Citation

Bhargava MN. Univ. Ill. Law Rev. 2008; (3): 1009-1043.

Copyright

(Copyright © 2008, University of Illinois at Urbana-Champaign, College of Law)

DOI

unavailable

PMID

unavailable

Abstract

Judicial treatment of third-party consent searches has been especially convoluted. In Georgia v. Randolph the United States Supreme Court rejected the rule that consent to the warrantless search of jointly occupied property by a cotenant or common resident renders the search valid against another present cotenant or common resident who refuses to consent. In the wake of this decision, lower courts have struggled to reconcile the Court's revision of third-party consent doctrine with established principles of Fourth Amendment jurisprudence. The Court's analysis in Randolph turned upon the Court's view of widely shared social expectations. The Court's view, however, contravenes traditional property law concepts that protect the right of cotenants to include, as well as exclude, third parties. The author's analysis of Randolph's effect upon the role of third-party consent in search procedures begins with an examination of how the Court's "social expectations" analysis comports with Fourth Amendment jurisprudence. Next, the author explains lower courts' struggle with the question of whether Randolph's holding applies to consent to enter or consent to search. Finally, the author anticipates potential consequences of Randolph for households with more than two cotenants and for domestic violence cases. To resolve the tension created by Randolph between the third-party consent doctrine and established Fourth Amendment principles, the author recommends that the Court abandon its "social expectations" analysis with respect to third-party consent searches in favor of the "totality of the circumstances" approach outlined in Justice Breyer's concurrence. In addition, to protect residents without undermining their privacy interests in personal effects, the author suggests that courts apply Randolph only in connection with police requests for consent to search.