Third-Party Consent

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THIRD-PARTY CONSENT

When someone invites the police into his or her home, the police need neither probable cause nor a warrant to accept the invitation. Acting on one person's invitation or consent to search, however, the police may uncover evidence that incriminates some other person. For example, a spouse or child may consent to a search that uncovers evidence against another spouse or a parent; a landlord may permit a search that reveals evidence useful in prosecuting the landlord's tenant; a common carrier may authorize the police to open a package shipped by a suspected drug dealer; or a school principal may authorize the police to search a student's locker. In litigation under the fourth amendment, the issues raised by cases of this sort have been treated under the rubric "third-party consent." Courts have held that the consent of someone other than the person against whom evidence is offered can sometimes justify seizure of this evidence despite the lack of probable cause or a search warrant.

No unitary theory explains when third-party consent justifies a search under the Fourth Amendment. In some cases, courts have invoked concepts of agency. In an extreme and unlikely case, the agency might be express; a person might execute a document authorizing an agent to admit the police to his or her premises at the agent's unfettered discretion. In these circumstances, a court could easily conclude that the principal himself or herself had authorized the search. Agency principles appear to justify both holdings that a manager of business premises may consent to a search that uncovers evidence against the owner of the business and rulings that the consent of a secretary or maintenance worker to a search of areas not open to casual visitors is ordinarily insufficient.

Courts also have upheld third-party consent searches that could not have been justified on agency principles. For example, a husband may assault his wife, and the wife may admit the police to the home that she owns with her husband to reveal the location of the assault weapon. In this case, the husband may be present and may inform the police that his wife has no authority to waive his Fourth Amendment rights. When the wife admits the police, however, she does not act as the agent of her husband, and she does not waive his rights. Instead, she exercises her own property rights. As in other cases of third-party consent, the husband's Fourth Amendment rights are limited by the authority of others to control premises in which he otherwise would have a reasonable expectation of privacy. Whether the authority of others is grounded in agency, property, license, contract, or something else does not matter.

The general rule articulated in United States v. Matlock (1974) is that when two or more people have joint access to or control over premises that the police wish to search, "any of the co-inhabitants has the right to permit inspection." The Supreme Court cautioned that "the authority which justifies third-party consent does not rest upon the law of property, with its attendant historical and legal refinements." In practice, the consenting party's authority is determined largely by general cultural understandings, and as in other situations in which courts consider expectations of privacy, these understandings may be ad hoc, changing, and difficult to assess.

For example, an inhabitant ordinarily may invite a guest to enter the house that he or she shares with another, but the inhabitant may not invite his or her guest surreptitiously to observe the inhabitant's housemate in the shower. Even sole ownership of a house does not confer a privilege to invade the privacy of a guest or to permit others to do so. Similarly, a lease may give a landlord authority to inspect the leased premises, but the landlord would exceed his or her authority if he or she invited the television crew of "Lifestyles of the Rich and Famous" to participate in the inspection. (Courts have in fact held the consent of a landlord insufficient to justify a police search of leased premises.) In Stoner v. California (1964), although a hotel clerk had authorized the search of a hotel room, the Supreme Court held the search invalid. Maids and other hotel employees might legitimately have entered the room, but they could not properly have brought along their friends, their relatives, or the police.

Whether a person should have greater or lesser authority to permit the police to search than he or she would have to authorize a search by someone other than a police officer may be a difficult question. A wife whose husband has permitted a police search might protest, "I have no reasonable expectation that my husband will not invite guests to our home; but in most situations I do expect that he will not invite the police to enter for reasons hostile to my interests." On this view, a person's consent to a search by a police officer might be invalid, although consent to a similar inspection by a nonpolice officer would be permissible.

A person is likely to have stronger legitimate reasons to cooperate with the police than to permit inspection by others, however, and courts have upheld police searches based on third-party consent when consent to inspection by anyone else—even by a close friend—probably would have been unauthorized. For example, a husband probably would violate customary norms of privacy by permitting a friend to rummage through a dresser used not only by him but by his wife. In Matlock and in Frazier v. Cupp (1969), however, the Supreme Court upheld searches in which the police had opened closets and luggage used in common by consenting and nonconsenting parties. To consider what authority a consenting party would have had to permit inspection by someone other than a police officer may be helpful as a starting point, but courts cannot avoid fact-specific assessments of expectations of privacy in particular situations. Because most police searches lack close analogues in everyday experience, this task is often difficult.

Under the Supreme Court's decision in Illinois v. Rodriguez (1990), courts judge the authority of a third party to consent to a search from the perspective of a reasonable police officer; they do not require that the consenting party have authority in fact. This approach may seem harsh when a thief who pretends to be the owner of luggage that he or she has stolen gives the police permission to open it—with the result that the police uncover evidence against the owner. This owner may be incriminated by evidence that the police obtained without his or her consent and without probable cause.

Nevertheless, the Constitution guards almost exclusively against governmental abuse, and the Fourth Amendment proscribes only unreasonable searches and seizures. When the police act on the basis of reasonable appearances, the objectives of the amendment seem satisfied. These objections do not include protection against all unjustified invasions of privacy but only against improper invasions of privacy by the government. Permitting the police to rely on a consenting party's apparent authority seems especially appropriate when the police might have conducted their search with a warrant had a seemingly valid consent not been given.

The third party's consent must reasonably appear to the police to be voluntary. When the police coerce a person to consent to a search that reveals evidence against another, the incriminated person has the same power to object to the search that he or she would have had if the police had not obtained the third party's consent at all.

This principle applies to cases of electronic eaves-dropping just as it does to cases in which the police have seized tangible evidence. Although state statutes sometimes forbid electronic monitoring even when one party to a conversation has consented to it, the Fourth Amendment as construed by the Supreme Court permits electronic monitoring so long as any party to a conversation has agreed to it. The Court has concluded that this monitoring is indistinguishable from the disclosure of a conversation by one of the participants after it has occurred.

If consensual electronic monitoring is indistinguishable from a participant's later disclosure of a conversation, however, any party who could assert that another's consent to electronic monitoring was involuntary also should be allowed to object to an informant's involuntary disclosure of a conversation after the fact. Yet he or she is not. Although the question has been litigated raely, no one other than the informant himself or herself has been permitted to challenge the voluntariness of the informant's disclosure. The rule that a person lacks standing to object to the violation of another person's rights has been thought to foreclose a challenge o the voluntariness of an informant's statements by a person othe than the informant.

The principles that courts have developed in cases of third-party consent thus have not been consistently applied, and these principles might work important changes in the police informant system. Permitting others to challenge the use of coercive tactics against informants would subject some common police practices to new judicial scrutiny (for example, the practice of threatening to charge potential informants with crimes and to hold them on high bond). The coercion of third-party informants may invade the reasonable expectations of privacy of people whom the informants incriminate. This coercion can violate the rights of these people along with the rights of the informants themselves.

Albert W. Alschuler
(1992)