can you organize these notes for me: Notes and Questions

1.Resolving conflict in third-party consent cases. Third-party consent often implicates a divergence of interests. One person consents, and a second person is very unhappy about it. How should courts resolve that tension? The usual approach, as seen in Fernandez, is that any one person with common authority can consent—subject to the Randolph exception. But is that the right choice? Imagine other possible rules. Would it be better if every person’s prior consent was needed? Or should the rule be that evidence from a consent search is admissible only against the consenting party? Or should Randolph’s exception be overturned, as Justice Thomas suggests in his Fernandez concurrence?

2.The common authority doctrine. Fernandez considers the scope of the Randolph exception for objecting persons to the usual rule that any person with “common authority” can consent. But what is the test for common authority? United States v. Matlock, 415 U.S. 164 (1974), provided this explanation:

“Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, see Chapman v. United States, 365 U.S. 610 (1961) (landlord could not validly consent to the search of a house he had rented to another), Stoner v. California, 376 U.S. 483 (1964) (night hotel clerk could not validly consent to search of customer’s room) but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.”

3.Hotel clerks. In a case cited in Matlock’s explanation of the common authority doctrine, Stoner v. California, 376 U.S. 483 (1964), officers believed an armed robbery suspect was staying at the Mayfair Hotel. Officers went to the hotel and spoke to the night clerk then on duty, explaining to him that they wished to arrest a person at the hotel for robbery and that the suspect might be armed. The clerk volunteered to help, telling the officers he was “more than happy to give you permission” to search the man’s room. The clerk brought an officer to the room, used his key to open the door, and announced, “Be my guest.” A police search yielded evidence of the robbery. The Court, per Stewart, J., threw out the conviction on the ground that the clerk’s consent did not authorize the search:

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“It is important to bear in mind that it was the petitioner’s constitutional right which was at stake here, and not the night clerk’s nor the hotel’s. It was a right, therefore, which only the petitioner could waive by word or deed, either directly or through an agent. It is true that the night clerk clearly and unambiguously consented to the search. But there is nothing in the record to indicate that the police had any basis whatsoever to believe that the night clerk had been authorized by the petitioner to permit the police to search the petitioner’s room. * * * No less than a tenant of a house, or the occupant of a room in a boarding house, a guest in a hotel room is entitled to constitutional protection against unreasonable searches and seizures. That protection would disappear if it were left to depend upon the unfettered discretion of an employee of the hotel.”
4.Domestic partners. Domestic partners ordinarily have common authority to consent to searches, although in special circumstances that authority may not extend to particular spaces or things inside. In United States v. Duran, 957 F.2d 499 (7th Cir. 1992), in holding defendant’s wife could consent to search of a separate building on their farm he used as a gym, the court deemed the requisite access established by the wife’s testimony she could have entered that building at any time (though the wife had not previously done so and had none of her personal effects there). But, the court cautioned, there is not “a per se rule that common spousal authority extends to every square inch of property upon which a couple’s residence is built”; such an approach “presumes that spouses, in forging a marital bond, remove any and all boundaries between them,” which “does not reflect reality, either in practice or in the eyes of the law.” The court thus opted for this position: “In the context of a more intimate marital relationship [as compared to other co-occupants], the burden upon the government should be lighter. We hold that a spouse presumptively has authority to consent to a search of all areas of the homestead; the nonconsenting spouse may rebut this presumption only by showing that the consenting spouse was denied access to the particular area searched.”
5.Adults and children. Adults usually can consent to search anywhere in a family house, including a child’s living quarters. United States v. Clutter, 914 F.2d 775 (6th Cir. 1990) (“As a general consideration, there is every reason to suppose that mature family members possess the authority to admit police to look about the family residence, since in common experience family members have the run of the house. So, in that sense, absent special circumstances, all rooms in the residence can be said to be areas of usage common to all members of the family.”) A contrary result is sometimes reached, however, when adult children are living with their parents. For example, in United States v. Block, 590 F.2d 535 (4th Cir. 1978), a mother could consent to a general search of her 23-year-old son’s room but could not consent to a search of a locked footlocker there when she did not have access to the key. In general, a child can permit entry into the premises, at least if it is not unusual or unauthorized for the child to admit visitors into the home, but consent rights are limited to the spaces they can ordinarily access. See, e.g., Clutter (12- and 14-year-old children who were left at home alone for long periods of time could permit entry into parents’ bedroom because “the boys enjoyed that degree of access and control over the house that afforded them the right to permit inspection of any room in the house”).

6.Roommates. A roommate can consent to searches of common areas of a shared house or apartment. See, e.g., Met v. State, 388 P.3d 447 (Utah 2016) (permitting consent search of basement). But can a roommate consent to a search of another roommate’s bedroom? The cases suggest it depends on the circumstances. On one hand, if the bedroom door is ordinarily open and access is not obstructed, and the roommate has regular access, consent to a search of the openly visible areas of the roommate’s room has been permitted. See United States v. Reeves, 594 F.2d 536 (6th Cir. 1979). On the other hand, if the door is ordinarily closed or the roommates have an understanding that access to the other’s room is ordinarily not allowed without permission, then no common authority exists. Further, common authority is not all or nothing: A roommate might have common authority as to open areas of a room but not as to particular items in the room. See,
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e.g., State v. Fuller, 976 P.2d 1137 (Or. App. 1999) (roommate had common authority as to room but not as to locked nightstand).

7.Employer-employee. In the context of private employment, employers ordinarily can consent to searches of the workspaces of employees. See, e.g., United States v. Ziegler, 474 F.3d 1184 (9th Cir. 2007) (employer could consent to a search of the computer it provided to an employee, even if the employee placed personal items in it). Whether employees can give valid consent to a search of employer premises depends upon the scope of their authority. Employees with keys to access premises, who are permitted to do so on their own, normally will have common authority to consent to searches of those spaces. United States v. Murphy, 506 F.2d 529 (9th Cir. 1974) (where employer gave key to employee for employer’s locked warehouse, employee could consent to its search). But employees with less access may not. See, e.g., United States v. Corral, 339 F.Supp.2d 781 (W.D. Tex. 2004) (part-time housekeeper, who cleaned the home two days a week but was not given a key, did not have common authority to consent to a home search).

8.The apparent authority doctrine. When officers seek third-party consent, they will first receive information or ask questions to figure out the relevant facts. But what if the “facts” the police perceive before the search, on which they conclude the consenting person has common authority, are later shown to be wrong? Is the consent search invalid?

In Illinois v. Rodriguez, 497 U.S. 177 (1990), the Court addressed this question by introducing the apparent authority doctrine. Gail Fischer claimed to the police that Rodriguez had assaulted her earlier that day in what she characterized as “our” apartment. She brought the police to the apartment, where she said Rodriguez was still present, and she opened the door with her key. Fischer then gave officers permission to search the apartment. The entering officers found Rodriguez inside with cocaine in plain view. When Rodriguez moved to suppress the drugs, the trial court ruled that, in retrospect, Fischer lacked common authority. Fischer was not a “usual resident” but rather an “infrequent visitor” who had once lived at the apartment but had moved out a month before the search. Fischer had a key, but it was uncertain whether Rodriguez had given it to her or she had taken it without his knowledge.

Based on the facts that emerged in litigation, the Supreme Court concluded that it was “obviously correct” that Fischer lacked common authority. But the Court further reviewed the case to decide “whether a warrantless entry is valid when based upon the consent of a third party whom the police, at the time of the entry, reasonably believe to possess common authority over the premises, but who in fact does not do so.” Per Scalia, J., the Court answered that apparent authority—a reasonable belief of common authority—permitted a search even if common authority was in retrospect lacking:

“It is apparent that in order to satisfy the reasonableness requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by agents of the government—whether the magistrate issuing a warrant, the police officer executing a warrant, or the police officer conducting a search or seizure under one of the exceptions to the warrant requirement—is not that they always be correct, but that they always be reasonable. * * *

“We see no reason to depart from this general rule with respect to facts bearing upon the authority to consent to a search. Whether the basis for such authority exists is the sort of recurring factual question to which law enforcement officials must be expected to apply their judgment; and all the Fourth Amendment requires is that they answer it reasonably. The Constitution is no more violated when officers enter without a warrant because they reasonably (though erroneously) believe that the person who has consented to their entry is a resident of the premises, than it is violated when they enter without a warrant because they reasonably (though erroneously) believe they are in pursuit of a violent felon who is about to escape.