Black-letter propositions
- 01
When the subject of a search is not in custody and the state relies on consent, it must show that the consent was in fact voluntary, and voluntariness is determined from the totality of the surrounding circumstances (Schneckloth v. Bustamonte).
- 02
Knowledge of the right to refuse consent is a factor in the voluntariness inquiry, but the state need not prove that the person giving permission knew of the right to withhold consent.
- 03
Consent to search may be given by a third party who possesses common authority over, or another sufficient relationship to, the premises or effects to be inspected (United States v. Matlock).
- 04
A physically present co-occupant's stated refusal to permit entry renders a warrantless entry and search unreasonable and invalid as to that person, even though another occupant consented (Georgia v. Randolph).
- 05
Police may search a container within an automobile without a warrant if they have probable cause to believe that it holds contraband or evidence, and the rule of Carroll v. United States governs all automobile searches (California v. Acevedo).
- 06
Police may search the passenger compartment of a vehicle incident to a recent occupant's arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest (Arizona v. Gant).
- 07
The search-incident-to-arrest exception applies only to the area from within which the arrestee might gain possession of a weapon or destructible evidence.
- 08
The exclusionary rule does not bar the use in the prosecution's case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but later found invalid (United States v. Leon).
- 09
Suppression remains an appropriate remedy if the magistrate was misled by information in an affidavit that the affiant knew was false or would have known was false except for reckless disregard of the truth.
- 10
Suppression remains appropriate if the issuing magistrate wholly abandoned the detached and neutral judicial role, or if the affidavit was so lacking in indicia of probable cause that belief in its existence was entirely unreasonable.
- 11
Suppression remains appropriate if the warrant is so facially deficient, such as in failing to particularize the place to be searched or the things to be seized, that the executing officers cannot reasonably presume it to be valid.
- 12
The exclusionary sanction is a judicially created remedy that is applied by weighing the costs and benefits of preventing the use of inherently trustworthy tangible evidence, and its application should continue where a Fourth Amendment violation has been substantial and deliberate.
Use this attack sequence under time
Frame the issue
For consent, ask whether it was voluntary under the totality of circumstances and who gave it.
Resolve the next checkpoint
For a shared home, ask whether the consenting person had common authority and whether a present co-occupant refused.
Resolve the next checkpoint
For a car, ask whether police had probable cause to search the vehicle or a container, or whether they rely on arrest.
Finish the conclusion
For a defective warrant, check whether the officers' reliance was objectively reasonable under one of the four Leon exceptions.
Common wrong turns
- The police need not tell a person that he may refuse consent, though this is a factor in voluntariness.
- A present co-occupant's refusal defeats consent by another occupant as to the refusing person.
- A search of a car incident to arrest is allowed only if the arrestee could reach the car or the car holds evidence of the offense of arrest.
Worked example
Officers arrest a driver for a traffic offense, handcuff him, and place him in a patrol car. They then search the passenger compartment of his car. The offense of arrest was a minor traffic violation.
The arrestee cannot reach the car, and it is not reasonable to believe the car contains evidence of a minor traffic offense, so the search is not justified as incident to arrest under Gant.
Practice this topic
Consent searches
In Schneckloth v. Bustamonte, 412 U.S. 218 (1973), the Supreme Court held that when the subject of a search is not in custody and the state relies on consent, it must demonstrate that the consent was in fact voluntary, judged from the totality of the surrounding circumstances. Knowledge of a right to refuse consent is a factor, but the state need not prove that the person knew of the right to withhold consent.
United States v. Matlock, 415 U.S. 164 (1974), held that the prosecution may show consent by a third party who possessed common authority over, or another sufficient relationship to, the premises or effects. Georgia v. Randolph, 547 U.S. 103 (2006), held that a physically present co-occupant's stated refusal to permit entry renders a warrantless entry and search unreasonable and invalid as to that person, based on widely shared social expectations about what co-inhabitants may do.
Vehicle searches
California v. Acevedo, 500 U.S. 565 (1991), held that police may search a container within an automobile without a warrant where they have probable cause to believe that it holds contraband or evidence, and that Carroll v. United States provides one rule to govern all automobile searches. The decision eliminated the Sanders rule that had barred a warrantless search of a closed container in a moving vehicle when probable cause extended only to the container.
Arizona v. Gant, 556 U.S. 332 (2009), held that police may search the passenger compartment of a vehicle incident to a recent occupant's arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. The Court rejected a broad reading of New York v. Belton that would permit the search even when there was no possibility the arrestee could gain access to the vehicle.
The good-faith exception
United States v. Leon, 468 U.S. 897 (1984), held that the exclusionary rule should not bar the use in the prosecution's case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found invalid. The Court reasoned that the exclusionary sanction is a judicially created remedy applied by weighing costs and benefits, and that penalizing the officer for the magistrate's error cannot logically contribute to deterring violations.
The Court stated that reliance must be objectively reasonable, and that suppression remains appropriate where the magistrate was misled by a knowingly or recklessly false affidavit, where the magistrate wholly abandoned a neutral role, where the affidavit was so lacking in indicia of probable cause that belief in its existence was entirely unreasonable, or where the warrant was so facially deficient in particularizing the place or things that officers could not reasonably presume it valid.
Frequently asked questions
What is the controlling rule for consent, vehicle searches, and the good-faith exception to the exclusionary rule?+
Identify the exception, apply its limits, and separately ask whether the exclusionary rule still bars the evidence under Leon.
Do police have to tell someone they may refuse consent to a search?+
No. Under Schneckloth v. Bustamonte (1973), knowledge of the right to refuse is only a factor in deciding whether consent was voluntary.
Can one occupant consent to a search of a shared home?+
Yes, one with common authority may consent, but Georgia v. Randolph (2006) makes the search invalid as to a physically present co-occupant who refuses.
Do police need a warrant to open a container in a car?+
Not if they have probable cause to believe the container holds contraband or evidence, under California v. Acevedo (1991).
When may police search a car incident to arrest?+
Only if the arrestee might reach the car at the time or the car may contain evidence of the offense of arrest, under Arizona v. Gant (2009).
What is the good-faith exception?+
Evidence found by officers who reasonably relied on a warrant later found invalid is admissible in the case in chief, under United States v. Leon (1984), with four exceptions.