katz v. United States,(28) decided shortly after Stoner, the Court stated that whether a warrantless search or seizure is reasonable may depend in part on the relationship of the parties, rather than the place searched. The Court considered the constitutionality of placing listening devices on the outside of a telephone booth to monitor a suspect's conversation.(29) In upholding this search, the Court in Katz noted that "the Fourth Amendment protects people, not places[, but w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection."(30) Thus, the Court concluded that one should not simply consider where the search took place but also the relationships among the consenter, the searcher, and the defendant.(31)

   In Terry v. Ohio,(32) the Supreme Court expanded on the "relationship" theme discussed in Katz. The Court stated that in conducting a search, a police officer must consider his own safety interests, the protection of the public, and the defendant's privacy interests; thus, it clearly laid out the policies that courts should consider in making a determination about Fourth Amendment violations.(33)

   In Terry, an officer observed two men peering in a store window and walking back and forth on a street, conferring occasionally.(34) After witnessing what he believed to be suspicious action, the officer approached them and performed a pat down search on defendant Terry, which revealed a gun. Terry was subsequently charged with carrying a concealed weapon.(35) At trial, Terry claimed that the search had not been performed incident to a lawful arrest. The trial court denied this claim, asserting that some interrogation could and should have been made because these men had been acting suspiciously.(36) The trial court held that a pat down search could lawfully be conducted for the protection of the officer because, based on the suspects' actions, the officer had reason to believe the suspects

   might be armed.(37)

   The Supreme Court, in affirming the trial court, employed a reasonable person standard to determine whether the officer was justified in conducting the pat down search.(38) In asking whether the facts available to the officer at the moment of the seizure or search would "warrant a [person] of reasonable caution in the belief" that...