skip navigation

PUBLICATIONS

Register for Latest Research

Stay Informed
Register with NCJRS to receive NCJRS's biweekly e-newsletter JUSTINFO and additional periodic emails from NCJRS and the NCJRS federal sponsors that highlight the latest research published or sponsored by the Office of Justice Programs.

NCJRS Abstract

The document referenced below is part of the NCJRS Virtual Library collection. To conduct further searches of the collection, visit the Virtual Library. See the Obtain Documents page for direction on how to access resources online, via mail, through interlibrary loans, or in a local library.

 

NCJ Number: 48104 Find in a Library
Title: SEARCH BY CONSENT, PART 2
Journal: FBI LAW ENFORCEMENT BULLETIN  Volume:47  Issue:1  Dated:(JANUARY 1978)  Pages:25-31
Author(s): D J MCLAUGHLIN
Corporate Author: Federal Bureau of Investigation
US Dept of Justice
United States of America
Date Published: 1978
Page Count: 7
Sponsoring Agency: Federal Bureau of Investigation
Washington, DC 20535-0001
National Institute of Justice/
Rockville, MD 20849
Sale Source: National Institute of Justice/
NCJRS paper reproduction
Box 6000, Dept F
Rockville, MD 20849
United States of America
Document: PDF
Publisher: https://www.fbi.gov 
Language: English
Country: United States of America
Annotation: LAWFUL POSSESSION, ACTUAL AND APPARENT AUTHORITY TO CONSENT, AND PARTICULAR POSSESSORY INTEREST ARE EXAMINED IN RELATION TO CONSENT SEARCHES. JUDICIAL DECISIONS AFFECTING THESE CONCEPTS ARE DISCUSSED.
Abstract: ONCE THE OFFICER HAS DETERMINED THAT CONSENT TO AN UNWARRANTED SEARCH IS NECESSARY, A PERMIT TO SEARCH MUST BE OBTAINED FROM THE LAWFUL POSSESSOR. CONSENT ALLOWS AN UNWARRANTED SEARCH TO BE CONDUCTED, WHICH WILL BE LIMITED BY THE TERMS EXPRESSED IN THE CONSENT AND BY THE PHYSICAL BOUNDARIES OF THE AREA IN PRESENT POSSESSION. A REVIEW OF CASE LAW DEALING WITH THE ISSUE OF SEARCHES CONDUCTED IN GOOD FAITH BY LAW OFFICERS ON THE BASIS OF APPARENT, ALTHOUGH NOT ACTUAL, AUTHORITY TO CONSENT INDICATES THAT ACTUAL AUTHORITY OF THE CONSENTING PARTY IS NECESSARY. WHILE SEVERAL DECISIONS HAVE APPLIED THE STANDARD OF GOOD FAITH AND REASONABLENESS TO APPARENT CONSENT SEARCHES, THE OFFICER IS WELL ADVISED TO MAKE INTENSIVE EFFORTS TO IDENTIFY THE LAWFUL POSSESSOR, THUS SAFEGUARDING HIS ENTRY AND SEARCH FROM LATER NULLIFICATION. TEMPORARILY VACATED PREMISES STILL RETAIN THEIR CONSTITUTIONAL PROTECTION. IN THE EVENT THAT SUCH PREMISES ARE TO BE SEARCHED, POLICE MUST EITHER OBTAIN THE CONSENT OF THE ABSENT POSSESSOR OR A SEARCH WARRANT. IF THE OWNER OF A PROTECTED PREMISES ENJOYS THE CURRENT RIGHTS TO POSSESSION AND IS PHYSICALLY PRESENT, HIS CONSENT MUST BE OBTAINED BEFORE SEARCHING EITHER THE ENTIRE PREMISES OF A PROPERTY LOCATED WITHIN. A VALID CONSENT GIVEN BY SUCH AN OWNER-OCCUPANT-POSSESSOR IS EFFECTIVE AGAINST THE CONSENTER AND AGAINST ANY THIRD PARTY NOT HAVING POSSESSORY RIGHTS. IF THE OWNER-POSSESSOR IS NOT PRESENT, AUTHORIZATION MAY BE OBTAINED FROM ANY OTHER PERSON HAVING THE REQUISITE RIGHTS TO PERMIT SUCH A SEARCH. DEPENDING ON THE CIRCUMSTANCES, THIS MAY INCLUDE A SPOUSE, A BUSINESS PARTNER, AN AGENT, OR A JOINT OCCUPANT. WHERE THE OWNER IS NOT ENTITLED TO IMMEDIATE POSSESSION, HE CANNOT GIVE A CONSENT VALID AGAINST OTHER PERSONS. CONSENT BY THE OWNER IN THE TEMPORARY ABSENCE OF THE TENANT IS NOT VALID; HOWEVER, WHERE THE EXCLUSIVE POSSESSORY INTEREST OF THE TENANT HAS BEEN TERMINATED, THE RIGHT TO CONSENT REVERTS TO THE OWNER. THIS APPLIES IN THE CASE OF A VACATED MOTEL ROOM OR WHERE A MONTH-TO-MONTH TENANCY HAS TERMINATED VOLUNTARILY BY THE TENANT OR BY FORMAL EVICTION. IF THE PREMISES, OR PARTS OF THE PREMISES, ARE PUBLIC IN NATURE, SUCH AS RETAIL STORES OR HALLWAYS, AND ELEVATORS, NO CONSENT IS NEEDED. IN CASES OF COOCCUPANCY OR COPOSSESSION, CONSENT BY ONE PARTY IS BINDING ON THE OTHER PARTY. HOWEVER, THIS IS NOT BINDING IN INSTANCES WHERE THE COOWNER/POSSESSOR IS PRESENT AND REFUSES CONSENT OR WHERE EXCLUSIVE POSSESSORY RIGHTS ARE UNDERSTOOD. JUDICIAL DECISIONS CONCERNING CONSENT BY BUSINESS PARTNERS, SPOUSES, AND LOVERS ARE REVIEWED. THESE GENERALLY CONFORM TO THE CONDITIONS ESTABLISHED FOR CONSENT IN CASES OF COOCCUPANCY/COPOSSESSION. FOR PARTS 1 AND 3-7, SEE NCJ-48103 AND 48105-48109. (JAP)
Index Term(s): Domestic relations; Exclusionary rule; Judicial decisions; Police legal limitations; Right of privacy; Rights of minors; Search and seizure; Search and seizure laws; Search warrants; Waiver of rights
To cite this abstract, use the following link:
http://www.ncjrs.gov/App/publications/abstract.aspx?ID=48104

*A link to the full-text document is provided whenever possible. For documents not available online, a link to the publisher's website is provided. Tell us how you use the NCJRS Library and Abstracts Database - send us your feedback.