Two recent decisions offer different approaches for assessing police conduct in third-party consent cases. In Illinois v. Rodriguez the United States Supreme Court held that police may rely on third parties' apparent authority to consent to a search so long as police reasonably believe in third parties' authority. In State v. Leach, the Supreme Court of Washington held that police cannot rely on third parties' consent when defendants are present and able to object, even if defendants did not object to the search. This Comment argues that courts should focus on police conduct, rather than on defendants' presence or on the reasonable belief of police. Courts should require police to justify their reliance on third parties' authority. If police can justify their reliance on third parties' authority, courts should allow police to rely on third parties' consent, regardless of defendants' presence or absence. This approach achieves an appropriate balance between individual and governmental interests by protecting individual rights without unduly impeding effective law enforcement.
Gregory S. Fisher,
Search and Seizure, Third-Part Consent: Rethinking Police Conduct and the Fourth Amendment,
66 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol66/iss1/5