Georgia v. Randolph (04-1067)

March 22, 2006 Supreme Court Update

Greetings, Court fans!
Now this is more like it – after a bevy of unanimity, we finally get a 5-3 decision, with two concurrences, three separate dissents (including the first written by the new Chief), and Justice Scalia being ever-so-slightly snarky. And, oh, as to substance, if an occupant of a dwelling is present at the door and objects to a warrantless search by police, the search is invalid even if another occupant has already consented to the search. As you'll see, "at the door" turns out to be very important.
Georgia v. Randolph (04-1067) has messy facts. The Randolphs had separated, and Ms. Randolph had briefly moved to Canada with her son before returning to the Randolphs' home in Americus, Georgia (just up the road from Ken's hometown). One morning she called the police complaining that Mr. Randolph had taken their son away, and when the police arrived she told them that her husband had cocaine in the house. Mr. Randolph then returned (having left the son with neighbors). The police asked for consent to search the house, which Mr. Randolph refused but which Ms. Randolph provided, and the police found a straw with cocaine residue in the bedroom. At Mr. Randolph's trial, the court admitted the evidence based on Ms. Randolph's common authority to consent to the search. The Georgia Supreme Court disagreed, holding that one occupant's consent is invalid in the face of objections by another, physically present occupant (thereby distinguishing the U.S. Supreme Court's holding, in United States v. Matlock, that the consent to a search by one occupant with common authority is valid against an absent occupant).
The Court affirmed in an opinion by Justice Souter. The Court characterized Matlock as turning on one occupant's "assumption of risk" that, in his absence, a co-occupant might let in visitors he would rather not allow in the house. In Minnesota v. Olson, however, the Court held that a houseguest has a legitimate expectation that her host will not let in people looking for her over her active objections, and it follows that a present co-occupant would have an even stronger expectation. But if one occupant has no authority to prevail over the objections of another, present occupant, then the police here had no better claim to reasonableness in entering than if there was no consent at all, especially given the "centuries-old principle of respect for the privacy of the home." There was nothing stopping Ms. Randolph from giving evidence to the police, or telling them what she knew so they could get a warrant, but she could not authorize a warrantless search over Mr. Randolph's objections. This sounds all well and good, but the Court had to deal with "two loose ends" (i.e., its own opinions that were problematic). The first was Matlock, in which the defendant was only "absent" because he was in the squad car out on the street (admittedly, it was a big yard). The second was Illinois v. Rodriguez, where the Court upheld a search where the unconsenting occupant was asleep inside the home and could have been roused. Here's the majority's explanation: "We have to admit that we are drawing a fine line; 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, loses out." Perhaps anticipating a future case, the Court noted that police cannot remove a potential objector from the premises for the sake of avoiding his objection.
Reading the majority opinion, one almost could feel the dissents coming – and the primary dissent came from Chief Justice Roberts, joined by Scalia. For the Chief, the key was that the Fourth Amendment protects privacy, not societal expectations created by the Court's "surmise." If someone shares information or a home with another, he assumes the risk she will share that information – or that place – with the government. If Ms. Randolph could have walked inside, retrieved the straw and given it to the police, she also could consent to a valid search. The majority's rule protects not privacy but "happenstance" – if the objector is lucky enough to be at the door, he can stop a search, but not if he is watching TV in the next room. The Chief also was concerned the rule could have "severe" consequences in domestic abuse cases where police might be prevented from entering by an abuser's refusal to consent. (Justice Souter's majority opinion called this concern a "red herring" and cited to the exigent circumstances exception to the warrant requirement; there's a lot more to their exchange, which is worth reading if you're interested). The Chief anticipates that one day this case will be another "loose end" a future Court will have to tie up.
Beyond the majority opinion and the Chief's dissent, there was some interesting back-and-forth in the other Justices' opinions. Justice Breyer concurred to say that if he had to choose a bright line rule, he would side with the Chief; however, "the Fourth Amendment does not insist upon bright-line rules" but looks at the totality of the circumstances, which in this case did not justify abandoning respect for the privacy of the home (he too thought abuse would be a different case). Justice Stevens concurred to say that the case could not turn on the "original understanding" of the Fourth Amendment, because at that time the consent of the wife would have been considered irrelevant because she had no real property rights in the home. That prompted a dissent from Scalia, who noted that it was not the Fourth Amendment that had changed, but rather women's rights under property law, and there was nothing unusual about the "unchanging Constitution" interacting with other bodies of law that might themselves change. In any event, Scalia found Stevens' "panegyric" to equal rights irrelevant, as men and women would be equal regardless of the rule – either both could veto a search, or neither could. (We looked up "panegyric": a speech of excessive praise, the whole point of which is to be excessive within the bounds of decorum; used by Roman orators to suck up to the emperor). Justice Thomas also dissented, going entirely his own way by relying on Coolidge v. New Hampshire, which held that the Fourth Amendment is not implicated when an accused's spouse voluntarily leads police to evidence.
And with that, we are done for the week. Until next week, thanks for reading!
Ken & Kim

From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400