Abstract
How does the law construct consent? This Article explores this question in the context of Supreme Court decisions regarding third-party consent to searches of dwellings. Using textual analysis, a method rarely used in Fourth Amendment law, this Article argues that the Supreme Court employs an a-contextual and gender-blind analysis of consent that is insensitive to power dynamics. Using the feminist scholarship on consent, this Article critiques the notion of consent as developed by the Supreme Court. At the same time it rejects the feminist redefinition of consent as vague and unclear.
This Article proposes that the third-party consent to search doctrine involves a triangular relation between the police officer, the consenting third-party, and the suspect. Accordingly, this Article explores each edge of the triangle. This triangular relation analysis shows that the problematic notion of consent is more acute in third-party consent cases than in other consensual search cases. Thus, this Article proposes the abolition of the third-party consent to search doctrine.
Citation
Orit Gan,
Third-Party Consent to Search: Analyzing Triangular Relations ,
19 Duke Journal of Gender Law & Policy
303-346
(Spring 2012)
Available at: https://scholarship.law.duke.edu/djglp/vol19/iss2/2