Academic

Maclin on Consent Searches

By Lawrence Solum

Tracey Maclin (Boston University - School of Law) has posted The Good and Bad News About Consent Searches in the Supreme Court (McGeorge Law Review, Vol. 39, Forthcoming) on SSRN. Here is the abstract:

This article is about the Supreme Court's consent search doctrine. Part I describes how the law of consent searches developed between the 1920s and 1973, when Schneckloth v. Bustamonte was decided, which is the Court's seminal consent search case.

Part II of the article is a discussion of Bustamonte. In particular, this part highlights the spoken and unspoken premises that influenced the result in Bustamonte and outlines Bustamonte's continuing relevance for consent search cases today.

Part III examines United States v. Drayton, a ruling authored by Justice Kennedy that explains why a cryptic passage in that ruling provides important clues about the Court's current understanding of consent under the Fourth Amendment.

Part IV discusses Georgia v. Randolph, the Court's most recent consent search decision. The result in Randolph was a surprise. The Court held that a warrantless police search of a home over the express refusal of consent to search by the husband is unreasonable as to him on the basis of consent given by the wife to the police.

Fourth Amendment commentators have conflicting views on the impact of Randolph. Some argue that Randolph is a fact-specific holding and is unlikely to affect future consent search cases. Others contend that Randolph signals a major change in consent search law with the potential to overrule significant aspects of Bustamonte. This article provides a different view of Randolph. There is a feature of Randolph that may prove more enduring than the social expectations concept that provides the nominal foundation for the majority's ruling. The most important feature of Randolph is Justice Kennedy's vote. At first glance, Kennedy's decision to join the Randolph majority is perplexing. After all, Kennedy joined the majority opinion in Illinois v. Rodriquez approving a third party consent search in a context where the third party lacked the legal authority to allow a search. By contrast, in Randolph, the wife clearly possessed the legal right to authorize a search of the marital home.

This article provides an explanation that reconciles Justice Kennedy's vote in Randolph with his earlier vote in Illinois v. Rodriquez, and offers a proposal for future consent search cases that is consistent with Kennedy' tacit concerns in Randolph and Drayton.

Finally, Part V comments on how the tacit concerns that explain the result in Randolph can be applied in future consent search cases.

Full post as published by Legal Theory Blog on January 17, 2008 (boomark / email).