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Supreme Court Tackles Consent to Search Issue

By TChris, Section Constitution
Posted on Mon Apr 18, 2005 at 02:04:38 PM EST
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by TChris

When the police want to search a residence, a savvy occupant will just say no -- at least when the police have no search warrant. But what if the police keep asking residents until they find someone who says yes?

The U.S. Supreme Court said on Monday it would decide whether one occupant may give the police consent to search a residence, even though the other occupant already has objected.

Scott Fitz Randolph's wife called the police to report a domestic dispute. She told the arriving officers that Randolph had drugs on the premises. Randolph refused their request to search for the drugs, so the officers asked the wife, who consented.

The trial court upheld the search because the wife had authority along with her husband to allow the police to search their home. But the Georgia Supreme Court ruled that when two people have equal use and control of the premises, one occupant's consent is not valid when the other objects.

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    Supreme Court Tackles Consent to Search Issue | 31 comments (31 topical)
    Re: Supreme Court Tackles Consent to Search Issue (none / 0) (#1)
    by Talkleft Visitor on Mon Apr 18, 2005 at 03:02:35 PM EST
    Its called a police state, right now we still have some human and civil rights, but soon that will just be one more myth of a non free world.

    Re: Supreme Court Tackles Consent to Search Issue (none / 0) (#2)
    by Talkleft Visitor on Mon Apr 18, 2005 at 03:09:01 PM EST
    That's a tricky one, but I have to say thatmy intuitive response is that the trial court called it right. OTOH, though, I can see a reasonable argument for not allowing such evidence to be used in a criminal proceeding to the detriment of the known objector, but my problem is that the theory that would support that wouldn't allow the consent of a third-party with control of the property to be conclusive even when the target wasn't a "known objector", as I see it.

    Re: Supreme Court Tackles Consent to Search Issue (none / 0) (#3)
    by pigwiggle on Mon Apr 18, 2005 at 03:51:39 PM EST
    I’m confused as to why consent was needed. They had information from a reliable source (for god sake she lived in the house and had seen the drugs) that a crime was being committed. Reminds me of a time I tried to kick a cop out of an apartment I had in college. It was a house that was divided up into several apartments and he refused to leave the common areas until everyone in the entire house had objected to him being there. The guy was VERY unreasonable and I was seriously afraid it was going to escalate into something violent. I eventually lodged a complaint and later learned he was fired based on several complaints including one over an incident where he tackled and cuffed a woman in her wedding dress. He pulled the couple over for littering; one of the cans tied to their bumper had come loose. She was indignant, then a tussle, then the cuffs.

    Re: Supreme Court Tackles Consent to Search Issue (none / 0) (#4)
    by Patrick on Mon Apr 18, 2005 at 04:22:16 PM EST
    This will shake out that any lawful occupant can give consent for common and personal areas. That will leave off-limits all personal areas accessable only to the objecting party. Who wants to bet? It's just like a probation/parole 4th waiver in a house where the other person is not on parole/probation.

    Re: Supreme Court Tackles Consent to Search Issue (none / 0) (#5)
    by Sailor on Mon Apr 18, 2005 at 06:26:10 PM EST
    cmdicely, I wobbled too, but then I thought the law should err on the side of the person wanting to keep their civil liberties. If the police think they might have a case then do some police work and build one. They also only asked the wife after the husband had said no. Venue shopping anyone? An irate spouse is not a 'reliable source.' They frequently make bogus claims, even after advice of counsel, (see 'custody battle') And since there are no separate personal areas, it would be one adult consenting for another. In this case, you may have missed that the wife "When the officer returned to his car to get an evidence bag, the wife withdrew her consent for the search." I don't doubt it may come down the way you say patrick. Another interesting POV, is that she goes to jail too for the drugs.

    Re: Supreme Court Tackles Consent to Search Issue (none / 0) (#6)
    by john horse on Mon Apr 18, 2005 at 07:00:35 PM EST
    I know that this is getting a little off topic but one thing that everyone should do is get educated about how to handle encounters with law enforcement. Something that I found helpful was a book that a friend of mine had called "Beat The Heat" by Katya Komisaruk. Its kind of an idiots guide to dealing with police - what to do and say, what not to do and say, cartoon illustrated, serious as a heart attack but with a sense of humor. Ignorance is not bliss when it comes to your rights.

    Re: Supreme Court Tackles Consent to Search Issue (none / 0) (#7)
    by Sailor on Mon Apr 18, 2005 at 07:16:51 PM EST
    Good point Mr Horse, the ACLU also publishes excellent guides, for whatever situation you might find yourself in. Rather than list any specific link, please google 'aclu guide'. OTOH, cops are bullies, lie and commit perjury as a living ... your mileage may vary in the real world.

    Re: Supreme Court Tackles Consent to Search Issue (none / 0) (#8)
    by Johnny on Mon Apr 18, 2005 at 07:19:04 PM EST
    A cop friend once told me their best weapon is that most people do not know or understand their basic rights. NEVER consent to a search without a warrant!

    Re: Supreme Court Tackles Consent to Search Issue (none / 0) (#9)
    by Che's Lounge on Mon Apr 18, 2005 at 07:19:10 PM EST
    If ANY legal occupant objects to their home being searched WITHOUT A WARRANT, then that should overrule any other legal occupant from authorizing a search. No lives were in danger. They were attempting to further the inquiry into a NON violent crime. There should be no grounds for a warrantless search based only upon one occupant's claim. At least in a free country.

    Re: Supreme Court Tackles Consent to Search Issue (none / 0) (#10)
    by Patrick on Mon Apr 18, 2005 at 07:35:07 PM EST
    In a FREE country, people have the right to waiver their rights. Whether or not they should depends on the cirumstances.

    Re: Supreme Court Tackles Consent to Search Issue (none / 0) (#11)
    by chupetin on Mon Apr 18, 2005 at 11:28:03 PM EST
    I get woken up by my wife telling me the cops are at the door. There is about 5 officers at my door saying that one of the neighbors complained about too much noise. I told the officer that everyone in my house was asleep and that we did'nt near any noise. By this time my daugter and my grandkids had been awakened and we are all standing in the living room in our PJs and stuff. The cops said that they wanted to search the house anyway. My wife asked them if he they had a warrant. The officers response was to put his flashlight in her face, forcing her back as they all came in. He said that they didnt need one. They looked around the house and even went into the back yard saying that they needed to make sure that there was no dead bodies back there. I also noticed some runt of a cop standing by my back gate. They left after that and lucky for me most cops are idiots. Lets just say if they were smart, I would have been in some trouble. Anyway, turns out the source of the disturbance was the kids in the house next to mine playing video games with the volume loud. For that they sent out a total of 7 incompetent cops that went to the wrong house anyway. I have a lot of personal stories like that and cops wonder why people dont respect them.

    Re: Supreme Court Tackles Consent to Search Issue (none / 0) (#12)
    by Che's Lounge on Tue Apr 19, 2005 at 07:14:57 AM EST
    Patrick you twit, one person cannot waive the rights of another. Pick up a f***ing law book sometime.

    Re: Supreme Court Tackles Consent to Search Issue (none / 0) (#13)
    by Patrick on Tue Apr 19, 2005 at 07:23:49 AM EST
    Che, You moron, that's not what I said is it?

    Re: Supreme Court Tackles Consent to Search Issue (none / 0) (#15)
    by Talkleft Visitor on Tue Apr 19, 2005 at 07:43:59 AM EST
    This one is going to be a unanimous opinion reversing the Georgia Supreme Court and affirming the trial court. In my mind the only issue is why. I think that both a probable cause existed under the totality of the circumstances and extigent circumstances were present argument, and an argument that any co-tenant can consent to a search both make sense. The case most on point in my mind is the case where the husband had sex with a prostitute in a car that he owned jointly with his wife, resulting in its forfeiture, and the Supreme Court held that forfeiture due to a filandering husband is one of the risks you take when you are a joint owner of property.

    Re: Supreme Court Tackles Consent to Search Issue (none / 0) (#16)
    by Talkleft Visitor on Tue Apr 19, 2005 at 07:53:34 AM EST
    I have a lot of personal stories like that and cops wonder why people dont respect them.
    some funny and some not so funny. "you twit", "you moron" i just love the balanced exchanges in this space. hehe!

    Re: Supreme Court Tackles Consent to Search Issue (none / 0) (#17)
    by Patrick on Tue Apr 19, 2005 at 08:24:43 AM EST
    Outside, All my communications training says you need to speak at the level of the person you are trying to communicate with. Che apparently needs small words and profanity, sorry if you were bothered by it.

    Re: Supreme Court Tackles Consent to Search Issue (none / 0) (#18)
    by chupetin on Tue Apr 19, 2005 at 09:50:52 AM EST
    How about getting pulled over and hassled because "you fit the description of someone who (insert crime here)". For a while I thought someone had succesfully cloned me and set about 20 of my clones on crime sprees. But then I realized cops are pathological liars.

    Re: Supreme Court Tackles Consent to Search Issue (none / 0) (#19)
    by Che's Lounge on Tue Apr 19, 2005 at 11:16:25 AM EST
    Patrick, Your comment seemed to infer that if one person waives their rights, then that would supercede the rights of, in this case, another occupant. How do you really mean it? Am I the only one who interpreted it that way? If so, I apologize. If not, then your comment was just some words in a row.

    Re: Supreme Court Tackles Consent to Search Issue (none / 0) (#20)
    by pigwiggle on Tue Apr 19, 2005 at 11:27:31 AM EST
    Che- We are talking about the right of folks to be secure against unreasonable search. If two people cohabitate and one consents this is hardly unreasonable. Further, how would you balance this with a persons desire to be free from crime in their home, specifically crimes committed by housemates. Perhaps your objection to the nature of the crime is effecting your ability to be critical here. Would you be so adamant if the wife had found out the husband as a serial rapist and directed the police to a box of underwear kept as trophies in their common living area?

    Re: Supreme Court Tackles Consent to Search Issue (none / 0) (#21)
    by Che's Lounge on Tue Apr 19, 2005 at 12:03:57 PM EST
    Pigwiggle, There are two reasons why your comment is irrelevant to this case. 1.No violent crime was being investigated as a premise to search, and 2. THERE WAS NO WARRANT TO SEARCH THE HOME. Therefore, ANY legal occupant should have the right to deny the search. Would you be so adamant if the wife had found out the husband as a serial rapist and directed the police to a box of underwear kept as trophies in their common living area? Please stick to the subject at hand. Rape is not the issue here. That's a loser's tactic. We live in a supposedly free country, yet many people feel that our rights are something to be stripped, not defended. And all some can "complain" about is my language. This whole country is off it's nut.

    Re: Supreme Court Tackles Consent to Search Issue (none / 0) (#22)
    by pigwiggle on Tue Apr 19, 2005 at 12:38:14 PM EST
    Che- You made it general, not I; ‘If ANY legal occupant objects to their home being searched WITHOUT A WARRANT, then that should overrule any other legal occupant from authorizing a search.’ Fine if you want to back of this supposition and talk the specifics of this case, just withdraw the above quote.

    Re: Supreme Court Tackles Consent to Search Issue (none / 0) (#23)
    by Che's Lounge on Tue Apr 19, 2005 at 02:06:43 PM EST
    Pigwiggle, No need for me to back out. My reference to this case in particular is obvious in my earlier comment. Argueing in generalities is not effective. I do object to laws being applied with a broad brush.

    Re: Supreme Court Tackles Consent to Search Issue (none / 0) (#24)
    by Patrick on Tue Apr 19, 2005 at 05:10:17 PM EST
    Che, I stand by what I said. IF you live with someone else you give up some expectation of privacy and that person has legal standing to waive their 4th Amendment protections for common areas and their personal areas. They will not have standing to waive 4th protections for any area where they do not have a lawful right to be. They are not waiving someone else's rights, they are waiving theirs. And the legal precedent should stand regardless of the type of crime as Pig stated.

    Re: Supreme Court Tackles Consent to Search Issue (none / 0) (#25)
    by Che's Lounge on Tue Apr 19, 2005 at 07:47:10 PM EST
    Patrick, How so? Waiving a right to refuse a search? That's a passive action. It should not be construed as giving permission for the authorities to enter and search. I am just astounded that you can't comprehend that. You have to err on the side of protecting rights, not ignoring them. that's democracy.

    Re: Supreme Court Tackles Consent to Search Issue (none / 0) (#26)
    by Che's Lounge on Tue Apr 19, 2005 at 07:56:46 PM EST
    One legal occupant's right to privacy should not be violated just because another occupant has no objection to an illegal search. Another occupant can claim anything they want (ie "there are drugs in the house"). That matters not. Legal occupant or no, the cops should not be allowed to enter. If there are 30 people living there and one says no then that person's right should prevail. Get a warrant.

    Re: Supreme Court Tackles Consent to Search Issue (none / 0) (#27)
    by Patrick on Wed Apr 20, 2005 at 07:43:28 AM EST
    Perhaps we have a miscommunication issue. When I refer to the waiving of one's rights in this example, I am referring to a permissive search, which means the person IS giving their permission, which in my training and experience in court is one of the only ways you can violate the 4th. The others being with a search warrant based on probable cause and with exigent circumstances. I believe I do err on the side of protecting rights, but I don't call it democracy, I call it the law. If your roommate/Spouse whatever, gives me permission as a cop to enter property which you both have joint control over, I'm legally allowed to come in (Under current law) and I believe it will stay that way.

    Re: Supreme Court Tackles Consent to Search Issue (none / 0) (#28)
    by Che's Lounge on Wed Apr 20, 2005 at 11:23:09 AM EST
    Patrick, The 2nd amendment may give you some pause. Personally, I believe that a person has a right to use any force necessary to protect themselves from an unlawful search. Get A Warrant. Unless you're worried the judge will deny it.

    Re: Supreme Court Tackles Consent to Search Issue (none / 0) (#29)
    by joemamma on Thu Oct 19, 2006 at 02:25:10 AM EST
    Would you be O.K with a person stealing your computer, or other personal property.  Turning it over to the police, have the contents examend without a warrent? Then having the found increminating evidence reported by the local or national news media? made to stand trial, and convicted of a crime.  It happened to me and ruined my life.  If you are O.K with third party consents then may god help you.  

    Re: Supreme Court Tackles Consent to Search Issue (none / 0) (#30)
    by Deconstructionist on Thu Oct 19, 2006 at 08:08:04 AM EST
       The first thing to remember is this  case is about a warrantless search.  The police could have secured the premises and then attempted to obtain a search warrant from a neutral and detached magistrate using the wife's statement to support probable cause. Had they done so, there would be little question as to whether it was a legal search and seizure.

      Another important factor is that is the defendant's HOME. The expectation of privacy in one's home is recognized as much greater than anywhere else.

      It's also important that this is not a case where one resident gives consent but the other is either simply not asked or not present. The defendant expressly refused to give consent.

       As an aside, don't be surprised if this case ends up with Scalia on the side with thoise who find this search illegal. His originalism leads him to be real big on the "man's home is his castle" side of the debate.

    Where have you been? (none / 0) (#31)
    by joemamma on Wed Nov 01, 2006 at 10:08:28 AM EST
    This case was setteled by the Supreme court.  They have found it unconstitutional.  One person can not give consent for a search of anothers property.  The kicker is that I believe that the other person may have to be present, and denying consent for the search. The biggest problem we have right now is that even though it is illegal for goverment agents to use illegely aquired information that they have found (FOURTH AMENDMENT)in leagal proceedings it dose not bar them from using illegaly acquired information from third partys. The fourth amendment only applys to agents of the goverment NOT PRIVET PARTIES. Is it unreasonable to require goverment agents to get a warrent to search a closed container, or your home even if a third party delaires what they claim to have seen inside? I say no!!!! If we travel down this road we may find that warrents may no longer be needed. Example: Bill Comes over to your house sees a bag of weed in your bedroom calls the police states to them what they have seen and the police enter your home without a warrent and busts you. Sound good? Our constitutional rights have been chipped away for years. If this continues we will have no rights at all.  

    consent to search/child protection investigations (none / 0) (#32)
    by notyraveragebear on Sat Feb 17, 2007 at 05:18:42 PM EST
    Is there ANY agency that does NOT require a warrant or consent for a search? If a social worker(or 2) show up at your door with police wanting to come in and "talk" about a call they got about you can they just come in and search? When these folks were asked for a search warrant they stated they didn't need one.  Both adult occupants of the home asked to see a warrant. Not only was the search NOT consented to or approved by any court but they weren't even invited into the home---they slipped in when I turned around to call my husband to the situation.There was no law being broken OR probable cause that I know of(unless I missed something). Just an anonymous phone call. What kind of recourse is there?

    Supreme Court Tackles Consent to Search Issue | 31 comments (31 topical)