Objection
to search trumps spouse’s consent
By
David Ziemer
Wisconsin Law Journal
March
29, 2006
“What
does the majority imagine will happen, in a case in which the consenting co-occupant
is concerned about the other's criminal activity, once the door clicks shut?”
Hon.
John Roberts
U.S. Supreme Court, dissenting |
Where
one spouse consents to search of a home, but the other spouse objects, the objection
trumps the consent.
The
U.S. Supreme Court on March 22 abrogated a host of holdings by U.S. Circuit Courts
and state supreme courts in reversing a conviction founded on a warrantless search
conducted in spite of the defendant’s objection.
In
2001, Janet Randolph complained to police in Georgia that her husband, Scott,
had taken their son away. When police arrived, she told them Scott was a cocaine
user.
Shortly
afterwards, Scott returned, denying cocaine use, and countering that it was Janet
who abused drugs and alcohol. Later, Janet volunteered that there were items of
drug evidence in the house. An officer asked Scott for permission to search the
house, which he unequivocally refused.
The
officer then asked Janet for consent, which she gave. She led the officer upstairs
to a bedroom that she identified as Scott’s, where the officer found a drinking
straw with a powdery residue he suspected was cocaine.
The
officer then left the house to get an evidence bag and to call the district attorney,
who instructed him to stop the search and apply for a warrant. When he returned
to the house, Janet withdrew her consent.
After
obtaining a warrant, the police found more evidence of drug use, and Scott was
charged with possession of cocaine. He moved to suppress the evidence as the fruit
of an illegal warrantless search. The trial court denied the motion, holding that
Janet had common authority to consent to the search.
The
Georgia Court of Appeals reversed, and was affirmed by the Georgia Supreme Court.
The U.S. Supreme Court accepted the State’s petition for review, but affirmed,
in a decision written by Justice David Souter. Justices Stevens and Breyer wrote
concurrences, and Chief Justice Roberts, and Justices Scalia, and Thomas wrote
dissents. Justice Alito did not participate.
The
court distinguished its decision in U.S. v. Matlock, 415 U.S. 164, 94 S.Ct. 988,
39 L.Ed.2d 242 (1974), in which it held that a co-occupant can consent to a search,
and limited it to cases in which the defendant was “absent.”
The
court in Matlock held, “the consent of one who possesses common authority
over premises or effects is valid as against the absent, nonconsenting person
with whom that authority is shared.” Id., 415 U.S., at 170.
Emphasizing
reasonableness and “common understanding,” the court began, “it
is fair to say that a caller standing at the door of shared premises would have
no confidence that one occupant’s invitation was a sufficiently good reason
to enter when a fellow tenant stood there saying, ‘stay out.’ Without
some very good reason, no sensible person would go inside under those conditions.”
Unless
a hierarchy, such as parent/ child, is present, the court concluded, “there
is no common understanding that one co-tenant generally has a right or authority
to prevail over the express wishes of another, whether the issue is the color
of the curtains or invitations to outsiders.”
Exigent
Circumstances
The
court acknowledged that exigent circumstances may sometimes justify entry despite
an objection by one tenant, as in the domestic violence context, but found that
to have no bearing on the case at bar.
The
court wrote, “No question has been raised, or reasonably could be, about
the authority of the police to enter a dwelling to protect a resident from domestic
violence; so long as they have good reason to believe such a threat exists, it
would be silly to suggest that the police would commit a tort by entering, say,
to give a complaining tenant the opportunity to collect belongings and get out
safely, or to determine whether violence (or threat of violence) has just occurred
or is about to (or soon will) occur, however much a spouse or other co-tenant
objected.”
Accordingly,
the court affirmed, holding, “a warrantless search of a shared dwelling for
evidence over the express refusal of consent by a physically present resident
cannot be justified as reasonable as to him on the basis of consent given to the
police by another resident.”
“Loose
Ends”
Before
concluding, the court addressed what it called “two loose ends”: the
status of Matlock, and Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111
L.Ed.2d 148 (1990).
At
the time consent was given by co-tenants in those cases, Matlock was in a squad
car not far away, and Rodriguez was asleep in the apartment. Both searches were
upheld by the Supreme Court.
The
court wrote, “If those cases are not to be undercut by today’s holding,
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.”
The
court continued, “This is the line we draw, and we think the formalism is
justified. So long as there is no evidence that the police have removed the potentially
objecting tenant from the entrance for the sake of avoiding a possible objection,
there is practical value in the simple clarity of complementary rules, one recognizing
the co-tenant’s permission when there is no fellow occupant on hand, the
other according dispositive weight to the fellow occupant’s contrary indication
when he expresses it.”
Concurrences
Justice
Stevens wrote a concurrence, attacking “originalism” as a means of constitutional
interpretation. Stevens wrote, “In the 18th century, … [g]iven the then-prevailing
dramatic differences between the property rights of the husband and the far lesser
rights of the wife, only the consent of the husband would matter. … Thus
if ‘original understanding’ were to govern the outcome of this case,
the search was clearly invalid because the husband did not consent.”
Justice
Breyer also wrote a concurrence, emphasizing the “case-specific nature of
the Court’s holding,” and stating that, if a possible abuse victim were
in the home, entry following consent would be valid, despite the objections of
the potential abuser.
The
Dissents
Chief
Justice Roberts dissented, in an opinion joined by Justice Scalia, objecting on
three grounds.
First,
the Chief Justice called the majority opinion “random,” for, “protecting
… a co-occupant who happens to be at the front door when the other occupant
consents to a search, but not one napping or watching television in the next room.”
Second,
Roberts objected to the court’s importation of “widely shared social
expectations”: “the fact is that a wide variety of differing social
situations can readily be imagined… A relative or good friend of one of two
feuding roommates might well enter the apartment over the objection of the other
roommate.”
Roberts
added, “A wide variety of often subtle social conventions may shape expectations
about how we act when another shares with us what is otherwise private, and those
conventions go by a variety of labels — courtesy, good manners, custom, protocol,
even honor among thieves. The Constitution, however, protects not these but privacy,
and once privacy has been shared, the shared information, documents, or places
remain private only at the discretion of the confidant.”
Third,
Roberts found the consequences of the majority holding to be “severe”
in the domestic violence context, asking, “What does the majority imagine
will happen, in a case in which the consenting co-occupant is concerned about
the other’s criminal activity, once the door clicks shut? … It is no
answer to say that the consenting co-occupant can depart with the police; remember
that it is her home, too.”
In
addition to joining Roberts’ dissent, Justice Scalia wrote a separate dissent,
to address the discussion of originalism in Justice Stevens’ concurrence,
stating, “This reference to changeable law presents no problem for the originalist.
No one supposes that meaning of the constitution changes as States expand and
contract property rights. If it is indeed true, therefore, that a wife in 1791
could not authorize the search of her husband’s house, the fact that current
property law provides otherwise is no more troublesome for the originalist than
the well established fact that a State must compensate its takings of even those
property rights that did not exist at the time of the Founding.”
Scalia
also objected to the consequences of the majority opinion: “I must express
grave doubt that today’s decision deserves Justice Stevens’ celebration
as part of the forward march of women’s equality. … The most common
practical effect of today’s decision, insofar as the contest between the
sexes is concerned, is to give men the power to stop women from allowing police
into their homes — which is, curiously enough, precisely the power that Justice
Stevens disapproving presumes men had in 1791.”
Justice
Thomas also wrote a dissent, concluding the case was indistinguishable from Coolidge
v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), in which
the court held there was no Fourth Amendment violation, where the spouse of an
accused voluntarily showed the police where they could find the evidence of wrongdoing
they sought.
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David
Ziemer can be reached by email.
