The Supreme Court has ruled that when people jointly occupy a residence, each assumes the risk that the other may permit police access to shared areas:
- Because jailed defendant and his cousin both used a duffel bag kept in the cousin's home, the cousin could give valid consent to search it (Frazier v. Cupp).
- While a murder suspect was away from home, his wife validly admitted officers, showed them where her husband kept his guns, and offered to let the officers take them (Coolidge v. New Hampshire).
- With her husband confined in a police car nearby, a wife could validly consent to entry and search of the home for robbery evidence. Said the court, "The consent of one who possesses common authority over premises or effects is valid against the absent, nonconsenting person with whom that authority is shared" (U.S. v. Matlock).
- Even where the person who gives consent does not actually have authority to do so, officers may reasonably rely on the person's apparent authority. (In Illinois v. Rodriguez, a former girlfriend used her key to admit officers to what she called "our" apartment while a drug suspect slept inside.)
The Randolph Limitation
Notice that in the last four cases discussed, the third-party consent was given without the other party being present at the doorway and objecting. What if one occupant gives consent, but another occupant who is present expressly refuses to consent to entry or search? This was the situation addressed by the court in the recent decision in Georgia v. Randolph.
Mrs. Randolph called police about a marital dispute. She told officers that the problems were caused by her husband's cocaine use, and said he had drugs in the house. Mr. Randolph expressly refused consent to search. But his wife consented, taking the officers upstairs and pointing out some evidence. The state supreme court ruled the wife's consent invalid as against her husband's objection, and the state appealed.
The U.S. Supreme Court affirmed the state ruling suppressing the evidence. The court emphasized that in all of its previous cases allowing third-party consent, the co-occupant against whom the evidence was used was not immediately present to voice an objection. But because of the carefully guarded sanctity of the home, the court said that when both occupants are present and one objects, the other does not have the authority to "override" a co-occupant's refusal to consent:
"A warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident."
This new ruling nullifies the decisions in many state and federal cases that have held that consent is valid if given by any responsible co-occupant, even over the objection of another occupant.
The court pointed out that this new rule only applies if the nonconsenter is present at the doorway and expressly objects. If he or she happens to be nearby or is absent from the home (without evidence of police contrivance aimed at preventing objection), or if the suspect-occupant acquiesces in the co-occupant's consent, the consent of one occupant would still be valid.
After Randolph, the general rules on third-party consent can be summarized as follows: (1) property owners cannot validly consent to police entry or search while a tenant or guest has lawful right of possession of the premises; (2) when the suspect is not present or makes no objection, a co-occupant can give valid consent; but (3) if one co-occupant is present and objects, another cannot give valid consent as to evidence incriminating the objector.
Devallis Rutledge, a former police officer and veteran prosecutor, is Special Counsel to the Los Angeles County District Attorney.