In Wednesday’s oral argument in Fernandez v. California, no party asked the Supreme Court to overturn Georgia v. Randolph. But the more I think about Fernandez, the more I think the issues in the case just point to the underlying problem with Randolph. In this post, I want to say a bit about why.
The core problem is that it’s very difficult to carve out exceptions from a general rule of third-party consent. Ordinarily, any person can consent to a police search of the space in which he lives, even if he shares that space with another person who may be a suspect and may not want the search to occur. All the Justices agree with that general rule. But once you take the leap and recognize the basic doctrine of third party consent, it becomes very hard to say that there is a set of circumstances in which that is not true.
It’s hard because of the nature of law enforcement. Police officers and police investigators work full time at solving crimes. Gathering evidence is their job, and that leads them to know the rules and use them to their advantage. So as soon as you recognize the usual default rule of third-party consent, you’re telling the police officers that they just need to wait until the usual default facts are present so they can then rely on the usual default rule of third-party consent. Even if some specific facts don’t allow consent, the officers can be patient. They can wait it out until the facts change. And they often can arrange the circumstances so that the facts will trigger the usual default rule.
This means that as soon as the Court declares a specific set of facts that are exempted from the usual rule — as it did in Randolph, recognizing an exception to the usual rule when the co-tenant is present and objects — it’s inevitable that the Court will then have to grapple with how much to allow the officers to wait out changes in the facts or arrange the circumstances to avoid them. If the Court allows the police to do that, they will limit the exception to its facts and make the exception largely irrelevant. On the other hand, if the Court doesn’t allow the police to do that, the Court has to create prophylactic rules designed to protect the exception and block police efforts to wait it out or manipulate the facts. It’s an inevitable result of trying to carve out specific facts from a general rule of third-party consent.
We see those options in Fernandez. California wants the first option: They say the police should be free to wait it out or manipulate the facts as long as the officers don’t violate the Fourth Amendment. Fernandez wants the second option: He offers the prophylactic rule that as soon as a present co-tenant objects, that objection controls for all time until he has withdrawn the objection. It was a stark choice, and one made inevitable by the introduction of the factual exception in Randolph. And it wasn’t hard to see then, I think. Back in 2005, in the week before the Randolph argument, I expressed skepticism in a blog post on whether the Court would carve out the facts of that case from the general rule: Carving out facts would be “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?”
At the Fernandez oral argument, it was particularly interesting to watch Justice Breyer try to find a narrower prophylactic rule to try to save Randolph. Breyer was the 5th vote in Randolph and narrowly concurred, and he seemed to be looking for a way to avoid buyer’s remorse:
And so there does seem to me to be a real problem, if you write Randolph and agree to it, as I did, that you’re going to say, okay, the police can just get him out of the way for a little while, legitimately, get him out of the way, maybe there really was a phone call, and now they go in the house. I mean, I don’t see how I could write that without saying I was wrong in Randolph, which I still think I was right.
So Justice Breyer floats a narrower prophylactic rule that might lead to fewer strange results but still could preserve the core of Randolph: “What about saying that that ‘stay out of my house’ is at least valid for a reasonable time thereafter?” Breyer’s suggestion isn’t far from the approach I offered in my earlier blog post: If you accept both Matlock and Randolph as fixed and want to preserve both, I suggested, a way to preserve both is to recognize a “changed circumstances” rule that allows the police to come back later on when circumstances have changed.
While I think something like that is plausible if you want to preserve both cases, I wonder if that the growing realization of the puzzle that the Court created in Randolph will lead some Justices to see Randolph as a misstep. Once you play out a few more moves of the chess game, the unhappy options created by Randolph become harder to ignore. The Court can still limit Randolph to its facts, of course. But the problems that the Court grappled with today were an inevitable follow-up to Randolph, and I wonder if the problems exposed in the Fernandez arguments will lead eventually to Randolph‘s undoing.