Tomorrow’s Argument: Georgia v. Randolph

Police arrive at a home shared by a husband and wife who are in the midst of an argument. They don’t have a warrant or probable cause to search the house. They ask the husband for his consent to a search, and he says no. They ask the owners of the house for their consent to a search, and they both say no. Finally, police turn to the wife and ask for her consent to search the house. She says yes. Does it violate the Fourth Amendment for police to search a home on the basis of consent in these circumstances? That is the question before the Court tomorrow in Georgia v. Randolph, No. 04-1067.

Georgia Senior Assistant Attorney General Paula K. Smith will argue for petitioner Georgia. Deputy Solicitor General Michael R. Dreeben will argue for the United States as amicus curiae supporting petitioner. Tom Goldstein from Goldstein & Howe will argue for respondent Scott Fitz Randolph.

The party briefs are available here. The brief of the United States is available here. The National Association of Criminal Defense Lawyers amicus brief in support of Randolph is available here.

In July 2001, police arrived at Randolph’s home in response to a call from his estranged wife. Having previously moved out, she had returned from Canada three days earlier and called police after Randolph took their son to a neighbor’s house in order to prevent her from taking the child out of the country. She accused Randolph of using cocaine and told police there was evidence of drug use in the house. He accused her of using cocaine, being inebriated, and being an alcoholic. Randolph and his parents, the owners of the home, denied police requests for consent to search the house, but Mrs. Randolph agreed to a search. She led police to an upstairs bedroom, where they saw a piece of cut straw covered with what appeared to be cocaine residue. Police left to get an evidence bag, and Mrs. Randolph withdrew her consent. The officers collected the straw, got a search warrant, and subsequently uncovered further evidence of drug use in the house.

Randolph was indicted for possession of cocaine. He moved to suppress the evidence seized from his house on the ground that it was the product of an unlawful search. He lost in trial court, but the Georgia Court of Appeals reversed, finding it was “inherently reasonable that police honor a present occupant’s express objection to a search of his dwelling, shared or otherwise.” The Georgia Supreme Court agreed. It held that when two persons have “equal use and control” of the premises, the consent of one person does not trump the objection of another. Georgia filed a petition for a writ of certiorari, and the Supreme Court took the case to resolve a conflict among the state and federal courts on the the issue.

The question presented goes to a gap in Fourth Amendment doctrine. Some of the Supreme Court’s cases have held that third parties, such as hotel clerks or landlords, cannot give police valid consent to search a guest’s or tenant’s living quarters because those third parties did not have the requisite authority to authorize a search. As a result, such searches were “unreasonable” and barred by the Fourth Amendment. But, the Court has also held that people with “common authority” over property can authorize a search, at least when the other co-owners or co-occupants were absent or did not object. No case has yet addressed what to do when more than one occupant or owner is present, and one person says yes while the other says no.

Georgia and the United States argue that searches in those circumstances are not barred by the Fourth Amendment. They assert that the Court’s prior cases – particularly United States v. Matlock and Illinois v. Rodriguez – established a blanket rule that third parties with “common authority” can grant consent to search joint property. That rule continues to apply, they argue, when one of the other co-occupants is present and objects. The United States contends that such an exception would go against the settled Fourth Amendment principle that one need not be present and object in order to be protected by the Fourth Amendment. Moreover, this exception would frustrate a co-occupant’s “independent right” to consent to a search of her property.

Randolph argues that past cases validating third-party consent turned on the fact that the defendant was either absent from the property at the time consent was given or was present and did not expressly object. A person who relinquishes control of property to another person by leaving the premises, Randolph argues, assumes the risk that the person in control of that property may consent to a police search. But the situation is different when a person is present and objects. The Constitution nowhere confers a right on co-occupants to admit police to a shared home. It does provide a right to exclude the police except when specific conditions are met. Allowing a search over the contemporaneous objection of a co-occupant, Randolph asserts, is tantamount to permitting one person to waive the Fourth Amendment rights of another.

The government responds that people who choose to live with others bear the risk that anyone with whom they live will consent to a police search, even when they are present and object. According to the United States, people should not be surprised to find that family members or roommates have authorized the police to enter their shared living space over their objections. To support this point, the United States and Georgia point to the common law of property, which they contend provides that generally one co-tenant cannot exclude the guests or licensees of another co-tenant. Therefore, they argue, people who choose to live with others shouldn’t expect to have full control of property shared in common. They also cite cases in which the Court held that a person who reveals information to a third party cannot reasonably expect to keep that information from authorities. Analogizing this to the decision to live with family members or roommates, the Solicitor General argues that people who live with others should be viewed as having reduced expectations of privacy compared to those who live alone.

Randolph disputes the idea that everyone who lives with others opens their life to police intrusion at the discretion of their co-occupants. Randolph points to the fact that the home is one of the most private spaces in a person’s life, and that Fourth Amendment doctrine has always accorded it special protection from government intrusion. Randolph and amicus NACDL argue that social understandings are such that a person would not expect her family members or roommates to insist, over her strenuous objections, on allowing a guest to enter the home. Nor would a guest believe it reasonable to enter under those circumstances. NACDL argues that the property cases cited by the Solicitor General do not support a contrary conclusion. And the cases about information revealed to third parties are off the mark, Randolph asserts, because they merely involve the disclosure of information, not a “wholesale government intrusion” into a person’s home.

Randolph further argues that petitioner’s position would create a pervasive sense of personal insecurity because individuals who choose to share their lives with others would be deprived of the ability to protect their privacy in their homes. The position that anyone with “common authority” can provide consent, Randolph contends, would allow a child to permit a police search over his parents’ objections, and it would encourage police to persist in asking every single occupant of a house for consent until they found someone who, for whatever reason and with whatever level of knowledge, gave them permission to enter the home.

Georgia and the United States insist that allowing consent searches in these circumstances would serve important social interests. These searches may be the only way to get further evidence when the police have some indication of criminal activity but lack probable cause to arrest or search. They may be necessary to prevent the destruction of evidence. And, giving consent could help one occupant distance him or herself from the criminal activities of co-occupants. Further, the United States argues, the rule proposed by Randolph would make Fourth Amendment rights turn on a happenstance – the police could just wait for the objecting occupant to leave and then search the house.

Randolph argues that such searches serve no law enforcement or social interests that justify an exception from the normal warrant requirement. Individuals who don’t want to associate with the criminal activities of co-occupants can provide information and evidence to the police, which can then be used to get a warrant. In situations in which one occupant is in danger or evidence may be destroyed, police already have the ability to search or secure the premises without a warrant. Allowing this type of search would actually disserve social interests by injecting the police into domestic disputes and fostering discord among spouses and family members. In these situations of high emotion and often dueling allegations, Randolph argues, it is preferable for a neutral magistrate to decide if the circumstances justify a police intrusion into the home.