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Consent to Search a Home Under the Fourth Amendment

Once upon a time, a wolf came to the home of a little pig:

Wolf: “Hello, little pig, let me come in.”

Pig: “No, no! Not by the hair of my chinny chin chin!”

Wolf: “Well, then I’ll huff and I’ll puff and I’ll blow your house in.”

Pig’s Wife: “That won’t be necessary, Wolf, come in, come in.”

But it’s not yet time to rewrite the tale of the Three Little Pigs.

Last week, the Supreme Court decided Georgia v. Randolph, a Fourth Amendment case involving where the police searched a couple’s home. The wife (Janet Randolph) consented to the search; the husband (Scott Randolph) expressly refused consent to the search. The police searched anyway and found evidence of Scott’s drug violations. Can the police search a person’s home when he expressly refuses to consent yet when a co-habitant consents?

The majority of the Supreme Court held that the search violates the Fourth Amendment (Justices Souter, Stevens, Kennedy, Ginsburg, and Breyer). Chief Justice Roberts, along with Justices Scalia and Thomas dissented. Justice Alito did not participate.

What makes this case difficult is that it seemingly fits within several different strands of Fourth Amendment doctrine that are not entirely coherent. In the end, I believe that the majority got it right, but I think that the case presents a very tricky issue given existing Fourth Amendment doctrine.

It is clear that Scott had a reasonable expectation of privacy in his home. The general rule under the Fourth Amendment would be that the police need a warrant to enter and search a person’s home. However, one exception is if a person consents to the search.

But what if two people have control over the area that is to be searched or the things that are to be seized? If Scott weren’t home, Janet’s consent would allow the police to validly search the home. In United States v. Matlock, 415 U.S. 164 (1974), the Supreme Court held that 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.” In Illinois v. Rodriguez, 497 U.S. 177 (1990), the Court held that even if the police wrongly believe that the person consenting to the search has authority over the property, the search is valid so long as the police error was reasonable and in good faith.

This case differs from Matlock in that Scott is present, not absent. And Scott has expressly denied his consent. Whom are the police to listen to — Janet who consents or Scott who doesn’t?

Chief Justice Roberts, in dissent, notes that the Court’s holding “provides protection on a random and happenstance basis, protecting, for example, 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.” At first blush, he seems to have a point. The result is odd — if Scott weren’t there to say no, the cops could come in and search. So why should things turn on whether Scott luckily happened to be there when the cops came knocking? The majority opinion finesses the issue but doesn’t really do a good job of explaining a difference.

I believe that there is an important difference, and I explained it in an earlier post [link no longer available]. I wrote:

The answer depends upon the purpose of the consent doctrine. I think that as a policy matter, the focus should be on creating clear rules for the police officer acting in good faith. The rule in Matlock above would be justified because the police officer is searching pursuant to a clear grant of authority. Making the officer have to guess whether all non-present parties would have consented would slow down the search process immensely. First, it would take time to locate all the other non-present parties. Second, the cop would have to figure out how many non-present parties have authority over the place being searched.

For sure, the rule in Matlock is problematic from an individual rights perspective, in that a person’s rights can be waived by another party. But from the perspective of an efficient way to allow police officers, acting in good faith, to be able to search pursuant to consent, the rule in Matlock does make some sense.

But now let’s turn to Georgia v. Randolph. If we have a clear communication by a party that he does not wish his property to be searched, the ambiguity in Matlock goes away. From the individual rights perspective, the result is problematic for the same reason as Matlock is. From the police perspective, there is a clear indication of no consent by a party being searched. It would seem to me that without facing any uncertainty as to whether all other parties consent and without the difficulty of having to check with all non-present parties to find out if they consent, there’s little justification to allow a cop to search here without a warrant. The benefits of the rule in Matlock disappear. Thus, Georgia v. Randolph is not analogous to the situation in United States v. Matlock.

Chief Justice Roberts makes another argument in dissent that is worth discussing. Roberts views the case as an assumption of risk case. Under existing Fourth Amendment doctrine, one assumes the risk that a friend might betray him and rat him out to the police. A person who mistakenly places trust in another person and is betrayed lacks Fourth Amendment protection. If Scott Randolph’s wife gave the police information about Scott, Scott wouldn’t have Fourth Amendment protection. According to Roberts: “The Fourth Amendment protects privacy. If an individual shares information, papers, or places with another, he assumes the risk that the other person will in turn share acess to that information or those papers or places with the government.”

I’m not quite sure Roberts’ statement that the Fourth Amendment protects privacy is consistent with the assumption of risk doctrine. The assumption of risk doctrine doesn’t focus much on privacy, for as Roberts himself notes, a “criminal might have a strong expectation that his longtime confidant will not allow the government to listen to their private conversations, but however profound his shock might be upon betrayal, goverment monitoring with the confidant’s consent is reasonable under the Fourth Amendment.” It is quite difficult to square the assumption of risk doctrine with the reasonable expectation of privacy test, but that’s a discussion for another day.

Nevertheless, I believe that there is a difference between a husband’s being ratted out by his wife and a husband’s home searched over his express objection based on his wife’s consent. Things are very difficult and tricky when one tries to reason analytically from all the discordant Fourth Amendment rules, but I think that the picture might be more clear if we just asked the question: When does it make sense to require the police to get a warrant?

Suppose Scott Randolph’s wife went to the cops and gave information about Scott’s criminal activity. I do not believe that this should require a search warrant — it wouldn’t make sense. A citizen is voluntarily giving information to the police, and without that individual giving the information to the police, there’s no other way that the police might find out about it. We depend upon citizens coming forward and informing the police about crimes.

On the other hand, there is no reason why the police can’t get a search warrant to search Scott’s home. One of the reasons why warrants are generally required to search homes is to ensure that the process is orderly, that there is no police abuse, that the search is limited to the particular items being sought, and so on. Consent is an exception to the general rule. Allowing the cops to enter a home over the objections of a co-habitant can make a tense situation worse. [Of course, in an emergency situation, the cops can enter, but that’s a separate exception to the Fourth Amendment requirements.] I also find it very problematic to promote and foster situations where the police can override a person’s consent so readily. When people consent to searches, many do so without full awareness of their right to say no (the cops don’t have to inform people of their right to decline), and it can be highly coercive when police officers are stating that they would like to conduct a search. Having the cops rummange through one’s home is highly invasive, and the general rule is that people have the right to prevent the cops from doing so unless the cops have first obtained a judicially-authorized warrant. Consent should be a limited exception, and it shouldn’t grow to the point where it begins to substantially override Fourth Amendment protections.

Originally Posted at Concurring Opinions

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

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