Wednesday Writs: Consent to Search in Georgia v. Randolph

US Marshals entering a home in 2015. Photo by United States Marshals Service, Public domain, via Wikimedia Commons

WW1: Case of the Week: Consent to Search in Georgia v. Randolph

I think it’s important to know your rights. I like to educate on the topic when I can (ask my child if you can search his backpack), and today’s case is a little tidbit of the sort of knowledge that may potentially come in handy.

Back in 2001 in the Georgia couple Scott and Janet Randolph split up. Janet took their child and headed to her parents’ home in Canada for a few months. In July she was back at the house, though it is unknown whether the couple had made up or if she was just there to pack up her stuff. Either way, Janet ended up calling the cops. She told them she and Scott had argued and he’d left the home with their son after the dispute. When the cops arrived on scene, Janet also told them Scott was a cocaine addict. Enter Scott back on scene, informing the cops and his wife that he had taken his son to the neighbor’s house to make sure Janet didn’t flee to Canada with the child again. When confronted about his cocaine use by the police, Scott denied the allegation; it was Janet with the substance abuse problem, he said.

An officer took Janet to fetch her son. She reiterated her claims of Scott’s drug abuse and claimed there was proof of such inside the house. This prompted the police to ask for permission to search the home. Scott Randolph flat out refused; Janet said sure, go ahead. That was good enough for the 5-0. Janet led them straight to what she claimed was Scott’s bedroom, where she showed the officer a straw with the traditional white, powdery residue. The officer went to get an evidence collection bag and to call the district attorney – who advised him to stop the search immediately and apply for a warrant. Meanwhile, Janet had a change of heart and revoked her consent to search. Both Randolphs were hauled off to the police station while the warrant was obtained. Based on further evidence located in the house, Scott Randolph was indicted for possession of cocaine.

Scott filed a motion to suppress the evidence, arguing that the warrantless search had been performed without his consent. The State argued that Janet’s consent was enough and the trial court agreed. Georgia’s intermediate appeals court reversed, holding 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.” In other words, Janet’s consent did not override Scott’s refusal. The State Supreme Court agreed.

In reaching their decision, the State’s appellate courts had to reckon with existing US Supreme Court precedent in US v Matlock, a 1974 case in which it was held that consent to search by one party with authority to give such consent was valid, even if another person with the same authority objected. The difference, the Georgia courts pointed out, was the Matlock holding applied when that second party is not present and objecting at the time consent is given. Scott Randolph was on the scene, voicing his refusal.

The prosecution appealed to the US Supreme Court. The issue was one that had been raised in four other circuits – and each of the four held that Matlock applied even if the person refusing consent to search was present at the time of the search, voicing objection. Georgia’s contrary holding meant that there was a circuit split – disagreement among various jurisdictions – which is one factor often influencing which cases are chosen by SCOTUS. Certiorari in our case of the week, Georgia v. Randolph, was granted.

Justice Souter wrote the majority opinion, joined by Stevens, Kennedy, Ginsburg, and Breyer ¹. He began by discussing Matlock, in which the defendant was in the back of the squad car when police obtained permission to search his residence from the woman he lived with. Souter explained that the Court’s holding, that the woman’s consent to search was valid, was based not on the law of property interests such as ownership; it had more to do with who has joint access and control of the premises, couched in the idea of social expectations. Think, “reasonable expectation of privacy.” The example the Court gives involved a case in which a defendant left a duffel bag at his cousin’s home. The cousin later let police into his home and granted them permission to search the bag. The Court found that the defendant, by leaving his bag in his cousin’s home, assumed the risk that the cousin would allow someone to look in the bag. (Notably, however, the Court draws a distinction in the case of a landlord/tenant situation, holding that a landlord does not have the right to allow authorities to search the home of his or her tenant in the face of “specialized tenancy arrangements”, i.e., a lease.)

Souter points to another case, Minnesota v Olson, in which the Court recognized the reasonable expectation of an overnight guest that a person who seeks to visit the guest will not be allowed in over their objection. If even an overnight guest has a legitimate expectation of privacy, Souter reasons, then surely a co-inhabitant has the same right.

…when people living together disagree over the use of their common quarters, a resolution must come through voluntary accommodation, not by appeals to authority. Unless the people living together fall within some recognized hierarchy, like a household of parent and child or barracks housing military personnel of different grades, there is no societal understanding of superior and inferior, a fact reflected in a standard formulation of domestic property law, that “[e]ach cotenant . . . has the right to use and enjoy the entire property as if he or she were the sole owner, limited only by the same right in the other cotenants.” (quoting R. Powell, “Powell on Real Property”.

In sum, the majority held that the police had no right to enter and search the Randolph’s home at Mrs. Randolph’s invitation while Mr. Randolph stood there and objected. Not only was his objection as valid as her consent, in the context of the Fourth Amendment, it took precedence.

Justice Breyer concurred with the majority opinion, writing separately to make clear his belief that the holding should be applied very narrowly, only to requests to search and only when the non-consenting party is present and objecting. He differentiated from other situations in which police may seek to enter, such as situations of domestic violence in which the abuser might object to the entry of an officer to check on the other person. This case should not make the abuser’s refusal a barrier to the ability of police to tend to a potential emergency.

Justice Stevens also wrote separately. For Stevens, this case exposed a flaw in strict adherence to originalism. Stevens points out that historically, under the doctrine of coverture, the decision of a husband to allow entry – or not – would be controlling, even if his wife voiced objection.

This case illustrates why even the most dedicated adherent to an approach to constitutional interpretation that places primary reliance on the search for original understanding would recognize the relevance of changes in our society.

Thomas dissents. He cites Coolidge v New Hampshire as the controlling case, in which it was held in 1971 that no search occurred when a wife voluntarily handed over her husband’s firearms to the authorities, in his absence, leading to evidence used in his subsequent murder conviction. Thomas says that no actual search occurred at the Randolph home; just as Mrs. Coolidge offered the firearms to authorities, Mrs. Randolph led the police to the drug paraphernalia. Though the intent may have been for officers to search the home, no such search occurred prior to the issuance of a warrant. There was no search, says Thomas, and thus no need for consent to search, and no need for the Court to reach a fourth amendment analysis. He gives no opinion on what his opinion would have been if he had believed a search occurred.

Scalia also dissented, compelled in part to rebut Justice Stevens’ critique of originalism in the context of this case. He did not agree that at the time of the Fourth Amendment’s adoption a married woman could not consent to search or object to a search. It was his view that common law theories of trespass underpin the Fourth Amendment.

On the basis of that connection, someone who had power to license the search of a house by a private party could authorize a police search. The issue of who could give such consent generally depended, in turn, on “historical and legal refinements” of property law. United States v. Matlock, 415 U. S. 164, 171, n. 7 (1974). As property law developed, individuals who previously could not authorize a search might become able to do so, and those who once could grant such consent might no longer have that power.

***

…changeable law presents no problem for the originalist. No one supposes that the meaning of the Constitution changes as States expand and contract property rights. If it is indeed true, therefore, that a wife in 1791 could not authorize the search of her husband’s house, the fact that current property law provides otherwise is no more troublesome for the originalist than the well-established fact that a State must compensate its takings of even those property rights that did not exist at the time of the Founding.

Scalia did not delve too deeply into the facts of the case at bar, but he did join with the dissent of Chief Justice Roberts, who, argues that a person who shares a home and belongings with another assumes the risk that the other person will allow others access.

And just as an individual who has shared illegal plans or incriminating documents with another cannot interpose an objection when that other person turns the information over to the government, just because the individual happens to be present at the time, so too someone who shares a place with another cannot interpose an objection when that person decides to grant access to the police, simply because the objecting individual happens to be present.

Roberts also raises the hypothetical domestic violence situation as a dire consequence of the majority holding.

In 2014, the Court established a law enforcement-friendly loophole to get around the present and objecting party. In Fernandez v California, when the defendant objected and another inhabitant of the home consented to a search of the premises, police arrested him on suspicion of assault. While he was in custody, officers returned to the home and obtained consent from the other resident. The Court held that Randolph did not apply, once the defendant was no longer onsite to object.

WW 2: The Justice Department must release its memo outlining its decision not to charge former President Trump with obstruction following the Mueller investigation, a federal judge has ruled.

WW3: A 1993 opinion written by a state court judge contained a quote that included the “N” word. A white law student read aloud from the opinion and included the quote, and now the whole law school is in turmoil. However, there are some who find merit to the use of accurate quotation in the academic setting.

WW4: “Marsy’s Law” in Florida is meant to protect the identity of victims of crime. However, there has been an unintended consequence: the law has been used to keep the name of police officers involved in excessive force cases out of the press, and a court recently condoned this use. It happens like this: an incident occurs which results in the use of force against a suspect. The officer involved charges the person with assaulting an officer or other crime against him, and voila! He is the victim and his identity is protected. The issue now heads to the state supreme court.

WW5: Unidentified bodies can stay in a morgue for a few years before being buried in graves marked as “unknown black man” or other generic identifier. There is a database for such things – the National Missing and Unidentified Persons System – but whether state or local authorities enter details of the John or Jane Does found in their jurisdictions varies by jurisdiction. “John and Joseph’s Law” may make it a requirement in Texas.

WW6: An Australian surfer spent ten days in a coma and lost his leg after an attack by a great white shark. After years of begging Australia’s Department of Primary Industries and Regions, he will be allowed to keep the tooth Jaws left in his surfboard.

WW7: A 70-year-old rule known as the Feres Doctrine prevents members of the military from suing the US Government for injuries that “arise out of or in the course of activity incident to” their service. This doctrine was the basis for the Court’s rejection this week of a case of a female West Point Cadet who alleges she was raped at the academy, and that West Point fostered a hostile atmosphere for women and failed to adequately support rape survivors. Justice Thomas dissented sharply from the denial of certiorari.

Perhaps the Court is hesitant to take up this issue at all because it would require fiddling with a 70-year-old precedent that is demonstrably wrong. But if the Feres doctrine is so wrong that we cannot figure out how to rein it in, then the better answer is to bid it farewell.

1. Alito did not participate in this case.