Georgia v. Randolph
The Supreme Court Limits the Fourth Amendment’s Consent Doctrine
In Georgia v. Randolph, the Supreme Court ruled that consent to search a residence under the Fourth Amendment was not given when one co-occupant consented but another co-occupant, who was present at the time, refused to consent. The vote was 5 to 3, with Justice Souter writing the opinion for the Court. Justices Breyer and Stevens wrote concurring opinions, the more substantively notable being Breyer’s opinion in which he makes clear that his (critical) vote with the majority rested on the particular circumstances of the case. Chief Justice Roberts and Justices Scalia and Thomas dissented and each wrote separate dissenting opinions, although Scalia joined Roberts’ dissenting opinion as well.
The case is perhaps most surprising because it imposed a limitation on the consent doctrine, which has been applied quite expansively in a largely unbroken series of opinions, often with emphasis on its civic virtue and efficacy. The result in Randoph cut against the weight of lower court authority. Although the Georgia Supreme Court concluded that valid consent had not been given, theirs was a clear minority position; four of the federal circuits, and a majority of state courts that had considered the issue, ruled that consent was valid in similar circumstances.
The Supreme Court had previously decided two cases involving consent to search by real or apparent co-occupants, United States v. Matlock, 415 U.S. 164 (1974), and Illinois v. Rodriguez, 497 U.S. 177 (1990), and in both cases had ruled that consent by the co-occupants eliminated subsequent Fourth Amendment objections to the admission of seized evidence by an occupant who was not immediately present and therefore did not object at the time of the search. Both cases were clearly distinguishable from Randolph because the defendants did not refuse to consent to the search. However, as Roberts notes in dissent, that distinction is not as glaring as might first appear. In Matlock, where the co-occupant consented, Matlock was arrested in the yard of the house that was subsequently searched, and was detained in a police car near the house. Matlock did not refuse consent, but he was not asked. In Rodriguez, where the person who consented was not in fact a co-occupant but the police reasonably believed her claim that she was, the defendant was asleep inside the apartment that was searched. Apparently he could have been awakened and asked to consent, but these steps were not taken.
The majority acknowledges the line drawn to be a fine one but recognizes it as justified in the interest of simplicity. If a co-occupant objects then consent by another co-occupant is not effective, but a nearby potential objector need not be invited to voice objections, unless it is shown that the person was removed by the police for the purpose of avoiding possible objection.
In assessing the validity of consent, the majority relies on the Fourth Amendment’s “reasonableness” concept. “Reasonableness” is a measure of widely shared social expectations, which are influenced but not controlled by property law. In some situations, Souter finds such expectations to be clear as to whether consent is effective, e.g., a young child may be able to admit a third party to a common area where conversations with salesmen would typically occur, but clearly could not authorize someone to rummage through the parents’ bedroom; hotel staff have acknowledged access to a guest’s room for cleaning and maintenance purposes, but they do not have authority to admit the police.
By contrast, a co-occupant does not have the recognized authority to prevail in admitting a third party against the expressed wishes of another co-occupant, under either property law or accepted social practices. In the absence of such agreed upon social expectation, the consent of one in the face of explicit objection by the other is not valid. Thus, the co-occupant’s “disputed invitation, without more, gives a police officer no better claim to reasonableness in entering than the officer would have had in the absence of any consent at all.”
For the majority, the most difficult precedent to reconcile came from Matlock, which states that the co-occupant’s power to consent “rests . . . on mutual use of the property by persons generally having joint access or control for most purposes so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right that the others have assumed the risk that one of their number might permit the common area to be searched.” Chief Justice Roberts reads this statement broadly, as a general proposition of Fourth Amendment case law that private spaces, once shared, are protected only at the discretion of the confidant. He sees that proposition as applicable to consent as well. The majority’s specific response to Matlock is that the case simply did not deal with or purport to deal with the situation where a co-occupant specifically objected to the search.
At one level, Souter does not dispute that the privacy of shared information is lost when the other party chooses to reveal it to authorities. Clearly, information that a co-occupant has learned through shared privacy can be communicated to the police and relied upon by a magistrate in issuing a search warrant, or the co-occupant can deliver items of evidence directly to the police. But, Souter draws the line at police intrusion into the home, objecting to the idea that loss of privacy because it has been shared should lead to the loss of protection of the home against intrusion absent a warrant through reliance on consent. Souter believes that the spacial privacy of the home, and the warrant requirement applicable there, has a unique status in Fourth Amendment law, and accuses Roberts of ignoring “centuries of special protection for the privacy of the home.”
Georgia v. Randolph is significant in that it limits the expansion of the consent concept. It also deals with the increasingly prevalent situation in the modern world of shared private spaces, and the opinion is relatively unusual among recent cases in finding shared privacy to remain protected under the Fourth Amendment when the confidant cooperates with authorities. It is a limited and relatively easy to understand case; it draws a critical line at the entry to the home and retains for that most protected area the basic requirement that, before spacial privacy is invaded by the police, a warrant should be obtained.
Souter notes that the case did not involve a claim that immediate entry was required to avoid destruction of evidence. In that situation, the police would have been able to exclude Randolph during the time needed to obtain a warrant had they chosen to do so. He found an even more significant limitation on the reach of the opinion in domestic violence cases. He sharply objected to Roberts’ argument that somehow the majority’s position would endanger domestic violence victims when one co-occupant (the abuser) refused to allow entry to the police. Souter argued that nothing in the opinion prevented entry of a dwelling by authorities when the request was made by an apparent victim/co-occupant, or even to investigate the possibility of domestic abuse, “as long as they have good reason to believe such a threat exists.” The potential impact of this ruling on domestic violence investigations and protection of victims appears to be at the bottom of Breyer’s concurrence, which limits his agreement with the ruling to the specific factual context of the Randolph case that Breyer noted involved only a search for evidence and no allegation of inter-occupant abuse.
An interesting, although largely irrelevant, sidelight of the case involved the dueling concurrences of Stevens and Scalia on the wisdom and proper application of originalism, which seemed not to be a major component of either Souter’s majority opinion or the opinions of any of the other justices. Stevens makes light of the obvious limitations of originalism for its failure to recognize changes in our society, arguing that at the time of the framing, the search would have clearly been invalid because consent was not given by the male master of the house but rather his subordinate female partner. Scalia essentially responds that Stevens does not understand originalism, which holds the Constitution to be unchanging but accepts that other bodies of law to which it refers—such as property law—may be quite changeable.
The author, Bob Mosteller, is the Harry R. Chadwick, Sr. Professor at Duke University School of Law.
