Photo Mark C. Ide
FEATURED IN TRAINING
Consider the following scenario: You and a partner respond to a call of a domestic disturbance at a residence. Upon arrival, you are greeted by the female caller who tells you her husband took their son away. She also volunteers that her husband is a drug user and that his cocaine habit has caused them both to suffer financial troubles. She tells you she and her son had recently returned to the house after staying several weeks with her parents in Canada.
Soon afterward, the husband returns home. You obtain his side of the story, and he says he took their son to a neighbor's house out of concern his wife might take him out of the country again. Upon questioning about his cocaine use, the husband counters it is his wife who abuses drugs and alcohol, not him.
The wife continues to assert the husband is a drug user and even claims items of drug evidence are in the house. You ask the husband if he would mind if you search the house for the items. The husband unequivocally refuses your request. You then turn to the wife and ask for a consent to search the residence. She readily agrees.
What do you do? The husband states in no uncertain terms police officers may not search the residence, but the wife consents. Whose rights prevail?
The Legal Opinion
This was precisely the question the United States Supreme Court answered in an opinion written by Justice Souter last March in Georgia v. Randolph. In a 5-3 decision, the Supreme Court held if the police are at a residence but do not have a warrant to search the home, and if the two occupants are present at the same time and one consents to a search but the other objects, the police may not search the home in the face of that objection.
The Underlying Action
The police in Georgia v. Randolph decided to enter the house after Janet Randolph gave her consent to search the house over Scott Randolph's vehement objection. She led the officers upstairs to a bedroom she identified as her husband's, where the officers found a section of a drinking straw with a powdery residue they suspected was cocaine. The officers exited the residence and telephoned the district attorney's office while still on scene. In the meantime, Janet withdrew her consent to search. The police took the Randolphs to the police department along with the contraband they had seized. Afterward, the police obtained a search warrant, returned to the residence and seized further evidence of drug use. Scott was later indicted for possession of cocaine.
Scott moved to suppress the evidence, arguing the police conducted a warrantless search of his house over his express refusal despite the fact his wife gave "unauthorized" consent. The trial court denied Scott's motion, ruling that because Janet had common authority over the residence, her consent was valid.
Scott appealed and the Court of Appeals for Georgia reversed the trial court's ruling. The Supreme Court of Georgia affirmed the appellate court, stating, "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." The United States Supreme Court took the case to resolve the conflict of authority over whether one occupant may give law enforcement officers effective consent to search shared premises against the authority of a co-tenant who is present and states a refusal to permit the search.
The Supreme Court's Analysis
The issue before the Supreme Court was whether the police officers violated the Fourth Amendment when they searched the residence after obtaining a valid consent of one co-habitant over the objection of the other co-habitant. Police officers are generally taught the Fourth Amendment protects individuals from unreasonable searches and seizures. Typically, officers must have a warrant to conduct a search; however, some recognized exceptions to the warrant requirement exist. One of those exceptions is consent.
When both occupants of a residence are present and one occupant objects to the other occupant's consent, according to Justice Souter, "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." Justice Souter went on to state "[s]ince the co-tenant wishing to open the door to a third party has no recognized authority in law or social practice to prevail over a present and objecting co-tenant, his disputed invitation, without more, gives a police officer no better claim to reasonableness in entering than the officer would have in the absence of any consent at all." As such, the Court held "a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident."
Does the Decision Undercut Matlock & Rodriguez?
Justice Souter declared the Georgia decision does not undermine the Supreme Court's prior decisions in Illinois v. Rodriguez and United States v. Matlock.
In Rodriguez, a woman had told police officers Rodriguez had beaten her. She took the officers to "their" apartment where Rodriguez was sleeping. She had a key to the apartment she used to let the officers inside. When the officers entered, they found Rodriguez and some drugs. However, the woman did not actually live in the apartment. The United States Supreme Court held in Rodriguez the police officers reasonably believed the woman had the authority to allow them to enter Rodriguez' apartment, and, therefore, the evidence against Rodriguez was admissible.
In Matlock, the defendant was arrested in the yard of a house where he lived with a woman named Graff and several of her relatives. While he was detained in the squad car, the officers went to the door of the residence. Graff allowed them to enter the house and gave consent to search the bedroom she shared with the defendant. The United States Supreme Court ruled Graff had common authority over the bedroom and could therefore consent to the search, and, therefore, the evidence the police found was admissible.
In Randolph, Justice Souter stated the facts in Rodriguez and Matlock are distinguishable from those presented in Randolph in that neither the Rodriguez and Matlock cases involved the second occupant being physically present and refusing permission to search and later moving to suppress the evidence obtained. Justice Souter admitted the Court was "drawing a fine line" but thought "the formalism was justified."10 Accordingly, "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 invited to take part in the threshold colloquy," such as being asleep in the residence or sitting in a squad car, "loses out."
This is one of those areas in which police officers must memorize the rule. In a nutshell: If you are confronted at the door of a residence with two occupants, and one consents to a search and the other refuses to allow a search, you, without more to go on, can't search the residence. However, if you are confronted at the door with one of the occupants, who consents to a search of the residence, and the other occupant is sleeping on the couch next to the door and is not involved in any discussion for consent to search, you have a valid consent to search the residence. Likewise, if you have arrested one of the occupants and placed him in a squad car parked in the driveway, and you go back to the residence to ask the other occupant for consent to search and she gives it, you have a valid consent to search. Caution: Do not purposely remove the potentially objecting occupant from the entrance for the sake of avoiding a possible objection because that may render the search unlawful.
Are police officers required to obtain the consent of both occupants before searching a residence? The answer: No. As long as officers have the voluntary consent of an individual who possesses authority, the search will be lawful. The Court in Randolph stated, "It would needlessly limit the police to respond to ostensibly legitimate opportunities in the field if [the Court] were to hold that reasonableness required the police to take affirmative steps to find a potentially objecting co-tenant before acting on the permission they had already received."
Likewise, must police officers determine whose names actually appear on the lease or title to the property when asking for consent to search? No. The Court in Rodriguez held it would be unjustifiably impractical to require the police to take affirmative steps to confirm the actual authority of a consenting individual whose authority was apparent because the common authority that counts under the Fourth Amendment may prove broader than the rights accorded by property law.
Finally, the dissenting justices in Randolph voiced a concern this decision would undermine police authority to investigate claims of domestic abuse. According to Justice Souter, the police would still have the legal authority to enter homes where one partner was truly in danger: "This case has no bearing on the capacity of the police to protect [victims of domestic violence]. 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." In other words, if police officers reasonably suspect one of the occupants is a victim of domestic violence, the police hold authority to enter the residence.
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.
1. Georgia v. Randolph, No. 04-1067 2006 WL 707380 (2006).
2. Georgia v. Randolph, 2006 WL 707380 at *4.
4. Id. at *8.
6. Id. at *10.
7. 497 U.S. 177 (1990).
8. 415 U.S. 164 (1974).
9. Randolph, supra, at *5.
10. Id. at *11.
12. See id.
14. Rodriguez, 497 U.S. at 181-82.
15. Randolph, supra, at *9.