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36 Rutgers L. Rec. 1 (2009)

handle is hein.journals/rutglr36 and id is 1 raw text is: RUTGERS LAW RECORD The Internet Journal ofRutgers School ofLaw | Newark www.lawrecord.com Volume 36 Emerging Trends in Criminal Procedure Fall 2009 THE SHORT, UNHAPPY LIFE OF CONSENT SEARCHES IN NEW JERSEY' 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.' 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 With apologies to Ernest Hemingway, author of The Short Happy Life of Francis Macomber. Hemingway's use of happy in the title is ironic. Distinguished Professor, Rutgers School of Law - Newark. Judge Alexander P. Waugh, Sr. Distinguished Scholar. 1 Note, Consent Searches: A Reappraisal After Miranda v. Arizona, 67 CoLuM. L. REV. 130, 147 (1967). 2 This waiver standard first appears in Johnson v. Zerbst, 304 U.S. 458 (1938), in conjunction with the waiver of the right to counsel. It is the standard the Court established in Miranda v. Arizona, 384 U.S. 486 (1966), for the waiver of the Fifth Amendment privilege against compelled self incrimination. See also Barber v. Page, 390 U.S. 719 (1968) (waiver of right to confront witnesses); Adams v. U.S. ex rel McCann 317 U.S. 269 (1942) (waiver of right to jury trial). 1

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