Search Me?

Professor Burkoff contends that most people who purportedly “consent” to searches by law enforcement officers are not really – freely and voluntarily, as the Supreme Court decisional law supposedly requires – consenting to such searches. Yet, absent unusual circumstances, the great likelihood is that a court nonetheless will conclude that such consent was valid and any evidence seized admissible under the Fourth Amendment. Professor Burkoff argues, however, that the Supreme Court’s 2006 decision in Georgia v. Randolph now dictates that the application of consent law doctrine should reflect the actual voluntariness (or involuntariness) of the questioned consents that come before the courts. In Randolph, the Court held dispositive the actual expectations that ordinary individuals have, albeit third-parties, when being asked to consent to a search. As a result, Burkoff concludes that a valid consent to search should no longer be deemed to have been freely and voluntarily tendered unless the consenting party is actually aware – whether or not he or she has been expressly warned – of the right not to consent