does not need to be informed of right to refuse (Bustamonte) or instructed Δ that is to go” after lawful seizure concludes (Robinette) TOTC Δ “free Scope of consent Objective reasonableness What trial a typical person understand consent to – cover? (Jimeno) Reasonable scope doesn’t include prying open locked briefcase (Wells, 1989) Third Party Consent T must have common authority over the searched area (Cupp/Matlock) Friedman asks whether a roommate could consent to the search of another roommate’s room Police must reasonably believe T had common authority (Rodriguez) A physically present co-occupant can refuse to permit entry (Randolph) Note: Can’t remove in order to circumvent this rule (Randolph) Δ Friedman argues that the absent roommate will almost certainly refuse, so why should it matter that he’s present? Friedman argues consent should be limited to those that own or live in the space, police must ask for specific authority to search a given room consider – if there is exigency, or enough PC to stop and get warrant Examples Consent Generally – Consent of driver to search car yields stolen checks of passenger valid consent even if not informed of the right to refuse (Schneckloth 1973) v. Bustamonte, pulled over and verbally warned for speeding, then consent search yields trial Δ valid consent even if stop is prolonged and not informed he’s free to go Δ (Robinette, 1996) Examples Scope – Consent of driver after running red light yields cocaine in paper bag on floor scope is wherever objectively reasonable (Jimeno, 1991) Examples Third Party Consent – Cousin of murder suspect can consent to search of common bag (Cupp, 1969) Consent of third party with common authority is valid over absent, handcuffed in police car (Matlock, 1974) Δ Consent of third party to search apartment valid if officers have reasonable “our” belief of common authority (Rodriguez, 1990) (2006) Georgia v. Randolph Plurality Consent search of shared dwelling over express refusal of – physically present resident is not justifiable Can be no evidence was removed to avoid objection Δ Breyer Concurring TOTC, or plurality if bright line, Dissent AofR – – Policy bridge PC gap Ability to consent in lieu of waiting for warrant Consent to search for a crime unrelated to the person giving consent Consent of third party Assumption of risk But consider maid can’t let police into hotel room –
Δ does not need to be informed of right to refuse (Bustamonte) or instructed that Δ is “free to go” after lawful seizure concludes (Robinette) TOTC Scope of consent Objective reasonableness – What a typical person understand consent to cover? (Jimeno) Reasonable scope doesn’t include prying open locked briefcase (Wells, 1989) Third Party Consent T must have common authority over the searched area (Cupp/Matlock) Friedman asks whether a roommate could consent to the search of another roommate’s room Police must reasonably believe T had common authority (Rodriguez) A physically present co-occupant can refuse to permit entry (Randolph) Note: Can’t remove Δ in order to circumvent this rule (Randolph) Friedman argues that the absent roommate will almost certainly refuse, so why should it matter that he’s present? Friedman argues consent should be limited to those that own or live in the space, police must ask for specific authority to search a given room – consider if there is exigency, or enough PC to stop and get warrant Examples – Consent Generally Consent of driver to search car yields stolen checks of passenger valid consent even if not informed of the right to refuse (Schneckloth v. Bustamonte, 1973) Δ pulled over and verbally warned for speeding, then consent search yields valid consent even if stop is prolonged and Δ not informed he’s free to go (Robinette, 1996) Examples – Scope Consent of driver after running red light yields cocaine in paper bag on floor scope is wherever objectively reasonable (Jimeno, 1991) Examples – Third Party Consent Cousin of murder suspect can consent to search of common bag (Cupp, 1969) Consent of third party with common authority is valid over absent, Δ handcuffed in police car (Matlock, 1974) Consent of third party to search “our” apartment valid if officers have reasonable belief of common authority (Rodriguez, 1990) Georgia v. Randolph (2006) Plurality – Consent search of shared dwelling over express refusal of physically present resident is not justifiable Can be no evidence Δ was removed to avoid objection Breyer Concurring – TOTC, or plurality if bright line, Dissent – AofR Policy bridge PC gap Ability to consent in lieu of waiting for warrant Consent to search for a crime unrelated to the person giving consent Consent of third party Assumption of risk – But consider maid can’t let police into hotel room trial trial
CrimPro%20Friedman%20Spring%202013.docx