Arguments in Georgia v. Randolph (allowing a search over spouse's objection)

T

tyme

Administrator
Slate: http://www.slate.com/id/2129808/nav/tap2/

SCOTUSblog:
http://www.scotusblog.com/movabletype/archives/2005/11/tomorrows_argum_15.html
http://www.scotusblog.com/movabletype/archives/2005/11/court_weighs_ho.html
http://www.scotusblog.com/movabletype/archives/2005/11/yesterdays_argu.html

It looks to me as if the Court is in favor of someone being allowed to grant police permission to search over the objections of the person's spouse. A wife granted permission to search. Her (cohabitating) husband (an ex-lawyer who allegedly had a coke problem) was present and objected to the search. Police went in. The wife led them to a straw that had coke in it. Police left to get an evidence bag. The wife withdrew her consent. Police took the straw anyway (clearly they had an interest in collecting evidence of a crime whether I agree with drug laws or not), got a warrant, searched the house, and found more evidence. The validity of police procedure subsequent to entering the house is not in question.

These are some of the arguments, in a nutshell:
pro-search:
When you share a residence, you give up some measure of control, which includes the right to unilaterally deny police the right to search.

Because someone does not have to be present and object in order to retain 4th amendment rights, allowing anyone with control over a residence to object to a search would force police to get permission from all individuals with control over a residence before searching it... because anyone with control might object, and they shouldn't have to be present to exercise that right.

Thomas raised the question of how this is any different than if the wife had presented the straw to police when they arrived, without inviting them in.
I think this is substantially different. She would probably have not thought to wear gloves, so the issue could be raised in court whether it was his straw or hers.

anti-search:
The problem with absence does not exist, because by leaving you implicitly grant whoever stays at the residence exclusive power to grant or deny searches. Therefore, standard fourth amendment doctrine is not violated by requiring that all present, controlling individuals must consent to a police search.

Allowing searches over objections introduces problems regarding who can authorize searches. Can children (or 18/19-year-old highschool students) overrule their parents' objections to a search? Could a semi-live-in mother-in-law permit a search over the objections of both main residents? Allowing searches when there are conflicting permissions from residents seems to require complex rules about whose permission is and isn't valid.
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Personally, I think that in most cases, the police should be forced to respect social standard for who controls a house. That means that children should not be able to authorize or object to a search when their parents are home. Live-in in-laws should not be able to overrule the primary residents of a home.

However, when two people with equal social claim to the house -- a couple, or two adult children -- are present and disagree on whether to allow a search, I think the police should get a warrant. Alternatively, one of the residents could give the police evidence, but should not be able to invite police in. I think it's important to note that the rationale is not prevention of access to particular items of evidence that one resident wants to disclose. My rationale is that if someone's present, they may have transient illegal objects lying around that they'd ordinarily take with them if they left, and allowing someone else to expose that to police violates the 4th amendment. Those illegal item(s) may not even be why the spouse is inviting police into the residence, so inviting police in over objections may have unintended consequences to all residents, even the one granting permission for the search.

A further thought... this is hypothetical of course, but what if the wife had assumed a coke problem when there wasn't one. What if the straw had protein powder in it. What if there was something else illegal that the wife thought nothing of, and that turned into an arrest and a search warrant.
 
NASA would be using cow-drawn space sleighs instead of the Shuttle to build and maintain the ISS. If you didn't want to deal with hypotheticals, you could have ignored the last three lines and commented on the case and the issues.
 
Tyme, if you're getting at the old time rule, that the head of the household should have complete control and authority, it's not like that any longer.

The LEO's just have to hear a "yes" from any of the parties involved. It doesn't matter if they even live there, they hear a "yes" and in they go.

They, technically, were given consent and they can use the "I didn't know if they were authorized or not to give consent" agruement. And will most likely win in court.

When they were led to, and had taken into custody(sp) the evidence, under the initial consent, then they had PC to get a warrent and place the couple in detention (arrest) until they came back for a better search.

What comes to mind is Chris Rocks "How not to get your butt beat" comedy deal. The last part is "don't get inside a vehicle when your "women" is mad". The wife/women yells to the police "he's got weed" and they beat him on the ground. Now, they won't really do the beating part right off the bat but they will search because now they have PC. And they will detain you long enough to get a warrant.

But that is just my very VERY limited knowledge on the subject and on the issue. I could, most likely, be very wrong in my thinking.

But I figured that I would add to the thread anyway.

Wayne
 
What comes to mind is Chris Rocks "How not to get your butt beat" comedy deal. The last part is "don't get inside a vehicle when your "women" is mad". The wife/women yells to the police "he's got weed" and they beat him on the ground. Now, they won't really do the beating part right off the bat but they will search because now they have PC. And they will detain you long enough to get a warrant.

But that is just my very VERY limited knowledge on the subject and on the issue. I could, most likely, be very wrong in my thinking.

But I figured that I would add to the thread anyway.
Click to expand...

Nope, you got it just about right.
 
I believe that searches can be made ONLY in the areas where the consenting party has "control" or "dominion".

This means that parents control the whole house. Spouses control the whole house. Roommates control the whole house. Minor kids do not have any ability to grant or withhold consent. Adult children of the house-holders do not have power to grant consent for the whole house BUT may be able to deny consent to those areas of the house they call their own. However, live-in boarders DO NOT control the whole house NOR do the house-holders have dominion/control over the area the boarder lets. Live-in's have no power to grant consent to general areas of the house or areas they do not occupy. Visitors have no power to grant consent to anything but, strangely, consent from the house-holders could encompass the visitors and their personal posessions.

This means that your live-in MIL can't give consent to a search except to her own rooms. Your kids usually can't either. If the cops go in without ascertaining if the consent is valid, then they risk all kinds of problems including personal liability. After all, all they gotta do is ASK "Do you live here?". Usually they'll get an answer of "yes, but I just rent a room" or "no, I live over there" or "my parents do". If they go in without asking that question, they're doing all kinds of things wrong and in violation of their training. As a practical matter, if your MIL gives consent, the cops usually have to walk through the house to get to her room. On the way, they'll observe the house looking for contraband and if they find it, they'll just get a warrant. Well trained LEO's know the rules and follow them. They don't have to tweak the rules in order to cover their goof ups and save the evidence they grabbed illegally. Most of the "exceptions" that are judicially created are there to help law enforcement CYA.

On the other side of the coin, house-holders can't give consent to search the areas let by live-in boarders. It's the same as if you were in a hotel room. The hotel manager can't give consent to the cops to search your room (absent exigent circumstances). Neither could your apartment landlord do that for your apartment. The same principle applies here to live-ins. Adult children fall into a gray area that the courts tend to treat as a live-in boarder even if the kids don't pay rent.

As to visitors, they get stuck if consent is granted since they are "in" the house. Since they don't have any dominion or control they can't say no.

It's been a long time since I looked into this area and the law may have changed. If anyone has specific stuff that's different, I'd like to hear about it (saves time doing the research).
 
Previous cases have pretty well established that any single adult with resident or (sometimes) owner status can grant or refuse searches (warrants and exigent circumstances aside), but the SCOTUS has never decided on a rule when there are conflicting permissions from two or more such adults. There was a case where someone was arrested and the girlfriend gave permission to search their home, but the arrest negated his ability to refuse the search. Not so in this case.

I think the social hierarchy has to be respected, where it can be determined. If that's too complex (I'm sure most LEOs would think so), any adult resident present should have overriding veto power. The government complains that such an overriding veto -- even in cases like this one involving only two adults -- would gridlock police investigations and interfere with gathering of evidence before criminals can dispose of it. I don't care. With all the laws outlawing various items these days, a de-facto ban on permission-based searches seems like a good thing. Unless the stars align and all adult residents present grant permission for a search, police should have to get a warrant in the absence of exigent circumstances. If someone inside the house has concerns about some item that they want to share with a LEO, they can either bring the item to the door, or they can swear out a statement that LEOs can use to get a warrant.

I won't say that the police have to track down every resident and get permission. That places more weight on possible objections (from people who may not even be contactable) than on stated permission to search. But when it's known that an adult resident objects to a search, that should override consent from any number of other residents.

The issue is not disclosure of particular items inside the home... they can be given to the police by whoever consented to the search. The issue is more about the abtract right to let LEOs into a home. In this case, where the only residents are a couple, one person allowing a search over the objections of the other seems to me a bit like disclosure and use of information protected by spousal privilege.
 
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