One of the "firmly established exceptions" to the warrant requirement for searches and seizures is the "consent exception." If you have the voluntary consent of the suspect to enter a residence or to conduct a search, a resulting seizure of evidence will generally be reasonable under the Fourth Amendment (Schneckloth v. Bustamonte).
When the person you're going to use the evidence against is the one who gave valid consent, the situation is fairly straightforward. But what if the consenter is a third party? Under what circumstances does the consent of another suffice to make a search reasonable as to someone else? In a recent decision on this issue, Randolph v. Georgia, the Supreme Court has affirmed some of its prior rulings, but created a new one that overturns the existing rules in many jurisdictions.
Property Owners vs. Tenants
A consistent line of cases has held that while owners who rent their property to another may retain a contractual right to reenter during the tenancy for limited management purposes, the owner has no right to grant permission for police to enter to conduct a criminal investigation:
- Operator of a boarding house could not authorize police to enter the suspect's room to search for and seize evidence of an illegal numbers operation (McDonald v. U.S.).
- Hotel manager's consent for officers to enter a counterfeiting suspect's room was not valid (Lustig v. U.S.).
- Although hotel maids, janitors, and repairmen have an implied right of entry to a guest's room to perform cleaning and maintenance, the assistant manager could not lawfully admit officers to search for a guest's narcotics (U.S. v. Jeffers).
- Officers could not rely on a desk clerk's consent for entry into robbery suspects' motel room (Stoner v. California).
- Landlord could not give valid consent for police entry into a rented house where an illegal distillery was found (Chapman v. U.S.).
These cases establish that as long as the tenant has the right to occupy premises rented from another, police cannot obtain valid consent for entry from the property owner or agent. By contrast, where the tenant never had, or no longer has, a lawful right of occupancy, the owner has a right of re-entry and can effectively consent to police entry:
- After check-out time, a motel manager can reclaim a defendant's room and permit police entry (U.S. v. Larson; U.S. v. Croft).
- Once a motel manager locked out a guest for non-payment of room charges, the manager could admit police (U.S. v. Allen).
- Even if it is his arrest that prevents the defendant from returning to a rented room by check-out time to reclaim his luggage or pay to extend his stay, the motel manager can reenter and permit police entry and search (U.S. v. Rahme; U.S. v. Huffines).
- Where a motel manager repossessed a room that had been rented with a fraudulent credit card, the defendant never acquired a lawful right of occupancy, and so had no legitimate expectation of privacy in the room (U.S. v. Cunag).[PAGEBREAK]
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.