Russell M. Gold · February 2008
76 GEO. WASH. L. REV. 375 (2008)
Americans live in countless different types of housing arrangements. Whether for convenience, financial necessity, companionship, or other reasons, nearly ten percent of American households include at least one nonrelative. This variety of living arrangements has increased significantly in recent years.
The Supreme Court recognized this multiplicity of living arrangements but has never laid out a clear rule defining when a housemate has sufficient control over a portion of his shared residence to authorize a police search. Because of this lack of a clear rule, the roughly ninety percent of Americans who do not live alone cannot be certain whether they are actually “secure in their persons, houses, papers, and effects” as the Bill of Rights guarantees. More concretely, nearly nine out of ten Americans might unknowingly have their bedrooms searched by police without a warrant or probable cause. It is shameful if a person’s security from unjustified police search in his home depends on whether he has the financial resources to live alone.
Modern living arrangements are inherently ambiguous, and it is no longer safe to assume that the person answering the door has dominion over the entire residence. This Note does not purport to create rules encompassing all living arrangements, but it articulates two rules that apply to all unrelated persons living together. First, police officers must separately analyze authority to consent to the search of each narrowly defined area or object. Courts should only find actual authority to consent if the consenting party in fact had sufficient authority over each narrowly defined area or object searched. Second, police officers must ask clarifying questions to determine the scope of a housemate’s authority to authorize a search for the doctrine of apparent authority to consent to apply. These rules will clarify and refine the vague tests of Matlock and Rodriguez to protect the home with the same fortitude that our Founders intended.
Part I of this Note examines the original purposes of the Fourth Amendment. Part II explains the current state of Supreme Court law on actual and apparent authority to consent and its inconsistent applications in lower federal courts. Part III proposes rules to preserve the protections of the Fourth Amendment by clarifying the scope of actual authority to consent and bringing the doctrine of apparent authority in line with widely shared social expectations. Part IV applies the proposed rules to several cases to demonstrate their operation in practice. Part V then addresses potential objections to the rules proposed in this Note. Finally, Part VI analyzes the benefits of the rules as applied.
