- The Washington Times - Monday, March 27, 2006

Oliver Twist’s Mr. Bumble had the proper retort to last week’s Supreme Court ruling in Georgia v. Randolph that while an occupant of a dwelling can consent to a police search when a co-occupant is napping or preoccupied with video games, an occupant cannot give consent if the co-inhabitant is physically present and objects: “If the law believes that, the law is a ass, a idiot.”

The Fourth Amendment prohibits “unreasonable” searches or seizures. The unreasonableness standard strikes an elusive balance between law enforcement and reasonable expectations of privacy. There is no social value in frustrating law enforcement for its own sake. The police are circumscribed to protect spontaneity and a right to be left alone from government bumptiousness. A population might be cowed if the police could search without probable cause to suspect wrongdoing.

The Fourth Amendment is undisturbed by the knowing and voluntary consent of an individual to search his home or person. Law enforcement is boosted, while intelligent consent answers fears of government overreaching.

The law is equally clear that an individual may give knowing and voluntary consent to intercept conversations with others or to search a jointly used duffel bag. Worries of an oppressive police are not implicated. Betrayals among intimates are always a risk. Iagos are more plentiful than Sidney Cartons.

In United States v. White (1971), the Court held that one party to a conversation can consent to government eavesdropping without violating the other’s reasonable expectation of privacy. The Court amplified: “Inescapably, one contemplating illegal activities must realize and risk that his companions may be reporting to the police…. [I]f he has no doubts, or allays them, or risks what doubt he has, the risk is his.” Similarly, in Frazier v. Cupp (1969), the Court held that the consent of one cousin to search a jointly used duffel bag was effective as to both cousins: “[I]n allowing [his cousin] to use the bag and in leaving it in his house, [the defendant] must be taken to have assumed the risk that [his cousin] would allow someone else to look inside.”

The Court has not skewed its consent analysis for the home. In Coolidge v. New Hampshire (1971), Mrs. Coolidge retrieved four of her husband’s guns and clothes and handed them to the police. The Court found no Fourth Amendment infraction. An occupant always risks a co-occupant’s search of commonly shared premises for evidence of crime and cooperation with the police.

In United States v. Matlock (1974), the police arrested Matlock in the front yard of a house. He was placed in a nearby squad car. Mrs. Graff was then approached for permission to search a shared bedroom for evidence of the arrestee’s bank robbery. Her acquiescence held was effective as to her co-occupant. The holding was similar in Illinois v. Rodriguez (1990), where Miss Fisher validly consented to admitting police into an apartment which she apparently shared with her sleeping boyfriend.

These cogent precedents bowed to the ill-reasoned decision in Randolph. There, an estranged husband and wife were occupying a marital residence. The wife complained to the police that after a domestic dispute the husband had absconded with their son. The police arrived. The wife then volunteered that her husband used cocaine, and that items of drug evidence were in the house. The husband disputed both accusations and denied consent to search. The wife did consent and lead the police to a bedroom where evidence of cocaine use was ultimately seized.

Writing for a 5-3 majority, Justice David Souter fatuously concluded that the wife’s consent was voided by the husband’s objection. He maintained that “widely shared social expectations” are the touchstone for determining the authority that “co-inhabitants may exercise in ways the affect each other’s interests.” He agreed that tenants or homeowners sharing common quarters understand that one may admit visitors that may be obnoxious or unwanted by the other if the other is absent. On the other hand, Justice Souter absurdly insisted: “[I]t 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. … [T]here 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.”

But a veto of the consent given by an equal co-occupant is precisely what Randolph permits. Further, callers do not invariably depart from shared premises if an occupant protests. Suppose Gov. Arnold Schwarzenegger invited you to dine at his home with his wife Maria Shriver. You arrive and are warmly embraced by the governor. Maria meekly objects. You would likely remain, not flee. The expectations of an invitee to marital or other co-occupied residences are too varied to be captured by Judge Souter’s single rule.

Chief Justice John Robert’s dissent underscored the obtuseness of Randolph and its gratuitous handcuff on law enforcement: “Considering the majority rule is solely concerned with protecting a person who happens to be present at the door when a police officer asks his co-occupant for consent to search, but not one who is asleep in the next room or in the backyard gardening, the majority has taken a great deal of pain in altering Fourth Amendment doctrine, for precious little (if any) gain in privacy.”

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.

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