Georgia v. Randolph Arguments Touch Two Big Isssues:
Lyle Denniston has a report on the oral argument today in Georgia v. Randolph, the Fourth Amendment case I blogged about recently involving third-party consent to search a home. Two foundational questions about the nature of the Fourth Amendment came up at oral argument, and I thought I would blog some thoughts about them. Neither of the issues would necessarily impact the outcome, but they each touch on recurring questions in Fourth Amendment caselaw.

  The first question is this: What is the role of property law in determining the scope of Fourth Amendment protections? Are Fourth Amendment rights "a matter of the law of property"? Or, as Justice O'Connor asked at oral argument, "Don't we have to look at social policy and the rights of privacy?" This is a fascinating question, one that I explored at length in a recent law review article: The Fourth Amenedment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801 (2004). As I explain in Section I of the article, as a descriptive matter the modern Fourth Amendment retains a surprisingly strong connection to property law principles. While some opinions of the Court have suggested that property is no longer the Fourth Amendment guide — Matlock is one of them, see fn 7 — as a practical matter its holdings tend to mirror property law with surprising regularity. In my article, I call the Court's dominant approach the "loose property-based approach"; it tracks property principles but doesn't embrace common law property technicalities.

  Of course, its widespread application in existing law doesn't mean that the loose property-based approach is normatively correct. In a follow-up response article, I speculate a bit about why the Court often constitutionalizes property law rules into Fourth Amendment doctrine despite rejecting property as a formal guide. I'm just guessing, of course, but I would guess that the main reason is predictability; property law offers a relatively clear and widely understood framework for defining rights, while privacy rights are more subjective to evaluate and assess in different situations. Whatever the cause, and whatever the normative merits of this approach, I do think it's accurate to say that principles of property law retain a lot of force in current Fourth Amendment law.

  The next question is this: What role do reasonable expectations of privacy play in third-party consent cases? The Supreme Court has defined a search as government conduct that invades an individual's "reasonable expectation of privacy," adopting Justice Harlan's test from his concurrence in Katz v. United States. Does that mean that the key question in this case is whether a reasonable person would expect the police will be unable to execute the search without a warrant?

  The answer, I think, is that while the Court is free to frame the question that way, it reflects a bit of a conceptual error about the role of the "reasonable expectation of privacy" test. Consent is an exception to the warrant requirement; it applies when everyone agrees that a search has occured. Valid consent doesn't transform a search into a non-search; rather, it turns an unreasonable search into a reasonable one. Given that, we can always assume in any consent case that the suspect has a reasonable expectation of privacy in the space searched. The question of whether third-party consent is valid hinges not on "reasonable expectations" from the Katz "reasonable expectation of privacy" test, but on the reasonableness of the search. In other words, this really isn't a Katz question; it's a consent question.

  Why does it matter? It matters because under existing caselaw, whether a person has a "reasonable expectation of privacy" in a space searched is generally distinct from whether a particular search of the space is a reasonable one. For example, whether a reasonable person would expect his co-occupant to consent, whether he would expect the police to enter the home anyway, and whether he would expect the police to obtain a warrant or have exigent circumstances isn't relevant. The proper doctrinal question is under what circumstances the third-party consent renders the search reasonable, and therefore constitutional.
Tom Goldstein (mail) (www):
I think Orin's thoughts here are very interesting, as always. Having argued Randolph today, I thought it would be worth mentioning why I think that the dichotomy he draws between reasonable expectations of privacy and the reasonableness of the search is doesn't quite hold in the context of third-party consent, even if it holds elsewhere. For example, Orin is quite right that even if you have an "expectation of privacy," a search pursuant to a warrant will be "reasonable." Consent, however, is different - the theory of consent searches is that the individual "voluntarily relinquishes" or even "waives" his privacy interests (though it isn't subject to the "knowing waiver" requirement applicable to trial rights), which is very close to saying that he has no "expectation of privacy." A principle rationale of these third-party cases from Frazier to Matlock to Rodriguez, in particular, is that the search is "reasonable" because the defendant has "assumed the risk" that his co-tenant would admit the police. That "assumption of the risk" rationale, if not a perfect parallel to "expectations of privacy," is its near-twin. If Scott Randolph had the "expectation" of privacy that his objection would be honored it is hard to say that he "assumed the risk," or at least assumed a reasonable risk. Orin, by contrast, includes the question of whether Scott "would expect his co-occupant to consent" within the framework of "reasonable expectations" and therefore irrelevant. Of course, the Justices absolutely may agree with Orin's take on this issue rather than mine. At least at today's argument, however, it really only seemed to be Justice Souter who accepted Orin's framework.
11.8.2005 8:52pm
John Jenkins (mail):
Didn't the "Open Fields" line of cases pretty much obliderate property rights as the boundaries of Fourth Amendment protections?
11.8.2005 10:40pm
Visitor Again:
From Lyle Denniston's summary of the oral argument on the SCOTUSblog:

Roberts suggested that "it was a little academic to talk about an individual's right of privacy" against police entry over that individual's objection when people choose to live together on common property. "When you live with someone else, you compromise your right [of privacy] to that extent."

Well you do compromise your privacy in your home "to that extent" because you no longer have privacy from the person(s) with whom you live. But I don't see any reason why you compromise your privacy in your home beyond that extent, i.e. why you no longer have privacy from intrusions by anyone your living companions would admit.

The assumption of risk rationale is spurious because the risk is not voluntarily assumed. To live with others or not to live with others might be a matter of pure choice for Chief Justice Roberts and his privileged colleagues, but it plainly isn't for many others.

Why should one have to choose between compromising one's privacy from outside intrusion, on the one hand, and, on the other, marriage? What kind of choice is that? You have to be a recluse to enjoy privacy in the home from outside intrusion? Absurd and a plain indication that the Supreme Court has yielded to the demands of the modern police state.

Beyond marriage, sharing living quarters with others may well be a matter of economic necessity rather than choice for some. Or at least it may be highly advantageous and desirable. Why should one have to choose between compromising privacy from outside intrusion, on the one hand, and, on the other, having enough money to buy food and clothing (as a result of the savings from lower rent)?

The wealthy don't have to confront this dilemma under the Supreme Court's assumption of risk doctrine if they don't want to. They can always buy or rent a separate place to which they have exclusive access or buy or rent a place large enough that it includes areas not open to common access. But the relatively poor have no way out.

Apparently a man's home is his castle only if he has the resources to buy or rent space he does not share. It is a class-based constitution the current crop of Supreme Court justices are expounding.

The legal fiction of assumption of the risk ought not to be extended. But justices who have no idea what the real world is like, who've never experienced poverty and never will, who have no poor friends or even acquaintances, who have no interest in finding out what poverty means, won't even recognize that sharing living quarters is not a matter of choice for many.

If the poliee want to search a home over the objection of one of its occupants, let them get a warrant based on probable cause, the traditional means of invading a home. They can even use the statements of the cooperative living partner to bolster their case for probable cause. But let us not rely on artificial legal concepts which have no relationship to reality to render vulnerable the last physical refuge for privacy in the modern world, the home.
11.9.2005 3:24am
ken (mail) (www):
Not that it's extremely relevant but I judged a moot court competition recently and this is one of the questions argued. Of the arguments made one in particular sticks in my mind (although I don't have time to figure out how to phrase this in constitutional terms):

"When you were six years old if you asked your mother for ice cream and she said no it meant no for both parents. If you went and asked your father he might say yes but you'd get punished for doing it. And why the punishment? Because you already had the answer and you knew you were wrong to ask the second time. That principle carries through into our adult lives as well . . ."
11.9.2005 7:58am
Justin (mail):
While I think Mr. Goldstein overstates his case (not unusual for an advocate), I think he understates how flawed Professor Kerr's reasoning is, though connects for the right reasons.

Kerr presumes the answer, which is impossible, because certain forms of consent ARE invalid. A police officer surely can't go to a 5 year old and get consent that has been denied by that child's parents, but at no place in Mr. Kerr's analysis does he allow for the step of the validity of the consent, and the reasoning therefrom.

Mr. Goldstein says that a consent is valid is a question of assumed risk. I think that is not quite correct. I think, instead, the question is one of waiver: in that sense, I think Professor Kerr's ties to property law are indeed correct.

In other words, when one shares an apartment, one has exclusive privacy domain over his bedroom, but shared privacy domain over the common areas. Absent some legal title that provides each person the right to exclude over the other's right to admit, that person has ceded his expectation of privacy to the common area to his roommate and ANYONE HIS ROOMMATE CONSENTS TO INVITE.

Thus, the Supreme Court should look to whether an estranged wife still was empowered to enter and entertain in the case at bar. Though I think the answer clearly SHOULD be no, other (incorrectly decided, in my view) precedent goes the other way, and I suspect Goldstein will lose the case, 6-3.
11.9.2005 9:46am
Stephen Aslett (mail):
I'm surprised that this particular argument hasn't come up in any discussion of the case I've seen. Yet, when my friend and I discussed the case, it came up almost immediately. Mr. Goldstein, perhaps you could give an answer to this question:

Suppose that I want to allow the police into my apartment or house to search it in order to exonerate myself from a suspected crime. I desperately want the police to search the living room or the kitchen and find nothing. Why should my roommate--possibly engaged in criminal activities--have veto power over my desire to prove to the police that I'm totally clean? You can't argue in this situation that probable cause would allow for a search warrant because I, the ignorant roommate, have no evidence to show that a crime has been or will be committed. The whole point is to let the police in to cast suspicion away from myself, which may be especially important if the police somehow eventually do get a search warrant and find evidence of criminal activity in common areas; then, it becomes a "he said, she said" game of who the crack pipe really belongs to, who knew it was there, etc.

While I understand that we don't want to have third parties effectively "waive" the fourth amendment rights of others through consent, it seems to me that assumption of the risk analysis is appropriate here. Higher expectations of privacy are available to the roommate--he could use a wall safe, keep his stash in a locked drawer in his room, or keep it offsite--if he's willing to assert them.

Visitor Again, while I agree that many people are forced into shared living arrangements, I don't see how this changes the assumption of the risk argument. While your choice of living with another person isn't entirely free, your choice to keep your stuff in the common areas of the apartment is. While more money does buy more privacy (e.g. a wall safe or safe deposit box), poor people still have means of asserting privacy over their stuff, for example, by keeping whatever they want private in a locked suitcase under their bed.

Mr. Goldstein, how would you respond to this argument?
11.9.2005 10:01am
Daniel San:
The application of privacy rights is a highly subjective analysis. Fourth Amendment analysis requires some bright line tests which can be applied by police officers at the time of the search.

Bringing privacy rights into the Fourth Amendment analysis could entertain law professors for hours, but would provide little entertainment for police officers. I imagine endless suppression hearings in which I argue that my client never would have imagined that anyone other than himself would open that particular drawer, cabinet, or container.
11.9.2005 11:05am
Visitor Again:

Visitor Again, while I agree that many people are forced into shared living arrangements, I don't see how this changes the assumption of the risk argument. While your choice of living with another person isn't entirely free, your choice to keep your stuff in the common areas of the apartment is. While more money does buy more privacy (e.g. a wall safe or safe deposit box), poor people still have means of asserting privacy over their stuff, for example, by keeping whatever they want private in a locked suitcase under their bed.

Ummm, regrettably, the poor I know share every room, and there are two, three, four, even five and more to a bedroom. That's the way it is in many homes in the ghettos and the barrios.

And they don't necessarily want to hide anything in particular (although plainly some do). They may just want freedom in their own homes from the police state's snooping eye--privacy from intrusion. Let's not equate the privacy the fourth amendment protects with hiding evidence or insrumentalities of crime. Why should the state get to know I have two pairs of pants, two shirts, no closet to hang them in, and that I don't do my laundry often enough yet I play the lottery twice a week, smoke fine cigars and have a 40-inch plasma TV? It's none of the state's business.
11.9.2005 11:49am
Stephen Aslett (mail):
Visitor Again,

It is the state's business if the person you're living with wants to tell the police about what you own. Certainly, a roommate is not prevented from informing the cops about what you possess in your shared apartment--illegal or not--though a person who would volunteer that information would be a jerk. It's the same principle that allows individuals to wear police wires--one assumes the risk by talking to others, or letting them look at your stuff, that they can "rat you out" to the cops. Even if your roommate illegally cracked open your wall safe or violated your privacy by reading your clearly marked diary, so long as your roommate was not acting as an agent of the police, she could tell the police about it or take whatever she found to the police. (No state action, therefore no search.)

Nothing in my previous post suggest that I "equate" the fourth amendment as primarily protecting criminals with something to hide. All I'm saying is that by living with someone, you need to take extra steps to guard against the risk that the other person will invite the state in. After all, it's their property too. And furthermore, the other person may have a strong interest in inviting the state in. See my previous post.

Sure, asserting privacy is easier for rich folks than poor folks--but so is asserting other rights like the right to travel (poor folks don't fly airplanes) or the right to free speech (poor folks don't have cable TV shows) or the right to effective assistance of counsel. Current Fourth Amendment case law gives the greatest privacy protection to the home, yet we don't require subsidies for the homeless so that they too can enjoy that degree of privacy. It's unfortunate, but inequality in the United States is not unconstitutional.

Still, I think you're overstating how hard it will be for poor individuals to assert privacy interests. Buying a suitcase (it can be a used one) or a book bag isn't that expensive. Neither is putting up a curtain or a divider.
11.9.2005 1:56pm
Orin is correct, the question must start with the Fourth Amendment's prohibition against an unreasonable search; there should be no doubt that when the police are rummaging around your bedroom, they are conducting a search.

For better or worse, Matlock does stand for the proposition that the state may use evidence obtained through a consented search even if the defendant might not have consented. This result should control in Randolph since in Matlock the co-occupant, who was being held in the front yard, was not even asked about the search.

I'll grit my teeth and endorse this view because any other result would imply that the police must obtain the consent of everyone who jointly controls the property before they search it. This is perhaps not such a bad result if the objective is to constrain the police, but it seems likely to increase the number of criminals who elude punishment.
11.9.2005 5:29pm
Paul doson (mail) (www):
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11.10.2005 1:19am
Stephen, if you intend to let police into a shared residence in an attempt to prove innocence, your roomate(s) would be doing you a favor by objecting. Absence of evidence in your home will not clear you of a crime, generally. You could probably construct some scenario where in the process of committing a series of crimes, you had to leave evidence in your home. But if you're not the criminal, you can't possibly know the details well enough to know that letting the police search your home will clear you of suspicion.

I'm interested in another angle. As I look at the case, the wife could have gotten the straw and handed it to police, so what's at issue is the abstract right to allow police into a home. In this case, it was a home with only a couple inside (and the non-resident owner refused to grant permission for the search, or something). Is it too much of a stretch to say that allowing entry to law enforcement -- such that any number of things might be disclosed that the wife wasn't even aware of, over the objections of the husband -- is somewhat similar to a violation of spousal privilege?
11.10.2005 2:35am
Stephen Aslett (mail):

I don't see how this is similar to spousal privilege. In the federal system at least, spousal privilege can be waived by either spouse--analogous here to one spouse's consent for police to search the house. However, spousal privilege only concerns things the spouses have told or shown each other (why else would you need one to testify against the ohter?) whereas here you're potentially talking about disclosing activity that either spouse may be wholly ignorant of. I don't see the connection.

And sure, I agree that the cops finding nothing in my house won't clear me of a crime, but it still may cast suspicion away from me.
11.10.2005 9:44am
Visitor Again:
Sure A runs the risk that if he talks to B, B will tell someone else. That's common experience.

But if B is wired for sound and tapes his talk with A or if B admits the police to an apartment he shares with A, the only reason A has run the risk of these events is because the United States Supreme Court has said he did.

A suitcase or a curtain divider will protect no one's privacy if police can access premises on a co=occupant's consent. Nothing less than a locked door to a separate room will.

The rest of your post reminds me of Antatole France's comment about the law in its majestic equaity.
11.10.2005 1:36pm
Visitor Again:
I'll grit my teeth and endorse this view because any other result would imply that the police must obtain the consent of everyone who jointly controls the property before they search it. This is perhaps not such a bad result if the objective is to constrain the police, but it seems likely to increase the number of criminals who elude punishment.

What about the police getting probabl4e cause and a search warrant, as the fourth amendment requires, instead of creating strained exceptions to the fourth amendment warrant requirement. No teeth-gritting required.
11.10.2005 1:41pm