Criminal Procedure - Outline Part 25

d. (4) Consent

1. General
   1. Dispenses w/ PC & SW requirement
   2. Consent can be revocable and defined by the scope of the consenter
   3. Consent does NOT have to be in writing (most of the time)
   4. Must be voluntary
      1. Involuntary – look for threats or manipulation
   5. Prosecution bears burden to show that consent was valid and voluntarily given, i.e., not the result of duress or coercion, express or implied
2. Totality of the Circumstances Test
   1. Consent is voluntary as long as not the product of duress, coercion, express or implied
   2. Warning of Right to Refuse? → Voluntariness does not require proof of knowledge of a right to refuse (this is just a factor) → Police DO NOT have to tell the consenter that he has a right to refuse (Bustamonte)
   3. Voluntary Test:
      1. Totality of the Circumstances;
      2. Consenter’s will was overborne by the police
   4. Traffic Stop → Consent is still voluntary regardless if the police do not inform the consenter that he is free to go after returning his driver’s license upon being stopped for traffic violation (Robinette)
      1. After warning, don’t have to tell individual he can go before asking to search
      2. Police can’t prolong search
   5. False Claim of Present Authority – Where an officer falsely asserts that he has a valid search warrant to get consent, the consent is invalid, i.e., coercion (Bumper)
3. Consent by Third Person
4. Default/General Rule (Matlock) → if you live with someone, they can give consent b/c they have “common authority” over the premises (assume the risk by living with someone); but if have own separate living space, clearly police need your consent to search unless “common authority”
   1. Considerations:
      1. Mutual Use of Property?
      2. Joint access/control of property?
      3. Right to let people come & go from property
5. When tenants all present, but one is objecting → when D is PHYSICALLY present and objecting when a 3^rd party consents to a search of the premises over which joint authority is shared, the third party’s consent will not be binding on D (Randolph)
   1. HOWEVER, look for RECOGNIZED HIERARCHY → If there’s an ownership structure (e.g., parents house, military barracks), the individual with the most authority has say over consent
   2. RULE: When any co-tenant declines consent to search, the no trumps the yes; must be (1) physically present (in front of police); and (2) objecting
      1. Police could wait for objecting party to leave
6. When one resident denies entry into a dwelling, but is arrested on independent grounds, then police come back and get consent from other co-resident, that consent is valid (Fernandez)
7. Reasonable Mistake / Apparent Authority
   1. A third-party consent will be valid on the absent defendant even if the police were mistaken about whether the consenter in fact had joint authority over the premises, as long as mistake was reasonable
      1. An individual may lie and say they live at the premises and give consent, if police reasonably believe the liar then the lie will not invalidate the consent
      2. Even if consenter is an infrequent visitor or usual resident with no true authority; so long as police were reasonably mistaken in their belief that the consenter had authority to consent, consent is valid
   2. Apparent Authority Test → Objective standard: would the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises? (Rodriguez)
      1. Reasonable mistake of fact is okay
      2. Did consenter have a key, say “our” apartment
8. Scope of Consent
   1. A consent search is invalid, even if the consent was voluntary, if the police exceed the scope of the consent granted
      1. It is reasonable for an officer to consider a suspect’s general consent (with no stipulations or limitations) of his car to include the consent to examine a paper bag or other containers within his car (Jimeno)
      2. This wouldn’t include prying open a briefcase

e. (5) Exigent Circumstances – a warrantless intrusion may be justified by:

1. Hot Pursuit of Fleeing Felon
2. Imminent Destruction of Evidence
   1. Warrantless entry to ascertain blood-alcohol content before “destroyed” by passage of time is unlawful (Welsh)
3. Need to Prevent Suspect from Escape
4. Risk of Imminent Harm to Police or Others Inside
   1. “Police Created Exigency” → no such thing; only if police:
      1. threaten or
      2. actually engage in a 4^th Amendment violation will entry be unlawful (King)
   2. As long as the police behavior is “reasonable” in 4^th A terms, the behavior will not deprive the police of the ability to enter without a warrant

f. (6) Special Needs & Non-Criminal Context

1. “Special Needs Exception to the Warrant Requirement” → a search or seizure comes within the “special needs” category when a perceived need, beyond the normal need for criminal law enforcement, makes the warrant and/or PC requirements of the 4^th A impracticable or irrelevant
   1. In such circumstances, the Court evaluates the governmental activity by applying the reasonableness balancing standard
2. Emergency Community Caretaking Doctrine → law enforcement may enter a home/car w/o a warrant to render emergency assistance or protect an occupant from imminent harm (Stuart)
3. Automobile Inventories → when an automobile must be towed as result of illegal parking, the police may routinely inspect the contents of the car, not as part of a criminal investigation, but simply to make sure that belongings are properly inventoried for safekeeping purposes (must have written policy) (Opperman)
4. Administrative Searches:
   1. Housing Code Inspections → Court approved warrantless administrative searches of “closely governmentally regulated industries” even in the absence of emergency or consent (NY v. Burger)
      1. Did not matter that police performed the search – all that mattered was that the administrative regulations had a non-penal purpose
   2. School Searches → public school teachers and administrators may search students without a warrant if:
      1. there are reasonable grounds – NOT necessarily “probable cause” in criminal context – for suspecting that the search will turn up evidence that student has violated or is violating either the law or the rules of the school; and
      2. once initiated, the search is not excessively intrusive in light of the age and sex of the student and the nature of the infraction
   3. Airport Searches → a particular airport security search is constitutionally reasonable provided that it:
      1. is no more extensive than necessary, in the light of current technology, to detect the presence of weapons or explosives; and
      2. it is confined in good faith to that purpose
   4. Probation & Parole Searches
      1. Probation → No SW needed, no PC needed, RS required
      2. Parole → No SW, no PC needed, no RS
         1. Limitation on BOTH: search MUST be made by probation or parole officer
         2. Drug/blood test at any time
         3. Applies to houses, cars, etc.
   5. Border Searches
      1. General:
         1. At the border and its functional equivalent (airport), a person may be stopped and her belongings searched w/o a warrant and in the absence of individualized suspicion of wrongdoing, “pursuant to the longstanding right of the sovereign to protect itself” from the entry of persons and things dangerous to the nation” (Ramsey)
         2. A suspicion-less international border search is constitutionally reasonable even when border agents, without RS, seize a person’s car at the international border, remove the gas tank, and search it (Flores-Montano)
      2. Seizures by Roving Border Patrol → the roving border patrol agents need RS of criminal activity to detain the car occupants briefly (Brignoni-Ponce)
      3. Seizures at Fixed Interior Checkpoints → vehicle occupants may be stopped for questioning at fixed interior checkpoints without individualized suspicion of wrongdoing (Martinez-Fuerte)
   6. Sobriety Checkpoints on Highways
      1. General:
         1. Checkpoints must be either (1) fixed and stop all cars or (2) system of randomized (e.g., every 3^rd car)
         2. No discretion - Officer cannot have any discretion; if police stop less than all, presumably they must have some particularized suspicion before they may stop a specific person
         3. Individualized suspicion requires PC to stop
         4. What is the primary purpose of the checkpoint? (Highway safety = okay); (General crime control = not okay)
      2. Sobriety Checkpoints → State’s interest in preventing drunk driving and the degree of intrusion on motorists weighs in favor of the state program (Sitz)
         1. No PC, no RS, just “reasonable” seizure
         2. 25 sec stop → need RS or PC to pull to side and stop for longer
      3. License/Registration Checkpoints → checkpoints for verifying licenses and registrations may be permissible; but cannot have any discretion (Prouse)
      4. Drug Checkpoint → b/c the primary purpose of the checkpoint is indistinguishable from the general interest in crime control, unconstitutional (Edmond)
         1. NEVER would a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing be constitutional without individualized suspicion, UNLESS possibly for emergency situation (terrorist attack, dangerous criminal on particular route)
      5. REMEMBER: State constitutions may afford more protections
         1. State can set rules and give MORE protection to citizens IF State Court makes clear that it is relying on state law/constitution
   7. Drug Testing → suspicion-less drug testing (urine, blood, breath) has been upheld by SC in some circumstances so long as the reason is not indistinguishable from general interest in crime control according to the following factors:
      1. Primary purpose of program;
      2. Threat of arrest for failure to pass;
      3. Involvement of law enforcement officials;
      4. Nature and immediacy of the government’s concerns regarding drug testing