4th Amendment—Bright‑Line Rule for Consent Searches

Last November we profiled a 4th Amendment case presented to the United States Supreme Court from the Supreme Court of Georgia. The decision handed down yesterday seems to provide a golden nugget from the Court in the form of a new bright‑line rule for warrantless consent searches.^[1] In Georgia v. Randolph, the Supreme Court held that the clear refusal of a co‑occupant who is physically present renders a warrantless search “unreasonable and invalid” in the face of a defendant’s 4th Amendment rights.^[2] Any evidence resulting from such a search is therefore inadmissible at trial.

The issue presented was whether such an “evidentiary seizure is…lawful with the permission of one occupant when the other… is present at the scene and expressly refuses to consent.”^[3] In a 5-3 decision (Justice Alito abstaining), featuring a concurrence by Justice Stevens and a dissent authored by Justices Roberts, Scalia, and Thomas, the court stated that “[d]isputed permission is no match for the Fourth Amendment central value of “respect for the privacy of the home.”^[4]

The Court highlighted the importance of the objecting co‑tenant’s physical presence at the time of the search. In clarifying that the Randolph holding does not overrule the Court’s earlier holdings in United States v. Matlock and Illinois v. Rodriguez, the majority wrote, “if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not part of the threshold colloquy, loses out.”^[5] In the Court’s fine‑line distinction, when an objecting co‑tenant who is not present, Matlock still grants the consenting co‑tenant valid authority to consent to a warrantless search above other co‑tenant’s objections.^[6]

The Court made clear that “co‑tenants,” “co‑occupants,” or any of the other similar terms used to describe the disputants in the Randolph scenario, do not include landlords, hotel managers, or house guests. In acknowledging that what is at stake is not a property right, the majority argued by analogy to the property rights of co‑tenants that, “there is no common understanding that one co‑tenant generally has a right or authority to prevail over the express wishes of another, whether the issue is the color of the curtains or invitations to outsiders.”^[7]

Justice Souter, writing for the majority, addressed the dissent’s “red herring” concern that the new ruling would make investigation of domestic disturbances more difficult.^[8] He distinguished situations in which police enter for the purpose of protection against violent acts and when they enter for the purpose of collecting evidence. Even in the latter case, Souter pointed out, warrantless entry is permitted under existing exceptions for emergency or exigency.^[9]

In dicta, the U.S. Supreme Court noted that, prior to yesterday’s decision, all four federal appellate courts and a majority of state courts who had looked at this issue held that consent to a warrantless search remains effective in the face of an express objection.^[10]

Background
In the facts of this case, Scott Randolph and his wife were embroiled in marital and family disputes. At a point when both were residing in the family home with their young son, Mrs. Randolph placed a domestic dispute call to the police. In the presence of the police, Mrs. Randolph accused Mr. Randolph of using large amounts of cocaine. He in turn accused his wife of being drunk. When the police asked Mr. Randolph for consent to search the home for illegal drugs, he unequivocally refused. Mrs. Randolph, however, readily gave consent.

The police did enter and search, eventually finding possible evidence of cocaine. After obtaining a search warrant, police found further evidence of cocaine in the home and Mr. Randolph was indicted for possession of cocaine. At trial, he moved the court to suppress the evidence based on a violation of his 4th Amendment rights resulting from the initial warrantless search. The trial court denied the motion and the Georgia Court of Appeals granted Mr. Randolph’s application for an interlocutory appeal.

The Georgia Court of Appeals found the idea that “‘common authority’ should permit a co‑occupant to exercise privacy rights on behalf of all occupants.”^[11] The Georgia Supreme Court concluded that “the consent to conduct a warrantless search of a residence given by one occupant is not valid in the face of the refusal of another occupant who is physically present at the scene to permit a warrantless search.”^[12]

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[1] Patty Reinert, Police Home Searches Require Consent By All, Houston Chronicle, Mar. 22, 2006.
[2] Georgia v. Randolph, 547 U.S. ____ (2006) [hereinafter Randolph], No 04-1067 (March 22, 2006).
[3] Id. at 1.
[4] Id. at 1.
[5] Id. at 17, citing United States v. Matlock, 415 U. S. 164 (1974) and Illinois v. Rodriguez, 497 U. S. 177 (1990).
[6] Id. at 17.
[7] Id. at 10, citing Wilson v. Layne, 526 U. S. 603 (1999).
[8] Id. at 15.
[9] Id. at 12-15.
[10] Randolph supra note 4 at ftnt 1.
[11] Randolph v. State, 590 S.E.2d 834, 836 (Ga. Ct. App. 2003).
[12] State v. Randolph, 604 S.E.2d 835, 836 (Ga. 2004).