Tuesday, November 08, 2005

"Divided Consent" 4th Amendment Issue Heard Before U.S. Supeme Court

Today the U.S. Supreme Court heard oral argument in a "divided consent" case (Georgia v. Randolph). The State of Georgia petitioned for cert. after the Georgia Supreme Court held that consent of both cohabitants is required to justify a warrantless search. The case involves the police requesting to enter the Randolph's home. The accused's wife consent to the search, but Mr. Randoph objected. The police entered the home based on the consent of one of the cohabitants. The Georgia Supreme Court affirmed that the husband's right to be free from unreasonable searches and seizures was violated by the police search. The State of Georgia asked the U.S. Supreme Court to hear the case and they will hear argument today.

The Georgia Supreme Court reached the correct decision. It is my hope that the Roberts' Court upholds the decision and protects the 4th Amendment right of cohabitants. The 4th Amendment is designed to protect the home from unwelcome government intrusion. Kyllo v. United States, 533 U.S. 27, 31 (2001) (the home is the principal space protected by the Fourth Amendment); and Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 620 (1989) (a search or seizure absent a judicial warrant is unreasonable except under certain well-defined circumstances.) As stated by the U.S. Supreme Court, “[p]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed...” United States v. U.S. District Court, 407 U.S. 297, 313 (1972).

There are only limited circumstances in which a search may be done by the police without a warrant. These are were there are: exigent circumstances (gunshot is heard outside a house by police or the house is on fire), were contraband is seen in "plain view" or where there is consent by the property owner.

The U.S. Supreme Court has approved searches based on “third party consent” only when the subject of the search has voluntarily relinquished his right to exclude the police, in other words, when the owner has put someone else in charge of their property. See Frazier v. Cupp, 394 U.S. 731 (1969)(allowing “third party consent” when consent was given by a person to whom the defendant had entrusted the property being searched); see also, United States v. Matlock, 415 U.S. 164 (1974) (allowing “third party consent” when one of the occupants of a house consented and none of the others were present or objected.) In contrast, the search of a rented home based on the landlord’s consent was found invalid where the tenants had not consented to the search or relinquished control of the property to the landlord. Chapman v. United States, 365 U.S. 610 (1961).

The United States Supreme Court has never suggested that the police can search a home when the individual target of the search is present and does not consent, simply because a consenting resident had common authority over the property. Indeed, the Court’s cases reject such a notion. As examples, third party consent cases have held that hotel employees could not validly consent to the search of guests’ rooms, even though the employees had a right to access the room. See, Stoner v. California, 376 U.S. 483 (1964)(hotel clerk); United States v. Jeffers, 342 U.S. 48 (1951)(assistant manager); and Lustig v. United States, 338 U.S. 74 (1949) (manager).

In the case before the Court, Randolph never relinquished his ownership right to his home to his wife. As such, any evidence derived from the illegal entry ought be suppressed. The Georgia Supreme Court came to this conclusion and held that consent to warrantless search of home given by defendant’s wife, while defendant was present was not valid without his consent. Additionally, last week the Connecticut Supreme Court reached a similar decision. In State v. Brunetti, 276 Conn. 40, --- A.2d ----, 2005 WL 2678818 (Conn.,2005), the Connecticut Supreme Court held that when joint occupants have equal control over the premises, and both are present when consent to search is sought, both joint occupants must give their consent in order for the ensuing search to be valid). Years ago the Washington State Supreme Court reached the same conclusion. See State v. Leach, 113 Wash.2d 735 (Wash., 1989)(holding the police must obtain the consent of a cohabitant who is present and able to object in order to effect a valid warrantless search).

In Randolph, the Georgia Supreme Court distinguished United States v. Matlock, 415 U.S. 164 (1974) and Illinois v. Rodriguez, 497 U.S. 177 (1990), noting that in neither of those cases were law enforcement faced with the physical presence of joint occupants, with one consenting and the other objecting to the search. The Randolph opinion concluded that consent by one cohabitant is sufficient when the other cohabitant is absent, but if “the cohabitant be present and able to object, the police must also obtain the cohabitant’s consent. Any other rule exalts expediency over an individual’s Fourth Amendment guaranties.” Id. at 615.

The U.S. Supreme Court ought affirm this principle and protect the 4th Amendment rights of individuals who share their home with relatives or roommates and not put them on lesser footing then those who choose to live alone.

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