Washington Law Review


Circuit courts disagree as to whether law enforcement officers have a duty to inquire about a resident’s actual authority to consent to searches of ambiguous containers in a common area. Two circuit courts use the ambiguity approach and two circuit courts use the obviousness approach. The ambiguity approach articulated by the D.C. Circuit in United States v. Peyton provides protection for individuals’ rights while placing a minimal burden on law enforcement officers. In Peyton, the D.C. Circuit held that law enforcement officers have a duty to ask clarifying questions if ownership over a container is ambiguous. The ambiguity approach advanced by the Peyton court is a well-balanced approach to handling third party consent cases. The obviousness approach, which allows officers to search any containers that do not obviously belong to someone other than the consenting party, gives too much power to police and may infringe on the absent tenant’s reasonable expectation of privacy. The ambiguity approach is superior to the obviousness approach, but to properly safeguard Fourth Amendment rights, the Supreme Court should adopt a bright-line rule requiring law enforcement officers to inquire before searching any container in a common area, regardless of the level of ambiguity. This solution will reduce the administrative costs of case-by-case inquiry into the amorphous concept of ambiguity and advance the common law tradition of protecting the privacy of individuals in their home.

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