Georgia v. Randolph

Around the Blogs:

1) "Georgia v. Randolph provided an unusually clear demonstration of the competing models. [T]he majority opinion by Justice Souter rejects the property model in favor of the norms model [while] Chief Justice Roberts derides the norms model as 'a hunch,' and instead would follow a privacy model." Orin Kerr

2) "The lesson: Ladies, if you plan on inviting the police over to search for your husband's cocaine stash, make sure you do so while your husband is out drinking with his buddies." Marc's Miscellany

3) "Now this is of course a Fourth Amendment search-and-seizure case, and in some respects it's a limp-wristed decision (the police will now simply manipulate the circumstances whenever possible to get the potential objecting resident 'away from the door')." A Stitch in Haste

4) "Most troubling is Chief Justice Roberts' rambling dissent, arguing that any occupant's consent should overpower the desire of other residents to assert their 4th Amendment rights. In reaching this conclusion, Roberts conjures the plight of abused spouses, arguing that a prohibition against contested third-party consent searches would undermine domestic violence investigations. In his haste, Roberts ignores the numerous exceptions to the warrant clause that will permit searches in such situations. Sadly, evidence of domestic violence tends to be found on the victim, not in a desk drawer. Nice try though, Chief." Flex Your Rights

5) "Three reasons to read the Supreme Court's opinion in Georgia v. Randolph: (1) Chief Justice Roberts' brilliant dissent. (2) Justice Scalia's brilliant dissent. (3) Justice Thomas' dissent." Steve Dillard

6) "[I]t also makes me happy because Breyer did not take Roberts' bait and conclude that the need for entry in cases of domestic violence requires a degradation of personal privacy under the Fourth Amendment." Concurring Opinions

7) "Justice Roberts dishonestly suggested in his first dissent that requiring a warrant when one occupant consents to a search while the other occupant refuses to allow a search will hinder domestic violence investigations. If the victim is in imminent danger, or if the accused is about to destroy evidence the cops can enter the house under the exigent circumstances exception. On the other hand, if there is no danger, and if the evidence is secure, then what hindrance is it to go get a warrant?" Alablawg

8) "In Randolph, the Supreme Court merely refused to expand the Court-codified doctrine of 'warrantless searches of homes.' When a Court refuses to expand a prior activist ruling, the Court is engaging in judicial restraint. Conservatives should applaud." The Radical Moderate

9) Ummm . . . Does anybody out there translate Russian?

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My Take

Facts: The police asked one person if they could search the house and were told "No." They then asked another person whom they knew to be antagonistic to the first person (estranged wife) and got permission.

Finding: Evidence found in the search must be suppressed.

Widest reading: Police must get permission from all present residents before conducting a constitutionally valid consent search.

Probable reading: If any resident specifically objects to the search the fruits of that search cannot be used against him.

Narrowest reading: Police must adhere to the decision of the first resident whom they ask to permit a search. A subsequent decision by a another resident will not vitiate the first resident's decision.

On the one hand, I must admit that I didn't really expect this opinion to turn out this way. I've read any number of cases stating that if something is in an area where more than one person had access both can give permission for a search.

On the other hand, the equities of this case were not on the government's side. It's a basic rule we all learn when we are young: if you ask Mom for a candybar and she says "no" you don't go ask Dad - or more accurately, if you are anything like the kids in my family, you do (at least once) but you get in serious trouble for it later. So, the government didn't come to this case with the cleanest of hands. You must wonder how this case would have turned out if the wife had initially agreed to allow the search and the husband had then intervened to state that he objected to the search.

Future questions: Let the games begin! Will the first refusal to allow a search stand indefinitely? This would be the simplest rule but I think it unlikely (courts tend toward complexities when simple would lead to a failure to convict). How much time must the police wait after the refusor leaves the residence to ask another resident for the ability to search? Does the intial refusor abandon his rights by walking down to the corner store for ten minutes to buy a Coke and return to his residence? What if he goes to the mall for a couple hours? Does he abandon his rights when he goes to work from 9-5? What if he goes on a week long "CLE" to Europe? Sadly, I think courts will come down closer to finding abandonment in the 10 minute walk to the corner store than the week long vacation (er, I mean legal seminar).