The newsletter of the ISBA’s Standing Committee on Women and the Law
U.S. Supreme Court limits Georgia v. Randolph’s consent search exception
The U.S. Supreme Court refused to extend Georgia v. Randolph’s requirement of co-occupant consent to a situation where the objecting occupant is absent from the property.1 This decision has implications for people who live with others. Co-occupants should be aware that their fellow co-occupant may consent to a police search if they are not there and even if the co-occupant previously objected to the consent search, the search will be considered a valid search. This article will discuss this case and its ramifications.
In a 6-3 decision, the Court ruled that Georgia v. Randolph is limited to situations in which the objecting co-occupant is present.2 “Consent by one resident of a jointly occupied premises is generally sufficient to justify a warrantless search,” but Randolph provided an exception by ruling that “consent of one occupant is insufficient when another occupant is present and objects to the search.”3 Emphasizing that Randolph was limited to situations where the objecting co-occupant is present, the court ruled Randolph did not apply to a situation where a co-occupant objected to the search but was arrested and not present when the police returned to ask the other occupant for permission.4 Additionally, the opinion examined a few arguments against the rule.
The majority addressed several points justifying the limitation of Randolph. First, the Court reasoned that “improper motive” does not “invalidate objectively justified removal,” and thought that police would not abuse this situation.5 Second, looking to claims that the objecting party who is arrested is not responsible for being absent, the Court reasoned that “an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason.”6 The court also pointed out that in social situations, co-occupants run the risk that their co-occupants will allow others to enter the property, a point that the dissent felt was not related to law.7 The court further explained that a rule requiring an objection to consent to last until withdrawn would be unworkable, and that it would be too burdensome on law enforcement to require them to get a warrant when they have a party who would consent to the search.8 Third, alluding to the suspicion that the co-occupant was in an abusive relationship, the court thought it would take away from her independence to not allow her to consent to the search once the co-occupant was absent.9 The court did not discuss property law, which Justice Scalia looked to in his concurring opinion.
Justice Scalia elaborated on the property rights argument instead of focusing on social norms like the majority’s opinion. He noted that the property rights understanding of the Fourth Amendment was not substituted by the reasonable expectation test of Katz v. United States.10 However, Justice Scalia did not find this case’s situation objectionable because he found that it was not “established [that] property law did not give petitioner’s cotenant the right to admit visitors over petitioner’s objection.”11 Under traditional property law, “a licensee of one tenant ‘is not liable in trespass to non-consenting cotenants.’”12 However, Justice Scalia’s reasoning does not address a situation in which the consenting co-occupant is not a cotenant by being on the lease. Together, the majority and the concurring opinion limit Randolph to situations where the objecting co-occupant is present.
Justice Ginsburg’s dissent objected to not upholding the warrant requirement, which is usually required by the Fourth Amendment.13 Instead, this case “tells the police they may dodge it, never mind ample time to secure the approval of a neutral magistrate.” The dissent notes that with the objector removed by arrest, there was little chance for evidence to be destroyed and officers could have easily gotten a search warrant. Saying that the majority “shrink[s it] to petite size,” the dissenting justices would have extended Randolph to this situation, deciding that “that express, on premises objection” should have been the end of the discussion.14 The dissent dismisses the majority’s concerns about how long the objection would last because “hypothesized practical considerations … provide no cause for today’s drastic reduction of Randolph’s holding and attendant disregard for the warrant requirement.”15 The dissent also criticizes the majority for dispensing of the warrant requirement in this case and justifying it by saying it is burdensome and inconvenient.16 Finally, the dissent addresses the way the majority brought up domestic abuse to justify allowing the co-occupant to consent by pointing out that exigent circumstances would permit the removal of the suspected abuser, but the “specter of domestic abuse hardly necessitates the diminution of the Fourth Amendment rights at stake here.”17 Fernandez v. California’s limitation of the consent search exception is something anyone living with other people should know.
This case illustrates that presence is key in determining whether the objection will prevail over another occupant’s consent; however, it leaves “presence” undefined. Future cases may need to define the scope of presence. For instance, would it be sufficient if the objecting occupant was outside the house but on the property? Or does the objecting occupant need to be inside the house? One would think presence on the property would be sufficient based on this case. This case shows that presence on the property is key to resolving the issue, but another problem will probably be the scope of who has authority to consent.
This case turns on two co-tenants, but it does not discuss a situation where the other occupant is not on the lease or deed or situations where children may be consenting. As long as police have a reasonable belief that the occupant has the authority (actual or apparent) to consent, the consent search will be valid.18 The analysis may hinge on whether that person had apparent or actual authority and control over the area being searched.19 Another issue is whether a person’s child may consent; this has been upheld with age being a factor in determining whether it was valid, along with whether the child had control over the property.20 These issues show that this case’s holding will have implications for anyone who is not living alone.
The rule in this case is important for those who are co-occupants. First, they should be aware that their roommates or co-occupants may allow a consent search if they are not there. Roommates, co-tenants and co-occupants may not know that others would not want the police to search the residence. Second, people who share a residence should be aware that their objection to a consent search by the police is now only valid as long as they are present at the residence. It seems that as long as the police have good faith belief that someone is an occupant, then that person’s consent will be valid even if they are not technically a cotenant by being on the lease or deed. Fernandez means that if an occupant is removed by arrest or absent for any other reason, the police can seek permission for a consent search from another occupant instead of seeking a warrant.
The Supreme Court refused to extend Randolph’s exception to situations in which the objecting occupant is absent. It has serious implications for anyone who shares a residence because it means that police could seek permission from a non-objecting co-occupant when the objecting party is absent. Anyone who shares a residence should be aware of this new ruling in the event that police seek a consent search of the residence. Their rights of refusal may be less secure than they believe them to be. ■