Friday, February 28, 2014

The power to consent to search: a question of law or of fact?

One occasionally wonders how those who wrote the Fourth Amendment to the “Constitution for the United States of America” would have decided issues that currently come before the Supreme Court relating to the right of the people to be secure against unreasonable searches and seizures.

Minute examination by the Supreme Court of the implications of the facts of individual cases has reduced the extent to which people in the United States are protected by the Fourth Amendment.

This week the reduction in protection continued: Fernandez v California USSC No 12-7822, 25 February 2014. The issue was whether a co-tenant could give the police consent to the search of the residence she shared with the defendant. The defendant had been lawfully arrested and removed, but he had maintained his objection to the search. The police could have obtained a warrant but did not, and in giving consent to the search when the police returned to the residence about an hour after removing the defendant, she may have felt pressured (Ginsburg J dissenting, joined by Sotomayor and Kagan JJ, p 9 slip op, footnote 5; but compare footnote 2 of the opinion of the Court delivered by Alito J). The majority held that her oral and signed consent gave the police authority to search the premises, and evidence linking the defendant to a robbery was admissible.

The legal question was whether the co-tenant could give “effective” consent to the search. This – the “could” part - is a question of law. Hence the subtle jurisprudence discussing whether particular facts give rise to an occupier’s power to give consent despite the objection or absence of another occupier.

Would it be simpler – in those jurisdictions where it is still possible to do so - to treat the existence of a power to give consent as a question of fact?

For example, s 94(c) of the Search and Surveillance Act 2012 [NZ] reads:

“A search by consent is unlawful if— ... (c) the search is undertaken in reliance on a consent given by a person who does not have authority to give that consent.”

Currently it is regarded as “arguable” that a tenant is unable to consent to the search of the part of the premises (such as a bedroom) solely occupied by another tenant: Adams on Criminal Law, at [SS94.02]. I would go further and say that the argument would be about the facts only: whether the facts show that one co-tenant had given another the power to give consent to the search of that part of the premises.

By what can only be a happy coincidence, the requirement for "authority" in s 94(c) resonates with a remark by Roberts CJ in Georgia v Randolph, 547 US 103 (2006) (dissenting, joined by Scalia J): "A warrantless search is reasonable if police obtain the voluntary consent of a person authorized to give it." But the court's jurisprudence illustrates how this simple idea has been clogged with legal rules. For example Chief Justice Roberts, in the passage immediately preceding the sentence just quoted, summarised the precedents as including the proposition of law that " ... someone who shares a place with another cannot interpose an objection when that person decides to grant access to the police ...". I would argue that this should not be a proposition of law, but rather it should be a question of fact in each case whether a relevant occupier (the defendant) has given authority to another occupier to give consent to the search that actually occurred.

In Fernandez there was no such consent and the absence of the defendant, who was in police custody, did not  result in him constructively giving his authority to consent to the co-tenant, and obviously, as there was then no urgency, the police should have obtained a warrant; the search was illegal and the admissibility of the seized evidence should be determined taking that illegality into account.