CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, April 13, 2021

Hobbie on Authority to Consent to a Search

Norman Hobbie has posted Fourth Amendment Consent Searches and the Duty of Further Inquiry (Creighton Law Review vol. 54, no. 2, pg. 227-268, March 2021) on SSRN. Here is the abstract:

Consent searches, presently justified on arguably weak grounds, account for nearly ninety percent of all warrantless searches. Though scholars debate whether the Fourth Amendment bars consent searches, the Supreme Court of the United States has continued to reaffirm the constitutionality of such searches. Under current doctrine, third parties, often without actual authority, are able to consent to a search of another’s premises. Yet, if doubt endures over whether an individual possesses adequate authority to offer consent, officers may have to engage in further inquiry to resolve whether sufficient authority exists.

With little guidance offered as to what this further inquiry entails, there is currently a split among the circuits as to the dimensions of this directive. On one end of the split, some circuits require that if ambiguity exists over authority, a duty of further inquiry is triggered. The other circuits, by contrast, have either expressly rejected the application of the duty, or have yet to take a position on the issue.
This Article’s first contribution is to adopt the United States Court of Appeals for the Seventh Circuit’s view of the duty of further inquiry. Thus, when officers are faced with other equally plausible possibilities for a consenting party’s authority, officers have a duty of further inquiry. This Article’s second contribution is to clarify and augment the Seventh Circuit’s approach. This Article modifies and defines the ambiguity threshold triggering the duty of further inquiry and delineates the substance of that inquiry.

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