The Fourth Amendment's consent to entry exception: protecting the castle from the co-tenant's consent: Georgia V. Randolph.

• Author: Hines, Nicholas S.

INTRODUCTION

In Georgia v. Randolph, the United States Supreme Court held that "a physically present co-occupant's stated refusal to permit entry prevails, rendering [a] warrantless search unreasonable and invalid as to him." (1) In Randolph, the Court attempted to draw a fine line to avoid undercutting earlier cases where the defendant was not on the premises but was in a nearby squad car (2) and where the "defendant was actually asleep in the apartment, and the police might have roused him with a knock on the door." (3) The Court drew the line by stating that "if a potential defendant with self-interest in objecting is in fact at the door and objects, the cotenant's permission does not suffice for a reasonable search, whereas the potential objector, nearby ... loses out." (4)

The result in Randolph is correct but for different reasons than the Court stated. Although the Court's holding was correct concerning the primary question whether one co-tenant's consent overrides another's objection, the Court erred when it attempted to "tie up loose ends" to prevent undercutting the holding in United States v. Matlock. (5) In Randolph, the Court held that a warrantless entry and search is unreasonable "when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with a co-occupant who later objects." (6) The Court should have gone one-step further and stated that if the co-occupant is in the abode or on the premises but not consulted, then the warrantless entry and search is unreasonable in that situation as well.

The Randolph holding raises several concerns. First, the Court created an inadequate standard that will not have uniform application. (7) In order to negate a co-tenant's consent to entry, the other tenant must be physically present at the moment consent is given and expressly refuse to give consent. (8) The application of this rule will be arbitrary because of the physically present and express refusal requirements. Furthermore, the Court's attempt to "tie up loose ends" supports a holding that is extremely favorable to the consenting party. For instance, the Randolph rule gives the consenting party a sword with which to strike the non-consenting party. Randolph will impact the consent exception to the warrant requirement of the Fourth Amendment and will affect citizens through real world application.

This Note addresses several issues raised by the Randolph decision. The first section discusses the legal background. The second section discusses the facts, holding, and reasoning of Randolph. The third section analyzes the opinion, including the vague and random standard created by Randolph; the "loose ends" that Randolph created; the alternate, more compelling reasons for the holding; and the future impact of the decision, especially on the consent exception.

BACKGROUND INFORMATION

The Fourth Amendment is unique in that it originated directly from the experiences of the American colonists. (9)

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describing the place to be searched and the persons or things to be seized. (10) The founding fathers included the Fourth Amendment to protect colonists from invasions into their lives and homes. (11) These invasions were common under the British government and were often justified by utilizing a writ of assistance. (12) A writ of assistance was similar to a warrant except that it was generally open-ended, gave officers of the crown unlimited right to search any person or place, and required all parties to support the officer. (13) The writ of assistance's normal use was in support of customs and excise inspections. (14) This encumbrance of personal liberty showed the founding fathers the need to protect against a government with virtually unlimited powers to invade its citizens' privacy.

During the century following the adoption of the Constitution, few cases involving Fourth Amendment issues reached the Supreme Court. (15) Nonetheless, the Constitution's prohibition against unreasonable searches and seizures began to change as the economic and social face of the nation changed. (16) The Court faced social circumstances unforeseen by the founding fathers and made difficult choices concerning the rights of citizens against unreasonable searches and seizures. (17) The heart of the Fourth Amendment remains that "[a] search without warrant not based upon probable cause is per se unreasonable." (18) Although, "the police may forego both probable cause and a warrant ... [w]hen a person gives the police consent to enter." (19)

In 1946, in Zap v. United States, the Court opened the door to the consent exception when it held that Fourth Amendment protection, like other constitutional rights, could be waived. (20) However, Zap and the other early Fourth Amendment cases used the term waiver rather than consent. The Court continued to use the word waiver as a synonym for consent until 1973. The Court made this change to avoid any suggestion that valid consent requires a warning of the right to withhold consent. (21)

Mapp v. Ohio (22) is another important case in the application of the Fourth Amendment to criminal trials. In Mapp, the defendant was arrested for possession of obscene material, which the police seized during a warrantless search. (23) Despite the warrantless seizure, the trial court allowed the evidence to be introduced. (24) The United States Supreme Court reversed the decision (25) and held that "all evidence obtained by an unconstitutional search and seizure [is] inadmissible in a federal court regardless of its source." (26) Thus, Mapp set the stage by stating that any evidence obtained in violation of the Fourth Amendment is not admissible at trial. (27)

What constitutes consent? The Court answered this question in 1973, after police acquired consent to search a vehicle during a routine traffic stop and discovered illegal checks. (28) The Supreme Court held that "when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that [the State] demonstrate that the consent was in fact voluntarily given." (29) The Court further defined voluntariness as "a question of fact to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate knowledge as a prerequisite to establishing voluntary consent." (30) Thus, consent is voluntarily granting the government access to your home and effects despite your right to withhold such access. (31)

One year after establishing the definition of consent, the Supreme Court faced another important Fourth Amendment question. In Matlock, the question before the Court was "whether the evidence presented ... with respect to the voluntary consent of a third party to search the living quarters of the respondent was legally sufficient to render the seized materials admissible in evidence at the respondent's criminal trial." (32) In Matlock, the Court took the consent exception in an interesting direction when it held that "the voluntary consent of any joint occupant of a residence to search the premises jointly occupied is valid against the co-occupant, permitting evidence discovered in the search to be used against him at a criminal trial." (33)

In Matlock, a suspected bank robber was detained in a squad car while police officers approached his residence and obtained consent to search the house from the woman with whom he lived. (34) Matlock is important because the Court recognized that a co-tenant's consent to a search is enough to satisfy the consent exception, even though the other tenant is not consulted. (35)

In 1989, the Supreme Court took the rule in Matlock one step further by holding:

[T]o satisfy the "reasonableness" requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by ... the police officer conducting a search or seizure under one of the exceptions to the warrant requirement--is not that they always be correct, but that they always be reasonable. (36) In Rodriguez, the Court faced a situation where the police, after being called to a woman's house and meeting her, noticed that she had been abused. (37) The woman stated that she had been assaulted by Edward Rodriguez earlier in the day, that the accused was asleep at the apartment, that the apartment was "our" apartment, and that she kept clothes and furniture in the apartment. (38) Without the police obtaining a warrant, the woman unlocked the door and consented to the officers entering the apartment. (39) Once inside, the officers saw in plain view "drug paraphernalia and containers filled with white powder" that later proved to be cocaine. (40) "The officers arrested the accused and seized the drugs and related paraphernalia." (41)

Rodriguez is important in the legal evolution of the consent exception because it clarified what the Fourth Amendment does and does not guarantee by stating that the exclusionary rule guarantees the defendant that "no evidence seized in violation of the Fourth Amendment will be introduced at ... trial unless [the defendant] consents." (42) While the Fourth Amendment guarantees that "no [government] search will occur that is 'unreasonable.' There are various elements, of course, that can make a search of a person's house 'reasonable' one of which is the consent of the person or his co-tenant." (43)

In 1990, the Court faced another consent question in Minnesota v. Olson. (44) In Olson, the respondent was suspected of driving the getaway car used in a...