Consent Case
Analysis
Nov.
22, 2006
That
the holding in this case is suspect can easily be understood by
hypothesizing the following scene: a group of police officers
are attending their equivalent of CLE, and being updated on recent
search and seizure law.
The
instructor poses the facts in Georgia v. Randolph, 126 S.Ct. 1515
(2006), to the officers: “you’re investigating a domestic
violence complaint at a home; the wife gives you consent to search,
but the husband objects. Can you search without a warrant?”
The
police officers would likely not be sure, with good reason. It’s
a difficult question, on which the Supreme Court split 5-3 (Alito,
J., not participating).
The
instructor would explain that the rule could have gone either
way, and be justified; a good case can be (and was) made for both
sides in the case. The court in Randolph recognized that it’s
a “fine line” between lawful and unlawful, but that
the court held it unlawful. “So don’t do it,” the
instructor would caution.
Before
leaving the topic of consent by joint occupants, the instructor
would turn to the case at bar, explaining: “A woman says
her husband battered her two weeks earlier, that he has drugs
and guns in the house, and he’s a felon; she gives you the
key to her house; she gives you consent to search it, but says
her husband is at home.”
“Can
you go into the house and obtain entry from the husband by subterfuge,
pretending that his wife has been injured in an automobile accident,
and then, once you’re in the house, arrest him, remove him
from the scene, and search the house for guns and drugs?”
he would ask.
A
curious officer asks, “what if he doesn’t let you in?”
to which the officer responds, “then you’ll have to
go back and get a warrant.”
The
officer continues, “Now that he knows we’re after him,
won’t he flush all the drugs down the toilet while we’re
getting the warrant?” to which the instructor responds, “Most
likely.”
Another
officer asks, “what if we ask him for consent to search,
and he says no,” to which the instructor responds, “don’t
ask him; if he says no, then you’ll have to go back and get
a warrant.”
Yet
another asks, “what if he simply tells us we can’t search,
without our asking anything,” to which the instructor once
again responds, “then you have to go get a warrant.”
Finally,
one of the officer asks, “Wouldn’t it be alot easier
just to get a warrant in the first place before we go out to the
guy’s house?”
The
instructor need not respond; the question answers itself.
Admittedly,
a co-tenant can consent to search of joint premises, and if the
husband were not home, the search would be unquestionably lawful.
But reasonableness is still the touchstone, and this is not a
reasonable procedure.
No
circumstances justify not getting a warrant in this case. On the
contrary, by proceeding in the fashion the officers did in this
case, the officers are not acting to prevent destruction of evidence;
they are inviting destruction of evidence by not getting a warrant,
in the event DiModica did not let them in.
Furthermore,
in Randolph, a legitimate question was raised by the dissent about
the safety of the wife, given that the police had just received
a domestic violence complaint (although the majority dismissed
that concern). In the case at bar, there was no such concern;
the alleged violence occurred two weeks earlier, and the wife
was not in the home, but safely at the police station.
Thus,
not only does this case not fall on the U.S. v. Matlock, 415 U.S.
164 (1974) side of the Matlock (lawful)/Randolph (unlawful) side
of the “fine line” that governs consent in joint occupancy
cases, it falls even further on the unlawful side than Randolph
does.
-
David Ziemer
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David
Ziemer can be reached by email.
