Third Party Consent Searches and the FourthAmendment: Refusal, Consent, andReasonableness

I. IntroductionLast February marked the thirtieth anniversary of United States v. Matlock? a Supreme Court case that many lower courts have cited to determine whether a party can legitimately refuse to be searched after a third party has already consented to the search.2 Over the past three decades since Matlock, lower courts have disagreed about whether one co-occupant's refusal to consent to a search may trump another co-occupant's consent to search.3Recently, this issue came to a head in two state court cases: An Indiana appellate court upheld a search of a defendant's premises in which officers requested permission to search from the defendant's roommate, even though the defendant was present at the time of the search.4 Only a few months later, the Georgia Supreme Court affirmed an appellate court decision that one cooccupant's refusal trumps another co-occupant's consent.5 Why the difference in outcome? Lower courts differ in their interpretation of Matlock and employ two different models of consent searches.6Consider this hypothetical: police officers stop Luke for speeding. At the traffic stop, the officers discover cocaine in the car. When they question Luke about the cocaine he claims that it belongs to his roommate, Dave, and gives the officers permission to search the apartment that Luke and Dave share. The police officers go to the apartment and find Dave, but do not ask him for his permission to search. Instead, relying on Luke's permission, the officers search the apartment and find more cocaine, as Luke claimed. Is this search, where Dave was present but the officers failed to ask him for permission to search, valid?7 What if the officers arrested Dave and removed him from the scene before the police officers searched the apartment?8 What if Dave voiced his objection to the search?9 Are any-or all-of these searches valid under the Fourth Amendment?10The Supreme Court has recognized that one co-occupant can grant police officers access to an area shared in common with other occupants." If the police wish to search an apartment shared by two roommates, for example, the officers can validly search if either roommate consents to the search.12 Occasionally, however, a situation arises in which one roommate consents to the search, but the other refuses to allow the search.13 May the police go ahead with the search when they have valid third party consent, or must they defer to the wishes of the primary party? This question has important ramifications for police officers, officers of the court, and the citizenry alike.Simply stated, can one co-occupant give valid consent for police to search common areas of a premises when another co-occupant who is present objects to the search? The Supreme Court has not yet directly ruled on this question.14 Other courts in the United States, however, have considered this issue in many cases, using Matlock as the only nominally controlling authority.15 Lower courts have split on the issue-some allow a primary party's refusal to trump a third party's consent, others allow a third party's consent to trump a primary party's refusal-thereby creating different rules in different jurisdictions.16 This disparity among the courts is a problem because searches and seizures are governed by the Fourth Amendment of the Constitution, making third party consent searches a constitutional issue instead of a state law issue.17 Because the Fourth Amendment dictates search and seizure issues, it has controlling authority over every court in the country, both state and federal.18 This circuit split must be resolved.Part II of this Note begins with an overview of search and seizure jurisprudence, and then examines the constitutional legitimacy and scope of consent searches under the Fourth Amendment. Following this background, Part III turns to third party consent searches, focusing on Matlock, then considers the disparate rationales behind third party consent searches. …