NCJ Number
48109
Journal
FBI Law Enforcement Bulletin Volume: 47 Issue: 6 Dated: (JUNE 1978) Pages: 11-15
Date Published
1978
Length
5 pages
Annotation
ISSUES INVOLVING THE BURDEN OF PROOF REGARDING VALID PROCUREMENT OF CONSENT TO SEARCH ARE EXAMINED, AND SPECIAL SITUATIONS IN WHICH A WAIVER OF PRIVACY RIGHTS MAY BE A CONTRACTUAL OR LEGAL PRECONDITION ARE REVIEWED.
Abstract
SEARCHES CONDUCTED WITHOUT A WARRANT ARE, PER SE, UNREASONABLE UNDER THE FOURTH AMENDMENT; THERE EXIST A FEW CAREFULLY DELINEATED EXEMPTIONS. THE BURDEN OF PROVING SUCH AN EXEMPTION RESTS UPON THE STATE. IN ANY SEARCH CASE, IT MUST BE SHOWN THAT THE INVOLVED PARTY HAD THE CAPACITY AND AUTHORITY TO CONSENT, AND THAT SUCH CONSENT WAS FREELY AND VOLUNTARILY GIVEN. IN GENERAL, A PREPONDERANCE OF EVIDENCE SHOWING THAT THE PARTY CAN AND DID CONSENT TO THE SEARCH IS SUFFICIENT. WHERE THE VOLUNTARINESS OF THE CONSENT IS AT ISSUE, THE LOWER COURTS DISAGREE UPON THE EVIDENTIARY STANDARD. WHILE A NUMBER OF JUDICIAL DECISIONS HAVE AGREED WITH THE PREPONDERANCE OF EVIDENCE STANDARD, OTHERS HAVE REQUIRED CLEAR AND CONVINCING OR POSITIVE AND UNEQUIVOCAL EVIDENCE. WHILE ORAL CONSENT IS VALID WHEN OTHER CONDITIONS ARE MET, WRITTEN CONSENT IS THE PREFERRED PRACTICE. A CAUTIONARY WARNING PRIOR TO SEEKING CONSENT IS NOT NECESSARY. IN A NUMBER OF CASES, PRIVACY RIGHTS MAY BE RELINQUISHED THROUGH AN EMPLOYMENT CONTRACT, OR AS A PRECONDITION OF PAROLE OR PROBATION. BY CONDITIONS OF EMPLOYMENT, THESE RIGHTS MIGHT BE DENIED BY AN ORDINANCE OR STATUTE. IN A NUMBER OF CASES WHERE EVIDENCE WAS OBTAINED BY MEANS OF AN EMPLOYER'S UNWARRANTED SEARCH OF THE EMPLOYEE'S DESK OR LOCKER, THE SEARCH WAS HELD LEGAL BECAUSE OF A CONTRACT OR CONDITION BARRING REASONABLE EXPECTATION OF PRIVACY. UNWARRANTED SEARCHES HAVE ALSO BEEN UPHELD IN CASES WHERE INSPECTION WAS A CONDITION OF LICENSING. IN SUCH CASES, THE REGULATION OR LICENSING IS VIEWED AS A CONSENT TO THE RESTRICTIONS OR CONDITIONS IMPOSED. HOWEVER, SUCH REGULATION MUST BE CONFERRED ON AN ACTIVITY OR BUSINESS WHICH IS FURTHERMORE, BY PRACTICE OR TRADITION, HEAVILY CONTROLLED. FURTHERMORE, STATUTES OR ADMINISTRATIVE REGULATIONS MUST EXIST WHICH CONFER BROAD AUTHORITIES ON ENFORCEMENT OFFICERS. IN THE CASE OF PROBATION AND PAROLE, CONDITIONS MAY BE IMPOSED ON THE INDIVIDUAL'S RELEASE; TO INSURE COMPLIANCE WITH SUCH CONDITIONS, THE COURTS OR BOARDS RELY UPON PROBATION AND PAROLE OFFICERS VESTED WITH ARREST AND SEARCH AUTHORITY. RECENT FEDERAL CASES HAVE HELD THAT A PAROLE/PROBATION CONDITION REQUIRING CONSENT TO UNRESTRICTED SEARCHES IS EITHER OVERLY BROAD OR COERCIVE. HOWEVER, SOME STATE COURTS HAVE DECIDED THAT SUCH A PROBATION/PAROLE PROVISION DOES NOT OFFEND THE FOURTH AMENDMENT. WHILE THE AREA OF CONSENT SEARCHES IS ONE OF HIGH VULNERABILITY FOR THE OFFICER AND ALTHOUGH CONSENT TO SEARCH DOES NOT SUBSTITUTE FOR A SEARCH WARRANT, WHEN USED JUDICIOUSLY, THEY MAY BE A LAWFUL AND EFFECTIVE MEANS OF FINDING AND SEIZING EVIDENCE. FOR PARTS 1-6, SEE NCJ 48103-48108. (JAP)