Rutgers Law Record

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Fall online symposium announcement

    This coming fall, the Rutgers Law Record will publish an online symposium titled 'Emerging Issues in Criminal Jurisprudence.'

The Short, Unhappy Life of Consent Searches in New Jersey

By George C. Thomas III^*

The doctrine of consent searches had a peculiar birth and has had, to my mind, an unhappy life. This is perhaps in part because of the odd way consent functions in the Fourth Amendment context. The Fourth Amendment forbids unreasonable searches and seizures, but consider whether it is even a search when a homeowner welcomes police into his house after they have stated their intention to examine the premises. If it is not a search, then consent is properly analyzed as a waiver of the Fourth Amendment. If it is a search, then the issue is whether it is a reasonable one.

Those two quite different conceptions suggest different analytical structures. In 1967, a student note argued that if a consent search is viewed as merely one species of a reasonable search, it might be valid if the consent was voluntarily given.¹ If viewed as a waiver, on the other hand, it would have to be knowing and intelligent as well as voluntary, thus increasing the government’s burden of proof.² The note concluded that even if a consent search is viewed as a species of a reasonable search, the underlying consent “should be no less knowing and intelligent than a waiver of fifth amendment rights.”³

In 1973, the United States Supreme Court in Schneckloth v. Bustamonte rejected the waiver theory of consent searches.⁴ Along the way, the Court pretended that it had already resolved the issue of how to understand consent in favor of a voluntariness standard.⁵ Two years later, the New Jersey Supreme Court interpreted the state constitution to require waiver.⁶ In 2002, the state Supreme Court put even greater restrictions on the ability of police to use consent to justify searching cars stopped on the road.⁷ Today, the state court appears to be on the verge of further restricting consent as a sole basis to uphold a police search.⁸ The New Jersey Supreme Court might soon require individualized suspicion in every case where the police seek consent from someone in police custody. This is the story that I will briefly sketch in this essay.

By making consent easy to prove, the United States Supreme Court has allowed consent searches to render the Fourth Amendment’s fundamental protections irrelevant in many cases. One detective said that as many as 98% of his searches are consent searches.⁹ While this is probably hyperbole, I have no doubt that police routinely request consent. It also appears, quite counter-intuitively, that guilty suspects often consent to the very search that will turn up evidence against them.

Call For Papers: Emerging Issues in Criminal Jurisprudence.

This coming Fall 2009, the Rutgers Law Record will publish an online symposium entitled 'Emerging Issues in Criminal Jurisprudence.'

As an introduction to this online symposium, the Law Record has published a new essay by distinguished Professor George C. Thomas III of Rutgers School of Law - Newark. Professor Thomas, widely acknowledged as one of the top scholars in his field, is the author or co-author of four books and more than 60 articles on criminal law and criminal procedure.  This article, which can be found below, discusses the evolution of the doctrine of consent searches both under the United States Constitution and through New Jersey's courts. Professor Thomas's article on consent searches constitutes the first installment of our Emerging Issues in Criminal Jurisprudence symposium.

This Fall 2009 the Law Record will publish its second installment of 'Emerging Issues in Criminal Jurisprudence.' This second installment of the Law Record's online symposium will include a student article entitled "Batson Revisited: Discriminatory Venue Transfer and the Scope of Supreme Court Precedent."  This article examines a recent decision by the 10th Circuit rejecting the argument that Batson v. Kentucky stands for the general proposition that the Equal Protection Clause applies to all stages of a criminal proceeding, including venue transfer.

We are currently soliciting articles for this issue. Please note our requirements on our page entitled "Submissions." Our deadline for this issue is September 15.