Court limits search power
The Supreme Court ruled 5-3 on Wednesday that it is unconstitutional for police without a warrant to search a home, if two occupants are present at the time and one consents but the other objects. The search may not go forward in the face of that objection, but the occupant must be present to have the objection count, the Court said in a decision written by Justice David H. Souter. The ruling in Georgia v. Randolph (04-1067) was the only decision of the day in an argued case.
“We have to admit we are drawing a fine line,” Souter wrote, but added “we think the formalism is justified” and that it will be easier to enforce in practice. Thus, the Court held, If the individual who may be at legal risk of prosecution and thus does not want the police to enter “is in fact at the door and objects,” the other occupant’s consent to search will not suffice. But, Souter added, if the objector is nearby, and not at the door, an objection by him will not block the search. The Court stressed, though, that police may not take a potentialy objecting tenant away from the home in order to be able to make the search with the other occupant’s consent.
Chief Justice John G. Roberts, Jr., in his first written dissenting opinion, said the majority fashioned a rule that “does not implement the high office of the Fourth Amendment, but instead provides protection on a random and happenstance basis, protecting, for example, a co-occupant who happens to be at the front door when the other occupant consents to a search, but not one napping or watching television in the next room….The cost of affording such random protection is great, as demonstrated by the recurring cases in which abused spouses seek to authorize police entry into a home they share with a non-consenting abuser.”
Much of Roberts’ dissenting opinion was aimed at undercutting the majority’s reliance on “social expectations” about privacy that justified the distinction drawn by the ruling. When property is shared by two or more people, privacy is shared and expectations of what privacy will be protected depends upon the discretion of the other individual, Roberts said.
Joining Souter’s majority opinion were Justices Stephen G. Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy and John Paul Stevens. Stevens and Breyer wrote concurring opinions.
Roberts’ dissenting opinion was joined by Justice Antonin Scalia. Scalia and Justice Clarence Thomas each wrote a separate dissenting opinion.
The separate opinions by Stevens and Scalia engaged in a minor spat over the concept of constitutional interpretation according to “original understanding” of meaning.
Justice Samuel A. Alito, Jr., did not join in the ruling. The case was argued in November; he joined the Court in February.
A key issue in the case was the fate of a 1974 precedent of the Court, U.S. v. Matlock, in which one occupant was allowed to consent to police entry even though a co-occupant was being held in a squad car not far away, but was not asked for consent to search a jointly used room in the house. The majority left that decision intact, saying that the difference in the new case was that the objecting individual was actually at the door to encounter the police. A majority of lower courts had interpreted the Matlock decision to mean that police could search without a warrant with one occupant’s consent even if the other was present and objected — a view the Supreme Court rejected Wednesday.
Similarly, the Court did not disturb another precedent, the 1990 decision in Illinois v. Rodriguez, in which the Court allowed a search with consent of one occupant while the individual who would object to the police entry was asleep in the apartment. That separation from the initial encounter with police made the difference, Souter wrote.
Souter used unusually strong language for him in answering the Chief Justice’s dissent. He accused Roberts of “a deliberate intent to devalue the importance of the privacy of a dwelling place. The same attitude that privacy of a dwellinig is not special underlies the dissent’s easy assumption that privacy shared with another individual is privacy waived for all purposes including warrantless searches by the police.”
To Roberts’ argument that the ruling will affect police ability to deal with cases of domestic violence, Souter answered: “…this case has no bearing on the capacity of the police to protect domestic victims…No question has been raised, or reasonably could be, about the authority of the police to enter a dwelling to protect a resident from domestic violence; so long as they have good reason to believe such a threat exists, it would be silly to suggest that the police would commit a tort by entering, say, to give a complaining tenant the opportunity to collect belongings and get out safely, or to determine whether violence (or threat of violence) has just occurred or is about to (or soon will) occur, however much a spouse or other co-tenant objected.”
The case involved a warrantless police search in July 2001 of a home in Americus, Ga. It was the home of Scott Fitz Randolph. He and his wife had been having marital problems, and they were separated. He continued to live in the home. On the day of the incident, the wife had returned and was staying, at least temporarily, in the home. She called police about a domestic disturbance
When the officeres arrived, they found the wife to be upset, saying that her husband had taken the child and left. She also accused her husband of using cocaine, causing financial problems for the family. Randolph soon returned, without the child. The child had been taken to a neighbor’s house. One officer asked Randolph about his wife’s statements about cocaine use, and asked for permission to search. Randolph refused, but his wife consented. The officers found a straw apparently containing cocaine residue, in an upstairs bedroom.
That piece of evidence was taken in, and formed the basis for a search warrant application. The police returned and made a search, finding various drug-related items. Randolph moved to suppress the evidence that had led to a charge of illegal drug possession. The motion was rejected by the trial court, but Randolph appealed and won in higher state courts. The state of Georgia then took the case on to the Supreme Court.
Lyle, your description of Matlock is not quite right. There was no objecting individual in that case. Respondent had been arrested and was being held in a squad car outside the property, but his consent for the search had not been requested, nor did he voice any objection to it. Instead, the police went straight to a co-occupant for consent, which was given. The questions in that case were whether third party consent was sufficient to permit a warrantless search (which it was, providing the third party had the relevant authority over the property) and whether the co-occupant in question possessed the authority (which she did).
Comment by Adamos — March 22, 2006 @ 11:00 am
Is there any thoughtful commentary on express rebuttal of dissent arguments in majority opinions? My own recent experience with appellate and SCOTUS opinions suggests there is a rising trend of treating dissent argument openly in the majority. I wonder if such rebuttals really are on the rise. Also, does anyone have normative comments on the practice? I tend to think it takes away from the strength and flow of majority opining as well as subtly undermining the ‘majesty’ of a majority of the court speaking with one voice as to the law.
Comment by Lex Aquila — March 22, 2006 @ 11:57 am
And in this answer:
To Roberts’ argument that the ruling will affect police ability to deal with cases of domestic violence, Souter answered: “…this case has no bearing on the capacity of the police to protect domestic victims…No question has been raised, or reasonably could be, about the authority of the police to enter a dwelling to protect a resident from domestic violence; so long as they have good reason to believe such a threat exists, it would be silly to suggest that the police would commit a tort by entering, say, to give a complaining tenant the opportunity to collect belongings and get out safely, or to determine whether violence (or threat of violence) has just occurred or is about to (or soon will) occur, however much a spouse or other co-tenant objected.”
lies the fatal flaw in Souter’s reasoning. Certainly, if the cops enter to protect the safety of the consenting co-tenant, then presumably, the co-tenant could simply go to where the contraband is and retrieve it for the cops. Or would we have a silly rule that the co-tenant becomes an agent for the cops at that time.
Comment by federalist — March 23, 2006 @ 1:58 am
Federalist, the very next sentence of the majority opinion addresses the point you raise:
“And since the police would then be lawfully in the premises, there is no question that they could seize any evidence in plain view or take further action supported by any consequent probable cause…”
Comment by Adamos — March 23, 2006 @ 8:24 am
Not quite. The next sentence is limited to plain view. Not an intrusive search.
Comment by federalist — March 23, 2006 @ 11:37 am
If I want to bar the door to my wife’s obnoxious friends, can I cite Randolph in support? Does the decision only apply to law enforcement? Is not Chief J. Roberts closer to our expectations when we take the huge step of living with somebody? Does the Fourth Amendment protect us from betrayal in relationships?
Comment by rodgerlodger — March 23, 2006 @ 11:37 am
federalist, your comment seems non-unique to Randolph. could not the co-tenant engage in the behavior you suggest regardless of Randolph/ any other 4th amendment issue? for example, even if the police were standing at the door, being barred from entering by one tenant, the co-tenant could still grab the contraband and display it in plain view of the police at the door. this would not amount to an intrusive search by the police, nor would your scenario, but rather the act of a hostile co-tenant.
Comment by vnoahcampbell — March 23, 2006 @ 1:01 pm
Federalist, the sentence also allows for action supported by probable cause. If a co-occupant claimed that contraband was present, or if the presence of a non-contraband item in plain view suggested the presence of contraband elsewhere, then the police could make an intrusive search. Whether or not they would first have to take procedural action, such as obtaining a warrant, I don’t know.
I’m not sure about your hypothetical situation in which the co-occupant locates the contraband and places it in the plain view of the police. Since this rather specific scenario was not before the Court, it is not surprising that they do not specifically rule on it. However, it is hard to imagine how a co-occupant’s actions could render unconstituational the police’s actions. Of course, if the co-occupant’s actions were themselves unlawful (e.g. if the co-occupant broke into a locked room or container to obtain the contraband) and the poice did not intervene to stop him, we might end up in an awful legal pickle…
Comment by Adamos — March 23, 2006 @ 1:10 pm
Adamos, how do the police make the search sans warrant? Probable cause is not an exigent circumstance.
Comment by federalist — March 23, 2006 @ 1:42 pm
Federalist, I thought the possibility of imminent destruction of evidence was an exigent circumstance, which is why I was couldn’t say for certain whether a warrant would be required. However, in the absence of such a circumstance, I think you’re right that it would be.
Comment by Adamos — March 23, 2006 @ 6:22 pm
I don’t know about original intent, but I can’t imagine our forefathers allowing warrentless searches by the King’s men in the face of an objecting freeholder.
It seems that people always forget that there is a dignity interest to these rights (even if we don’t think the guy deserves much dignity).
Comment by Tommy — March 23, 2006 @ 6:37 pm
Federalist, Adamos, funny you should mention the hypothetical of the co-occupant simply bringing the evidence to the police, since that is the factual basis for Coolidge, which in essence states that simply cooperating with the police does not constitute acting as their agent.
Moreover, this is precisely the case Thomas cited as controlling in the present case. His dissent rests in a different place altogether, since he throws out the whole “consent to general search” as utterly irrelevant, since after granting consent, Mrs. Randolph in fact led the officer directly to the contraband (in his view; Souter claims she simply led him to the room where it lay, whether in plain sight I do not know).
Along with Scalia’s little slapdown of Stevens, it really was a rather bizarre set of dissents.
Comment by Marc L. — March 23, 2006 @ 10:25 pm
First, the need to act on the spot to preserve evidence may justify entry/search is an exception to the warrant requirement. But the state did not argue that there was such an exegency here.
Second, Souter seems to imply that the officer could properly act under the plain-view exception if the consenting co-tenant produces the evidence on his own. (Souter doesn’t address the agency pickle directly, but he does include the language that the co-tenant “acting on his own initiative” can bring the evidence to the police.) Souter was referring to such evidence being used as the basis for a warrant application, not for an exigency exception. But the Court held in Coolidge that it is not incumbent on the police to close their eyes to items in plain view. So if the co-tenant produces the coke straw and the cop sees it, he’s got probable cause, yes?
Comment by danceswithtrout — March 24, 2006 @ 12:13 am
Dances–your second–isn’t that my point. If Souter gets bent out of shape about the co-tenant giving access to the property over the objection of the other, then, in the situation where the presence of the officer inside the house is acceptable for safety reasons, and the evidence is not in plain view, wouldn’t the co-tenant’s retrieval implicate the same interests as Souter was trying to protect in the first place?
Plus, it seems to me that, in the safety of the consenting co-tenant situation, as Roberts pointed out, the question is who should have to leave? Certainly, the police cannot be powerless to remove the “threatening co-tenant”. (Indiana has a law on this issue, by the way.) Then, once that happens . . . .
It just seems to me that Souter’s opinion creates a sliver of protection that is easily evaded and has very arbitrary results.
Of course, the Supreme Court has shown itself quite willing to deal with evasions that, in and of themselves, really don’t violate the constitution, e.g., Missouri v. Siebert.
Bottom line: I think that Souter’s opinion is another example of offended sensibilities of judges getting minted into constitutional rights.
Comment by federalist — March 24, 2006 @ 12:53 pm
danceswithtrout has a point. The full Souter quote:
The co-tenant acting on his own initiative may be able to deliver evidence to the police, Coolidge, supra, at 487-489 (suspect’s wife retrieved his guns from the couple’s house and turned them over to the police), and can tell the police what he knows, for use before a magistrate in getting a warrant. The reliance on a co-tenant’s information instead of disputed consent accords with the law’s general partiality toward police action taken under a warrant [as against] searches and seizures without one,” United States v. Ventresca, 380 U. S. 102, 107 (1965); “the informed and deliberate determinations of magistrates empowered to issue warrants as to what searches and seizures are permissible under the Constitution are to be preferred over the hurried action of officers,” United States v. Lefkowitz, 285 U. S. 452, 464 (1932).
I do not see why Justice Thomas is entirely correct in his analysis of the situation that Coolidge should be controlling. A co-tenant gave a police office information about a specific crime. The co-tenant leads the police into the room with the evidence. The police officer, rather than seizing the evidence, then obtains a search warrant based on the information received from the co-tenant. The formal 4th amendment search took place after the lawful warrant was obtained, based solely on the information given by the co-tenant and presumably an affidavit from the police officer regarding his observations as a guest of the co-tenant.
Comment by Ben Kennedy — March 24, 2006 @ 1:01 pm
The 4th amendment does not address assaults against the rights of co-tenents by co-tenents. It addresses the state’s relationship to the tenent. Thus whatever the co-tenent does is her business, unless she is an agent of the state. Its not even close to the same interest being protected.
We could, of course, get rid of judges drawing lines by getting rid of judicial review. But as long as a judge is determing the rights of Americans, either by the standard of eigteenth century englishmen or today’s Americans, drawing lines is thier job — as “arbitrary” as the line drawn by the 4th amendment.
Comment by Tommy — March 24, 2006 @ 1:31 pm
Perhaps Georgia should have conceded that the warrantless search was unlawful and argued that the evidence seized was not the product of this unlawful search, but was actually the product of the co-occupant’s testimony to the police and the consequent warranted search. They would have to show that the initial, unlawful search was a harmless error, i.e. that the warrant would have been granted on the basis of the co-occupant’s testimony alone, and not the policeman’s observation of the powdery straw.
Just an idea.
Comment by Adamos — March 25, 2006 @ 8:04 am
I’ve blogged on Georgia v. Randolph, in connection with its seeming holding that one of two concurrent owners of a house can block entry by police against the desire of the other owner, while under property law generally he cannot block entry by anybody else in the world that the other owner wants to let in (in fact, the other owner can even lease out the common premises to some obnoxious third party and keep the rent money, so long as the first owner can still use the property too). My blog’s point is that this shows the amazing, self-satisfied, ignorance of all 8 of the Supreme Court justices (9 if we count O’Connor) on the subject of property law. Does anyone have any thoughts on that point? (as opposed to the broader point of whether Georgia v. Randolph was rightly decided) Or any good cases on use rights of cotenants?
See http://www.rasmusen.org/x/2006/03/25/georgia-v-randolph- property-law-and-con-law
Comment by Eric Rasmusen — March 26, 2006 @ 9:12 pm
I disagree with the courts ruling that therre is shared privacy to the house. With the co-inhabitant
gone away from the house the wife has the right to allow the search.
first of all the drug possesion is illegal and the wife should turn in her husband for putting her and her child in an unhealthy environment with all the drugs.
The house is her property and should be able to consent to the search if her husband was not present at the time. it would be different if the husband was present and contested the search.
Comment by jim — March 27, 2006 @ 8:41 pm
Also let me add the precedent case of US V. Matlock
Comment by jim — March 28, 2006 @ 12:21 am
Eric, the court reasoned that the Fourth Amendment is not tied to property law. However, for one to enforce their Fourth Amend. rights, one must demonstrate a reasonable expectation of privacy by tying the expectation to a socially accepted norm or property law. It works in one direction, but not the other - i.e. one can not use property law to overcome another’s Constitutional given right, but one can use property law to assert a reasonable expectation of privacy, and thus their constitutional right. In this case, however, the expectation was tied to socially expected norms, which explains the lengthy discussion and comparison to admitting a guest. That, at least, is what I believe the court sees. Hope this is helpful.
Comment by Just_Blind — July 7, 2006 @ 12:17 pm