Third-Party Consent

Third-Party Consent

Voluntariness asks whether a particular yes was freely given, and it assumes that the person who spoke was the person whose privacy was at stake. Many searches do not fit that assumption. Homes, cars, and containers are often used by more than one person, and an officer's request may reach someone other than the suspect. In United States v. Matlock the Court held that consent to search is valid when given by a person with common authority over the premises or effects, and that such consent may justify a warrantless search and the use of the resulting evidence against other occupants who did not consent.¹ Third-party consent is therefore one person's agreement to a search that affects another person's rights, and it is effective only when it rests on the consenting person's common authority over the place or items to be searched.²

Common authority is built from use, control, and access. A person may consent to a search of another person's property if both of them use, control, or have access to it, and two features of the rule explain why that shared position matters.³ The first is that the consenting person must have been legally able to permit the search in his or her own right, so the consent draws on the consenter's own relationship to the place and borrows nothing from the suspect. The second is that the defendant is treated as having assumed the risk that a fellow occupant might permit a search.⁴ That second idea follows from how shared space works. A person who gives another joint access has given that other person the practical ability to open the space to visitors, including officers, and cannot count on the co-user to keep the door closed.

The rule also has a practical reason. If only the target of a search could consent, a shared space would be effectively unsearchable by consent even when a regular user of it wanted to cooperate, and officers would need a warrant to look in a room that one of its users was willing to open. Because the test looks to real joint access, title and suspect status do not decide the question. A co-user with genuine access can consent, and a person with no real access has nothing to give.

The officers' request and the sincerity of the yes were the same in both scenes, so neither moved the answer. What changed was whether the person who spoke had authority of his or her own over the place. Voluntariness, covered earlier in this chapter, tests the quality of the yes, while common authority tests whether the speaker had a yes to give. Both must be satisfied before a third party's consent supports a search.

The remainder of this part takes the rule in two steps, beginning with what common authority consists of and then turning to how the government proves it when the search is challenged. A later part addresses what happens when the other occupant is present and objects, a situation in which the rule above does not operate unchecked.

Common Authority

The rule stated above came from a case in which the person who consented was not the defendant. In United States v. Matlock officers arrested a bank-robbery suspect in the yard of a house where he lived, and Gayle Graff, who also lived there and shared an upstairs bedroom with him, voluntarily consented to a search of the house, including that bedroom. The officers found $4,995 in a diaper bag in the room, and the money was offered against Matlock, who had not been asked for his consent.⁶ The Court held that a prosecution relying on consent need not prove that the defendant gave it, because it may instead show that permission came from a third party who possessed common authority over, or another sufficient relationship to, the premises or effects to be inspected.⁷ That consent is then valid against the absent, nonconsenting person with whom the authority is shared.

The Court defined common authority by what people actually do with a space, and it set property law aside. The authority that justifies third-party consent rests on "mutual use of the property by persons generally having joint access or control for most purposes," which makes it reasonable to treat any co-user as able to permit an inspection in his or her own right.⁸ Because the inquiry follows use and control, title is neither necessary nor sufficient. A tenant living in a lawfully rented apartment can consent to its search, while the landlord who holds title cannot, since the lease passed use and control of the dwelling to the tenant.⁹ Marriage supplies the setting for most of these cases, and a spouse who shares a home may consent to its search; in Coolidge v. New Hampshire a wife's surrender of her husband's guns and clothing to the police was treated as effective consent.¹⁰ Matlock itself involved an unmarried couple, and consents from partners who shared premises continuously have been upheld on the same footing.¹¹ The usual trap is to treat title or a marriage certificate as the test, when the doctrine asks who shared use and control of the place.

The reason shared use produces authority is assumption of risk, and the duffel-bag case that Matlock relied on shows how far the idea runs. In Frazier v. Cupp the defendant's cousin consented to a search of a duffel bag that the two men used jointly and that had been left at the cousin's home, and the defendant's clothing found inside was used against him.¹² The defendant argued that his cousin had permission to use only one compartment of the bag. The Court was unwilling to engage in such "metaphysical subtleties," because by allowing the cousin to use the bag and by leaving it in the cousin's house the defendant had assumed the risk that the cousin would let someone else look inside.¹³ Two points follow from that holding. The rule governs effects such as containers as well as premises, and joint use of the whole item sufficed without any inquiry into which compartment the cousin was allowed to touch. The mechanism is the defendant's own act of sharing, which handed the cousin the practical ability to open the bag to others.

Assumption of risk differs from the agency theory that appeared in some earlier decisions. Under agency, as in Stoner v. California, Fourth Amendment rights can be waived only by the defendant, either directly or through an agent, so the question is what the defendant authorized.¹⁴ Under assumption of risk the question is what the consenter could do in his or her own right by virtue of shared access. The two theories split on the ordinary spousal case: a wife's consent to a search of the couple's shared residence fails against her husband on an agency view, since he delegated nothing, and succeeds on an assumption-of-risk view, since he gave her joint access.¹⁵ The same reasoning upholds one occupant's consent even if the other occupant told the first not to consent, even if police passed up the chance to ask the other, and even if the other's consent was earlier sought and refused.¹⁶ A later part shows that a physically present occupant's express refusal changes that last result. The underlying risk is the familiar one that comes with confidences: a person who tells a friend a secret cannot control whether the friend repeats it to police, and a person who shares a home cannot control whether a co-user lets police in.¹⁷

Common authority has an edge, and the edge follows from the same logic. A co-user's power reaches only the space and things the co-user actually shares, so a person who wants possessions searched only on his or her own consent can keep them in an area others cannot access or control, such as a private room or a locked suitcase under a bed.¹⁸ Where roommates keep separate bedrooms, one roommate's consent will probably cover the common areas such as the living room and kitchen but not the other roommate's bedroom, because a visitor would recognize the difference between shared and private space.¹⁹

The officers' request and the sincerity of the consent were the same in both parts of the apartment, so neither moved the answer. What changed was access: in Matlock the consenting woman used the bedroom she shared, while here the consenting roommate has no use of the other's room. Authority is therefore tested place by place and item by item. Even a person admitted to a home does not automatically gain authority to admit others, since the inquiry looks at the person's own privileges in the place and at whether the owner, by granting access, took the risk that the person would invite someone else in.²⁰

Officers often act on a consenter's apparent authority before the facts about shared use are fully known. Georgia v. Randolph states the rule as reaching consent from an occupant who shares authority over the area or is reasonably believed to share it, so an officer's reasonable belief in authority can matter when the facts about authority turn out to be wrong.²¹ The next section turns to how the government establishes authority when a defendant challenges the search.

Proving Authority to Consent

Knowing what common authority consists of leaves open how the government shows it when a defendant challenges the search. Two procedural moves do the work at the suppression hearing: a burden and standard of proof, and a relaxed approach to the evidence the judge may consider. The prosecution carries the burden because it is the party invoking the consent exception to the warrant requirement, so it must show that the person who said yes had common authority over the place or item searched.²³ The standard is a preponderance of the evidence, meaning the government must show that authority was more likely present than not. The Court stated in United States v. Matlock that the controlling burden of proof at suppression hearings should impose no greater burden than a preponderance of the evidence, and later decisions repeat that statement.²⁴

The standard is that low because of what the hearing decides. A suppression ruling does not decide guilt. It decides whether the police acted within an exception to the warrant requirement, and that question has nothing to do with the reliability of a jury's verdict, which is the interest the beyond-a-reasonable-doubt standard protects. In Colorado v. Connelly the Court reaffirmed the preponderance standard for suppression issues and added that a heavier burden on the prosecution would probably add too little deterrence of police misconduct to outweigh the public interest in putting probative evidence before juries.²⁵ The same reasoning applies to proof of a consenter's authority.

The second move concerns what the judge may look at. In Matlock the government had to show that Gayle Graff shared the east bedroom with the defendant, and much of its proof was what she had told the officers and what the two had said about being married. The district court excluded those out-of-court statements as hearsay and found the remaining evidence too thin.²⁶ The Supreme Court held that the trial judge should consider the statements even if they would be inadmissible hearsay at the defendant's trial.²⁷ The Court gave concrete reasons. Unmarried cohabitation was a crime in Wisconsin, so her statements were against her own penal interest and carried indicia of reliability, since a person is unlikely to confess falsely to a relationship that exposes her to prosecution. She also testified at the suppression hearings and could be cross-examined, which reduced any risk of prejudice from hearsay.²⁸ Behind both points is a structural reason. The strict hearsay rules exist mainly to shield jurors from unreliable accounts, and a judge deciding a preliminary question can weigh reliability directly, so excluding relevant proof of authority would only deprive the court of information it can evaluate. Students lose this issue when they treat a hearsay objection as a bar to the consenter's statements at the suppression hearing.

The defendant's own statements stand on firmer footing still. The couple's statements that they were husband and wife were the defendant's own words, which the hearsay rule does not bar when the prosecution offers them against him, and the Court counted them alongside Graff's statements.²⁹ A party cannot complain that he was unable to cross-examine himself, since he remains free to deny or explain what he said. When the defendant's admissions confirm the consenter's account, the authority question gets much easier for the government.

Admissibility is only the first step, because the statements must still persuade the judge, and corroboration is what carries them over the preponderance line. In Matlock the government did not rely on Graff's word alone. Her statements that she and the defendant occupied the bedroom, shared its dresser, and slept there regularly were backed by evidence that they had lived together earlier, that they were seen going up and down the stairs together, and that the room showed signs of occupancy by a man and a woman.³⁰ Each item alone is modest. Together they make joint occupancy more likely than not, which is all the standard demands. The Court concluded that, with the statements admitted, the government had met its burden, but it sent the case back so the district court could reconsider the evidence under the correct view of what it could consider.³¹

The relaxed evidence rule applied equally in both scenes, so it did not move the answer. What changed was how much independent evidence supported the consenter's account. A failure to prove actual authority does not always end the inquiry, however, because the government has a second route. In Illinois v. Rodriguez the consenter had lived with the defendant, had a key, and described the apartment as theirs, but she had moved out more than a month earlier, was not on the lease, paid no rent, and had taken the key without the defendant's knowledge. She lacked common authority, yet the Court upheld the search because the officers reasonably believed she had it.³² The test is objective: the question is whether the facts available to the officer at the moment would warrant a person of reasonable caution in believing the consenter had authority, and if they would not, entry without further inquiry is unlawful unless authority actually exists.³³ Justice Marshall dissented because the only purpose of third-party consent is to spare officers the inconvenience of getting a warrant, which a reasonable belief alone does not justify.³⁴ The doctrine forgives reasonable mistakes of fact, but a mistake of law is a different matter: officers cannot reasonably rely on a landlord's consent to search a lawfully rented apartment, because the law gives that authority to the tenant.³⁵ In the visitor example above, the officers would have to point to facts at the doorway that reasonably suggested the man lived in that room.