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Police Cannot Use the Consent of a Co-Occupant
to Make Entry in Order to Search for Evidence to be used
Against the Opposing Occupant who Is Present and Objects
to the Entry.
by Jack Ryan Georgia v. Randolph, 547 U.S. ___, slip op.
04-1067 (3/22/06).
The United States Supreme Court further
clarified the rules regarding consent searches in homes
in Randolph v.
Georgia, decided March 22, 2006. The Randolph case began
as a fairly typical call to the police. Mr. and Mrs. Randolph
were involved in a marital dispute that prompted the couple
to separate. Mrs. Randolph went to Canada along with her
son to stay with her parents in late May of 2001. She
returned to Georgia in July.
On July 6th, Mrs. Randolph
called the police to complain that here husband had left
with the couple’s son.
While speaking with the police she reported that the marital
trouble was the result of her husband’s cocaine use
which also caused financial difficulties. She also told
the officers about the recent separation and her stay in
Canada. While the officers were speaking, Mr. Randolph returned
to the house. He informed officers that he had taken his
son to the neighbor’s house because he was fearful
his wife was going to flee the country with the child
and return to Canada. He also denied the cocaine use and
reported
that the real difficulty was with his wife, who abused
both drugs and alcohol.
Sergeant Murray, along with Mrs.
Randolph went to the neighbor’s
house and retrieved the couple’s child. When they
returned, Mrs. Randolph continued to discuss her husband’s
cocaine use and also told the officers that there was evidence
of Mr. Randolph’s drug use in the house.
Sergeant
Murray then asked Mrs. Randolph for consent to search
the house which she “readily gave.” Mrs.
Randolph led the officers to a bedroom where they recovered
a straw with a powdery residue suspected to be cocaine on
it. Sergeant Murray went out to his police car to obtain
an evidence bag and call the local prosecutor. The local
prosecutor advised the officers to obtain a search warrant
before searching further. When Sergeant Murray re-entered
the house, Mrs. Randolph withdrew here consent. The police
obtained a search warrant which led to the seizure of further
evidence. This evidence was used to indict Scott Randolph.
Throughout his appeals, Mr. Randolph maintained that law
enforcement officers should not have been able to enter
his home based on his wife’s consent while he was
present at the scene and objecting to the entry.
At the
outset it is important to note that at no time was this
a domestic violence call. The call was strictly a dispute
between a husband and wife who were in the process of
separation over the placement of their son.
The decision
in this case is a very narrow one, essentially the Court
ruled that if one equal co-occupant is present
and objects to the entry of law enforcement officials,
the officials would not be justified in making an entry
(under
the consent exception to the warrant requirement) in order
to search for evidence against the objecting party. In
the majority opinion the Court makes several observations
and
distinctions that are important in order to understand
just how limited the ruling in this case is with respect
to law
enforcement operations.
It was previously decided by the
Court in United States v. Matlock, that the “consent of one who possesses
common authority over premises or effects is valid as against
the absent, non-consenting person with whom that authority
is shared.” In Matlock, the police had arrested
Matlock in the yard of a house where he lived with a woman
named
Graff and a number of her relatives. Matlock had been
placed in a police car before the police asked Graff if
they could
enter the home. She granted consent and the subsequent
search and seizure was upheld. In the decision in Randolph
the
Court asserted that a consent granted under the facts
of Matlock would still be valid since Matlock was not
on the
scene objecting to the search. The Court did indicate
that law enforcement officers should not knowingly remove
a party
from the scene in order to purposely avoid the possibility
of an objection.
The Court also distinguished Illinois
v. Rodriguez, where a woman answered the door and appeared
to live at the residence.
At the time the woman answered the door, Rodriguez was
asleep in the residence. The woman, who actually had no
common
authority over the house consented to the police entry.
The Court, in Rodriguez, held that law enforcement officers
may rely on the appearance of authority and need not take
affirmative steps to confirm if a person who appears to
have the authority to consent actually has that authority.
The Court in Randolph, asserted that the ruling from Rodriguez
was still valid and that the sleeping co-occupant who
is not in a position to object was different from Mr. Randolph
who was physically present and verbally and unequivocally
objecting. It was further asserted that law enforcement
had no obligation to seek out co-occupants when seeking
consent to search for evidence.
Thus, the ruling in Randolph
is limited to the co-occupant who is present at the scene
and is involved in the verbal
exchange seeking consent and objects to the entry. The
Court stated that the absent co-occupant assumes the risk
that
his or her roommate will allow others in while he or she
is absent.
The Court also pointed out that the ruling
in Randolph would not affect cases where the officers
were in fear of
the safety of the person who was allowing entry. The Court
stated that this entry would be justified by the concern
for the person’s personal safety on not on their
consent. Thus, the Court, in actuality indicated that
the officers
faced with a threat, such as would likely be present in
a domestic violence (as opposed to a dispute between domestic
partners) case would be justified in entering on exigent
circumstances and would not need consent.
Ironically,
the majority also indicated that the officers, following
Mr. Randolph’s denial of consent may have
had exigent circumstances to enter the home to prevent the
destruction of drugs or at the very least prevent Mr. Randolph
from re-entering the home while police sought a warrant.
The Court suggested that its previous decision in Illinois
v. Mc Arthur, would have allowed the officers to seize the
home while they sought a warrant or perhaps enter the home
based upon exigent circumstances if Mr. Randolph entered
the home, due to the possibility that he would attempt to
destroy the evidence of his drug use.
In Illinois v. Mc
Arthur, the officers were faced with a similar situation.
Officers were keeping the peace at
a domestic situation while the wife removed some of her
belongings from her husband’s home. The wife reported
that the husband had marijuana under the couch. The officers
sought consent from the husband which was denied. The chief
of police, who was present at the scene, then informed the
husband that he would not be allowed to re-enter the home
while other officers sought a warrant. Chuck Mc Arthur was
not detained nor arrested, he was merely prohibited from
re-entering the home unescorted while officers sought a
warrant. The Court upheld the officers’ actions in
the Mc Arthur case. The Court’s comparison indicated
that officers could have similarly restrained Randolph from
re-entering the home while they sought a warrant and, if
he had gotten back into the house, officers would have been
justified in entering the home to prevent the destruction
of evidence.
The Court also noted that there could be
some cases where the hierarchy (or rank) of co-occupants
would
give one occupant
the ability to allow law enforcement into the home notwithstanding
the objection of the other occupant. The two scenarios
mentioned by the Court was the parent who consents to a
search over
a child’s objection where the parent has not granted
the child any exclusive control, or the case of military
housing where a ranking person would have authority over
subordinate’s objections.
The Court’s majority
pointed out that some additional possibilities existed
with respect to the evidence in the
Randolph home. First, if Mrs. Randolph had delivered the
items to the police, the seizure would be valid. Additionally,
if she had simply provided the same information, officers
could have used that information to obtain a warrant.
With
respect to law enforcement operations, officers should
always recognize that there are three ways to obtain entry
into a home: warrant, exigency, or consent. There is no
requirement that officers use only one of these entry
methods
at one time. Thus, an officer who is about to enter under
exigent circumstances could also ask for consent and document
both of the justifications for the entry.
Officers should
always attempt to use constitutionally accepted methods,
thus, if there is a method that has already
been approved by the courts, use it. Here with 20/20 hindsight,
officers could have used the method previously approved
in Illinois v. Mc Arthur to justify their entry by obtaining
a search warrant while freezing the scene, or entering
the premises to prevent the destruction of evidence under
exigent
circumstances if unable to freeze the scene.
Key Points:
- Officers may not enter a home to seize evidence based
upon the consent of one occupant in a case where a co-occupant
is present and is objecting to the entry.
- The consent of one who possesses common authority over
premises or effects is valid as against the absent, non-consenting
person with whom that authority over the premises is shared.
- An absent co-occupant assumes the risk that a present
co-occupant will invite others into the house (including
law enforcement officials).
- Law enforcement officers may rely on the appearance
of authority when seeking consent and are not required
to take affirmative steps to confirm the person’s
actual authority.
- Where officers are in fear of a person’s personal
safety, they may enter the dwelling. These entries are
justified under exigent circumstances and do not rely
on consent or the lack of consent i.e. domestic violence
case.
- In some limited cases a co-occupant may have superiority
that will allow them to give consent over their co-occupant’s
objection i.e. parent/child.
- In cases where officers receives reliable information
from an occupant in the dwelling regarding the presence
of evidence or contraband and consent to enter but the
co-occupant objects to the entry officers may:
- Freeze the scene, restricting access to the home while a warrant
is sought.
- If officers can articulate that in the time it takes to get a warrant,
evidence will be lost or destroyed, the officers may enter under
the exigent circumstance exception to the warrant requirement. (The
Court in Randolph noted that the co-occupants objection may be a
factor supporting exigent circumstances.)
Review Policy Manual Provisions on Consent
Searches:
Amendment:
“Officers, when seeking consent to search for evidence
or contraband may not conduct a search based on consent
when a party with equal authority over the premises or effect
is present and objects to the search.”
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Some Other Consent Authority Rules:
- Landlord cannot consent to search of tenant’s
apartment-Chapman v. United States, 365 U.S. 610 (1961).
- Hotel Manager cannot consent to entry of rented room-
Stoner v. California, 376 U.S. 483 (1964).
- Hotel staff can enter room to clean and make repairs,
but cannot invite the police. United States v. Jeffers,
342 U.S. 48 (1951).
- Overnight Guests have an expectation of privacy and
may object to a search of their temporary quarters. Minnesota
v. Olson, 495 U.S. 91 (1990).
Exigent Circumstances:
- Destruction of evidence in a jailable offense constitutes
exigent circumstances to enter-Illinois v. Mc Arthur,
531 U.S. 326 (2001). (Officers denied access to trailer
while warrant obtained)
- Destruction of evidence in the time it takes to get
a warrant-Schmerber v. California, 384 U.S. 757 (1966).
- Protecting safety of officers- Chimel v. California,
395 U.S. 752 (1969).
- Hot Pursuit-Warden v. Hayden, 387 U.S. 294 (1967).
- Imminent destruction of building containing evidence-
Michigan v. Tyler, 436 U.S. 499 (1978).
- Likelihood that suspect will imminently escape- Johnson
v. United States, 333 U.S. 10 (1948).
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Citation 1: Illinois v.
Mc Arthur, 531 U.S. 326 (2001)
Citation 2: United States v. Matlock, 415 U.S. 164
Citation 3: Illinois v. Rodriguez, 497 U.S. 177
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