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.