NCJ Number
17733
Journal
Dickinson Law Review Volume: 77 Issue: 3 Dated: (SPRING, 1973) Pages: 569-576
Date Published
1973
Length
8 pages
Annotation
THIS COMMENT EXAMINES THE QUESTION OF WHAT CONSTITUTES AN EFFECTIVE OR VALID CONSENT OR WAIVER OF CONSTITUTIONALLY PROTECTED RIGHTS, ESPECIALLY THE RIGHT AGAINST UNREASONABLE SEARCH AND SEIZURE.
Abstract
IN MENKE, THE FEDERAL DISTRICT COURT RULED THAT AN ACCUSED'S CONSENT TO THE WARRANTLESS SEARCH OF HIS AUTOMOBILE DID NOT CONSTITUTE AN EFFECTIVE WAIVER OF HIS FOURTH AMENDMENT RIGHTS WHEN THAT CONSENT WAS GIVEN AFTER ARREST AND WHILE CONFRONTED BY A NUMBER OF LAW ENFORCEMENT OFFICIALS WITH APPARENT AUTHORITY TO SEARCH THE AUTOMOBILE. FURTHERMORE, THE COURT HELD THAT A WARRANTLESS CONSENSUAL SEARCH IS VALID ONLY IF THE SUBJECT OF THE SEARCH HAS BEEN SPECIFICALLY ADVISED OF HIS RIGHT TO WITHHOLD CONSENT TO THE SEARCH. THE AUTHOR DISCUSSES THE SUBJECTIVE AND OBJECTIVE TESTS USED BY THE COURTS TO DETERMINE THE VALIDITY OF AN ALLEGED CONSENT TO A SEARCH. IN THE 'SUBJECTIVE TEST,' THE COURTS ATTEMPT A POST HOC DETERMINATION OF THE CONSENTER'S STATE OF MIND WHEN THE CONSENT WAS GIVEN. THE ALTERNATIVE APPROACH REQUIRES THAT THE COURTS CONSIDER THE POLICE CONDUCT PRIOR TO AND CONCURRENT WITH THE ALLEGED CONSENT. PERTINENT CASE LAW DEALING WITH CONSENSUAL WARRANTLESS SEARCHES AND THE PRIVILEGE AGAINST SELF-INCRIMINATION ARE CITED. THE AUTHOR CONCLUDES THAT A SPECIFIC WARNING OF ONE'S FOURTH AMENDMENT RIGHTS, WHEN CONSIDERED IN CONJUNCTION WITH THE SUBJECTIVE AND OBJECTIVE TESTS EMPLOYED BY THE COURTS, WOULD GREATLY SIMPLIFY THE DETERMINATION OF CONSENT ISSUES AND AT THE SAME TIME PROVIDE ADEQUATE SAFEGUARDS FOR THE INDIVIDUAL. HOWEVER, HE ALSO SUGGESTS THAT UNTIL FACTORS SUCH AS REPORTED IMPAIRED POLICE EFFICIENCY RESULTING FROM THE PRESENT MIRANDA WARNINGS ARE CONSIDERED AND SETTLED BY THE UNITED STATES SUPREME COURT, LOWER COURTS CAN JUSTIFIABLE RULE EITHER WAY. (AUTHOR ABSTRACT MODIFIED)