The Supreme Court and Consent Search

by Professor Byron L. Warnken on March 9, 2014

SCOTUS Plays Fast and Loose with Consent Search

In the era of the Warren Court in the 1960’s, the Supreme Court held that, searches and seizures were per se unconstitutional unless the police obtained a warrant, subject to a very few, carefully delineated, and well guarded, exceptions to the warrant requirement.  Nearly a half century later, the Fourth Amendment had evolved to the point that exceptions to the requirement for a warrant far outpace the warrant requirement itself.

The Evolving Fourth Amendment

I am the author of Maryland Criminal Procedure, a three-volume, 1,800-page, 34-chapter treatise.  Most search and seizure law comes from Supreme Court cases interpreting the Fourth Amendment.  Thus, in the context of search and seizure, Maryland criminal procedure and federal constitutional criminal procedure are essentially the same.  I have been a law professor for 37 years.  I have taught seven courses, all with my own material.  My three main courses are Criminal Law, Constitutional Criminal Procedure I (CCPI), and Constitutional Criminal Procedure II (CCPII).  Sixteen of the 28 classes in CCPI cover Fourth Amendment search and seizure.  Two of the 16 classes cover the “applicability” of the Fourth Amendment.  Twelve of the 16 classes cover “compliance” with the requirements of the Fourth Amendment, when the Fourth Amendment applies.  Two of the 16 classes cover Fourth Amendment “remedies,” when the Fourth Amendment has been violated.  Of the 12 classes covering Fourth Amendment “compliance,” two classes address the warrant requirement, and ten classes address the exceptions to the warrant requirement.  That gives you some sense of the five-decade evolution of the Fourth Amendment.

The two classes on Fourth Amendment applicability demonstrate that the Fourth Amendment is applicable in many fewer circumstances than it once was.  The two classes on Fourth Amendment remedies demonstrate that, when the Fourth Amendment is violated, there is much more likelihood of no remedy today, for the violation of the Fourth Amendment, when compared to 50 years ago.  The twelve classes in the middle – Fourth Amendment compliance – demonstrate that it is much, much easier for police to comply with the Fourth Amendment than it ever was.  The Fourth Amendment issues are litigated when the prosecutor wishes to use evidence that the Defendant claims was seized illegally.  The admissibility of that evidence, when there is a motion filed to suppress evidence, alleging that it was seized in violation of the Fourth Amendment, is litigated in a pre-trial motions hearing, which is heard by the trial judge and not by a jury.

Consent Searches

The second of the two classes on Fourth Amendment applicability addresses the concept of consent searches.  Police often claim that the Defendant gave the police consent to search.  The first consent issue is whether there actually was consent.  The officer testifies that the Defendant gave consent to search the home, the vehicle, the brief case, whatever, and the Defendant testifies that he never gave consent to search.  That is a factual dispute to be resolved by the trial judge in the suppression hearing.  Assuming that consent was actually given, the next issue is whether the Defendant voluntarily consented, viewing all of the evidence under the “totality of the circumstances.”  Some constitutional rights may only be “waived” by the Defendant if the Defendant makes a “knowing and intelligent” waiver.  For example, under Miranda v. Arizona, a Defendant under arrest has the right to an attorney present during questioning.  This right can only be waived if the Defendant makes a “knowing and intelligent” waiver of his right to counsel during questioning.  That is why, under Miranda, the police must read to the Defendant his four Miranda rights and why the Defendant cannot give up those rights unless the rights were properly explained to the Defendant and the Defendant then knowingly and intelligently waived those rights.

Not so with the Fourth Amendment right to be free from unreasonable searches and seizures.  A Defendant can give up his rights against unreasonable searches and seizures even if he does not understand what those rights are.  The police do not have to explain to the Defendant that he has a right to resist a police search.  The average person probably does not understand that he does not have to allow a unformed and armed police officer into his home without a warrant.  The average person, in a traffic stop, may be asked by the police whether he has any drugs or weapons in his car.  If he says “no,” the police may then say, “because you do not have any drugs or weapons in your car, you won’t if I look around, do you?”  So, that second consent issue is whether, if the Defendant consented, whether his consent was given voluntary, i.e., voluntary under a totality of the circumstances as opposed to being actually or subtly coerced by police, who are permitted to use their superior position and trickery to obtain consent.  The third consent issue is, if the Defendant actually consented, and the consent was voluntary, what was the scope of the consent given.  Opening the front door, and voluntarily allowing the police to enter, does not mean that the Defendant consented to the police searching in the underwear drawer in the dresser in the bedroom upstairs.  The final consent issue is, if the evidence is to be admitted against someone other than the person who gave consent, did the “consenter” have the actual authority, or at least the constructive authority, to grant consent to the police that binds someone else who is not present at that time.  That brings us to Fernandez v. California.

Fernandez v. California

If two people live together, the Supreme Court holds that each of them has assumed the risk that the other one may allow a stranger to the relationship into a place in which those two have joint access.  If I take the risk that my spouse might allow outsiders into the property we share, e.g., our home, then I assume the risk that she will allow the police in as well.  Since 1964, the Supreme Court has held that, if only one partner is present, and that person has access to the entire premises, that person may give consent to the police to enter and search.  In 2007, the Supreme Court in Randolph v. Georgia, addressed that issue in the context of both persons being present, with one person telling the police they may enter and search, and the other person expressly telling the police they may not enter and search without a search warrant.  The Court held that, in that context, whatever evidence the police find is admissible against the consenting party, but it is not admissible against the non-consenting party.

In 2014, in Fernandez v. California, the police came to the home.  The female said that the police may enter and search.  The male stood in the doorway and said that the police may not search without a search warrant.  The police believed that there was evidence of assault, and they arrested the male and took him away.  The police then returned to the home and obtained consent to search from the female.  The Supreme Court ignored the express rejection of consent that the Defendant had just recently given.  The Court held because the male (who just rejected consent) was not present, if the female gave consent, it was a valid consent as against both the male and the female.  Of course, the male was not present.  The police had arrested him, without a warrant, had taken him away, and made him become “not present.”  For the Supreme Court to ignore the fact that the Defendant had just expressly refused to give consent is disingenuous.

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I Was In a Car with Drugs…

by Professor Byron L. Warnken on February 7, 2014

Well, I was not in a car with drugs but if you’re reading this, maybe you were.

If I am in a car that is stopped, and there are drugs, what can the police do to me?  The answer to that question depends on a couple of variables.  What is your status and where are the drugs?

There is a threshold issue of whether there are drugs in the vehicle.  A vehicle may only be stopped if there is


  1. Reasonable suspicion that a crime took place and reasonable suspicion that one or more individuals in the vehicle committed that crime, or
  2. A violation of the traffic laws and/or safety laws.
Vehicles are usually stopped based on (2).  If there are drugs in the vehicle, police usually determine that drugs are present by smelling drugs (particularly marijuana), observing drugs or drug paraphernalia, or having a drug sniff dog alert to the presence of drugs in the vehicle or on a person.


If you are in a vehicle, you are either the driver or you are a passenger, meaning someone other than the driver.  If police validly stop a vehicle, the driver is considered to be in actual or constructive possession of everything in the vehicle.  Actual possession means actual dominion and control over an item.  It means direct control, e.g., in one’s hands, in one’s pockets, in one’s briefcase.  Constructive possession means indirect possession based on a totality of the circumstances.  This takes into account the distance between the alleged possessor and the item possessed, the ownership or possessory interest of the person in the place where the item alleged to be possessed rests, and any evidence of mutual use and enjoyment of the item allegedly possessed with another person who is in actual or constructive possession of the item.  Both actual possession and constructive possession are possession, and the law prohibits possession of drugs.


The driver of a vehicle is always considered to be in actual or constructive possession of everything in the vehicle that he or she is driving.  That does not include drugs in a passenger’s backpack because those drugs are more on the person of the passenger than they are in the driver’s vehicle.  More than one person may be in actual or constructive possession of an item at any given time.  The leading Supreme Court case is a 2003 case from Maryland.  In that case, the Supreme Court held that when there were three people in an SUV (a driver, a front seat passenger, and a back seat passenger), and there was a lot of cash in the glove compartment, and there were drugs in the rear seat armrest, there was sufficient evidence from which the trier of fact could find that all three had knowledge of, and were in actual or constructive possession of, the drugs.  Thus, in addition to the driver being in actual or constructive possession of drugs in the vehicle, any or all passengers may be in actual or constructive possession of drugs in the vehicle.


This means that there is probable cause, i.e., a probability, to believe that the driver and, perhaps, one or more passenger(s) is (are) in actual or constructive possession of drugs in the vehicle.  Based on probable cause, the police may arrest the driver and perhaps passengers for the crime of drug possession and/or possession of drug paraphernalia.  If police arrest, they take the arrestee(s) before a court commissioner.  About half the time, the court commissioner releases arrestees on personal recognizance, meaning released on their promise to attend any required proceeding.  About half the time, the court commissioner sets bail, and the arrestee is only released upon posting bail.  


If there is less than probable cause to believe hat there are drugs in the vehicle, then there is most likely at least reasonable suspicion that there are drugs in the vehicle, based on an articulable set of facts.  If so, the officer may take reasonable steps to confirm his or her suspicion (and then arrest) or to dispel his or her suspicion (and release the person stopped).


For many years, I have taught law students, lawyers, and judges on Maryland Criminal Procedure and 4th Amendment issues.  I have also taught the same to law enforcement officers.  If you’ve been charged with a crime and are seeking representation, please watch this.

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