Oklahoma Bar Association

Georgia v. Randolph : Beginning of the End for Third-Party Waivers
By John M. Dunn

Ever since Justice Douglas pointed to the “penumbra and emanations”1 that helped resolve the case of Connecticut v. Griswold and legitimized the “right to privacy” in American Jurisprudence, the right to privacy has been intimately linked to the Fourth Amendment. While the “right to privacy” has been recognized as a “fundamental right,” it has not always been recognized as an individual right.2 That was the case until the court heard of the events which occurred in Americus, Ga., on the morning of July 6, 2001, and decided the case of Georgia v. Randolph.3 Mr. Randolph raised many arguments that directly rely on the language of the Fourth Amendment.

However, a brief review of constitutional law governing search and seizure will show that the argument that a search conducted on the basis of a third party’s consent is unreasonable is dead on arrival. However, the Supreme Court did not base its analysis purely on the language of the Fourth Amendment. As Chief Justice Roberts observed in his dissenting opinion in Randolph, the majority based its analysis on changing social expectations, believing this to be the key to the Fourth Amendment requirement for “reasonableness.” He concludes that while they may have looked to the Fourth Amendment, all of the cases they used for their guiding authority refer to a “legitimate expectation of privacy.”4

On the morning of July 6, 2001, Janet Randolph summoned the police to the home that she had shared with her husband, Scott Randolph. She reported that the couple were going through hard times and had been separated since May of 2001. During that time, she had taken the children to see her parents in Canada. She had returned to the residence in early July. That morning, she and Scott had a domestic dispute. Following that dispute, Scott, fearing that she may again take the children and return to Canada, left the house with the children and hid them from her. As she spoke to the police, Scott returned. After explaining his fears to the police, he agreed to accompany Sgt. Murray to the neighbor’s house and retrieve the children. But when he returned, he learned that Janet had made statements to the police that he was a drug user and there were items of drug evidence in the house. Sgt. Murray confronted Scott about these accusations and he denied they were true. When Sgt. Murray asked for consent to search, Scott refused. Sgt. Murray then asked Janet for consent to search. She not only gave consent, but escorted the officers to the bedroom where they observed a straw that had a white powdery residue on it. Shortly thereafter, Janet withdrew her consent and the police took the straw and the Randolphs to the police station while the officers applied for a search warrant. During the service of the search warrant, more items of evidence suggesting drug use and drug possession were located. At trial, Scott moved to suppress the evidence on the basis that the search was conducted without his consent.5

At first blush, one may hearken back to the long line of American jurisprudence that governs consensual searches to determine whether the evidence should be suppressed. It begins with the Fourth Amendment itself, which reads:

From the very words of the Fourth Amendment, it is clear that the framers were interested in protecting our homes from “unreasonable search and seizure.” The court has long held that “searches conducted outside of the judicial process...are per se unreasonable...subject only to a few specifically established and well-delineated exceptions.”7 The voluntary consent of a person who exercises dominion and control over the property is one of those exceptions.8 To enforce this prohibition, the court developed the “exclusionary rule.”9 In Coolidge v. New Hampshire, the court reaffirmed, “it is the duty of the courts to be watchful for the constitutional rights of the citizen and against any stealthy encroachments thereon.”10

At this point, one could imagine Mr. Randolph’s argument to be simply that his home was searched after he refused to consent to the warrantless search, therefore the fruits of that search should be suppressed. After all, it would be improper for the court to allow one party to waive the rights of another. Unfortunately, the court has also held that not all rights are created equal in the eyes of the criminal court. In Bustamonte, for example, the U.S. Supreme Court discussed the degree of scrutiny that would be given to the waivers of some specific constitutional rights. Specifically, the court determined, “The Sixth Amendment stands as a constant admonition that if the constitutional safe guards it provides be lost, justice will not ‘still be done.’”11 The court reasoned that the right to counsel contained in the Sixth Amendment and the Fifth Amendment rights against self-incrimination were necessary to preserve a fair trial.12 However, the court relegates the rights contained in the Fourth Amendment to a position of only secondary importance.

The following term, the U.S. Supreme Court decided the case of United States v. Matlock.14 In this case, the wife of the defendant consented to a search of the residence. However, consent was neither sought nor given by her husband who was being arrested in the front yard and who was the party against whom the fruits of the search were used. The court determined, based on the holding in Bustamonte and other similar cases, that one person’s Fourth Amendment rights could be waived by a third party so long as that party has “sufficient relationship to the premises or effects sought to be examined.”15

Following Matlock, a number of circuit courts and state courts began to apply the holding to cases where one or both parties were present and one party objected to the search, with a leading case being United States v. Sumlin.16 In this case, the 6th Circuit Court of Appeals heard arguments from Sumlin concerning the search of the apartment he shared with his female companion. He contends the agents asked him for his consent to search the apartment. After he refused to waive his Fourth Amendment Rights, the FBI agents obtained consent from the cotenant. The Sixth Circuit Court of Appeals held that the ability for a third person to give the police consent to search a premises did not depend on the defendant’s absence.17 That court went on to explain:

Courts across the country began to adopt the view that when a person cohabitates with another, he or she has assumed the risk that the third party will consent to a search and all that is necessary to have the power to consent to a search is the appropriate relationship with the premises to be searched.19 That requirement lasted until 1990 when the U.S. Supreme Court heard the case of Illinois v. Rodriguez.20

In the case of Illinois v. Rodriguez, the U.S. Supreme Court heard arguments as to whether the consenting third party had to have actual authority to consent or merely apparent authority. In this case, a woman met police at Mr. Rodriguez’s apartment, consented to the search, and produced the key that was used to unlock the door. It was later found that she did not, in fact, live at the apartment and had taken the key without Mr. Rodriguez’s knowledge. The court, in holding that apparent authority was sufficient if the officers reasonably believed that actual authority existed, stated:

Based upon the holdings of Matlock, Rodriguez and the Sumlin line of cases, the Supreme Court seems to have been in a position to quickly dispose of the Randolph case in light of more than 30 years of supporting case law on which to base an opinion. In applying the court’s previous holdings to Georgia v. Randolph, it seems clear that Janet Randolph had a sufficient relationship to the property, as required by Matlock, or at least the apparent authority required by Rodriguez, to give consent for the police to engage in a search of the property. As the Sumlin line of cases established, Scott Randolph’s objections to the search would be irrelevant. The court, however, did not decide this case strictly on Fourth Amendment grounds.

During oral arguments, Justice Souter summarized the state’s arguments as advocating a rule under which Scott Randolph would have standing to raise a Fourth Amendment challenge, but while he has an expectation of privacy, Janet Randolph was able to thwart his expectation through her consent.22 He later summarized Scott Randolph’s position as being a search of a home conducted over the objection of one of the occupants, is unreasonable.23 Justices O’Connor and Ginsberg pointed out that the rule in Matlock was only applicable to situations where one party was present and the other was absent, which was clearly not the case in Randolph.24 Justice Souter disagreed and stated that to read Matlock and Rodriguez as cases which permit a third party to give permission to search in the absence of the real party in interest would be to read the cases in a light that is clearly contrary to the facts. Souter reasoned that since in Matlock and Rodriguez, the “party in interest” was actually present, just not asked for consent to search.25 Mr. Dreeban, appearing amicus curiae for the state of Georgia, pointed out that Mr. Matlock’s right to object was relinquished when he was arrested and taken to the police car, while Mr. Rodriguez’s right was relinquished by virtue of the fact he fell asleep.26 Justice O’Connor and Mr. Dreeban agreed that treating one party’s consent as valid when the other is absent and as a nullity when the other is present and objecting would “...protect Fourth Amendment rights only by happenstance...”27

Chief Justice Roberts inquired as to the nature of the “distinct individual right to privacy” and how such a right could exist in a home that is shared with someone else.28 Mr. Goldstien, appearing for Mr. Randolph pointed out that contrary to the previous discussion about inviting “guests” into the home, it is a police search of the home that was being discussed.29 In distinguishing Lopez (where the court permitted the sharing of information with the police as not violating of the Fourth Amendment), he pointed out that a police search of the home was more invasive than information that was shared with the third party and that both occupants of the home have their own expectation of privacy.30 The second prong of his defense hearkened back to the Fourth Amendment by contending that a search of the home over the objection of one of the occupants who is present is “unreasonable.”31

Mr. Goldstein correctly points out, and Chief Justice Roberts seems to agree, that under the state’s position the only way to ensure that an individual maintains his right to privacy in his house is to live alone.32 Chief Justice Roberts went on to state that the mere act of living with someone else has the effect of compromising that privacy.33 But Mr. Goldstein replied that while the arguments may revolve around the expectation of privacy, and it is certainly possible that a cotenant may admit the police over the objection of the other cotenant, the reasonable expectation of what may happen is different.34

It is interesting to note that in the early part of oral argument, some of the justices and the attorney for the state indicated that the standard for determining the outcome of the case is the determination of “what is socially acceptable” with regard to the right to invite or exclude others from a dwelling.35 It would appear that the court was faced with deciding for whom it was “socially acceptable” to prevail in the event where cotenants had different wishes as to whether to admit the police. At the same time, the justices could have been just as easily asked whether it is “socially acceptable” to believe that one only has a right to privacy if one lives as a hermit all of their lives. While this argument appears saved for another day, it seems clear that it is a question that will require answering in order to establish predictability in Fourth Amendment jurisprudence.

In the majority opinion, Justice Souter stated that the court had adopted a formalistic rule which was justified based on the privacy interests at stake. On one hand, the court weighed the interest of a consenting cotenant to cooperate with the police and invite them into the house against the interests of the potential defendant to exclude the police. Here, the court held that when a cotenant is present and objects to the search, “...a physically present co-occupant’s stated refusal to permit entry prevails, rendering the warrantless search unreasonable as to him.”36 In his concurring opinion, Justice Stevens explained each party “...has a constitutional right that he or she must independently assert or waive.”37 The court crafted this as a fact-intensive, formalistic rule. The court strained not to reduce Matlock and Rodriguez to “silly cases” by crafting this specific rule around the standing case law.38 As a product of this ruling, the court drew a fine line distinction and made the entire rule revolve about the presence of the party opposing the search being at the door and actively objecting to the search.39 In so doing, the court let stand the rules which permit a cotenant to consent to a search of the property in the absence of other cotenants or persons with “apparent authority.”40 Likewise, the police are under no obligation to seek out a cotenant that may be on the premises, sleeping or otherwise unaware of the presence of the police.41 Nor are the police required to acquire the consent of a cotenant that is later discovered to be present — making “silence is understood to be consent” the rule.42

Chief Justice Roberts, in his dissenting opinion, made several observations about the majority opinion. Among them was that the holding of the court does not serve any Fourth Amendment protection. Instead, the chief justice observed:

While the chief justice would rather have a rule that would permit any one occupant to be able to grant permission to search to the police, he concedes “when the development of Fourth Amendment jurisprudence leads to such arbitrary lines, we take it as a signal that rules need to be re-thought.”44 The chief justice is right in this observation, however, he will probably disagree in the probable outcome of the re-thinking process.

The opinion of the Supreme Court is significant as it represents a change in thinking from the Matlock line of cases. In those cases, the court looked only to whether the party giving consent had a sufficient relationship to the property to be searched to make the search reasonable. This standard did not consider the wishes of other parties in interest. It did not consider the interests of the potential defendant against whom any evidence recovered would be used. Under this rule, it was clear that the right to privacy was a “group right” and that any one of the parties holding the right could waive it as it applied to the others. The Randolph case represents a distinct change in the philosophy of the court. Randolph represents the first time the court considered the rights or interests of the potential defendant. It represents the first time the court recognized that each of the parties have an individual expectation of privacy. Furthermore, this ruling represents the first time a search has been determined to be unreasonable “as to a specific party.”

Should this trend continue, when Chief Justice Roberts gets his wish and this jurisprudence is re-evaluated, the next logical step would be to recognize that the individual does not lose his or her expectation of privacy when they are absent from the property. If the logic of this case were to be expanded just enough to yield the consistency that Chief Justice Roberts is seeking, the rule could be stated that a third party may only waive the privacy interest that he or she possesses. As a result, a search would be unreasonable against anyone that does not give consent. This rule would be uniform and give a bright line for factual application while protecting the privacy interests of those that are not present or not consenting. It seems that any rule which could be articulated as “silence or absence is understood to be consent” cannot long endure, once the court has recognized the significance of an individual right to privacy in the face of a criminal investigation.

1. Connecticut v. Griswold, 381 U.S. 479, 484-486 (1965).
2. Id. Compare with Schneckloth v. Bustamonte, 93 S. Ct. 2041 (1973).
3. Georgia v. Randolph, 126 S.Ct. 1515, 164 L.Ed. 2d 208 (2006).
4. Id. at 1533. (C.J. Roberts, dissenting). (Emphasis in original.)
5. Id. at 1519.
6. U.S. Const. Amend. IV
7. Katz v. United States, 389 U.S. 347, 357 (1967).
8. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
9. Coolidge v. New Hampshire, 403U.S. 443,453 (1971).
10. Id. at 454.
11. Bustamonte, 412 U.S. at 236.
12. Id.
13. Id. at 241-242.
14. United States v. Matlock, 415 U.S. 164 (1974).
15. Id. at 171.
16. United States v. Sumlin, 567 F.2d 684 (6th Cir. 1977).
17. Id. at 687.
18. Id. at 688. (Internal citations omitted.) (Emphasis added.)
19. See also United States v. Hendrix, 595 F.2d 883 (U.S. App. D.C. 1979), United States v. Donlin, 982 F.2d 31 (1st Cir. 1992), United States v. Morning, 64 F.3d 531 (9th Cir.), and Randolph, 126 S.Ct., at 1520. (Footnote 1).
20. United States v. Rodriguez, 497 U.S. 177 (1990).
21. Id. at 183.
22.. Argument of Resp. at 44:16-25, 45:1-2, Georgia v. Randolph, 126 S.Ct. 1515.
23. Id. at 45:2-5.
24. Argument of Pet. at 8:23-25, 9:1-6, 11-15, Georgia v. Randolph, 126 S.Ct. 1515.
25. Argument of Resp. at 46:19-15, 47:1-4, Georgia v. Randolph, 126 S.Ct. 1515.
26. Argument of Pet. at 28:1-14, Georgia v. Randolph, 126 S.Ct. 1515.
27. Id. at 28:7-18.
28. Argument of Resp. at 33:22-25, 34:1, Georgia v. Randolph, 126 S.Ct. 1515.
29. Id. at 34: 4-8, 14-17.
30. Id. at 34: 6-17.
31. Id. at 35: 9-25.
32. Id. at 42: 8-14, 20-23.
33. Id. at 42: 20-23.
34. Id. at 43: 13-18.
35. Argument of Pet. at 3:24-25, 4:1-12, 11:1-8, 19:23-24, 21:3-7, Georgia v. Randolph, 126 S.Ct. 1515.
36. Georgia v. Randolph, 126 S.Ct. at 1519.
37. Id. at 1529. (J. Stevens, concurring).
38. Argument of Resp. at 48:12-17, Georgia v. Randolph, 126 S.Ct. 1515.
39. Georgia v. Randolph, 126 S.Ct. at 1526.
40. Id. at 1527.
41. Id.
42. Id.
43. Id. at 1531. (C.J. Roberts, dissenting).
44. Id. at 1536. (C.J. Roberts, dissenting).

John M. Dunn is a graduate of the University of Tulsa College of Law. He attributes his interest of constitutional and criminal law to his earlier experiences as a law enforcement officer. Mr. Dunn is currently the principal member of the Law Offices of John M. Dunn PLLC and practices in the areas of criminal and constitutional law with a special emphasis on litigated matters.

Georgia v. Randolph : Beginning of the End for Third-Party Waivers
Published 78 OBJ 677 (March 10, 2007)