The Problem of Third-Party Consent in Fourth Amendment Searches: Toward a "Conservative" Reading of the Matlock Decision

Authors

Robert Deschene, University of Maine School of Law

Abstract

In United States v. Matlock, the United States Supreme Court delivered its most recent and comprehensive statement on the doctrine of third-party consent. Under the doctrine, police may search a defendant's home or effects without first obtaining a judicially issued search warrant. Instead of this traditional prerequisite for a valid fourth amendment search, the police need only have the voluntary consent of a third person who possesses "common authority" over or a "sufficient relationship" to the area to be searched. At that point, the defendant's own consent becomes largely irrelevant. Both the United States and Maine constitutions provide protection against "unreasonable" searches and seizures by the government and its agents. The police must obtain a warrant from a "neutral and detached magistrate," particularly in cases in which the search will intrude upon the privacy of the home. Over time, this general warrant requirement has been qualified by a few narrowly drawn exceptions: searches under exigent circumstances, searches incident to arrest, automobile searches, stop and frisk searches, and administrative searches. Each of these exceptions has been justified by reference to some countervailing state interest that would make the securing of a warrant either unsafe, impractical, or a threat to the viability of the evidence seized. This state interest is then balanced against the potential intrusiveness of such a search. One of the major exceptions to the warrant requirement is "consent," wherein the suspect "voluntarily" waives his fourth amendment rights. Unlike third-party consent, the suspect is presumed to have a vested interest in protecting his or her own constitutional rights. Once effectively waived, the search can proceed without a search warrant and without probable cause. From this basic principle, the next analytical step for the Court was to permit other persons impliedly or vicariously to waive the suspect's rights. This "agency" model was the earliest proposed justification for third party consent.

First Page

159

Recommended Citation

Robert Deschene, The Problem of Third-Party Consent in Fourth Amendment Searches: Toward a "Conservative" Reading of the Matlock Decision, 42 Me. L. Rev. 159 (1990).
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol42/iss1/8