Note Permission to Destroy How a Historical Understanding of Property Rights can Reign in Consent Searches

Note: Permission to Destroy: How a Historical Understanding of Property Rights can Reign in Consent Searches

June 30, 2022, 108 Va. L. Rev. 1055

Consent searches are by far the most common tool to circumvent the Fourth Amendment’s warrant requirement. Though police officers have the property owner’s permission, the searches they conduct are not always harmless. Without probable cause or reasonable suspicion, consent searches have justified officers’ destruction of car parts, electronics, and shoes. Are officers allowed to damage property after receiving consent to search a person’s belongings? In some jurisdictions, a consent search becomes unreasonable when officers destroy property, entitling the owner to money damages in civil litigation or the exclusion of evidence in criminal prosecutions. In other jurisdictions, an owner’s consent means she has forfeited the right to have her property stay intact. This Note’s first contribution is identifying and examining this consequential circuit split.