Georgia v. Randolph:
On Tuesday morning, the Supreme Court will hear argument in Georgia v. Randolph, No. 04-1067, a Fourth Amendment case involving third-party consent to search a home. The issue in the case is whether the police can rely on one person's consent to search a home if a co-occupant is present and objects to the search. The State-Petitioner's brief is here; Defendant-Respondent's brief is here; the United States brief as friend of the court is here.

  The George Supreme Court held that consent is impermissible when a co-occupant is present and objects, but I'm pretty confident the Supreme Court is going to reverse. It has long been settled law that anyone with common authority over a space can consent to a police search of the space. See United States v. Matlock, 415 U.S. 164 (1974). The basic idea is that any one who controls property can do what they want with it, and that includes letting the police come inside and take a look. In its decision below, the Georgia Supreme Court tried to carve out a special exception to this rule when a co-occupant is present and objects. As the SG's unusually good brief explains, however, this is a pretty tough rule to administer for practical reasons. How much of an objection is enough? When is a co-occupant present? And won't the police just wait until the nonconsenting party leaves, and then ask again?

  Tom Goldstein's brief for the defendant tries to make the case that the exception is needed to protect privacy in the home, citing lots of Kennedy and Scalia opinions along the way. I doubt this argument will work. The problem, I think, is that the source of the problems Goldstein identifies is United States v. Matlock itself. As a result, the brief presents more of a conceptual challenge to Matlock as a whole than to its application in the specific case of non-consenting co-occupants. Matlock has been interpreted broadly for decades, however, and the Justices haven't shown any inclination to overrule or limit it significantly. They might change their minds, but I think it's more likely that they'll reaffirm the broad reading of Matlock and reverse the decision of the Georgia Supreme Court.
Remus Talborn (mail):
Hey, Orin, thanks for pointing this out! This is an awesome case.
11.6.2005 9:19pm
Remus Talborn (mail):
If the GSC really wanted to carve out this exception, why didn't they rest it on the AISG of the Georgia Constitution?
11.6.2005 9:23pm
CCMCornell (mail):
Is this similar to a situation in which a person objects to the presence of a guest of housemate, but can not charge the guest with trespass because one of the legal occupants welcomes him?

Or, is this different because it involves law enforcement and the issue of search and seizure?
11.6.2005 10:26pm
Remus Talborn (mail):
Gotta disagree.

I don't see a carve-out; I see an extension of the same principles to heretofore unforeseen facts, i.e., Goldstein's argument is in-line with the policy concerns of the conservative Matlock opinion. Indeed, the GSC and Goldtsein's arguments are persuasive precisely because none of the precedents clearly cover this case, e.g., the "assumption of risk" argument is inapposite.

I think it comes down to whose best line you buy: Will police officers have to garner unanimous consent of all occupants in order to get a search (an unreasonable burden on cops), or should any occupant (a child) be able to consent over the objections of all others (a parent), meaning cops have as many chances to garner consent as there are occupants in the house (an unreasonable burden on the occupant asserting the right)?

I cannot see the court siding with the cops on this one. Not after Kelo. After all, a man's home is still his castle, isn't it?
11.6.2005 11:12pm
Michael Dimino (mail) (www):
I agree with Orin that reversal is likely. It would be anomalous, would it not, that one's rights to prevent police access would turn on whether the suspect happened to be there at that moment. Mr. Goldstein admirably defends the anomaly on the assumption-of-the-risk theory, but (a) Matlock makes that argument untenable, as Orin pointed out and (b) my reading of the cases (not as thorough or as recent as Mr. Goldstein's, to be sure) is that AOR was the conclusion, not the analysis. That is, the Court would find that a companion had access to the area searched and then would announce that therefore the suspect had assumed the risk that the companion would consent. AOR was not, to my mind, ever an independent consideration additional to the question whether the [police reasonably believed that the] consenting third party had the ability to consent.
11.6.2005 11:48pm
Remus Talborn (mail):
It would be anomalous, would it not, that one's rights to prevent police access would turn on whether the suspect happened to be there at that moment.

No. If you're not there to object and another person there who can consent on your behalf says Yes, then it's as good as your consent. If you're there to object, there is no consent; they have to go get a warrant. "Valid consent" is an exception to the rule that warrantless searches violate the Fourth Amendment; the question being asked is whether we should narrow the Fourth Amemdment by expanding one it its exceptions.

Despite the rhetoric, Goldstein is not the one with the harder case. "Assumption of risk" is the result of a balancing of interests; the balancing on this set of facts runs in the opposite direction of Matlock. Word-games don't help ya. Matlock is consistent with Goldstein's argument, if you bother to read both of them.
11.7.2005 12:08am
Remus Talborn (mail):
I will bet you, Professor Kerr, that either:

1. Goldstein gets a 9-0 in his favor; or
2. Goldstein, at the very least, gets both Stevens and Scalia.

I'm prepared to discuss further terms.
11.7.2005 12:27am

I try to avoid the classic blunders:

1. Never get involved in a land war in Asia.
2. Never go in against a Sicilian when death is on the line.
3. Never bet against a pseudonymous blog commenter.
11.7.2005 12:42am
capmotion (mail):
What is overlooked in this line of cases, and most cases revolving around a police vs citizen fracas, is that the default position for the Framers was with the individual, whereas increasingly the default position in court opinions [even among the laughably labeled "originalists," who rarely embrace, or apparently even understand, true originalism] is with the government. We are increasingly State-istic, under the misused/misconstrued label "conservative."
11.7.2005 6:32am
Justice Fuller:

Do you have a cite for that? Also, if you are a "true originalist," how do you justify applying the federal Fourth Amendment to state officials?
11.7.2005 10:07am
Justin (mail):
Yea, I always forget #1, Professor Kerr.

Just Thursday I was leading my troops into souther Mongolia and I was like, oh crap, I'm in another land war in Asia again, aren't I.

Fun times, fun times.
11.7.2005 10:20am
Remus Talborn (mail):
Professor Kerr,

You mean you don't believe Remus Talborn is my real name? I am shocked. Just shocked. You could at least bet in spirit. Here I was, prepared to give you a thousand dollars if I lost.
11.7.2005 10:27am
Bryan DB:
I've got to disagree with your view here. If i recall the facts correctly (and i don't have a minute to read them again quite yet) this is a case where the police FIRST got a denial of consent from one owner, and THEN, when they didn't like that answer, asked the other. So now this isn't as simple as "anyone with common authority over a space can consent to a police search of the space," because Matlock was not a case where one owner first denied consent. This is more: "if one owner denies consent, how many owners can the police ask until they get consent?" Once the police get the first denial, it's warrant time.
11.7.2005 10:54am
Jack John (mail):
That's right, Bryan. Nevermind the fact that the owners of the house (X's parents) and the renter who lived there (X, who was a lawyer) both denied consent. The person who gave consent was X's estranged wife who lived in Canada and did it out ofspite because X had rescued their kid from her transborder kidnaping.
11.7.2005 11:38am
Your reading of the facts is correct. Also, if you substitute "Miller time," for "warrant time," that would still technically be correct. Once denied consent, it is time for everybody to cool off with a refreshing brew, and call DA Arthur Branch before breaking down the door after knocking and counting "1-2-3, whammy!" I do agree with you.

5-4 Affirmed.

pseudonymonious 3L law student currently enrolled in crim pro.

(I know, this is the Constitution--policy arguments should be made irrelevant. But the 4th Amendment is hopeless without the history of the Framers + some common sense injections as the law develops. The policy that every disenfranchised ex-lover and every bitter former roommate who still has some "co-habitant" status can get back at said law-breaker by undoing his un-consent seems like bad medicine.)
11.7.2005 11:38am
Jack John (mail):
The policy that every disenfranchised ex-lover and every bitter former roommate who still has some "co-habitant" status can get back at said law-breaker by undoing his un-consent seems like bad medicine.)

Bingo. 9-0, or both Scalia and Stevens on the same side. Anyone wanna take this bet? (Yes, I am Remus Talborn!)
11.7.2005 11:41am
Mr Diablo:
Won't this weaken marriage, if we allow one occupant to consent even though the other one is there and objects? Where are the Concerned Women for America?
11.7.2005 1:17pm
pseudonymous blog commenter (mail):

yer on!
11.7.2005 2:20pm
Justin (mail):
"5-4 Affirmed."

I'd say 6-3, but same point. The theory, perhaps wrong but existing, of con law is not based on the reasonableness of the police's actions but on theories of tresspass against an "expectation of privacy" (with many silly exceptions, almost all pro-police).

If you do not have sole domain over the "expectation of privacy" of a given domain, you've CEDED the right entirely, not solely against reasonable police actions. Thus, if you've irrevocably ceded the right to trespass to person X, person X can invite ANYONE, even the police, and even against your will (if you have a roommate, you can't kick his friends out of your apartment's common spaces. Same goes with the police.)

The only way I can see a reversal is on the grounds that consent was imperfect.

I want to point out, of course, that this all results from a definition of the 4th amendment right to privacy that has basically been interpreted out of existance. In reality, one does not invite the police into one's bedroom because one has a roommate (or an estranged wife), and it takes SEVERAL incorrect legal logical jumps to arrive at this distressing result.

Perhaps the conservatives would like to restore the 4th amendment to the same prominance as they desire for substantive due process rights for property.
11.7.2005 4:16pm
Jack John (mail):
But this is not substantive due process. The 4th Amendment is in the Bill of Rights. It's enumerated! It's enumerated for God's sake!
11.7.2005 4:58pm
Justin (mail):
Jack's irony meter is faulty.
11.8.2005 12:06am
Jack John (mail):
Not really. The point is there's no reason to group the two together. There's no reason to be fervent about enumerated rights because the assumption is they're rock solid.
11.8.2005 3:12pm