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.