Tuesday, May 10, 2011
Lawrence Friedman (pictured) and David M. Siegel (New England School of Law and New England Law - Boston) have posted Criminal Law – Emphasizing Privacy of the Home and Limiting Third Party Consent Under the State Constitution (Massachusetts Law Review, Vol. 93, No. 3, 2011) on SSRN. Here is the abstract:
The Massachusetts Supreme Judicial Court’s decision in Commonwealth v. Porter P. makes four important contributions to search and seizure jurisprudence under the Massachusetts Declaration of Rights. First, the decision reinforces the significance of residential privacy protection. Second, the decision specifies the requirements for valid third party consent for police entry to search. Third, the decision resolves the applicability of the doctrine of apparent authority, under which police searches authorized by one who appears to but in fact lacks authority to consent, may nevertheless be upheld. Finally, the decision shows the court’s commitment to extend state constitutional privacy protections beyond those provided by the Fourth Amendment to the United States Constitution. The court’s treatment of third party consent sets forth a new standard that third parties, either coinhabitants or landlords, must meet in order to exercise actual authority to consent to a search. Further, in addressing third party consent, the court explicitly adopts the doctrine of apparent authority under the state constitution and establishes steps police must take for entries and searches based upon apparent authority to survive. Importantly, the decision builds logically upon state constitutional precedents and rejects the cost-benefit and historical analyses of search and seizure issues often favored by the federal courts.